DPP (C'weath) v Prasetyo Edy & Ors

Supreme Court of NSW|2000-02-18|Before: Brownie AJ, Mr P

CITATION : DPP (C'weath) v Prasetyo Edy & Ors [2000] NSWSC 50 CURRENT JURISDICTION: Supreme Court FILE NUMBER(S) : SC 10685/99 HEARING DATE(S) : 10/11/99; 01/12/99, 15/02/00; 17/02/00, 18/02/00 JUDGMENT DATE : 18 February 2000

PARTIES : Director of Public Prosecutions (Commonwealth) v Prasetyo Edy & Ors JUDGMENT OF : Brownie AJ at 1

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

18 February 2000 10685/99 - DIRECTOR OF PUBLIC PROSECUTIONS v EDY JUDGMENT

1 HIS HONOUR: This is an application by Miranda More (the applicant) under section 48(3) of the Proceeds of Crime Act 1987 (Cth) (the Act). She was formerly the de facto wife of the defendant, Mr Edy. 2 Earlier, the plaintiff brought proceedings against the defendant under section 43(2)(a) of the Act, seeking an order restraining dealings by anybody with certain property, namely "the defendant's interest in $86,175 in cash seized by the Australian Federal Police during the execution of a search warrant … on 5 June 1998". On the return of the summons the defendant consented to the making of that order, as did the applicant who, I was told, was then separately represented. However, on the same day she made the present application, by which she seeks an order that her interest in the cash seized be excluded from the restraining order.

3 Between 28 May and 5 June 1998 the police were investigating the apparent importation into Australia of a large quantity of the drug commonly known as ecstasy. Two people under particular suspicion were Yves Camus and, after she arrived in Australia, his girl friend, Maria Balbi. The police monitored their activities, using both listening devices and telephone intercepts.

4 The applicant was on friendly terms with Camus, and she also knew Balbi. The applicant had a child, born on 26 October 1997. One of her friends, a former girl friend of Camus, had told Balbi of this, and Balbi wanted to see the child. Accordingly, the applicant telephoned Camus at his hotel on 30 May 1998, and the two of them discussed this matter. However, during that telephone conversation, which the police recorded, there was also a guarded reference to Camus supplying some ecstasy to the applicant, or to the defendant, or to both of them. The applicant said of this conversation that she spoke of behalf of the defendant who sought to obtain about six tablets, for use by herself, by the defendant, and by other people, at a party being arranged to take place during the long weekend, June 6 - 8.

5 On two occasions, the second of them being on 4 June, Camus and Balbi went to the home of the applicant and the defendant. The applicant said that no ecstasy was delivered on either occasion. On 4 June, police officers followed Camus and Balbi from their hotel to the applicant's home. By reason of what they had overheard in a conversation between Camus and Balbi, the police believed that Camus and Balbi took 400 ecstasy tablets with them, on this journey. The police arrested Camus and Balbi just after they left the applicant's home, but found no ecstasy in their possession. That apparently led to the issue and, on the afternoon of 5 June, the execution of the search warrant already mentioned. The police then found 27 ecstasy tablets, and the cash in question. The applicant said at the time that the cash was her property, and it seems that nobody else has ever made any claim to it.

6 The applicant received the sum of $300,000 from her father, in settlement of a claim made or foreshadowed by her against him, to the effect that he sexually abused her when she was a child. She and her father entered into a deed dated 24 April 1997, recording the settlement of that claim, and various sums totalling $300,000 were paid by him, and banked by her, between June and August 1997. Her case is that the whole, or alternatively, most of the $86,175 seized on 5 June 1998 was a part of that $300,000, and that none of it represented the proceeds of drug trafficking, either by her or by the defendant.

7 Camus, Balbi, and the defendant were charged with various drug related offences, and in due course they all pleaded guilty. The applicant was not charged with any offence. It seems that some months passed after 5 June 1998 before anyone took any definite steps in relation to the cash seized. The plaintiff then sought and obtained the restraining order mentioned, on the basis that the defendant had been convicted of possessing a prohibited import, namely 27 ecstasy tablets.

