Director of Public Prosecutions v Nguyen
[2021] VCC 463
•27 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01088
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIET HONG NGUYEN |
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JUDGE: | TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12-13 April 2021 | |
DATE OF JUDGMENT: | 27 April 2021 | |
CASE MAY BE CITED AS: | DPP v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 463 | |
Judgment
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Subject:CRIMINAL
Catchwords: Judge Alone Trial – one charge cultivation of a narcotic plant (commercial quantity)
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic) ; Criminal Procedure Act 2009 (Vic); Jury Directions Act 2015 (Vic)
Cases Cited:R v Garlick (No.2) (2007) 15 VR 388; R v McKittrick [2008] VSCA 69, Murray v R (2002) 211 CLR 193, Mannella v R [2010] VSCA 357; Knight v R (1992) 175 CLR 495
Verdict:Not guilty
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Singh | Office of Public Prosecutions |
| For the Accused | Ms E. Millar | Victoria Legal Aid |
HER HONOUR:
Background
1On 20, 26 and 28 April 2020 police visited 28 Karol Street in Alfredton, near Ballarat. These visits were made between 9.20 PM and about 10 PM. During the visits the police saw Mr Nguyen on a bed in a bedroom watching television, asleep on the bed in the bedroom, and, on one occasion, mopping the hallway floor. Police heard a humming sound and on one of the occasions smelt cannabis.
2On 30 April 2020, police executed a warrant at the address at about 6 AM. Mr Nguyen was found asleep in the bedroom; seven rooms in the house were being used to grow cannabis. There was an electrical bypass and a hydroponic setup with lights, a watering system and exhaust fans. A total of 204 plants was found; they weighed 52.4 kg. None of these facts are controversial in this trial.
Procedure
3The accused, Mr Nguyen, is charged on indictment with one charge of cultivating a commercial quantity of cannabis pursuant to s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’) between 20 April 2020 and 30 April 2020.
4Mr Nguyen made application to have his trial heard by a judge alone without a jury. The prosecution did not oppose this course. On 2 February 2021 a different judge of this Court made an order pursuant to s 420D of the Criminal Procedure Act 2009, that Mr Nguyen’s trial proceed by way of judge alone, without a jury.
5Section 420S provides that a trial by a judge alone commences when the accused pleads not guilty on arraignment before the judge. On 12 April 2021, Mr Nguyen was arraigned and pleaded not guilty to the charge. This event commenced the trial before me, a judge sitting alone.[1]
[1] Section 420S Criminal Procedure Act 2009.
Procedure
6In this trial, I may make any decision that could have been made by a jury. Any such decision I make has, for all purposes, the same effect as a verdict of a jury.[2] My judgment in this case must include the principles of law I have applied as the trial judge, as well as the facts on which I have relied.[3]
[2] Section 420E Criminal Procedure Act 2009.
[3] Section 420F Criminal Procedure Act 2009.
Fundamental principles or ‘initial directions’
7Mr Nguyen is presumed to be innocent of the charge brought against him. In order to prove his guilt, the prosecution must prove beyond reasonable doubt each element of the charge. Mr Nguyen does not bear any obligation or any onus to prove anything.
8The standard of proof that is applicable in every criminal trial applies equally in this trial. The standard is proof beyond reasonable doubt and this is the highest standard known to the law.
9I have tried in this case to, as much as possible, put myself in the same position as a jury. Other than the prosecution opening and defence response I did not consider any material in the case until it was presented, through witnesses as evidence in court. I did not form any view of the case until I had heard all of the evidence.
Elements
10In order to prove its case, the prosecution must prove beyond reasonable doubt each of the following elements:
(i)Mr Nguyen intentionally cultivated a particular substance; and
(ii)That it was a narcotic plant that Mr Nguyen cultivated; and
(iii)Mr Nguyen intentionally cultivated not less than a commercial quantity of narcotic plants.
11The third element has two parts to it. The first is that Mr Nguyen cultivated not less than a commercial quantity of cannabis. The second is 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.
12‘Cultivate’ is defined in s 70(1) and includes to:
(a) sow a seed of a narcotic plant; or
(b) plant, grow, tend, nurture or harvest a narcotic plant; or
(c) graft, divide or transplant a narcotic plant.
13However, it has been held that the definition of ‘cultivate’ is inclusive and should not be read as exhaustive, nor read down.
14‘Narcotic plant’ is defined as “any plant the name of which is specified in column 1 of Part 2 of Schedule Eleven and includes a cutting of such a plant, whether or not the cutting has roots.”[4]
[4] s70(1) Drugs, Poisons and Controlled Substances Act 1981 ; Criminal Procedure Act 2009.
