54 Other authorities[26] have cautioned against paraphrasing or redefining the concept of "effective control". Notwithstanding those admonitions, I respectfully consider that, at least in the context of the Victorian Act, the views expressed by Ashley J in Tat Song Loo v DPP are apposite and useful. As I have stated, the concept of "effective control" is used by the Act to capture property for the purposes of the enforcement of a pecuniary penalty order, notwithstanding the lack of any legal or other interest of the defendant in the property, and for those purposes to treat the property as if it were the defendant's property. The whole scheme of the Act is to treat as the owner of property those who, in reality, exercise a fundamental incident of ownership, namely, the practical control of property. Accordingly, the question whether the defendant has the effective control of property involves an examination of the actual practical exercise, or capacity to exercise, by the defendant of rights over the property in question, such as the right to possess, use, sell, mortgage, make fundamental improvements to, and exclude others from possession of, the items of property in question.
Background relationship of Ian Ferguson and Joanne Ferguson
55 The main basis on which the application by the DPP for a declaration is opposed arises from the claims made on behalf of Mrs Joanne Ferguson. Those claims have focussed on her marital relationship with Ferguson, on her role in that relationship, and on her rights which are said to arise from it.
56 Before examining the evidence in relation to each of the items of property in detail, it is relevant first to outline the evidence relating to the nature of the relationship between Ferguson and Joanne Ferguson.
57 Ferguson and Joanne Ferguson met in 1993 while they were both serving in the Victoria Police Force. They married in March 1996. In December 1993 they purchased, in their joint names, the property at 130 Branch Road, Lara. That property consisted of 78 acres of bare paddocks. Initially they lived in a caravan on the property while Ferguson built a garage which contained a flat. They then lived in the flat, while a house on the property was constructed. Ferguson's evidence was that he carried out nearly all of the construction work in relation to the house with the exception of some electrical works. Ferguson and Joanne lived at the property until Ferguson's conviction in January 2006. Joanne Ferguson has remained at the property with their three children.
58 Apart from when she was having children, Joanne Ferguson worked as a part time policewoman. At trial two key features emerged in the evidence relating to the relationship between Ian and Joanne Ferguson. First, the marriage was particularly volatile, and their relationship was fraught. There were many separations. On those occasions, Ferguson would remain at the home at Lara, and Joanne would take the three children with her to stay at her mother's house. Secondly, Ferguson totally and exclusively controlled all financial matters relating to the family. In evidence in chief he stated[27] that he controlled and operated the finances of the family. He organised the opening of accounts for the children. Nearly all the transactions of any significance, including loans and refinancings, were carried out by him and not by Joanne. He acquired a number of assets without any input from his wife. It was he who, without referring to Joanne, purchased the 1997 BMW. It was he who purchased the hay baler, the farm equipment, and the property at Bambra. It was he who organised the installation of a swimming pool at the Lara property. In cross-examination by counsel for Joanne Ferguson, Ian Ferguson expressly accepted the proposition that the financial affairs of the family were "exclusively" his domain[28]. He described the family finances as his portfolio, while Joanne Ferguson's portfolio was looking after the children. He stated that, for example, he never asked Joanne's permission or advice about opening a bank account. He would simply ask Joanne to sign the relevant documentation to obtain an increase on a mortgage. Ferguson agreed that it was he who completely controlled the filing of all documents.[29] When mail was delivered to the household it was left on Ferguson's table for him to open. He filed all the documents. He said "I didn't need nor ask for assistance in relation to it". Ferguson, and his mother in law, Mrs Sheila Boon, both described how Ferguson was a perfectionist about everything which needed to be done around the house. He agreed that he could be volatile if things were not done the way he wanted them to be done. He stated that any purchase other than items such as groceries were carried out by him. He agreed therefore with the proposition, put in cross-examination by counsel for Joanne Ferguson, that he "... had the pulse on the finance of the home".[30] He said that he never felt the need to discuss with Joanne Ferguson the purchase by him of larger agricultural equipment. He would inform her, but not discuss it with her.[31] Ferguson also stated that when they first married Joanne already had a unit. Ferguson took over the administration of the unit. When it was sold Ferguson dealt with the proceeds of the sale himself. He attended at the solicitor's office and was paid the money and dealt with it.[32] The money ended up in investment accounts. Ferguson stated that he did not believe that Joanne knew about the investment accounts.