8 The applicant puts her case in three ways: she relies on section 48(3)(f) of the Act; or section 48(3)(g); or upon the proposition that she was the only person who had any interest in the cash seized, so that the Court should make a declaration to that effect, or give analogous relief. So far as relevant, section 48(3) provides: "Where:

(a) a person (in this subsection called the 'defendant') has been convicted of … an offence; (b) a court, in reliance on the conviction … makes a restraining order upon property; and (c) a person having an interest in the property applies to the court for a variation of the order to exclude the person's interest from the order;

(f) where the applicant is not the defendant, the restraining order was not made by virtue of subsection 44(7A) and the offence is a serious offence - the court is satisfied that: (i) the applicant was not, in any way, involved in the commission of the offence; and

(ii) where the applicant acquired the interest at the time or after the commission … of the offence - the applicant acquired the interest:

(B) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was not tainted property; (fa) … ; or

(g) in any case - the court is satisfied that it is in the public interest to do so having regard to all the circumstances, including: (i) any financial hardship or other consequence of the interest remaining subject to the order;

(A) subject to a forfeiture order; (B) subject to section 30; or (C) required to satisfy a pecuniary penalty order." 9 For the purposes of section 48(3)(f), the offence for which the defendant was convicted was a "serious offence": section 7; and the restraining order was not made by virtue of section 44(7A). Section 4 defines "interest", in relation to property, as meaning "a legal or equitable interest in the property", or "a right, power or privilege in connection with the property". Nothing turns on section 48(3)(f)(ii), and I put it aside. Similarly, for the purposes of section 48(3)(g), there is no suggestion that the provisions of subclause (iii)(B) or (C) are relevant.

10 The questions now litigated require an examination of the financial resources of the applicant and the defendant during the period leading up to 5 June 1998, and of the source of the cash seized.

11 The defendant came to Australia in January 1997, and he and the applicant lived together from then until at least 5 June 1998, at one stage in Queens Park, and later in Paddington. During this period the defendant worked only for a period of about two months, as a kitchen hand. There is no suggestion that he had independent means of support. The applicant conducted a business of her own, through a company, teaching people to speak English. She said that she started that business in about May 1997. The company opened a bank account in July 1997, apparently on the advice of her accountant, who told her to pay all business expenses out of one discrete bank account, so that the accountant could more readily identify her business expenses when preparing taxation returns. She conducted this business, initially from the ground floor of her Queens Park home, and later from one room of her Paddington home. This involved students going to her home for tuition. She charged them $25 per hour. She gave differing estimates at different stages of her evidence as to the number of students she had, but it seems that the maximum number at any one time was about 10; that at about the time of the birth of her child (October 1997), she did little if any work; and that at the best of times, she only worked on a part time basis. She did not bank the takings of the business, and she kept no worth while records of the takings, so that, she said, she and her accountant had to guess at what her company's gross income was.

12 The applicant kept four Australian bank accounts, two in her name, one in the name of her company, and a fourth one in the joint names of the applicant and the defendant. The evidence records the transactions conducted through these four accounts. Quite late in her oral evidence, the applicant mentioned for the first time a fifth account, kept in Japan, but said that in the time available she was unable to produce any documentation concerning that account. She explained that when living in Japan, some years earlier, she did some work that had the result that from time to time there was payable to her a share of the royalties on certain books, and these moneys were paid, net of Japanese tax, into this account. She could withdraw money from this account, whilst in Australia, by a form of electronic banking. She did not give any useful information about this income, or about the sums withdrawn from this account.

13 The applicant said that in December 1997 she withdrew $60,000 in cash from one of her Australian bank accounts. On the hearing of the application, a good deal of time and effort was expended in relation to an issue whether the $60,000 withdrawn was in the form of cash; and I will deal with that below. The applicant said that she kept this cash at home, in a locked filing cabinet in her study. She gave two reasons for doing this: first, it was part of a plan to help her to curb her spending; and secondly, having a large amount of cash present, close to where she spent a lot of time working, was a symbol of her father's atonement to her for his previous sexual abuse of her.

14 As to the curb on her spending, she said, and the documentary evidence confirms, that, after receiving the settlement money from her father, she spent a lot of it quickly. She spoke to some counsellor, who gave her some advice. She said that the idea was that it was too easy to spend money, using forms of electronic banking, but that if she actually had to pay cash for an item bought, it would feel more as if she was really spending money. However, as time passed, this was not working satisfactorily, and in April 1998, she withdrew a further $20,000 and added this to the $60,000, so that she kept $80,000 at home. (She actually withdrew $20,200 on this occasion, but of this sum $200 was for immediate use on the day of the withdrawal, and $20,000 was to be added to the sum kept at home).

15 As to the question of the atonement, she spoke, with evident emotion, of a feeling that her father had made a real effort to make up to her for his past wrongs to her, and of the significance to her of having a large amount of cash close by her, as a mark of his desire to atone for this wrongdoing. I accept this part of her evidence, although that leaves for separate examination the questions how much of the initial $60,000 and the subsequent $20,000 she did keep in the filing cabinet from time to time, and what was the source of other money placed there from time to time.

16 In her evidence in chief, the applicant said that she kept the sum of $60,000 intact, in the sense that whilst she took money out of this "pot" or "cash till" on occasions, her practice was to replace the money so withdrawn by an equivalent sum, withdrawn from her bank account. She said that she recalled paying the rent out of this fund on two occasions, but then replenishing the fund. She said that she kept no records of sums taken out of the fund, and replaced, but said that the total of the sums so taken, and replaced, may have been "up to eight or ten thousand" dollars. At another point, she said that she did not take out any large sums at all, and agreed that she had only taken money out on a couple of occasions. I do not think that these statements can be fully reconciled with the stated method of helping to curb her spending, or with the banking records.

17 An examination of the banking records suggests that during the period December 1997 to 5 June 1998 she paid three months' rent in cash, but did not replenish the fund of cash, in respect of any of these payments. One can discern from the records the following apparent payments of rent, coupled presumably by some deposit at the commencement of the periods of two leases: $6,148.40 on 4 July 1997, followed by $3,466.70 on each of 5 August, 5 September and 8 October 1997, and $4,054.90 on 3 November 1997, followed by $2,389.90 on each of 9 December 1997, 7 January and 9 May 1998. That is, there is no record of the payment of rent, apparently $2,389.90 per month, for the months of February, March and April 1998, and I infer that she took from the fund of cash in the filing cabinet an amount totalling approximately $7,150 on this account.

18 It seems obvious that the applicant took a further $12,200 from the fund of cash in March 1998, without replenishing the fund, and her evidence about this reflects adversely on both her credibility and the reliability of her evidence generally. On 23 and 31 March the applicant made cash deposits into her company's account of $5,000 and $7,200 respectively. She refused to concede that the only likely source of this cash was the fund of $60,000 she held at home, and said that she could not remember anything significant about the matter, but then in re-examination suggested for the first time that the money might have come from her Japanese bank account. If so, it is surprising that she did not mention this earlier, and also that there was no attempt made to produce documentary evidence to support her oral evidence. Additionally, the surrounding circumstances seem to make it likely that the events in question would have struck some chord in her memory: she had written a cheque for $5,000, which was the largest amount ever drawn on her company's account, and it had been dishonoured, for lack of funds; this was the first time, so far as the evidence shows, that any such cheque had been dishonoured; the account was quickly brought back into credit, so as to enable this cheque to be honoured, and to enable another cheque for $5,390 to be honoured; and these two cheques were for the payment of significant items, related to the establishment of the company's business. Further, as at 20 March 1998, the total amount held in the applicant's four Australian bank accounts was less than $1,500, she had written a cheque for $5,000, and she had a further $5,390 to pay.

