Director of Public Prosecutions v Nguyen
[2023] VCC 1887
•19 October 2023
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Revised
Not Restricted
Suitable for PublicationCase No. CR-22-01017
DIRECTOR OF PUBLIC PROSECUTIONS v NGUYEN, My Quoc ---
JUDGE:
HER HONOUR JUDGE BLAIR
WHERE HELD:
Melbourne
DATE OF HEARING:
2-4 October 2023
DATE OF VERDICT:
19 October 2023
CASE MAY BE CITED AS:
DPP v Nguyen
MEDIUM NEUTRAL CITATION:
[2023] VCC 1887
VERDICT
---Subject:CRIMINAL LAW - VERDICT
Catchwords: Cultivation of a narcotic plant – cannabis – commercial quantity – intention – knowledge – trial by judge alone
Legislation Cited: Criminal Procedure Act 2009; Jury Directions Act 2015
Cases Cited:Brooks v The Queen [2010] VSCA 322; DPP v Nguyen; DPP Reference (No 1 of 2004)(Vic)(2005) 12 VR 299; R v Bui [2005] VSCA 300; The Queen v Baden-Clay (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [14]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18]
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APPEARANCES:
Counsel Solicitors For the DPP Mr D’Arcy
Mr BrydonOffice of Public Prosecutions For the Accused Ms Joosten Giorgianni & Liang HER HONOUR:
Background
1At 5.46pm My Quoc Nguyen (“the Accused”) arrived at 2 Edenvale Boulevard Wollert. He was driving a Toyota Kluger and entered the premises through the garage which he accessed from a rear lane. At 6.05pm on 23 February 2022 police executed a search warrant at 2 Edenvale Boulevard Wollert. The accused was arrested hiding amongst cannabis plants in a room within the premises. It was later determined by investigators that this room contained 20 mature cannabis plants that weighed 61.20kg.
2A further search of the address revealed a sophisticated hydroponic set up and electrical by-pass. There was a lighting system that was controlled by timers and a manual irrigation system. Six rooms within the house contained varying amounts of cannabis plants that were at various stages of maturity. Within the refrigerator recess there was a tent that contained cannabis seedlings. A total of 211 cannabis plants were located, these plants had a total weight of 183.4795 kg.
Procedure
3The accused is charged on indictment N10373751.1 that on 23 February 2022 he cultivated a narcotic plant in a commercial quantity and in the alternative that on 23 February 2022 he cultivated a narcotic plant.
4The matter came before me for trial by judge alone under the provisions of Chapter 9 of the Criminal Procedure Act 2009, ss420A to 420ZL.[1] The defence application, opposed by the prosecution was granted by His Honour Judge Mullaly on 2 March 2023.
[1] Criminal Procedure Act 2009 (Vic).
5Mr Nguyen was arraigned on 2 October 2023 and pleaded not guilty to charge one of cultivation in a commercial quantity of cannabis and guilty to charge two of cultivation of cannabis. This marked the commencement of the trial. The Crown opened the case and the defence responded. The evidence commenced on 3 October 2023 and concluded on the same day. The prosecution called three witnesses, Sergeant Tim Johns, Senior Constable Emma Wilson and the informant Senior Constable Haidar Saleh. On 4 October 2022, after the evidence concluded I was addressed by counsel, Mr D’Arcy for the prosecution and Ms Joosten for defence.
6Pursuant to s420G of the Criminal Procedure Act,[2] my judgment must include the principles of law which I have applied and the facts upon which I have relied. I am not required to recount every piece of evidence or argument which has been put before the court. I have had regard to all of the evidence led throughout the trial and the arguments raised by counsel. In particular, I have reviewed the evidence to which counsel referred in their closing addresses and have done so in light of their arguments.
[2] Ibid s 420G.
7The effect of s420ZG of the Criminal Procedure Act[3] and s4A of the Jury Directions Act 2015[4] is that my reasoning must be consistent with how a jury would be directed. I may make any decision that could have been made by a jury.[5] In this trial that means I can find Mr Nguyen guilty or not guilty of charge one on the indictment.
[3] Ibid s 420ZG.
[4]Jury Directions Act 2015 (Vic) s 4A.
[5]Criminal Procedure Act 2009 (Vic) s 420F.
8The general directions of law that would have been given to a jury and that I have applied in this case are as follows;
Presumption of innocence and the onus and standard of proof
9Mr Nguyen is presumed innocent unless and until guilt is proved on evidence presented to the court. The guilt of Mr Nguyen must be established beyond reasonable doubt on each element of an offence charged. This is the highest standard of proof known to the law. It is not enough for the prosecution to prove that the accused is probably guilty, or very likely to be guilty. A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility. If the court is not satisfied to this standard Mr Nguyen must be found not guilty. The burden of proof is entirely on the prosecution to establish guilt beyond reasonable doubt. Mr Nguyen bears no onus of proof. It is not for Mr Nguyen to prove his innocence or prove anything at all.
Decision to be based solely on the evidence
10I must decide the case only on the admissible evidence led in this trial. Such evidence takes the form of witness testimony and the exhibits that have been tendered. Where I have considered other evidence for the purposes of determining admissibility I have not had regard to such evidence in my determination of this trial. In addition, I have not done any outside research or had regard to any outside sources of information.
Elements
11In order to prove its case, the prosecution must prove beyond reasonable doubt each of the following elements:
(a) Mr Nguyen intentionally cultivated a plant; and
(b) The plant cultivated by Mr Nguyen was a narcotic plant.
(c) Mr Nguyen intentionally cultivated not less than a commercial quantity of the narcotic plant.
