Nguyen v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0009

THANH HONG NGUYEN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2025
DATE OF JUDGMENT:	14 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 184
JUDGMENT APPEALED FROM:	[2024] VCC 1128 (Judge Hogan)

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CRIMINAL LAW – Appeal – Conviction – Cultivating commercial quantity of cannabis – Commercial quantity constituted by weight – Defence case that applicant not aware that significant or real chance that commercial quantity exceeded – Whether judge erred in directions on good character – Whether judge’s comments on disputed facts productive of a substantial miscarriage of justice – Appeal allowed – New trial ordered.

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Counsel
Applicant		Mr T Kassimatis KC with Mr CK Wareham
Respondent		Mr JCJ McWilliams
Solicitors
Applicant	Theo Magazis & Associates
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BOYCE JA:

The applicant cultivated cannabis

At 11.08 am on 31 August 2021, police executed a search warrant at 70 Judkins Avenue, Hoppers Crossing (‘the premises’). The applicant, who was the sole registered owner of the property, was not at the premises.
During the execution of the search warrant, police located cannabis in various locations, including: 18 cannabis plants located inside the master bedroom (Room 1), weighing 32.06 kilograms; 36 cannabis plants located inside a second bedroom (Room 2), weighing 2.52 kilograms; nine cannabis plants located inside a third bedroom (Room 3), weighing 19.18 kilograms; and nine cannabis plants located inside a fourth bedroom (Room 4), weighing 19.96 kilograms (that is, a total of 72 plants with a combined weight of 73.72 kilograms).[1]
[1]A commercial quantity of Cannabis L is 25 kilograms or 100 plants. See Drugs Poisons and Controlled Substances Act 1981, s 70(1) and sch 11, pt 2, column 2.
Throughout the premises, police located plant fertilisers and plant nutrients, multiple pairs of secateurs and associated plant material. Police also located a box of prescription medication in the applicant’s name in the living room, and one blue toothbrush and one blue-silver toothbrush in the ensuite of the master bedroom.
In the course of their search, police also found an electrical bypass located in the roof cavity. A licensed electrician from Powercor attended the property during the execution of the search warrant and dismantled the electrical bypass circuit.[2]
[2]It was determined that more than 40,000 kilowatt hours of electricity, valued at over $10,000, was stolen through use of the bypass.
On 17 November 2021, the applicant voluntarily attended Werribee Police Station where he was arrested and interviewed. In brief summary, during the interview the applicant told police that he:
·    had owned the premises for two years and was paying the mortgage;
·    was the sole resident of the property and had exclusive access;
·    began growing cannabis in May 2021 because he needed money for his mortgage repayments and living expenses during the COVID-19 pandemic;
·    supports his mother, and his younger brother and sister in Vietnam;
·    was working approximately 20 hours per week;
·    alone cultivated the plants through the entire process; including obtaining and potting the seeds, installing and maintaining the hydroponic setup for growing, and harvesting and drying buds;
·    did not sell any cannabis because police executed the search warrant prior to the plants being ready for selling;
·    he did not know how much cannabis sold for on the street, but his friend sold it for $1400 per pound;
·    was aware growing cannabis is illegal and may result in imprisonment; and
·    installed the electricity bypass himself, knowing it to be illegal to steal electricity.
During the interview police also obtained a DNA sample from the applicant, which was later matched to DNA located on the blue-silver toothbrush.

Proceedings in the County Court

On 30 April 2024, the applicant pleaded guilty in the County Court to an indictment containing a charge of theft of electricity (‘the plea indictment’). That same day he was arraigned before a jury panel on an indictment containing a charge of cultivating a narcotic plant, Cannabis L, in not less than a commercial quantity[3] (‘the trial indictment’), and pleaded not guilty.
[3]Drugs Poisons and Controlled Substances Act 1981, s 72A. The prosecution alleged a commercial quantity was constituted by weight, not the number of plants.
In the trial that followed, much of the prosecution case was not disputed. The thrust of the defence case was that the applicant was guilty of cultivating simpliciter,[4] and the jury should so find.[5] On 3 May 2024, however, the jury empanelled to try the applicant found him guilty of the charged offence.[6]
[4]Drugs Poisons and Controlled Substances Act 1981, s 72B. The maximum penalty is 15 years imprisonment, as opposed to 25 years’ imprisonment under s 72A for cultivating a commercial quantity.
[5]In responding to the prosecutor’s opening, the applicant’s trial counsel told the jury that there was ‘no dispute’ that the applicant grew cannabis: ‘what is in dispute is whether or not he intended cultivating a commercial quantity of it’.
[6]On 24 July 2024, the trial judge sentenced the applicant to 3 years and 4 months’ imprisonment on the cultivation charge and 6 months’ imprisonment on the theft charge. An order for cumulation resulted in a total effective sentence of 3 years and 5 months’ imprisonment, upon which the judge fixed a non-parole period of 20 months’ imprisonment.

