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 from police attendance at a property situated as 23 Kent Road, MacDonald Park (‘the property’) on 24 February 2020. Detective Brooker and his partner, Senior Constable Sarvas, attended at the property for purposes unrelated to these proceedings. Shortly after the arrival of police at the property, Detective Brooker formed a suspicion that hydroponic cultivation of cannabis was taking place. A search was undertaken of a residential dwelling and a number of sheds on the three-acre property. During the course of that search 168 small cannabis plants were located in a room inside the dwelling (count 1) and 144 plants were located in a shed on the property (count 2).
No person was located at the property by police. Subsequent enquiries by Detective Brooker identified Tommy Phan as being the occupier of the property. Further enquiries made by Detective Brooker led to the subsequent arrest of the accused.
Procedural History
This matter has something of an unfortunate history. On Monday 14 February 2022, the trial commenced before a jury. The accused was arraigned and the jury empanelled in the usual way. The trial proceeded on 16 February 2022, the accused attended at court and informed his legal advisors that he was a close contact of someone who had tested positive to Covid-19. In those circumstances, the trial was adjourned pending the outcome of a Covid test with SA Pathology. This occurred, with a negative result, meaning that the trial could resume on Thursday 17 February 2022.
On that occasion, the accused attended and the trial proceeded with further evidence taken.
Shortly after the commencement of the luncheon adjournment, the accused was arrested by a number of uniformed police at the door of the Courthouse very shortly after the jury had exited the building via the same doors.
After lunch, the court reconvened in the absence of both the accused and the jury. Results of enquiries revealed that the accused was prevented from attending the resumption of the trial on account of him being held in the City Watchhouse by police. The court was informed by counsel that the accused had been arrested on two allegations of breaching bail, both of which occurred on Sunday 13 February 2022, that is, after the voir dire and prior to the resumption of the trial proper. Those breaches related to allegations that the accused had attended at two locations without first having obtained the permission of his Community Corrections Officer.
The court was also informed that the reason behind the timing of the arrest was that Detective Brooker (the Investigating Officer in this matter) took the view that Mr Phan was a flight risk and co-ordinated the deployment of police resources to effect his arrest at the front of the Sir Samuel Way Building. That rationale is at odds with the accused attending the preliminary hearing in this matter on 2, 3 and 10 February 2022, then on each day of his trial as listed. Whilst there may be an allegation that Mr Phan had breached his bail by not being where he should be the day preceding the trial, an objective assessment leads to the conclusion he was certainly no flight risk and there was no pressing need to effect his arrest. The actions of Detective Brooker and those assisting him interfered with the orderly conduct of this trial.
Further, the fact that the arrest took place in the likely presence of members of the jury compounded the problems associated with this action. The court was informed that the arrest involved five uniformed police officers restraining and handcuffing the accused, keeping the accused in the vicinity of the entrance to the court for approximately 10 minutes in that state, before then loading him into the rear of a police cage car.
As a consequence of this action, not only was the accused prevented from attending at his own trial when court resumed in the afternoon, but it precipitated the making of a mistrial application which, in the circumstances, could only have been granted.
The hasty and not well thought through actions of Detective Brooker and his colleagues had the direct result of a District Court trial needing to be aborted at considerable expense and inconvenience.
Following the discharge of the jury, the accused brought an application for Trial by Judge Alone. As nearly all of the evidence had been presented on the prosecution case, it was requested that I should decide the verdicts. The application and such course was not opposed by the prosecution.
I allowed the defendant’s application for Trial by Judge Alone and also agreed that I would decide the verdicts. All of the exhibits from the first trial were tendered into evidence in the Trial by Judge Alone, including the evidence taken. Only some further brief oral evidence was presented to me, together with the tendering of the Statements of Agreed Facts.
I make it clear that my observations as to the timing and circumstances of the arrest of the accused insofar as they are critical of police actions are set out to explain the procedural history of the matter. I have not taken that conduct into account in any way in determining the verdicts in this matter. Those are separate issues and issues that one would expect to never be repeated.
General Legal Directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word proved, established, or satisfied when referring to a matter upon which the prosecution has the onus of proof then I have meant in each case to an extent beyond reasonable doubt.
The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that every element of the offence has been proven beyond reasonable doubt.
There are two charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration. Guilt as to one count does not mean he is therefore guilty of the other count.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
In this case, a witness had been called to give expert evidence. I note that persons who are qualified in a particular area may express an opinion. That opinion must be within their particular areas of expertise and that opinion must be based on their knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based upon a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic.
Election not to give evidence
Mr Phan elected not to give evidence in this Court; he remained silent. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I must not speculate on those reasons. I bear in mind that it is, at all times, for the prosecution to prove its case beyond reasonable doubt.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear.
Circumstantial Evidence Direction
The prosecution relies upon circumstantial evidence to prove certain elements as regards each offence.
When a case against an accused person rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonable hypothesis other than the guilt of the accused. If an inference or hypothesis consistent with innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[1] Before the accused can be convicted his guilt must be the only rational inference which can be drawn from the circumstantial evidence.[2]
[1] Knight v The Queen (1992) 175 CLR 495.