12In this trial Mr Nguyen has pleaded guilty to charge two of cultivation of a narcotic plant. In these circumstances elements 1 and 2 are not in dispute. It is accepted by Mr Nguyen that he cultivated a narcotic plant being cannabis.
13Element three is in issue. This third element has two parts. First the prosecution must prove that Mr Nguyen cultivated not less than a commercial quantity of cannabis. Second, they must prove that Mr Nguyen intended to cultivate not less than a commercial quantity of cannabis. A commercial quantity of cannabis is 100 plants or 25 kilograms.
Evidence
14The evidence in this trial was heard on one day and was of relatively short compass. The prosecution called evidence from 3 police witnesses and tendered a total of 93 photographs, an unmarked floor plan of the Wollert property, a floorplan marked by the witness Sergeant Johns, the exhibit log from the day of execution of the warrant and the botanist certificate. The evidence was not disputed. To this extent my role as the finder of fact is not difficult. The challenge for the court lies in the inferences that can properly and reasonably be drawn from the evidence as to the state of mind and intent of the accused to cultivate a commercial quantity of cannabis. The accused did not go into evidence.
Sergeant Tim Johns
15Sergeant Tim Johns gave evidence that on 23 February 2022 he was on duty and left the Mill Park police complex at approximately 5.48pm to attend the Wollert Property to execute a search warrant in his possession. The police members involved on this day were himself, Senior Constables Saleh, Wilson, McWhirter and Houghton.
16Sergeant Johns had shortly before, received information from Senior Constable Saleh that there a person had entered the premises through the rear garage. Upon arrival at the premises at approximately 6.04pm, he directed Senior Constable Houghton to the rear of the property and the rest of the team approached the front door. Senior Constable Saleh forced entry and Sergeant Johns, and Senior Constable McWhirter & Senior Constable Wilson announced their presence and entered the premises.
17Upon entry he immediately smelt cannabis and observed the usual equipment associated with the cultivation of cannabis. This included electrical equipment, black pipes, curtains over doorways, electrical ballasts or transformers and he could see bright hydroponic lights coming from some of the rooms. Sergeant Johns made his way through to the back of the house and located the Toyota Kluger in the garage.
18Together with Senior Constable McWhirter, Sergeant Johns commenced to search the premises for the person who had been seen to enter. He directed Senior Constable Houghton to remain at the rear of the premises and Senior Constable Saleh to remain at the front of the premises. He conducted a systematic search of the house moving through room by room. At this stage in his evidence Sergeant Johns referred to the photographs that were tendered and marked as exhibit A to describe the search he conducted.[6]
[6] A table of the photographs with relevant descriptions is annexed to these reasons.
19The photographs were taken during the search warrant and after the police had begun to process the scene. There are no photographs of the interior of the house as it would have been when the accused man entered or when the police entered. Sergeant Johns pointed out that in the hallway there were curtains that had been ripped from the doorways and left on the floor. He also pointed out that each room was given a number and labelled by police for ease of reference.
20Sergeant Johns went on to describe the contents of the photos, in summary the photos depict 7 rooms with cannabis plants of varying stages of maturity that were being maintained or cultivated by the use of an elaborate hydroponic system involving lights, ventilation and irrigation. In the laundry area of the house an A4 page was located that detailed a 35 day cycle for growing cannabis. There were green handwritten notes attached and the document was partly in English and partly in Vietnamese.
21It was also apparent from the photographs that the house had been modified for the purpose of the cultivation. Plasterboard had been installed to create rooms 5 and 6. Room 5 was originally the family room and room 6 was originally the meals area. One of the plasterboard walls for room 6 ran behind the island bench in the kitchen. This wall had a large number of electrical ballasts affixed with extension leads and cabling.
22There was a grow tent in the alcove that would ordinarily house the refrigerator. This tent had a fluorescent light and contained recently propagated plants. An opened 50 litre bag of fertiliser was nearby. The photographs of the vehicle driven by Mr Nguyen depict the boot area which contained 10 to 15 bags of the same brand of fertiliser. Also in the car were keys that had the car key and a remote to the garage of the Wollert property on the same key ring. Mr Nguyen’s wallet containing his driver’s licence were also located in the car.
23Photographs of the front study area of the house revealed a room with an open cupboard and bedding. There was a box of black latex gloves located on the kitchen bench. An internet dongle was also located at the property. This was connected to a camera which allowed the property to be remotely monitored. Identification documents in relation to the person who rented the house were included in the photographs. As was a screenshot from Mr Nguyen’s phone which depicted a message on the Facebook messenger app the translation of which was “I have been arrested”.
24Sergeant Johns detailed the search, location and arrest of Mr Nguyen in the far rear corner of room 5. Sergeant Johns described room 5 as like a jungle and Mr Nguyen was able to easily hide amongst the cannabis plants in that room. At the time of his arrest Mr Nguyen was wearing black gloves similar to those which were located on the kitchen bench.
25A floorplan of the house had been obtained by Sergeant Johns, this document was tendered as an exhibit. During his evidence in chief, Sergeant Johns marked the floorplan to show the following: the plasterboard walls that had been installed; the door on room 1; the room numbers designated by the police; where the accused was located; the kitchen island bench and; the pathway that Mr Nguyen would have taken from the garage to the laundry and then room 5. The marked floorplan was tendered as an exhibit.
Cross examination
26During cross examination Sergeant Johns said the entry to the property was forced, there were several bangs to the front door and this would have made considerable noise. Upon entry the first goal was to locate someone present inside the house. The curtains over the doorways were ripped down and he could not remember whether the doors to the rooms were opened or closed. He observed a door on room 1, whereas the floor plan indicated only a gap. He went through the property towards the back of the home looking in each bedroom quickly, he reached the vehicle and then went back through the house to conduct a more thorough search. He could not recall if the doors to Mr Nguyen’s car were opened or closed. They were open when the photographs were being taken.