59 Mrs Sheila Boon, Joanne Ferguson's mother, was called to give evidence on behalf of Ian Ferguson. She confirmed that the marriage was very unstable. When things fell apart, Joanne would come to live with her with the children, leaving Ferguson alone at Lara. In cross-examination by counsel for Mrs Ferguson, Mrs Boon also confirmed that Ferguson was exclusively in control of the finances of the house, to the extent that he went through the mail, and that no-one else dared to go through it. She said that Ian Ferguson was the dominant figure in the household. Joanne Ferguson coped by not asking questions and keeping the peace. Ferguson liked things done his own way.
60 With that background evidence in mind, I now turn to consider the claims by the DPP for a declaration in relation to specific items of property. I shall first consider the claims in respect of the Lara and Bambra properties.
The Lara property
61 The first question in relation to the Lara property is whether Ian Ferguson had the effective control of that property at the time of the making of the restraining order, notwithstanding Joanne Ferguson's legal interest as joint proprietor of that property.
62 The evidence of the relationship between Ferguson and Joanne Ferguson, which I have summarised above, demonstrates that Ferguson totally dominated all financial matters, including matters pertaining to the Lara property. Thus, for example, in February 2001 he paid off the mortgage which was then secured over Lara, without informing Joanne Ferguson.[33]
63 Similarly Ferguson unilaterally made decisions about substantial improvements to the property. It was Ferguson who alone who dealt with Mr Sutcliffe of the Kirwan Group, and organised for that company to install a swimming pool at Lara.[34] In cross-examination by counsel for Mrs Ferguson, Sutcliffe[35] said that he did not believe that Joanne Ferguson played any role in the planning of the pool or in the payment for it. He agreed with the suggestion put to him, in cross-examination by counsel for Mrs Ferguson, that "... her involvement was to bring out some coffee and Anzacs to you and the tradesmen".[36] Similarly, Ferguson's evidence was that it was he and not his wife who chose the colour of the sails which were purchased to put over the pool.[37]
64 Ferguson conducted a farming operation at Lara in the names of himself and his wife. As I have already stated, Ferguson's evidence was that he alone decided on the purchase of larger agricultural equipment for use on the farm. Ferguson stated "a tractor is a tractor to Joanne".[38] Joanne Ferguson assisted with some of the animal husbandry, but Ferguson agreed with the proposition put in cross-examination by counsel for Mrs Ferguson that in some respects she was not particularly enamoured by the lifestyle on the farm. Apart from her role in some care for sick cattle, Ferguson's evidence relating to other activities on the farm, such as the growing and harvesting of crops and the like, did not make any mention of any contribution by his wife.
65 As I have already stated, Ferguson and Joanne Ferguson separated on a number of occasions during their marriage. On each of those occasions Joanne Ferguson went with her children to live with her mother. The home at Lara had bedrooms for each of the children. When Joanne took the children to live at Mrs Boon's house, the accommodation was cramped. No explanation was given at trial why, during those periods of marital difficulty, it was Joanne Ferguson and the children, rather than Ian Ferguson, who left the home at Lara. While it is possible that Ferguson stayed at Lara in order to look after the farm, no such explanation was proffered at his trial for that conduct. Indeed, I note that there was a separate flat at the property, which Ferguson and his wife had lived in when building the house, and in which Mrs Boon had, at one time, also resided.