[2] Shepherd v The Queen (1990) 170 CLR 573; Barca v The Queen (1975) 133 CLR 82.
I am to consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference. I am not required to analyse each circumstance individually. I must consider the weight which is to be given to the united force of all the circumstances. One piece of evidence may resolve a doubt about another.[3]
[3] R v Hillier (2007) 228 CLR 618.
It is not for the defence to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts which would tend to support such inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation then the accused is entitled to be acquitted.
My resolution of the case depends upon my assessment of all the evidence and that includes, of course, not just inferences in favour of the prosecution but inferences, explanations and submissions put forward on behalf of the accused.
Agreed Facts
Agreed Facts - Cannabis
At the conclusion of the prosecution case a Statement of Agreed Facts relating to the seized cannabis was tendered as Exhibit P12 and is set out as follows:
With respect to the evidence by Robert Brooker
1.   The ‘snip and save’ samples taken by Robert Brooker on 24 February 2020 at 23 Kent Road, MacDonald Park were entered onto PPMS receipt number 20/A21979, item numbers 10 to 13.
2.   The 168 plants seized by Robert Brooker on 24 February 2020 at 23 Kent Road, MacDonald Park were entered onto PPMS receipt number 20/A21979, item number 17.
With respect to the evidence by Tanya McKew
1.   All 21 samples were identified as being the following:
a.Female cannabis plants samples;
b.Aged between two and four weeks old; and
c.Between 60cm and 1m in height.
2.   With respect to the 144 plants that are the subject of count 2:
a.Ms McKew is not able to state with certainty that all are cannabis plants;
b.Ms McKew is not able to state the gender of all of the plants with certainty;
c.The plants were destroyed prior to the commencement of the trial.
3.   The plants are both male and female cannabis plants. Female cannabis plants have a higher concentration of THC than male cannabis plants.
4.   Mr McKew examined photographs 27-29 from Exhibit P3 and identified that the plants were aged between one and two weeks old.
With respect to the evidence by Sharon Wilczek
1.   Ms Wilczek identified all 168 plants as being pieces of cannabis plant.
2.   Ms Wilczek selected 20 plants at random for closer analysis.
3.   From the 20 selected plants she identified 15 as being female. She was not able to determine the gender of the other five plants.
4.   Ms Wilczek did not test, and therefore cannot determine whether the remaining 153 plants were male or female cannabis plants.
Agreed Facts - DNA
At the conclusion of the prosecution case a Statement of Agreed Facts in relation to DNA evidence was tendered as Exhibit P13 and is set out as follows:
1. Ten black plastic gloves seized from the sheds at 23 Kent Road, MacDonald Park on 24 February 2020 were submitted for DNA analysis at Forensic Science South Australia. Swabs were taken from three of the gloves.
a.From the first glove a swab was taken of the inner surface. The swab contained a mixed DNA profile with three contributors. Of the three contributors, only one DNA profile was able to be interpreted. That DNA profile was identified as an unknown male referred to as Male A. There is very strong support for the hypothesis that the accused is not one of the contributors.
b.From the second glove a swab was taken of the inner surface. The swab also contained a mixed DNA profile with three contributors. Of the three contributors, only one DNA profile was able to be interpreted. That DNA profile was identified as the same unknown male referred to as Male A. There is very strong support for the hypothesis that the accused is not one of the contributors.
c.From the third glove a swab was taken of the inner surface. The swab also contained a mixed DNA profile with three contributors. Of the three contributors, only one DNA profile was able to be interpreted. That DNA profile was identified as a different unknown male referred to as Male B. There is very strong support for the hypothesis that the accused is not one of the contributors.
2. Two cigarette butts seized from the sheds at 23 Kent Road, MacDonald Park on 24 February 2020 were submitted for DNA analysis at Forensic Science South Australia.
a.The first cigarette butt contained a single source DNA profile. The DNA profile was identified as the unknown male referred to as Male B.
b.The second cigarette butt contained a mixed DNA profile with two contributors. Of the two contributors, only one DNA profile was able to be interpreted. That DNA profile was identified as the same unknown male referred to as Male B. There is extremely strong support for the hypothesis that the accused is not one of the contributors.
Elements of the Charged Offences and Matters in Dispute at the Trial
In order to prove the offence of cultivation of a large commercial quantity of controlled plants for sale, the prosecution must prove three elements beyond reasonable doubt. These are:
1.      The accused cultivated a controlled plant;
2.      The accused cultivated a large commercial quantity of a controlled plant; and
3.      The accused intended to sell the controlled plants or the products of the controlled plants.
Cultivating a plant is defined as:[4]
(a)    plant a seed, seedling or cutting of the plant or transplant the plant; or
(b)    nurture, tend or grow the plant; or
(c)    harvest the plant (including pick any part of the plant or separate any resin or other substance from the plant); or
(d)    dry the harvested plant or part of the plant; or
(e)    take part in the process of cultivation of the plant;
[4]     Controlled Substances Act 1984 s 4.
A person takes part in the process of cultivation of a plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of cultivation.[5]
[5] Ibid s 4(4).
