DIRECTOR OF PUBLIC PROSECUTIONSvLUONG NGUYEN

[2021] VCC 1083

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01278

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2021
DATE OF RULING:	27 July 2021
CASE MAY BE CITED AS:	DPP v Nguyen (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2021[ VCC 1083

REASONS FOR RULING

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Subject: Pursuant to s98(1) of the Evidence Act 2008 (the Act) intention to adduce coincidence evidence in the trial of both accused. 

Ruling:  Prejudice to the accused. Prosecution not allowed to lead the evidence sought to be relied upon.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher
For the Accused	Ms A. Dixon

HIS HONOUR: 

1The accused Luong Thi Nguyen is charged on indictment with one charge of cultivating a narcotic plant, Cannabis L, in a quantity that was not less than a large commercial quantity.  This offence is alleged to have been committed at a property at Hoppers Crossing on the 24 October 2019. (Charge 1).

2The allegations in Charge 1 allege the growing of a large cannabis crop by the hydroponic method.  Charge 3 is a charge of theft of electricity by means of an electrical by-pass at the Hoppers Crossing property where that crop was allegedly grown by the accused. (Charge 3).

3The accused is also charged on the same indictment with a charge of cultivating a narcotic plant, Cannabis L, in a quantity that was not less than a commercial quantity.  This offence is alleged to have been committed at a property at Wyndham Vale also on the 24 October 2019. (Charge 2).

4Charge 4 is another charge of theft of electricity by means of an electrical
by-pass at the Wyndham Vale property where that crop was allegedly grown by the accused. (Charge 4). 

5The accused is alleged to have committed each of the charges with a male, Cuong Van Le (“Le”).  They are each charged on the same indictment.  The prosecution case is that at all times they acted together as principal offenders in each of the charges.  The co-accused Le is now deceased in circumstances not here relevant, so that the trial proceeds only against Ms Nguyen.

6By noticed dated 12 February 2021, the prosecution has given notice pursuant to s98(1) of the Evidence Act 2008 (the Act) that it intends to adduce coincidence evidence in the trial of both accused. 

7The effect of the notice is that the prosecution intends to use the evidence led by it that relates to Charges 1 and 3, ('the Hoppers Crossing charges') to prove Charges 2 and 4 ('the Wyndham Vale charges') and vice versa.  In effect, if the prosecution has its way, the evidence on each charge will be admissible on the other charges.

8The prosecution seeks to proceed in this way to prove that both the accused did a particular act or had a particular state of mind, on the basis that it is improbable that the growing of a large crop of cannabis at both the Hoppers Crossing property, and the Wyndham Vale property occurred coincidentally.  The prosecution alleges that there are a number of similarities and circumstances in the evidence to validate this conclusion.

9Notice having been given by the prosecution under s98(1), before the prosecution can adduce coincidence evidence, the court must be satisfied the evidence will, either by itself, or having regard to other evidence adduced, or to be adduced by the prosecution, have significant probative value.

10Ms Dixon, who appears as counsel for the accused Nguyen, submits the evidence related to the charges concerning the Hoppers Crossing property, either by itself, or having regard to other evidence adduced by the prosecution, does not have significant probative value in relation to the charges concerning the Wyndham Vale property.  Conversely, she also submits that the evidence related to the charges concerning the Wyndham Vale property, either by itself, or having regard to other evidence adduced by the prosecution, does not have significant probative value in relation to the charges concerning the Hoppers Crossing property.

11Mr Fisher, who appears to prosecute, submitted coincidence reasoning is relevant to assisting the jury to decide:

(i)  whether the Hoppers Crossing property and the Wyndham Vale property are connected;

(ii) whether the accused Nguyen cultivated cannabis at each property;

(iii) whether the accused Nguyen stole electricity at each property.

12For the reasons that follow, I am not satisfied that the coincidence reasoning sought to be relied upon by the prosecution has significant probative value in all of the circumstances of this case.

13It is the experience of this court that the offences charged here are prevalent.  The offence is almost always committed in the same way by whoever seeks to cultivate a cannabis crop.  That is, a vacant house is secured.  An elaborate hydroponic set up is established with lighting and drainage, electrified by means of an electricity by-pass often concealed in the wall of the property.

14There is nothing in the facts and circumstances alleged here to distinguish this case from many others.  They are all similar.  The similarities between this case and others do not assist in identifying the accused Nguyen as the person who cultivated the crop at either property, or as the person who might have stolen the electricity at each property as alleged.

15It is necessary to refer to the factual matrix alleged in the summary of prosecution opening dated 12 February 2021.