66 Ferguson stated that in February 2001 he paid funds into Joanne Ferguson's account because he was in the process of paying her out. He stated that if they were going to stay separated, he would keep Lara, develop, it and build spec homes on it, and that Joanne was going to have the finances to purchase her own home.[39] I do not accept Ferguson's explanation why he paid the moneys into the account of Joanne Ferguson, and I confidently expect that the jury would also have rejected that explanation. However, in the course of a telephone conversation of 1 August 2002 with Cox, which is the subject of an intercept, Ferguson discussed with Cox plans which he had to subdivide the property at Lara. The recording of that telephone conversation was tendered in evidence at the trial.[40] When Ferguson was cross-examined by counsel for Mrs Ferguson, Ferguson said that Joanne Ferguson accepted the proposition in relation to Bambra, in other words that if the separation became permanent, she would live at Bambra and Ferguson would keep Lara.[41]
67 The evidence to which I have referred demonstrates that Ferguson comprehensively controlled each relevant aspect relating to the property at Lara. It was Ferguson who exclusively controlled all matters financial pertaining to Lara. He exclusively controlled all issues relating to the improvement of the property. He controlled the farming side of the property. He was the dominant party when issues of occupation and possession arose. When there was a separation, he remained in the large home at Lara, while Mrs Ferguson decamped with the three children to the cramped accommodation at her mother's place. He discharged the Bank of Melbourne mortgage over Lara without informing his wife. He organised the Commonwealth Bank mortgage over the Lara property to finance the purchase of Bambra. It was Ferguson who had plans to subdivide Lara. Those factors, combined with the evidence relating to the relationship between Ferguson and Joanne Ferguson, satisfy me that that Ian Ferguson had the effective control of the whole of the Lara property.
68 No evidence was given by Joanne Ferguson at her trial. No inference can be drawn against her for not doing so. However Joanne Ferguson did not give evidence in these proceedings. When the matter came before me on 20 November, it was adjourned until 12 December. On that date I was told that Mrs Ferguson might not be available on 12 December, because she planned to have a holiday in Queensland. That holiday was said to be necessary because of Joanne Ferguson's health. However on 20 November I was told that it was not intended that Joanne Ferguson would give evidence. I had previously directed that evidence in chief would be given on affidavit. No affidavit was filed on her behalf. No application was made for her to give evidence via audio visual link. In those circumstances, and these being civil proceedings, I am entitled to infer, and do infer, from the failure of Joanne Ferguson to give evidence without any explanation for not doing so, that any evidence which might have been given by her would not have been of any assistance to her case in respect of the issues which I must determine.[42] The failure of Joanne Ferguson to give evidence in this case reinforces the conclusion which I have reached, namely, that Ian Ferguson had the effective control of the property at Lara to the exclusion of Joanne Ferguson, notwithstanding Joanne Ferguson's legal interest as a joint proprietor of that property.
69 The failure of Joanne Ferguson to give evidence in these proceedings is hardly surprising. At her trial, the principal defence of Joanne Ferguson to the charge of money laundering was that, because of her unusual marital circumstances, she did not know, nor ought she to have been aware, that there were large amounts of cash deposited into bank accounts of herself and her husband, and large amounts of cash used for purchases by herself and her husband, which had been derived from drug trafficking carried out by her husband as a member of the Drug Squad. That defence was put by way of positive assertion by Joanne Ferguson's counsel in cross-examination of various witnesses so as to demonstrate the lack of control of Joanne Ferguson over matters relating to the finances and properties owned by herself and her husband. If it were necessary to do so I would consider that the positive assertions, so made at the trial by Joanne Ferguson's counsel, are capable of constituting implicit admissions by Joanne Ferguson as to a near total lack of involvement in, and control over, anything which related to the properties or finances of the household.[43] In any event it would have been difficult for Joanne Ferguson to give evidence in this proceeding contrary to the propositions made on her behalf by her counsel at her trial.
70 Thus, I have concluded that, at the time of the restraining order, the Lara property was subject to the effective control of Ian Ferguson. The parties have made submissions as to what order I should make in respect of that in the exercise of my discretion, should I reach such a conclusion. I shall defer dealing with those submissions until I have considered whether the Bambra property was also subject to the effective control of Ferguson.
The Bambra property
71 The property at Bambra was purchased in the name of Joanne Barrett, which was the maiden name of Joanne Ferguson. In her Notice of Response to the claim by the DPP for a declaration in relation to that property, Mrs Ferguson claimed a financial interest in the property alleging that she contributed directly to its purchase in 2001 and then provided significant payments of the mortgage over the property directly and indirectly. It is also alleged in the notice that Mrs Ferguson contributed labour in the development of the land improvements. It is alleged that Mrs Ferguson is the sole registered proprietor of the property and "as such it is not under the control of the first named respondent (Ferguson)".