The applications in this Court

The applicant filed an application for an extension of time within which to file a notice of leave to appeal against conviction on 13 January 2025, around five months out of time.[7] In the event that the application for an extension of time succeeded, the applicant sought leave to appeal against conviction on two grounds that contend that a substantial miscarriage of justice occurred as a result of the trial judge’s:
1… directions on the Applicant’s prior good character. In particular, the trial judge erred by directing that:
(a) it was a matter for the jury – ‘if [they] wished’ – whether they applied the directions they were given; and
(b) the probative value of evidence that an accused person has no criminal history is generally ‘extremely limited’.
2… impermissible comments on:
(a) the disputed facts in issue; and
(b) defence counsel’s submissions to the jury.
[7]Section 275(1) of the Criminal Procedure Act 2009 requires a notice of application for leave to appeal against conviction to be filed ‘within 28 days after the day on which the person is sentenced or any extension of that period granted under section 313’. The judge imposed sentence on the applicant on 24 July 2024, so that the notice of application for leave to appeal against conviction should have been filed on or about 21 August 2024.
In our view, the applicant should enjoy success on the second ground. We would grant the extension of time; grant leave to appeal; allow the appeal; and order a new trial.

Ground 1: Flawed directions on good character

In the course of the trial, the applicant’s counsel told the judge that he anticipated that he would ask questions of the informant, ‘limited’ to the applicant’s lack of prior convictions, so as to attract a ‘character direction’.
At the commencement of her charge, the trial judge directed the jury that they were bound to follow her directions of law, distinguishing those directions from the submissions made by counsel and any comments she may make on the facts.
Later in the charge, the judge gave the following directions on the applicant’s supposed good character:[8]
Now, you heard evidence from the informant, the chief investigating officer, in relation to this charge, Detective Senior Constable Mark Markovski, that the accused man has no prior criminal history. You can, if you wish, take that into account in deciding that it is therefore more likely that the accused’s version of events that he gave to police in his record of interview is credible, although it does not touch on the crucial issue in this trial as to whether he had the intention to cultivate a commercial quantity.
You can, if you wish, also take the accused’s lack of criminal history into account to determine the likelihood of whether he committed the offence. Some might think that a person who had not been in trouble with the law before might be less likely to commit the offence with which he is charged. Of course, the evidence that the accused has no prior criminal history does not mean that you must find him not guilty of the offence charged. The mere fact that a person has not committed a criminal offence in the past cannot alter proven facts or provide a defence in itself, it can only help you decide whether or not those facts are proven.
You should keep in mind the fact that a person who has previously not offended can commit an offence for the first time. It is a matter for you whether you do use this evidence of lack of prior criminal offending in either of the two ways I have mentioned. However, generally speaking, the probative value of such evidence is extremely limited.
[8]Emphasis added.
Counsel for the applicant in this Court submitted that the directions set out immediately above betray three serious errors. First, counsel submitted, the trial judge left it to the discretion of the jury to decide whether they followed her directions of law. It was not for the jury to take the applicant’s good character into account if they wished. As a matter of law, the jury was bound to do so. Secondly, it was wrong to tell the jury that ‘[s]ome might think that a person who had not been in trouble with the law before might be less likely to commit the offence with which he is charged’. The law presumes that a person with no criminal history is less likely to have committed an offence than someone who has offended in the past. It is not the idiosyncratic opinion of an anonymous ‘some’ that think so, which a jury is at liberty to ignore ‘if [they] wish’. Thirdly, it was a serious misdirection to tell the jury that the probative value of evidence of previous good character is ‘extremely limited’. That statement finds no support in the authorities and is wrong. The fact that evidence of good character gives rise to a presumption that an accused person is less likely to have committed an offence and more likely to be credible, suggests that the law regards its probative value as other than ‘extremely limited’.
