Director of Public Prosecutions v Tran
[2021] VCC 836
•11 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01046
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHUONG TRAN |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 May 2021 |
| DATE OF JUDGMENT: | 11 June 2021 |
| CASE MAY BE CITED AS: | DPP v Tran |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 836 |
REASONS FOR JUDGMENT
---
Subject: Cultivate cannabis (commercial quantity) – Traffick cannabis
Catchwords: Judge alone trial
Legislation Cited: Criminal Procedure Act 2009 (Vic); Jury Directions Act 2015 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Evidence Act 2008 (Vic)
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Tueno | Director of Public Prosecutions |
| For the Accused | Ms A. Kapitaniak | Nelson Brown Legal |
HIS HONOUR:
1The accused man, Phuong Tran is charged on indictment L10720898 with cultivating a commercial quantity of cannabis at Horsham between 12 March and 20 March 2020 and trafficking cannabis at Hamilton between 19 March and 20 March 2020.
2The trial commenced before me on 22 April 2021 when Mr Tran pleaded not guilty to the two charges.
3The prosecution alleged on 20 March 2020 police found 281 cannabis plants growing hydroponically inside a Horsham house which had been converted to cannabis cultivation.
Allegations
4It was alleged, on November 2019, Mr Tran made renovations to the Horsham house to cultivate cannabis and, on 12, 15, 17, and 19 March 2020, he visited the property to cultivate the cannabis plants which police found growing there.
5The prosecution alleged, by growing the plants found at the Horsham property, he committed the offence of cultivating a commercial quantity of a narcotic plant.
6The prosecution also alleged, on 20 March 2020, police found cannabis drying in a room fitted with heaters and fans in a Hamilton property. It was alleged Mr Tran and another man had slept overnight at the premises, after travelling from the Hamilton property to the Horsham property, to collect cannabis and return with it to the Hamilton property, where they were drying it in preparation for sale.
7The prosecution allege Mr Tran trafficked cannabis at the Hamilton property by preparing it for sale and being in possession of it for sale.
8When police questioned Mr Tran about the dried cannabis found at the Hamilton property, he said he lived at Roxburgh Park and had been hired by someone in Melbourne to do some repairs on the Hamilton property. He said the person who hired him drove him to Hamilton, where he was to demolish cabinets and be paid $350-400 a day. He said he had slept at the house the previous night but denied knowing anything about cannabis.
Judge alone trial
9Mr Tran made an application to be tried by judge alone pursuant to s4(20D) of the Criminal Procedure Act 2009 (Vic) (‘Criminal Procedure Act’). On 26 March 2021, Judge Mullaly granted the application.
10Section 4A of the Jury Directions Act2015 (Vic) (‘Jury Directions Act’) applies in this case. It provides that the court's reasoning with respect to any matter in relation to which parts 4, 5, 6, or 7 of the Jury Directions Act makes provision:
(a) must be consistent with how a jury would be directed in accordance with the Jury Directions Act; and
(b) must not accept, rely, or adopt:
(i)a statement or suggestion that the Jury Directions Act prohibits the trial judge from making; or
(ii)a direction that the Jury Directions Act prohibits the trial judge from giving.
11In hearing this matter without a jury, I may make a decision that could have been made by a jury. My decision has for all purposes the same effect as the verdict of a jury. My reasons for judgment must identify the legal principles I have applied, and the main factual findings on which I have relied.
12As the judge of the facts and the law, I must find the facts and draw inferences from them as well as apply law to the facts that I find.
13I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter in the decision-making process. Both the prosecution and Mr Tran are entitled to my verdict free of partially or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
14The prosecution bears the onus of proving Mr Tran's guilt at all times. Mr Tran does not have to prove that he did not commit the offences charged. The standard of proof applicable in the criminal law is proof beyond reasonable doubt. It is the highest standard of proof known to the law. Mr Tran comes before this court with a presumption of innocence in his favour. He is presumed by law to be innocent of the offence, unless and until the evidence which I accept satisfies me that each and every element of the charges has been proved beyond reasonable doubt.
15If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of either of the offences charged, then the accused remains presumed innocent and I must find him not guilty.
16I must decide the case solely on the evidence I have seen and heard in this trial, that is, what the witnesses have said in answer to questions, the agreed facts, and the exhibits that have been produced. Importantly, what I have said and what counsel have said during the trial is of course not evidence.
Specific directions
Elements of cultivate a commercial quantity of cannabis
17I turn to the elements of the offence of cultivate a commercial quantity of cannabis. To prove this crime, the prosecution must prove the following three elements beyond reasonable doubt.
(a) Firstly, that Mr Tran intentionally cultivated a plant.
(b) Secondly, the plant cultivated by Mr Tran was a narcotic plant.
(c) Thirdly, Mr Tran intentionally cultivated a commercial quantity of the plant.
Issue – Did Mr Tran intend to cultivate a commercial quantity of cannabis?
18Before the evidence commenced, Mr Tran admitted he was intentionally involved in growing the plants, which the police seized at the Horsham property. He also admitted the plants he cultivated were narcotic plants, namely Cannabis L. He disputes he intentionally cultivated a commercial quantity of Cannabis L plants.
19Accordingly, the sole issue in relation to the cultivation charge is whether the prosecution has proved the third element of the offence. There are two parts to the third element. The prosecution must prove that Mr Tran cultivated not less than a commercial quantity of cannabis plants. It must also prove that Mr Tran intended to cultivate not less than a commercial quantity of cannabis plants.
20A commercial quantity of cannabis is 100 plants.
21The first part of this element will therefore be satisfied if the prosecution has proved beyond reasonable doubt that Mr Tran cultivated not less than 100 cannabis plants. It is not necessary for the prosecution to establish the precise number of plants cultivated by Mr Tran. The prosecution needs only to establish that the amount cultivated was not less than the amount specified by law.
