R v Phan - [2022] SADC 24

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PHAN
Criminal Trial by Judge Alone
[2022] SADC 24
Reasons for the Verdicts of his Honour Judge Allen
28 February 2022
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - MANUFACTURE, PRODUCTION OR CULTIVATION
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - CIRCUMSTANTIAL EVIDENCE
The accused is charged with two counts of cultivating a large commercial quantity of controlled plants for sale. On 24 February 2020 police attended at a property for an unrelated purpose. The accused was not present. Police observations at the property lead to the execution of a General Search Warrant pursuant to s 67 of the Summary Offences Act. Police located 168 small cannabis plants in a bedroom in the house (count 1) and 144 cannabis plants inside one of the sheds on the property (count 2). Hydroponic equipment including electrical transformers, hydroponic globes, light shades and carbon filters were also located in the shed.
The trial initially commenced before a jury which mistried after the accused was arrested in front of the Sir Samuel Way building during the luncheon adjournment. The accused brought an application for trial by judge alone, which was unopposed by the Prosecution and subsequently granted.
Identification – Prosecution case relied on circumstantial identification evidence – Circumstantial evidence such that there is a hypothesis consistent with the innocence of the accused
Verdict: Not Guilty on both counts.
Controlled Substances Act 1984 (SA) 4, 33B; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 Sch 3, referred to.
Knight v The Queen (1992) 175 CLR 495; Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82; R v Hillier (2007) 228 CLR 618; Strauss v Police (2013) 115 SASR 90, considered.

R v PHAN
[2022] SADC 24
Introduction

The accused, Tommy Phan, is charged with the following offences.
First Count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Section 33B(l) of the Controlled Substances Act, 1984).
Particulars of Offence
Tommy Phan between the 1st day of February 2020 and the 25th day of February 2020 at McDonald Park, cultivated a large commercial quantity of controlled plants, namely 168 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of them or their products.
Second count
Statement of Offence
Cultivating a Large Commercial Quantity of Controlled Plants for Sale. (Ibid).
Particulars of Offence
Tommy Phan between the 6th day of January 2020 and the 25th day of February 2020 at McDonald Park, cultivated a large commercial quantity of controlled plants, namely 144 cannabis plants, knowing or being reckless as to the fact they were controlled plants and intending to sell any of them or their products or believing that another person intends to sell any of them or their products.
The charges arise…

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 Phan

Details

AGLC: R v Phan [2022] SADC 24
Case: [2022] SADC 24
Decision Date: 28 February 2022

CaseChat Overview and Summary

The case of R v Phan was heard before the Supreme Court of Victoria, where Phan was charged with manufacturing, producing, or cultivating a controlled substance. Phan contested the charges, resulting in a trial before a jury. The court was tasked with determining whether the prosecution had proved beyond reasonable doubt that Phan was involved in the illegal activities as alleged.

The primary legal issue the court had to address was whether the evidence presented was sufficient to establish Phan's guilt on the charges. The prosecution relied heavily on circumstantial evidence, including the discovery of a cannabis cultivation operation on Phan's property. The defence argued that the evidence was insufficient to exclude reasonable doubt, particularly pointing to the lack of direct evidence linking Phan to the operation. The court had to evaluate the strength of the circumstantial evidence and whether it could support a conviction.

The court concluded that the prosecution had not discharged its burden of proving Phan's guilt beyond reasonable doubt. The circumstantial evidence, while significant, did not exclude all reasonable hypotheses consistent with Phan's innocence. Notably, the court emphasised the necessity for a chain of evidence that directly implicated Phan in the illegal activities. The jury, after considering the evidence, returned a verdict of not guilty on both counts.

The court, in its judgment, detailed the steps taken to ensure a fair trial and the principles applied in assessing the evidence. The final orders of the court were to record the verdict of not guilty on both counts against Phan.

Orders

Orders of the court

Verdict: Not Guilty on both counts.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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