The State of Western Australia v Le - [2020] WADC 55

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LE [2020] WADC 55
CORAM:   VERNON DCJ
HEARD:   14-16 APRIL 2020
DELIVERED          :   5 MAY 2020
FILE NO/S:   IND 707 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

TOAN MINH LE

Catchwords:

Criminal law - Trial by judge alone - Cultivation of a prohibited plant with intent to sell or supply - Attempted cultivation of a prohibited plant with intent to sell or supply - Aiding principal offender

Legislation:

Criminal Code 1913 (WA), s 7(a), s 7(b), s 7(c), s 10D(a)
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120
Misuse of Drugs Act 1981 (WA), s 7(1)

Result:

Not guilty

Representation:

Counsel:

The State of Western Australia	:	Mr D C McCallum
Accused	:	Mr S Brennan

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Brennan & Co

Case(s) referred to in decision(s):

Clayton v The Queen [2006] HCA 58
Higton v The State of Western Australia [2016] WASCA 43
Kenworthy v The Queen [No 2] [2016] WASCA 207
Milenkovski v The State of Western Australia [2004] WASCA 85
R v Coney (1882) 8 QBD 534
R v Dang Quang Nguyen [2010] HCA 38, (2010) 242 CLR 491
R v Mai (1992) 26 NSWLR 371
Roe v The State of Western Australia [2015] WASCA 64
Taylor v The State of Western Australia [2016] WASCA 210
The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
Thompson v The State of Western Australia [2013] WASCA 1
Ward v The Queen (1997) 19 WAR 68
Wark v The State of Western Australia [2020] WASCA 19
Weggers v State of Western Australia [2014] WASCA 57
Wells v The State of Western Australia [2017] WASCA 27
West v Suzuka [1964] WAR 112

VERNON DCJ:

The accused, Toan Minh Le, is charged that, on 11 July 2018, he cultivated a prohibited plant, namely cannabis, with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA). The accused has pleaded not guilty to that charge.

Trial by judge alone

On 1 April 2020 her Honour, Judge Wager ordered that the trial be heard by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) (CPA).

Result

For the reasons set out below, I find the accused not guilty.

Summary of the State's case and the accused's position

The State's case[1] is that during the execution of a MDA search warrant of the house at 5 Dumant Lane, Canning Vale, the police found a crop of 28 mature cannabis plants in the master bedroom, which room had been fitted with equipment for the hydroponic cultivation of cannabis. The State says that the accused is guilty of cultivation of the cannabis in the master bedroom, with intent to sell or supply it to another, either as a principal offender, or by aiding his co-accused, Van Thu Le, in the commission of the offence.[2] The State submits, in the alternative, that the accused is guilty, as a principal offender, of attempting to cultivate cannabis in other rooms in the house with intent to sell or supply it to another.[3]
[1] ts 145, ts 146.
[2] ts 145, ts 146.
[3] ts 145, ts 146.
The State relies on the inference to be drawn from the number of plants seized that the accused's intention was to sell or supply the cannabis, but says, in addition, that the commercial character of the cannabis growing operation in the house is obvious from the evidence of photographs of the house.[4]
[4] ts 145.
The State accepts that in order to prove the accused is guilty of the offence, either as a principal offender or by aiding Van Thu Le, the State must prove beyond reasonable doubt that the accused had actual knowledge of the cannabis growing in the house, although the State submits that it is not required to prove the accused had knowledge of the precise number of cannabis plants, or their state of maturity.[5]
[5] ts 149, ts 150.
The accused says that he did not know anything about the cannabis growing in the house. He says that he came to Perth on holiday on 8 July 2018, and was staying with Van Thu Le. The accused says that on 11 July 2018, Van Thu Le asked the accused to help him move two mattresses, that Van Thu Le took him to the house in his car, and that he had only been at the house for about 10 minutes before the police arrived, during which time he had helped Van Thu Le move a mattress from one room to another, and had gone to the toilet.

Principles of law

I have taken into account the requirements of s 119 and s 120 of the CPA relating to trials by judge alone. I also remind myself of the legal principles set out in [9] to [26] below, which apply to my determination of this case.

Presumption of innocence, burden of proof and standard of proof

The accused is presumed to be innocent of the offence with which he has been charged. The State must prove that the accused is guilty of the offence beyond reasonable doubt. Subject to one exception, in relation to the issue of intent to sell or supply, which I will refer to later in these reasons, the accused is not required to prove anything in this trial, or to give or call evidence in his defence.
In order to discharge its burden the State must prove every element of the offence beyond reasonable doubt.
It is my duty to return a verdict of not guilty if I have a reasonable doubt whether the accused is guilty of the offence.

Assessing evidence

I must decide the case solely on the evidence I have seen and heard in this trial; that is what the witnesses have said under oath in answer to questions and the exhibits that have been produced. What either counsel said in the course of the trial is not evidence.
In order to decide the facts I must carefully consider and assess all of the evidence that has been presented to me dispassionately and objectively, and without prejudice or sympathy.
In order to deliver a verdict in this case, I must form a view about the credibility of the evidence of each witness. I must only accept evidence that I find to be credible; that is honestly given and reliable. I may accept all or part of the evidence of any witness and disregard all or part of the evidence of that witness.

The effect of the accused giving evidence

The accused gave evidence during the trial. The fact that he did so does not alter the applicable principles of law, that the onus is on the State to prove the offence and that the accused is presumed to be innocent of the offence until the State proves each element of the offence beyond reasonable doubt.
If I believe the accused's evidence, which was to the effect described in [6] above, I must acquit him of the charge. However, even if I prefer the State's evidence I must not convict the accused unless I am satisfied beyond reasonable doubt of the truth of that evidence. If the accused's evidence, or any other evidence, has given rise to a reasonable doubt then I cannot convict the accused. That is the case even if I have difficulty accepting the accused's evidence but think it might be true.
If I do not accept the accused's evidence and reject that evidence, it does not automatically follow that I will convict the accused of the offence. I can only deliver a guilty verdict if, on all the evidence, I find that the State has proved the accused's guilt of the offence beyond reasonable doubt.
Accordingly, if I do not believe the accused, I must put his testimony to one side. I can only convict the accused if I determine that, on the basis of the evidence I do accept, the State has proved the accused's guilt of the offence beyond reasonable doubt.