72 The factual allegations made in that response are not based on the evidence. Further, even if they were established by the evidence, the question nonetheless remains whether the Bambra property was subject to the effective control of Ferguson. Contrary to the allegations contained in Mrs Ferguson's notice of response, she did not contribute to the purchase of the property in 2001. As I have already set out, the purchase price of the property was funded, totally, by a mortgage to the Commonwealth Bank. That mortgage was secured over the properties at Bambra and Lara. In order to be able to provide a first mortgage over Lara, Ferguson paid out the Bank of Melbourne mortgage by a payment of almost $200,000. Those funds were not supplied by Mrs Ferguson. Rather, they were, as I have found, the proceeds of the drug trafficking by Ian Ferguson pursuant to the conspiracy for which he has been convicted.
73 There is no evidence that Mrs Ferguson contributed payments to the mortgage over the Bambra property. Her mother, Mrs Boon, has made some payments to the Commonwealth Bank. There is no suggestion that those payments were made with funds of Mrs Ferguson. There was no evidence that Joanne Ferguson provided any labour, or made any other contribution, in respect of the improvement of the Bambra property. Indeed little evidence was adduced at trial in relation to any improvements effected at Bambra after its purchase in early 2001.
74 In any event, the question which I must determine is whether I am satisfied that, when the restraining order was made, the Bambra property was subject to the effective control of Ferguson. In my view the evidence establishes that it was. First, it was Ferguson alone who negotiated the purchase of the property. I have no doubt that it was purchased in the maiden name of Mrs Ferguson with the intention of providing some cover for the fact that Ferguson, then a member of the Drug Squad, was purchasing a valuable farm. The agent, Mr Stewart, did not meet Joanne Ferguson until he took the contracts to the Lara property in order that she might sign them. In cross-examination by counsel for Mrs Ferguson, Mr Stewart stated that when he arrived at the residence in Lara Joanne Ferguson seemed a bit distant and disinterested. Ian Ferguson was present. Joanne Ferguson did not say much at all.[44] It was Ian Ferguson who alone carried out the complicated series of transactions between various bank accounts, which resulted in the discharge of the Lara mortgage to the Bank of Melbourne. It was Ian Ferguson who organised and negotiated the mortgage to the Commonwealth Bank which secured the loan for the purchase price of Bambra. It was Ferguson who, in April 2001, transferred $140,000 from the Streamline account to reduce the mortgage. The evidence showed that, after the purchase of the property, from time to time Ferguson went to the property alone and worked there. That evidence, combined with the fact that, as I set out above, it was Ferguson who had total control of all financial matters in the marriage, satisfy me that Ian Ferguson had the effective control of Bambra at the date on which the restraining order was made.
Discretion: Lara and Bambra properties
75 The principal submissions made in respect of both the Lara and Bambra properties focussed, not so much on whether those properties were subject to the effective control of Ferguson, but, rather, on what orders I should make in the exercise of the discretion under s.70. Mr Thomson accepted that Ferguson had the effective control of Lara, at least as to his legal interest. He also accepted that Bambra should be the subject of a declaration under s.70. However he submitted that in the exercise of my discretion I should not make a declaration relating to the Lara property. Mr Thomson submitted that that property was already subject to a mortgage to the Commonwealth Bank, and also to a charge executed in favour of Victoria Legal Aid securing payment to it of outstanding legal fees of $314,000 incurred in defence of the criminal charges against Ferguson. Accordingly Mr Thomson submitted that any further charge over the Lara property would be otiose.
76 Mr Tyrell's main submissions were also directed to the exercise of my discretion. Essentially Mr Tyrell emphasised that the role of Ferguson, in controlling and directing the financial and property matters of himself and his wife, took place in relation to and as part of his marital relationship with Joanne Ferguson. In that relationship Joanne Ferguson contributed to the properties, and in particular to Lara, by discharging her role as a homemaker, prime carer for the children, and part-time employee. Mr Tyrell submitted that the marriage of Joanne and Ian Ferguson in effect creates one person in respect of property owned by one or other of them. He submitted that it would be inappropriate to regard the two parties to the marriage as playing discrete roles separately from the other. Rather, in exercising control over the financial and property matters, Ian Ferguson was acting in the marriage as agent for Joanne Ferguson.