15I note that it is not sufficient for the prosecution to prove that the accused intended to cultivate plants, and those plants in fact weighed the specified amount, or that the accused intended to cultivate plants which "might approximate" the specified quantity. The intention must be to cultivate at least the specified quantity. [5]
[5]R v Garlick (No.2) (2007) 15 VR 388; R v McKittrick [2008] VSCA 69.
Issues in this case
16Mr Nguyen did not dispute that he was in the house on each of the occasions the police visited before the execution of the warrant on 30 April 2020. However, he denied that he was involved in cultivating cannabis in any way. In this case, Mr Nguyen did not dispute that the plants at the house were cannabis plants and therefore narcotic plants. So element two is not in dispute.
17In his defence response, Mr Nguyen indicated that he did not take issue with:
(a) that he was staying at the address during the alleged period;
(b) that there was a hydroponic setup installed in various rooms of the house; and
(c) the plants located by police at the address were cannabis.
18Further, it was not an issue in this trial the quantity of plants found at 28 Karol Street (204 plants weighing 52.14 kilograms) amounted to a commercial quantity of cannabis. So the first part of the third element, that the quantity of the cannabis cultivated at the address was a commercial quantity, was not in dispute either.
19So the issues in this case are:
(i)did Mr Nguyen cultivate any cannabis?; and if yes
(ii)did he intend to cultivate not less than the commercial quantity?
20At the outset, it was agreed that the alternative offence of cultivate ‘simpliciter’ was available if I were to be satisfied that the answer to the first question was ‘yes’ but the answer to the second question was ‘no’.
21The case was a circumstantial one. The question was whether on all the evidence the only reasonable inference I could draw was that Mr Nguyen cultivated the cannabis at 28 Karol street. It was necessary that that inference be the only reasonable inference available on the evidence, the corollary of that being that the prosecution was able to exclude any other reasonable inference open on the evidence as to what Mr Nguyen was doing in the house.
Evidence
The prosecution case
22The evidence was heard on 12 and 13 April 2021. Mr Singh, who appeared to prosecute, called three witnesses.
Sergeant Brent McGuire
23Sergeant Brent McGuire gave evidence that he went to 28 Karol Street in Alfredton on 20 April 2020 with his colleagues Detective Senior Constable Aggert and Detective Senior Constable Howard. It was about 10 PM. Sergeant McGuire looked through a gap in the window covering and saw an Asian male of approximately 40 years sitting up on a bed watching television. While making this observation, he could also hear a humming sound coming from the house.
24Sergeant McGuire went to the house again six days later on 26 April 2020. The same colleagues accompanied him. This time, they made visit at about 9:20 PM. Again he looked through the gap in the window covering and saw the same man he had seen on 20 April, this time, asleep on top of the bed coverings on the bed in the bedroom. On this occasion, Sergeant McGuire smelled what he thought was cannabis and heard the same humming sound he had heard on the previous visit.
25On 28 April 2020 Sergeant McGuire and Detective Senior Constable Howard visited the address for a third time. They went at about 10 PM at night. Sergeant McGuire gave evidence that he and Detective Senior Constable Howard looked through a window near the front door and saw the same man he had seen on the bed on the previous visits. This time however the man was mopping the floor of the foyer of the house.
26Sergeant McGuire then obtained a warrant to search the property which he, with others, executed at 6 AM on 30 April 2020. Other police were assigned the roles of exhibit log keeper and photographer. The exhibits created by those police were tendered through Sergeant McGuire in this trial. The property seizure record sets out eleven items that were seized from the property and became Exhibit A. Thirty-three photographs, accompanied by a list identifying the location of each photograph became Exhibit B.
27Sergeant McGuire then gave evidence that when they executed the warrant the same man he had observed the 20th, 26th, and 28th of April was present. He was in the bedroom. It was 6 AM.
28He then gave evidence that the police found seven rooms in the house where cannabis was being grown. Different rooms had plants with different stages of growth. There was a hydroponic system operating, which included lights with shades over them, electrical cords and, watering systems and transformers set up to regulate the power and watering. Each room was set up in this way. There was an electrical bypass meter set up in the front bedroom and an electrical bypass mains in a pit near the front footpath.
29The police also found a set of keys in a jeans pocket. On that key ring was a remote for the garage door. Inside the garage the police found a Holden Cruz registration 1RR 4PL.
30Sergeant McGuire also gave evidence that a wallet was located. Near the wallet there was a ‘LinkT’ tollway receipt in Mr Nguyen’s name.
31Sergeant McGuire observed Mr Nguyen being taken to the Ballarat police station by his colleagues, and a tow truck removing the Holden Cruz from the garage. Sergeant McGuire said that the Holden was later searched and there was no evidence recovered from it.
Cross examination
32Sergeant McGuire’s evidence was substantially unchallenged.