27It was Senior Constable McWhirter who located Mr Nguyen in room 5 and that occurred with 5 to 7 minutes of the police entering the property.
28Sergeant Johns found water on the floor of the laundry and agreed there were no close up photos taken of the pump located in that room. The pump was not seized. The tap in the laundry had been turned off by the time he looked in that room. He observed black piping coming from the laundry that was connected to room 5 and no other room. There was no timer located on the laundry pump. An inactive pump with a coil of black piping was located in the central bathroom.
29It was put to Sergeant Johns that this house was a little unusual as there were to points from which the plants could be watered. He agreed that in his experience piping is moved from room to room when needed and not set up permanently for an individual room. Although Sergeant Johns had a reasonable look at the irrigation system he did not look at the whole thing. Further, he did not conduct tests on the taps or water pressure, and did not check to see if there was a mechanism to stop the water in room 5.
30It was Sergeant Johns evidence that room 5 contained plants that were like a jungle that came quite close to the doorway. He agreed that a person standing at the doorway wouldn’t be able to count how many plants there were without getting on their hands and knees and counting the pots. Sergeant Johns also agreed that the grow tent in the refrigerator cavity was completely zipped up and cannabis could not be seen within without unzipping the tent.
31Further, Sergeant Johns gave evidence that there were no fingerprints obtained on any of the items seized and none of the seized items were sent for forensic testing. It took the officers present several hours to locate and count the plants from inside the house. The plants were laid out and counted and photographed and then they were sent to the botanist to be weighed. There was no analysis of the gloves worn by Mr Nguyen all that could be said was that they were similar to those contained in the box of gloves located in the kitchen.
Senior Constable Emma Wilson
32Senior Constable Emma Wilson gave her evidence via video link. I have not given her evidence any greater or lesser weight because it was given in this format. I have treated her evidence the same as any other witness in this case.
33It was her evidence that she was involved in the execution of the search warrant at the Wollert property. Senior Constable Wilson was assigned as the exhibit log keeper. A copy of her exhibit log was tendered as an exhibit. She was present when Mr Nguyen was apprehended but she did not do this personally. Senior Constable Wilson said that she was not sure of the exact plants in room 5 but she said they were mature plants, the maturity of the plants made it difficult to see into the room and all you could see from the doorway was the plants.
34Senior Constable Wilson observed the tub in the laundry overflowing and spilling into the hallway. She also observed Senior Constable McWhirter turn the tap off and saw there was a black hose feeding water from the tub into room 5. Senior Constable Wilson did not observe a timer on the system and it appeared to her that the water was turned off and on by hand.
Cross examination
35During cross-examination Senor Constable Wilson confirmed that she went into the laundry after the accused was located and apprehended and was present when Senior constable McWhirter turned off the tap. Again she confirmed there was no timer attached to the water system in the laundry and that there was a single bit of black hose that lead into room 5 connecting to another pipe that was connected to the base of all the potted plants. Further, Senior Constable Wilson confirmed the pump was not seized as an exhibit and there was no testing on water pressure or how long the tub would take to overflow.
Senior Constable Saleh
36Senior Constable Saleh is the informant. He conducted surveillance at the Wollert address on the day of the offence. He gave evidence that he parked at a viewpoint toward the rear of the house and was there for approximately one and half hours prior to seeing a Toyota Kluger enter the laneway, open the garage and drive into the property. Senior Constable Saleh saw a male with short black hair in the car. The Garage door closed behind the vehicle and he assumed that the garage door had been controlled by a remote.
37It was at this point that Senior Constable Saleh alerted other police officers and shortly after they met him at the front door. Entry was forced and police presence was announced. Senior Constable Saleh remained generally at the front whilst the search was conducted. Initially, he was inside and he then moved to and remained in the front yard. He could smell cannabis immediately upon entry and also saw black piping consistent with other crop houses he had seen. Once Mr Nguyen was arrested, Senior Constable Saleh went to the rear of the property. Mr Nguyen was taken to the police station by other officers and Senior Constable Saleh met Mr Nguyen later at that location.
Cross examination
38During cross examination Senior Constable Saleh agreed that he had also conducted surveillance on the Wollert property on 14 February 2022 and did not see any person or the Toyota Kluger on this occasion. He also agreed that on 23 February 2022 he was parked in an unmarked police car from about 4.40pm. He was by himself in the vehicle. There was a busy road between himself and the property and from his location he was not able to see the front of the property.
39Senior Constable Saleh gave evidence that he observed the Kluger at 5.46pm and radioed other members at that time. He said that once the garage door was closed he was not able to see the vehicle. He agreed his colleagues met him at the front door and the search warrant was executed at 6.05pm. Entry was forced and there was loud banging at the front door. Senior Constable Saleh did not conduct the search initially and largely remained outside. He did a proper walk through of the property once Mr Nguyen had been arrested. He saw the camera and the Wi-Fi dongle and confirmed there was no connection between the camera and Mr Nguyen. Further, Senior Constable Saleh agreed there was no DNA, forensics or fingerprints found and the only ID documents were those located in the vehicle. In answer to a direct question he agreed that Mr Nguyen did not have any prior convictions.
Arguments of the parties - prosecution
40In his closing address, Mr D’Arcy for the prosecution submitted that the sophisticated nature of the crop house setup and aspects relating to Mr Nguyen’s involvement on the relevant day support the inference that he knew that there was a commercial quantity of cannabis being cultivated.
