R v Nguyen - [2006] VSCA 293

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 375 of 2005

THE QUEEN
	V
MINH TIEN NGUYEN

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JUDGES:	VINCENT JA and SMITH and KING AJJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2006
DATE OF JUDGMENT:	20 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 293

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Criminal law – Conviction – Commercial quantity cultivation – Expansion of Crown case by trial judge – Expansion of case post addresses – Principles relating to fundamental breach – Consideration of application of proviso – Appeal allowed – New trial ordered – R v Panozzo and Iaria (2003) 8 VR 548 – R v Wilde (1988) 164 CLR 365 – R v Torney (1983) 8 A Crim R 437.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	Valos Black & Associates

VINCENT JA:

I agree in the disposition of this matter proposed by King AJA and I do so for the reasons advanced by her in her judgment.

SMITH AJA:

I agree, substantially for the reasons advanced by King AJA, that the application for leave to appeal against conviction should be granted, the appeal allowed and a new trial ordered.

KING AJA:

The applicant, Nguyen, seeks leave to appeal against convictions returned on 7 December 2005 in respect of three counts: trafficking in a drug of dependence in a commercial quantity, cultivation of narcotic plants in a commercial quantity, and theft of electricity.

On 30 November 2005 the applicant was arraigned before a judge of the County Court in respect of six counts: Count 1, cultivation of narcotic plants; count 2, possession of a drug of dependence; count 3, theft of electricity; count 4, trafficking in a drug of dependence - commercial quantity; count 5, cultivation of narcotic plants - commercial quantity; and count 6, theft of electricity.

The applicant pleaded guilty to counts 1, 2 and 3 on the presentment and not guilty in respect of counts 4, 5 and 6 and on the 1 December 2005 the applicant was arraigned and a jury heard the trial relating to the three counts on which the applicant pleaded not guilty. A verdict was delivered on 7 December 2005, a plea was heard, and an overall sentence of five years with a three year minimum was imposed.

Background

On 4 September 2002 a search warrant was executed at the applicant’s

premises in North Sunshine which uncovered a hydroponic cannabis crop and diverted electricity. That address was the location of the cannabis cultivation, theft of electricity and possession of cannabis to which the applicant pleaded guilty in counts 1, 2 and 3. The applicant was arrested at the scene. Simultaneously another search warrant was executed by police officers at 743 Barkly Street, West Footscray, in the process of which they uncovered a commercial level hydroponic cannabis crop. The applicant was charged in relation to those matters on 22 December 2003 and committed for trial on 21 April 2005.

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 R v Nguyen

Details

AGLC: R v Nguyen [2006] VSCA 293
Case: [2006] VSCA 293
Decision Date: 20 December 2006

CaseChat Overview and Summary

The case of R v Nguyen involved the respondent, Nguyen, who was convicted in the County Court of Victoria for cultivating a commercial quantity of cannabis. The appeal to the Court of Appeal concerned the expansion of the Crown's case during the trial and the subsequent considerations by the trial judge. The Court of Appeal was tasked with examining whether the trial judge correctly expanded the case and whether the principles relating to fundamental breaches and the application of a relevant proviso were appropriately applied. The appeal also addressed whether the trial judge correctly considered the addresses post trial and whether these factors necessitated a new trial.

The primary legal issues before the Court of Appeal were whether the trial judge had correctly expanded the Crown's case by including additional allegations of cultivation addresses and whether these expansions constituted a fundamental breach of the principles outlined in R v Panozzo and Iaria. Additionally, the court had to consider if the trial judge appropriately assessed the application of the proviso in the context of the additional addresses and if the failure to correctly apply these principles warranted a new trial as per R v Wilde and R v Torney.

The Court of Appeal determined that the trial judge had incorrectly expanded the Crown's case by including additional cultivation addresses after the close of the prosecution case. The court held that this expansion constituted a fundamental breach of the principles set out in R v Panozzo and Iaria, which mandates that the trial judge must confine the case to the issues raised by the prosecution's case. Furthermore, the Court found that the trial judge failed to appropriately apply the proviso in the context of the additional addresses. Consequently, the Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial in accordance with the authorities cited.

No further orders were made beyond the allowance of the appeal, the quashing of the conviction, and the ordering of a new trial.

Orders