77 At one stage Mr Tyrell's arguments appeared to be directed to the question of whether Ferguson had the effective control of the Lara and Bambra properties. However as I understood them his arguments were principally if not wholly directed to the question of discretion. In so far as they may relate to the issue of control, I do not consider that the matters raised by Mr Tyrell alter or qualify my conclusion that Ferguson did have the effective control over both the Lara and Bambra properties. Indeed, the degree of control exercised by Ferguson, his dominance over all financial and property matters, and his unfettered autocracy in relation to those matters, went well beyond the division of labour or division of roles commonly occurring in a marriage. His control of financial matters was, on the evidence, well nigh exclusive of any role of his wife. In those circumstances, as I have already found, it is clear that Ferguson had the effective control of both Lara and Bambra.
78 I therefore turn to the question of my discretion. Both parties submitted that I do have a discretion as to what order I should make under s.70, if I come to the conclusion that Ferguson had the effective control of the particular property. Mr Tovey submitted that if I come to the conclusion that Ferguson had effective control of a property, then I am empowered to make a declaration under s.70. The discretion, as to whether I make such a declaration as to the whole or a specified part of the property, is to be exercised irrespective of any legal or other interests in the property. He submitted that in the exercise of my discretion it is appropriate for me to take into account Joanne Ferguson's role in the marriage, the position of the children of the marriage, and the fact that at least some of the equity of Joanne Ferguson in the property was earned before the commencement of the period of offending by Ian Ferguson. He submitted that I should make a declaration in relation to the whole of Ferguson's legal interests, and in relation to the majority of Joanne Ferguson's legal interests. In particular he submitted that I should only exclude either ten or twenty per cent of Joanne Ferguson's interest from the declaration.
79 On the other hand, Mr Tyrell submitted that I should not make any declaration in relation to Lara. Alternatively he submitted that I should not make a declaration in respect of Joanne Ferguson's one half share as joint proprietor in the property. In fact he submitted that the percentage which should not be the subject of a declaration should be greater than Joanne Ferguson's interest as joint proprietor of the Lara property. Mr Tyrell accepted that the Bambra property should be the subject of a declaration, but that I should "exempt" from that declaration fifty per cent of the capital gain made on the property since its original acquisition.
80 The submissions of both parties were based on the propositions, first, that I do have a discretion under s.70 and, secondly, that in the exercise of my discretion, I may make a declaration as to a percentage of the rights of a party in relation to a particular property.
81 Section 70(1)(a) provides that if the Court is satisfied that particular property was at the time of the making of a restraining order in respect of it subject to the effective control of the defendant, the Court "may" make an order declaring whole or part of the property to be available to satisfy pecuniary penalty order. As a matter of statutory construction, the use of the verb "may", and not "shall", denotes that the power conferred under s.70(1) may be exercised, or not exercised, as a matter of judicial discretion.[45]
82 The more difficult question concerns the proper meaning of that part of s.70(1) which entitles the Court to make a declaration " ... that the whole, or a specified part"[46] of the property which is the subject of the restraining order is available to satisfy a pecuniary penalty order. As I have already noted, s.3 defines "property" to "mean" real or personal property and to "include" any interest in any such real or personal property. There is an inherent ambiguity in the part of s.70(1) which I have just quoted. It may mean that a declaration may be made as to a specified part (rather than the whole) of the physical item of real or personal property. Alternatively it might mean that the declaration may be made as to the whole, or a specified part, of the rights constituting the relevant interest in the property over which the defendant has effective control. In the context of a section dealing with both personal and real property, the latter construction is more likely to be the correct one. If the phrase "specified part" were held to refer to the physical item of property, then that phrase would have little work to do in relation to real estate (other than real estate already the subject of sub-division) and most items of tangible personal property. In reaching that view, I should note that I have not had the benefit of argument whether the phrase "specified part of that property" refers to the physical item or to the bundle of rights comprising the property.