Steps in the process of cultivation of a plant include:[6]
(a)    acquiring the plant or equipment, substances or materials;
(b)    storing the plant or equipment, substances or materials;
(c)    carrying, transporting, loading or unloading the plant or equipment, substances or materials;
(d)    guarding or concealing the plant or equipment, substances or materials;
(e)    providing or arranging finance (including finance for the acquisition of the plant or equipment, substances or materials);
(f)     providing or allowing the use of premises or jointly occupying premises.
[6] Ibid s 4(7). For the purpose of this list, ‘materials includes seeds, seedlings and cuttings’: Controlled Substances Act 1984 s 4(8).
A controlled plant is defined as:[7]
… a growing cannabis plant or a cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium) or any other plant declared by the regulations to be a controlled plant for the purposes of this Act.
[7] Ibid s 4.
Cannabis is prescribed as a controlled plant by Schedule 3 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014.
Schedule 3 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 specifies that the prescribed quantity of plants amounting to a large commercial quantity is 100 plants.
The Controlled Substances Act 1984 s 33B(5) contains a reverse onus provision in relation to proof of the intention to sell. The section states:[8]
If, in any proceedings for an offence against subsection (1), (2) or (3), it is proved that the defendant cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of proof to the contrary, that the defendant had the relevant intention or belief concerning the sale of the plants or their products necessary to constitute the offence.
[8] Ibid s 33B(5).

It was agreed that the quantity cultivated in relation to each count is a large commercial quantity. Whilst there was no attempt by the accused at trial to lead evidence in an attempt to displace the statutory presumption of the intention to sell under s 33B(5) of the Controlled Substances Act, there was a challenge to this aspect of the prosecution case. The Written Submissions of the accused submitted that this element had not been proved on account of there being an absence of evidence led on the prosecution case as to the potential yield of the plants. I do not accept this argument. Section 33B(5) creates a statutory presumption that if the prescribed number of plants are being grown, then the pursuasive onus falls upon the accused to prove otherwise. The absence of evidence as to yield does not overcome this presumption, nor does the absence of other indicia associated with commercial drug trafficking. In the absence of evidence to the contrary, the nature of this operation and the number of plants at different stages of growth is undoubtedly reflective of an intended ongoing operation for the cultivation of cannabis for sale.
Having regard to the forgoing, the issue in dispute was that the accused was involved in cultivating controlled plants.
During the course of the prosecution opening, the prosecutor stated the following:
The prosecution case will focus on this first element of the offence and I want to be very clear about what the prosecution case is. I have already alluded to the fact that a number of people were involved in this crop. The prosecution cannot prove that the accused personally put the seeds in the pots. Someone else may have done that task. However, as you have just heard, the prosecution does not need to prove this specific act for the accused to be guilty. Instead, you will hear evidence suggesting that the accused was intimately involved in a number of tasks involved in the overall operation.
If you are satisfied beyond reasonable doubt that the accused has performed tasks such as acquiring the equipment, transporting the equipment, providing finances and providing the use of premises for the purpose of cultivation, then the first element will be made out.
The Evidence
Mr Sharma
Mr Sharma is the owner of the property at 23 Kent Road, MacDonald Park where the cannabis plants were found. The property was purchased by Mr Sharma and his wife in 2017. Mr Sharma described the property as being about two acres in size with a main residential building, two sheds and a granny flat. Mr Sharma lived in the main residence from 2017 until the property was rented out in 2020. The granny flat was rented to a man called Stephen Raphael from late 2019.
Mr Sharma came to have contact with a man he knew as Tommy who attended at the property twice, expressing an interest in renting the sheds. On the occasions that the man who called himself Tommy Phan attended at the property, he attended with other people. Mr Sharma wanted to rent out a shed, but the man calling himself Tommy Phan asked for the whole property. He requested that this be done directly, that is, without involving an agent. Mr Sharma insisted on involving an agent to do the contract for the lease. An agent was engaged to negotiate the terms of the lease, in particular, as to the detail of any inspections of the property during the course of the tenancy. The name of the agent was Dream Merchants Real Estate. Mr Sharma’s recollection was that the lease commenced from 1 January, by which time he had moved out. His evidence was that there were no internal walls erected inside the shed, nor was there any hydroponic equipment, or any cannabis.
Under cross-examination, Mr Sharma stated that he had never met ‘Tommy’ before, nor did he ask Tommy for identification. The man only introduced himself to Mr Sharma as ‘Tommy’. Mr Sharma indicated that he just took the man’s word for it when it came to his name.
Mr Sharma confirmed that a number of people attended with Tommy on the two occasions when the property was inspected. On the first occasion, Tommy attended with more than three and on the second occasion there were two. All of those people were of Asian appearance. There was one female. Mr Sharma couldn’t state what any of the people look like, other than they appeared of Asian descent. The following took place under cross-examination:[9]
QYou certainly can't remember what their faces look like.
ANo, no, no. It was long time.
[9] T39 lines 22-23.
Mr Sharma never participated in a photographic identification procedure with police.
The witness confirmed that a bond was paid in relation to the lease by a lady on the second occasion the property was inspected.