33Under cross examination he confirmed that on 20 April 2020 the only thing he saw the man in the bedroom doing was sitting and watching television. He agreed that the recycling and rubbish bins were on the nature strip ready for collection. He agreed that he had looked at rubbish in those bins and what was in them was consistent with the refuse of someone who did not normally live at the address. Both bins were about half full. Neither bin contained any item relevant to cultivating cannabis. There were some food containers and empty plastic water bottles.
34Sergeant McGuire agreed that on the next visit on 26 April 2020 the only thing he saw the man doing was sleeping on the bed. He was asked questions about what he had seen on the 28 April visit. He said the only thing he had seen was the man mopping the hallway of the house and that there was nothing in the hallway. Sergeant McGuire confirmed that on all three occasions he visited the property prior to the execution of the warrant there were no cars parked outside the property.
35He confirmed that on the execution of the warrant the accused man was asleep in the bedroom and in a state of undress. He confirmed that the only item of relevance to the cannabis that was located in the bedroom was the electrical bypass. The electrical bypass was inside the wall of the bedroom with something over the top of the wall. Sergeant McGuire agreed that there was nothing else in the bedroom related to the cannabis crop: no lamps, pots, fertiliser, grow solution, gardening tools, scissors or anything of that nature. He confirmed that the kitchen showed signs that it had recently been used as a regular kitchen. There were dishes in the dish rack, some food items but nothing in that room related to the cannabis.
36Sergeant McGuire also confirmed that there was nothing in the garage connected with the cannabis cultivation, and that although the car was searched there was nothing in it that was connected to cultivation of cannabis. Police did not seize any telephones as part of the search. There were no receipts relating to cannabis equipment found on the accused or in his car.
37In re-examination, Sergeant McGuire said that in his experience it was unknown to him that rubbish bins put out for collection would contain incriminating materials. He said he was not able to tell how long the house had been occupied or how long someone had been staying there.
Detective Senior Constable Nathan Hildebrand
38Detective Senior Constable Hidebrand was the informant. He was part of the reconnaissance visit to 28 Karol Street on 26 April 2020, but he had remained in the car. His next involvement was on 28 April 2020, but again he stayed with the car parked nearby the house.
39Detective Senior Constable Hildebrand was part of the team that executed the warrant on 30 April at 2020. He gave Mr Nguyen his caution and rights (with the assistance of an online interpreting tool) and conducted an interview with him at the Ballarat police station where he was assisted by a Vietnamese interpreter.
40The disc of the record of interview and an accompanying transcript that was edited by agreement between the parties was tendered and became Exhibit C. I will return to my analysis of that interview later in these reasons.
Cross examination
41Again, Detective Senior Constable Hildebrand’s evidence was essentially unchallenged.
42Detective Senior Constable Hildebrand confirmed that prior to conducting reconnaissance at the property he had made inquiries about who owned the house and whether there was any tenancy agreement in relation to it. He confirmed the results of that search showed that the accused did not own the house; he was unable to confirm who owned the house. Although there was a rental agreement in relation to the house it did not show the accused was part of that rental agreement.
43Although utilities were connected to the property, the accused man was not named on any of those utilities. He said that although he had made initial inquiries about people who may have been connected to the house and there was some intelligence gained there was nothing of sufficient value to pursue other parties. He confirmed that there were no surveillance devices, tracking devices, telephone intercepts, or indeed any evidence of any communication between the accused man and anybody else in relation to the cultivation of the cannabis at the house.
44He agreed that there was no evidence of the accused being present at the house prior to 20 April 2020. He confirmed that he had done a drive-by on the house on 27 April 2020 but did not make any observations of the accused on that occasion.
45He agreed that none of the surveillance of the house was done during the daytime.
46He agreed that there were no witnesses who ever observed Mr Nguyen doing anything with the cannabis plants at any point. He also agreed that there was no evidence to link the accused to the installation of the electrical bypass.
47He agreed that the ‘Linkt’ toll road account document in Mr Nguyen’s name had a post office box listed as the accused’s address (see photograph 24). He agreed that he had not made any enquiries in relation to the post office box.
48He agreed that there was no DNA, or fingerprint testing of any of the items found in the grow rooms at 28 Karol Street and that therefore there was nothing forensically linking the accused to the grow rooms nor anything in those rooms. He agreed that the keys were found in Mr Nguyen’s pants and that those pants were found in the bedroom where the accused was asleep. He agreed that there was no cash found in the accused’s wallet, no receipts in relation to a cannabis hydroponic setup found on his person or in his car and that there was no direct evidence of the accused being involved with the rooms that had the cannabis in them.
49Detective Senior Constable Hildebrand also confirmed that Mr Nguyen had said during his record of interview that he had been going back and forth between Ballarat and Melbourne during the time he was staying at Karol Street. In particular, he had told police he had attended a Coles supermarket on Furlong Road in Cairnlea and bought petrol from a 24-hour petrol station on Station Road in Deer Park the day before he was arrested. Detective Senior Constable Hildebrand agreed that he did not make any enquiries to follow-up anything that the accused had said in his record of interview.