22Secondly, the prosecution must prove beyond reasonable doubt that Mr Tran intended to cultivate not less than a commercial quantity of cannabis plants, that is, he deliberately cultivated not less than 100 cannabis plants. The prosecution does not need to prove Mr Tran intended to cultivate a precise number of plants. It is sufficient for the prosecution to prove that Mr Tran intended to cultivate not less than 100 plants.
23In determining whether or not Mr Tran intended to cultivate not less than 100 cannabis plants, I will need to decide if I can draw an inference from all of the evidence in the case that he had this intention. I may be able to draw this inference if I find Mr Tran knew or believed he was cultivating not less than 100 cannabis plants. However, I do not need to find that Mr Tran actually knew he was cultivating not less than 100 plants, to draw the inference. Proof that Mr Tran was aware there was a significant and real chance that he was cultivating not less than 100 cannabis plants is also capable of sustaining the inference that he intended to cultivate that quantity of plants.
24It means if I find that Mr Tran was aware of the likelihood that he was cultivating not less than 100 Cannabis L plants, I may draw the inference that he had an intention to cultivate that quantity of plants. That is, I may infer, if I am satisfied Mr Tran was aware that there was a significant and real chance that he was cultivating not less than 100 plants, he must have intended to cultivate that number.
Elements of trafficking cannabis
25I turn now to the elements of the trafficking charge. To prove this crime, the prosecution must prove the following two elements beyond reasonable doubt.
(a) Firstly, Mr Tran intentionally committed an act of trafficking; and
(b) Secondly, he intentionally trafficked in a drug of dependence.
26The first element relates to what the accused did. He must have intentionally committed an act of trafficking. The law defines trafficking to include a number of different activities, including preparing a drug of dependence for trafficking and possessing a drug of dependence for sale. To prove Mr Tran's guilt, the prosecution does not need to prove both things. For this element to be satisfied, the prosecution only needs to prove Mr Tran intentionally committed at least one of them.
First element
Preparing a drug of dependence for trafficking
27To prove this act of trafficking, the prosecution must prove three things beyond reasonable doubt:
(a) firstly, that Mr Tran prepared a drug of dependence, in this case, Cannabis L. Prepare is an ordinary English word and it is for me to determine whether he had prepared cannabis;
(b) secondly, that Mr Tran intended to make those preparations. That is, he made those preparations deliberately; and
(c) thirdly, Mr Tran prepared the drug for the purpose of trafficking, that is, when he prepared the drug, he intended that it would be sold, exchanged or otherwise ultimately moved to a consumer within a setting in which someone involved is making a profit.
Possession a drug of dependence for sale
28To prove this act of trafficking, the prosecution must prove two things beyond reasonable doubt:
(a) firstly, that Mr Tran possessed a drug of dependence, Cannabis L; and
(b) secondly, that he intended to sell that drug.
1. Possession
29A person is said to have in their possession a thing which, to their knowledge, is physically in their custody, or under their physical control. This requires the prosecution to prove:
(a) firstly, Mr Tran had physical custody or control of the drug;
(b) secondly, he intended to have custody or exercise control over the drug; and
(c) thirdly, he knew the substance over which he had custody or control was a drug, or was at least aware of the likelihood that it was a drug, that is, he was aware that there was a significant and real chance that the substance he possessed was a drug.
Joint possession
30It is possible for more than one person to possess an item, so long as they each meet all the requirements I have just mentioned.
31I must determine, based on all the evidence, whether Mr Tran was in possession of the cannabis, which was being dried at the Hamilton property.
32If I decide, beyond reasonable doubt, he had physical custody, or control of that drug, that he intended to have such custody or control and that he knew the substance over which he had custody or control was a drug, or was at least aware of the likelihood that it was a drug, then he will have been in possession of it.
2. Intention to sell
33The prosecution must also prove that he intended to sell the drug. In other words, I must be satisfied Mr Tran possessed the Cannabis L for the purpose of selling it, rather than for another reason, such as personal use. However, it is not necessary for the prosecution to prove Mr Tran had a particular sale in mind or knew who he was going to sell the drugs to. They need only prove he had a general intention to sell the drug in the future.
34It is for me to determine, based on all the evidence whether Mr Tran both possessed the cannabis and intended to sell it. It is only if I am satisfied of both these matters beyond reasonable doubt that the first element, that he intentionally committed an act of trafficking, is proved.
Second element
35The second element the prosecution must prove beyond reasonable doubt is that Mr Tran intentionally trafficked in a drug of dependence. There are two parts to this second element. The prosecution must prove:
(a) firstly, the substance allegedly trafficked by Mr Tran was a drug of dependence; and
(b) secondly, he intended to traffic a drug of dependence.
36The law says Cannabis L is a drug of dependence. The first part of this element will therefore be satisfied if the prosecution proves beyond reasonable doubt that Mr Tran prepared for trafficking or possessed for sale any quantity of cannabis.
37It is for me to determine, based on all of the evidence whether the substance was a drug of dependence, that is, Cannabis L, and there was no dispute that it was.
Intention to traffick
38For the second element of trafficking to be satisfied, the prosecution must also prove beyond reasonable doubt Mr Tran intended to traffick in a drug of dependence, that is, he deliberately prepared for trafficking, or possessed for sale, a prohibited drug.
39In determining whether or not Mr Tran intended to traffick in a drug of dependence, I will need to decide if I can draw an inference from all of the evidence that he had this intention.
Circumstantial evidence
40The prosecution relies on indirect or circumstantial evidence to prove Mr Tran:
· intentionally cultivated a commercial quantity of cannabis plants; and
· intentionally trafficked cannabis.
41As far as the law is concerned, it makes no difference whether evidence is direct or indirect. However, I must take care when drawing conclusions from indirect evidence. I should consider all of the evidence in the case and only draw reasonable conclusions based on the evidence that I accept. I must not guess.