Mr Raphael
Mr Raphael gave evidence regarding his tenancy at the property from August 2018 until March/April 2020. Originally when he moved in, Mr Sharma lived there with his wife. In late 2019, Mr Raphael was informed by Mr Sharma that he would be required to vacate the property on account of ‘Tommy’ having taken over rental of the property.
Mr Raphael stated that Mr Sharma moved out during Christmas week of 2019 and subsequently two Asian men were living in the main house. Those males were observed going back and forwards to the sheds on the other side of the property at various times of the day and night. In late January, Mr Raphael had a brief conversation with those man about who he should be paying his rent to. The men indicated that the payments were not to be to them.
Shortly after this, another man introduced himself to Mr Raphael as ‘Tommy’, the new landlord. He observed this man on the property twice before in late 2019 (October, November). On those occasions, that man had been in the company of other people. Mr Raphael concluded that that male, together with the other people, comprised ‘two families, two husbands and wives and a group of children’ who walked around the property.
After the initial meeting with this man, a further encounter took place within 48 hours. The man spoke with Mr Raphael, asking him if he wanted to come over to the main house and have a drink with himself and ‘the two Asian blokes at the house’. Mr Raphael declined the invitation.
These were the only two occasions when Mr Raphael had any interaction with the man who introduced himself as ‘Tommy’.
Under cross-examination, Mr Raphael confirmed his observations regarding the people who attended to look at the sheds in 2019. Mr Raphael stated that he didn’t speak to any of those people and Mr Raphael was unable to remember the faces of any of the other people who attended on those occasions. Mr Raphael stated that he ‘did seem to remember that it was the same bloke that came and introduced himself as Tommy’ who attended on those earlier two occasions. Mr Raphael had never met the man called Tommy before, doesn’t know who Tommy Phan is and was never asked to participate in a photographic identification procedure by police.
Mr Raphael described the two other men of being of Asian appearance, one with a slim build, tan complexion, short dark hair and that the last time he saw the man ‘Tommy’ was about two and a half weeks before the police came. The other Asian males worked in the shed closest to the house on a daily basis.
Detective Brooker
Detective Brooker is a police officer of some 21 years standing, currently stationed at the Heavy Vehicle Enforcement Section. He attended at the property upon unrelated enquiries on 24 February 2020. He approached the main house to speak with the occupants, announcing himself as a police officer. At the door, the Detective could smell food cooking. Shortly after announcing their presence, a loud bang emanated from the opposite side of the house which caused the Detective and his partner to move around to the other side of the premises. Upon arrival, the front door was seen to be wide open. No persons were located on the property at that time (or any subsequent time).
The Detective then observed an excavator next to an electrical box and adjacent to that was an open trench with exposed wires. The Detective formed a suspicion that a diversion of electricity may have been taken place. He executed his General Search Warrant.
The Detective noticed what he believed to be newly fitted roof vents on the shed, together with CCTV cameras. Additional police attended and a search was conducted.
As a consequence of this search, the 168 small cannabis plants were located in a room in the main residential building and 144 larger cannabis plants were found growing in one of the sheds.
A booklet of photographs taken at the property on 24 February 2020 was tendered as Exhibit P3. Insofar as those photographs relate to the main residence on the property, it is evident that the interior is sparsely furnished and does not appear to be occupied in the ordinary sense as a place of residence. Indeed, Detective Brooker gave evidence that the only bed inside the house was an old hospital bed that appeared to be disused. There was a mattress and a blanket on the floor of one of the bedrooms. The inference to be drawn from all of this is that the property was primarily devoted to the production of cannabis.
During the course of the search of the residence, four receipts for purchases from Bunnings Warehouse Munno Para were located and seized. These documents were tendered as Exhibit P4. I will return to this particular exhibit in due course. The Detective gave evidence that that particular Bunnings store was perhaps 3 or 4 kms from the property.
Exhibit P5 was a bundle of three photographs taken from a bedroom in the premises. Of significance was the location of a money transfer document in the name of Nam Tran and another person with the surname of Nguyen.
The Detective gave evidence of observing 168 small cannabis plants growing in three terrariums under a light in one of the bedrooms of the residence. The Detective identified the plants as cannabis plants. Those plants were seized and submitted to the Forensic Science Centre for analysis. The Agreed Facts confirmed that those plants are in fact cannabis, a controlled plant for the purposes of the Controlled Substances Act and Regulations.
Photographs relating to the shed and contents were the subject of evidence from the Detective. Generally speaking, this evidence disclosed the presence of various items used in the hydroponic cultivation of cannabis. Such items included bags containing growing medium, carbon filters, inline fans, ducting, tubs commonly utilised for irrigation, hydroponic light globes, electrical timers, liquid fertiliser, water pumps, ballast boxes, irrigation piping.
144 cannabis plants were also located in this shed. The cannabis plants were seized and snip and save samples from those plants were provided to the Forensic Science Centre for analysis. The Agreed Facts confirm those plants are cannabis, a controlled plant for the purposes of the Controlled Substances Act and Regulations. Some appeared to be growing in rooms where the hydroponic set-up is complete. Others appear to be growing in rooms where the hydroponic set-up is incomplete. It is evident from the photographs that the cannabis growing operation in the shed that is incomplete and something of a work in progress.
10 plastic gloves were also seized from the sheds at 23 Kent Road, MacDonald Park. Those gloves can be seen in photographs within Exhibit P3. The gloves were located in the vicinity of the hydroponic set-up. Those gloves were submitted for DNA analysis, the results of which are detailed in the agreed facts relating to DNA (Exhibit P13). In summary, the results of the DNA analysis arising from forensic testing of the seized gloves reveals DNA profiles with three contributors. Male A’s profile was present on two gloves. Male B’s profile was present on a third glove. All of the samples analysed led to a conclusion that there is very strong support for the hypothesis that the accused is not one of the contributors.
Two cigarette butts were also seized from the sheds at the property. Those cigarette butts were submitted for DNA analysis at the Forensic Science Centre. Results of the DNA analysis revealed the presence of the unknown male referred to as male B on one of the butts. The second butt revealed two contributors, with only one profile being able to be interpreted. Again, that profile was that of male B.
In summary, none of the DNA evidence implicates the accused.
As part of the investigation, Detective Brooker made enquiries with the owner of the property, Mr Sharma. Those enquiries revealed a man called Tommy was renting the shed and that the real estate agents, Dream Merchants, had organised the rental. The Detective subsequently made contact with Dream Merchants and obtained a copy of the tenancy agreement. The tenancy agreement listed one male and one female as the tenants. The male was named as Mr Tommy Phan. The female was listed as N. Tran.
The Detective conducted enquires as to the address of Tommy Phan and attended at 3 Gore Street in an attempt to speak to Mr Phan. Upon attendance at that address, Mr Phan was not present. The Detective was provided with some contact details and subsequently arrangements were made to meet with and then arrest the accused.
As part of the investigation, Detective Brooker also obtained information relating to the electricity account relevant to the property. An Origin Energy bill for the property was tendered as Exhibit P6. The name attached to the bill is Mr Toomy Pham, 23 Kent Road, MacDonald Park.
During the course of cross-examination, Detective Brooker agreed that he found no physical evidence of Mr Phan being at the premises, that is, nothing linking him to that address.
The Detective gave evidence that he made a request to a crime scene investigator to attend and conduct fingerprint analysis upon the seized equipment, in particular, to the plastic lids on the terrariums where the smaller plants were located. The Detective stated that no prints were suitable. The Detective confirmed that the DNA analysis did not implicate the accused and, further, one of the DNA profiles located from a cigarette butt was identified as someone who had been involved in a cannabis crop in Victoria. There was further evidence regarding a vehicle that was parked at the front of the residence on the property. Detective Brooker stated that he conducted registration checks in relation to that vehicle. The result of those checks revealed the vehicle’s link to an Asian male. No follow‑up enquiries were made of that person. The car was not searched.
The Detective then agreed that there are a number of items that were not seized that could potentially have been sources of DNA evidence. Those items included multiple water bottles (some of which appear to have been used), shoes, a spray bottle and plyers or shears located next to the 168 small cannabis plants, were it was conceded those potential sources of DNA could have been relevant to this investigation. It was also suggested that the shoes could have been used to conduct shoe size comparison with any suspect. Detective Brooker agreed with this. No such analysis took place.
The Detective was also asked about the Bunnings receipts (Exhibit P4) and whether he had conducted any further enquiries as to whether items at the property were the items appearing on the receipts. Detective Brooker stated that he had conducted no such enquiries. However, the ventilators that appear as the first item on the receipt dated Wednesday 5 February 2020 shared the same description as ventilators that were located inside one of the sheds.
The Detective was also asked whether indicia of involvement in illicit drug trading were present, such as large sums of money, encrypted mobile telephones and unexplained wealth to which the Detective replied in the negative. The Detective confirmed that there was nothing at 3 Gore Street to link the accused to the drugs or house at 23 Kent Road. Defence counsel also questioned the Detective about the absence of any photographic identification procedures being performed as part of this investigation. The Detective agreed with a proposition put to him by defence counsel as to why no photographic identification procedures were conducted. The Detective agreed that that was because the Detective had decided that it was Tommy Phan who had ‘done this’ and that no photographic identifications procedures were required.
Ms Hewish
Ms Hewish gave evidence that she had been employed by Dream Merchants Real Estate in 2019 and 2020. Ms Hewish described her role there as being all encompassing. This included preparation of lease documents. The business was owned by Mr KD Singh.
Ms Hewish was given instructions by Mr Singh to prepare a lease agreement for the property at 23 Kent Road, MacDonald Park. Dream Merchants was acting on behalf of the owner, Mr Sharma. A copy of that document was tendered as Exhibit P7. The lease agreement included a number of standard typed clauses with two additional conditions added in handwriting. One of those conditions stated that there would be no inspections required by Dream Merchants Real Estate. The other stipulated that the owner would have permission to access the property when required by both parties for maintenance and inspections. Those handwritten additions were included ostensibly as a consequence of an impasse being reached by the proposed tenant and landlord regarding the issue of inspections. The witness agreed that those two additional conditions struck a middle ground, permitting the landlord to inspect the premises instead of the property manager (Dream Merchants).