50In re-examination Detective Senior Constable Hildebrand said that he had not followed up CCTV of Coles in Furlong road or made other enquiries about the 24 hour petrol station because, in his view, such inquiries would have yielded nothing of evidentiary value.
51Finally, the witness said that in the view of the police the hydroponic set up was already done before the accused became involved.
Emily Sowter, Botanist
52Ms Emily Souter is a forensic botanist at the Victoria police forensic sciences Centre. Her expertise was unchallenged. Ms Sowter produced a botanist’s certificate which became Exhibit D. Ms Sutter had examined the seized cannabis plants found at the house. She stated that there were 204 plants found at the house and that the total weight of those plants was 52.14 kg.
53Ms Sowter said that the plants ranged in size and that a good deal of them were at least two weeks old. Ms Sowter was not asked any questions in cross-examination.
54Ms Sowter was the final of three witnesses on which the prosecutor relied his case.
Defence case
55Mr Nguyen did not call any evidence.
Submissions of the parties
Prosecution
56In his final address, Mr Singh, who appeared to prosecute, submitted that there is no other rational conclusion available on the evidence, than that Mr Nguyen cultivated the plants in the house where he was staying and, moreover that he had the intention to cultivate not less than the commercial quantity, that was in fact found in the house.
57A significant portion of the prosecutor’s closing address was concerned with the issue of why Mr Nguyen’s account in his record of interview (that he was merely staying at the property and did not engage in cultivation) could be safely rejected. This approach was consistent with the prosecutor’s duty to eliminate any reasonable hypothesis consistent with Mr Nguyen’s innocence.
58To that end, the prosecutor gave considerable attention to what he described as lies in the record of interview. The prosecutor identified a number of questions and answers in that interview, that he said, when viewed with all the other evidence in the case, were relevant in two ways. First, they should bear upon my assessment of the credibility of the Mr Nguyen’s answers in his interview as a whole (going to eliminate an alternative hypothesis consistent with innocence) and, second, that certain answers to questions contained in essence the accused’s acknowledgement that he had dealt directly with the equipment in the hydroponic setup.
59First, the prosecutor said that the Questions and Answers to Questions 4, and 32 to 33, when Mr Nguyen stated he had only ‘got there the night before’ was a lie and was contradicted by uncontested police evidence that the accused man was there at the property from at least 20 April 2020. Other Questions (at 38, 39, 42, 43, 44, 46, 55) demonstrated Mr Nguyen’s persistent evasiveness when asked direct questions by police. The prosecutor submitted that the evasiveness, and what he submitted were lies, demonstrated in the answers to those Questions, significant matters for the determination of the credibility of the accused as he states the ‘alternative hypothesis’ (consistent with innocence) in his interview. The prosecutor submitted that Mr Nguyen was evasive about a number of topics including his source of income, and how he survives financially in Australia, he submitted that the accused being of no fixed address and without income is precisely the sort of person who might be preyed upon and susceptible to an offer to ‘crop sit’ in such an arrangement. The prosecutor submitted that the accused was evasive when asked at Questions 72 and 73 about his knowledge of the hydroponic system.
60The prosecutor’s submission went further, however, in relation to the answer to Question 78. At Question 78 Mr Nguyen is asked whether he has ‘touched any of the equipment that is used for growing the drugs in that house’. To which he replied:
“The – the – the - things in the house, because I clean up and things like that, of course I’ve touched the things in the house.”.
61The prosecutor submitted that this is a clear reference to the accused touching the equipment on the hydroponic setup and that if the accused had touched that equipment he is a participant and he is involved in cultivation.
62The prosecutor also pointed to Mr Nguyen’s persistent reluctance about, and evasion of, questions about the people he had dealt with in relation to the property (see Questions 116, 117). The prosecutor submitted that Mr Nguyen was aware of exactly what was happening in house and that he was participating in that endeavour. The prosecutor submitted that answers to these questions are not only evasive but undermined more generally the credibility of Mr Nguyen’s answers in the rest of interview.
63The prosecutor submitted that the Crown case was that Mr Nguyen was a crop sitter; that the plants were at least two weeks old, so Mr Nguyen had joined the enterprise after the plants began to grow.
64The prosecutor acknowledged that there were no telephone intercepts and no other surveillance evidence, other than the three nights and the fourth morning that were observed by police. It is unsurprising, he submitted, that there was no cultivation rubbish in the rubbish bins so that there was nothing in that point. The prosecutor acknowledged that there was no evidence to link the accused man with electrical bypass and stated that that is why he was not charged with that offence. He said the lack of receipts is explicable by the fact that the prosecution case is that the hydroponic setup was already in place before Mr Nguyen’s involvement and that he had no role to play in its establishment.
