Director of Public Prosecutions v Pham (Ruling No. 2)

[2022] VCC 2397

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02142

DIRECTOR OF PUBLIC PROSECUTIONS

v

Tung PHAM

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JUDGE:	Judge Bayles
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2022
DATE OF RULING:	28 October 2022
CASE MAY BE CITED AS:	DPP v Pham (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2397

RULING
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Subject:CRIMINAL LAW – RULING.

Catchwords: Application for certification of the interlocutory decision – section 295(3) Criminal Procedure Act 2009 (Vic) – record of interview exclusion.

Legislation Cited:      Evidence Act 2008 (Vic); Criminal Procedure Act 2009 (Vic).

Cases Cited:DPP v Paulino [2017] VSCA 38; 54 VR 109; ZL v The Queen (2010) 208 A Crim R 325; [2010] VSCA 345.

Ruling:Application for certification of the interlocutory decision refused pursuant to s 295(3) Criminal Procedure Act 2009 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole	Solicitor for the Office of Public Prosecutions
For the Accused	Dr G. Boas	Auslex Law Group

Introduction

1This is an application by the prosecution for certification of an interlocutory decision made by me in the trial of Tung Pham. After hearing pre-trial argument in the matter, I excluded the police record of interview pursuant to section 90 of the Evidence Act 2008 (Vic). The prosecution now seeks certification of that interlocutory decision pursuant to section 295(3)(a) of the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’).

2On this application, I received written submissions from Mr O’Toole, who appeared on behalf of the prosecution, dated 19 October 2022. The prosecution also provided me with a number of relevant cases, including the decision of the Court of Appeal in DPP v Paulino,[1] and an earlier decision of the Court of Appeal in ZL v The Queen.[2]

[1] [2017] VSCA 38; 54 VR 109.

[2] ZL v The Queen (2010) 208 A Crim R 325; [2010] VSCA 345.

3It was agreed between the parties that section 295(3)(a) creates a single step test. If the evidence excluded “would eliminate or substantially weaken the prosecution case” then I must certify pursuant to that section.

4As to the meaning of the words “substantially weaken” Mr O’Toole referred me to authorities including the decision of Justice Nettle in ZL v The Queen, and the decision of Justice Weinberg in DPP v Paulino. Whilst these two decisions are largely consistent with each other, the decision of Justice Weinberg in Paulino provides a very close analysis of the words “substantially weakened”. There, His Honour states that “substantially weakened” “clearly involves questions of degree, and matters of discretion.” The words must be read in context with the word “eliminate” and thus “suggests something not very far short of elimination, rather than merely significant, or important”. That is the test that I will apply for present purposes.

5I note that the prosecution did not contend that the exclusion of the record of interview eliminates the prosecution case, but rather that it substantially weakens the prosecution case.

6It seems to me, with the application of that test, what is required, is not so much a comparison between the strength of the prosecution case before and after the interlocutory ruling, but rather an analysis of the state of the prosecution case after the ruling. In order to do this, I must make some analysis of the prosecution case and the evidence in the matter.

7Mr Pham is charged on an indictment of seven charges. They include one charge of cultivate cannabis in a commercial quantity, one charge of theft of electricity, and 5 charges of using a false document.

Background

8Mr Pham is charged on an indictment of seven charges. They include one charge of cultivate cannabis in a commercial quantity, one charge of theft of electricity, and 5 charges of using a false document.

9The facts of the case, in broad terms are as follows. On 25 May 2021, police executed a warrant at a property at 123 Market Street, Essendon. As police forced entry to the property, they heard footsteps from inside the house running away from the front door. Mr Pham was then observed by police running towards the rear sliding door and arrested.

10A preliminary search of the property was conducted where no other person was located. During that preliminary search, an illegal power bypass was located. A more thorough search of the property then located the following –

(a)   two rooms containing a sophisticated hydroponic setup, with headlamps, an irrigation system and extractor fans installed;

(b)   20 cannabis plants from the lounge room;

(c)   8 cannabis plants from the third bedroom.

11The police investigation discovered that a lease for the property at 123 Market Street, Essendon, was applied for using the following documents –

(a)   a copy of an Australian passport photo page, in the name of Kayden Lee, which contained a photograph of the accused man Mr Pham;

(b)   the application also included a copy of a Victorian drivers licence, also in the name of Kayden Lee, containing the same photograph of Mr Pham;

(c)   a copy of a pay slip from “Nu Kitchens” in the name of Kayden Lee;

(d)   an Origin Energy gas bill in the name of Kayden Lee, which is alleged to have originally been a legitimate document, and altered by the accused using photoshop;

(e)   an Origin Energy electricity bill in the name of Kayden Lee, which is alleged to have originally been a legitimate document, and altered by the accused using photoshop;

(f)    a Commonwealth Bank of Australia account statement in the name of Kayden Lee.

12In addition to the above documents, the accused is also alleged to have provided two further false documents, purporting to identify the accused’s partner, in support of the application for the lease of the property at 123 market Street, Essendon. Those documents are:

(a)   a copy of an Australian passport photo page, in the name of Hai Chan Lan, containing a photograph of an unknown woman from the Internet;

(b)   a copy of a Victorian drivers licence in the name of Hai Chan Lan, containing the same photograph of an unknown woman.

13The above documents were provided to a real estate agent in support of the application for the lease of the property, which was ultimately granted in the name of Kayden Lee, effective from 4 January 2021.