16At 7:45 am on 24 October 2019 police executed a search warrant at the Hoppers Crossing property.  Both accused were located in the kitchen.  It was obvious that cannabis was being cultivated at the property.  Both accused were arrested.

17Police conducted a search of the house at the Hoppers Crossing property which revealed a sophisticated hydroponic setup being used to grow cannabis. 
Each room of the house contained cannabis plants at various levels of maturity.  An electrical bypass was located within the wall cavity of one of the rooms.

18A search of the house revealed numerous cannabis plants at various stages of development, as well as a computer hard drive and three Apple iPhones. $515 cash was found in a purse.  In total the Hoppers Crossing property contain 273 cannabis plants that weighed 292.023 kgs.

19Both accused were arrested and taken to the Wyndham North police station.

20A search was also conducted of the accused Nguyen’s red Toyota Aurion motor vehicle that was parked in the driveway of the Hoppers Crossing property.  Inside the vehicle police found a black Apple iPhone, a Simple Energy power bill and some green folders, one of which contained three receipts showing purchases from Bunnings in Werribee.

21The power bill referred to a property in the name of the accused at Wyndham Vale, namely the Wyndham Vale property.  Later that afternoon a search warrant was also executed at that address.

22That search revealed another sophisticated hydroponic arrangement that was being used to grow cannabis at the Wyndham Vale property.  Each room of the Wyndham Vale property contained cannabis plants at various stages of maturity.  Another electrical bypass was also located in the wall cavity of one of the rooms.

23At the Wyndham Vale property a total of 132 cannabis plants weighing
67.29 kg was found.

24A search of the Wyndham Vale property also revealed three Colgate toothbrushes, a pair of blue gardening gloves located on the kitchen bench, and a pair of pink gardening gloves also on the kitchen bench.

25Police also searched another vehicle located at the Wyndham Vale property.  Car keys that had been located at the Hoppers Crossing property were used to unlock the car which contained two notebook computers.

26The toothbrushes and gardening gloves found that the Wyndham Vale property were subjected to DNA analysis.  That analysis revealed the presence of DNA matching that of each accused on the interior of two of the gardening gloves.

27Both accused were interviewed.  Neither accused made any admissions in relation to the alleged offences.

28On 29 October 2019 police obtained CCTV footage from the post office at the Werribee shopping centre.  The prosecution alleges that the CCTV footage shows the accused together at the post office at 9:04 am on 22 October 2019.  It is alleged they were at the Post Office paying an electricity bill issued by Simple Energy that related to the Wyndham Vale property.

29Investigating police also obtained some CCTV footage from Bunnings in Werribee.  It is alleged that footage shows the accused Le at Bunnings on
9 October 2019, and that he purchased gloves, pruners and some plant tie wire.

30It is further alleged that the CCTV footage from Bunnings, three days later on 12 October 2019 shows the accused Nguyen purchasing pruners, gloves, irrigation pipes and a plastic pot.

31It's alleged that the similarities between the two hydroponic arrangements, the proximity of the two houses, and their connection to both of the accused, demonstrates both the tendency to commit the alleged offences as well as coincidence evidence.  No tendency notice has been filed.

32The Crown case is that both accused are principal offenders to each of the charges. It is further alleged that both the accused are jointly liable for the offending conduct pursuant to ss323-324 of the Crimes Act 1958.

33Mr Fisher filed a helpful written outline of submissions relating to the admission into evidence of coincidence evidence reasoning.  He submitted that there are a number of similarities in the facts and circumstances between the offences alleged:

a.  The two properties were used to grow cannabis;

b.  The two properties are located a short distance from each other (about 8 km) in neighbouring suburbs;

c.  An electrical by-pass was set up within each of the two properties to avoid liability for the electricity, and to avoid detection;

d.  Both electrical bypass facilities were set in the same manner and in the same location within the wall cavity;

e.  Numerous rooms at each property were used to grow cannabis;

f.   A similar hydroponic arrangement was operating at both properties;

g.  The quantity of cannabis cultivated at each property was significant, being in excess of the commercial quantity threshold in each case;

h.  The accused Nguyen had evidentiary links with each property – that is, she was arrested in the Hoppers Crossing property and was linked to the Wyndham Vale property by way of a DNA match to two gloves seized inside those premises as well as having paid for a power bill for that property in the days preceding her arrest.

34The principal facts in issue in this trial our weather the accused Nguyen had knowledge of the cannabis crop at each property, and whether she intended to cultivate a large commercial quantity of cannabis at the Hoppers Crossing property, and whether she intended to cultivate a commercial quantity of cannabis at the Wyndham Vale property.