42In determining whether a conclusion is reasonable, I should look at all of the evidence. When putting all the pieces of evidence together, I must take care not to jump to conclusions.
43I can only convict Mr Tran if I am satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence. If there is another reasonable view of the facts, which is consistent with Mr Tran's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt, and I must acquit him.
Tran did not give evidence
44Mr Tran did not give evidence in the trial. He has a right to silence, and I cannot draw any adverse inference from the fact.
Good character
45Mr Tran does not have any prior convictions. This is evidence of his good character.
46I can use the fact in two ways:
(a) First, I can use it when assessing the credibility of his denials of the prosecution case. As a person of good character is generally thought to be more trustworthy than other people, I may be less willing to accept the prosecution's evidence than if Mr Tran was not a person of good character.
(b) Second, I can use it when determining the likelihood that Mr Tran committed the offence as charged. As it is generally believed that a person of good character is unlikely to commit a criminal offence, I may be less willing to accept the prosecution's allegation that Mr Tran committed the offences, than I would be if he was not a person of good character.
47Of course, this does not mean that I must find Mr Tran not guilty if I accept 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 determine whether or not those facts have been proven. In addition, I am to keep in mind the fact that a person who has previously been of good character can commit a crime for the first time.
Avoid improper use – purported lies to police not to be used as incriminating conduct
48The defence asked for the following direction.
49The prosecution argue Mr Tran told lies in response to police questions. The alleged lies are not relied on as incriminating conduct.
50I direct myself in accordance with sub-s23(1) of the Jury Directions Act that:
(a) there are all sorts of reasons why a person might behave in a way that makes the person look guilty; and
(b) even if I think Mr Tran told lies, I must not conclude from that evidence that he is guilty of either of the offences charged.
Section 61 – what must be proved beyond reasonable doubt
51The prosecution requested the following direction.
52I direct myself in accordance with s 61 of the Jury Directions Act, the only matters the prosecution must prove beyond reasonable doubt are the elements of each of the offences charged or an alternative offence.
53I am not required to be satisfied of proof beyond reasonable doubt of every fact the prosecution relies on, to prove Mr Tran:
· intended to cultivate a commercial quantity of cannabis; and
· intended to traffick cannabis.
The evidence
54Three witnesses gave evidence. They were two botanists, who examined the cannabis seized from the Horsham and Hamilton properties, and the police informant.
55There were a number of Exhibits.
(a) Exhibit A was a notice of agreed facts;
(b) Exhibit B was the certificate of Madeline Brinker, a VPFC botanist;
(c) Exhibit C was Ms Brinker's statement;
(d) Exhibit D was the certificate of Emily Sauter, a VPFC botanist;
(e) Exhibit E was a notice of admissions;
(f) Exhibit F was stills from CCTV footage at United Fuel Hamilton dated
19 March 2020;(g) Exhibit G was the statement of Darryl Hamilton, a Powercor employee;
(h) Exhibit H was the statement of Thomas Wright, a Powercor employee;
(i) Exhibit J was screenshots taken from Mr Tran's mobile phone;
(j) Exhibit K was a fingerprint identification report;
(k) Exhibit L was a DNA analysis report;
(l) Exhibit M was a bundle of photographs of the Hamilton property;
(m) Exhibit N was a bundle of photographs of the Horsham property;
(n) Exhibit O was an extract of subscriber records from Mr Tran's phone;
(o) Exhibit P was records taken from Mr Tran's Bunnings' trade account;
(p) Exhibit Q was a recording of Mr Tran's police interview;
(q) Exhibit R was a statement of Detective Sergeant Mark James; and
(r) Exhibit S was a statement of Senior Constable Tim Crick.
56There were a number of agreed facts, namely:
(a) On 19 March 2020 at approximately 4.25 pm, Mr Tran with Mr Le attended United Fuel at Hamilton in Le's car.
(b) On 20 March 2020, police executed a Drugs, Poisons and Controlled Substances Act search warrant at the Hamilton property. Mr Tran and Mr Le were arrested at the premises.
(c) In the rear bedroom, police located:
(i)7.6 kilograms of dry cannabis;
(ii)2.76 kilograms of material which included some cannabis;
(iii)7.28 kilograms of material which included some cannabis;
(iv)3.69 kilograms of material which included some cannabis branches; and
(v)16.624 kilograms of material which included some cannabis and mouldy unidentified material.
(d) Police found the keys to the Horsham property, unused vacuum seal bags, and documents relating to the Hamilton property in Le's car.
(e) Two mobile phones, one used by Le and the other by Tran were found in another bedroom, which contained some bedding and pillows.
(f) On Le's phone, there was a photograph of an envelope addressed to the resident of 63 Wavell Street, Horsham, photos of a container labelled, 'bud juice', and photos of black garbage bags believed to contain dried cannabis which Le sent to Tran on 19 March 2020.
(g) On the mobile phone which Mr Tran was using, there were images dated
6 March 2020 and 15 March 2020 of CCTV footage of a house.(h) On 20 March 2020, police executed a Drugs, Poisons and Controlled Substances Act search warrant at the Horsham property.
(i) Police located:
(i)281 plants at the Horsham property;
(ii)36 cannabis plants in the garage weighing 18.15 kilograms;
(iii)112 small cannabis plants in the office weighing 1.91 kilograms;
(iv)79 cuttings of cannabis inside a kitchen cupboard weighing 96.9 grams;
(v)54 cannabis plants in the first bedroom weighing 7.62 kilograms;
(vi)six leafy stems of cannabis weighing 1.91 kilograms; and
(vii)empty buckets in the second, third, and fourth bedrooms.
57The Horsham property was being used to grow cannabis. It had been considerably modified.
58Both the Horsham and Hamilton properties had been set up with electrical bypass systems. The power account was set up in the name of Ms Thi Tran. The Horsham property had been modified to allow for the cultivation of cannabis to go undetected.