41Specifically, Mr D’Arcy highlighted the following features of the premises and Mr Nguyen’s involvement:
(a) Mr Nguyen entered the premises by car through the garage which is located at the back of the house. This he suggested is a person who has familiarity with the house, either by instruction or previous attendance.. Further, the remote key to open the garage door was found attached to the keys of the vehicle the accused was driving, a Toyota Kluger registered in his wife’s name. This further supports that the accused had more than a tenuous association with the property.
(b) The accused’s Toyota Kluger contained bags of potting mix which appear to be identical to an open bag of potting mix found in the house close by to some pots. The bag in the house could not be established as one brought by the accused on that day. Nonetheless, the prosecution submitted it is evidence of the practice of cultivation involving plants in several stages of growth. The accused bringing potting mix to the property supports the inference that he knew that at that location there was an ongoing process of the cultivation of significant amounts of cannabis.
(c) Even though the accused spent only a short time in the house before police apprehended him, he necessarily had to navigate through the house to the laundry, activate the irrigation system to Room 5 and then ultimately enter that room where he was apprehended. Exhibit C, the marked diagram of the house, illustrates the path the prosecution allege Mr Nguyen travelled from the garage to the laundry and then into Room 5. Even in taking this limited pathway, a person would have been able to see the significant electrical setup in the kitchen area and the obvious presence of numerous cannabis plants, at least in Room 5. Further, Sergeant Johns gave evidence that the odour of cannabis was immediate upon first entry to the property.
(d) Lastly, the prosecution submitted that it is significant that Mr Nguyen chose to hide in Room 5. This room contained twenty plants, weighing a total of 61.2 kilograms. The fact that he chose to hide in this room, where it would be hard to detect him due to the amount of plants, can support the inference that the accused knew that this room contained a significant amount of plants.
42Mr D’Arcy contended that inferences about knowledge as to quantity can be drawn from evidence of the actual quantity of the plants present, even if the accused themselves did not know that specific quantity. In support of this submission, he relied on aspects of Brooks v The Queen [2010] VSCA 322, in particular paragraphs [14] and [15].
43That case relates to the cultivation of a commercial quantity of a narcotic plant, cannabis, in which the accused appealed his conviction on the basis that he wrongfully pleaded guilty to the offence when he did not possess the requisite intention in relation to quantity. The applicant argued that he could not have had the intention to possess a commercial quantity as he never turned his mind to how many plants he was growing, because the plants were only grown to satisfy his personal use needs and the rest was provided to friends.
44At [14] and [15] the Court of Appeal found that the quantity of the cannabis present at his home, being 72 plants weighing 42 kilograms, was sufficient for a jury to draw the inference that that the applicant knew that he was cultivating an amount of plants which amounted to not less than a commercial quantity, even if he did not turn his mind to the actual amount or weight of the plants he had. In that case, the Court concluded that the quantity of plants grown by the applicant was so in excess of the minimum required to constitute a commercial quantity that it would have been perverse to infer that he did not know it amounted to a commercial quantity.
45In reliance on this authority, Mr D’Arcy submits that the sheer quantity of plants Mr Nguyen knew were in the property is sufficient to draw the inference that he knew, or was aware there was a significant or real chance, that it was a commercial quantity.
46Lastly, in relation to the evidence of good character raised on behalf of the Accused, Mr D’Arcy submitted that Mr Nguyen’s absence of prior convictions did not preclude a finding that he offended on this occasion. Good character he submitted, cannot alter proven facts, if they were found to be so proven in this case.
Arguments of the parties - defence
47Ms Joosten for defence argued that Mr Nguyen has conceded he was involved in cultivating cannabis but there is insufficient evidence to find beyond reasonable doubt that he knew or believed there was a significant or real chance that it amounted to a commercial quantity. Ms Joosten made clear that although the prosecution can rely on inferences to prove that Mr Nguyen had the intention to cultivate in a commercial quantity, the key issue was whether this was the only reasonable inference open on the facts. If there was another reasonable view of the facts consistent with Mr Nguyen’s innocence then the prosecution will not have proven his guilt beyond reasonable doubt and I must acquit him of the commercial quantity charge.
48Ms Joosten submitted that it was open on the facts to infer that Mr Nguyen did not know or have an awareness of the significant or real chance that he was cultivating not less than a commercial quantity. Ms Joosten contended, this alternative inference can be drawn from the following :
(a) It can only be established on the evidence that Mr Nguyen was in the house for a maximum of about 18 minutes before he was apprehended by police. The actual time was likely even less than this accounting for time to exit his car and enter the house from the garage. There is no evidence that he attended the premises prior, or that he was in any way connected to the ownership or the financial upkeep of the property. He was not detected there during previous surveillance of the property, nor were any personal items linked to him found at the property. The limited time frame would not be enough for Mr Nguyen to appreciate the scale of the cannabis cultivation in the house.
(b) Exhibit C, the marked floor plan of the direction travelled from the garage to the laundry to Room 5, helps illustrate what Mr Nguyen could have seen inside the property from the time he entered through the garage to the time he was apprehended in Room 5. Ms Joosten submitted that it is clear from the floor plan that Mr Nguyen must have walked through the kitchen and into the hallway area near the kitchen bench. She submitted that there is no evidence to establish Mr Nguyen entered any other rooms of the house. Lights were on in Rooms 1 to 4 but these were set using timers. There was no evidence that the pump to these rooms, located in the central bathroom, was activated nor was there any other evidence of recent activity in those rooms. Rooms 6 and 7 were located in the part of the house near Room 5 where the accused was found, but it can’t be established that he saw what was contained in these rooms. Room 6 had a door and Room 7 was concealed with a zipped cover. If Mr Nguyen was in the vicinity of the laundry, he would not necessarily have been able to see features of the cultivation setup which might support an inference as to knowledge or awareness of the scale and therefore the quantity. Even if Mr Nguyen did see the elaborate electrical setup in the kitchen, this doesn’t necessarily allow for a person to appreciate the quantity, particularly if you were only in the house for a matter of minutes. There was no evidence that he set it up. Further, Sergeant Johns wasn’t able to say whether doors to the other rooms were opened or closed when he entered the property. He accepted some rooms did have curtains over them which had been taken down by police. It’s possible that that these curtains and doors obscured from view, what was inside. Based on the floorplan, Rooms 3 and 4 were located in an alcove which likely further obscured the view even if the entrances were not concealed. The electrical setup in this area may also not have been visible from Mr Nguyen’s possible vantage points due to the structure of the walls.