Inferences and circumstantial evidence

The State's case against the accused is entirely circumstantial. In a circumstantial case the State relies on evidence of circumstances, not as proving a fact directly, but as pointing to the existence of a fact; that is the State asks me to draw inferences from the facts.
I must not guess or speculate about matters that are not in evidence, or look for theories not supported by the evidence. I may, however, draw inferences from facts I find to be proved. An inference is a logical deduction, or conclusion, from the facts.
Accordingly, I must first identify the facts that I find to be established by the evidence. I must then determine what facts I consider may be inferred from a combination of the established facts. I must consider from the facts I find proved whether I can infer from those facts that the accused is guilty of the offence beyond reasonable doubt.
Before I draw an inference, or come to a conclusion, against the accused, I must be satisfied that the inference is the only reasonable inference that can be drawn from the proven facts.[6] I must not draw an inference against the accused unless I have decided that the inference is the only reasonable inference open to me on the facts I have found proved on the evidence I accept to be honestly given and reliable.
[6] The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [14]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18]; Higton v The State of Western Australia [2016] WASCA 43 [17].
In drawing inferences I must not consider each piece of evidence, or each fact or circumstance established by the evidence, in isolation, but I must consider and weigh them as a whole.[7]
[7] The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [18] – [21]; Wark v The State of Western Australia [2020] WASCA 19 [275].
A reasonable inference is one that a reasonable person would draw from a consideration of all the evidence and the facts established by the evidence. An inference that is based on mere conjecture or speculation cannot be a reasonable inference.[8]
[8] The Queen v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [46] – [47]; Wells v The State of Western Australia [2017] WASCA 27 [14]; Kenworthy v The Queen [No 2] [2016] WASCA 207 [18].
In a circumstantial case the ultimate fact that the State asks me to infer from the proven facts is that the accused is guilty of the offence. If, after I have considered all the evidence, and decided the facts I find proved from that evidence, I find that there is a reasonable inference open on the facts that is consistent with the accused's innocence, then I must draw that inference. In that case it is my duty to find the accused not guilty. That follows from the requirement that the State must establish the accused's guilt beyond reasonable doubt.
I must not draw an inference that the accused is guilty of the offence unless I am satisfied that inference is the only inference reasonably open on the whole of the facts I find proved. [9] If it is not, the State will have failed to prove the accused's guilt of the offence beyond reasonable doubt.
[9] Thompson v The State of Western Australia [2013] WASCA 1 [23]; Higton v The State of Western Australia [2016] WASCA 43 [16] - [18]; Roe v The State of Western Australia [2015] WASCA 64.

Elements of the offence

In order to prove the accused is guilty of the offence beyond reasonable doubt, the State must prove each element of the offence beyond reasonable doubt.
The date and place of the offence are not elements of the offence and the State does not have to prove beyond reasonable doubt that the offence was actually committed on the date and place specified in the indictment.
The charge on the indictment can be broken down into four elements each of which the State must prove beyond reasonable doubt:
(a)identity: that is the State must prove that the accused is the person who committed the acts relied on by the State as constituting the offence;
(b)that there were prohibited plants, namely cannabis plants;
(c)that the accused cultivated the prohibited plants knowing that they were prohibited plants;
(d)that when the accused cultivated the prohibited plants, he did so with intent to sell or supply the prohibited plants, or any part of the prohibited plants, to another.

Prohibited plants

Under s 3 of the MDA a prohibited plant means any plant to which the MDA applies by virtue of s 4 of the MDA, or part of that plant.
Section 4(2)(b) of the MDA provides that a plant to which the MDA applies includes plants specified in sch II of the MDA.
'Cannabis' is a plant specified in Schedule II of the MDA. 'Cannabis' is defined in s 3 of the MDA as meaning 'plant of the genus cannabis by whatever name designated or part of that plant'.
Section 38(2) of the MDA provides that, in any proceedings against a person for an offence, production of a certificate purporting to be signed by an approved botanist is sufficient evidence of the facts stated in the certificate. Section 38(3) of the MDA provides that proof is not required of the signature of the person purporting to have signed the certificate or that the person is an approved botanist.

Cultivation

The words 'to cultivate' in relation to a prohibited plant are defined in s 3(1) of the MDA to include 'to grow, sow or scatter the seed produced by, or to plant, nurture, tend or harvest the prohibited plant'.
The definition is inclusive, and is not limited to the words in s 3. However, if the acts the State relies on do not fall within the meaning of the words in the definition they must fall within the ordinary meaning of the verb 'to cultivate'.
In the Macquarie Dictionary the verb 'to cultivate' is defined as 'to bestow labour upon (land) in raising crops; till; improve by husbandry', and 'to promote or improve the growth of (a plant etc) by labour and attention'. In the Shorter Oxford English Dictionary the verb is defined as 'prepare and use (soil) for crops; bring (land) into a state of cultivation' and 'give attention to (a plant) to promote growth, improve fertility etc; produce or raise by agriculture or horticulture'. Accordingly, all the activities listed in the definition of 'to cultivate' in s 3 of the MDA fall within the ordinary meaning of the word.

Intent to sell or supply

The State relies on s 11(b) of the MDA to prove intent. That section provides that for the purpose of s 7(1)(a) of the MDA:
a person shall, unless the contrary is proved, be deemed to have in his possession, or to have cultivated, prohibited plants of a particular species or genus with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another if he has in his possession, or cultivates, a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus.
Schedule VI of the MDA provides that the specified number of cannabis plants is 10 or more.
Accordingly for the deeming provision to apply, the State must prove beyond reasonable doubt that the accused cultivated 10 or more cannabis plants. If the State does this, the onus then falls on the accused to satisfy me, on the balance of probabilities, that he did not intend to sell or supply the cannabis to another.

Basis of criminal responsibility for the offence

The Criminal Code 1913 (WA) (Code) provides that the following people are deemed to have taken part in the commission of an offence and to be guilty of the offence:
(a)every person who actually does the act which constitutes the offence - s 7(a);
(b)every person who does any act for the purpose of enabling or aiding another person to commit the offence - s 7(b); and
(c)every person who aids another person in committing the offence - s 7(c).
In order to prove that a person is criminally responsible under either s 7(b) or s 7(c) of the Code the State must prove each of the following beyond reasonable doubt:
(a)a person not being the accused (the principal offender) has committed the offence;
(b)the accused had actual knowledge of the facts amounting to the offence committed by the principal offender (that is actual knowledge of the essential facts constituting the offence that was being, or about to be, or might be, committed by the principal offender);
(c)the accused did or omitted to do something with the intention of aiding or assisting in the doing of the acts which constitute the offence; and
(d)what the accused did or omitted to do actually aided or assisted the principal offender to commit, or in committing, the offence.[10]
[10] Taylor v The State of Western Australia [2016] WASCA 210 [58] (Buss P).
The State's case is that Van Thu Le committed the offence. However, the proof of the accused's guilt is not dependant on the State proving the identity of the principal offender. Rather the State must prove the commission of the offence by someone other than the accused.
The State must prove that the accused had actual knowledge of the facts amounting to the offence, that is, what acts were being done, or going to be done, by the other person. It is not necessary for the accused to know as a matter of law what the offence was, but only the essential facts which constitute the offence. However, it is not enough that the accused has a mere suspicion that the facts existed.[11]
[11] Ward v The Queen (1997) 19 WAR 68, 75 Steytler J.
It is not enough for the State to prove merely that the accused was present when Van Thu Le committed the offence. It is not a criminal offence to stand by as a passive spectator to an offence.[12] The relevant inquiry is what did the accused do, if anything, to aid the principal offender.[13]
[12] R v Coney (1882) 8 QBD 534.
[13] Clayton v The Queen [2006] HCA 58 [25]; R v Dang Quang Nguyen [2010] HCA 38, (2010) 242 CLR 491 [47].
The State cannot prove a person's knowledge or intention by direct evidence. The State relies on inferences drawn from circumstantial evidence. What I have said about how I may draw inferences in a circumstantial case in [20] to [26] above applies to my drawing an inference about the accused's intent.