The document bore the signatures of two tenants. One tenant listed as N Tran and the other tenant listed as Tommy Phan. Ms Hewish stated in her evidence that she saw Tommy Phan sign the document. She did not see Ms Tran sign the document, although an interstate driver’s licence was provided in the name N Tran as part of the process. The person who identified themselves as Tommy Phan also provided a driver’s licence to the witness.
Ms Hewish observed that ordinarily more documentation by way of identification would be required. Ms Hewish stated that because Mr Singh and Mr Sharma did the negotiations between themselves that a lesser standard for identifying the tenants was approved in this particular case.
During evidence-in-chief, the following exchange took place:[10]
[10] T118 lines 27-37.
QIn any event, did you check the licence that was provided to you.
AYes.
QWere you satisfied that the person in the driver's licence was the same person who was signing the contract.
AYes.
QWhat was the name on the driver's licence.
ATommy Phan.
QDid you check whether that licence was current.
AIt was current at the time.
A copy of the licence was not tendered. I will return to this aspect of the matter shortly.
Ms Hewish then gave evidence regarding the tenant falling into arrears ‘very quickly’. An arrangement was made to meet with the tenant for the payment of the arrears.
The evidence relating to when this occurred is as follows:[11]
QDid you ultimately make an arrangement to meet with him.
AI did, on about 6 February. I was supposed to meet him at his, at the property at 23 Kent around 7-ish on that day to pick up around $4,000 of arrear rent.
QDo you remember what date that was.
A6 February I think from memory.
[11] T120 lines 14-19.
The witness then gave evidence of there being an agreement to change the meeting place to Bunnings at Munno Para. Ms Hewish saw Tommy and another man come out of the trade section at Bunnings in a 4WD with a trailer. The other man was of Asian appearance. She did not recognise this man, but did recognise Tommy.
The witness observed gyprock and building materials in the trailer. Tommy came out of the car, approached the witness’s car and handed her $4,000 in cash. The witness also observed bags of cement in the trailer and building materials.

I interpolate at this stage to note that the Bunnings receipts (Exhibit P4) indicate that 50 sheets of plasterboard walling were in fact purchased on 5 February 2020 at 2:59 pm. This discrepancy does not assist the prosecution case.
Under cross-examination, the witness confirmed that at the time the witness had no idea who Tommy Phan or N Tran were and had never met them before. The only times that the witness met with a person she knew as Tommy was at the signing of the lease agreement and at Bunnings some four to six weeks later. The witness confirmed the Bunnings meeting was very brief and took place at 8:15 pm, noting that it wasn’t quite dark due to daylight savings.
The witness was asked about the appearance of the two men at Bunnings. The witness confirmed they were both of Asian appearance and when asked to describe what the second male looked like, the following exchange took place:[12]
QCan you describe what the second male looked like now, his face.
AThe only thing I can recall is he was a bit shorter and he had a bit of facial hair on his face.
QAre they all black hair, tan complexion.
AYes, unfortunately they look very similar to myself.
[12] T124 lines 16-21.
The manner in which this evidence was given leads to the conclusion that the witness was, in reality, unable to readily distinguish the appearance of the men.
Detective Heighway
The final witness to be called was Detective Heighway. Detective Heighway is currently attached to the Serious and Organised Crime Branch of South Australia Police. An affidavit sworn 9 February 2022 was tendered as Exhibit P9 and effectively relied upon by the prosecution as their Detective’s evidence-in-chief.
Under cross-examination, Detective Heighway was asked the following:[13]
QAnd have you, in your experience before, seen fake names or false identification used on items such as electricity accounts.
AYes, but I would say it's not common.
QAnd what about the rental agreements.
AThat would depend on how the rental agreement has been made. I would say that, when it comes to the landlord being the person who operates the rental agreement for the house, then there is a higher chance that you come across fake identities but, of course, when it comes through real estate agents or qualified people who are registered then I find that that's not as common.
[13] T4 line 30 to T5 line 3.
The Detective agreed that false identities or fake names on tenancy agreements and electricity accounts are used to avoid detection by police. Detective Heighway agreed that in the case of identity fraud utilising a driver’s licence, if someone has a physical resemblance to the person in the photograph on a driver’s licence, police have found that that driver’s licence can be used by an imposter passing themselves off as the rightful owner of the driver’s licence.
The Prosecution Case
The prosecution submitted that the evidence established that the accused had undertaken several acts meeting the definition of taking part in the cultivation of cannabis. They were:
1.    Arranging and signing the lease;
2.    Paying rent;
3.    Arranging the electricity account; and
4.    Purchasing and delivering equipment.
The prosecution submitted that the involvement of other people in the cultivation of cannabis at the property does not alleviate the accused of criminal responsibility given his contribution to facilitate the cultivation of cannabis. It was submitted that a ‘syndicate’ was responsible for what was occurring at the property. The prosecution submitted that the following evidence was capable of proving the critical issue at trial, namely the identity of the offender:
1.    A man called Tommy attended at the premises on two occasions to negotiate the lease;
2.    The same man that inspected the premises in late 2019 spoke with Mr Raphael, introducing himself as Tommy, inviting him over to drink beer with himself and two other Asian men at the property;
3.    The same man that signed the lease, having provided a driver’s licence in the name Tommy Phan, met with Ms Hewish at Bunnings Munno Para at approximately 8:15 pm on 6 February 2020, paying $4,000 cash in rent and that a receipt was found at 23 Kent Road for a transaction occurring at that Bunnings store at 8:06 pm the same day. Ms Hewish observed the man to be driving a vehicle with a trailer containing building supplies, notably gyprock, consistent with materials used to construct the grow rooms at the property; and
4.    The Origin energy account for the premises was addressed to ‘Toomy Pham’.
The prosecution submits that these items of evidence circumstantially prove that the man engaging in these activities claiming to be Tommy Phan was in fact the accused. The prosecution submits that it was inherently implausible for another person to carry out a ‘sophisticated assumption’ of Mr Phan’s identity over an extended period of time.
The Defence Case
Primarily, the defence case was that the prosecution had not proved beyond reasonable doubt that the man claiming to be Tommy Phan was in fact the accused. Alternative arguments advanced included that the prosecution case on count 2 failed because the evidence did not establish beyond reasonable doubt that at least 100 cannabis plants were being cultivated. As I understand that argument, this relates to there being insufficient evidence that there were 100 plants ‘growing’ as defined in s 4 of the Controlled Substances Act. Further, defence submitted that even if the identity of the accused was proved beyond reasonable doubt, the court could not be satisfied that the accused had the requisite knowledge and intention to be guilty of the cultivation offences.
Discussion
The primary issue that falls to be resolved is whether the prosecution has proved beyond reasonable doubt that it was the accused who was responsible for cultivating the subject plants by the various means advanced by the prosecution.
In this case, there is no positive identification of the accused. By this, I mean that no witness participated in any identification procedure formally identifying the accused. Not one witness said that the person who was engaging in the impugned activities was the accused. Nor was there any recognition evidence relating to the accused. None of the witnesses knew the person or had a relationship with the person to provide a basis for an assertion that they knew the offender was the accused. That is because none of the witnesses know the accused.
The type of interactions between the relevant prosecution witnesses and the man claiming to be Tommy Phan was insufficient to provide a basis for recognition. The type of interactions that might be capable of called in aide by the prosecution do not exist here. There is no longitudinal or situational relationship between the witness and the person so as to disclose the true identity of that person. There is no knowledge of notorious reputation or observations that would permit recognition of the person.
The issue of identification procedures was explored with the investigating officer during the course of cross-examination. In effect, the Detective stated that he did not believe any photographic identification procedures were required and the Detective had made up in his own mind that it was the accused who was implicated in the crimes. The effect of the evidence was that the Detective was of the view that he ‘had his man’.
The complete absence of any identification of the accused via photographic identification procedures is noteworthy. As Peek J observed in Strauss v Police:[14]
The need to conduct a formal photographic identification procedure is every bit as great in the case of a witness who asserts having made a ‘Facebook identification’ as in the case of a witness who has not done so and it simply must be done. If the witness cannot meet the known and objective standards of the formal photographic identification procedure as required by the decided cases and by SAPOL directives, then police must accept that result with good grace.
[14] (2013) 115 SASR 90 at [65].
In an assessment of the evidence relating to proof of the identity of the offender, the following summary is of note:
1.      Mr Sharma
Mr Sharma knew the person only as Tommy, did not ask him for identification, took the person’s word for who they were, had never met Tommy Phan and did not know the accused.
2.      Mr Raphael
Mr Raphael did not provide a description of the man called Tommy Phan, other than him being of Asian appearance. He had never met Tommy before and did not know the accused.
3.      Ms Hewish
Ms Hewish described a man of Asian appearance, had not met Tommy Phan before and did not know the accused. Ms Hewish also gave evidence to the effect that she was unable to differentiate between men of Asian appearance.[15]
[15] T124.
The reference to the driver’s licence provided by the man claiming to be Tommy Phan is not particularly helpful in the circumstances of this case. In substance, the evidence on this topic was limited to the witness confirming that the man who signed the lease was the man depicted on the driver’s licence. No description was provided of the person on the driver’s licence, nor was the licence tendered into evidence. In those circumstances, it is very difficult to see how much weight can be placed on this aspect of the evidence. I am not in a position to assess whether or not the person depicted in the driver’s licence is the accused or looks like the accused.
In Strauss v Police,[16] Peek J made the following observations in circumstances not dissimilar to this matter:
Mr Hurley did not provide a copy of the photographic image (the image) from which he said he had identified the appellant to the police and nor did the police take steps to obtain a copy or tender a copy in evidence at trial.
I should say here that an assertion by a witness that he had identified a person by looking at an image of the person without the prosecution producing a copy of the image is at least depressingly circular. The court is apparently asked to assume, on the basis of the witness’ own assertion of his own ‘identification’, that a particular image depicted the defendant and was on a website at the relevant time. But the correctness of the asserted identification (which after all is the central issue in the case) is dependent upon, amongst other things, the correctness of the witness’ very assertion that the image actually depicted the defendant.