83 Ian and Joanne Ferguson are and were at all relevant times registered as the joint proprietors of the Lara property. Accordingly, each has an undivided moiety in the whole of Lara.[47] The arguments before me proceeded on the assumption that a declaration may be made as to the whole, or a specified part, of the moiety of a joint tenant. In particular it was assumed that s.70 enables me to limit any declaration made in respect of the moiety of Joanne Ferguson to a proportionate part of that interest. The point is somewhat novel and has not been the subject of argument before me. Accepting, as I do, that s.70 permits me to make a declaration as to a whole or part of a person's interest in a property, there is no reason apparent to me why s.70 would not thus permit me to make a declaration as to a whole, or a specified part, of the interest of a joint tenant in property.
84 I therefore turn to the competing contentions of the parties as to what declarations I should make in relation to the Lara and Bambra properties, both of which I have found to be subject to the effective control of Ferguson. The first submission by both Mr Thomson and Mr Tyrell was that I should make no declaration in relation to the Lara property, because it is already the subject of a mortgage to the Commonwealth Bank and also a charge to Victoria Legal Aid. Although there is no evidence as to the amount of debt secured by the Commonwealth Bank mortgage, I was told from the Bar table that that is now approximately $250,000. That estimate would be in accordance with the evidence at trial, which disclosed that the debt secured over both Lara and Bambra was reduced to approximately $220,000 by the payment made by Ferguson of $140,000 in April 2001.
85 I do not consider that the existence of those two secured debts are a proper basis upon which I should decline, in the exercise of my discretion, to make a declaration in respect of the Lara property. As I have stated, the Commonwealth Bank debt is secured over both Lara and Bambra. It is a matter of speculation whether the bank would seek to discharge the debt by taking possession of, and exercising its rights in relation to, Lara rather than Bambra. Indeed, as a matter of common sense it is more likely that the bank would seek to recover its debt by exercising its rights as mortgagee of Bambra. If the bank discharges its debt by realising its rights against Bambra, then Ian and Joanne Ferguson would have a significant equity in the Lara property, even allowing for the debt secured over it to the Victorian Legal Aid Authority. In those circumstances I do not consider that it is appropriate to decline to make an order under s.70(1) in respect of the whole of the Lara property.
86 The principal argument by Mr Tyrell on behalf of Joanne Ferguson, in relation to Lara, related to her role in her marriage to Ian Ferguson. That factor is, I consider, relevant to the exercise by me of my discretion under s.70. The interest of Joanne Ferguson in the Lara property as a joint proprietor was not a contrivance or a device. It was, as Mr Tyrell correctly points out, a legitimate interest of the kind ordinarily held by a wife in a matrimonial home. Her interest was born from her marital relationship with Ian Ferguson, in which Joanne Ferguson contributed as a wife, mother, homemaker and part-time policewoman.
87 The effective control which I have found Ian Ferguson exercised, not only over his own interests but also over his wife's interest, was quite extraordinary. The nature and extent of that control was far beyond what one would ordinarily expect in a marriage. That control was very much a product of Ferguson's volatile and domineering personality. In the battleground which their marriage appears to have been, Ferguson seized and maintained a tight grip on all financial matters including his wife's legal interest in the matrimonial home. While I have found that Ferguson had effective control of the Lara property, including Joanne Ferguson's joint interest, nonetheless I do not consider that her interest in the matrimonial home is the type of interest to which s.70(1)(a) is primarily directed. Furthermore Joanne Ferguson acquired her interest in Lara in late 1993. It would appear, from Mr Curtin's estimate of financial position, that, shortly before Ferguson's criminality commenced, as at 30 June 1999 the mortgage debt secured over the property amounted to $222,000. Mr Curtin's estimate refers to a valuation conducted of the property in 1996 estimating its value at $320,000. It would therefore seem that Joanne Ferguson acquired at least some equity in the property before the commencement of her husband's criminality for which he has been convicted.