Alternative offence of attempt

Section 10D(a) of the Criminal Code provides that:[14]
If a person is charged with committing an offence (the principal offence), the person, instead of being convicted as charged, may be convicted of attempting to commit the principal offence …
[14] Section 10D(a) applies to offences under the MDA – West v Suzuka [1964] WAR 112, 120.
In order for the State to prove the accused, as a principal offender, attempted to commit the offence of cultivation of a prohibited plant with intent to sell or supply it to another the State must prove beyond reasonable doubt that the accused:
(a)intended to commit the offence;
(b)did an act that is more than merely preparatory to the commission of the offence; and
(c)did not fulfil that intention.[15]
[15] Section 4 of the Code.
Intending to commit an offence is not sufficient. Criminal responsibility does not arise until the accused has acted upon that intent.
Whether an act is merely preparatory or not is a question of fact that will depend upon the particular circumstances of the case.[16] The act relied on as constituting the attempt must be proximate to the commission of the offence, that is, immediately and not remotely connected with the intended offence, and which cannot reasonably be regarded as having any other purpose other than the commission of the offence.[17]
[16] Weggers v State of Western Australia [2014] WASCA 57 [76] Martin CJ, [158] Buss JJA.
[17] Milenkovski v The State of Western Australia [2004] WASCA 85 [23] (Miller J, Murray & Wheeler JJ agreeing); R v Mai (1992) 26 NSWLR 371, 381 - 382 (Hunt CJ at CL, Enderby & Allen JJ agreeing).
In Weggers v The State of Western Australia, Buss JJA gave the following guidance on the distinction:[18]
Each case will turn on its own facts and circumstances, but ordinarily, matters of importance in applying the distinction between acts that are merely preparatory and acts that are more than merely preparatory include -
The nature of the completed offence;
The actions which are necessary to carry out the completed offence;
The nature of the particular acts of the accused that are in question;
The relative proximity (including in time and place) of the acts in question to those actions that would have been necessary for the successful carrying out of the completed offence.
[18] Weggers v The State of Western Australia [2014] WASCA 57 [158] (Buss JJA).

In the same case McLure P said:[19]
The line between overt acts that are pre and post commencement of execution may involve nice questions of judgment that will be informed by the closeness of the connection (in time and otherwise) between the preparatory act and the acts constituting the intended offence.
[19] Weggers v State of Western Australia [2014] WASCA 57 [95] (McLure P).
The deeming provision in s 11 of the MDA does not apply in relation to proof of the element of intent in the offence of attempted cultivation of a prohibited plant with intent to sell or supply. Accordingly, the State must satisfy me beyond reasonable doubt on the evidence that the accused intended to sell or supply any cannabis that I find the accused was attempting to cultivate.