(c) Though Room 5 where Mr Nguyen was found, did contain a large number of mature cannabis plants, a person standing at the entrance of the room would not necessarily appreciate how many were in there due to the size of the plants closest to the entrance and they would not be able to assess the total weight. There is no evidence to suggest that Mr Nguyen entered Room 5 at any other point besides to hide in there upon hearing police enter. Further, defence submitted that it is feasible that Mr Nguyen chose to hide in this room because it was the closest to him from his position in the hallway or near the laundry.
(d) Potting mix was found in Mr Nguyen’s car, but there’s no evidence he placed it there and in circumstances where Mr Nguyen admits to cultivating cannabis, this doesn’t add much to what can be inferred about quantity.
(e) The evidence led about the pump in the laundry doesn’t prove Mr Nguyen turned it on. Ms Joosten highlighted that the pump was not seized and no tests were conducted to see how long it would take for the tub to overflow. Further, police were monitoring the house for only just over an hour before they entered the property. During this surveillance they were not able to see the front of the house. In this time period, or prior, it is possible that someone other than Mr Nguyen entered the property and turned on the pump. The fact that there was no evidence that Mr Nguyen had house keys nor access to the CCTV system further supports the suggestion that other people had access to the property and could have turned on the pump. Even if Mr Nguyen did turn on the pump, it does not support an inference in relation to knowledge of quantity. That pump in particular only irrigated Room 5.
49Finally, in relation to the case of Brooks relied upon by the prosecution, Ms Joosten submitted that the circumstances were different to the present case and did not offer assistance about the inferences that could be drawn. Crucially, unlike Mr Brooks, Mr Nguyen was not living at the property. Realistically, the duration he spent in the property can only, on the evidence be about fifteen minutes. Based on this short time period alone, there is enough to raise reasonable doubt about how much cannabis Mr Nguyen could have known was being grown on the property.
50Ms Joosten reminded the court that in circumstances where Mr Nguyen was only in the house for a very short period of time and has admitted cultivation, the higher threshold was a heavy burden for the prosecution to discharge. Further, that he had the requisite intention in that very short timeframe or an awareness of a significant and real chance he was cultivating not less than the commercial quantity, was not the only reasonable inference to be drawn.
Accused failure to give evidence
51Mr Nguyen did not give evidence in the trial. This is his right and I cannot draw any adverse inference from the fact that he did not give evidence. I cannot use the fact as an admission or to fill in any gaps in the evidence. The fact he did not give evidence proves nothing at all.
Good character
52Mr Nguyen is a man of good character. The evidence of the informant was that he has no prior convictions. I can use this fact when determining the likelihood that Mr Nguyen committed the offence charged. Generally a person of good character is unlikely to commit a criminal offence. This doesn’t mean I must find Mr Nguyen not guilty if I accept he is a person of good character. This fact doesn’t alter proven facts and a person who has previously been of good character can commit a crime for the first time
Circumstantial evidence
53The prosecution’s case against the accused is entirely circumstantial. As such, the prosecution relies on evidence of circumstances, not as proving a fact directly, but as pointing to the existence of a fact. The prosecution asks me to draw inferences from those facts. I direct myself that I must take care when drawing conclusions from indirect evidence. I should consider all of the evidence in the case, and only draw reasonable conclusions based on the evidence that I accept. I must not guess. In determining whether a conclusion is reasonable, I must look at all the evidence together. I must take care not to jump to conclusions. Inferences are logical deductions or conclusions from facts.
54In this case, I cannot return a verdict of guilty unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. That is because a reasonable doubt will necessarily arise where any other inference consistent with innocence is reasonably open on the evidence. An alternative hypothesis does not have to be ‘equally open’ or ‘equally compelling’ in order to give rise to a reasonable doubt as to guilt. Such a doubt will arise where any other inference consistent with innocence is reasonably open on the evidence.
55A hypothesis must be ‘reasonable.’ A ‘reasonable hypothesis’ must possess some degree of acceptability or credibility. A hypothesis will not be reasonable if it is fanciful, impossible, incredible, not tenable or too remote or tenuous. For an inference to be reasonable, it must rely upon something more than mere conjecture.[7]
[7] The Queen v Baden-Clay (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [14]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18].
56I can only convict the accused if satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect.
Elements
57In order to prove its case, the prosecution must prove beyond reasonable doubt the elements that I outlined earlier.
58Element three is in issue and this element has two parts.. First the prosecution must prove that Mr Nguyen cultivated not less than a commercial quantity of cannabis. Second, they must prove that Mr Nguyen intended to cultivate not less than a commercial quantity of cannabis. A commercial quantity of cannabis is 100 plants or 25 kilograms.