59Police swabbed a toothbrush, an asthma puffer found in the kitchen of the Horsham property for DNA. The analysis of the swabs revealed a single source of DNA with extremely strong support for Tran being the source. Le was excluded from being the source of the DNA.
60Police located fingerprints on a drinking glass in the kitchen of the Horsham property which were identified as being from Tran's left thumb and index finger.
61The DNA and fingerprints cannot be attributed to a particular date.
62During the search of the Hamilton property a Bunnings Warehouse membership card was found in Mr Tran's wallet. Tran had used a Bunnings' trade account and made purchases from Bunnings at various stores including Horsham and Hamilton from November 2019 to March 2020.
63At times between 12 March and 20 March 2020, the phone which Tran used was using the Horsham and Hamilton cell towers and other cell towers around Melbourne.
64The Horsham property was sold on 4 April 2019 to Kim Van Nguyen.
65Sometime in 2019, renovations were conducted at the Horsham property, including but not limited to the installation of Bastian roof vents.
66Mr Tran does not have any prior convictions.
Notice of admissions
67There was also a notice of admissions, Exhibit E. Pursuant to s184 of the Evidence Act Mr Tran admitted the following facts:
· the finding of the cannabis exhibits;
· the continuity of them for botanical examination;
· the photographs of the premises at Hamilton (Exhibit M) and Horsham (Exhibit N) were taken when police executed search warrants;
· the call charge records (Exhibit O) are an accurate record of Mr Tran's phone service communications;
· the contents of Ms Sauter's certificate (Exhibit B); and
· the contents of Ms Brinker's certificate (Exhibit C) and her statement (Exhibit D).
Prosecution witnesses
68The prosecution called three witnesses.
Madeline Brinker
69The first prosecution witness was Madeline Brinker who is a forensic botanist at the Victorian Police Forensic Services Centre.
70Her statement, Exhibit B, and certificate, Exhibit C, were the subject of an admission under s184 of the Evidence Act 2008 (Vic) (‘Evidence Act’).
71On 24 March 2020, Ms Brinker examined plant materials seized from the Hamilton property. Item 1 was a quantity of dried female flowering heads and fragments of leaf and female flowers which weighed 7.6 kilograms. She estimated its fresh weight to have been 30.4 kilograms.
72Item 2 was a quantity of wilted female flowering branches and fragments of leaf and female flowers, mixed with material which was not identified. The total weight of the mixture was 2.76 kilograms. Ms Brinker could not determine the weight of the cannabis in the mixture.
73Item 3 was a quantity of mouldy wilted female flowering branches and fragments of leaf and female flowers, some of which were partly dried, mixed with material which was not identified. The total weight of the mixture was 7.28 kilograms. Ms Brinker could not determine the weight of the cannabis in the mixture.
74Item 4 was a quantity of female flowering branches that were harvested, mixed with plant material which could not be identified. The total weight of the mixture was 3.69 kilograms. Ms Brinker could not determine the weight of the cannabis of the mixture.
Emily Souter
75The second prosecution witness was Emily Sauter who is also a forensic botanist at the Victorian Police Forensic Services Centre.
76On 20 March 2020, she examined plant material which had been seized from the Horsham property.
77She said cannabis plants had three stages of development:
· the propagation phase;
· the vegetative phase; and
· the flowering phase, which was typically around six weeks until maturity.
Item 1
78Item 1 was 79 plants in a tray which had been planted from cuttings in jiffy pots and which weighed 96.9 grams.
79These plants were in the propagation phase.
Item 1.1
80Item 1.1 was six leafy stems which were also in the tray, with six additional jiffy pots.
Item 2
81Item 2 was one hundred and twelve plants which weighed 1.91 kilograms.
Item 3
82Item 3 was 54 immature cannabis plants ranging from 50 to 80 centimetres in height, which were likely in the vegetative phase, and weighed 7.6 kilograms.
Item 4
83Item 4 was mouldy and decomposing material contained in a cannabis bag, with some cannabis leaf and leafy stems. The weight of the cannabis could not be determined.
Item 5
84Item 5 was a quantity of dried, harvested branches which had been cut from cannabis plants and had been stripped of their leaves and flowers. Some branches still had cannabis leaf and flower material attached. The weight of the cannabis could not be determined.
Item 6
85Item 6 was two garbage bags which contained decomposing material similar to the material from Item 4 together with some cannabis leaves and flower fragments. The weight of the cannabis could not be determined.
Item 7
86Item 7 contained mixed material which included some cannabis the weight of which could not be determined.
Item 7.1
87Item 7.1 contained mixed material mixed with some cannabis stem. The weight of cannabis could not be determined.
Item 8
88Item 8 was material mixed with harvested stripped branches from cannabis plants. The weight of the cannabis could not be determined.
Item 9
89Item 9 was 36 cannabis plants ranging in height from 80 centimetres to 100 centimetres which appeared to be in the flowering phase and weighed 18.5 kilograms.
Detective Nick Roberts
90The third prosecution witness was Detective Nick Roberts, who was the informant in the proceeding. He is attached to the Hamilton Criminal Investigation Unit.
91On 18 March 2020 he received an information report of a possible cannabis cultivation at a property at 16 George Street, Hamilton.
92Around 11.30 am on the same day he drove to the George Street address and saw a silver Toyota Camry parked in the driveway. The car was registered to Ho Le.
93On 19 March 2020 he applied for a search warrant to search the Hamilton property. On the same day, between 2.30 and 3.30 pm, he drove by the property and saw Le's car parked in the driveway. He returned to the property at around 6 pm. Le's car was not there. He sat off the property for 45 minutes to an hour. The car did not return in that time.
94Around 9 pm he returned to the property and saw Le's car was parked in the driveway. He saw lights illuminated in the front room of the house.