35The prosecution submits that the evidence sought to be led as coincidence evidence has substantial probative value.  The prosecution submits that evidence of two or more events, namely the cultivation of cannabis at two residential properties linked to the accused Nguyen tends to prove that the accused Nguyen performed a particular act or had a particular state of mind on the basis that it is improbable that the events occurred coincidentally, having regard to the similarities in the events and/or the circumstances in which they occurred.

36For the prosecution to go to the jury employing coincidence reasoning, the evidence must have significant probative value, and it must substantially outweigh any likely prejudicial effect.  There must be some similarity by way of underlying unity, a common modus operandi or a pattern of conduct. 
The prosecution submits that it is not necessary for the evidence to show striking similarity.  Prosecution submits here that there is similarity in the circumstances surrounding the cultivation of the cannabis at the two houses.  The prosecution relies upon the principles expressed by the Victorian Court of Appeal in Harris (a pseudonym) v The Queen [2015] VSCA 112. 
The prosecution relies upon the whole of the circumstances alleged taken together.  It relies upon Hunt (a pseudonym) v The Queen [2017] VSCA 196, and Pearson (a pseudonym) v The Queen [2016] VSCA 341.

37Referring to the alleged similarities that I have set out in paragraph 33 above, Mr Fisher submitted that the evidence clearly linked the accused Ms Nguyen with each of the two properties.  He submitted that the similarities disclosed by the evidence referred to in paragraph 33 above were strikingly similar making the whole of the evidence admissible as coincidence reasoning.

38Mr Fisher submitted that if there be any prejudice flowing to the accused by permitting the evidence to be used for coincidence reasoning that can be addressed by judicial direction.

39Mr Fisher further submitted that if admitted as coincidence evidence all the evidence could be used by the jury in consideration of each charge. 
He submitted the similarities shown by the whole of the evidence would permit the jury to properly draw inferences that the cannabis crop at each property was grown by the accused Nguyen, and the electricity stolen by her at each address.  Mr Fisher submits that the evidence on the prosecution case does not suggests involvement of any other identified person in the offending.

40Ms Dixon also filed a helpful written outline of her submissions.  She submitted, correctly, that if the prosecution seeks to rely on coincidence evidence, in order that the evidence be admissible as coincidence evidence the prosecution must demonstrate that the similarities in the specified events, or in the circumstances in which they occurred, are such that it is improbable that the events occurred coincidentally.  She submitted the prosecution must demonstrate that the coincidence evidence relied on has significant probative value in respect of the fact or facts that are sought to be established.  The probative value of the evidence must be far higher than mere relevance.  Section 101(2) of the Act provides that the coincidence evidence is not admissible, unless its probative value substantially outweighs any prejudicial effect.  Ms Dixon also relied upon Harris (supra) at paragraphs 10 to 13.

41Ms Dixon attacked the prosecution submission that insofar as there is evidence suggesting Ms Nguyen cultivated cannabis at the Wyndham Vale property, then this evidence makes it highly improbable that there is an innocent explanation for her presence at the Hoppers Crossing property at the time of the arrest. 
The prosecution relies on several suggested similarities between the two addresses, and the suggestion they were in neighbouring suburbs, to argue that because the accused Nguyen was involved in cultivation at the Wyndham Vale property then she must have also been involved in cultivation at the Hoppers Crossing property.

42Ms Dixon submits that the similarities between the cultivations at the two properties are 'the stock in trade' for the cultivation of cannabis offences. 
I accept this submission.  As I said earlier, the features of the hydroponic cultivation of cannabis set up in numerous rooms at each of the properties here are similar to cases routinely dealt with in this court.  In my judgement, the similarity of features of the cultivation set up at each property has little probative value to the central fact in issue in the trial, namely whether the accused Nguyen cultivated at each property, or stole electricity at each property. 
At paragraph 13 of her submissions, Ms Dixon referred to a number of cases with similar features that have been before the courts in recent times.

43The Wyndham Vale property and the Hoppers Crossing property are not 'nearby' in my judgment.  They are 8 kilometres apart and they are doubtless separated by thousands of other properties in between.  The fact both properties are in the Western suburbs of Melbourne, in my judgment is not probative of any fact in issue in the trial.  In my view, the fact both properties are in the Western suburbs is not a similarity for the purposes of this analysis.