The respondent’s counsel submitted that, even if some of the wording of the impugned directions were infelicitous, no substantial miscarriage of justice resulted. As to the first asserted misdirection, the addition of the words ‘if you choose’ is mere surplusage. A good character direction is an invitation to take evidence into account, not a requirement. The direction did just that. With respect to the second asserted misdirection, whilst acknowledging that it would be better to use the expression contained in the Charge Book,[9] the respondent’s counsel submitted that using the expression ‘some might think’ did not amount to a legal error. As to the third asserted misdirection, counsel submitted that the comment was appropriate because in the particular circumstances of this case, the probative value of the evidence was ‘extremely limited’. It was undisputed that the applicant had engaged in a deliberate criminal enterprise over a number of months. The only question for the jury was whether, in committing that admitted crime, he was aware that there was a significant or real chance that he was cultivating not less than a commercial quantity — that is, not less than 25 kilograms — of the plants.[10] In circumstances where the applicant unquestionably knew what he was doing was illegal and chose to do it in any event, the applicant’s lack of prior convictions was of limited utility.
[9]The Criminal Charge Book, Judicial College of Victoria, (‘Charge Book’), contains the following model direction (at [4.3.1]):
[10]R v Nguyen; Re DPP Reference (No 1 of 2004) (2005) 12 VR 299, 309–310 [26] (Vincent, Eames and Nettle JJA); R v Bui [2005] VSCA 300, [25] (Eames JA); R v Garlick [2006] VSCA 127, [25] (Vincent, Ashley and Redlich JJA); Kohari v The Queen [2018] VSCA 307, [9] (Kaye, T Forrest and Ashley JJA).
Although we consider that the judge’s directions on good character were flawed, we have been unable to conclude that they were the source of a miscarriage of justice. As we will explain, we consider that, in the circumstances of this case, it was somewhat absurd to give a good character direction.
Turning to relevant authority, Vye[11] was a case of conjoined appeals in which the appellants appealed against convictions for various offences, the common theme being the relevant principles to be applied, and the approach that a trial judge should take, when directing a jury as to the relevance of an accused person’s good character. As had been recognised in other cases, the Court of Appeal equated an absence of prior convictions with good character.
[11]R v Vye [1993] 1 WLR 471; [1993] 3 All ER 241; (1993) 97 Cr App R 134.
In Aziz, the House of Lords applied Vye, noting that in the ‘usual case’ a lack of prior convictions was equated with evidence of good character.[12] It was held that, where an accused has no prior convictions, ‘prima facie’ the trial judge must direct the jury in respect of the accused’s good character.[13] But it was also observed[14] that
a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with Vye in a case where the defendant’s claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with Vye. I am reinforced in thinking that this is the right conclusion by the fact that after Vye the Court of Appeal in two separate cases ruled that such a residual discretion exists: Reg v H [1994] Crim LR 205 and Reg v Zoppola-Barraza [1994] Crim LR 833.
[12]R v Aziz [1996] AC 41, 51 (Lord Steyn, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Browne-Wilkinson and Lord Mustill concurring) (‘Aziz’).
[13]Ibid 53.
[14]Ibid. Emphasis added.
Vye and Aziz were considered by the High Court in Melbourne.[15] The appellant in that case had been convicted of the stabbing murder of a female neighbour. There was evidence that the appellant had no previous convictions (other than one for drink-driving some years earlier) and was not ‘adversely known to the police. Various descriptions of his character and personality were given by those who knew him, including that he was ‘always gentle’, ‘never’ been ‘aggressive’, ‘very quiet’, ‘a very amiable sort of person’ and ‘a very quiet, well-behaved gentleman’.