65He submitted that further police inquiries at Coles or the 24-hour petrol station were not made because they would not have yielded any relevant evidence in the case. Had he been going to Coles or other places it had nothing to do with whether he was a crop sitter. The prosecutor’s ultimate submission was that there was only one proper inference available from the evidence and that the alternative hypothesis, that the accused man was merely at the house to stay to sleep and to clear up rubbish, was not a reasonable hypothesis available to me on the evidence.
66The prosecutor returned to the question and answer to Question 78, acknowledging that by itself did not mean much, but in the context of all of the evidence in the circumstantial case it was an important piece of evidence: he acknowledged that this question and answer was probably the highest the prosecution case got in terms of actually making any direct link between the accused man and the hydroponic equipment. He submitted that there was no alternative hypothesis reasonably open.
Defence
67Ms Miller, who appeared for Mr Nguyen, submitted that the prosecution had not discharged its burden to prove beyond reasonable doubt that Mr Nguyen cultivated any cannabis. Much less, that the prosecution could prove he had the intention to cultivate not less than a commercial quantity of cannabis. She submitted that knowledge of the hydroponic setup in the house did not amount to evidence of cultivation, notwithstanding the broad definition of that term.
68Defence counsel submitted that the only evidence was that at Karol Street between 20th and 30th of April there was a house with cannabis growing in it and that Mr Nguyen was observed on three occasions there prior to the execution of the warrant. On two of those occasions he rested in bed and on the other he was in the hallway of the house mopping. She noted that on the date of the execution of the warrant Mr Nguyen was asleep. Defence counsel submitted that what I was being asked to do was to draw an inference that the accused must have been cultivating cannabis in reliance on the fact that he was at the house and there was cannabis in the house. She submitted that other than being in the house there was no other evidence to support that inference.
69Defence counsel acknowledged that the definition of cultivation in section 70(1) of the Act was non-exhaustive and not to be read down. However, she submitted that there was no evidence of any act to establish Mr Nguyen’s participation in any act of cultivation.
70Mr Nguyen did not own the property, there was no lease connecting him to the property, nor any connection between him and any of the utilities of the property. There was no forensic evidence, no DNA, no fingerprints on any equipment. Further, there were no objects in his possession, on his person, or in his car. (It was admitted that the car in the garage was his).
71There was no surveillance, other than what was observed at the house on three occasions, no telephone intercepts and no tracking device evidence. There was no evidence of any communication with the accused with any other person in relation to the crop. His phone had not even been seized. There were no receipts linking the accused man to any purchase in relation to the hydroponic setup or maintenance (consistent with the alleged role of a crop sitter). Further, defence counsel submitted there was no evidence Mr Nguyen was ever actually paid. Defence counsel submitted that the prosecution case can’t prove that Mr Nguyen cultivated anything at all let alone prove the intention to cultivate a commercial quantity. She submitted that there was no evidence as to Mr Nguyen’s knowledge of the amount of cannabis in the house.
72Ms Miller submitted that the inference that Mr Nguyen cultivated the cannabis at the property needs to be the only reasonable inference available. She submitted that I should first ask myself whether the inference was in fact reasonable given the lack of evidence on the question. However, if I were to find that that inference were reasonable I must also find that there is an alternative inference available on the evidence: that Mr Nguyen was simply using the property to live in for a period. She submitted that this was a perfectly reasonable inference.
73Defence counsel submitted that although Mr Nguyen sometimes gave indirect answers in the record of interview his answers made it clear what his position was in relation to the property. Moreover, that the evidence of the other witnesses (such as when the bins were put out for collection) was supportive of Mr Nguyen’s answers in his record of interview. Defence counsel drew my attention to answers in the record of interview where Mr Nguyen clearly stated that he was not allowed to do anything in relation to the hydroponic setup. She noted that in relation to the mopping, the accused had said that he had taken water from the kitchen to undertake that task. (Questions 48 and 65).
74Defence counsel submitted that the answer to Question 78, on which the prosecution placed some significant reliance, should not be treated as an admission to touching hydroponic equipment. Counsel submitted that the answer to this question is ambiguous. Mr Nguyen does not say what it was that he touched.
75The accused submitted that in dealing with the answers and record of interview I should have regard to the fact that the interview was interpreted from the Vietnamese language and that this made it more difficult to draw subtle meaning from the language at Question 78.
76Counsel submitted that the answer to Question 85 in the interview when Mr Nguyen is asked whether his instructions included tending to the cannabis crop he replied:
“they did not allow me to do that sort of thing because they didn’t think that I was doing a good job so they didn’t”.
