Director of Public Prosecutions v Tran
[2022] VCC 1967
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00750
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| DUNG TRAN | Accused |
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JUDGE: | His Honour Judge Holding | |
WHERE HELD: | Ballarat (trial); Melbourne (judgment) | |
DATE OF HEARING: | 18 and 19 July 2022 | |
DATE OF JUDGMENT: | 11 August 2022 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1967 | |
REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW – reasons for verdict – trial by judge alone.
Catchwords: Judge alone trial - cultivating a commercial quantity – trafficking a commercial quantity – trafficking cannabis simplicity – theft – no criminal record – good character - alternative charge – guilty – not guilty - expert witness – ought to be aware – reasonable doubt – not satisfied.
Legislation Cited: Criminal Procedure Act 2009 (Vic) - Jury Directions Act 2015 (Vic) - Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Cases Cited:
Judgment: Charge 1 (cultivating a commercial quantity of cannabis) – not guilty. Charge 2 (trafficking a commercial quantity of cannabis) – not guilty. Alternative to charge 2 (trafficking cannabis simpliciter) – guilty. Charge 3 (theft) – not guilty.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P. D’Arcy | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D. Cronin and Mr S. Ranjit | Papa Hughes Lawyers |
HIS HONOUR:
1The accused Dung Tran has pleaded not guilty to the following three charges:
i.Dung Tran and his co-accused at Bacchus Marsh on the 14th day of September 2020 cultivated a narcotic plant, namely Cannabis L, in a quantity that was not less than a commercial quantity applicable to that narcotic plant.
ii.Dung Tran and his co-accused at Bacchus Marsh on the 14th day of September 2020 trafficked in a drug of dependence, namely Cannabis L, in a quantity that was not less than the commercial quantity applicable to that drug of dependence; and
iii.Dung Tran and his co-accused at Bacchus Marsh between 1 May 2020 and 14 September 2020 stole electricity belonging to Red Energy.
2The co-accused referred to in the charges is not being prosecuted in this trial.
3This trial is being tried by me as a judge-alone. An order granting an application for a judge alone trial was made on 8 July 2022 by Her Honour Judge Gwynn pursuant to s 420E of the Criminal Procedure Act 2009 (Vic) ('the CPA').
4Section 420ZF of the CPA states that s 4A of the Jury Directions Act 2015 (Vic) ('JDA') applies to a trial by judge alone. Section 4A(2) provides that the Court's reasoning with respect to any matter to which Parts 4, 5, 6, and 7 of the JDA must be consistent with how a jury would be directed in accordance with the JDA. In other words, I must apply all directions of law to myself that I would be required to give to a jury if a jury was hearing the case.
5I therefore consider the evidence in this case from the fundamental starting point that the accused is presumed innocent of the charges. The Prosecution bears the onus of proving each and every element of the charges faced by the accused beyond reasonable doubt. Proof to any lesser standard must result in a verdict of not guilty. The burden of proof is always on the Prosecution and the accused carries no burden of proof.
6I must decide the case on the evidence led in the trial and no other extraneous matters. It is for me to determine the credibility and reliability of each witness who gives evidence, and I may accept all, some or none of a witness' evidence.
7I will refer to other directions of law as they arise in the course of my reasons.
The Prosecution Case
8The Prosecution case might be characterised as being based upon a combination of circumstantial evidence.
9
It is not in dispute that a cannabis crop was grown in a newly built house at
3 Pinnacle Point Drive Bacchus Marsh ('the house'). I will refer to that premises as the house in the remainder of these reasons. Two policewomen living in the vicinity of that house were the first witnesses to give evidence in the trial.
10Breanna Whittaker gave evidence that she was a serving Senior Constable of Police who lived in the vicinity of the house. The area was a relatively new housing development and she observed from time to time the house being built, and eventually its completion around mid-2020.
11She noticed over time that no-one appeared to be living in the house. The rubbish bins were not put out, and no-one appeared to be coming and going from the house in a manner that was consistent with somebody living there.
12On 19 July 2020 Senior Constable Whittaker saw a grey Hyundai Sedan drive into the driveway of the house.[1] She noted its registration as ANC 456 and noticed the time when it drove into the garage was 3.13 pm. She also noticed the roller door was opened and then closed quickly when the door had only opened three-quarters of the way up.[2] She had seen this vehicle 'come and go' a couple of times on other occasions.
[1] T 18 L 7.
[2] T 18 L 16.
13She saw the same vehicle leave the property on 19 July 2020 and noted the time as 3.58 pm. She described the driver as a male of 'Asian appearance'.[3]
[3] T 19 L 10.
14On a windy day sometime in July she noticed 'a definite strong smell of cannabis' coming from the area of the house. In the months of July and August she noticed condensation on the front windows. She also noticed over time the blinds were never going up and down, they were always down.[4]
[4] T19 L-18-31.
15She reported this information about the house to the local Crime Investigation Unit.
16On 14 September 2020, at approximately 4.45 pm she saw a car come out of the garage of the house that she had not seen before. She described it as a 'Toyota wagon'. She noted the registration as 1SL 7P0. She noticed that there was a driver, and passenger in the rear seat, both of 'Asian appearance'. The driver was wearing a 'tradie-like' fluorescent top and she could not remember what the passenger was wearing.
17At the time she made this observation she was in the company of another Senior Constable of Police, named Karla Hunt who also lived in the area. Senior Constable Hunt telephoned another police officer, Senior Constable Gleeson, who eventually became the Informant in this matter.
18Senior Constables Whittaker and Hunt both then got into a personal vehicle and followed the Toyota Wagon onto the Western Freeway where it was travelling eastbound towards Melbourne. As they drove closer to the Toyota Wagon, Senior Constable Whittaker saw striped-coloured bags in the back seat. She observed the driver a number of times turning around to speak to the passenger.
19During the period that Senior Constables Whittaker and Hunt followed the Toyota Wagon, Senior Constable Whittaker was on the phone to other police members conveying information about the location of the Toyota Wagon. When the Toyota Wagon was in the vicinity of Caroline Springs, a police patrol car came onto the highway and pulled in front of the vehicle in which Senior Constables Whittaker and Hunt were travelling. Senior Constables Whittaker and Hunt then ceased their involvement in following the Toyota Wagon.
20Senior Constable Hunt was the second witness to give evidence. Her evidence corroborates the evidence of Senior Constable Whittaker, except that she did not observe the Hyundai vehicle ANC 456 arriving at the house on 19 July 2020, nor did she see that vehicle 'come and go' from the house on other occasions. She did, however, make the same observation as Senior Constable Whittaker, of that vehicle leaving the house at 3.58 pm on that day. She also made the same sort of observations of the house in terms of the blinds being down, no rubbish bins being taken out, condensation on the windows, and a strong smell of cannabis coming from the house in month of July 2020.
21Senior Constable Hunt gave evidence she was with Senior Constable Whittaker on 14 September 2020 and made the same observations of the Toyota Wagon leaving the house by reversing out of the driveway. She drove the private vehicle that she and Senior Constable Whittaker used to follow the Toyota Wagon and also saw the males of Asian appearance in the same positions in the car and noticed the striped bags.
22
The cross-examination of Senior Constables Whittaker and Hunt led to the same concessions being made. Neither of them had ever been into the house and so neither of them could give evidence of observations of what occurred inside the house. The description of the driver of the Hyundai could be no more specific than a male of 'Asian' appearance. In terms of the observations made on
14 September 2020, the observation commenced at approximately 4:45 pm, and neither of them could say if someone else was in the house at the time the Toyota wagon was observed leaving the house, or whether anyone else had attended or been in the house earlier that day.
23In terms of seeing the striped bags in the Toyota Wagon; both conceded it may have been that they observed only one striped bag in the boot of the vehicle.