[15]Melbourne v The Queen (1999) 198 CLR 1 (‘Melbourne’).
McHugh J held that the ‘character evidence’ was not of such probative significance in relation to the appellant’s credibility as to require a direction that the evidence bore favourably upon his credibility.[16] Both McHugh J and Gummow J cited the dissenting judgment of Thomas J in Falealili.[17] McHugh J[18] cited the following passage:[19]
Consequently, if the evidence of the accused’s good character is both probative and relevant the Judge will, almost as a matter of course, direct the jury as to its significance in summing up the defence case. It would be unfair not to do so. If, on the other hand, the purported character evidence is lacking in probative force and of remote relevance to the charge in issue, the Judge may decide that a good character direction is not warranted. Or the Judge may consider that it would be prudent to proffer a good character direction, but then to qualify it in order to put it in perspective having regard to the circumstances of the case. To proscribe that, whenever character evidence is adduced or elicited, a good character direction should be given and that it must generally embrace both the credibility and propensity limbs of the direction is an unnecessary fetter on that discretion.
[16]Ibid [53]–[54].
[17]R v Falealili [1996] 3 NZLR 664 (‘Falealili’).
[18]Melbourne, 20–21 [50].
[19]Falealili, 671–2.
Gummow J said[20] that he preferred ‘as consistent with the established position in this Court, the statement of Thomas J in his dissenting judgment in Falealili’. He too cited the passage from Falealili set out above, together with an additional passage:[21]
In some cases the good character of the accused may be an integral part of the defence. A number of reputable persons may have testified as to the accused’s character. In other cases the so-called evidence of good character may be little more than a passing reference, included by defence counsel, perhaps, simply because there is no other defence. In other cases the established facts of the case may itself indicate that, irrespective of how unblemished the accused’s reputation may be, he or she can barely be described as a person of good character. Because the circumstances will vary greatly it is not possible to lay down comprehensive guidelines as to when and how the Judge’s discretion should be exercised. Nor is it desirable to do so. Unless guidelines are treated as being just that, guidelines and no more, they could themselves inhibit the exercise of a Judge's discretion to do what is most appropriate having regard to the facts of the particular case.
[20]Melbourne, 29–30 [79].
[21]Falealili, 671–2.
After a discussion of authority, Kirby J observed:[22]
The foregoing is reason enough to reject the notion, found in many English decisions, that ‘good character’ is synonymous with the absence of prior criminal convictions. The latter may be an indication of the former; but it is not necessarily so. I agree with Henry J’s remark in R v Falealili[23] that ‘there are logical difficulties with the proposition that an absence of previous convictions is in itself evidence establishing a person’s good character. It may be a factor in assessing good character, but standing on its own it is generally neutral’. Proof of an absence of previous convictions, without more, would not, therefore, attract a judicial obligation to give directions about ‘good character’. Fairness and balance in a charge to a jury might warrant mention by the judge of that fact. But for a ‘good character’ direction, more evidence would be needed. To the extent that this distinguishes the rule applicable in New Zealand from that applicable in England,[24] I prefer the former.
[22]Melbourne, 42 [108].
[23][1996] 3 NZLR 664 at 667, per Henry J with whom Eichelbaum CJ, Richardson P and Neazor J concurred.
[24]Munday, ‘What Constitutes a Good Character?’ [1997] Criminal Law Review 247 at 255; cf Munday, ‘Directing Juries on the Defendant’s Good Character’ (1991) 55 Journal of Criminal Law 521 at 533.
Callinan J cited[25] the passage from Aziz above,[26] and said he agreed ‘generally with these observations’.[27]
[25]Melbourne, 67–8 [197].
[26]At [18].
[27]Melbourne, 69 [198].