77Counsel submitted that the alternative inference on these facts, being Mr Nguyen’s statements in his record of interview were generally consistent with the evidence that he had a PO Box in Melbourne and that he sometimes travelled to Melbourne to pay bills. Defence counsel submitted that apart from watching TV, some cleaning and sleeping in the house there was no evidence of any further activity by Mr Nguyen at the property. Counsel submitted that the spaces where the accused was observed, being the bedroom and the hallway, contained no equipment and only personal items. She submitted that there was no evidence that the mopping had any connection with the cannabis.
78Defence counsel submitted that police had not followed up enquiries with Coles in Furlong Road or the petrol station in Deer Park, and that this was unfortunate because such evidence would have supported Mr Nguyen’s account of how he was spending his days elsewhere. She said that the police interviewing the accused had said at Question 87 “so tell me where you went so I can go and verify that during the day.”. Counsel submitted that the police ought to have completed those tasks even if it were to add no evidentiary value to the prosecution case.
79Counsel noted that at Question 53 of the record of interview the accused had said that he had misunderstood the earlier question about when he had arrived at the property. She said that the alleged evasiveness of the accused in his record of interview was largely about requests to implicate others which can be understood as other than a desire to not implicate himself. Counsel submitted that even if I were to accept Mr Nguyen initially lied to police about how long he had been at the house all that would occur would that be that I would be entitled to give his answers in his record of interview little or no weight but then what I would be left with is the accused man sleeping at the house and mopping with his current garage and his putting out rubbish night time.
80Defence counsel submitted that really the prosecution was asking the court to rely on an inference drawn from the fact that cannabis was in the house, and therefore the accused man must have been cultivating that cannabis. Counsel urged me not to rely on that inference as proof beyond reasonable doubt of the charge and also submitted that I ought not exclude the reasonable hypothesis, consistent with innocence, that is rendered by the accused’s questions in his record of interview. Counsel submitted that the prosecutor had not discharged his burden of proof beyond reasonable doubt of either of the two elements in dispute.
Legal submissions and directions of law
Character
81It was agreed by the parties,[6] that the accused was entitled to the benefit of a “good character direction.” Mr Nguyen came before the court aged 44 years and had no prior convictions. I can use this fact in two ways. First, as a person of good character Mr Nguyen is generally thought to be more trustworthy than other people. Second, I can apply this fact when determining the likelihood the that the Mr Nguyen committed the offences with which he is charged. In this case, I must take the accused’s good character into account when considering Mr Nguyen’s answers in his interview with police, and whether I find what he said to be honest and believable. Further, it is generally believed that a person of good character is unlikely to commit a criminal offence. The corollary of that is that a person of good character can still commit a crime for the first time.
[6] Conceded by defence as uncontroversial.
Accused not giving evidence or calling witnesses
82In this case, Mr Nguyen chose not to give evidence. Nor did he call witnesses. It is the prosecutor’s obligation to prove guilt beyond reasonable doubt and the accused is not required to give evidence or call any witness. The fact that he chose not to in this case does not fill any gaps in the evidence and does not strengthen the prosecution case.
Record of interview
83By reason of Mr Nguyen’s answers in his record interview, two possible versions of what happened are available. The issue I must decide is not which version I accept but whether the prosecution has negatived Mr Nguyen’s version as a reasonable possibility.[7]
[7] Murray v R (2002) 211 CLR 193.
84If I do not accept Mr Nguyen’s account, but I think it might be true, I must acquit because I have a reasonable doubt about the prosecution case.
Circumstantial Evidence
85This was a circumstantial case. That being so I must be careful when drawing conclusions from indirect evidence. I must consider all of the evidence in the case and only draw reasonable conclusions based on the evidence that I have accepted in determining whether a conclusion is reasonable I have looked at all of the evidence together.
Inferences
86To find Mr Nguyen guilty, his guilt must not only be a reasonable inference on the evidence, it must be the only reasonable inference which can be drawn from the circumstances established by the evidence.
87If there is any reasonable explanation of the circumstances that is consistent with Mr Nguyen’s innocence I must find him not guilty.
88I find that there are competing inferences that arise out of the evidence in this case. I note that 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 doubt will arise where any other inference consistent with innocence is reasonably open on the evidence. [8] Reasonable doubt will arise where any other inference consistent with innocence is reasonably open on the evidence.
[8] Mannella v R [2010] VSCA 357; Knight v R (1992) 175 CLR 495.
Unreliable witness
89The prosecutor identified a number of what he characterised as lies in the record of interview. In essence these were the answers given by Mr Nguyen as to how long he had been sleeping at the house. These answers, so the prosecution said, were contradicted by the unchallenged evidence of the police surveillance prior to the execution of the warrant.