95On 20 March 2020, around 8.30 am, he went back to the Hamilton property, where he executed a search warrant. On entry he noticed a strong smell of cannabis. Tran and Le were present and police arrested them.
96The front room was a lounge room. There was very little furniture in the house. Le and Tran had been sleeping in the first bedroom. In the room adjacent there was no furniture. Inside that room cannabis was drying on a wooden rack.
97In the first bedroom, with the bedding, police found three mobile phones. Mr Le gave the passcode to one, Mr Tran gave the passcode to another.
98In Le's phone Detective Roberts found a screenshot of an envelope addressed to the resident of 63 Wavell Street, Horsham, and photos of black garbage bags which he suspected contained cannabis branches. The same photos of the bags were found in Mr Tran's phone. Mr Le had sent them to him on 19 March 2020 at 8.54 pm.
99Police located Mr Tran's wallet. It contained a Bunnings trade account card in Mr Tran's name. Police also located keys in the centre console of Le's car. The keys were found to fit the locks to the house at 63 Wavell Street, Horsham.
100Later that night, at about 11 pm, police executed a search warrant at the Horsham address and found cannabis plants growing inside.
101Next day police returned and processed the scene.
102Detective Roberts obtained CCTV footage from United Fuel, Hamilton, which showed Mr Tran and Mr Le filling Le's car with fuel at 4.25 pm on 19 March 2020 (Exhibit F).
103Detective Roberts produced:
· the Powercor statements of Mr Hamilton (Exhibit G) and Mr Wright (Exhibit H);
· nine screenshots of images from Mr Tran's phone (Exhibit J);
· a fingerprint examination report of the identification of Mr Tran's thumb and index finger on a glass tumbler found at the Horsham property (Exhibit K);
· a DNA analysis report (Exhibit L) of a DNA profile sampled from the bristles and head region of a toothbrush and from an asthma puffer found at the Horsham property;
· police photos of the Hamilton property (Exhibit M); and
· police photos of the Horsham property (Exhibit N).
Cross-examination
104Under cross-examination Detective Roberts could not say whether the kitchen cupboard, which contained 79 cannabis cuttings, was open or closed when police searched the Horsham property. He agreed police had initial information a man driving a red car had attended the Hamilton address and no car linked to Mr Tran was found at the Hamilton or Horsham addresses.
105In relation to the screenshot images from Mr Tran's phone (Exhibit J), he agreed:
· Photo 6 was an image of a driver licence in the name of Phuong Tran;
· Photo 7 was an image of a driver's licence in the name of Ho Le;
· Photo 8 was an image of a CCTV still shot of a property; and
· Photo 9 was an image of an electrical bypass.
Tran interview
106Detective Roberts interviewed Mr Tran at Hamilton police station on 20 March 2020 at 1.10 pm. He questioned him in relation to the seizure of the cannabis from the Hamilton property. At the time of questioning police had not yet discovered the cannabis plants being grown at the Horsham property.
107Mr Tran gave his address as 58 Rossiter Avenue, Roxburgh Park. He said he was sleeping when police attended at the Hamilton property. When asked who else was at the house at the time he said, 'I'm not sure'. He said he had his own handyman business and was hired to do repairs. He said a person in Melbourne hired him. He said he did not know the person's name. He said on the previous afternoon the person who hired him drove him to Hamilton in a red car. He said he was to demolish cabinets and remove old furniture and the person would return on Sunday or Monday to see how the work was going. He said he was told he would be paid $350 to $400 a day for his work. He said he stayed at the house overnight with the other person who was arrested with him.
108He said he slept in the room where the bedding was. He said he knew the house number was 16 but he did not remember the street name.
109When asked about the cannabis in the room adjacent to where he had slept, he said, 'I have nothing to do with that. I saw it but I don't know what they are'. When it was suggested there was a very strong smell of cannabis inside the house, he said, 'I never use drugs, so I don't know what those smell like'.
110He said he brought a toolbox to the property to do his work. When he was shown a photograph of the drying cannabis, he said he opened the door and went in and saw “this”, and just went out. When asked why his toolbox was in the same room, he said, 'I'm not sure, either'. When asked who put the toolbox in the room, he said, 'I have no idea'. He said he brought the tools in preparation to do the job that had not yet started. He denied he built the rack the cannabis was drying on. He said he did not know who did build it.
111When asked whether he had ever been to Hamilton previously, he said he had driven to Hamilton perhaps one week ago to find a place to rent, because he had received work. He said he slept at the George Street property overnight because he had not been able to find a place. He agreed the man at the house with him was named Ho Le.
112When told he was going to be charged with trafficking and possessing cannabis, he said, 'That's not what I'm doing. They are not mine, so I can't accept that'.
113Mr Tran voluntarily gave police his fingerprints and a sample of his saliva for DNA.
Detective Sergeant Mark James
114Detective Mark James' statement was admitted into evidence by agreement. It is Exhibit R.
115He participated in the search of the Hamilton property on 20 March 2020. He said cannabis was found in the rear bedroom of the house on the south side of the building. When he entered the room, he saw a rack with a large amount of cannabis heads laid out on wire mesh in a wooden frame supported at each end to ensure the mesh had air flow below, as well above. He identified Photographs 2, 5, 6, 7, 8, and 9 of Exhibit M as showing the drying cannabis.
116He said fans and portable heaters were switched on and running in the room, and identified Photographs 2, 3, and 4 of Exhibit M as photos of the fans and heaters in the room. In the room, there was also a large amount of leafy material on top of plastic sheeting, on the floor of the room. He identified Photo 10 as depicting the sheeting.
117He said the flowering heads of the female plants are the desired cannabis products. The plants' leaves and branches are waste product left after the flowering heads are harvested from the plant. Near the drying tray was a green plastic bag which contained cannabis leaf and branch waste, shown in Photographs 5 and 12. In the same room, was another plastic garbage bag which also contained cannabis leaf and branch waste. The contents were wet and mouldy and shown in Photograph 13.