In the present case, the trial judge having embarked on a good character direction, the direction needed to be proper.[28] We consider that there is substance in the submission that, due to the manner in which it was expressed, the jury may have understood that they had a discretion to apply what was essentially a direction of law. In our view, the expression ‘some may think’ was also best avoided, since it tended to undermine the direction’s status as a direction of law. And we consider that the direction, ‘generally speaking, the probative value of such evidence is extremely limited’, when considered in a vacuum, overstates the position. As to that last point, although the importance of evidence of good character is sometimes underrated, in some cases it can be of particular significance.[29] Based on experience over many years, it is plain that in some circumstances evidence of good character is very powerful, and possesses significant probative value. And indeed, it is now clear that, consistently with the provisions of s 110 of the Evidence Act 2008, the defence may lead evidence to establish that the accused is a person of good character in ways that would never have been contemplated in the in pre-Evidence Act era.[30]
[28]Bishop v The Queen (2013) 39 VR 642, 649 [31] (Priest JA).
[29]See Saw Wah v The Queen (2014) 45 VR 440, 448 [41] (Weinberg JA, Priest JA and Coghlan JA agreeing).
[30]See, for example, Bishop v The Queen (2013) 39 VR 642.
Notwithstanding that the judge’s directions were flawed, however, it is impossible to conclude that a substantial miscarriage of justice resulted.
Although the applicant had no prior convictions, he had, in the absence of the jury, pleaded guilty to theft of electricity — a crime of dishonesty — accomplished by use of an illegal bypass which he had contrived. Moreover, the applicant pleaded guilty before the jury to cultivating cannabis, in circumstances where he had confessed to police that he knew it was illegal to do so, and had cultivated the plants by obtaining and potting the seeds; installing and maintaining the hydroponic setup for growing; and harvesting and drying the buds. His position was that he was criminally concerned in an illegal cannabis growing exercise, but just did not know that he had cultivated a commercial quantity. Self-evidently, in those circumstances there was not much work for a good character direction to do.
In our view, given that he had admitted that he had all but committed the charged offence, it was ludicrous that he might expect to be entitled to a direction to the effect that, since he had no prior convictions, he was presumed to be incapable of committing the crime with which he was charged. The judge should not have felt compelled to give directions that were ‘meaningless or absurd’. It was wholly unrealistic to direct the jury that they could take the applicant’s lack of criminal history into account ‘to determine the likelihood of whether he committed the offence’. There was no dispute that the applicant had indeed committed a cannabis cultivation offence — and admitted before the jury he had done, and was capable of doing, so — the only residual issue being whether he was aware that there was a significant or real chance that he had cultivated not less than a commercial quantity. One may well imagine that, in those circumstances, the jury would have been bemused by a direction that they could use the applicant’s lack of prior convictions in determining the likelihood of him committing the charged offence.
Moreover, we do not consider that the applicant was entitled to a direction that the jury might use his lack of prior convictions in determining whether to accept as credible what he said in his interview with police. A good character direction going to credibility proceeds on the assumption that a person of good character is less likely to lie or give a false account about relevant events. By stealing electricity in the manner that he did, the applicant had shown himself to be capable of dishonesty. It is therefore difficult to see that he was entitled to a direction that he was ‘either generally or in a particular respect, a person of good character’.[31] Indeed, the applicant’s trial counsel having introduced through cross-examination of the informant evidence going to his supposed good character, the applicant might consider himself fortunate that the prosecution did not seek to adduce evidence of his conviction for theft in rebuttal to prove (directly or by implication) that he was ‘not generally a person of good character’.[32]
[31]Evidence Act 2009, s 110(1).
[32]See Evidence Act 2009, s 110(2).
Although the prosecution at trial did not oppose the giving of a good character direction, we consider that the applicant received the benefit of a good character direction to which he was not entitled (albeit we expect that the jury were likely puzzled by it). Any theoretical errors contained in the judge’s direction were therefore of no moment. The identified errors cannot have been the source of any miscarriage of justice.
The first ground must fail.