88 In those circumstances, it would, in my view, be appropriate to exercise my discretion so as not to make a declaration in respect of the whole of Joanne Ferguson's joint interest in the Lara property. On the other hand, it is clear that some of the equity currently held by Joanne Ferguson in the Lara property, as a joint tenant, is the result of her husband's offending. In particular, improvements such as the swimming pool and sails were funded by the proceeds of his drug trafficking. In addition the Bank of Melbourne mortgage debt, amounting to almost $200,000, secured over the property, was discharged with the proceeds of Ferguson's drug trafficking. In April 2001 the Commonwealth Bank mortgage over Lara and Bambra, which secured the loan in respect of the purchase price of Bambra, was reduced by a payment by Ferguson of $140,000, at least some of which derived from the proceeds of his drug trafficking. Thus a not insignificant part of the value of Joanne Ferguson's equity in the Lara property was not the product of her input during the marriage, but rather was the product of her husband's criminal conduct. In those circumstances, in the exercise of my discretion, it is appropriate to make a declaration under s.70(1) in respect of a part of Joanne Ferguson's joint interest in the Lara property. Bearing in mind the matters to which I have already referred, I consider that it is appropriate that the declaration should relate to fifty per cent of Joanne Ferguson's joint interest in the property.
89 Mr Tyrell did not submit that Ferguson did not have effective control of the Bambra property. Rather he submitted that, pursuant to my discretion, any declaration made by me in respect of Bambra should not cover fifty per cent of the capital gain in Bambra since its acquisition. In other words Mr Tyrell submitted that the declaration which I make in respect of Bambra should exclude from it fifty per cent of the increase in the value of Bambra since its acquisition, being fifty per cent of $315,000. Mr Tyrell submitted that Joanne Ferguson had contributed financially to the acquisition of the mortgage, by contributing the proceeds of the sale of her unit which she had owned when she first married Ian Ferguson. Secondly, it was submitted that Sheila Boon had made mortgage payments in respect of the Bambra property on behalf of Joanne Ferguson. At the trial Mrs Boon stated that she had been making mortgage payments. Mr Curtin's evidence was that the periodic payments in relation to the mortgage amounted to $650 per fortnight.
90 I do not consider that the matters advanced by Mr Tyrell should persuade me in the exercise of my discretion not to make a declaration in respect of the whole of the Bambra property. There is no evidence that the proceeds of the sale of Joanne Ferguson's unit played any role in the acquisition of the Bambra property. Indeed I have found to the contrary. The contributions by Mrs Boon to the mortgage do not constitute a factor which persuade me not to make a declaration under s.70. As I found, the capital gain on the property is a direct product of its acquisition by Ferguson. In turn that acquisition was the result of the use by him of the proceeds of his crime to discharge the Bank of Melbourne mortgage, and thus to raise a fresh loan from the Commonwealth Bank. In those circumstances I intend to make a declaration in respect of the whole of the Bambra property.
Declaration: Personal Property
91 I now turn to consider the items of personal property, covered by the restraining order, in respect of which the DPP claims a declaration.
Item (c): The 2000 Toyota Landcruiser wagon
92 On 1 July 2000, Ferguson negotiated the purchase of a Toyota Landcruiser wagon from Blood Toyota, Geelong. The total contract price was $64,700. Ferguson signed the contract as purchaser and paid a $10,000 deposit in cash. He took the cash from his own pocket in $50 bills, bundled into $1,000 lots. On 15 September Ferguson returned and collected the vehicle. On that day he paid the balance of the purchase price by a bank cheque of $25,700 and cash of $29,000. In response to the DPP's claim for a declaration in respect of that vehicle, Ferguson, in his written response, has contended that the declaration should be limited to his 50% interest "in marital property". However no submission was addressed to me to that effect.
93 I am satisfied that the purchase price for the Landcruiser was paid from the proceeds of drug trafficking by Ferguson under the conspiracy. Thus, if it were relevant, Mrs Ferguson would not, in any event, have any claim to an equitable interest in the vehicle. It was Ferguson who, on his own, negotiated the purchase of the vehicle. There is no evidence that Joanne Ferguson had anything to do with the purchase of it. It is clear on all the evidence that Ferguson not only owned the vehicle, but had the effective control of it. Accordingly I shall make a declaration in respect of that item of property.
Item (d): Blue 2001 Landini 7860 tractor
94 In September 2001 Ferguson purchased a blue Landini tractor for $46,500. In her written response to the claim for a declaration in respect of the tractor Mrs Ferguson stated: