Vu v New South Wales Crime Commission

Judgment 1McCOLL JA: The appellant, Ms Thi Thanh Huong Vu, appeals against a decision of Johnson J in which his Honour found in favour of the respondent, the New South Wales Crime Commission, and ordered the appellant to pay to the Treasurer the amount of $922,738 by way of a proceeds assessment order under s 27 and s 28(3) of the Criminal Assets Recovery Act 1990 (the "CAR Act"): New South Wales Crime Commission v Vu [2012] NSWSC 129. 2The proceedings were commenced by summons filed on 28 October 2009, in which the respondent sought orders against the appellant under the CAR Act, including a restraining order pursuant to s 10 in respect of her property, an order pursuant to s 12(1)(b) that she be examined on oath and an order pursuant to s 27 that she pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from her illegal activities that took place not more than six years before the making of the application. 3On 28 October 2009, R A Hulme J made an ex parte restraining order in respect of any interest in property of the appellant and other incidental orders, including that the appellant be examined on oath before a Registrar. 4The summons commencing the proceedings did not specify the illegal activity upon which the respondent relied for the purposes of the application. However at the outset of the hearing before the primary judge on 31 January 2012 the respondent contended in its outline of submissions that the relevant activity was an offence under s 178BB of the Crimes Act 1900. Section 178BB was repealed when it (and the subdivision in which it was contained) were omitted from the Crimes Act on the enactment of the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 effective from 22 February 2010. However it was common ground that as s 27(1) of the CAR Act looks to illegal activities "that took place not more than 6 years before the making of the application" (the "subject period") the respondent was entitled to rely upon s 178BB as it was in force when the proceedings were commenced. 5Johnson J handed down his judgment on 29 February 2012. A notice of intention to appeal was filed on 19 March 2012, but the notice of appeal was filed out of time on 20 July 2012: Uniform Civil Procedure Rules ("UCPR") 51.9(1), 51.16(1)(b). The respondent did not oppose the appellant's application for leave to extend time to file and serve the notice of appeal. 6The only issue on appeal is whether the primary judge erred in finding that the appellant had committed, on the balance of probabilities, a serious crime related activity, namely an offence against s 178BB of the Crimes Act. 7For the reasons which follow, I would dismiss the appeal with costs.

Legislative Framework 8The provisions of the CAR Act outlined below were in force at the time the application was made. 9The long title described the CAR Act as: "An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime related activities; to enable proceeds of serious crime related activities to be recovered as a debt due to the Crown; and for other purposes." 10Section 3 set out its objects which relevantly included: "(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and ... (c) to enable law enforcement authorities effectively to identify and recover property." 11Proceedings on an application for a confiscation order are not criminal proceedings: s 5(1). A proceeds assessment order made under s 27 fell within the definition of a "confiscation order" in s 4(1). The rules of evidence applicable in civil proceedings applied to the exclusion of any rules of evidence applicable only in criminal proceedings: s 5(2)(b). 12Section 27 relevantly provided: "27 Making of proceeds assessment order (1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) or (2A). (2) The Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in: ... (b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. ... (3) A finding of the Court for the purposes of subsection (2) or (2A) need not be based on a finding as to the commission of a particular offence ... and can be based: (a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, ..." (Emphasis added) 13The combined effect of s 5 and s 27(2) is that the standard of proof was, subject to the remarks I make below concerning s 140 of the Evidence Act 1995, on the balance of probabilities understood and applied in the way explained in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336: New South Wales Crime Commission v Mok [2003] NSWSC 424 (at [6]) per Sully J. 14Section 4(1) defined an "illegal activity", relevantly, as "a serious crime related activity". A "serious crime related activity" was anything done by the person that was at the time a "serious criminal offence", whether or not the person was charged or, if charged, had been tried, tried and acquitted or convicted (even if the conviction had been quashed or set aside): s 6(1). A "serious criminal offence" included "an offence that is punishable by imprisonment for 5 years or more and involves ... fraud": s 6(2)(d). 15Section 28(1)(a)(i) relevantly provided that in assessing the proceeds derived by the defendant from illegal activity for the purposes of a proceeds assessment order under s 27, the court must have regard to "the money, or the value of any interest in property other than money, directly or indirectly acquired by the defendant because of the illegal activity or activities". 16The respondent sought to have the Court assess the quantum of the proceeds assessment order by the route afforded by s 28(3), which provided: "(3) If evidence is given at the hearing of an application for a proceeds assessment order of the amount of the defendant's expenditure during the period of 6 years before the making of the application for the order, the Supreme Court is to treat any such amount as proceeds derived by the defendant from an illegal activity or activities, except to the extent (if any) that the Supreme Court is satisfied the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities." 17In any proceedings on an application for an order under the CAR Act, the transcript of any examination under s 12 is evidence of the answers given by a person to a question put to the person in the course of the examination: s 54(5). Pursuant to this provision, the respondent tendered the transcript of the appellant's examination on 26 August 2010 before a Deputy Registrar of the Supreme Court. 18Immediately prior to its repeal, s 178BB relevantly provided: "178BB Obtaining money etc by false or misleading statements (1) Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years." (Emphasis added) 19The respondent relied upon those parts of s 178BB I have emphasised as constituting the serious crime related activity in which it alleged the appellant had engaged for the purpose of s 27(2) of the CAR Act. 20In particular, the respondent asserted that the appellant had committed an offence under s 178BB in that first, she had applied for finance in the amount of $184,000 and had falsely stated in the application for finance that she had been employed by Coogee Bay Tobacconist (the "Tobacconist") since 17 August 2005 at an annual salary of $45,657 and, secondly, she had caused to be procured or created false statements being a letter purportedly from the Tobacconist dated 26 March 2008 and two purported pay slips, with the intent that they should accompany the finance application.

Factual Background 21The following facts were not in dispute at trial and are taken from the primary judgment or the appeal books. 22The appellant was born in Vietnam in 1975 and arrived in Australia in 1994. From 1994 until 2009, she resided continuously in Australia and was in receipt of Centrelink benefits as a single mother. 23On 10 January 2008, Ms Michelle Ling, an employee of Coogee Bay Tobacconist, introduced the appellant to Mr Hung Ly, the Managing Director of Lucky Dragon Home Loans Pty Ltd ("Lucky Dragon") at that company's business premises in Cabramatta: primary judgment at [50]. Ms Ling accompanied the appellant to Lucky Dragon on only this occasion. 24Mr Ly said that at this meeting he questioned the appellant about her employment and told her what documents were needed to substantiate her employment and her earnings. 25Lucky Dragon was a mortgage broker that lodged loan applications with Challenger Mortgage Management Pty Ltd ("Challenger"). Challenger was a wholesale provider of mortgage funds which were mainly sourced from Perpetual Trustees Victoria Ltd ("Perpetual Trustees"). Mr Ly was a licensed finance broker. Lucky Dragon was accredited to submit home loan applications to Challenger and also to the major banks. Lucky Dragon received a commission of 0.7% if a loan application to Challenger was successful, as well as a trailing commission. The latter was not quantified, but was described by Mr Ly as "a little trailer". 26Some months after meeting Mr Ly, in March 2008, the appellant applied to Challenger for finance in the sum of $184,000 in order to purchase a home unit at Bankstown, then owned by her sister: primary judgment at [11]. The loan application was finalised after a meeting the appellant attended at Lucky Dragon's office on 17 March 2008. The loan application was submitted to Challenger by Lucky Dragon on the appellant's behalf. 27The application for finance dated 17 March 2008 stated falsely that the Tobacconist had employed the appellant since 17 August 2005 with an annual salary package of $45,657. Mr Ly said that a member of his staff completed the loan application on the basis of information the appellant supplied and that he then read through it in Vietnamese with the appellant and explained it to her and that after he did so, she signed the application and dated it. On the evidence, it was most probable that a Ms Sylvia Tran was the staff member involved as Mr Ly said she managed the appellant's case. 28The loan application was supported by a letter dated 26 March 2008, purportedly written on the letterhead of the Tobacconist which relevantly stated: "To Whom It May Concern I, Michelle Ling the Owner of Coogee Bay Tobacconist hereby confirm that I have employed Ms. Thi Thanh Huong Vu as a Shop Supervisor. Ms. Vu has been with us since Aug 2005 and her income package is $45,657.00 per annum. ... Yours sincerely Michelle Ling Shop Owner" A signature was written above Ms Ling's name. A fax header on one copy of the letter in the Combined Appeal Book (at 164) apparently showed, as Mr G Jones of Counsel, who appeared for the appellant on appeal but not at trial, accepted, that the letter was faxed to Lucky Dragon on 27 March 2008 but the fax did not identify the fax machine from which the transmission emanated. 29Mr Ly said that on 17 March 2008 the appellant provided what purported to be two pay slips said to relate to the appellant's employment at the Coogee Bay Tobacconist for the weeks ending 12 and 19 March 2008 respectively. 30Fax headers on copies of the letter and the two pay slips showed that Lucky Dragon faxed them to Challenger as part of a 29 page facsimile forwarded to that company on 2 April 2008, being the application and supporting documentation. 31Ms Ling denied preparing, issuing or signing the 26 March 2008 letter or the two pay slips. She said the letterhead on the letter was not that of the company which traded as the Tobacconist, Kent Ling Trading Co Pty Ltd. Both the appellant and respondent agreed at the trial that these documents were false and that the appellant had, at best, worked for the Tobacconist for a few days in about 2005: primary judgment at [13]. 32Lucky Dragon's records also included a document dated 27 March 2008 described as a Challenger Income and Employment Verification Form (the "Verification Form"). It had been completed by Ms Tran and purported to record that confirmation of the appellant's annual salary had been given during a telephone call to the Tobacconist and, in particular, to Ms Ling. Ms Ling denied giving any such confirmation in a telephone call, or at all. 33Perpetual Trustees extended finance of $184,000 to the appellant secured by a mortgage over the property being purchased. There was no issue at the hearing that the false documents played an operative role in its decision to extend her that finance: primary judgment at [14]. 34The primary judge identified (at [10]) two issues for determination: (1)whether a proceeds assessment order ought be made against the appellant under s 27 of the CAR Act; and (2)if such an order should be made, whether that order should be assessed in accordance with s 28(3) of the CAR Act and, if so, in what amount?

Making the proceeds assessment order 35Mr Tran, who appeared for the appellant before the primary judge, accepted that the circumstances revealed in the evidence would disclose involvement by her in serious crime related activity if the respondent established that she knew that false documents were being supplied in support of her application for finance, but submitted that the Court should not make such a finding on all the evidence: primary judgment (at [16]). 36The first issue required the respondent to establish, on the balance of probabilities, that the appellant was knowingly engaged in serious crime related activity in the form of an offence that involved fraud, under s 178BB of the Crimes Act: primary judgment (at [31]). That required his Honour to determine the extent of her knowledge of the use of the false documents in support of her loan application: primary judgment (at [69]). 37The primary judge held that conduct constituting the s 178BB offence was capable of falling within the definition of a serious crime related activity involving fraud for the purposes of s 6(2)(d) of the CAR Act: primary judgment (at [32]). There is no challenge to that conclusion. 38His Honour took into account (at [33]) the gravity of the matters alleged against the appellant in assessing whether the respondent had discharged its civil standard of proof in accordance with the principles in Briginshaw v Briginshaw; see also s 140(2)(c) of the Evidence Act. 39The appellant did not contend at trial that either Ms Ling or Mr Ly produced the false documents. Her case was that she did not produce them and that she was completely unaware they had been furnished by Mr Ly to the lender in support of the loan application or that the loan application form which she signed, dated 17 March 2008, falsely described her occupation and salary: primary judgment (at [56], [58] - [60]). 40The primary judge made the following findings: (1)The appellant arrived in Australia in 1994, had had little remunerative employment save, apparently, for working briefly in about 2008 at a nail beauty salon in Bondi Junction and, at an earlier time, probably in 2005, for about two days (as a trial period) at the Coogee Bay Tobacconist: (at [39], [43]); (2)From the time of her arrival in Australia and during the subject period, she was in receipt of Centrelink benefits, whilst being involved in very little paid work: (at [40], [43], [44]); (3)The appellant had been a regular gambler since at least 1998 and was registered as a Star Club patron at the Star City Casino with a card bearing a patron number assigned to her. There was substantial evidence that she was an active gambler throughout the subject period: (at [45] - [48]); (4)During the subject period, the appellant made expensive purchases of luxury items at Louis Vuitton, House of K'dor and other retail outlets and departed from Australia on no fewer than nine occasions for periods usually of between one week and four weeks in duration: (at [49], [85]); (5)The appellant was a worldly person, was not naïve in her knowledge of business affairs and had had substantial exposure to the English language: (at [53] - [54]); (6)Between January and March 2008, the appellant came to understand that an essential part of the loan application was proof of employment and income: (at [52]); (7)The appellant represented to Mr Ly that she was employed and had been for some time: (at [52]); (8)Neither Mr Ly, nor any member of his staff, told the appellant, as she contended, that it did not matter that she was unemployed as she had a 20% deposit available for the loan: (at [52]); (9)Mr Ly acknowledged he would receive a percentage of the loan amount if the application was successful (which on the evidence would amount to $1,288); however, it was the appellant who had the key financial interest in the loan application being granted. Mr Ly acted in accordance with proper broking practice and impressed as a careful and thorough mortgage broker with a firm understanding of his obligations: (at [61] - [62]); and (10)Mr Ly's telephone records indicated that two telephone calls were made from Mr Ly's office to the appellant's mobile phone number on 28 March 2008, which was not consistent with the appellant being kept in the dark concerning the use of the false documents: (at [64]). 41The primary judge's reasoning to his critical conclusion should be set out in full: "56 The Defendant was adamant at the examination on 26 August 2010, and in her evidence before me, that she was completely unaware that a letter dated 26 March 2008, and two payslips said to relate to Coogee Bay Tobacconist, had been furnished by Mr Ly to the lender in support of the loan application. Further, the Defendant stated that she was unaware that the loan application form (which bears the date '17 March 2008' and was signed by her) described her occupation as a supervisor employed by Coogee Bay Tobacconist since 17 August 2005 at an annual salary of $45,657.00. I do not accept the Defendant's evidence to this effect. 57 Ms Ling denied in evidence that she had prepared the letter of 26 March 2008, which stated (on its face) that it was signed by 'Michelle Ling' as 'Shop Owner' at the Coogee Bay Tobacconist. Mr Ly stated in evidence that he was provided with the letter of 26 March 2008 and the payslips by the Defendant, and that these documents were used as part of the application thereafter. 58 Ms Ling and Mr Ly were cross-examined by Mr Tran for the Defendant. Mr Tran did not put to Ms Ling that she had prepared this letter and had provided it to Mr Ly, without the knowledge of the Defendant. 59 Mr Tran did not put to Ms Ling that she had acted improperly. Although a possible scenario is that she provided the letter and payslips to the Defendant in support of the Defendant's application, and that this was done by her knowing that the contents were untrue, I do not make any finding to that effect. Firstly, such a proposition was not put to her by Mr Tran for the Defendant. The rule in Browne v Dunn (1894) 6 R 67 has been described as a 'principle of professional practice, of fair play and fair dealing' based on procedural fairness: Khamis v R [2010] NSWCCA 179; 203 A Crim R 121 at 123 [2]-[3] (Campbell JA) and 128-132 [29]-[45] (Whealy J). In written submissions, Mr Tran stated that the Defendant 'does not propose to allege any person in particular has produced the documents, only that it was not the Defendant who has produced the documents' (Defendant's written submissions, 1 February 2012, page 2). 60 Nor did Mr Tran put to Mr Ly that he had, in some improper way, furnished these documents in support of the application. The cross-examination of Mr Ly rose no higher than a suggestion by Mr Tran that Mr Ly had a financial interest in the loan application being approved. No further proposition was put by Mr Tran to Mr Ly as to what Mr Ly is said to have done with this financial motive in mind. 61 Mr Ly acknowledged readily that, as a broker, he would receive a percentage of the loan amount if the application was successful. In this case, on the figures provided in evidence, that sum would amount to $1,288.00 or (at the most) twice that amount. Although no direct allegation of impropriety was put to Mr Ly in cross-examination, I record my conclusion that Mr Ly acted in accordance with proper broking practice in this case. In evidence, Mr Ly impressed as a careful and thorough mortgage broker with a firm understanding of his obligations in that capacity, acting as the Defendant's agent (National Australia Bank Limited v Thirup [2011] NSWSC 911 at [43]). 62 It was the Defendant who had the key financial interest in the loan application being granted, with the consequence that the sum of $184,000.00 would be advanced to her. I am satisfied to the requisite standard that it was the Defendant who either furnished the letter of 26 March 2008 and the payslips to Mr Ly's office, or caused those false documents to be provided. There is no other plausible explanation for these false documents being deployed in the interests of the Defendant by some other person. 63 Certainly, in considering what inferences should be drawn from the totality of the evidence and, in particular, the contemporaneous documentary evidence, the Court should not place to one side the common sense which trial judges consistently invite juries to bring to bear in the resolution of factual issues involving alleged dishonesty. In my view, it is not to the point to determine whether telephone contact was made by Mr Ly's office on 27 March 2008 with Ms Ling to verify the Defendant's employment with Coogee Bay Tobacconist, this being an issue relied upon by Mr Tran in closing submissions. I bear in mind that the letter of 26 March 2008 was transmitted to Mr Ly's office by facsimile on 27 March 2008. That letter constituted a form of documentary verification of the Defendant's alleged employment and income. 64 Further, it is noteworthy that Mr Ly's telephone records (Exhibit D) indicate that telephone calls were made from Mr Ly's office to the Defendant's mobile phone number on 28 March 2008 (two calls) and again on 3 April 2008. Although the evidence does not disclose what was said in these telephone calls, what it demonstrates is that there was a direct line of communication from Mr Ly's office to the Defendant on important days, including the day following the receipt of the false employment letter. To my mind, telephone contact of this type is not consistent with the Defendant, in some way, being kept in the dark concerning the use of these false documents in support of her own loan application. The very clear inference is that the Defendant well knew that these statements were being made on her behalf in support of the application, even if the evidence does not permit a clear finding to be made that it was the Defendant herself who created the false documents." 42The primary judge concluded (at [65]): "I am comfortably satisfied that the Defendant was aware that false documents were relied upon in support of her loan application and that the lender was deceived into acting upon these false documents in extending the loan of $184,000.00 to the Defendant. I am comfortably satisfied that the Defendant, with the intention of obtaining for herself a financial advantage, made or published (or concurred in making or publishing) a statement which she knew was false in a material particular, so as to constitute conduct within s 178BB Crimes Act 1900." 43In reaching his conclusions, the primary judge had regard (see [52]) to the totality of the evidence, including the oral evidence of Ms Ling, Mr Ly and the appellant as well (see [66]) as to the appellant's "demeanour (she gave evidence largely through an interpreter)", the probabilities and "other incontrovertible facts, facts that are not in dispute and other relevant evidence". 44Therefore, his Honour concluded (at [67]) that a proceeds assessment order under s 27 should be made. 45Although the appellant does not challenge the quantum of the proceeds assessment order, I set out aspects of his Honour's consideration of this issue as, in my view, his rejection of the appellant's evidence in this context assists in the determination of the appeal. As the primary judge observed (at [79]), to satisfy s 28(3) of the CAR Act the respondent had to establish, on the civil standard, the appellant's expenditure during the subject period, the onus then lay upon her to satisfy the Court that all or any part of that expenditure was funded from income or money from sources unrelated to any illegal activity or activities. 46The primary judge observed (at [81]) that given the finding he had made "rejecting the truthfulness of the evidence of the Defendant on ... her knowledge of the use of false documents in support of her loan application", her evidence on the s 28 issue needed to be approached with great care and should not be accepted on any material issue without independent corroboration. As will be apparent his Honour did not accept the appellant's evidence concerning the source of her expenditure. Accordingly the appellant comes to this appeal as a person who has been disbelieved on all critical issues. 47The unchallenged affidavit evidence of Mr Seagrave, who conducted an analysis of the appellant's financial records to seek to determine her total expenditure and income unrelated to any illegal activity or activities during the subject period, demonstrated that the appellant's total expenditure was $1,263,988. He concluded that income unrelated to any illegal activity or activities amounted to $341,250: primary judgment (at [71] - [77]). Therefore, the respondent sought a proceeds assessment order in the net sum of $922,738: primary judgment (at [78]). 48The appellant sought to justify her expenditure during the subject period by claiming she was a regular and highly successful gambler at various facilities, including Star City Casino, clubs and hotels which was a "very large source of her income which was legally obtained" and also by saying sums of money were provided to her by relatives by way of gift or otherwise: primary judgment (at [80], [97], [101]). 49The primary judge did not accept the appellant's uncorroborated evidence concerning sums of money she said had been provided to her by relatives. Indeed, he drew (at [82]) an adverse Jones v Dunkel ([1959] HCA 8; (1959) 101 CLR 298) inference from her unexplained failure to call her relatives to give evidence in support of her case that either they had provided large sums of money to her, or had direct knowledge of legitimate sources of such sums. 50The primary judge also accepted evidence that, in short, the appellant incurred net losses at Star City Casino during the subject period, such evidence "point[ing] to her being a loser and not a winner": primary judgment (at [87] - [90], [98]). His Honour was also not persuaded by the appellant's evidence that she was a regular and highly successful gambler at various other hotels and clubs. His Honour accepted evidence, albeit generalised, from an employee of the NSW Office of Liquor, Gaming & Racing to the effect that players at such venues do not have a high rate of return as demonstrating that "[t]he statistical prospect of the Defendant being a heavy and regular winner whilst gambling at clubs and hotels has an air of improbability about it": primary judgment (at [93] - [96], [99]). 51Accordingly, his Honour concluded that a proper foundation had been demonstrated by the respondent for a proceeds assessment order assessed in accordance with s 28(3) and that the appellant had not discharged her onus of establishing that her expenditure during the subject period was funded from sources unrelated to an illegal activity or activities: primary judgment (at [105]).

Appellant's submissions 52Mr Jones accepted that the primary judge correctly identified the issues for determination, the scheme of the CAR Act and the applicable burden of proof. He also accepted that s 28(3) of the CAR Act enabled the primary judge to assess the proceeds of crime as $922,738 despite the quantum of the loan only being $184,000. 53However, Mr Jones submitted that the primary judge erred in the fact-finding exercise and could not have been reasonably satisfied on the balance of probabilities, in light of the principles in Briginshaw v Briginshaw, that the respondent established for the purposes of s 178BB of the Crimes Act that the appellant made or published, or concurred in making or publishing, the letter dated 26 March 2008 verifying her employment and the payslips in support of that letter. In short, he argued that having regard to the factual issues I discuss below, and taking into account that the appellant consistently denied having any knowledge of the false documents in her examination before the Deputy Registrar and at trial, there was a real doubt as to her involvement with the false documents such that the primary judge should have concluded the respondent had not discharged its burden of proof. 54First, Mr Jones contended that the evidence of Michelle Ling, the shop assistant, as to whether she prepared the false documents, was inconsistent. In her statement to the respondent of 14 October 2009, she stated that she did not prepare or issue the letter or the payslips. However, in her examination-in-chief, she gave evidence that she was "not quite sure and [did not] remember" whether she prepared the letter. 55He also argued that Ms Ling's evidence that she did not receive a call from Lucky Dragon on 27 March 2008 to confirm the annual salary of the appellant was inconsistent both with the Verification Form and with Mr Ly's evidence that it was a Challenger requirement that a call be made to the employer to verify employment information independently, a check and verification call that his staff would have made. This also went to the reliability, it was argued, of Lucky Dragon's records. 56Mr Jones submitted that this inconsistency was only explicable if Mr Ly and his staff were not performing their duties properly, which contradicted the primary judge's finding (at [61]) that Mr Ly was a "careful and thorough mortgage broker with a firm understanding of his obligations in that capacity". He argued there could be no comfortable resolution of the inconsistency, particularly having regard to what appeared to be Lucky Dragon's White Pages search of a telephone number for the Tobacconist which recorded a different number to that which appeared on the letterhead. 57Secondly, Mr Jones pointed to inconsistencies in Mr Ly's evidence which he submitted should have been considered by the primary judge in assessing his credit. In Mr Ly's statement to the respondent on 16 May 2011, he said that both from his file and his recollection, he recalled interviewing and speaking with the appellant a number of times about the loan and questioning her at length about her employment. He also said that on 17 March 2008 after the appellant had been seen by a member of his staff who had, apparently, completed the loan application, he read and explained the application for finance to the appellant in Vietnamese and, when he had done so, she agreed that the information in it was correctly recorded. However, at trial on 31 January 2012, he had no specific recollection of his conferences with the appellant and relied on his general practice as to what would have happened. Mr Jones also relied on the fact that at one point in his evidence Mr Ly said that he telephoned the appellant on 28 March 2008 and in his later statement said that it was his staff who made those calls. 58Mr Jones also relied on what he said were the contradictions between Ms Ling and Mr Ly's evidence with the former saying, and the latter effectively denying, that they knew each other. 59Mr Jones submitted the commission, both upfront and trailing, received by Mr Ly in the event that the loan application was successful meant that he had a vested interest in the false documents being used. Mr Jones contended that the primary judge should have taken the trailing commissions into account (at [61]) when considering the significance of Mr Ly receiving a percentage of the loan amount if the application was successful. Had his Honour done so, he appeared to argue, that would have increased the plausibility of Mr Ly having an interest in the false documents being used. 60Despite the submission recorded in the previous paragraph, Mr Jones adopted Mr Tran's approach at trial in that he did not allege that Mr Ly (or any member of his staff) had any role in creating the false documents, but contended that his Honour erred in concluding (at [62]) that there was "no other plausible explanation" for the false documents being deployed than the appellant furnishing the documents or causing them to be provided. 61Thirdly, Mr Jones submitted that it was significant that the respondent failed to call Ms Sylvia Tran, the author of the Verification Form and the person Mr Ly identified as responsible for managing the appellant's case. He contended that the primary judge should have drawn a Jones v Dunkel inference adverse to the respondent in this respect. 62Fourthly, Mr Jones submitted that the evidence of phone calls made from Mr Ly's office to the appellant on 28 March 2008 did not support the primary judge's conclusion (see [ REF _Ref362965034 \r \h * MERGEFORMAT 40] above) that the appellant was not kept in the dark concerning the use of the false documents in support of her loan application. He observed that two other matters occurred on 28 March 2008 (lenders mortgage insurance was approved and indicative approval for the loan was received) which may have prompted those calls. 63Finally, Mr Jones contended that the evidence did not support the primary judge's findings about the appellant's character and credit. He submitted that his Honour's conclusion (at [53]) that the appellant was a "worldly person and certainly not naïve in her knowledge of finances and business affairs" was not supported by evidence of prior loans or business dealings. 64In short, Mr Jones submitted that the unsatisfactory nature of the respondent's evidence was such that the primary judge had erroneously relied upon "inexact proofs, indefinite testimony, or indirect inferences" in reaching his decision: cf Briginshaw v Briginshaw (at 362) per Dixon J.

Respondent's submissions 65Mr Temby of Queen's Counsel, who appeared for the respondent at trial and on appeal, contended that in light of the appellant's concession that the primary judge identified the correct issues, properly characterised the statutory scheme and outlined the appropriate principles applicable to proof, what remained was a pure fact appeal which could only succeed if the decision reached was plainly wrong. 66Secondly, Mr Temby observed that the appellant did not put to Ms Ling below that she had prepared or provided any of the false documents. Furthermore, he contended the primary judge was correct in saying that Ms Ling denied preparing the letter of 26 March 2008, in light of her affidavit evidence to that effect. 67Thirdly, Mr Temby submitted that the appellant's attempts to diminish the weight of Mr Ly's evidence were misconceived. He pointed out that Mr Ly gave evidence that he had read and explained the loan application containing false information concerning the appellant's employment to the appellant on 17 March 2008. Therefore, he submitted that the appellant must have been involved in the provision of false information from at least 17 March. Furthermore, he submitted that the appellant rather than Mr Ly had the "key financial interest" in a successful loan application as it enabled her to procure a home she owned rather than the rented accommodation for herself and her three children she had hitherto occupied. This was said to justify his Honour's finding that the probabilities support the appellant having furnished the false documents. 68Fourthly, Mr Temby submitted that the failure to call Ms Tran to give evidence was explicable on the basis that the appellant had only spoken of her contact with Mr Ly in her examination transcript. Nor was there any reference to Ms Tran in the appellant's affidavit dated 31 January 2012 which she was given leave to rely upon on the second day of the trial. He contended that the respondent was not put on notice regarding Ms Tran's apparent significance until submissions provided at the conclusion of the hearing at the end of the second day. He also submitted that even if Ms Tran had played a clerical role in completing the loan application form, what was critical was that Mr Ly had read and explained that document to the appellant in Vietnamese before she signed it. Further, there was no suggestion that Ms Tran played any role in connection with the false letter and payslips. Accordingly there was no room for any adverse inference from the fact the respondent did not call Ms Tran. 69Finally, Mr Temby submitted that the primary judge correctly concluded on the balance of probabilities that the appellant either furnished the false documents to Mr Ly's office or caused them to be so provided. It was she who had the key financial interest in a successful loan application, whereas Mr Ly stood to gain only slightly and Ms Ling not at all. Taking into account the primary judge's findings about the appellant's credibility, the absence of any corroborating evidence and the appellant's financial objectives, he submitted the primary judge's finding that she had committed, on the balance of probabilities, a serious crime related activity was correct.

Nature of CAR Act proceedings 70As is apparent from s 3(a), the CAR Act is a species of civil assets forfeiture laws which depend upon unlawful conduct rather than conviction. Such laws are used as a means of deterring serious criminal activity which may result in the derivation of large profits and the accumulation of significant assets: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 (at [25] - [29]) per French CJ. 71As the Premier, the Hon Nick Greiner MLA said in the Second Reading Speech on the Drug Trafficking (Civil Proceedings) Bill 1990 (which was renamed the CAR Act in 1997: Drug Trafficking (Civil Proceedings) Amendment Act 1997, Sch 1, cl [2]), "this legislation ... will create a scheme of asset confiscation that will operate outside and completely independent of the criminal law process ... [and] essentially provides that a person can be made to account for and explain assets and profits whether or not the person has been convicted, and even if the person has been acquitted in the criminal courts": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 8 May 1990 (at 2529), cited by Gummow and Bell JJ in International Finance Trust Co Ltd v New South Wales Crime Commission (at [81]). 72Gummow and Bell JJ explained in International Finance Trust Co Ltd v New South Wales Crime Commission (at [82]), by reference to Lord Bingham of Cornhill's observation in R v May [2008] 1 AC 1028 (at 1034) that the effect of legislation of this type is that: "Where ... a criminal has benefited financially from crime but no longer possesses the specific fruits of his crime, he will be deprived of assets of equivalent value, if he has them. The object is to deprive him, directly or indirectly, of what he has gained." 73The breadth of the CAR Act's operation can be seen from Beazley JA's observations in Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306 (at [66]) with which Tobias JA agreed, that: "The very purpose of the legislation is to recover proceeds of crime, so that persons cannot benefit from illegal activity. It is not necessary that the serious crime related activity relied upon to found an application be the one that was the source of the 'proceeds of crime' that the State seeks to attach. But it may be. ... Reliance upon some ... different offence is permitted by the terms of the section ..." (Emphasis added) 74Thus, the breadth of the CAR Act's operation can also be gauged from the fact that the proceeds assessment order can be assessed as the value of the proceeds the person the subject of the application derived from illegal activities, whether or not any such activity is an activity on which the application is based (s 27(1)) and, the fact that when recourse is had to s 28(3) to assess the quantum of the order, the Court is to treat the amount of the defendant's expenditure during the subject period as proceeds derived by the defendant from an illegal activity or activities, except to the extent (if any) that it is satisfied the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities: s 28(1), s 28(3). In this case that has had the effect that although the benefit the appellant purportedly gained from her breach of s 178BB was the loan of $184,000, the proceeds assessment order was quantified at $922,738. Another illustration of the extent of the CAR Act's operation can be seen in New South Wales Crime Commission v D'Agostino (1998) 103 A Crim R 113 in which, as Gummow and Bell JJ remarked in International Finance Trust Co Ltd v New South Wales Crime Commission (at [82]), "the Act operated upon a motor vehicle and a half share in a residential property owned by a person convicted of a single instance of shop-lifting".

Standard of proof 75Central to Mr Jones' submissions as to the primary judge's error in finding that the appellant had engaged in conduct constituting an offence under s 178BB of the Crimes Act is his complaint that, despite the primary judge directing himself that, having regard to the gravity of the matters alleged against the appellant, he should determine whether the respondent had discharged its civil standard of proof in accordance with the principles in Briginshaw v Briginshaw, his Honour failed to give any, or any sufficient weight to that part of Dixon J's statement in Briginshaw v Briginshaw (at 362) that: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." 76Mr Jones contended that, had his Honour paid proper attention to the evidence, and, in particular, the deficiencies for which he contended, his Honour ought to have concluded that the respondent had failed to adduce the clear and cogent evidence necessary to sustain a fraud allegation: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (at 171) per Mason CJ, Brennan, Deane and Gaudron JJ. 77As the primary judge recognised (at [33]), the standard of proof in the circumstances was to be considered by reference to s 140(2) of the Evidence Act which relevantly requires a court hearing a civil proceeding to take the nature of the cause of action, the subject matter of the proceedings and the gravity of the matters alleged into account in deciding whether it is satisfied that a party has proved its case on the balance of probabilities. As is apparent from its language, s 140(2) reflects Dixon J's statement in Briginshaw v Briginshaw (at 362): see also Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 86 ALJR 522 (at [228]) per Heydon J; Employment Advocate v Williamson [2001] FCA 1164; (2001) 111 FCR 20 (at [65]) per Branson J (Kenny J agreeing). 78The mandatory considerations s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence; accordingly, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at [30]) per Weinberg, Bennett and Rares JJ. 79In New South Wales Crime Commission v Kelaita [2008] NSWCA 284; (2008) 75 NSWLR 564 (at [15]), Allsop P (with whom Giles and Bell JJA agreed) said that "the forfeiture of property in circumstances provided by the Act [could] be seen to be a drastic interference with fundamental rights of property." While recognising that "that property may have a relationship with criminal activity which engages the Act and its underlying public policy", his Honour emphasised that "the interference with property rights is drastic, and the rights at this point in the process can be seen to be fundamental." His Honour's observations are a sufficient description of the nature of the proceedings which, taken with their subject matter (an allegation that the appellant had engaged in fraud), emphasise their gravity for the purposes of s 140(2) of the Evidence Act. 80The respondent's case was circumstantial. It had no direct proof that the appellant had either created the false documents or submitted them to Mr Ly to be supplied to Challenger. Accordingly, the primary judge had to be able to conclude that the circumstances raised "a more probable inference in favour of what is alleged": Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 (at 536) per Gibbs CJ and Mason J. As a lesser standard of proof than beyond reasonable doubt was sufficient, "the existence of other reasonable hypotheses [was] simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved": Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 (at 211) per Deane, Dawson, Toohey, Gaudron and McHugh JJ. The primary judge's mind had only to be reasonably satisfied and did not, with respect to any matter in issue, have to attain that degree of certainty which is indispensable to the support of a conviction on a criminal charge: Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 (at 521 - 522) per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ. 81The primary judge also referred (at [33]) to Palmer v Dolman [2005] NSWCA 361 where Ipp JA (with whom Tobias and Basten JJA agreed) summarised the principles applied in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud (at [41]) relevantly as follows: 41 ...(a) The jury must consider 'the weight which is to be given to the united force of all the circumstances put together' (per Lord Cairns in Belhaven & Stenton Peerage (1875) 1 App Cas 278 at 279 - quoted with approval by Gibbs CJ and Mason J in Chamberlain v R (No 2) at 535). (b) The onus of proof is only to be applied at the final stage of the reasoning process: '[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case' (per Winneke P in Transport Industries Insurance Co Ltd v Longmuir at 129). (c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful. ..."

Jones v Dunkel 82Some preliminary observations should also be made about the appellant's complaint about the respondent's failure to call Ms Tran. 83While demonstrating that other evidence could have been, but was not, called may properly be taken into account in determining whether a party has proved its case to the requisite standard, both the circumstances in which that may be done and the way in which the absence of evidence may be taken into account are confined by known and accepted principles: Australian Securities and Investments Commission v Hellicar (at [165]) per the plurality. 84Here the appellant seeks to weaken the cogency of the respondent's case by invoking the rule in Jones v Dunkel. However, that rule does not apply whenever a potential witness is not called. Rather, it applies "where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, [so that] the circumstance that the [party] disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference": Jones v Dunkel (at 312) per Menzies J; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 (at [26]) per Gaudron ACJ, Gummow, Kirby and Hayne JJ; see also Manly Council v Byrne [2004] NSWCA 123 (at [54]) per Campbell J (as his Honour then was), Beazley JA and Pearlman AJA agreeing. 85Further, while the rule in Jones v Dunkel authorises, but does not require, a tribunal of fact to infer that the evidence of an absent witness, if called, would not have assisted the party who failed to call that witness (Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 (at [91]) per Campbell JA (Basten JA and Sackar J agreeing)), it does not entitle a court to speculate about "what other evidence might possibly have been led" (Australian Securities and Investments Commission v Hellicar (at [165] per the plurality) nor "does [it] enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to [the] party" who fails to call the witness: Australian Securities and Investments Commission v Hellicar (at [232]) per Heydon J; see also Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (at [64]) per Heydon, Crennan and Bell JJ.

Conclusion 86In my view the appellant's attack on the primary judge's analysis of the evidence cannot be sustained. 87It is essential to bear in mind that in discharging, as this Court is doing in this case, the rehearing function under s 75A of the Supreme Court Act 1970 the Court has neither seen nor heard the witnesses, and should make due allowance for the trial judge's advantage in this respect. Further, on such a rehearing, findings of a trial judge based on credit can only be overturned if the appellate court is satisfied that the findings are glaringly improbable or contrary to compelling inferences or that the trial judge failed to use, or palpably misused, his or her advantage in hearing the relevant witnesses: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [25], [28] - [29]) per Gleeson CJ, Gummow and Kirby JJ. 88The appellant gave evidence largely through an interpreter. It has been said that "great care must be exercised in making demeanour findings ... where a witness is from a different cultural and ethnic background [and that] trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case": Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 (at [21] - [27]) per Ipp JA (Mason P and Tobias JA agreeing). The primary judge was conscious of this obligation: primary judgment (at [66]). 89In my view to the extent there were the inconsistencies in the evidence for which Mr Jones contended, they were either taken into account by the primary judge, or, even if they were not, do not demonstrate error such as to detract from the cogency of the primary judge's conclusion. 90Despite the fact that Ms Ling was equivocal at trial about whether she prepared the false letter, she had denied any involvement in its preparation in her affidavit. She denied at trial that she signed the letter. It was open to the primary judge to accept the evidence in her affidavit, as it is clear he did (at [57]), as opposed to her equivocal answer, particularly when one had regard to the fact that it was not put to her either that she had prepared the false letter and provided it to Mr Ly without the appellant's knowledge or that she provided the letter and payslips to the appellant in support of the appellant's application while knowing that the contents were untrue: primary judgment (at [58] - [59]). The primary judge in my view carefully considered Ms Ling's evidence in context and was entitled to accept her denial of involvement in the false letter's preparation. 91Mr Jones' next submission concerned the reliability of the evidence about what occurred at Lucky Dragon in terms of assembling and verifying the appellant's information for the loan application. 92It was open to the primary judge to assess Mr Ly's evidence in the light of his impression of him (at [61]) "as a careful and thorough mortgage broker with a firm understanding of his obligations in that capacity". It was also open to him to accept that Mr Ly both had some recollection of the transaction, albeit that it took place some years before, and also relied to some extent on his company's practice as to completing loan applications. That evidence of practice supported the proposition that those practices were followed in respect of the appellant's application: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 (at 716) per Jacobs JA; (at 721) per Asprey JA (with whose reasons Mason JA agreed). 93I would not attach any weight to the fact that Mr Ly said he did not know Ms Ling, whereas she said she knew him. It was incontrovertible on the appellant's evidence that Ms Ling introduced her to Mr Ly and Lucky Dragon in January 2008. The circumstances of Ms Ling's acquaintance with Mr Ly were not explored. It was not suggested they had had a business or even social association, merely that Ms Ling had met him "a couple of times". It is unremarkable, in my view, that a busy person like Mr Ly who dealt with a high turnover of loan applicants may not have a particular recollection of Ms Ling with whom he does not appear to have had any commercial, or other, dealings. 94The primary judge's failure to refer to the trailing commission Mr Ly would earn if the loan was approved is understandable in light of the fact there was minimal evidence about it, other than that it was "a little trailer". His Honour did consider the significance of the commission of which there was evidence, but, as he said (at [61] - [62]), it was the appellant, rather than Mr Ly, who had the key financial interest in the loan application being granted. 95The other matters on which Mr Jones relied go no further. The primary judge was entitled to infer (at [64]) from the fact that Lucky Dragon was making calls to the appellant's mobile that she had a close involvement with her application. As his Honour mentioned, it was significant that two of the calls were made on 28 March 2008, the day after the false letter was provided. The other call to which his Honour referred was made on 3 April 2008, which, although his Honour did not mention it, it will be apparent, was the day after the loan application was faxed to Challenger. Even if, as Mr Jones submitted, the first two calls also coincided with approval of the mortgage insurance Challenger required and the receipt of Challenger's indicative approval, nevertheless, the primary judge's conclusion (at [64]) that this contact demonstrated the appellant "well knew that these statements were being made on her behalf in support of the application" was an available inference. 96Turning to Mr Jones' submission about the failure to call Ms Tran, I accept, as Mr Temby submitted and Mr Jones did not gainsay, that from the respondent's perspective, the fact that Ms Tran's evidence might be of some significance did not become apparent until Ms Ling's cross-examination. But even if the respondent still had the opportunity to, for example, seek to make arrangements to call her, its failure to do so did not, in my view, have the potency for which Mr Jones contended. 97Mr Jones suggested, absent Ms Tran's evidence, that the inference was available that she made no verification inquiry because she knew the letter (and presumably the pay slips) were false. In my view the rule in Jones v Dunkel would not permit that inference to be drawn. Even if Ms Ling's denial that anyone telephoned her to confirm the appellant's employment details were accepted, that, at its highest, (absent evidence from Ms Tran) exposed an inconsistency with the verification form Ms Tran prepared and may have entitled the primary judge to infer that the verification call was not made. It would not, as the previous discussion demonstrates, entitle the Court to speculate about what her evidence may have been, or draw the adverse inference for which Mr Jones contended. His Honour was clearly alive to the significance of Ms Ling's denial that the appellant's employment details had been verified by a call to her: primary judgment at [63]. As he said, whether or not the call was made was not determinative. Rather it was a matter to be weighed from the totality of the evidence, using common sense bearing in mind that the letter itself was "a form of documentary verification". 98As to the telephone number on the White Pages search Ms Tran appeared to have located, nothing indicated it was not a telephone number of the Tobacconist. Even if it did not match the number on the admittedly false letterhead, that may lead to an inference that, like the contents of the letter, the telephone number on the letter was false. It did not demonstrate that Ms Tran did not call the number on the White Pages search and speak to someone identified as recorded who gave the information on the Verification Form. 99Not calling Ms Tran did not, in my view, expose error in the primary judge's conclusion (at [61]), formed in part at least from his impression of Mr Ly, an opinion which was clearly significant in his Honour's acceptance of Mr Ly's evidence, as the person with overall responsibility for the loan application, that the false information about the appellant's employment emanated from her. The failure to call Ms Tran did not diminish the weight of Mr Ly's evidence that the appellant gave the false employment details to Ms Tran on 17 March 2008, and he approved them when the appellant signed the form after he read and explained it to her in Vietnamese. 100In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (at 171), the plurality observed that statements concerning the necessity for cogent evidence when fraud is alleged in a civil context "should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." 101The primary judge had to bear that injunction in mind, as well as the observations in Palmer v Dolman in deciding whether to accept the appellant's bald denials of any involvement at all in the provision of the false information. Mr Jones' submissions invite the Court to embark, in my view on an impermissible piecemeal consideration of the evidence (cf Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 129 per Winneke P), rather than having regard to "the united force of all the circumstances" and realistic as opposed to fanciful possibilities: Palmer v Dolman (at [41]). 102In my view, none of the matters upon which the appellant relies detract from the probability of the respondent's case that the appellant made or published (or concurred in making or publishing) a statement which she knew was false, as the primary judge found (at [65]). She was the person who sought a financial benefit which she could not obtain if she was unable to demonstrate that she had a steady source of income from which to service the mortgage Challenger would require to secure the advance. There was no other plausible explanation advanced for the creation of the false documents. The appellant did not suggest anyone from Lucky Dragon or Ms Ling prepared the documents. While I emphasise I am not suggesting any of them did, even if another person had created the documents, it was still open to the primary judge to find that the appellant concurred in their making. That, too, would have been sufficient for him to find she had engaged in a serious crime related activity as the respondent contended. 103The appellant has not demonstrated any error in the primary judge's reasons which would warrant appellate interference.

Orders 104I propose the following orders:

1. Extend the time for the appellant to file the notice of appeal up to and including 20 July 2012.
2. Appeal dismissed with costs. 105MEAGHER JA: I agree with McColl JA. 106EMMETT JA: This appeal is concerned with the operation of the Criminal Assets Recovery Act 1990 (the Recovery Act). The Recovery Act was enacted to provide for the confiscation of interests in property of persons engaged in serious crime related activities. Its objects include providing for the confiscation, without requiring a conviction, of property of a person, if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities. Proceedings on an application for a confiscation order are not criminal proceedings. 107Section 27(1) of the Recovery Act relevantly provides that the respondent, the New South Wales Crime Commission (the Commission), may apply to the Supreme Court for a proceeds assessment order. Under s 27(2), the Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than six years before the making of the application for the order, engaged in a serious crime related activity involving an offence punishable by imprisonment for five years or more. A finding for the purposes of s 27(2) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other constituting a serious crime related activity was committed. A proceeds assessment order requires a person to pay to the Treasurer of the State an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person. 108Section 28(1) of the Recovery Act relevantly provides that, in assessing the proceeds derived by a relevant person from an illegal activity or illegal activities for the purposes of a proceeds assessment order under s 27, the Court must have regard to the money, or the value of any interest in property other than money, directly or indirectly acquired by that person because of the illegal activity or activities. Under s 28(3), if evidence is given, at the hearing of an application for a proceeds assessment order, of the amount of the defendant's expenditure during the period of six years before the making of the application for the order, the Supreme Court is to treat any such amount as proceeds derived by the defendant from an illegal activity or activities, except to the extent, if any, that the Supreme Court is satisfied that the expenditure was funded from income, or money from other sources, unrelated to an illegal activity or activities. 109The Commission commenced a proceeding against the appellant seeking orders against the appellant under the Recovery Act, including an order under s 27 that she pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from illegal activities that took place not more than six years before the making of the application. While the summons commencing the proceeding did not specify the illegal activity upon which the Commission relied for the purposes of the application, at the hearing before the primary judge the Commission contended that the relevant activity was an offence under s 178BB of the Crimes Act 1900. 110Section 178BB provides a punishment of imprisonment for five years for a person who, with intent to obtain any money or valuable thing or any financial advantage, makes or publishes, or concurs in making or publishing, any statement that the person knows to be false or misleading in a material particular. The Commission alleged that the appellant committed an offence under s 178BB in that she applied to Challenger Mortgage Management Pty Limited for finance and falsely stated in the application for finance that she had been employed by a tobacconist for a specified time, at a specified salary, and she caused to be procured or created a false letter from the tobacconist and two false payslips relating to the alleged employment, with the intent that they should accompany the finance application. 111The primary judge referred to Briginshaw v Briginshaw (1938) 60 CLR 336 and was satisfied that the appellant was aware that false documents were relied upon in support of her loan application and that the lender was deceived into acting on those false documents in making a loan to her. His Honour was comfortably satisfied that the appellant, with the intention of obtaining for herself a financial advantage, made or published, or concurred in making or publishing, a statement that she knew was false in a material particular, so as to constitute conduct within s 178BB of the Crimes Act. 112The appellant contends that the primary judge erred in the fact finding exercise undertaken by him and could not have been reasonably satisfied on the balance of probabilities, in the light of the principles in Briginshaw, that the Commission had established that the actions of the appellant fell within s 178BB. I have had the advantage of reading in draft form the reasons of McColl JA, who concludes that no error on the part of the primary judge has been demonstrated. I agree with her Honour's reasons and the conclusion reached by her Honour. I agree with the orders proposed by her Honour that the time for the appellant to file a notice of appeal be extended up to and including 20 July 2012 and that the appeal be dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2013