Ground 2: Judge’s comments

As we have said, the only significant issue for the jury in the applicant’s trial was whether, in committing the admitted offence of cultivation, the applicant was aware that there was a significant or real chance that he was cultivating not less than 25 kilograms of the plants. The applicant’s ‘defence’ was that he was not aware that the quantity of the cannabis that he cultivated might exceed the commercial quantity.
Emily Sowter, a botanist with the Victoria Police Forensic services centre, gave evidence as part of the prosecution case. She attended the premises soon after the search warrant was executed and the cannabis crop was located. Her evidence was that in Room 1 there were 18 cannabis plants in two lots. Ten of those plants weighed 12.4 kilograms, and the other eight weighed 9.66 kilograms. In Room 2 there was a total of 36 plants. They were much smaller ones that were immature and slightly bushy. Their combined weight was only 2.52 kilograms, excluding the roots. Room 3 held nine plants, weighing 19.18 kilograms. Finally, in Room 4 there were another nine plants, weighing 19.96 kilograms.
Ms Sowter said the ‘nursery period’ for cannabis plants was about three to four weeks. She estimated that 10 plants in Room 1 had been growing for 13 weeks, and the other eight for 13 to 15 weeks. In Room 2, the smaller post-nursery plants had been growing three to four weeks, and the 18 plants in Rooms 3 and 4 had been growing approximately between 12 to 14 weeks.
In his final address to the jury, defence counsel dealt with the difficulties associated with estimating the weight of the cannabis plants, pointing out that the 36 plants in Room 2 — half the crop — had a combined weight of only 2.52 kilograms, and the other 36 plants — the other half of the crop — weighed 71.2 kilograms. Counsel argued that Ms Sowter, an expert, could not estimate the weight of the crop without actually weighing it, and he submitted that, ‘if Ms Sowter can’t do it with her knowledge, with her experience, what hope would a first-time grower have of knowing or even thinking that there was a real chance that that crop weighed more than 25 kilos?’. Counsel also drew the jury’s attention to the fact that the informant did not put to the applicant in the record of interview that the crop weighed more than 25 kilograms, counsel’s argument being to the effect that the informant did not do so because of the difficulties associated with estimating the weight of a cannabis crop through visual inspection.
Ground 2 concerns two comments on the facts made by the judge in her charge. As we will explain, there is substance in the submission that the second of those comments exceeded proper bounds, and has occasioned a substantial miscarriage of justice.
Early in her charge the judge directed the jury as follows:
So, you are bound by my instructions about the law but not bound by anything at all that I might say about the facts, in the same way that you are not bound by any of the comments that might have been made by the prosecutor … or defence counsel …
The first impugned comments occurred in the context of the trial judge inviting the jury to use their ‘common sense and life experience’ when considering the evidence. She said:
You know the weight of everyday items, a one kilogram packet of rice, a two kilogram packet of Uncle Toby’s oats, a four kilogram tub of protein powder if you are into that sort of thing, a 10 kilogram or a 20 kilogram bag of potting mix if you’re a gardener. You’re entitled to use your common sense and life experience of the weight of things and in evaluating the evidence in determining whether the accused knew or believed or was aware that there was a significant and [sic] real chance that those plants he was cultivating weighed at least 25 kilograms. In other words that after evaluating all of the evidence it can sustain that inference.
Counsel for the applicant in this Court submitted that the comments above were unnecessary and went directly to the determination of a matter of disputed facts. They should not have been made.
The respondent’s counsel argued that these first comments were no more than an invitation by the trial judge to the jury to use their common sense in assessing the key question before them. In any event, these were appropriate comments for the judge to make in circumstances where defence counsel had relied significantly in his closing address on the inability of the police informant and botanist to estimate the weight of the seized cannabis.
The applicant’s counsel submitted that second impugned comments were ‘more egregious’. Addressing submissions made by defence counsel to the jury with respect to the applicant’s knowledge, the judge said:[33]
[Defence counsel] said that the accused’s admitting that he intended to sell the cannabis he harvested is irrelevant to whether he had any knowledge, belief or awareness as to the weight of his crop.
Well, members of the jury, you’ll recall what I have told you about evaluating each piece of evidence and its weight only in the context of all of the evidence. Now, this is a comment by me and I want to underline and emphasise that you are not bound by any comment that I might make on the facts. You are bound by what I tell you about the law, but you are not bound by what I might say. In alluding to his intention to sell in the record of interview and that he knew someone who had sold – I think it was a pound of cannabis for $1400, you might weigh up, if that is the plan , how can you know what to give a dealer if you do not know what weight you are producing? That is entirely a comment by me but that is something you should evaluate and that is what comes from that portion of the record of interview. [Defence counsel] says it cannot help you, it is entirely a matter for you, you are the judges of the facts.