14Mr Pham was arrested at the property by police on 28 May 2021. On the day of his arrest, he participated in a record of interview with police where he:

(a)   admitted to renting the property for approximately four or five months;

(b)   he admitted to paying rent by way of electronic transfer;

(c)   he admitted to using the false documents in support of the application for the Market Street property in the name of Kayden Lee;

(d)   he admitted to using photoshop to falsify documents located on the Internet;

(e)   he admitted to renting the property in order to cultivate cannabis;

(f)    he admitted to using old electricity and gas bills and then changing the date and name by using photoshop;

(g)   he admitted to growing cannabis at the property, which commenced approximately one month ago; he admitted to growing 28 plants across two rooms;

(h)   he admitted to installing the illegal electricity bypass by himself;

(i)    he admitted to cultivating cannabis in order to pay off a debt.

15When asked questions specifically relating to his knowledge of the quantity of cannabis at the property, he was asked: how many plants? To which he answered: 28. There were in fact 28 plants at the house.

16He was further asked: if I cut the plants out today, those 28 plants, how many kilos do you think they are? He answered: I don’t know.

17In short compass, the record of interview with police provides admissions to cultivating cannabis, theft of electricity, and each of the charges of using false document. In relation to the commercial quantity aspects of charge one, whilst the record of interview contains admissions to factual matters from which inferences may be drawn, there is little by way of any direct admission to the intention to cultivate a commercial quantity of cannabis. Mr Pham’s admissions disclose knowledge of the precise number of plants. However, by number, the plants fall well short of a commercial quantity.

18As I observed at the hearing of this application, if the record of interview were not excluded from evidence at trial, the prosecution case would be virtually overwhelming in relation to a charge of cultivate cannabis simpliciter (assuming that would apply as an alternative to charge 1) and charges 2-7. As to the charge of cultivate cannabis in a commercial quantity, I would describe the case in relation to that charge, even with the record of interview in evidence at the trial, as arguable either way.

Prosecution Case

19Without the record of interview, and the admissions contained therein, the prosecution case is significantly less strong. However, as I have stated, it seems to me that the exercise I must presently engage in is not a comparison between the strength of the prosecution case before and after the ruling excluding the evidence, but rather an analysis of the state of the prosecution case after the interlocutory ruling, with the evidence excluded.

20The prosecution case without the record of interview, would involve the following matters:

(a)   the presence of Mr Pham inside the house upon the arrival of police to execute a search warrant;

(b)   potential evidence of flight upon the arrival of police;

(c)   no other person being present in the house, nor any evidence of others attending the premises;

(d)   the patently obvious circumstance of the house being at least largely, if not entirely, a dedicated cannabis grow house with a sophisticated hydroponic set up in two rooms. The rooms were said to be dedicated for the cultivation of cannabis. They had heat lamps, an irrigation system and extractor fans to support the growth of plants.

(e)   the photograph alleged to be of Mr Pham on two false identity documents used in connection with the application for the lease of the property some 4 to 5 months prior to the execution of the search warrant, together with the common theme of the name Kayden Lee on all application documents, in addition to the two documents in the name Hai Chan Lan.

21The exclusion of the record of interview removes the direct admissions to the charges, and removes admissions to various factual matters from which inferences could potentially be drawn. However, it seems to me that on close analysis, a viable prosecution case remains, even after the exclusion of the record of interview.

22Without the record of interview, the prosecution case still has Mr Pham’s presence inside the house, his flight in response to police arrival, in combination with no other persons being present nor evidence of any others attending the property. These matters are in combination with the obvious nature of the house as a cannabis grow house, and from what I can determine from the photographs, there is little to suggest that the house was, in reality, used for any other legitimate purpose. It seems to me that these matters provide a basis for the inference that Mr Pham’s presence at the property was for the purpose of cultivating the cannabis that was found there. 

23The photograph of Mr Pham on the false document attached to the lease application places Mr Pham in connection with the property at a crucial time, being the commencement of the lease period, and the act of applying for and taking out the lease. There are also common themes running through all of the false documents, capable of linking them together and thus linking the accused to the use of all documents.

Analysis and Conclusion

24It seems to me that the connection of Mr Pham with the commencement of the lease for the property, combined with his presence on the day of the execution of the warrant are potentially two important cornerstones in a circumstantial case.

25It seems to me that there is enough evidence, in combination, to put a viable circumstantial case that Mr Pham was the person who created all of the false documents and used them to secure the lease for the property, and that he did so for the purpose of cultivating cannabis at the property. 

26From what I can gather, the illegal electricity bypass was readily apparent to police when they arrived at the property with little by way of concealment. It would be well open to argue that the inference could be drawn that Mr Pham either created the bypass or was at least aware of its use in connection with the cultivation of cannabis at the property.

27As to the commercial quantity charge, if a jury were satisfied that Mr Pham cultivated the cannabis that was located at the property, there is a range of factual aspects relating to the physical set up, from which inferences could be drawn about what his intention must have been. Assuming these observations about the state of the prosecution case, it seems to me that the case as to the commercial quantity charge is not significantly affected by the exclusion of the record of interview.

28Accordingly, following the test, and the interpretation of the words “substantially weakened”, as discussed by Justice Weinberg in DPP v Paulino, I am not satisfied that the exclusion of the record of interview substantially weakens the prosecution case in this matter and accordingly I will decline to certify the interlocutory decision pursuant to section 295(3)(a) of the Criminal Procedure Act.