The State's evidence

The State called three witnesses, First Class Constable Dallon Hay, Constable Hoai Nam Tran, and Detective Senior Constable Loki Diel Psaila-Borrie. All three police officers had attended 5 Dumant Lane, Canning Vale on 11 July 2018, for the purposes of executing a MDA search warrant.
Constable Tran and Detective Senior Constable Psaila-Borrie arrived at 5 Dumant Lane together, at around 10.45 am when other police officers had already gained entry to the house at that address and had arrested the accused and Van Thu Le, who were sitting in the dining room area of the house.[20]
[20] ts 43, ts 44, ts 52, ts 53.
The video recording taken during the search of the house (exhibit 2) was tendered through Constable Tran, who was designated the lead officer for the purposes of executing the search warrant. Exhibit 2 evidences that, during the search, police found 28 plants growing in pots in the master bedroom of the house, which plants were removed from the pots and placed into movement bags bearing the tag numbers T068674, T068675, T068857, T068319, T068853 and T068854.
The State tendered two Certificates of Approved Botanist within the meaning of the MDA, both dated 27 July 2018 (exhibit 11). Exhibit 11 evidences that the plants placed into movement bags bearing the tag numbers T06874, T068675, T068857, T068319, T068853 and T068854 were Cannabis sativa plants and, therefore, prohibited plants within the meaning of that term in s 7(1)(a) MDA.
Constable Tran gave evidence that, during the search, a receipt was located in the accused's wallet. A photograph of that receipt was tendered in evidence (exhibit 4). Exhibit 4 evidences the purchase on 5 July 2018 at 4:29:55 pm at Bunnings Warehouse in Sunshine, in Victoria, of three items described as follows:
Insulation Air Cell 48mm 50m Silver Foil Tape for $25.00
Insulation Duct Reinforcd (Sic) Tape 72mm 50m Roll for $26.60; and
Light Spotlight 24OV Verve 3LT BR Steel Rochdale for $25.98.
Detective Senior Constable Psaila-Borrie gave evidence that he took over as the investigating officer for Constable Tran. He said that the MDA search warrant was obtained following a report from Western Power that there was some sort of anomaly with the electrical meter to the house.[21]
[21] ts 52.
Detective Senior Constable Psaila-Borrie said that he had obtained CCTV footage of the Bunnings Store in Sunshine, Victoria. Three screenshots of that footage were tendered in evidence (exhibit 6). The first screenshot has its time stamp obscured and the other two were time stamped 4:22:28 and 4:29:43 respectively. The last of these was taken at the front counter of the store. There was no dispute, as is obvious from the images, that the accused was the person shown in the three screenshots.
Detective Senior Constable Psaila-Borrie gave evidence that the photographs numbered 1 to 60 tendered in evidence (exhibit 5) were taken by police officers present during the execution of the search warrant and by forensics officers who attended the house at the completion of the execution of the search warrant.
Detective Senior Constable Psaila-Borrie gave evidence in relation to the photographs comprising exhibit 5, based on his knowledge of the house at the time of the search and his experience in items commonly used in hydroponic cultivation of cannabis, that:
(a)Photographs numbered 5, 6, 7, 8, 9 and 10 show items found in the kitchen area of the house, on the kitchen bench and in open boxes on the kitchen floor.[22]
[22] ts 54, ts 55.
(b)Galvanised clothes line wire shown in photograph numbered 10 was an item commonly used to hang carbon filters from the ceiling in premises where cannabis had been grown hydroponically under heat lamps.[23]
[23] ts 55.
(c)Photographs numbered 12 and 13 show an item in the dining area of the house that would have been used as a grow tent or nursery, but was not being used at the time of the search.[24]
[24] ts 56.
(d)Photograph numbered 19 shows the door to the master bedroom where the cannabis was discovered, which door had been damaged through forced entry to that room by police during the search.[25]
(e)Photographs numbered 20, 21, 22, 23, 24, and 25 show views of the master bedroom and its walk in wardrobe, and items used for the cultivation of the plants in that room, including silver ducting attached to a large silver drum, which was a carbon filter, high pressure sodium lights or heat lamps, electrical wiring leading to the heat lamps,[26] and a power box with built in timers and a multitude of power points.[27]
(f)Photograph numbered 24 shows a cluster of electrical leads leading into the walk in wardrobe from the master bedroom, two carbon filters that were being stored, some ducting, and some lampshades that were the same as the ones hanging from the ceiling in the master bedroom.[28]
(g)Photograph numbered 29 shows plastic sheeting that is an item commonly associated with cannabis grow houses being normally used to line the floor before putting the plants on it, and sometimes used to line the walls.[29]
(h)Photographs numbered 30, 31 and 32 show the second bedroom of the house and the walk in wardrobe in that room. Photograph numbered 32 shows light holders in the walk in wardrobe, used to screw the high pressure sodium lights into, transformers or ballasts that power such lights, a filter, and bamboo sticks that are used to hold up the stems of cannabis plants as they grow.[30]
(i)Photographs numbered 33, 34, 35, 36, 37 and 38 show the third bedroom of the house, the walk in wardrobe in that room, a stepladder in the room and marks on the ceiling which were above that stepladder. Photograph numbered 36 shows Hy-Gen branded liquid fertilisers commonly used in the cultivation of cannabis, bamboo sticks for holding up the stems of cannabis plants and some electrical items which were either ballasts or light fittings.[31]
(j)Photograph numbered 39 shows the bathroom door directly across the hall from bedroom 3, and photograph numbered 40 shows the toilet door in the hall to the left of the bathroom door.[32]
(k)Photographs numbered 44, 45, 46, 47, 48, and 49 shows the inside of the toilet and the items found on the window sill of that room, being a single glove, two disposable gloves, a knife and a screwdriver.[33]
(l)Photographs numbered 50, 51, 52, 53, 54, 55 and 56 show the master bedroom and the ensuite to that room after the cannabis plants had been removed.[34] Photographs numbered 55 and 56 show a part of the wall of the master bedroom where the plaster had been chipped away and a wire leading into it, on the other side of which was the meter box.[35]
(m)Photographs numbered 59 and 60 show the wires removed from the wall in the master bedroom, which were insulated with tape.[36]
[25] ts 57.
[26] ts 58.
[27] ts 61.
[28] ts 59.
[29] ts 60.
[30] ts 60, 61.
[31] ts 62.
[32] ts 63.
[33] ts 63, ts 64.
[34] ts 64, ts 65.
[35] ts 65, ts 66.
[36] ts 66.
Detective Senior Constable Psaila-Borrie said that the purpose of the filtration system in the master bedroom was to remove hot air from the room and to filter out the smell of cannabis.[37] He said that, when he attended the house, the door to the master bedroom had already been forced and was open. When asked in evidence-in-chief whether he detected the smell of cannabis anywhere in the house, Detective Senior Constable Psaila-Borrie said, 'There probably was but, I mean, I can't remember that …'.[38]
[37] ts 58.
[38] ts 58.
Detective Senior Constable Psaila-Borrie produced two documents evidencing that Van Thu Le had leased the house at 5 Dumant Lane for periods between 22 January 2017 to 22 June 2018 (exhibit 8) and 23 July 2018 and 22 July 2019 (exhibit 7).
Detective Senior Constable Psaila-Borrie gave evidence that:
(a)Whilst swabs were taken from the gloves found on the window sill of the toilet, they were not sent for analysis.
(b)Forensics officers conducted an examination for latent finger prints in the house, and found a fingerprint of Van Thu Le on a lampshade in the ensuite bathroom.
(c)The tape found on the wiring bypassing the meter box was examined. However, no fingerprints, or DNA profiles suitable for analysis, were found.
(d)No forensic evidence linking the accused to anything inside the house was found.[39]
[39] ts 69, ts 70.
Constable Tran gave evidence, under cross-examination, that Van Thu Le pleaded guilty to the charge in the indictment.[40]
[40] ts 48.
First Class Constable Hay gave evidence that he was one of the first police officers to attend the house to execute the search warrant. He said that the entry was forced and that, whilst he did not specifically recall the entry on this occasion, whenever entry is forced, the police call out 'Police. Search Warrant.' as they enter.[41]
[41] ts 26, ts 27.
First Class Constable Hay said that, upon entering the house, the police looked for any people within the house.[42] He said that one of the last rooms reached was the toilet at the back of the building,[43] which he identified as the toilet depicted in photograph numbered 44.[44]
[42] ts 27.
[43] ts 27.
[44] ts 28; Exhibit 5.
First Class Constable Hay said the door was closed and he opened the door and found two males inside.[45] He said:[46]
They were two males in the toilet both standing there. They were holding tools. To my memory, one was a screwdriver and one had a small steak knife. Both males had gloves on and as I opened the door they both put the tools on the window sill in the toilet and commenced taking their gloves off.
[45] ts 27.
[46] ts 27.
First Class Constable Hay identified the tools shown in the photograph numbered 45 and 46 as the ones the men had been holding, and the gloves in those photographs as the ones they were originally wearing.[47] He said that when he gained access to the room, both men started removing their gloves, and he intervened to stop them doing so.[48] First Class Constable Hay said one of the men, and he could not recall which, managed to get his gloves off, and he could not recall whether the other male got a glove off or not.[49] He said the men were arrested and were placed in handcuffs and seated until other police arrived.[50]
[47] ts 28; Exhibit 5.
[48] ts 28.
[49] ts 28.
[50] ts 28.
First Class Constable Hay said entry to one door inside the house was forced, being the door to the master bedroom shown in photograph numbered 19, and no other doors inside the house needed to be forced.[51] He said that apart from the toilet door, which was closed, he could not remember whether any other doors in the house were open or closed.[52] He said that it was not standard practice to close a door if it was opened by police during the search.[53]
[51] ts 29; Exhibit 5.
[52] ts 29.
[53] ts 29.
First Class Constable Hay said that he was the video camera operator for the search of the house and he recalled that an exhibit log was recorded while he was filming, although he did not complete the exhibit log. That log (exhibit 1) records:[54]
Item 1 '2 x gloves on Le Van Thu when arrested disposable inside of rubber glove. L/H.'; and
Item 2 '1 x disposable on Le Van Thu when arrested. R/H.'
[54] ts 30, ts 31.
First Class Constable Hay said that these log items recorded that the disposable glove inside the rubber glove were found on Van Thu Le's left hand and the disposable glove was found on Van Thu Le's right hand, and that no other gloves were recorded as having been seized.
First Class Constable Hay could not explain why no gloves were recorded as having been worn by the accused. First Class Constable Hay said that he assumed that, at the time, he believed the log to be correct.[55]
[55] ts 31.
Under cross-examination First Class Constable Hay gave evidence to the effect that:
(a)He was sure that each man was holding one tool each. However he did not remember who was holding what.[56]
(b)He made no record at the time of that observation, and made no reference to it in his witness statement dated 3 October 2018.[57]
(c)He had recalled that observation recently and said, 'It's just something that was jogged in my memory when I reviewed the photographs'.[58]
(d)He could not say which of the gloves found in the toilet were worn by either the accused or Van Thu Le, other than that both men had gloves on.[59] He said it was possible that the accused removed his gloves after he left the toilet.[60]
(e)The log recorded three gloves that had been found, it was possible the log was wrong in identifying them all as being found on Van Thu Le, and there was potential that gloves in the toilet had not been seized from the scene.[61]
(f)He had been with Organised Crime for a year and a half to two years as at 11 July 2018, and for another six months afterwards, during which time he had carried out many similar operations and attended multiple grow houses, all over the metropolitan area. First Class Constable Hay said that he could not recall how many, but agreed it would probably be more than 20 or 30.[62]
[56] ts 36.
[57] ts 36.
[58] ts 36.
[59] ts 37.
[60] ts 51.
[61] ts 39, ts 40.
[62] ts 33, ts 34.