19 So far as the bank records in evidence show, the applicant's major, and virtually only source of income between December 1996 and June 1997 was a monthly (or almost monthly) deposit of $2,095 made in the name of her father; and she spent almost the whole of each such sum by the time of the next deposit. These payments then ceased, presumably as a consequence of the settlement. Then, between the time of the deposit in June of $50,000, being her father's initial payment on account of the settlement, and the time of his further payments totalling $250,000 in August, she spent almost the entire $50,000 received. In November 1997, she purchased bills of exchange for some $170,000, and after doing that, she had only some $17,000 left in the bank. From June 1997 until 5 June 1998, she seems to have had no recorded source of income, except for income received from the bills, and interest on her bank deposits, together with whatever she received by way of income from her business. There is no record of any business income. The only deposits shown in the bank records that might possibly represent business income are five unexplained deposits of $600, $130, $550, $1,740 and $150.

20 Although the matter was not debated, I consider that the deposit of $1,740 can be put aside, for present purposes. It appears to represent a credit given to the applicant by her bank consequent upon someone using her Visa card improperly, so as to debit her account and credit the account of Axicorp Pty Ltd: see Exhibit 2, pages 37, 38 and 93 to 97. It is possible that the applicant received some refund from what I take to have been a deposit paid when she commenced to live at Queens Park, repaid after she moved to Paddington, but the only credit of this kind, which might be linked to this possible transaction, seems to be a credit of $550 on 18 February 1998.

21 The applicant said that the defendant had a gambling problem, and that she did not trust him with her money. He had taken money from her wallet, without her permission, and to reduce the risk of this happening, she tended to keep cash in the filing cabinet in her study rather than in her wallet. Additionally, he had no means of accessing any of her bank accounts except the joint account. It seems that she provided all the funds that went into that account, and the credit balance was usually kept at a maximum of a few hundred dollars. At another point, she said that within her study, she kept two separate sums in cash, one of "the $80,000" in the locked filing cabinet, and the other in an envelope in an adjacent but unlocked filing cabinet. She estimated the amount in the envelope at "a thousand dollars or so". In chief, she made no real effort to explain how it was that the sum seized was as much as $86,175, beyond saying that when she "came home with money or … took money out to pay something later", she would put money into an envelope, rather than leave it in her wallet. The presence of so much money, that is, a sum significantly exceeding $80,000, was scarcely consistent with the general thrust of her evidence that she endeavoured to keep the sum held at $60,000, or, later, $80,000.

22 The plaintiff led evidence that at the time of the execution of the search warrant, a good deal of the money seized had been divided up into bundles, tied with rubber bands, and marked with the numerals written on pieces of paper, either "5" or "10", so as to indicate $5,000 or $10,000 in the bundle so marked. However, some of it was in unsealed envelopes, arranged in a disorganised way; and $625 was found in a bag. In answer, the applicant spoke of an occasion when she counted the money, put it into bundles, and marked the bundles with pink "Post-it" notes, so that she could tell how much there was. Confronted with a copy of the notes, she agreed that they were in fact just torn scraps of paper. By itself, this error is not very significant, but the overall picture painted is more troubling. On her version of the facts, if the fund was kept intact, or even substantially intact, there was no need to count the money, no need to mark the bundles for future ease of counting, and no apparent need to put the money into bundles. However, the state in which the cash seized was found suggests that money was added to and taken from the fund in a manner that made counting appropriate; and she seems to have found it appropriate to count it, and to have expected to count it again later.

23 On the evidence now before me, I think it more likely than not that the defendant was engaged in trafficking in ecstasy, perhaps only in a small way, and that he was at least interested in trafficking in cocaine. I hasten to add, in fairness to the defendant, that I have not heard from him, and that it might be that he could completely defend any such allegation made against him, but I have to decide this case on the present evidence, and that is where it points. I should also add that a significant part of the evidence pointing to this conclusion is a transcript of a conversation between the defendant and Camus on 3 June, and that the applicant was not a party to that conversation, but the transcript does form part of the evidence.

24 After some initial fencing, the applicant agreed that in her telephone conversation with Camus on 30 May 1998 she had asked him to provide some ecstasy tablets, but admitted only to seeking about six tablets, in effect for private use during the weekend of 6 - 8 June, and to doing so on behalf of the defendant. It is difficult, if not impossible, to reconcile this with the transcript of the defendant's conversation with Camus on 3 June, when the defendant spoke of buying ecstasy, for resale, and of possibly dealing with cocaine. However, what seems more important now is that when the police executed the search warrant on 5 June, they found 27 ecstasy tablets. I do not accept the applicant's evidence that she only sought to buy six ecstasy tablets from Camus, for private use, and for use on an occasion that had not arrived as at the time of the seizure, and that she did not know the defendant ever to have ecstasy tablets in her home on any other occasion during the period they lived together.

25 The matter does not rest there. The evidence shows that Camus and Balbi possessed ecstasy tablets that bore three different logos, apparently demonstrating that they came from three different sources, or manufacturers, but that the 27 tablets seized on 5 June did not bear any of those logos. This seems to lead to the inference that, as the defendant claimed at the time, he had not purchased those 27 tablets from Camus, but if this is correct, it serves to advance the view that the defendant was trafficking in ecstasy.

26 At about the time that the police first entered the home of the applicant and the defendant on 5 June the defendant went upstairs, and threw some ecstasy tablets out of a window, which the police later retrieved. Other tablets were found in his clothing. This seems to indicate, if faintly, that he kept what tablets he had in different places, and that the 27 he then had were not intended for private use during the weekend of June 6 - 8. Further, the 27 tablets seized were not all the same colour, perhaps giving a further, fainter, indication that those 27 tablets were from different sources.

27 The applicant denied knowing that the defendant had any ecstasy tablets in the home at the time of the seizure, and denied knowing that the defendant had had any ecstasy tablets there at any other time. This needs to be weighed together with her (eventual) admission that she had used ecstasy since she was in high school (she was born in 1970), and her assumption of confidence that she knew of the dangers involved in its use, including, apparently, the dangers arising from the illegality of using it, but could guard against those dangers, together with the fact that she and the defendant lived together for (at least) some 17 months, during most of which time he was unemployed, and the other evidence I have summarised.

28 The defendant was not called as a witness, nor was his absence explained, but given the apparent termination of his relationship with the applicant, and what I find to be his drug trafficking, this does not seem to be significant.

29 Whether the applicant did withdraw $60,000 in December 1997 in cash is not clearly established. The plaintiff made inquiries which produced information tending to suggest that she did not: there was no reporting of the transaction to the relevant authority by the applicant's bank, as should have occurred if the withdrawal was in cash; and the withdrawal slip completed by the bank teller did not contain the entries it should have contained if the withdrawal was in cash. In the end, a bank manager gave evidence, which I accept, showing that, first, the bank has mislaid a significant part of its records, and, secondly, the bank teller's failure to complete the withdrawal form is equivocal: whether or not the withdrawal was in cash, the teller should have made some notation, not in fact made. That is, the teller failed to do what should have been done, whether or not the applicant took out cash on that occasion. This omission was, of course, the omission of the bank, and not of the applicant. The non-notification by the bank of the withdrawal in cash stands in a different category, but it seems to me that the inference that might otherwise have been drawn adverse to the applicant, arising from this circumstance, is now less attractive: if the bank, for reasons apparently unconnected with the applicant, failed to do one thing it should have done relating to that transaction (complete the withdrawal form), it might more readily be inferred that it failed to do another (notify the relevant authority of the cash withdrawal), contemporaneously.

30 The plaintiff made much of the circumstance that before the commencement of the proceedings and in an effort by the applicant to avoid the proceedings by persuading the plaintiff that the cash was hers, the applicant made a statutory declaration, and later she swore an affidavit in these proceedings, and that whilst in both those documents the applicant proffered documentary evidence of the receipt and banking of the $300,000, she said nothing in either document about the withdrawal of the sums of $60,000 and $20,000 (or $20,200). She explained this, in effect, by blaming her solicitor, who had drafted both documents.

31 Looking at the evidence overall, I am inclined to accept the plaintiff's evidence that she did withdraw the money in cash. First, this part of her evidence seemed credible, as she gave it. Secondly, it ties in with a good deal of other evidence, so as to paint a coherent, consistent picture. Thirdly, it is clear that she did make a withdrawal of $20,00 in cash later on. Fourthly, if her account was an invention, it was a singularly bold one, fraught with risk of detection, and contradiction. Whether or not she knew of these risks, I think that I should infer that her lawyers did, and that they might well have pointed them out to her. Fifthly, if the money withdrawn was in a form other than cash, one would expect some record of that transaction to have emerged by now. Remembering that the applicant bears the onus of proof, and the unsatisfactory state of her records and of the evidence generally, this factor does not seem as significant as it would be in other cases.

32 On the other hand, there is a great deal of her evidence that I do not accept. I bear in mind that disbelief of her evidence does not establish the truth of what she denied, but on this application, she bears the onus of proof: Jeffery v Director of Public Prosecutions (Cth) (1995) 79 A Crim R 514, dealing with section 48(3)(e) of the Act; but this is not materially different to the questions raised by section 48(3)(f) and (g).

33 As to the application under section 48(3)(f), the question arises whether, within the meaning of subclause (i), the applicant "was not, in any way, involved in the commission of the offence", that is, the offence mentioned in section 48(3)(a). The offence for which the defendant was convicted was possessing the 27 ecstasy tablets seized on 5 June. Since I conclude that these tablets were different to those that I think he probably acquired from Camus, it is necessary to treat the evidence of the applicant's telephone conversation with Camus on 30 May with care: more likely than not, the applicant's probable involvement with the acquisition of ecstasy tablets from Camus, discussed then, concerned a different transaction, relating to different ecstasy tablets.

34 The question remains, however, whether the applicant has established that she was not, in any way, involved with the defendant's possessing the 27 ecstasy tablets seized. At this point, my non-acceptance of much of the applicant's evidence tells against her. I do not accept that on 30 May she intended to deal only with six tablets, or that she intended to buy them for private use, or that she spoke to Camus about them on behalf of the defendant alone. Remembering that this was a separate transaction, it points to the need to treat the rest of her evidence cautiously.

35 The evidence is really quite unsatisfactory, but doing my best with what there is, my impression is that during the period between the establishment of the fund of $60,000 and the seizure on 5 June 1998, the applicant had no discernible source of income, except to the extent already mentioned, but her lifestyle involved the spending of a good deal of money. She employed both a nanny for her baby and a massage therapist, who came to her home. After a time, apparently sensing danger, she seemed to play down the frequency with which she had employed the nanny, saying that this was one to three days per week, at $55 per day, but she also said that on one occasion she took the nanny to Queensland with her, for about a week.

36 During the same period, the applicant used electronic banking facilities to pay for a large number of items, as well as writing cheques, and using a Visa account, and withdrawing what most people would regard as significant sums in cash. It is difficult to know what to make of all this: it might be only that she had not curbed her spending habits, or it might indicate an income from an undisclosed source.

37 Looking then at the rest of the evidence, I conclude that, more likely than not, the defendant trafficked in ecstasy, and that, more likely than not, the applicant knew of this. She and he were living together, and he had no apparent other source of income. I bear in mind the amount by which the applicant's resources were depleted after June 1997, and am content to assume that she and he lived to some extent on her capital. But the question remains as to whether has she demonstrated that she was not in any way involved in his possessing the 27 tablets seized, and I conclude that she has not. I think that, more likely than not, those tablets formed part of what might be called his stock-in-trade, and I do not accept that she was not in any way involved in his drug trafficking, even if only as the person holding some of the money so received; and this finding means that I do not accept that she was in no way involved with the defendant's possession of the 27 tablets seized. I therefore reject the application to the extent that it is made under section 48(3)(f).

38 As to the application under section 48(3)(g), it was not suggested that "the offence" the subject of the defendant's conviction was not a serious one. The conviction rendered the defendant liable to 25 years imprisonment: sections 233B(1)(c) and 235(2)(d)(i) of the Customs Act 1901 (Cth). However, the learned magistrate who convicted the defendant obviously (and obviously correctly) regarded the facts as demonstrating the offence as being at the lower end of the range of seriousness for offences in this category, and he granted a bond on terms that included the payment of a monetary penalty of $800. The offence that triggered the jurisdiction to make the order under section 43 of the Act, and that is now relevant, is the offence of possessing 27 ecstasy tablets.

39 I accept that the applicant believes that it would impose a hardship on her and her children (she has recently had a second child) if she does not succeed on this application, but I do not accept that the evidence justifies a finding by me to this effect. I think that, more likely than not, some of the cash seized represents a part of the $300,000 her father paid her, but cannot say with any accuracy how much of it answers this description. I think that she depleted the original fund of cash held by at least the sums paid for rent, about $9,150, and the $12,200 paid into her company's account, mentioned above. It seems likely that, since $86,175 was seized, but that the fund had been depleted at least this extent, and probably by other withdrawals, it had been "topped up" by cash obtained from elsewhere. I think it is likely that some small part of this represented the takings from her business, but the evidence is silent as to where that cash might have come from, unless it represented, in whole or in part, the proceeds of drug trafficking. Nor do I know what the applicant's financial position is more generally, except in generalities, so that it is not possible to come to a properly informed view as to the extent of any hardship. For example, the evidence points to her having some continuing income from Japan, but not to its extent; and she paid to her mother, in the USA, some $27,800, but I do not know what, if any, significance this has, in terms of possible hardship. I do not know what assets she has, or what liabilities she has, except that she spent a lot of the money she received from her father.

40 The plaintiff submitted that it was likely that a forfeiture order would be made. I am inclined to think that, if the evidence on an application for such an order was the evidence before me now, some forfeiture order might be made, but I doubt that it would be for the whole of the cash seized.

41 Section 48(3)(g) directs attention to the public interest. The one factor which seems to almost overwhelm all others here is that, in my judgment, a large part of the $86,175 seized was the money of the applicant, originally received by her from her father. I reach this conclusion, in summary, for these reasons: she did establish a fund of cash, kept at home, of $60,000, later increased by $20,000; the source of that $80,000 was the money paid to her by her father; after the fund was established, she took money out of it, and put other money into it; she kept no records about these payments into and out of the fund, and the evidence does not permit any definite finding to be made as to these payments, but she withdrew at least the sums of about $7,150 and $12,200 mentioned above; she has not established that these sums were replaced; she established the fund, in part for the purpose of having a fund of cash so that she would have to pay cash for things purchased, so as to help her curb her spending habits, and it is likely that she did diminish the fund in this way; and some of the money paid into the fund probably came from the business she conducted.

42 However, she has not shown that the balance of the money paid into the fund did not represent, directly or indirectly, the proceeds of drug trafficking. Doing the best I can with the evidence, I find that not less than $40,000 of the $86,175 seized was the money of the applicant, in the sense that it came, ultimately, from her father; and that it is in the public interest having regard to all the circumstances including those listed in section 48(3)(g)(i, (ii) and (iii), to grant the application, to the extent of $40,000.

43 As to the third basis advanced by the applicant, in my view, if the position was that the applicant in truth had an interest in the money seized, and the defendant did not, section 48(3)(c), coupled with section 48(3)(f) or (g), would give the applicant the relief she seeks, and there is no occasion to inquire further into the theoretical questions raised.

44 I make the following orders: 1 Extend the time for determining this application until 20 February 2000.

2 Order that the applicant's interest in the sum of $40,000, being part of the sum of $86,175 in cash seized by the A ustralian F ederal P olice during the execution of a search warrant at 40 R egent S treet , P addington , N ew S outh W ales , be excluded from the restraining order made by this C ourt on 1 A pril 1999.

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