[33]Emphasis added.
Relying on McKell,[34] counsel for the applicant in this Court submitted that the comments immediately above were advocacy. They cannot but have conveyed to the jury in clear terms the judge’s own view about the applicant’s guilt. That the impugned remarks were labelled as ‘comments’ and employed the phrase ‘a matter for you’ is, counsel submitted, beside the point.
[34]McKell v The Queen (2019) 264 CLR 307 (‘McKell’).
The respondent’s counsel submitted that the second of the judge’s comments, when read in isolation, do appear to weigh into the controversy. It was, however, appropriate for the judge to do so, particularly in light trial counsel’s submission to the jury that
an intention to sell is not something that has any bearing on this charge. A commercial quantity of cannabis is something that’s determined by weight or by number of plants and that only.
In our opinion, the second of the judge’s comments were indeed ‘advocacy’. They were apt to add to the force of the case for the prosecution by swaying the jury on the only disputed issue. There was no justification for making them. Although they might have survived scrutiny in times gone by, they no longer can. As to that, this Court observed n Mareangareu:[35]
Until the High Court’s recent judgment in McKell, the prevailing view was that, when conducting a criminal jury trial, a trial judge might comment strongly on the facts provided that he or she informed the jury that they were the judges of the facts and were not bound by the comments. In light of McKell, that view — at least without significant qualification — can no longer be accepted.
[35]Mareangareu v The Queen (2019) 277 A Crim R 319, 337 [67] (citations omitted) (Priest, Hargrave and Emerton JJA) (‘Mareangareu’).
In McKell, having set out a passage from RPS[36] — in which the Court had said that the ‘fundamental task of a trial judge is … to ensure a fair trial of the accused’ — Bell, Keane, Gordon and Edelman JJ in a joint judgment observed:[37]
A trial judge’s ‘broad discretion’ to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put ‘accurately and fairly’ to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judges summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.
[36]RPS v The Queen (2000) 199 CLR 620, 637 [42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).
[37]McKell, 669–70 [3]. (Footnotes omitted; emphasis added.).
It was also observed:[38]
What has sometimes been described as the ‘right’ of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge’s duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge’s summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge’s ‘right’ to comment on the facts.
[38]Ibid 677 [45]. (Emphasis added.)
Discussing the constraints imposed by McKell, in Mareangareu this Court said:[39]
It was made plain in the joint judgment that a judge in a criminal trial must bring judicial circumspection to bear when exercising his or her discretion to comment on the facts, and should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury. A judge’s right to comment must be seen as an aspect of the fundamental task of ensuring a fair trial for the accused, and ensuring that the facts are put to the jury accurately and fairly.
Bell, Keane, Gordon and Edelman JJ made clear that a trial judge must not comment on a disputed issue in such a way as to suggest how the jury should resolve that issue.[40] Such comments have two vices. First, since the jury is the constitutional tribunal for deciding issues of fact, a trial judge’s expressions of opinion on a disputed issue of fact is inconsistent with the function of the trial judge as it is now to be understood. It is ‘difficult to conceive of a situation in which the performance of the trial judge’s fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury’.[41] Secondly, there is a tension between suggesting to the jury how they might think and then directing them that they should feel free to ignore the suggestion if they think differently. A jury may be swayed by the trial judge’s suggestion.[42] There remains scope, however, for comment by a trial judge, including where an expression of opinion on the determination of a matter of disputed fact may be necessary to maintain the balance of fairness between the parties.[43] Thus, judicial comment to correct errors that might otherwise adversely affect the jury’s ability to decide the case fairly on the merits is not objectionable.[44]
[39]Mareangareu, 339 [72]–[73].
[40]McKell, 677 [46].
[41]Ibid 678 [49].
[42]Ibid 678–9 [50].
[43]Ibid 679 [53].
[44]Ibid 679 [54].
The second of the judge’s comments impugned under ground 2 were not necessary to maintain the ‘balance of fairness’ between the prosecution and the applicant. They were not made ‘to correct errors that might otherwise adversely affect the jury’s ability to decide the case fairly on the merits’. Instead, they were comments on the sole disputed issue delivered in such a way as to suggest how the jury should resolve that issue. In effect, the judge was advancing an argument to the jury along the lines that, since the applicant intended to sell the cannabis in the crop, he must have known its weight: ‘if that is the plan, how can you know what to give a dealer if you do not know what weight