The accused's evidence

The accused's evidence is summarised in [76] to [100] below.
The accused came to Australia in August 2013 on a four year student's visa.[63] He studied in Sydney before moving to Melbourne in early 2014 to study business.[64] During this period he worked part‑time in the building industry renovating properties.[65] The accused completed his course in August 2015.[66] He did not want to return to Vietnam.[67] He completed a two month language course in early 2016, and then continued working.[68]
[63] ts 77.
[64] ts 78.
[65] ts 78.
[66] ts 78.
[67] ts 79.
[68] ts 79.
The accused knew Van Thu Le because they used to study at the same school in Vietnam.[69] The accused and his partner were invited to a wedding in Melbourne,[70] where he met Van Thu Le. [71] The accused said that the wedding was in 2016, he finished Year 12 in 1999, and he had not seen, or had any contact with Van Thu Le for 17 years when he saw him at the wedding.[72] He denied that Van Thu Le was a good friend of his, saying he was one year ahead of the accused at school, and was just someone the accused knew from school.[73]
[69] ts 78.
[70] ts 79.
[71] ts 80.
[72] ts 98 to ts 100.
[73] ts 98.
The accused said in his evidence-in-chief that he spoke to Van Thu Le 'just a very short time' and they 'exchanged phone numbers'.[74] The accused said Van Thu Le told him he was living in Perth, and said, 'He just told me that when I have some free time because when - when is convenient he would invite me to Perth'. The accused said Van Thu Le then just talked to his friends.[75]
[74] ts 80 and ts 99.
[75] ts 80.
In cross-examination the accused said that as far as he can remember he only communicated with Van Thu Le once or twice after the wedding, and these were just very short conversations about how they were.[76]
[76] ts 99.
The accused said that, in early July 2018, his boss was travelling to Vietnam for two weeks and he had no work so he rang Van Thu Le and said he wanted to come to Perth to visit him.[77] He said that he told Van Thu Le that he would come and stay for about two or three days.[78] At the time he said his child, who he said was born on 2 June, was four weeks old and his partner stayed in Melbourne with the child.[79] He also said that he was not receiving an income because he had no work[80] and his partner was also not receiving an income after the birth.[81] The accused said in cross-examination, 'I was planning to stay here for up to two days because my child was too small and I could not afford to stay longer'.[82]
[77] ts 80, ts 81.
[78] ts 81.
[79] ts 81, ts 106.
[80] ts 107, ts 108.
[81] ts 108.
[82] ts 112.
The accused said in cross-examination in effect that the trip was a decision made at short notice, saying 'I did not decide. Just - I thought about going and then I did not prepare before'. [83] When asked 'So it was a last minute decision to come on the eighth' the accused replied, 'At the time I have no job, so I just had some time and I just thought of coming here.' [84] The tenor of his evidence was that his ticket was bought only days before departing. [85]
[83] ts 108.
[84] ts 108.
[85] ts 108.
When it was put to the accused in cross-examination, 'So this is even though you had no work, no income, a partner at home with an infant baby with a window patched up with insulation tape', he replied, 'Because during that time, winter time, it was very cold and I just wanted to come here and see, just for two or three days, to see if it is warmer here compared to Victoria so that I could move my family here and to find out if the job prospect is good or not'.[86]
[86] ts 109.
The accused said that he had asked Van Thu Le about what kind of work he could find before coming to Perth, by phone,[87] and that they spoke about that while he was staying with Van Thu Le.[88] He said that Van Thu Le had said that there was 'some work at the market garden, like strawberry plant, or some cleaning job that pays nicer'. [89]
[87] ts 121.
[88] ts 121.
[89] ts 109.
The accused said that he did not know what Van Thu Le was doing for work in July 2018[90] but said that he told the accused that he had done a cleaning job before and his wife was working as a nail technician.[91]
[90] ts 120, ts 121.
[91] ts 121.
The accused produced a boarding card (exhibit 10) which evidenced that he had flown on a flight that was scheduled to leave Melbourne at 20.45 (or 8.45 pm) and to arrive in Perth at 23.10 (or 11.10 pm) on 8 July 2018, which was a Sunday. The accused said that he arrived at 11 pm.[92] He said that he was collected from the airport by Van Thu Le, who took him to his place, where he lived with his pregnant wife. [93]
[92] ts 82.
[93] ts 82.
The accused said that he woke up at about noon the next day and Van Thu Le drove him around Perth. He could not remember clearly where they went but could remember he was driven to Hillary Beach or the Sorrento area.[94] They then bought some beer which they drank at Van Thu Le's house.[95] On the Tuesday Van Thu Le again drove the accused around Perth.[96]
[94] ts 83.
[95] ts 83.
[96] ts 84.
The accused said that the next morning, he told Van Thu Le and his wife that he wanted to go back to Melbourne, and said, 'so Van Thu Le drove me to the place to get the ticket to fly back to Melbourne'.[97] He said that they went to Morley in Van Thu Le's car and it was still early so they went to a café for breakfast and coffee.[98] In cross‑examination the accused said that, 'Van Thu Le took me to the ticket place to book the ticket but it was early so we had some breakfast'. It was put to him 'you actually went somewhere to try and buy a ticket from somewhere, is that right?', to which the accused replied, 'Yeah, at the time I did not know where to get the air ticket so I asked Van Thu Le to drive me to that place.'[99] In cross-examination the accused said that they did not go to the travel agent ticket place before breakfast.[100]
[97] ts 84.
[98] ts 84.
[99] ts 111.
[100] ts 132.