118In the same room, there was a large tartan-patterned exhibit bag shown in Photo 11 on top of a wardrobe, which also contained cannabis leaf and branch waste, shown also in Photograph 14.
119Detective James took the seized cannabis to Victoria Police Forensic Services Centre (‘VPFSC’) on 24 March 2020.
120Item 1 is the cannabis head collected from the drying rack and the floor in the bedroom.
121Item 2 is a green bag containing leaf and branch cannabis.
122Item 3 is a black bag containing leaf and branch wet and mouldy cannabis.
123Item 4 is the tarp bag containing cannabis leaf and branch which was found on top of a built-in wardrobe.
Senior Constable Tim Crick
124Senior Constable Tim Crick's statement was admitted into evidence by agreement. It is Exhibit S.
125On 20 March 2020, he executed a search warrant at 63 Wavell Street, Horsham. Inside the house, he found 281 cannabis plants on cultivation. In a kitchen cupboard, there was a tray containing 79 small cannabis plants which he identified as Photograph 9 in the bundle of photographs, Exhibit N.
126Inside an office, there were 112 plants growing in black plastic pots, identified as Photograph 26.
127Inside the first bedroom, there were 54 plants growing in black plastic pots, identified in Photographs 29 and 30.
128Inside the garage there were 36 plants growing in black plastic pots identified in Photograph 18.
129Inside a second bedroom, there was dried cannabis leaf identified in Photograph 33.
130Inside the fourth bedroom, there were a number of plant stalks identified in Photograph 39.
131In a laundry cupboard, there were plastic bags which contained green vegetable matter identified in Photograph 7 and 8.
132In the garage, there was a black plastic bag containing green vegetable matter and plant stalk identified in Photograph 52.
133On 24 March 2020, Senior Constable Crick took the seized material to the Victorian Police Forensic Services Department at Macleod and he observed Ms Souter's examination of it.
Other exhibits
134I refer now to the other exhibits in the trial.
135Exhibit F shows Mr Tran and Mr Le refuelling Mr Le's car at United Fuel Hamilton on 19 March 2020.
136Exhibits G and H record the installation of illegal electricity bypasses at the Horsham and Hamilton properties.
137Exhibit K is the fingerprint identification of Mr Tran's left thumb and index fingerprints located on the outside of the glass.
138Exhibit L is the analysis of two samples of single source DNA; one from the bristles and head region of a toothbrush, and the second from an asthma puffer found at the Horsham property for which there is extremely strong support of a match with Mr Tran's DNA.
139In relation to Exhibit M, the photographs at 16 George Street Hamilton property, and Exhibit N photographs of 63 Wavell Street Horsham property, I have had regard only to those photographs which were identified in evidence.
140There are limitations to the use of Exhibit O, the subscriber records of the telephone service used by Mr Tran. They record
Mr Tran's phone accessing phone towers in the vicinity of Horsham on:· 2, 5, 7, 9, 12, 13, 14, 15 and 19 November 2019;
· 6, 12, 15, 17 and 19 March 2020;
and in the Hamilton vicinity on:
· 4, 16, 18 and 19 March 2020.
141The same records record, on 19 March 2020, Mr Tran's phone accessed the Horsham tower at 7.12 pm and the Hamilton tower seven times between 9.15 pm and 10.08 pm.
142Exhibit P is a bundle of receipts and invoices for transactions on Mr Tran's Bunnings trade account.
143Purchases were made at:
· Hamilton on 4 March 2020 for pad bolts, screws and a ladder;
· Horsham:
§on 2 November 2019 for plasterboard, timber and a roof vent Bastion and screws;
§on 13 November 2019 for timber and Liquid Nails; and
§on 27 November 2019, for U-Bolts and pad bolts.
144Mr Tran had also made purchases at other Bunnings stores at:
· Sunshine on 6, 10, 17 and 22 October 2019 and 22 December 2019;
· Caroline Springs on 2, 3, 4, 5 and 24 September 2019;
· Broadmeadows on 24 August 2019; and
· Taylors Lakes on 18 October 2019.
Defence case
145As was his right, Mr Tran did not give evidence or call witnesses. That fact cannot be used as evidence against him. It is not evidence in the case. It does not constitute an admission by Mr Tran and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution’s case in any way. It proves nothing at all. I must not draw any conclusions against Mr Tran because he did not give evidence, or even consider the fact he did not give evidence when deciding whether the prosecution has proved its case beyond reasonable doubt.
Prosecution argument
146In closing addresses the prosecution submitted the evidence of:
· the large amount of cannabis plants, 281 found growing at various stages in the growth cycle at the Horsham property;
· their substantial weight, 27.6 kilograms;
· the empty pots and harvested plant stalks found in one room, depicted in photo 42;
· the large number of rooms where plants were growing, 79 in the kitchen cupboard, 36 in the garage, 112 in an office and 54 in a bedroom, together with harvested leaf and stalks found in two other bedrooms;
· the extensive equipment, including power leads and modifications for ventilation inside the house and the garage as well as the electricity bypass;
· Mr Tran's presence at the Hamilton house, where cannabis was being dried;
· his presence in the vicinity of Horsham in November 2019 and March 2020;
· his purchase of a vent from Bunnings at Horsham on 2 November 2019;
· the toothbrush and asthma puffer found in the kitchen with the extremely strong support for a DNA match,
in combination, very clearly point to Mr Tran knowing that he was cultivating a commercial quantity of cannabis.