44Ms Dixon questions the strength of the prosecution case in so far as it asserts there is evidence linking the accused Nguyen to the Wyndham Vale property.  She submits the evidence of Ms Nguyen’s DNA being found on gloves at the property is not conclusive.  The electricity account found in the accused car has now been lost, and it was never fingerprinted.  The CCTV footage said to depict both accused together at the Werribee Post Office is not clear and does not clearly identify the accused Nguyen.  Ms Dixon submits in these circumstances, and taking the evidence as a whole, it cannot properly be concluded that the accused Nguyen was aware of the cultivation at the Wyndham Vale property.  She submits if the evidence does not conclusively show the accused Nguyen was aware of the cultivation at the Wyndham Vale property, then it is highly improbable that it was anyone other than the accused who cultivated the cannabis at the Hoppers Crossing property.  I accept that submission.

45Relying on DSJ & Anor v R [2012]NSWCCA 9, Ms Dixon submits the analysis of whether coincidence evidence has substantial probative value cannot proceed without first giving careful consideration to whether the evidence leaves open alternative explanations that properly arise on the evidence, and that are inconsistent with guilt.

46Ms Dixon submits that the evidence relied upon by the prosecution to link the accused Nguyen to the Wyndham Vale property is of a highly speculative variety.  She submits the evidence does not of itself go very far towards foreclosing hypotheses that are inconsistent with the proposition that the accused cultivated cannabis at the Hoppers Crossing address.  She submits that for these reasons the evidence linking the accused Nguyen to the Wyndham Vale address is not capable of rationally affecting the assessment of the probability that the accused cultivated cannabis at the Hoppers Crossing address to a significant extent and should be excluded on that basis.  I also accept the submission.

47Ms Dixon submitted, and I accept, that although the accused Nguyen was arrested at the Hoppers Crossing property, there is no evidence that she herself effected the electricity bypass at that property or at the Wyndham Vale property, or that she ever used electricity at the either property.  Ms Dixon submitted the fact that the bypass at each property was secreted within the wall cavity, and absent actual evidence of the accused Nguyen’s knowledge of the existence of the bypass, then it cannot be shown that she knew either of them to exist.

48Conceding for the purposes of the argument that the evidence linking the accused Nguyen to the cultivation at the Hoppers Crossing property is stronger because she was arrested whilst present at the property, Ms Dixon argued that is not the end of the matter.  There is no evidence as to how long Ms Nguyen had been at the property at Hoppers Crossing, or what she did there. 
The evidence really only establishes a momentary presence. There is no evidence of surveillance, or of covert recordings, or who it was that took the steps to insert the electrical bypass at the Hoppers Crossing property. 

I generally accept these submissions.

49Ms Dixon submits that even if it be assumed (for the purposes of argument) that a strong inference can be drawn that her client cultivated cannabis at the Hoppers Crossing property, there is nevertheless insufficient connection between the two addresses for it to be safe to rely on proof of the Hoppers Crossing allegations to be led in indirect proof of the Wyndham Vale property allegations.  I also accept that submission.

50In reality though, the only strength in the evidence against the accused Nguyen connecting her to the cultivation at the Hoppers Crossing property is the fact she was found there and arrested at that address.  In my view, this fact alone, does not have significant probative value on the question of proving that the accused Nguyen cultivated cannabis at the Wyndham Vale property.  The fact that the accused was present, and arrested, at the Hoppers Crossing property does not have significant probative value as coincidence evidence against the accused in proof of the allegation that she also cultivated cannabis, or stole electricity at the Wyndham Vale property.

51As I have endeavoured to express, I accept the submissions made by Ms Dixon that the coincidence evidence sought to be relied upon by the prosecution as coincidence evidence in this case does not have significant probative value within s98 (1) (b) of the Act.

52It is therefore not necessary for me to give consideration to the question of whether the probative value of the evidence substantially outweighs any prejudicial effect on the accused within s101 (2) of the Act.  However, I make this observation, that if the coincidence evidence sought to be led by the prosecution were permitted, there would be undoubted prejudice to the accused in the running of the trial which in this case is self-evident.

53For these reasons, I will not permit the prosecution to lead the evidence sought to be relied upon by it as foreshadowed by its notice dated 12 February 2021 as coincidence evidence.

54That leaves the question as to whether Charges 1 and 3 relating to the Hoppers Crossing charges should be heard separately from Charges 2 and 4 relating to the Wyndham Vale property.  Although I have not yet heard argument on this question, and I keep an open mind as to this issue, if all of the charges were to be heard together there maybe prejudice to the accused in the running of the trial of the kind foreshadowed by Ms Dixon in her submissions as to the prejudice that would flow if the prosecution were permitted to rely on coincidence reasoning earlier dealt with.

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