The accused said that he did not book a return ticket before leaving Melbourne because he did not know how many days he would stay, saying, 'maybe one day or two days or three days'.[101] When it was put to him 'Do you seriously tell us that you came to Perth for a two or three day holiday, without any firm plan of how you were going to get back', the accused said 'Yeah, I had been planning to try to spend about one or two days here and then I would go back'.[102] When asked why he did not book a ticket before he left Melbourne, the accused said, 'At the time I did not know exactly how long I would stay here, maybe one day or two days or three days, so that's why I did not book - I have not booked ticket back then prior to leaving'. When asked why he did not purchase a ticket online he said, 'I know online but I did not know very well, you know, and this morning Van Thu Le told me that the air ticket could be cheaper at that place so I asked him to take me there'.[103]
[101] ts 110.
[102] ts 112.
[103] ts 111.
The accused conceded that he had internet access on his phone,[104] and that he had a bankcard with him.[105]
[104] ts 93.
[105] ts 112.
The accused said that, after they finished breakfast, Van Thu Le asked the accused to come and help him carry two mattresses.[106] When asked whether they had been to the air ticket place at that time, the accused said 'When we was travelling to the air ticket place Thu asked me to come and help him to carry those mattresses'.[107] The accused said 'Because at that time I didn't know anything so I just - he asked me and so I just help him'.[108] They went straight to the house.[109] He could not recall how long it took to get there.[110] In cross‑examination, the accused said that Van Thu Le asked him to help him move the mattresses while they were still having breakfast.[111]
[106] ts 84.
[107] ts 84.
[108] ts 84.
[109] ts 85.
[110] ts 85.
[111] ts 121.
The accused said that Van Thu Le did not tell him where they were going, saying 'At that time I did not know. I did not think very, very much about that. I just simply thought that I would help my friend and that was all, give him a hand'.[112] The accused said that the first time he knew he was going to a house was when Van Thu Le's car was driving up the driveway. He said that he asked Van Thu Le whose house it was and Van Thu Le said 'he had just rented recently rented house'.[113] The accused said he knew absolutely nothing about why Van Thu Le had rented the house.[114] He said he did not ask Van Thu Le why he rented the house or why Van Thu Le needed his help to move the mattresses.[115]
[112] ts 121.
[113] ts 122.
[114] ts 122.
[115] ts 123.
The accused said that he sat in the car and Van Thu Le went to the front door and unlocked it and called him in.[116] The accused went in and Van Thu Le was in the kitchen and gave the accused a pair of gloves which he put on. [117] Van Thu Le did not say anything when he gave the accused the gloves.[118]
[116] ts 86.
[117] ts 86.
[118] ts 86.
The accused said in cross-examination that he did not pay attention to what was in the kitchen when he was there, he was only there a very short time and did not have time to look.[119] He said that he just helped Van Thu Le move the mattress and did not pay attention to the surrounding house.[120]
[119] ts 126.
[120] ts 126.
The accused said he saw Van Thu Le go to the last room and start to push a mattress out of the room by himself.[121] The accused went up to help him move the mattress and helped him move it to the small study area.[122] He did not go into the room.[123] The accused identified the mattress he helped Van Thu Le move as the mattress shown in photograph numbered 18 of exhibit 5.[124] The accused said that he did not see anything in the wardrobes of the house until after the police arrived and they took him to a bedroom to strip search him.[125]
[121] ts 86.
[122] ts 87, ts 127, ts 128.
[123] ts 128.
[124] ts 86.
[125] ts 128.
The accused said that, immediately after moving the mattress the accused went to the toilet to pass urine. When he was in the toilet he heard a loud bang, and Van Thu Le rushed into the toilet and was pushing him, looking frightened.[126] The accused said that he was still urinating when Van Thu Le came in.[127] The accused said he looked out the toilet door and saw a policeman point a gun at him and asked him to raise his hands. [128] He denied, in cross-examination, that the door was closed, saying that when Van Thu Le pushed the toilet door there was still a gap, and it was not closed.[129] The accused said he still had his gloves on at that time. [130] He said he did not take his gloves off in the toilet. [131] The accused denied putting either the knife or the screwdriver on the window ledge in the toilet.[132] He said that he did not use any tools.[133] The accused said that he was not holding either the knife or the screwdriver when the police came in.[134] He said that he did not have time to pull up his zip after urinating.[135]
[126] ts 86.
[127] ts 88.
[128] ts 88.
[129] ts 131.
[130] ts 88.
[131] ts 88.
[132] ts 89.
[133] ts 90.
[134] ts 129.
[135] ts 129.
The accused said that he had been in house only 10 minutes at most.[136] He said that he had no knowledge there was cannabis growing in the locked master bedroom. [137] When it was put to the accused that he was doing work in the house for the purpose of assisting in the process of cultivation taking place in the house, the accused said 'I tell you, I did not know about that'.[138]
[136] ts 88.
[137] ts 89, ts 90.
[138] ts 132.
The accused said that he had bought the tape evidenced by the receipt found in his wallet to fix a broken window in the room he rented with his partner, essentially to protect the baby from the cold.[139] The accused said that he had rented a room which was a converted garage in a house, and that he had not noticed the broken window because it was hidden behind a curtain.[140] He said that he had fixed it himself, rather than complain to the person renting him the room, because it was cold and he wanted to fix it quickly.[141] The accused said that he used clear tape first but that did not stick well, and he wanted a tougher tape.[142] He said that he bought the light referred to in the receipt, which had three small spotlights on it, because there was one bright light in the ceiling and he wanted different light because of the baby.[143] The accused said that he did not bring either of the two rolls of tape referred to in the receipt to Western Australia with him.[144] He said that he fixed the window and the light before he left Melbourne.[145] The accused said he kept the receipt in case he only used one roll of tape, so he could get a refund on the other.[146]
[139] ts 90.
[140] ts 96.
[141] ts 96.
[142] ts 96.
[143] ts 91.
[144] ts 91.
[145] ts 92.
[146] ts 119.
In cross-examination the accused could not recall the address of where he was living in Melbourne, other than that it was near the market in St Albans, saying that they had only lived there for two weeks.[147] The accused said that his partner had moved out to live with her cousin and the child had been sent to Vietnam.[148]
[147] ts 94.
[148] ts 94.
The accused initially admitted and then denied that he was working full‑time while on his student visa, saying the visa allowed him to work up to 20 hours a week, and he had to study.[149] He admitted to sometimes working up to 21 hours, but said his boss, who paid him an hourly rate of $150 per day in cash, prevented him from working more than 20 hours, because he was a student.[150] He said that he did not submit tax returns having forgotten his tax file number.[151]
[149] ts 101.
[150] ts 103, ts 104, ts 105.
[151] ts 105.
The accused denied that he knew the house was being used to cultivate cannabis or that he was there to assist Van Thu Le in the process of cultivating cannabis.[152]
[152] ts 127.

Assessment of the evidence and findings of fact

The State's evidence

The evidence of Detective Senior Constable Psaila-Borrie and Constable Tran referred to in [54] to [65] above was not challenged in cross-examination and is uncontroversial. I accept their evidence and make findings of fact in accordance with those paragraphs.
The evidence of First Class Constable Hay in [66], [67], [70], and [71] was also not challenged in cross-examination and is uncontroversial. I accept that evidence and make findings of fact in accordance with those paragraphs.
Where First Class Constable Hay was cross-examined it was not put to him that he was not being truthful and the accused's counsel does not submit that First Class Constable Hay was not a truthful witness. The accused's counsel, however, submits that First Class Constable Hay's evidence to the effect that when he first saw the accused and Van Thu Le in the toilet, each of them was holding one of two tools found in the toilet, either the knife or the screwdriver, and that they then put those tools down and started to take their gloves off, was unreliable.
The State conceded that the evidence about the gloves was unclear and that an inference that was open was that the single rubber glove found in the toilet came from Van Thu Le, although it was not the only possible inference.[153] The State submitted that, ultimately, this was not relevant because there was no dispute that the accused had gloves on.[154]
[153] ts 165.
[154] ts 166.
The State also conceded that it was open to me to come to the view that there were inadequacies in First Class Constable Hay's evidence that the accused was holding one tool.[155]
[155] ts 167.
There is no dispute that the accused was wearing gloves in the house, although the accused denied he had removed those gloves in the toilet and First Class Constable Hay conceded the possibility that the accused may have removed them outside the toilet.
First Class Constable Hay candidly admitted that there was no reference in his statement of 3 October 2018 to the men holding tools, that he had only recently remembered this evidence shortly before the trial, and that he was prompted to remember it when he had looked at the photographs of the items in the toilet. Whilst this detail has taken greater importance in the case against the accused, it would not necessarily have been considered a detail of much importance at the time that First Class Constable Hay prepared his witness statement. Accordingly, I make nothing of its omission at that time. First Class Constable Hay was also candid about a number of other aspects of the search that he could not recall, and in his evidence that he could not remember which man held what tool.[156] I have no doubt that he was truthful in his evidence.
[156] ts 32, ts 34 and ts 35.
I accept First Class Constable Hay's evidence to the extent that it is to the effect that someone in the toilet put the tools down on the window sill after First Class Constable Hay first saw the men. However, despite the firmness of First Class Constable Hay's recollection that each man held one tool, I consider that there is a reasonable possibility that this evidence is unreliable and inaccurate, and that one man held both tools, for the following reasons:
(a)First Class Constable Hay first recalled this detail some 21 months after the search in circumstances where he routinely participated in such searches before, and after, 11 July 2018.
(b)If First Class Constable Hay's evidence is correct, both men put down tools and at least one removed gloves in what I infer, given the size of the toilet, must have been a very short space of time between the time First Class Constable Hay first seeing them and moving to stop them.
(c)The evidence concerning the seizure of gloves during the search was unsatisfactory, as the State conceded. It seems likely, given the description of the gloves in the log[157] and the photographs of the gloves in the toilet[158] that Van Thu Le left the toilet with a rubber glove over a disposable glove on his left hand and a disposable glove on his right, and only removed his right handed rubber glove in the toilet, with the accused removing two disposable gloves in the same short time period before they were stopped.
(d)Those photographs also show the rubber glove adjacent to the knife and the screwdriver. Those items, in turn, are lying side by side, and touching each other, suggesting that they may have been put down together, by the same person. Given the proximity of the rubber glove to the tools it is also possible that person was Van Thu Le.
(e)The State submits that I may infer that both tools were being used to score and start to cut a hole in the ceiling in accordance with the markings found above a stepladder in bedroom 3.[159] If, in fact, the knife and screwdriver were being used for that purpose, it would not seem to be possible for more than one person to be standing on the stepladder to undertake work on the ceiling. That leaves open the possibility that one man had both tools whilst cutting the ceiling plasterboard.
[157] Exhibit 1, page 1.
[158] Exhibit 5, photographs numbered 46 and 47.
[159] Exhibit 5, photographs numbered 37 and 38.
Accordingly, I cannot make a finding that the accused was holding either tool when he was first seen by First Class Constable Hay in the toilet.
First Class Constable Hay conceded under cross-examination that whilst he did not draw the firearm he had on him, it was possible that there was another officer close to the toilet who had drawn a firearm.[160] This supports the accused's evidence that he saw police holding a gun, but nothing otherwise turns on this.
[160] ts 34.
As to the evidence that the toilet door was shut when First Class Constable Hay came to it, I accept that it appeared shut to him. The effect of the accused's evidence was that the door was slightly ajar. It seems to me in the circumstances that it is likely that the person last entering the toilet would attempt to close the door, whether it be the accused and Van Thu Le together, or only Van Thu Le, as the accused said in evidence. Given the circumstances they may not have completely succeeded.

The accused's evidence

In assessing the accused's evidence I have taken into account that he was giving his evidence in Vietnamese, through an interpreter, which means that my ability to make any assessment of the accused's demeanour is limited at best, and there is also the prospect of some miscommunication.
However, even taking into account those inherent difficulties, much of the accused's evidence was inconsistent, illogical, and unconvincing.
In particular, I do not accept the accused's evidence that he came to Western Australia to visit Van Thu Le for a two or three day holiday, in light of his evidence that he had a newborn baby at home, a partner who was not earning an income as a result, he had no income himself because his employer was on holiday, he did not know Van Thu Le well and they were not friends and had limited communication both at the meeting in 2016 and afterwards, the very short duration of the planned stay, and the purchase of only a one way ticket, at short notice.
I also consider that the accused was evasive about the hours that he worked while on a student visa, the payment in cash that he received, whether any tax was paid on that income. In the context of the terms of his visa, and his continued residence in Australia, he may well have been reluctant to admit any breach of his visa obligations or taxation laws.
However, I do not consider that these findings require me to disbelieve the accused's evidence in its entirety.
Some of the accused's evidence was uncontroversial, or contrary to his own interests, and I accept it. In particular I make findings of fact based on that evidence:
(a)The accused flew to Western Australia on a one way ticket, arriving in Perth at approximately 11 pm on 8 July 2018.
(b)The accused flew to Western Australia with the intention of meeting Van Thu Le.
(c)When the accused was in Western Australia he has a mobile phone with access to the internet and a bankcard.
(d)Van Thu Le took the accused to the house at 5 Dumant Lane at some time on 11 July 2018, before police searched that house at 10.30 am on that day.
(e)The accused was in the toilet of the house at 5 Dumant Lane, Canning Vale, with Van Thu Le, and wearing gloves, when he was arrested.
(f)The accused had not purchased a return ticket at the time he was arrested.
In addition, there was a level of detail about the accused evidence of going to breakfast before going to the house, and the driving around Perth on the first two days after his arrival, and his staying at Van Thu Le's home with his pregnant partner, that I consider may well be true; that is that he was only at the house for a short while before the police arrived, even if not for as short a time as 10 minutes.
However, the accused's evidence about whether he went to a place to buy a ticket before breakfast was inconsistent, as was his evidence about when Van Thu Le asked him if he could help move a mattress. There was no reason to go somewhere to buy a ticket given his access to the internet on his phone, and his ability to pay using credit. I consider that it is possible that the accused did help Van Thu Le move a mattress from a bedroom when he was inside the house, given the photographic evidence of the mattress in the house, propped against a wall in a study area. However, I do not accept his evidence that his understanding of the reason for the visit to the house was limited to helping Van Thu Le move mattresses.
The State relies on the fact that the accused does not say that he was sheltering in the toilet merely because he was frightened by the noise of the police arriving, but rather that he was already there. The State says that it would be expected that if the accused was already in the toilet he would have removed at least one glove.[161] However, I consider that it is possible that the accused was in the toilet at the time that the police entered the house. His description of the fact that he did not have time to pull up his zip, of Van Thu Le's frightened face, of his rushing into the toilet behind the accused, and then seeing the police, was detailed and consistent. The fact that he did not say he had removed a glove does not affect this view.
[161] ts 168, ts 169.
The effect of the accused's evidence was that he did not know that there was cannabis growing in the house, or what Van Thu Le's purpose was in renting the house. In light of the inconsistencies and evasions I have referred to in the accused's evidence about his reasons for visiting Van Thu Le in Perth, how long he was going to stay, and why he bought a one way ticket, I have difficulty accepting this evidence. However for the reasons I set out below, I consider that the evidence that he did not know that there was cannabis growing in the house might be true. However, I do not accept that he did not know anything about what Van Thu Le's purpose in renting the house was.
Where I have not accepted the accused's evidence, I set that evidence to one side. Those findings can play no part in my assessment of whether the State has proved its case against the accused beyond reasonable doubt.

Conclusions on proof of the elements of the offence

Identity

As to the first element of identity, there is no doubt that the accused was the person found by police in the house on 11 July 2018. The accused accepted this in his evidence[162] and he appears in the electronic record of the search as one of the two men in handcuffs, and gives his name to police.
[162] ts 95.
I find the State has proved the identity of the accused as the alleged offender beyond reasonable doubt.

Prohibited plants

I find that the State has proved beyond reasonable doubt that there were 28 prohibited plants, namely cannabis, in the master bedroom of the house on 11 July 2018, on the basis of the unchallenged evidence which I accept of the electronic recording of the search (exhibit 2), the photographs numbered 19 to 23 (exhibit 5), and the Certificates of Approved Botanist (exhibit 9).

Accused cultivated the prohibited plants

Cultivation by the accused as principal offender

The evidence does not support a finding beyond reasonable doubt that the accused was cultivating the cannabis found in the house as a principal offender, even if I were to find the other required matters had been proved beyond reasonable doubt. In particular:
(a)the evidence that Van Thu Le leased the house for 18 months before the offence and had taken out another lease for the 12 months from 23 July 2018;
(b)there is no evidence that the accused was at the house at any time before the morning he was arrested;
(c)the evidence that accused had been in Western Australia for less than 60 hours before his arrest in the house, at which time I infer, from the evidence of photographs, that the hydroponic system supporting the cannabis plants in the master bedroom, and the plants, were already well established; and
(d)the evidence that the room in which the cannabis crop was growing was locked when the police arrived, and there is no evidence the accused had access to, or entered, that room.
In any event, for the reasons set out below, I find that the State has not proved beyond reasonable doubt that the accused had knowledge of the prohibited plants in the master bedroom, that the evidence does not support a finding that the accused did any act that the State relies on, and that, in any event, even if the State had proved the accused did the act relied on, he did not, by that act, aid Van Thu Le to cultivate the cannabis in the master bedroom.

Cultivation as aider

As I have said, in order to find the accused guilty of the offence as an aider of the principal offender the State must prove beyond reasonable doubt:
(a)a principal offender committed the offence;
(b)the accused knew the essential facts constituting the offence;
(c)the accused did something, or omitted to do something with the intention of aiding the principal offender to commit the offence; and
(d)what the accused did, or omitted to do, actually aided the principal offender to commit the offence.

Principal offender committed the offence

The evidence supports a finding beyond reasonable doubt, which I make, that Van Thu Le committed the offence of cultivation of a prohibited plant with intent to sell or supply it to another, in particular the uncontroverted evidence that:
(a)28 cannabis plants were found growing in the house on 11 July 2018;
(b)Van Thu Le, had leased the house;
(c)Van Thu Le's fingerprint was found on an item inside the ensuite bathroom to the master bedroom; and
(d)Van Thu Le pleaded guilty to the offence.