90Another category of answers in the record of interview was characterised as ‘evasiveness’ and they were questions and answers dealing with Mr Nguyen’s relationship to the people who set up and managed the hydroponic set up and the property, and his payment for doing so. I have already identified those questions and answers and the arguments put in relation to them in my summary of the prosecutor’s address.
91The prosecutor expressly eschewed reliance on the incriminating conduct provisions of the Jury Directions Act 2015 (Vic).[9] The prosecutor submitted that I should take into account the lies and evasiveness in the record of interview generally going to the credit of Mr Nguyen, moreover that the lies and evasiveness give rise to an obligation for me to treat the evidence as unreliable evidence pursuant to section 32 of the Jury Directions Act.
[9] T 61.9.
92Section 14 of the Jury Directions Act requires me to give the requested direction unless there are ‘good reasons for not doing so’. Here, I have not applied the direction in section 32 of the Jury Directions Act. First, I note that contains a non-exhaustive list of matters that may give rise to the obligation to direct on unreliability. The prosecutor did not rely on any of those matters, rather, he relied more generally on lies and evasiveness. I have already dealt with what I find are, at their highest, ambiguous answers in the interview. Further, any credibility issues that arise are patent in that there is nothing that the hypothetical jury (or I in the present case) would need to learn before being able to properly assess the credibility of the interview. Further, I am also aware of the cases that warn against instructing a jury that the accused be treated as unreliable.[10] Had there been a jury in this case, there was nothing that would prevent them from assessing the reliability of Mr Nguyen’s statements in their true context. It is not like the case of the prison informer where the jury need to be apprised of the context of the witnesses’ statement in order to properly assess credibility. I therefore find there are good reasons for not engaging section 32 of the Jury Directions Act unreliability warning in this case.
[10] R v Salama [1999] NSWCCA 105.
93Defence counsel submitted, and was supported by a fair submission from the prosecution, that in determining this case I should remind myself to avoid the risk of the improper use of evidence consistent with the direction of section 23 of the Jury Directions Act. In considering the Mr Nguyen’s answers in his record of interview I have borne in mind that there are all sorts of reasons why a person might behave in a way that might make the person appear guilty and that even if Mr Nguyen did lie in the record of interview or evade questions in that interview I must not use that evidence simply to conclude that he is guilty of the offence charged.
Findings, reasoning and verdict
94The Crown case was that the accused was a crop sitter, as opposed to the organiser of the hydroponic setup. By this I understand that the prosecution case alleges that Mr Nguyen did not establish the set up or control it but was engaged in a caretaking role. Such a caretaking role, if accompanied by the relevant acts, can and regularly does amount to cultivation for the purposes of a charge pursuant to section 72A of the Drugs Poisons and Controlled Substances Act.
95There has to be evidence, either directly, or by way of inference, that establishes the accused did one or more things that satisfy the broad range of acts contemplated by the non-exhaustive definition of ‘cultivate’ in the Act. Of course, that evidence can take the form of inferences drawn from a circumstantial case.
Findings of fact
96First, I find that each of the witnesses called for the prosecution case was both credible and reliable. They were largely unchallenged. There were few, if any facts in dispute. The controversy in the case is what inference is to be safely drawn from those facts by way of inference. I make the following findings of fact:
(i)the accused man was at the house on 20, 26, 28 and 30 April 2020;
(ii)while at the house, he slept in a bedroom, watched television in the same bedroom, and mopped the hallway area of the house;
(iii)there was a cannabis crop of not less than the commercial quantity growing in the house during the 10 days the accused was in the house;
(iv)the cannabis crop was established prior to that ten-day period;
(v)the cannabis crop was part of hydroponic setup with timers, a watering system, fans, lights, and electricity bypass, part of which was partly concealed in the bedroom where the accused slept;
(vi)the cannabis crop was in seven rooms in the house and created sound, light, and an odour;
(vii)the accused’s car was in the garage and his key had the remote controller to that garage on it;
(viii)there was a receipt with the accused’s name on it for toll roads;
(ix)there were rubbish bins with ordinary household rubbish in them placed on the curb on bin night;
(x)there were ordinary household items in the kitchen such as food and dishes.
97In finding those facts, I have not ignored the many absences of evidence established by defence questioning of the witnesses. Rather, I have identified the facts from which the prosecution submits I can safely infer, beyond reasonable doubt, that the accused cultivated cannabis in not less than a commercial quantity.
98In addition to these facts, I have the answers the accused gives in his record of interview. I have considered the content of the record of interview carefully.
99The prosecutor does not rely on those answers as incriminating conduct in the positive sense that they should be added to the list of facts on the prosecution case from which I may draw an inference that the accused was cultivating cannabis at the property. Rather, I am being asked to find that the accused’s answers in that record of interview are so unreliable or incredible that I cannot infer a reasonable alternative hypothesis consistent with innocence on the basis of those answers.