24Detective Senior Constable Brendan Zalewski was the next witness to give evidence. He was involved in the interception of a vehicle he described as a 'Toyota Tarago' on 14 September 2020. He gave evidence, and it was not in dispute that this was a Toyota with the registration 1SL 7P0.[5] He gave evidence that another police vehicle occupied by Senior Sergeant Townsend-Booth had intercepted the vehicle in Derrimut a short distance off the Western Freeway. Detective Senior Constable Zalewski pulled his police vehicle over in front of the Toyota, got out of his car, and walked towards the intercepted vehicle. He directed the driver of the Toyota to get out of the vehicle and move towards Sergeant Townsend-Booth. He then noticed the male passenger of Asian appearance in the rear passenger seat. Detective Senior Constable Zalewski then opened the rear passenger sliding door and gave evidence that 'I was hit with a – like overwhelming smell of cannabis.' He gave evidence he was familiar with that smell because he had a history of being a police officer involved in executing search warrants on 'hydroponic grow houses… during my times at Melton CI.'[6]
[5] T 35 L 28.
[6] T 36 L 19-26.
25Detective Senior Constable Zalewski then proceeded to caution the accused but ceased that procedure when the Accused said to him 'No understand English.'
26Detective Senior Constable Zalewski then inspected the Toyota vehicle and proceeded to take 45 photographs of that vehicle. Eleven of these photos were selected and tendered along with a 'Photographs List' describing what was depicted in each photograph.[7] See Exhibit A.
[7] Exhibit A T 40 L 27.
27Senior Constable Zalewski's evidence then described in more detail what was depicted in the photographs and where some of the items depicted in the photographs were located.
28Photograph 3 shows the rear door of the vehicle open and six bags described on the Photograph List as 'clothing bags', which Senior Constable Zalewski referred to in evidence as 'beach bags' in the boot of the vehicle. I will use the term 'beach bags' in the remainder of these reasons when referring to the bags located in the Toyota.
29Photograph 5 depicts one of the beach bags on a passenger seat inside the wagon. Detective Senior Constable Zalewski conceded in cross-examination that his description of where the accused was sitting in the vehicle in his evidence in chief (namely, next to this bag on the same row of seats) was incorrect. It was clarified in cross-examination that if one regards the driver's row of seats as row one, and the next row going back towards the rear of the vehicle as row two and so on, that the bag depicted in Photograph 5 is in row three and the accused was sitting in row two when the vehicle was intercepted. In other words, there are two rows of passenger seats between the driver's row and the boot area of the wagon.
30Photographs 6, 7, and 8 show some of the beach bags after Detective Senior Constable Zalewski unzipped them and was able to look inside. Inside the beach bags were clear plastic bags that contained cannabis.
31Photograph 9 depicted a registration renewal form that was located in the front glovebox of the wagon. It was current until 11 December 2020 and recorded the owner of the wagon as Nguyen Quyen Dang of 39 Foleys Road, Deer Park.
32Photograph 10 depicts a 'Permitted Worker Permit' for Dung Tran (the name of the accused) of 30 Bigg St, St Albans. It is dated 5 August 2020 and describes the permitted role for the onsite worker as, 'Pick up – Delivery'. Detective Senior Constable Zalewski gave evidence that this document was in a 'postal bag that was located between a front and a rear seat' of the wagon. The photograph of the document had been taken at the Bacchus Marsh police station when the contents of the postal bag were emptied.[8]
[8] T 40.
33Photograph 11 depicts medical scripts issued in the name of Dung Tran also located in the same postal bag.
34Senior Constable Zalewski also gave evidence that an Adidas jacket was located in the wagon that contained a car key and a remote for a garage. These items were later handed over to the Informant Senior Constable Gleeson.
35In cross-examination, Detective Senior Constable Zalewski agreed that he opened the beach bags after the Accused had been removed from the vehicle and was sitting outside the vehicle on the ground. He agreed that aside from the smell of cannabis, there was nothing about the beach bags that indicated there was cannabis inside them. Until a person opened the bag and peeled down the sides of the beach bag, you could not actually see what was in the beach bags. Even with opening a beach bag and pulling down the sides you could not tell if the bag was full of cannabis, or whether it may have contained multiple items. For example, one could not by opening the bag exclude the possibility of there being large items such as clothing or anything else in the bag.[9] He gave evidence that the plastic bags within the beach bags were, 'Like a vacuum bag, I think, where you attach a vacuum to the side to suck the air out'.[10]
[9] 47 L 9-23.
[10] T 48 L 23 25.
36Detective Senior Constable Zalewski stated that as he wanted to preserve the contents of each beach bag for any forensic examination, he did not search through the bags. He conceded he could not comment on the 'extent' of cannabis in the bags.
37In terms of the observations he could make, he conceded that the plastic bag containing the cannabis in Photo 7 appeared 'fogged' but he could not recall whether the other plastic bags inside the beach bags that were opened were opaque, fogged, or clear.
38In re-examination, he confirmed that he noticed the smell of cannabis when he opened the rear passenger sliding door before he opened the beach bags.
39Detective Senior Constable Dwayne Wilsher was the next witness. He gave evidence that on 15 September 2020, a search warrant was executed at the house at 3 Pinnacle Point Road, which is in Bacchus Marsh. He was present when the warrant was executed and took 34 photographs of various aspects of the house. The photographs, along with a 'Photograph List' describing what the photographs depicted, was tendered.[11] See Exhibit B.
[11] Exhibit B T 72 L 27.
40His evidence concerned what was depicted in the photographs with further details of what was observed inside the house.
41Photographs 2-4 depicted a bedroom at the front of the house that showed an oblong shaped hole in the plaster wall and an electrical wire configuration inside the wall cavity that appeared to be for the purpose of 'an electrical bypass'.[12]
[12] T 53 L11.
42Photograph 5 was of one of the bedrooms towards the front of the house where there were a number of empty black pots. Detective Senior Constable Wilsher gave evidence that it appeared the pots had remnants of cannabis plants 'cut off the top'[13]. The Photograph List describes this room as 'Room 1 (harvested) with empty planter pots'. Photograph 5 also depicts three shiny metallic items that Detective Senior Constable Wilsher explained were light shrouds still with a globe attached.[14] These light shrouds were positioned on the top of some of the 'empty planter pots' with the globes facing up towards the ceiling. There was also plastic that had been 'stuck up over the bedroom window'.[15]
[13] T 54 L 12-15.
[14] 54 L26
[15] T 55 L 2.
43Photograph 6 was also of this room but from a different angle from the doorway. This photograph captured part of the ceiling area from which a number of light shrouds were hanging over the pots. These light shrouds had globes attached and were larger white coloured shrouds (referred to hereafter as the larger light shrouds) which were quite distinctly different from the metallic shrouds resting on top of the empty pots.
44
Photographs 7 and 8 depicted what was described as 'Room 2' and shows
53 cannabis plants growing in the room with the same type of larger light shrouds hanging from the ceiling in a lowered position close to the top of the plants.
45Photographs 9 and 10 are also of Room 2 depict the electrical arrangements relating to the wiring of the larger light shrouds and also a different angle of the plants.
46Photographs 11 and 12 depict the bathtub and 'black plasticky piping' coming from the bath that 'leads out to some of the pots that are in the bedrooms, as a self-watering system' involving a pump which is partly submerged in the bath.[16]
[16] T 57.
47Photographs 13 and 14 depict what was described as 'Room 3' which has further empty pots with the remnants of cannabis leaves on the floor, larger light shrouds hanging from the ceiling, and the wiring arrangements for the light shrouds.
48Photographs 15 and 16 show a 'power box of some kind with electrical cords' that is located in a linen cupboard in the hallway.[17]
[17] T 59 L 12.
49Photographs 17, 18, 19, 20, 23, 24, 29, 30, and 31 show the kitchen and adjoining dining room/living area.[18] These photographs in combination depict a quantity of empty growing pots similar to those depicted in the bedrooms, bags of rubbish with offcuts from cannabis plants,[19] two empty beach bags,[20] a pot with dirt spilling out of it, some pots with what appear to be remnants of cannabis plants inside them, a pot with electrical items in it, a greenish plastic bag with what appears to be some sort of fertilizer and some red and black bags that appear in the photographs as packaging labelled as 'Vacuum Storage Bag(s)' and which Detective Senior Constable Wilshire describes as 'vacuum packaging'.[21]
[18] 60 L 14 –61L 8.
[19] 60 L 2.
[20] Of the same description as found in the Toyota Wagon and shown most clearly in photos 29 and 30.
[21] 61 L 12.
50Photographs 33 and 34 are close ups of the 'Vacuum Storage Bags'.
51Photograph 24 shows the doorway to another bedroom described as Room 4 located at the rear of the house. Photographs 25, 26, 27, and 28 show this room also had cannabis plants growing in pots in the room with similar large light shrouds suspended from the ceiling and extensive wiring arrangements.
52Detective Senior Constable Wilsher gave evidence that on 16 September he examined items at the Bacchus Marsh Police Station that had been taken from the house and stored in a locked storage unit at the police station overnight. He detected some fingerprints on the light shrouds, and as a result contacted the Ballarat Crime Scene Service Unit who had the 'proper equipment to photograph and lift the prints'.
53When cross-examined Detective Senior Constable Wilsher conceded that in detecting fingerprints on the light shrouds, there was no way he could give evidence that would indicate from which of the four rooms in the house the light shrouds had been taken.[22] In answer to a question as to whether he had notes as to which rooms shrouds were located, he gave evidence, 'I believe I have mentioned the rooms', and proceeded to detail the numbers of shrouds found in each of the rooms referred to as rooms one to four. He could say he located seven fingerprints but was unable to comment on whether there was a light shroud in the dining room, living room or garage.
[22] T 65.
54In terms of the photographs he had taken, he conceded that other police had been in the house before him and may have opened or closed doors to the rooms and hallway cupboards in which the electrical wiring was depicted. He conceded that there were no signs of an electrical bypass until you looked into the room where the hole was cut in the plaster.[23] He also confirmed that the bathroom in which the bath was located did not contain a toilet and one would not necessarily have to enter that bathroom if one went to the toilet.[24] No photographs were taken of the toilet because there was nothing of interest in relation to the toilet.
[23] T 68 L 4.
[24] T 69 L 5.
55He confirmed that the photographs of the packaging of the vacuum storage bags indicated that 'air's sucked out' with a vacuum cleaner and he had no knowledge of a vacuum cleaner being in the house.[25]
[25] T 69 L27.
56He confirmed it looked like the remnants of cannabis had been 'chopped off' and was asked if pruning shears or cutting shears had been located in the house. His evidence was that he was not sure, but there were some items on the shelving in the hallway cupboard. He pointed out Photograph 15 and gave evidence that he believed on the second shelf 'there appears to be some kind of knife or machete, or meat cleaver' that had a white handle and on the next shelf down there appeared to be a 'set of small handheld shears' in front of the black duct tape. He did not know if there were any clearer photos, and he had no note that specifically referred to these two items being either a machete or shears. He had no specific memory of seeing shears or a machete.[26] He confirmed that he was simply trying to ascertain what the items were by looking at photograph 15, and that he was in no better position than anyone else looking at the photograph in figuring out what the items were. He conceded the items could be a number of other things.[27]
[26] 71 L 9.
[27] 72 L 9.
57The next witness to give evidence was Emily Sowter, who has been employed as a forensic scientist since 2014. She gave evidence that she has delegated powers from the Chief Botanist of Victoria for the purpose of supplying certificates under s 120 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
58On 17 September 2020 Ms Sowter received plant material from the Informant Senior Constable Sarah Gleeson. Item 1 was 53 plants of cannabis L. These plants were immature. She split the plants into three groups:
a) 41 of the plants were between 25 and 32 centimetres tall and weighed 585.1 grams;
b) 6 plants were between 35 and 40 centimetres in height and weighed 145 grams; and
c) the remaining 6 plants were slightly bigger and weighed 410 grams.
59It looked like there were three different 'ages' of plants in this group and the total weight was 1.14 kilograms.
60Item 2 consisted of 18 plants of Cannabis L which measured approximately 70 to 85 centimetres in height and were slightly wilted. They were also immature plants with a total weight of 3.57 kilograms.
61Item 3 was another 18 plants of Cannabis L of similar size to Item 2, again slightly wilted, with a total weight of 3.63 kilograms.
62Item 4 consisted of female heavily flowering branches of Cannabis L. The majority of the branches were around 60 to 70 centimetres long and they were in a slightly wilted condition. The total weight of these branches was 68.75 kilograms.
63Items 2, 3, and 4 were in a fresh to slightly wilted condition, and item 1 was in a fresh condition. Ms Sowter was asked her opinion as to the appearance of the items, given they were seized three days before she examined them, and her evidence was that it was quite reasonable to expect that if the plants had been fresh when they were seized, they would be in a slightly wilted condition upon examination, but it would depend a lot on the storage conditions.
64In cross-examination Ms Sowter confirmed that in her statement she described item 4 as female flowering branches in a wilted condition. She gave evidence that some plants in item 4 were only slightly wilted but they were wilted nevertheless. She conceded that in relation to item 4 she could not tell the exact date the branches were cut from the fresh cannabis plant because the speed at which the plant material will wilt after it is harvested depends on a lot of variables, such as the temperature and humidity in which the plant material is stored, as well as the location of storage.[28] She agreed that if the plants were stored in cool conditions, it could take five to seven days for the plants to be in a wilted condition. She gave evidence that she had experience of plants being cut and then being in a wilted condition only half an hour later, and also plants being cut from a plant and still being fresh several days later.[29] The state of the plant material upon examination depended very much on the conditions. She could not tell the exact date item 4 had been harvested.
[28] 79 L 15 -23.
[29] 80 L 1-8.
65She also conceded in cross-examination that there is usually resin on the buds of the flowering plants, and that the flowers, leaves, and stems have resin glands. The resin glands are in their highest concentration on the buds of the female flowering heads of the plants. The glands are also present in significant quantities in the leaves but less so on the stems.
66
When asked if the harvesting of the buds is a sticky and messy procedure,
Ms Sowter gave evidence that 'certainly if you're dealing with mature plants, then handling those plants … flowering heads, you'd expect … there’s some transfer of resin … because it is quite sticky, yes'.[30]
[30] T 80 L 25-28.
67In re-examination, Ms Sowter gave evidence that it was the female plants that produce the flowering heads that are the most sort after part of the plant, so cultivation of plants for narcotic purposes is usually grown from cuttings from female plants.
68The final witness to give evidence was the Informant, Sergeant Sarah Lyn Gleeson. She gave evidence that in 2020 she was attached to the Moorabool Crime Investigation Unit and in August 2020 received some information about a drug cultivation at 3 Pinnacle Point Road in Bacchus Marsh.
69At 4:46 pm on 14 September 2020 she received a call from Senior Constable Hunt regarding the house, and as a result she coordinated the investigation that involved the interception of the Toyota conveying the cannabis.
70As part of the investigation, she obtained CCTV footage from a location very close to 3 Pinnacle Point Road in Bacchus Marsh. Her evidence was that there was CCTV from two different dates, one in July and one in September, of vehicles arriving at the house.
71Her evidence was that the CCTV camera was activated by motion so that it captured vehicles travelling south on Pinnacle Point Road and 'around in front of the camera and into the garage of the address.' It did not capture the vehicles leaving the address in the opposite direction because the 'motion sensor hasn't picked up the vehicles leaving.'
72On 14 September 2020 the Toyota Estima[31] was captured on the CCTV footage arriving at the address at around 2:31 pm.[32] The arrival of the vehicle was captured but not the departure. The footage was played to the court.
[31] It is not in dispute that this is the vehicle that was subsequently intercepted conveying the ‘beach bags’ containing the cannabis – see T14 L 1-20.
[32] 85 L 14.
73The other recording depicted a date of 19 July 2020. This footage captured a Hyundai Sedan vehicle arriving at the address. Both recordings were tendered as exhibits.[33] See Exhibit C.
[33] Exhibit C – CCTV footage dated 19 July 2020; Exhibit D CCTV footage dated 14 September 2020.
74Sergeant Gleeson also gave evidence that she was at the Bacchus Marsh police station at about 6:30 pm on 14 September 2020 when the accused was brought to the station. She conducted a search of some of his property that had been brought to the station by the arresting members. She located in the accused's wallet a 'cash receipt' for the purchase of a Toyota Estima dated 8 September 2020, indicating a $1,000.00 deposit with a balance of $5,000.00 owing. The receipt was tendered.[34] See Exhibit F.
[34] T 87 and Exhibit E.
75
Sergeant Gleeson also gave evidence that she was present when a search warrant was executed at the address on 14 September 2020 at 7:39 pm. She stated entry was gained to the house using keys that had been in the
co-accused's possession. The house was a mess with grass cuttings and soil all over the house; a number of bedrooms were being used to cultivate cannabis, and there appeared to be no furnishings in the house. Sergeant Gleeson took a number of photographs herself and ten of these were tendered.[35]
[35] Exhibit F.
76It was apparent that a power bypass was in place and Sergeant Gleeson contacted Powercor to have a technician attend the house to make it safe.
77Sergeant Gleeson later arranged for an interpreter through a telephone interpreting service to assist with interviewing the accused. However, a 'no comment' interview took place.
78No DNA sample was obtained from the accused as he refused an initial request to provide a sample, and subsequent enquiries with the DNA management unit 'revealed we weren't able to obtain a post-charge pre-conviction sample from the accused.'[36] Therefore DNA analysis is not part of the prosecution case.
[36] T90 L 30.
79In relation to one light shroud, there was a match obtained from inside the light shroud with the left index finger of the accused.[37]
[37] T 91 L 11.
80On 17 September, Sergeant Gleeson removed the plants that had been taken from the house and bags of cannabis from the Toyota from the locked storage unit at Bacchus Marsh and conveyed them to the VPFSC Botany unit.
81As the light shrouds from rooms one to four were all stored together at the police station, Sergeant Gleeson could not say from which bedroom the shroud with the accused's fingerprint on it came from.[38]
[38] 92 L2.
82As a result of some questions that had been asked of Detective Senior Constable Zalewski, Sergeant Gleeson had reviewed some further photographs that he took of the Toyota at the time the accused was arrested. Without objection from the Defence, an additional three photographs taken by Detective Senior Constable Zalewski were tendered through the Informant, along with another copy of Photograph 5 that was tendered as part of Exhibit A.[39] These photographs clarified that on the second row of the seating in the Toyota wagon was a vacuum cleaner. The vacuum cleaner could only be partially seen in Photograph 5 of the photos taken by Detective Senior Constable Zalewski.
[39] Exhibit G.
83In cross-examination, Sergeant Gleeson confirmed the lease for the house was in the name of someone other than the accused. The vehicle on the CCTV footage dated 19 July is not a vehicle that is registered or in any other way associated with the accused. It is not part of the Prosecution case that the accused attended on 19 July. There was some surveillance in terms of Sergeant Gleeson driving by the house from time to time. The key to the house and the 'fob' that operated the garage 'came from the co-accused'. The accused did not have a key to the premises or a fob to the garage.[40]
[40] T96 L 16.
84When the search of the house was conducted, Police entered to determine if there were any threats and the house was 'cleared' before any photographs inside the house were taken. Sergeant Gleeson was unable to say whether before Police entered the house the doors inside the house were closed or open, as Police in searching the house before the photographs were taken, had to open doors.[41]
[41] T 96 L 20- 97 L 22.
85From the fingerprints taken there were also fingerprints attributable to two other people apart from the accused.[42] There were three people identified from seven fingerprints. There may have been other people's fingerprints among the remaining fingerprints that were not identified.[43]
[42] T98 L18.
[43] T99L17.
86There were no fingerprints from the large striped bags, the beach bags, (which were not likely to have been examined due to their texture), and no evidence of any of the accused's fingerprints on the clear plastic bags that contained the cannabis inside the striped beach bags.
87
The police cannot point to a particular day the electrical bypass was 'undertaken', or the day that any 'cannabis growing materials' were installed in the house. The first time the accused has been at the house is on the day of arrest which was
14 September 2020.[44]
[44] T 100 L 13.
88The accused has no prior convictions, has not been previously charged with an offence, and has no other pending matters.[45]
[45] T100 L 14-20.
89In relation to the CCTV footage, she confirmed her evidence in chief, that cars leaving the house in an easterly direction or entering the drive-way from that direction (which would from the right side of the screen as one looked at the footage), would not activate the camera.[46]
[46] T100 L 31 – 101 L 19.
90As to the footage that has been tendered dated 19 July 2020 and 14 September 2020, Sergeant Gleeson gave evidence that no one had undertaken any checks of the CCTV system for its accuracy.[47] It was never suggested to the Informant that someone go to whoever owned the CCTV and check the timings with their watch or phone.
[47] T 102 L 19.
91Sergeant Gleeson also gave evidence that the garage at the house was a two car garage, and the vacuum cleaner in the car was never tested to see if it was operational or whether there was dust or dirt or cannabis inside the vacuum cleaner. There was no evidence that when the Accused was arrested, he had cannabis leaves on his clothing and that Sergeant Gleeson did not know if cannabis resin would be visible. The Informant did not notice if the accused had sticky resin all over his hands.
92There was no further evidence called after the Informant gave evidence and the Prosecution closed their case.
93The accused elected not to call any evidence, as is his right.
Alternative offences and legal directions
94I then received submissions from the Prosecution and Defence as to whether there were any alternative offences, and as to the applicable legal directions that I should apply.
95It was agreed between the parties that in relation to Charges 1 and 2, if I was not satisfied beyond reasonable doubt that the accused intended to cultivate or traffick not less than a commercial quantity of cannabis but was satisfied beyond reasonable doubt of all the remaining elements of those charges, s2 39 of the Criminal Procedure Act2009 would warrant me finding the accused guilty of the alternative offences of cultivation and trafficking of cannabis simpliciter.
96In terms of the relevant directions of law applicable to the evidence in the case the parties were also agreed as to which directions had particular application beyond the standard directions. I refer to these directions in detail when explaining my analysis of the evidence in relation to proof of the elements of the individual charges.
The Prosecution case
97The learned Prosecutor, Mr D'Arcy, submitted that the evidence in the case presented a strong circumstantial case against the accused. He conceded that the evidence might be less compelling in relation to the charge of theft of electricity.
98He submitted that the house had but one purpose: a 'crop growing house'. It contained no furnishings, the curtains were drawn, there was extensive wiring with 'electrical cords everywhere', so that it would be 'immediately apparent to anyone who went into the house' that the premises was being used to grow cannabis. There was no part of this house that was set aside for any other 'normal living' purpose. Even if there was no toilet in the bathroom where the watering system was established, anyone going to the toilet would go to the bathroom and become aware of the watering system.
99
Senior Constables Whittaker and Hunt, who lived in the area, were able to smell cannabis emanating from the house, on a day some months before
14 September 2020. It could be inferred that anyone entering the house would be presented with an overwhelming smell of cannabis.
100On the 14th of September 2020, the Toyota Estima associated with the accused arrived at the premises at 2:31 pm (according to the timestamp on the CCTV footage) and was observed by Senior Constables Whittaker and Hunt leaving the address at 4:45 pm. That vehicle is associated with the accused because of the evidence of the receipt for the purchase of a vehicle of that type located in the accused's wallet when he was arrested.
101The vacuum bag packaging depicted in the photos in combination with the vacuum cleaner found in the Toyota Estima leads to the overwhelming inference that the cannabis material was compressed using the vacuum-pack method to make the cannabis more transferrable. The combination of the cannabis being in plastic bags that had been vacuum-packed and then concealed within the
'beach bags', and the off-cuts of cannabis in the house led to the inference that the accused had been involved in the harvesting the cannabis on 14 September 2020.102The learned Prosecutor argued that it was relevant to the accused's state of mind that the defence did not dispute that the accused was in the rear passenger seat of the Toyota Estima on 14 September 2020 when Detective Senior Constable Zalewski opened the passenger's door of the vehicle and was met with strong smell of cannabis before looking inside the 'beach bags'. The inference should be drawn that the accused had knowledge that cannabis was being transported in the vehicle.
103The case in relation to the cultivation charge is based upon the inference that the accused was involved in harvesting the crop. The case in relation to the trafficking charge is based upon the accused being in possession of the cannabis in the Toyota Estima. The Prosecution emphasise that a commercial quantity of cannabis is an amount not less than 25 kilograms. As the amount of cannabis found inside the beach bags in the Toyota Estima weighed 68.75 kilograms, an amount considerably greater than 25 kilograms, anyone handling that amount of cannabis would be well aware that they had cultivated or were in possession of a commercial quantity.
104The Prosecutor acknowledged that the accused had no prior convictions but submitted that evidence of good character does not alter proven facts, and this was a strong circumstantial case.
The Defence case
105Mr Cronin for the Defence agreed that the issues in dispute were the inferences that could properly be drawn from the evidence.
106It was submitted that the theft of electricity was the simplest charge to analyse in terms of what inferences could and could not be drawn, in that there was no evidence that the accused had attended the property on an earlier occasion, and it followed that there was 'no evidence he had anything to with the bypass'. There is no evidence he had anything to do with purchase of items used to set up the bypass.
107The Defence argued that the evidence relating to the fingerprint does include information as to the circumstances as to how the fingerprint was placed on the light shroud or in which room the light shroud was located. It could have been on a light shroud in a room, in room one, where there were empty pots, and deposited when moving a bag in that room, or in a variety of circumstances.
108In relation to the cultivation of cannabis, a similar submission was made. The evidence did not reveal with any certainty when the cannabis was cultivated. That is, when the cannabis was cut from the plants growing in the pots. The botanist's evidence is that some of the plants were recently wilted. However, her evidence did not determine if the plants had been harvested on 14 September 2020, or on the days or day before the accused was at the house. One could not say if there were other people in the house besides the co-accused and the accused, before the accused arrived at the house on 14 September 2020, and whether those people had performed the act of harvesting the plants either earlier that day, or on the day or days preceding 14 September 2020.
109The authorised worker permit (Photo 10 of Exhibit A) describes the accused as working in August 2020 in the field of 'PICK UP – DELIVER'. He may have had this role in attending the house on foot in September, that is, to provide the vehicle for the purpose of transporting items from the house.
110It was submitted that even if the vacuum cleaner in the car had been used in the way alleged by the prosecution, namely, to extract air out of the plastic bags in which the cannabis was packed, it did not mean he was the one involved in that process. The vacuum cleaner could have been used by others and then placed in the Toyota.
111In respect of the arrival of the Toyota on 14 September 2020, there is no evidence that the timestamp on the CCTV footage was accurate, and it could not be proved how long the accused was at the house on 14 September 2020. Defence counsel submitted there was a reasonable doubt that the accused was involved in the harvesting of the plants, and as that was the basis of the Prosecution case, the charge of cultivation must fail.
112In relation to the trafficking charge, Defence counsel conceded if the evidence established that the accused provided his vehicle in order to transport the beach bags from the house, he would be in a position where he was intending to exercise control of the bags jointly with the co-accused. The issue was what inference could be drawn as to the accused's knowledge of the contents of the beach bags. The submission being that in order to intend to possess cannabis, it must be proved that the accused knew or believed that cannabis was in the bags.
113The Defence submitted that first one could not draw an inference that the accused knew there was cannabis in the bags, and second, one could not draw an inference that the accused had knowledge that the quantity of cannabis in the bags was not less than a commercial quantity.
114It was submitted that even if the accused had some suspicion in relation to the bags, if there was a reasonable doubt, as there should be, that he was involved in packaging the cannabis, there was no way he would know what was inside the 'beach bags'. It was put that even 'despite the circumstances of the house', there was other material in the house such as fertilizer and dirt that might be transported in the bags. In the kitchen there were some beach bags that looked like they had dirt on top of them.[48] One could not see what was in the beach bags in the car without undoing the zip and even then, one would only see the top layer of what was inside the beach bags without knowing what might be at the bottom of the bag. There was no evidence that the accused ever unzipped the beach bags or had an opportunity to see what was stored inside the beach bags.
[48] Photo 30 of Exhibit B.
115The evidence did not reveal which rooms the accused had been into, as the doors to the rooms may have been closed when he was inside the house and later opened by the Police in the execution of the search warrant.
116There was nothing in the appearance of the beach bags that indicates their weight, and the evidence does not reveal which, if any, of the bags were carried or lifted by the Accused.
117The Defence relied upon the evidence that the accused had never been charged with a criminal offence in the past, and had no charges outstanding, and that it appeared he has previously been working as a delivery driver. It was submitted that there was some evidence that one might expect a person involved in the processing of this amount of cannabis to have remnants of cannabis resin on their person or clothing, and there no evidence of that sort. It was also submitted that unless one was satisfied on the evidence that the accused was involved in the packaging process. it would be speculative to infer that he was aware the beach bags contained only cannabis.
Directions of law
118As this is a judge alone trial, I must follow all applicable directions of law that I would be required to instruct a jury of in considering the evidence in this case.
119Some of the witnesses in this case gave their evidence remotely. I remind myself that the evidence of the witnesses that were given remotely must be given no greater or lesser weight by virtue of the fact that the evidence was given remotely. I draw no adverse inference to the accused or the Prosecution because the evidence was given by some of the witnesses from a remote location.
Burden of Proof
120A person charged with a criminal offence is presumed innocent until proven guilty according to law. It is for the Prosecution to prove these charges, and the accused has no obligation to prove anything. The prosecution must do this by proving each and every element of the charges faced by the accused beyond reasonable doubt. It is only upon this basis that I may find the accused guilty of a charge. As this is a trial by judge alone, it is for me to determine the facts in this case. I am required to do this by considering all the evidence presented in the courtroom, and not just the evidence that I have summarised. I need to direct myself as to what is and what is not evidence.
121In this case the evidence was comprised of oral evidence given by witnesses, in conjunction with exhibits, being various photographs, and CCTV footage that was tendered by consent through the Informant. Nothing else is evidence in the case. This includes the comments and submissions of counsel. It is my task to decide this case only on the basis of the evidence and ignore all other considerations. I am the judge of the facts, which means that I must dispassionately weigh the evidence, logically, with an open mind, not according to any passion or feelings. My duty is to consider the evidence using my intellect and not my heart.[49]
[49] Judicial College of Victoria, Criminal Charge Book at 3.16.
122I give myself the standard directions as to how I assess the witnesses' evidence in terms of their credibility and reliability,[50] although I note this was not a case where the honesty or reliability of any of the witnesses' evidence appeared to be hotly disputed.
[50] Ibid at 1.6.
123Expert evidence was given by a botanist, Ms Emily Sowter. I direct myself that ordinarily witnesses are not allowed to give their opinions in court. However, the law allows for witnesses with specialised knowledge or training to give their opinions about matters within their field of expertise to assist the trier of fact. While I am not required to accept the evidence of Ms Sowter, there was no real issue taken with her evidence, and I indicate that I accept the opinions expressed in her evidence.
124The accused did not call any evidence in this case or give evidence himself. That is his right. I remind myself that it is for the Prosecution to prove its case beyond reasonable doubt, and the accused is not required to call any witnesses or give any evidence. The onus of proving the accused's guilt always remains upon the Prosecution, regardless of whether the accused chooses to call or give any evidence. The fact that the accused did not give evidence is not evidence in the case and cannot be used in any way as evidence against him. It cannot be used to fill gaps in the evidence led by the Prosecution. It does not add or strengthen the prosecution's case; it proves nothing at all. I must not speculate about what the accused might have said had he given evidence. I must not even consider the fact that the accused called no evidence when deciding whether the Prosecution has proved the charge beyond reasonable doubt. The fact that the accused refused to consent to provide a sample for DNA analysis cannot be held against him. That was his right at law and no adverse inference should be drawn from that fact.
125
There has been evidence led from the Informant that the accused has no prior convictions. This is evidence that the accused is a person of good character.
I direct myself that it is generally believed that a person of good character is unlikely to commit a criminal offence and that I may be less willing to accept the Prosecution's allegation that the accused committed these offences, than I would be if he was not a person of good character. This does not mean that I must find the accused not guilty on the basis that he is a person of good character. The mere fact that a person is of good character cannot alter proven facts. It can only help me to determine whether or not those facts have been proven. In addition, I should keep in mind the fact that a person who has previously been of good character can commit a crime for the first time.
126A very important principle of law in relation to this case is the manner in which circumstantial evidence is to be considered, and the process of inferential reasoning. I direct myself that it makes no difference whether evidence is direct or indirect. Circumstantial evidence can be just as strong or even stronger than direct evidence. I must consider all the evidence and only draw reasonable conclusions based upon the evidence I accept. I should not guess or jump to conclusions. I can only convict the accused of a charge if I am satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt, and I must acquit the accused.
Conclusion on charge 3 - theft of electricity
127The charge of theft requires the prosecution to prove the following elements.
a)That the accused appropriated property belonging to another;
b)That the accused did so with the intention of permanently depriving the other of the property; and
c)That the accused acted dishonestly.
128It is not in dispute that electricity can be regarded as property, and that there was and electrical bypass in the house in question. No issue was taken by the Defence regarding the purpose of such an electrical bypass, being to appropriate electricity dishonestly. The issue in dispute was whether the evidence established that the accused was in any way criminally responsible for the installation or use of the bypass to appropriate this electricity.
129
The Prosecution conceded that the evidence in respect of this charge was 'less compelling'. The evidence established that the cultivation of cannabis as of
14 September had been occurring for some time in this house. In those circumstances, one would expect the electrical bypass, which was the mechanism by which electricity was stolen, to have been installed closer to the commencement of the cultivation process than at the time of harvest. Indeed, this would seem to be the Prosecution case reflected by the fact that the charge is particularised as occurring between 1 May 2020 and 14 September 2020.
130There was evidence given by the Informant that she made 'electricity checks' and established that 'there was no power supposed to be connected to the address'. She arranged to have a technician attend the address to make it safe.[51] She conceded that the Police cannot establish the particular day the electrical bypass was undertaken.[52] In any event, it was not part of the prosecution case that there was evidence that the accused attended the house before 14 September 2020. There was no evidence that the accused had been involved in the purchase of items used in the bypass or had any involvement in the establishment of the bypass on a day prior to 14 September 2020. There is no direct evidence that the accused entered the room in which the bypass was located on 14 September 2020 or had any knowledge of the existence of the bypass. Although the accused's fingerprint was found on a light shroud in one of the rooms in which there was evidence that cannabis had been, or was being cultivated, there was no light shroud in the room where the bypass was installed.[53]
[51] T 89 L23- 90 L 2.
[52] T 99 L 28- 31.
[53] Exhibit B photo 2.
131Even if I was satisfied beyond reasonable doubt that some electricity was stolen by the mechanism of the bypass on 14 September 2020, and that the accused went inside the house on this day and went into a room in which it was obvious that cannabis had been or was being cultivated, this would not be sufficient to establish his knowledge and complicity in the theft of the electricity that might have occurred on that day. The evidence in my view does not exclude the reasonable explanation consistent with innocence that the accused did not enter the room in which the bypass was installed, and had no knowledge, let alone involvement, in the theft of the electricity. I therefore find him not guilty of Charge 3.
Charge 1 – cultivation of a commercial quantity of cannabis
132The charge of cultivating cannabis in not less than the commercial quantity requires the prosecution to prove the following elements:
1.That the accused intentionally cultivated a plant;
2.That the plant cultivated by the accused was a narcotic plant; and
3.That the accused intentionally cultivated a commercial quantity of a narcotic plant.
133The law defines cultivation to include planting, growing, tending, nurturing, harvesting, and sowing the seeds of a plant. There is no dispute that Cannabis L is a narcotic plant, and the Defence did not dispute that the Cannabis L that was located in the Toyota Estima had been harvested from the house. Charge 1 was particularised as occurring on 14 September 2020, and the Prosecution case is that on that day the accused attended at the house and took part in 'harvesting' the cannabis that was later found inside the 'beach bags' in the Toyota Estima. Whilst the date is not an essential element of an offence, in this case it has some particular significance as it is the only day the Prosecution allege the accused attended the house and harvested the cannabis.
Conclusion on charge 1 – cultivation of a commercial quantity of cannabis
134I note that both Senior Constables Whittaker and Hunt do not purport in their evidence to have made any observations of the house on 14 of September 2020, before seeing the Toyota Estima leaving the premises at 4:45 pm. Both witnesses conceded in cross-examination that they did not make any observations of the house at 3 Pinnacle Point Road at any earlier point of time on 14 September 2020.[54] They could not say one way or the other whether someone else attended at that address earlier on that day.[55] Their evidence sheds no light on how long the accused's vehicle was at the house on 14 September 2020.
[54] T 24 L 23; 32 L 31.
[55] T 33 L 3; 24 L 26.
135The evidence from Sergeant Gleeson is that no-one had undertaken any checks of the CCTV footage for accuracy.[56] It would be speculative for me in those circumstances to presume the timestamp on the CCTV is accurate, and as a consequence, I reject the argument of the Prosecutor that the evidence establishes that the accused's vehicle was at the premises on 14 September 2020 between 2:31 pm and 4:45 pm. I simply cannot draw a safe inference as to how long the accused was at the house before his vehicle was observed to leave the premises at 4:45 pm.
[56] T 102 L17- L27.
136In looking at the totality of the evidence that bears on this issue as to when the plants were harvested, I must be careful not to jump to conclusions. While one might expect the harvesting and packing of the cannabis to be proximate in time to the transportation of the cannabis from the house, I must consider the possibility that the harvesting may have taken place at an earlier point in time.
137There is certainly evidence from Exhibit B from which it may be inferred that part of the harvesting process occurred in circumstances where plants were grown in rooms one to four, and then cut and vacuum packed in plastic bags. It is likely from the photographs that part of this process occurred in the kitchen area where one can see in the photographs that thicker branches of cannabis are present from which cannabis has been cut or removed.
138The evidence of the botanist confirms the more valuable parts of the plant have been placed in the plastic bags that were concealed inside the beach bags.[57] One can also see in these photographs that the vacuum storage bags were located in the kitchen area. However, the botanist fairly conceded that from her examination, she cannot determine with any degree of certainty the exact date the plants were harvested.[58]
[57] See Exhibit B photos - 18,20 ,23,24 29,30,31 and 32; and Exhibit F - photos 9 and 10.
[58] T 80 L 11.
139I also note that no implements that might be regarded as appropriate tools with which the cannabis might be cut were located in the Toyota or clearly identified in the house. The only witness to refer to such implements was Detective Senior Constable Wilsher. His evidence was that 'some kind of knife or machete' with a white handle appears in Photograph 15 of Exhibit B, 'on the second shelf from the top in the hallway cupboard'; and on the next shelf down in the same cupboard there 'appears to be a set of small handheld shears that are the dark coloured handles in front of the black duct tape.' He had no specific memory of items such as pruning shears in this house, and he conceded his evidence was based upon what he could see in Photograph 15. He had no notes that any such items were found.[59] He was in no better position than anyone else in determining what the items were in Photograph 15 of Exhibit B and conceded that the items could be a number of other things. I have examined that photograph carefully and find that I cannot determine from the photograph whether the items are tools that would normally be used to prune plants; their appearance in my view is more consistent with the type of implements that might be used in the electrical wiring process that obviously took place in that cupboard.
[59] T 70.
140While I am of the view that the vacuum cleaner in the Toyota Estima is suggestive that it was used in the process of vacuum packing the cannabis, there is no evidence that it was in the Toyota upon its arrival at the premises or that the accused transported it there or used it in packaging the cannabis.
141The fingerprint on a light shroud is in my view evidence that bears a number of possible explanations. It provides some evidence that the accused may have entered one of the bedrooms at some point and touched one of the shrouds. The Defence suggest this might have occurred when moving a beach bag. That may be a possibility, but I note the light shrouds are movable items and the fingerprint may have been deposited at some point in time before the shroud was placed into one of the bedrooms. It is speculative as to when and in what circumstances the fingerprint was placed onto the shroud. It is not clear from the evidence from which room the shroud with the accused's fingerprint on it was seized.
142The Crown case is not put on the basis that if the shroud with the accused's fingerprint on it was one of the larger hanging shrouds where plants were still growing, that this would be evidence of cultivation of those plants. The Crown case is that the accused was involved in the harvesting of the plants by cutting them in the process of the cannabis being 'vacuum packed' on his attendance at the house on 14 September 2020. In my view the accused's fingerprint on a light shroud does not assist me greatly in determining whether the accused was involved in the harvesting of the cannabis in the manner alleged by the Prosecution.
143
In examining all the evidence before me and considering it together in the way that one considers circumstantial evidence, I am unable to be satisfied beyond reasonable doubt that the accused participated in harvesting the plants on
14 September 2020, or indeed that the plants were necessarily harvested on that day, as alleged by the Prosecution. I cannot exclude the reasonable possibility that others present at the house before the accused arrived in Toyota Estima performed the harvesting of the plants, or that the harvesting of the plants might have occurred in the days before the accused's attended the house on
14 September 2020.
144I find the accused not guilty of Charge 1 – cultivation of a narcotic plant, being cannabis in not less than a commercial quantity.
145Given I cannot be satisfied beyond reasonable doubt that the accused participated in the cultivation process as alleged, it is unnecessary for me to consider the element relating to whether the quantity cultivated was a commercial quantity.
Charge 2 - trafficking of a commercial quantity of cannabis
146The Prosecution case in relation to trafficking in a commercial quantity of cannabis is put on the basis that the accused when leaving the house as a passenger in the Toyota Estima on 14 September 2020, was in possession of the cannabis concealed in the beach bags in that vehicle, and that he possessed this cannabis for sale.[60]
[60] The definition of ‘traffick’ a drug of dependence in the Drugs Poisons and Controlled Substances Act 1981 (Vic) includes ‘have in possession for sale’- See Section 70 of that Act.
147In order to prove that the accused was in possession of a drug of dependence, the Prosecution must prove:
a) That the substance in question was a 'drug of dependence'; and
b) That the accused 'possessed' that substance.[61]
[61] Judicial College Criminal Charge book 7.6.3.
148There is no issue that the substance in the beach bags was cannabis, and that cannabis is defined in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) as a drug of dependence.
149In proving that the accused possessed the cannabis, the Prosecution must prove that that the accused intentionally had the drug in his or her custody, or under his control. It is a question of fact as to whether an item is within a person's custody or control. A person may have custody or control of an item:
a) By having it on him or within reach (i.e. "in manual custody"); or
b) By having it in a location where he maintains power to 'place his hand on it and so have manual custody when he wishes'.[62]
[62] Ibid 7.6.3 [11] –[18].
150It is not necessary for the Prosecution to prove 'exclusive possession' (i.e., the right of the accused to exclude everyone else, other than those with whom he or she was acting in concert, from interfering with the drug). The accused can 'possess' a drug at common law even if there is a reasonable possibility that someone else also possessed the drug.
151In order for the Prosecution to prove the accused intentionally possessed a drug of dependence, I must direct myself in the following terms:
a) The mental element of common law possession requires the prosecution to prove that the accused intended to possess a drug of dependence.
b) The Prosecution does not need to prove that the accused intended to possess the particular drug in question. They only need to prove that the accused intended to possess a drug of dependence.
152Although the intention to possess may be proved by an admission by the accused that he intended to possess a drug of dependence, in this case, there is no such admission. The Prosecution can only succeed in proving this intention if such an intention can be inferred from the evidence.
153It will usually be possible to infer an intention to possess a drug of dependence from proof that the accused knew of the existence and nature of the substance at the time that it was possessed.
154However, the Prosecution does not need to prove that the accused knew of the existence and nature of the substance. It is possible for the requisite intent to be inferred from a lesser state of mind, such as:
a) A belief that it was a drug of dependence that was possessed; or
b) An awareness of the likelihood that it was a drug of dependence that was possessed: that is, an awareness that there was a significant or real chance that he possessed a prohibited drug.
155While it will usually be possible to infer the requisite intention from the states of mind outlined above this will not always be the case. I should not direct myself that I may convict simply because, for example, the Prosecution established that the accused was aware that there was a significant or real chance that the accused possessed a prohibited drug.
156I should direct myself that proof that the accused was aware of the likelihood that it was a drug of dependence that was possessed, is capable of sustaining the inference that the accused intended to possess a drug of dependence. However, I must be mindful that it is for me to determine whether that inference should be drawn, based on all of the facts and circumstances.
157I must always bear in mind that an inference is not to be drawn unless I am satisfied that it is the only inference that is reasonably open in the circumstances of the case.[63]
[63] Ibid [19-63].
158In relation to the element that the drug was possessed for the purpose of sale I must direct myself as follows:
a) The Prosecution must also prove that accused possessed the cannabis for sale, that is, that the possession of the cannabis was for the purpose of sale in the sense that the accused had a 'general intention' that the cannabis would be sold in the future rather than for another reason such as personal use. It is not necessary that the Prosecution prove that the accused had a particular sale in mind.[64]
[64] Judicial College criminal charge book 7.6.1.12.
159I will leave aside for the moment the element that the amount trafficked was not less than a commercial quantity.
Conclusion on Charge 2 - trafficking of a commercial quantity of cannabis
160The first question for me in relation to this charge is to determine whether on
14 September 2020, the accused was in possession of the cannabis concealed within the 'beach bags'. The Defence have not disputed that the receipt for the purchase of a Toyota Estima found in the accused's wallet provides evidence that he was effectively the owner that vehicle on 14 September 2020. There was also no serious dispute that the striped beach bags in that vehicle upon its interception were loaded into the vehicle during the period the vehicle was at the house on 14 September 2020. The evidence in my view, excludes any other reasonable inference as to how the bags came to be in the vehicle before the vehicle was intercepted by the Police. I agree with the Prosecutor's submission that the house was set up for no other purpose than growing cannabis and evidence that cannabis was grown in some of the bedrooms in the house and 'harvested from those rooms' is the only reasonable inference as to how cannabis came to be inside the beach bags. The empty pots, the remnants of cannabis in the rooms with the empty pots, in conjunction with the 'vacuum packs' and other similar striped empty beach bags in the kitchen, in combination lead me to the conclusion that the beach bags were loaded into the Toyota Estima during the period the vehicle was at the house on 14 September 2020.161While the Defence appeared to take no issue with the inference that the beach bags were loaded into the Toyota Estima before it left the house, they argued that it could not be inferred that the accused was aware or believed the bags contained cannabis. I will address that question in due course, but in terms of the question whether the accused was in possession of the beach bags in the Toyota, as opposed to the cannabis within the beach bags, I find that he was.
162The evidence was that the accused was a passenger in the back seat of a vehicle he owned with easy access to the bags in rear of the vehicle and with one bag on the row of seats behind him, in circumstances where he has provided that vehicle in the context of it being used to transport the beach bags. I find he intended to have custody and control of those bags (jointly with the co-accused) and that he did have such custody and control and hence possession of the beach bags.
163As set out in the elements above, in order for the accused to be in possession of the cannabis within the bags, I must find that the only reasonable inference to be drawn as to the accused's mental state is that he was at least aware of the likelihood that the bags contained cannabis in the sense that there was a significant or real chance the bags contained cannabis. Such a state of mind is sufficient to sustain the relevant inference of an intention to possess the cannabis, but it is still a matter for me to consider the totality of the evidence in deciding whether such an inference should be drawn.
164In my view the only reasonable inference from a consideration of the totality of the evidence is that the accused did intend to possess cannabis inside the beach bags that were being transported in the Toyota Estima. In reaching that conclusion, I am of the view that the accused had at the very least an awareness that there was a significant or real chance that the beach bags contained cannabis and that he intended to assist in the transportation of that cannabis.
165In reaching that conclusion, I accept the Prosecution submission that anyone entering this house would almost immediately become aware that its sole purpose was to cultivate cannabis. Every room inside the house except perhaps the toilet reveals such a purpose. The wiring is extensive, the carpet has been uplifted, there are remnants of cannabis and empty pots in the room where fresh plants are not growing. Even without the smell of cannabis that would be pervading the house it is apparent that there is no furniture, clothing, or normal household items associated with everyday living inside the house.
166In reaching that conclusion, I have considered the defence argument that the accused may have remained in the garage while the bags were loaded into his vehicle and have had no knowledge of what was inside the beach bags. I reject that scenario beyond reasonable doubt. Such a scenario does not explain how the accused's fingerprint got on one of the light shrouds that were taken from bedrooms one to four where it is apparent that cannabis had either been grown or was still growing. Furthermore, the evidence all reveals extensive arrangements in growing cannabis in a surreptitious manner. The evidence of Senior Constables Hunt and Whittaker confirms that the curtains have covered the windows of the house, the house has been used to grow cannabis for some months. The light shrouds, wiring, and watering arrangements provide evidence of a fairly extensive commercial enterprise. Those responsible for undertaking such an enterprise are in my view, extremely unlikely to allow a person who has absolutely no knowledge of the enterprise to drive into the garage of that house and allow their vehicle to be used to transport bags from the house, without any idea what was being transported in those bags. I find such a scenario so unlikely that when it is considered in combination with the accused's fingerprint being located on a shroud taken from one of rooms one to four, it is able to be excluded beyond reasonable doubt.
167There is no evidence that the accused is familiar with the smell of cannabis. However, I am of the view that the evidence of Detective Senior Constable Zalewski that he smelt cannabis upon opening the door of the Toyota without opening the bags strengthens the inference that the accused was aware that cannabis was inside the beach bags. Such a smell would in my view at least be consistent with knowledge that the beach bags contained some sort of plant material. When this evidence is considered with the other evidence of the appearance of the inside of the house, the fingerprint on the light shroud, and the efforts to conceal what was occurring inside the house, I am satisfied the accused intended to possess cannabis inside the beach bags.
168I am also satisfied beyond reasonable doubt that the accused possessed the cannabis in the Toyota Estima for the purposes of sale. The evidence satisfies me that considerable expense was involved in setting up the house in a manner where a considerable amount of cannabis could be cultivated. I am satisfied beyond reasonable doubt that the accused was aware he was transporting cannabis in the context of a commercial operation; that is, that he believed the cannabis in the vehicle was destined to be sold.
169The final element I must determine is whether the accused intended to traffick a commercial quantity of cannabis.
170In order to prove this element, the Prosecution must prove beyond reasonable doubt that the accused intentionally trafficked in not less than a commercial quantity of a drug of dependence. There are two parts to this element.
171The Prosecution must prove that the accused trafficked in the relevant quantity of cannabis and that the accused intended to traffick in not less than that quantity.
172The commercial quantity of cannabis relied upon by the Prosecution is a quantity that is not less than 25 kilograms.
173It is not necessary for the Prosecution to establish the precise amount of drugs trafficked by the accused for this part of the element to be met. They only need to establish that the amount trafficked was not less than the amount specified by the law, which in this case is 25 kilograms.
174In calculating the weight, the relevant weight of the drug is at the time of the offence was committed, rather than the amount it would have weighed when it was ultimately sold.
175In relation to the intent to traffick in a commercial quantity of cannabis the Prosecution must prove beyond reasonable doubt, that when the accused possessed the cannabis for sale, he intended to traffick in not less than the amount of 25 kilograms of cannabis. That is, he deliberately possessed for sale not less than 25 kilograms of cannabis. The Prosecution does not need to prove that the accused intended to traffick in that precise weight of cannabis. It is sufficient for the Prosecution to prove that the accused intended to traffick in not less than 25 kilograms.
176In determining whether the Prosecution has proved that the accused intended to traffick not less than a commercial quantity of cannabis, I will have to decide from all the evidence whether that is the only reasonable inference to be drawn. Such an inference may be drawn if I find the accused knew, believed, or was aware that there was a significant or real chance that he was in possession for the purpose of sale of not less than 25 kilograms of cannabis. It is for the Prosecution to prove beyond reasonable doubt that the accused had this intention, so if I am not satisfied that the accused knew or was aware of the likelihood, he was he was trafficking in not less than 25 kilograms of cannabis, and there is no other basis from which I can infer that the accused intended to traffick in that quantity, this element will not be met. [65]
[65] Judicial College Criminal Charge book 7.6.1.17.
177In relation to this element, I am not satisfied that such an inference is proved beyond reasonable doubt. While it is the case that objectively there is almost three times the commercial quantity of 25 kilograms of cannabis within the beach bags, I must be mindful that this element is not to be assessed by some objective standard. This element, if it is to be proved, is based upon the subjective intention of the accused. I must also keep in mind that the weight was determined by a botanist after the interception. Looking at the photographs of the bags located in the Toyota reveals little information concerning how much the cannabis inside those bags might weigh.
178There is no evidence from which I can safely conclude whether the accused himself loaded the bags into the Toyota, or what inspection he made of the beach bags. The Prosecution conceded in argument that there may have been others inside the house when the accused arrived in his vehicle. I cannot exclude beyond reasonable doubt that those others may have loaded the bags into the accused's Toyota. The fingerprint evidence was that there were at least two other persons' fingerprints identified on the light shrouds. These others may or may not have been involved in harvesting the crop.
179It was, to my mind, a significant part of the Prosecution case that the evidence proved the accused's vehicle was at the house on 14 September 2020 for a little over two hours. Such a period of time would lend weight to a finding that the accused was involved in some sort of activity that may have occurred inside the house on that day such as packing the beach bags or loading them into the Toyota, but as I have indicated above in these reasons, the failure to prove the accuracy of the time stamp on the CCTV footage means such an inference as to the length of time the accused was in the house cannot be proved beyond reasonable doubt. In my view, the evidence does not exclude the possibility beyond reasonable doubt that the accused's attendance at the house on 14 September 2020 may have been for a shorter period of time than the prosecution allege.
180There is also some degree of speculation as to whether the accused was involved in the packing of the cannabis in the beach bags, and his knowledge of whether the entirety of the bags contained cannabis, or how compressed the cannabis was within the bags. While I find beyond reasonable doubt that the accused intended to traffick cannabis in the sense of attending with his vehicle and taking possession of cannabis that he believed was in the beach bags, I cannot be satisfied beyond reasonable doubt that he intended to take possession for the purposes of sale of not less than 25 kilograms of cannabis.
181
While I accept that the accused's attendance at the house and the transportation of the beach bags both occurred in the context of a commercial production of cannabis, I am not able to exclude beyond reasonable doubt that the accused may have had limited information and knowledge as to how much cannabis
(in terms of its weight) was actually stored within the beach bags. I am not able to infer beyond reasonable doubt that the accused was the person who loaded the bags into the Toyota and experienced in that process the weight of the bags, or that he had knowledge as to the manner in which the cannabis had been vacuum packed within the bags. I am not satisfied that he was aware of the significant likelihood that there was not less than 25 kilograms of cannabis in the beach bags, and that he intended to traffick in not less than that amount of cannabis. I therefore find that this element has not been proved and I find Dung Tran not guilty of trafficking a commercial quantity of cannabis.
Alternative offence of trafficking simpliciter
182As discussed at the conclusion of the Prosecution case, that leaves an alternative offence for me to consider, namely trafficking cannabis simpliciter contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
183In relation to that offence, I am satisfied that a jury would have been entitled to return a verdict of guilty to this alternative offence, as the offence on the indictment includes all the elements of this alternative offence. I have found as the trier of fact that all of the elements of that alternative offence have been proven beyond reasonable doubt. Section 239 of the Criminal Procedure Act allows for such a verdict, and I can see no reason given the course of the trial why I should not return such a verdict.
184I therefore return a verdict of guilty to the alternative charge that the accused, Dung Tran, and his co-accused, at Bacchus Marsh in Victoria, on 14 September 2020 trafficked a drug of dependence, namely cannabis.
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