The court — both the trial court and an appellate court — must be in a position to view the image when a witness asserts that he recognised the defendant from that image and in a case where identification is the central issue, the absence of such a central piece of evidence (which could easily have been obtained by police) is unacceptable.
Whether such oral evidence about a ‘document’ (in the sense of an image easily printed) should be inadmissible (at least in the absence of an attempt to obtain and tender the document) by reference to the principles that underlay the traditional ‘best evidence rule’, or whether discretionary exclusion only can be resorted to in such circumstances, are subtleties that were not addressed in argument and I find it unnecessary to consider them further on this occasion. [my emphasis, footnote omitted]
[16] (2013) 115 SASR 90 at [116]-[119].
Whilst the Origin account for the property is close to being in the name of the accused, and for the sake of argument assume that it was intended to be the name of the accused but for a spelling mistake, little assistance is gained from this particular piece of evidence. That is because there is no evidence regarding the process as to how that account was brought into existence.
The prosecution case on the topic of circumstantial proof of the identity of the offender relies on a ‘depressingly circular’ assumption that it must be the accused and that it is inherently implausible that some other person could carry out a ‘sophisticated assumption of Mr Phan’s identity over an extended period of time’.
I do not accept this. The evidence discloses a handful of occasions where a man interacting with prosecution witnesses refers to himself as either Tommy or Tommy Phan. Further, producing a driver’s licence in that name and signing a lease in that name does not amount to an ‘immersion’ into someone else’s identity. As Detective Heighway stated, it is possible to pass oneself off as someone else if there is a similarity between the person depicted in the licence and the person attempting subterfuge.
The state of the evidence in this case is not capable of proving beyond reasonable doubt that it was the accused carrying out the impugned activities. The prosecution could not exclude as a reasonable possibility that it was another person passing themselves off as the accused who was responsible for the involvement in the subject cultivation.
In those circumstances, the accused must be acquitted of both counts.
Alternative proposition advanced by Defence
Given that the accused is to be acquitted on lack of proof of identity, I briefly turn to the other issues raised by defence. During the course of submissions, defence advanced the proposition that the prosecution had not established beyond reasonable doubt that at least 100 cannabis plants were being cultivated. The argument advanced was as follows:
1.      There is no evidence from any witness that at least 100 cannabis plants were in the process of being grown;
2.      Much of the evidence of Detective Brooker related to the hydroponic set-up and his observations that the entirety of the hydroponic equipment was not in working order; and
3.      The photographs did not depict at least 100 different cannabis plants ‘growing’ in soil inside pots.
For those reasons, it was suggested, count 2 had not been made out.
Whilst strictly speaking I am not required to decide at this point given that the prosecution have failed to establish the identity of the accused as being the offender beyond reasonable doubt, for the sake of completeness, I am not persuaded by this argument.
Section 4(1) of the Controlled Substances Act relevantly states:
controlled plant means a growing cannabis plant or a cutting of a cannabis plant (provided that the cutting has been planted or otherwise placed in a growing medium) or any other plant declared by the regulations to be a controlled plant for the purposes of this Act;
It was not argued that cannabis was not a controlled plant. What appears to be argued is that the prosecution evidence was incapable of proving the presence of at least 100 growing plants.
The Shorter Oxford English Dictionary defines growing as ‘the action of grow’. ‘Grow’ is defined as follows:
1. … Of a plant: To manifest vigorous life; to put forth foliage, flourish, be green … 2. In weaker sense: to have vegetative life …
During the course of submissions, defence conceded that the court could be satisfied there were at least 100 plants present. The question therefore seems to be whether or not I could be satisfied beyond reasonable doubt that the plants that were present were ‘growing’.
Whilst there is no direct evidence that each plant subject to count 2 was ‘growing’, a combination of the evidence, including the oral testimony of Detective Brooker, together with the appearance of the subject cannabis plants in the photographs (Exhibit P3) leads to that conclusion. The plants depicted in rooms 8, 9 and 11 all appear to be growing in accordance with the definition of that term. Indeed, the plants appear to be flourishing. It matters not that the hydroponic set‑up is incomplete. Whilst this was a work in progress, the plants clearly give the appearance of growing.
I do not accept this argument advanced by defence.
Second Alternative proposition advanced by Defence
Defence counsel also submitted as a further alternative a suggestion that the prosecution had not proved beyond reasonable doubt that the actions attributed to the accused on the prosecution case amounted to cultivation. Given that I have determined that the prosecution has not discharged its onus in proving beyond reasonable doubt that the accused is the person responsible for the impugned actions, it is unnecessary for me to decide this matter. Again for the sake of completeness, I indicate that I am not persuaded as to the correctness of this submission. If, for the sake of argument, the identity of the accused was not in dispute, then these steps of leasing the property, acquiring the materials to assist with hydroponic cultivation and the $4,000 payment of rent at a time proximate to police attendance, would more than amply provide evidence of the accused taking a step in the process of cultivation. The overwhelming inference to be drawn is that the person who attended to these things was performing a critical role in the cultivation taking place at the property. This is reinforced by the fact that the entire property was devoted to the cultivation of cannabis. There is no hypothesis consistent with innocence when one assesses the evidence in this regard.
Verdicts
I find the accused not guilty of both counts.