59In determining whether or not the accused intended to cultivate not less than 100 plants or 25kg I need to decide if I can draw an inference from all of the evidence in the case that he had this intention. I may be able to draw this inference if I find that the accused knew or believed that he was cultivating not less than that amount of plants. However, I do not need to find that the accused actually knew he was cultivating not less than a commercial quantity to draw this inference. Proof that the accused was aware that there was a significant and real chance that he was cultivating not less than 100 plants or 25kg is also capable of sustaining the inference that he intended to cultivate the requisite quantity of plants.
60It is important that I do not draw such an inference unless I am satisfied that it is the only inference that is reasonably open in the circumstances. If any other reasonable explanation is available then the prosecution will not have proved this third element beyond reasonable doubt.
61It is the prosecution who must prove beyond reasonable doubt that the accused had the relevant intention. So if I am not satisfied that the accused knew or was aware of the likelihood he was cultivating not less than a commercial amount of cannabis and there is no other basis on which I can infer that the accused intended to cultivate that quantity then this third element will not be met.
62The question I must determine is whether on all the evidence the only reasonable inference I could draw was that Mr Nguyen intended to cultivate a commercial quantity of cannabis on 23 February 2022 at the Wollert property. Put another way, has the prosecution been able to exclude any other reasonable inference open on the evidence as to Mr Nguyen’s state of mind as it relates to quantity.
Findings
63Each of the three witnesses called for the prosecution were police officers who I find gave credible and reliable evidence. Further, this evidence was not challenged by the defence, rather defence counsel used cross examination to highlight aspects of evidence supportive of the defence case. In these circumstances I accept the evidence of the witnesses and I accept the contents of the exhibits.
64The question for the court to determine is what inference can be safely drawn from those facts by way of inference. To assist me with this task I make the following particular findings of fact:
(a) Mr Nguyen was located at the house at 2 Edenvale Boulevard, Wollert on 23 February, 2022.
(b) Senior Constable Saleh observed the accused arrive at the premises at 5.46pm. The accused entered the premises in his Toyota Kluger via a garage accessible from a rear laneway. The accused used a remote, later found in his car on his key ring, to open and close the garage.
(c) Senior Constable Saleh notified other police of his observations and a search warrant was executed at the property. Entry was forced via the front door at approximately 6.04pm.
(d) The accused was in the premises for no more than 18 minutes in total and was in the house for some time less than 18 minutes.
(e) Upon entry police smelt cannabis and observed electrical equipment, black pipes, curtains over doorways, electrical ballast or transformers and that there were lights on in some of the rooms.
(f) The water tap in the laundry was turned on. The black pipes from the laundry connected to black pipes in room 5. Senior Constable McWhirter turned the tap off.
(g) The photographs tendered and marked exhibit A are a true depiction of the house after the police had commenced to process the scene.
(h) The police identified 7 rooms that contained various quantities of cannabis plants at various stages of maturity.
(i) The house had been modified and set up to grow cannabis. There was a sophisticated electrical system in place with lights operated on timers. There were pumps and black pipes used for watering in both the laundry and central bathroom. The watering system in the central bathroom was inactive. There were no timers for these pumps. There was ventilation.
(j) The botanist certificate tendered and marked exhibit E accurately quantifies the amount and weight of the plants located as follows: room 1 contained 16 plants that weighed 28.40 kilograms; room 2 contained 39 plants that weighed 15.05 kilograms; room 3 contained 64 plants that weighed 1.14 kilograms; room 4 contained 17 plants that weighed 28.2 kilograms; room 5 contained 20 plants that weighed a total of 61.20 kilograms; room 6 contained 16 plants that weighed 49.40 kilograms; and room 7 contained 39 plants that weighed 39.5 grams.
(k) A total of 211 plants that weighed approximately 183 kilograms were located growing at the Wollert house.
(l) Mr Nguyen was found hiding amongst cannabis plants in the rear corner of room 5. He was arrested by police within 5 to 7 minutes of police entry to the property. At the time he was wearing black gloves.
(m) A search of the house was conducted. The police located various items including: a box of black latex gloves in the kitchen, an opened bag of fertiliser near room 7, bedding in the front room; an internet dongle connected to a camera; identification documents for the accused in his vehicle; an A4 page with instructions for a growing cycle written in both English and Vietnamese and 10 to 15 bags of fertiliser of the same brand in the boot area of the accused’s vehicle.
(n) A floorplan marked up by the informant to include the rooms with designated numbers and the path the accused would have taken to be in the laundry, is accurate.
(o) There were no fingerprints, DNA or other forensic evidence located by the police.
(p) Surveillance on the Wollert property on 14 February 2022 was conducted. No person nor the Toyota Kluger were seen on this occasion.
(q) Apart from his presence on 23 February, 2022 the accused had no other connection with the property, the rental arrangements or the owner.
(r) Mr Nguyen does not have prior convictions.
Conclusions and verdict
65The prosecution rely on the circumstances of the accused’s entry to the premises, his possession and use of a remote attached to his own car keys, fertiliser bags in his boot that are the similar to those found in the house, the sheer volume of cannabis and the electrical equipment set up that must have been seen by Mr Nguyen as he walked to the laundry and the fact that the room in which he chose to hide had cannabis plants of such an amount that he would be hard to detect. Mr D’Arcy submitted that in combination these factors support the inference that the accused knew or was aware that there was a significant and real chance that there was not less than a commercial quantity of cannabis and he intended to cultivate in that amount.
66The evidence relied upon by the prosecution that Mr Nguyen had and used the remote, had the bags of fertiliser in his boot, would have walked past and likely seen a hydroponic set up and hid in a room with 20 very large cannabis plants are factors consistent with his intention to cultivate cannabis. Further, a finding that he turned on the tap in the laundry and was wearing black gloves similar to those found in the kitchen, would also be consistent with an intention to cultivate cannabis. However, even though I might have suspicions as to Mr Nguyen’s knowledge or awareness of quantity, I am not satisfied that these factors allow me to draw the inference contended for by the prosecution as to the accused’s state of mind in this regard.
67Taking into account all of the evidence in the case and in particular the factors raised by the prosecution, in circumstances where Mr Nguyen has pleaded guilty to a cultivation of cannabis simpliciter, I do not find that it is possible to draw a reasonable inference that accused intended to cultivate not less than a commercial quantity of cannabis, or that he was at least aware there was a significant and real chance that there was not less than a commercial quantity of cannabis.
68For completeness, I consider the case of Brooks relied upon by the crown is distinguishable. The applicant in Brooks had admitted living at the premises and growing the cannabis subject of the charge. He had admitted knowledge of the cannabis at his premises. In the present case, there is no evidence that Mr Nguyen had knowledge of the amount of cannabis or the scale of the set up at the Wollert address. I am not satisfied the scale of what he must have seen in room 5 and importantly, the time he had to make the observations would have allowed him to conclude that the quantity of plants present was so in excess of the minimum required to constitute a commercial quantity that it would be perverse to infer that he did not know it amounted to a commercial quantity.
69Mr Nguyen was only in the premises for a very short period of time. There is no direct evidence of a connection with the owner of the property, no connection to the rental of the property, no evidence of entry into any of the other rooms, and no DNA or forensic evidence that would link Mr Nguyen with the property or the items within it. In these circumstances I find there is an alternative inference reasonably open on the facts, that is Mr Nguyen was intentionally cultivating cannabis in less than a commercial quantity.
70Having made these findings it follows that I am not satisfied beyond reasonable doubt of Mr Nguyen’s guilt in relation to charge one. Accordingly, I find Mr Nguyen not guilty of charge one cultivation of a narcotic plant in a commercial quantity and guilty of charge two cultivation of a narcotic plant.
Annex
| Photo | Description |
| 1 | Photo of outside of house |
| 2 | Closer up photo of outside of house |
| 3 | At front door looking down hallway |
| 4 | Another 2 steps inside, same view down hallway – shows ripped down curtains on floor |
| 5 | Different angle from doorway, doorway to front study on the right |
| 6 | angled backwards to front door and into front study |
| 7 | front study, with mattress/bedding on the floor |
| 8 | standing inside front study, looking back out into hallway |
| 9 | of the hallway, from the front door down the hallway |
| 10 | similar to previous, doorway to Room 1, first room on left as you enter – can see sticker with “room” on doorway – used to label rooms for the exhibit keeper |
| 11 | Room 1, can see sticker on the right, shows entry and cannabis plants staked with bamboo stakes |
| 12 | Room 1 again, cannabis plants with bamboo stakes, can see the flowering buds, getting towards their maturity, 1.4-1.5m, can see electrical cords that go above the photo to the various lamps |
| 13 | back in the hallway, looking from the front door to the back of the house, doorway on RHS see some light coming through, this is Room 2 |
| 14 | Room 2, can see the sticker on the RHS of doorway |
| 15 | closer up of sticker of Room 2, can see hallway and curtains |
| 16 | Room 2, medium size plant, hadn’t started to flower, no buds, more waist height, 1-1.2m |
| 17 | Same room, Room 2, same light shades at the top McWhirter was taking the photos, he is 6’4, taking photos from higher angle |
| 18 | taken from about doorway of Room 2, recess off to the left of that hallway which contains 2 bedrooms, central bathroom in the middle, open door is Room 4, Room 3 is to the left of the recess Ventilation parts, are they more clearly shown in 18? Yes, can see them coming out of Room 4 |
| 19 | taken from hallway, where that recess is, can see open front door, can see into open door of Room 3 |
| 20 | closer up of electrical equipment in recess |
| 21 | electrical cords feeding into roof above photo 20 |
| 22 | Room 3, slightly blurry, sticker on RHS, much earlier stage of growth, 30-50cm tall, without any flowering heads |
| 23 | looking back out to open door, same plants individually potted |
| 24 | inside Room 3, clearly image of individually potted plants |
| 25 | Doorway of Room 3 looking towards Room 4, underneath power boards previously referred to |
| 26 | has Room 4 in middle of page, from entrance of Room 4 |
| 27 | Same entranceway to Room 4 |
| 28 | also same room, focusing more on the plants, quite mature plants, with flowering heads, probably 1.5m tall |
| 29 | also Room 4, entrance with open door, electrical power board on the left |
| 30 | open door to central bathroom inside the recess between Rooms 3 and 4 |
| 31 | different angle on same bathroom, Was there water in the bath? Cannot say |
| 32 | from inside that bathroom, black tub with some black piping, blue object is a submersible pump, generally used to feed water through the pipes to water the plants How does that work? Does the tub get connected to a tap? Yes How is that pump activated? Not working at the time, across the hall in the laundry there was a working pump, did not make a note if there was a timer supplied to this pump, but did for the laundry pump |
| 33 | above the shower in that shower, black piping coming from ceiling, shower head in middle of photo |
| 34 | central bathroom, it’s a black bottle of fertiliser, commonly used to fertilise and cultivate cannabis plants |
| 35 | bath in central bathroom with black piping, no water in there |
| 36 | outside the recess, looking to the back of the house, room on right with black pipes coming out is the laundry |
| 37 | slightly deeper into the house, room in the right with the cupboards is the laundry, open door further down is room 5, plasterboard constructed room |
| 38 | taken from the hallway, facing south, looking into open laundry door, can see a black tub in the middle, full to the brim of water |
| 39 | laundry, shows the sink overflowing of same brand of fertiliser previously seen |
| 40 | again in the laundry, shows type written instructions Could you read those? Looked at the original, clearer than this one, it is 35 day cycle for growing cannabis, has some green hand written notes attached, these are partially Vietnamese and partially English |