Findings about the record of interview
100I will now deal with my analysis of the questions and answers in the record of interview.
101I will do this by dealing with questions and answers into broad categories as outlined by the prosecutor. First, lies. Second, evasiveness.
102Helpfully, the prosecutor set out in a document titled ‘Notice of alleged lies’ prior to the trial. The questions he referred to were Questions 32 to 33, Question 50, Question 40, and a further question, Question 4 was added in the course of the hearing. I have reviewed those questions and answers and all of the questions and answers in the record of interview.
103In relation to Question 4, Mr Nguyen says, in relation to the allegation ‘no no I just only got there’ then at Question 5 ‘I knew nothing about electricity’ . These two questions it seems to me are consistent with the prosecution case that the accused man arrived after the hydroponic setup and the electricity that ran it was established. Mr Nguyen’s answers at Questions 32 - 34 do suggest that he was perhaps telling police that he had only been at the property since 7 PM the night before, such a proposition being in conflict with the police observations on the three earlier dates. However, and applying the direction in section 23 of the Jury Directions Act, there were, by that time, good reasons why the accused man would be trying to minimise his contact with an enterprise that has attracted police attention and which he knew to be unfolding in the house in which he slept. I still regard it as possible, that the accused thought he was only being asked about the immediate period before the execution of the warrant. And that his answers were truthful in that regard. At Question 53 the accused said that he misunderstood the question and that his answer was that ’yesterday I went to that house at that time then police came the following day’.
104Dealing with the second category of answers, that is, evasive answers, the prosecutor took me to a number of passages where the accused was asked in essence to identify the people who were behind the hydroponic setup at the house and to provide details of how they can be contacted. I agree that the accused evades those questions repeatedly. However, I find that there are potentially good reasons for his doing that, unconnected to his own liability, and that evading those questions does not detract, or at least not fatally, from his other answers in the interview.
105I am also mindful and invoke the principles relating to good character set out earlier in my assessment of the answers in the interview.
106The prosecutor placed significant emphasis on Question and Answer 78. The accused is asked:
“first of all, have you touched any of the equipment that is used for growing the drugs in that house?”
107The accused answers, through the interpreter:
“The – the – the things in the house , because I clean up and things like that, of course I’ve touched the things in the house.”
108It is clear that the accused did at least some ordinary things in the house: sleep; watch television; put the bins out; mop. In his answer, he does not identify what things in the house he touched. The word ‘equipment’ is not adopted in his answer. That may be quite intentional or may be a feature of question and answer moving to and fro via an interpreter. Grammar and vocabulary in translation, particularly simultaneous oral translation, is , even when done competently, inexact. I find that the answer to Question 78 is ambiguous. I do not find that this statement is evidence that the accused man touched hydroponic equipment in the house.
Reasons and verdict
109In conclusion, clearly Mr Nguyen engages in evasive answering, and some possible lying, I find there may have been reasons for lying that are reasons other than his guilt of the offence in question, such as misunderstanding, or fear of the consequences of implicating others. He may have wanted to minimise his contact with this obviously unlawful operation.
110Is the inference that the accused engaged in cultivation at the house reasonable and open on the evidence? Taking into account all of the evidence in the case and the circumstances of Mr Nguyen’s presence there with an elaborate hydroponic setup and a commercial quantity of cannabis I find that it is possible to draw a reasonable inference that the accused was in the house in the role of crop sitter and as part of that role he did some act or acts of cultivation.
111However, I am not satisfied that the evasive answers, or answers characterised as ‘lying’ by the prosecutor are sufficiently destructive of Mr Nguyen’s credit such that the inference available on his answers in the record of interview, and submitted as a reasonable, alternative hypothesis by his counsel (that is, that he merely slept at the house and did a small number of household tasks there) as unavailable on the evidence. As I set out previously, an alternative hypothesis does not have to be equal to its competitor.
112Having found the existence of an alternative reasonable hypothesis consistent with innocence, I am obliged to conclude that the prosecution has not discharged its burden to prove, beyond reasonable doubt, that Mr Nguyen cultivated cannabis at all at the property. It is not enough to say that Mr Nguyen possibly cultivated some cannabis while at the house or even that he probably did so. The standard is beyond reasonable doubt and I find that this burden has not been discharged in this case.
113The question, set out early in these reasons, being has the prosecution proven beyond reasonable doubt that Mr Nguyen cultivated cannabis, must be answered ‘no’.
114That being my conclusion on that element, it is not necessary for me to consider the second element in dispute, being whether the prosecution has proved the Mr Nguyen intended to cultivate not less than a commercial quantity of cannabis.
115The formal order of the court is therefore that Mr Nguyen is not guilty of Charge 1 on the indictment and not guilty of the alternative charge of cultivate simpliciter.
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