Trafficking
147In relation to the trafficking charge the prosecution submitted, in combination, the evidence:
· on 19 March 2020 Mr Tran travelled with Mr Le from Hamilton to Horsham and returned to Hamilton on the same day;
· he slept overnight with Mr Le at the Hamilton address;
· on 20 March 2020, when police executed the search warrant at the Hamilton address, they found:
§Mr Tran and Mr Le at the house;
§7 kilograms of cannabis being dried in a room fitted with heaters and fans, which were running; and
§three bags containing cannabis plant waste, that is, leaves and stems from harvested cannabis plants;
· when police executed a search warrant later, on 20 March 2020 at the Horsham address, they found:
§cannabis plants growing in pots; and
§empty pots and harvested cannabis stalks and leaf;
proves that Mr Tran trafficked cannabis by:
· possessing it at the Hamilton house for sale; alternatively
· preparing it for sale by sorting and drying it at the Hamilton house.
148The prosecution submitted, considering Mr Tran's acceptance he was knowingly involved in the cultivation of cannabis at the Horsham property, his answers to police that he did not know there was cannabis in the Hamilton house, and did not know what cannabis was, are lies which discredit his explanation for his presence at the Hamilton address, namely, he was only a handyman who was hired to do house repairs.
149Ultimately, the prosecution submitted I should be satisfied beyond reasonable doubt the elements of the charge of cultivation of a commercial quantity of a narcotic plant have been proved but if I was not satisfied Mr Tran intended to cultivate a commercial quantity of cannabis, on his own admission, it is open for me to find him guilty of cultivating cannabis simpliciter.
150The prosecution submitted I should also return a verdict of guilty on the trafficking charge.
Defence submissions
151As I said at the commencement of the trial, Mr Tran accepted he intentionally cultivated Cannabis L plants at the Horsham property and he did not raise a defence of lack of knowledge that the plants cultivated were narcotic plants. The defence accepted Mr Tran is guilty of the offence of trafficking cannabis simpliciter but submitted the prosecution had failed to prove he intended to cultivate a commercial quantity of cannabis.
152The defence submitted considering:
· at Horsham, 79 of the plants were found in a kitchen cupboard, which was likely closed, taking into account the botanist's evidence the plants, at their early stage of growth, are usually grown in an enclosed space, and therefore not visible to someone in the kitchen;
· 36 of the plants were found in the garage with no evidence linking Mr Tran to it;
· there is no evidence of specified times or duration of Mr Tran's presence at the Horsham property;
· he was a handyman who had made legitimate purchases on his Bunnings trade account so his attendance at the property may have involved legitimate renovations;
· the presence of his DNA and fingerprints on objects found in the kitchen is consistent with his attendance at the property to do legitimate renovation work; and
· there is no evidence of either his DNA or fingerprints on any of the cultivation paraphernalia.
I should be satisfied the prosecution had not excluded as a reasonable possibility Mr Tran did not know a commercial quantity of cannabis plants were being cultivated at the Horsham property.
153The defence submitted Mr Tran's acceptance he was involved in cultivation of plants at the Horsham property which he knew were cannabis plants, or was aware of the likelihood they were, is not proof of an intention to cultivate a commercial quantity of narcotic plants. The defence submitted the prosecution had not excluded as a reasonable possibility Mr Tran attended the Horsham property at times, during the cultivation charge, to carry out some legitimate repairs.
154In relation to the trafficking charge the defence submitted the evidence of:
· police finding Mr Tran at the Hamilton house when they executed the search warrant; and
· his admissions that:
§he slept there overnight; and
§he saw the cannabis in the room;
· with no evidence that he handled that cannabis in any way; and
· with the location of only 7.6 kilograms of useable cannabis in a room separate to where he had slept,
is insufficient to prove he possessed the dried cannabis located in the house for sale or that he had prepared it, or intended to prepare it for sale.
155The defence submitted the prosecution had not excluded as a reasonable possibility Mr Tran was an innocent travel companion with Mr Le, in Le's car, in the return trip to Horsham and that he was an innocent visitor who was hired to do house repairs at the Hamilton property.
156The defence submitted the prosecution had failed to prove beyond reasonable doubt all the elements of the offence of cultivating a commercial quantity of cannabis. The defence accepted a verdict of guilty of the offence of cultivate cannabis simpliciter is open as an alternative.
157In relation to the trafficking charge, the defence submitted the prosecution had failed to prove beyond reasonable doubt Mr Tran intended to possess the dried cannabis for sale, or intended to prepare it for sale.
158The defence submitted the prosecution has not excluded the reasonable possibility Mr Tran, as a tradesman and person of good character, mistakenly undertook some legitimate work for some bad people.
Consideration
159Much of the prosecution evidence was agreed or admitted. The credibility and reliability of the three prosecution witnesses who gave evidence before me was not challenged.
160The cross-examination was directed to the quantity of cannabis contained in the bags of harvested leaf and branch found at the Horsham and Hamilton premises. The botanists agreed the quantity of cannabis could not be determined.
161Accordingly, in my consideration of whether Mr Tran intended to cultivate a commercial quantity of cannabis, I have had regard to the number of plants, 281 and their weight, 27 kilograms, found at the Horsham property and disregarded the quantity, which could not be determined, of the other cannabis material found there.
162And, accepting the evidence cannabis leaf and branch are waste product, in consideration of the trafficking charge, I have had regard only to the quantity of cannabis flowers which were found drying at the Hamilton property and which weighed 7.6 kilograms and disregarded the other cannabis material found there.
Answers at interview
163Police questioned Mr Tran only in relation to the cannabis they found drying on a rack in the room at the Hamilton property. At that point, they were not aware of the cannabis cultivation at the Horsham property. Because of the limits to the questioning, it cannot be said Mr Tran made a global denial of knowledge of cannabis. While his answers that he did not know what the material on the rack was and he did not know what cannabis smelled like are unlikely truthful, I put them aside and I asked myself whether the prosecution has proved Mr Tran's guilt beyond reasonable doubt, on the basis of the evidence I do accept.
164In relation to the commercial quantity cultivation charge, the issue is whether the prosecution has proved beyond reasonable doubt Mr Tran knew or believed or was aware that there was a significant and real chance he was cultivating not less than 100 cannabis plants.