| 41 | in the laundry, black tub is what I referred to, had the water, not clear on this photo, there is water all over the floor to the right where the black piping is Is the piping connected to the tub? The piping on the ground? Cannot say for sure |
| 42 | master bedroom’s ensuite |
| 43 | Laundry |
| 44 | Door in laundry to the outside |
| 45 | from the hallway, can see open laundry on the right, looking back down to rear of the house |
| 46 | closer up of the hallway, partly into Room 5 |
| 47 | slightly blurred photo of what is in Room 5 as you enter |
| 48 | more of Room 5, plants are very mature plants, large flowering heads, taller than other plants, closer to 1.6 and 1.8m |
| 49 | picture within Room 5 Did you go into that room more particularly? Yes, accused was located in this room, got on hands and knees and crawled through the pots, located in back corner of photo 49 Could you see him from the doorway? No, couldn’t see him at all |
| 50 | in hallway outside Room 5, looking towards rear of the property, facing east |
| 51 | close to last photo, slightly different angle, towards back of the house, open door which is a walk in pantry, behind kitchen, not being used to grow plants What about the other doorway in photo 51? Everything on left of the photo is the walk in pantry, on RHS can see a desk with power drill, that is the kitchen, was originally an island bench, which a constructed room connected, which is Room 6 |
| 52 | photo from hallway looking into pantry, electrical ballast and various bags/equipment seen |
| 53 | electrical ballast shown more clearer, a globe, and some black exhaust ducting, same as spoken of earlier |
| 54 | photo from hallway, just outside that walk in pantry, looking towards back of the house, |
| 55 | island bench seen, brown wall is a constricted plasterboard wall with a large number of electrical ballasts affixed with extension leads and cabling |
| 56 | standing next to bench, looking towards back of house, open door is Room 6, number of garbage bags blocking the hallway, to the right of these is a curtain, labelled a sun room on the floor plan |
| 57 | shows entrance to constructed room, being Room 6, LHS are numbers 3, 14, 16, 17, these were already present when police arrived |
| 58 | closer up of plants within Room 6, similar stage of growth to Room 5, quite large plants, mature with flowering heads, similar height to Room 5 plants |
| 59 | same as above |
| 60 | outside the door to room 6, down to back of the house, facing east, shows garbage bags referred to, sliding door that goes to sun room |
| 61 | taken from same point as 60, looking back, shows refrigeration alcove, no fridge there, has a grow tent instead, small tent with fluorescent light above, recently propagated juvenile plants, also 50L bag of fertiliser, had been opened Immediately behind that bag, are those pots? Yes |
| 62 | close up of the grow tent, what is the small green item? It swivels to allow air to flow inside the container |
| 63 | close up of fertiliser bag, top LHS it has been opened |
| 64 | photo of electrical ballast attached to plaster board wall above island bench |
| 65 | facing east, towards back of house, into the garage area, can see 2 open doors to the Kluger, square object is a police enclosed trailer used to remove the plants |
| 66 | photo of Kluger |
| 67 | Same vehicle from different angle, doors and hatch open |
| 68 | Same vehicle, showing the contents of the boot What do you say about the contents and the item found inside the house in 63? Items in the boot were identical to items in 63, 50L bags of Coco potting mix, visually you can see 7 bags in the boot, I noted in my notes there are 10-15 bags, other bags underneath those in the photo |
| 69 | photo of same item from different angle, shows rego of car |
| 70 | driver’s seat area |
| 71 | inside the vehicle driver’s seat |
| 72 | just above centre console, can see a wallet and set of keys |
| 73 | same keys as above photo, been moved onto the passenger seat for the photo Believe the remote with red button is a Kluger key, the other item, tested that, it opens the garage door of property |
| 74 | same wallet, opened with driver’s licence Was that licence checked with Vic Roads? Yes, no irregularities |
| 75 | front study, open cupboard, with bedding in the foreground |
| 76 | closer up of some items in that front study |
| 77 | sun room referred to previously, at the rear of the house, shows accused after apprehension |
| 78 | photo of some exhibits seized from another operation, can be put aside |
| 79 | looking through sun room back into the house, garbage bags at the end, curtain covering the door |
| 80 | large box of black latex gloves from kitchen bench, Accused was wearing black latex gloves when arrested, similar to those in the box |
| 81 | decking area just outside sun room, shows the gloves worn by the accused when arrested |
| 82 | exhibits from this operation, use the whiteboard to reference which exhibits they are, code for Mill Park response unit, operation name Brisket and date, plants called exhibit 1, come from Room 1 |
| 83 | Same whiteboard, these photos were taken in the garage after removing the Kluger, exhibit 2 – plants from Room 2 |
| 84 | Same location, Exhibit 3 – Room 3 plants |
| 85 | Exhibit 4, Room 4 plants |
| 86 | Exhibit 5, Room 5 plants |
| 87 | Exhibit 6, Room 6 plants By this stage, power had been cut to the property, relying on torches |
| 88 | Exhibit 7, recently propagated plants from Room 7 refrigerator alcove |
| 89 | internet dongle located at the property, gives internet access What was it connected to? A power source, operates as wifi within the house Small camera located in the hallway, on a shelf on the left either before or after Rooms 3 and 4 Combination of camera and dongle gives the ability to remotely monitor the goings on of the property |
| 90 | copy of the passport supplied to Tien Bach, who was the owner of the property, by the person that rented the property |
| 91 | Lease documents |
| 92 | As above |
| 93 | photo of screen on accused’s phone, photo from Messenger app, with a message in Vietnamese |
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