you are producing?’. And particularly given that their source was the judge, there is indeed a real risk that they may have swayed the jury.

In oral argument in this Court, counsel for the respondent endeavoured to defend the two sets of comments on the basis that, in the context of the evidence in the trial, the judge was simply drawing the jury’s attention to evidence that was before them. Counsel accepted, however, that the arguments that formed the basis of the comments were not arguments that the prosecutor had advanced to the jury. In our view, so much underscored the fact that the jury would have understood the comments as arguments emanating from the judge, revealing the judge’s opinion on the critical disputed fact.
Counsel for the respondent also argued that, since the prosecution case was ‘overwhelming’, the comments ‘could not have made a difference’. We disagree. The question whether the applicant was aware that there was a significant or real chance that the quantity of the cannabis was more than 25 kilograms was finely balanced. It was not inevitable that the jury would have found that the applicant was aware that there was a significant or real chance that he was cultivating not less than 25 kilograms of the plants. We consider that the second of the judge’s comments might have tipped that balance to favour the prosecution.
Ground 2 must succeed.

Application for an extension of time

The principles guiding the grant or refusal of an extension of time were spelled out in Madafferi.[45]
[45]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
We consider that, apart from a period between 9 August and 2 October 2024, the delay in filing a notice of application for leave to appeal is adequately explained in the affidavit of the applicant’s solicitor filed in support of the application for an extension of time. But in any event, the applicant has demonstrated that he suffered a substantial miscarriage of justice. In those circumstances, the better exercise of discretion requires that he be granted an extension of time within which to challenge his conviction.

Conclusion

As we have indicated, the application for an extension of time should be granted; the application for leave to appeal should be granted; the appeal should be allowed; the conviction should be set aside; and a new trial should be ordered.

TAYLOR JA:

I have had the advantage of reading in draft the reasons for judgement of Priest and Boyce JJA.

I agree with the analysis and conclusion with respect to ground 1.
I am, however, unable to agree with the conclusion with respect to ground 2. In short, I am unable to conclude that the question of whether the applicant was aware that there was a significant or real chance that the quantity of the cannabis was not less than 25 kilograms was finely balanced. The Crown case was overwhelming. In my view the judge’s second comment could not have made a difference to the verdict returned.
The judge’s comment was inappropriate. It waded into the only issue of controversy between the parties. It should not have been made.
In the unique factual circumstances of this case, however, it is fanciful to think that the jury would not have – independent of any argument by counsel or comment by the judge – considered the applicant’s self-described financial purpose for the cultivation in considering whether, taking all the evidence as a whole, the Crown had proved beyond reasonable doubt that he was aware that there was a significant or real chance that he was cultivating not less than 25 kilograms of the plants. He told the police that he had been growing cannabis because he needed the money for his mortgage, living expenses during the COVID-19 pandemic and to support his mother and younger siblings in Vietnam. The applicant also told police during his record of interview that he was looking for a dealer and had an idea of price.
The applicant was the sole owner of the house. He was the only resident and had the only key. His DNA was on the toothbrush. No one else had a role in the cultivation. The applicant installed the electrical bypass himself and converted four rooms into an organised cultivation plant. This included removing doors, installing ducting for fresh air, thermometers, lights on timers and fans for ventilation. The applicant sowed the seeds and tended the plants in a way such that there were plants at various stages of maturity. While half the plants weighed a total of 2.25 kilograms, these 36 plants were within one room, immature and only 37 to 45 centimetres tall. The remaining 36 plants were in three separate rooms.
(a)In the first room there were 18 plants in the flowering stage. Eight were between 100 and 120 centimetres tall and had a combined weight of 19.66 kilograms. Ten were between 60 and 90 centimetres tall and had a combined weight of 12.40 kilograms.
(b)In the next room there were nine plants in the flowering stage. All were between 110 and 120 centimetres tall and had a combined weight of 19.18 kilograms.
(c)In the final room there were nine plants in the flowering stage. All were between 85 and 120 centimetres tall and had a combined weight of 19.96 kilograms.
The obvious inference is that the applicant sowed the 36 immature plants to replace the 36 plants that had been induced to flower (including by manipulating the hours of available light using the lights on timers) and were nearing readiness for sale.[46] If the weight of the 36 immature plants is excluded from the total weight of cannabis found, there was still 71.20 kilograms. That is a figure 46.20 kilograms in excess of a commercial quantity.
[46]There was evidence as to how cannabis plants are induced to flower in hydroponic cultivation.
The prosecution was required to prove only that the applicant was aware that there was a significant or real chance that he was cultivating not less than 25 kilograms of cannabis. The sophisticated nature of cultivation set up initiated and controlled by the applicant demonstrated his detailed knowledge of hydroponic cannabis cultivation. He was bringing a second crop along to replace the first. Those matters combined with the number and size of the mature plants and the applicant’s financial motive for the enterprise make his conviction inevitable.
It follows that, notwithstanding the inappropriate comment by the judge, ground 2 cannot succeed. I would grant leave to appeal on ground 2 but dismiss the appeal.

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If you accept that NOA is a person of good character, there are two ways in which you can use this fact.
First, you can use it when assessing the credibility of NOA’s evidence and his/her denials of the prosecution case. As it is generally believed that a person of good character is unlikely to commit a criminal offence, you may be less willing to accept the prosecution’s allegation that NOA committed [that offence/those offences] than you would be if s/he was not a person of good character. … (Emphasis added.)

[2025] VSCA 184

14 August 2025