165In relation to the trafficking charge, the issue is whether the prosecution has proved beyond reasonable doubt Mr Tran prepared the cannabis, and/or possessed it, for the purposes of sale.
166The prosecution case is a circumstantial one, based on inferences to be drawn from the evidence adduced in the trial. The principles that apply to such a process of reasoning are well established. Any inference must be based on the facts established by the evidence in the trial. Such an inference must be a process of logical and reasonable deduction from the evidence. In order to draw an inference relied on by the prosecution, I must be satisfied that inference is the only reasonable inference available on the evidence. If there is an alternative reasonable inference, or hypothesis, open on the evidence that is consistent with Mr Tran's innocence and which I am unable to exclude, I could not draw the guilty inference against him.
167The evidence establishes:
· The Horsham property had been considerably modified to allow for the cultivation of cannabis to go undetected and was being used as a substantial and sophisticated cannabis grow house. On 20 March 2020:
§it was found equipped with wall and floor coverings, lamps, bastion roof vents, grow pots and an electricity bypass:
§two hundred and eighty-one plants were being grown in a kitchen cupboard, an office, a bedroom and in the garage;
§there were bags of harvested cannabis stalk and leaf waste product in two bedrooms, the laundry and garage; and
§there were empty grow pots in three bedrooms.
· It was highly likely, at some time, Mr Tran had handled personal items, namely a toothbrush and an asthma puffer and a glass tumbler found in the kitchen.
· Mr Tran's mobile phone had been used in the vicinity of Horsham on seven days in November 2019 and on 6, 12, 15, 17 and 19 March 2020.
· Timber and a bastion roof vent had been purchased at Bunnings Horsham on Mr Tran's trade account on 2 November 2019. Other items had been purchased at the same store on his account on 13 and 27 November 2019.
· Keys, which fitted the door locks to the Horsham property, were found in
Mr Le's car at Hamilton on 20 March 2020.· In his phone, Mr Le had a screenshot of an envelope addressed to the resident of 63 Wavell Street, Horsham.
· In his phone, Mr Tran had a screenshot of Mr Le's driver's licence, a photo of an electrical bypass and photos of black plastic bags with pieces of cardboard, containing handwritten Vietnamese writing, bags which were similar in appearance to the bags of harvested leaf and stalk found at the Horsham property. Mr Le had sent Mr Tran the photos of the plastic bags on 19 March 2020 at 8.54 pm.
· In his wallet, Mr Tran had a Bunnings trade account.
168Additionally, the evidence establishes:
· On 19 March 2020, Mr Tran made a return trip from the Hamilton property to Horsham, with Mr Le in Mr Le's car.
· He had slept overnight at the Hamilton property on 19 March 2020 with Mr Le.
· He was present at the property on 20 March with Mr Le when police attended.
· At that time:
§There was a strong smell of cannabis inside the house.
§Heaters and fans were operating in a room where cannabis was being dried on a rack.
§The drying cannabis weighed 7.6 kilograms.
§In the same room, there were three bags containing harvested cannabis leaf and branch waste product.
· An illegal electricity bypass had been fitted to the meter at the Hamilton property.
· Mr Tran's mobile phone had been used in the vicinity of Hamilton on 16, 18 and 19 March 2020.
169The evidence also establishes Mr Tran:
· was a tradesman who made a number of purchases on his trade account at Bunnings and stores in Northern and Western Melbourne suburbs in August, September, October and December of 2019; and
· he is a man of good character.
170I have carefully considered the defence argument the evidence of his presence at relevant times in the Horsham vicinity, and at some time inside the Horsham house, as well as his presence at the Hamilton property on 19 and 20 March 2020, is an explicable coincidence, or in some other way consistent with innocence. I have also carefully considered the argument, because of the location of the 281 plants in different parts of the Horsham property I must have a reasonable doubt Mr Tran knew or believed or was aware of the real or significant chance more than 100 plants were being grown. And I have carefully considered the defence argument Mr Tran’s presence at the Hamilton property, in company with any person, Le, without any evidence of him handling the cannabis, is insufficient to prove he prepared the drying cannabis for sale or possessed it for sale
171If there is any reasonable explanation consistent with innocence I must acquit Mr Tran.
172None of the facts the prosecution rely on establish individually the guilty intention of Mr Tran in respect of either charge to the criminal standard. However, the strength of the prosecution case lies in the accumulation of detail.
173Considering the evidence as a whole, as I must, I am satisfied Mr Tran carried out modifications to the Horsham property, which included the installation of a bastion vent in November 2019 and on 12, 15, 17 and 19 March 2020, he was involved in the cultivation of cannabis plants at the same property.
174Considering the cultivation operation was substantial and sophisticated, and apart from the 79 plants, which were being grown in a kitchen cupboard, the remaining 202 plants were obvious by their presence. I am also satisfied the only reasonable conclusion to be drawn from the whole of the evidence is between 12 and 20 March 2020:
(a) Mr Tran intentionally cultivated not less than 100 plants, cannabis plants, at Horsham; and
(b) he was, at the least, aware there was a significant and real chance that he was cultivating not less than 100 Cannabis L plants.
175I am also satisfied the only reasonable conclusion to be drawn from the whole of the evidence is between 19 and 20 March 2020, Mr Tran and Mr Le had collected fresh cannabis plants from the Horsham property, harvested the cannabis heads from the plants and were drying the cannabis heads in a room at the Horsham property, and when he did this, Mr Tran was preparing the cannabis, which weighed 7.6 kilograms, or 30.4 times a traffickable quantity, and was in possession of it, with the intention it would be sold.
176It follows I find Mr Tran guilty of cultivating a commercial quantity of cannabis and I find him guilty of trafficking cannabis.
‑ ‑ ‑
0
0
0