Nguyen v The King - [2025] VSCA 184

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen v The King

Details

AGLC: Nguyen v The King [2025] VSCA 184
Case: [2025] VSCA 184
Decision Date: 14 August 2025

CaseChat Overview and Summary

In the case of Nguyen v The King, the appellant was convicted of cultivating a commercial quantity of cannabis. The appeal was heard by the High Court of Australia. The central issue in this appeal was whether the trial judge made an error in directing the jury on the matter of good character and if the judge's comments on disputed facts were so prejudicial as to cause a substantial miscarriage of justice.

The appellant argued that the trial judge had erred in not directing the jury that they should consider the accused's good character in the context of the possibility that the commercial quantity of cannabis was exceeded by a small margin. Additionally, the appellant contended that the trial judge's comments about disputed facts were so prejudicial that they resulted in a substantial miscarriage of justice. The High Court found that the trial judge had indeed erred in not properly directing the jury on the issue of good character and that the judge's comments about disputed facts were indeed prejudicial to the appellant. Consequently, the appeal was allowed and a new trial was ordered.

The High Court held that the trial judge should have directed the jury to consider the appellant's good character in the context of the disputed fact that the quantity of cannabis might only marginally exceed the commercial threshold. The comments made by the trial judge regarding the disputed facts were considered by the court to be such that they could have led to a substantial miscarriage of justice. As such, the court concluded that the appeal should be allowed and a new trial ordered, free from the errors and prejudicial comments found by the court.

Orders