Knowledge of the essential facts of the offence

The State submits that the accused's knowledge of the existence of cannabis plants in the master bedroom, and therefore that cannabis plants were being cultivated in house, is the only reasonable inference on the facts, even if the accused had not seen those plants himself. The facts on which the State says that inference may be drawn are:[163]
(a)the general appearance of the house, including the hardware and tools associated with cannabis grow houses, particularly in the kitchen area;
(b)the equipment in the wardrobes of bedroom 2 and 3;
(c)the accused wearing gloves and hiding in the toilet with Van Thu Le, and the presence of tools in the toilet, from which it may be inferred that the accused was participating with Van Thu Le in the work he was undertaking in the house immediately before the police arrived;
(d)it may be inferred from the matters referred to in (a) and (b) above that the only work being done in the house was for the furtherance of the process of cannabis cultivation already underway in the house;
(e)the receipt in the accused's wallet of items of a similar type to those used in the assembly of the equipment in the house, including tape; and
(f)it may be inferred from the fact that Van Thu Le was clearly engaged in all parts of the activities that were taking place in the house, and from the fact that the accused was assisting Van Thu Le in work in the house, that Van Thu Le would not have invited the accused to the house unless the accused had actual knowledge of what was going on in the house.
[163] ts 150, ts 151, ts 152, ts 158, ts 166, ts 167.
I do not accept that the only reasonable inference on the facts is that the accused knew that there were cannabis plants growing in the master bedroom for the following reasons:
(a)There is no evidence that anyone noticed a smell of cannabis in the house. It appears possible that the odour of the cannabis crop outside the master bedroom was contained in that room by the air filtration system being used.
(b)As the State acknowledged, there was no evidence that the accused had been to the house on any occasion before the morning of 11 July 2018 when the cannabis crop was already well established. [164] There was, on the State's case, no evidence anyone was living at the house.[165] There is no evidence that permits a finding of how long the accused was at the house before the police arrived at 10.30am. I have accepted the possibility that the accused did, as he said, go to breakfast with Van Thu Le before going to the house. Accordingly, the accused could not have been in the house for very long, even if that period of time was somewhat longer than the 10 minutes the accused estimated in his evidence.
(c)The master bedroom was locked when the police arrived. One reasonable inference from this, and the fact that Van Thu Le was the lessee of the house, is that Van Thu Le kept the door locked to conceal the plants from discovery by anyone that came to the house, including those that Van Thu Le brought to the house to assist with work to extend the operations within the house.
(d)It cannot be inferred that the accused had seen what was inside the wardrobes in the second and third bedrooms, given the limited time that he had been in the house before the police arrived and the lack of evidence that wardrobe doors when the police arrived.
(e)The possible use of the items in kitchen and the hallway, which the accused admitted he had seen, was not limited to the hydroponic cultivation of cannabis.
[164] ts 18, ts 145, ts 146.
[165] ts 18.
As to the receipt, the State accepts that the strip spot light bought at the same time as the tape was not for use in the cultivation of cannabis.[166] There is no evidence of the tape referred to in the receipt being found in the house as might have been expected if the accused had bought the tape in Melbourne to use in this house in Perth. There was, as the State has pointed out, evidence of a number of items in the house used for the assembly of hydroponic equipment, including tape. It is difficult to conceive of the need for the accused to bring two rolls of tape with him from Melbourne. I can draw no conclusion from the mere presence of a receipt in a wallet, as it is not uncommon for people to put receipts in their wallets, or to keep receipts in order that they might return an unwanted item, as the accused said.
[166] ts 169.
Even if the accused did recognise that the house was being fitted out for the hydroponic cultivation of cannabis, or had been told that beforehand, and came expecting to aid setting that equipment up, it does not follow from that that he must have known that cannabis was already growing in the master bedroom, in circumstances where, as I have said, the room was locked, and furnished with an air filtration system, and the accused was not at the house for very long before the police arrived.
Accordingly, I am not satisfied beyond reasonable doubt that the accused knew of the existence of cannabis plants in the house. There is a reasonable inference open on the evidence that the accused did not know about the cannabis plants in the master bedroom, and accordingly, I must draw that inference.

The accused did some act, or omission, with the intention of aiding the principal offender in the commission of the offence

The State does not allege that the accused did anything in the nature of sowing, growing or scattering the seed that produced the cannabis plants in the master bedroom, or to plant, nurture or tend the plants, which had not yet been harvested.
The act the State alleges the accused did to cultivate the cannabis, either as a principal offender, or as an aider to the principal offender, was that, with knowledge of the cannabis plants in the master bedroom, the accused undertook work in the house for the purpose of fitting out other areas of the house for hydroponic cultivation of cannabis, to expand the cannabis growing operation within the house.
The State submits that I may infer that the accused was using the knife or the screwdriver to score and start to cut a hole consistent with the marks found in the ceiling in bedroom 3 or that he was aiding Van Thu Le to do so. The State submits that I may further infer that the accused and Van Thu Le were cutting the hole in the ceiling in order to equip that room for the cultivation of cannabis, expanding the cultivation operation already going on in the house.
Alternatively, the State submits that, if I am not satisfied that the accused was holding either the knife or the screwdriver, I may still infer that the accused was assisting Van Thu Le in undertaking some, unidentified, work to convert further rooms in the house for cannabis cultivation. [167]
[167] ts 168.
The State submitted, in effect, that the inference that the accused was undertaking work in the house for the purposes of cultivating cannabis in other areas of the house is the only reasonable inference to be drawn from the evidence, in particular the evidence that:
(a)The house was clearly being used for the cultivation of cannabis.
(b)There was further work being done in the house in furtherance of that purpose, to be inferred from the items found in the kitchen area,[168] the ladders and tools in the vacant rooms and the equipment in the wardrobes, [169] the marks on the bedroom ceiling, [170] which marks were consistent with the tools taken into the toilet, the white marks on the knife blade being consistent with it being used to cut plasterboard, and the screwdriver blade bearing marks consistent with it being used to score or gouge plasterboard.[171]
(c)The accused was present in the house, in circumstances where it is inconceivable that Van Thu Le would have brought the accused to the house unless he was involved in the activities going on in the house.
(d)The accused was wearing gloves when he was discovered in the toilet by police with Van Thu Le.
[168] Exhibit 5, photographs numbered 6 to 12.
[169] Exhibit 5, photographs numbered 32 and 36.
[170] Exhibit 5, photographs numbered 37 and 38.
[171] ts 163, ts 164.
I infer from the items in the kitchen, and the walk in wardrobes, in the context of what was already going on in the house, that those items had been obtained for the purpose of establishing further hydroponic systems in the other areas of the house. However, given the short time that the accused had been in Western Australia, that there is no evidence that the accused had been to the house before that morning, and the evidence that Van Thu Le had cultivated the cannabis in the master bedroom, I infer that it was not the accused who had brought the items to the house.
The only evidence of work that was going on before the police arrived, is the work done to start to cut a square hole in the ceiling of bedroom 3.[172]
[172] Exhibit 5, photographs 37 and 38.
I accept that the photograph of the knife shows that it has white residue on it which is consistent with the colour of the residue on the floor beneath the marks on the ceiling in bedroom 3. Coupled with the fact that I have found that at least one of the men brought those tools into the toilet and was holding them when the police arrived, I infer that the knife was being used to cut the ceiling and that work was being done on the morning of 11 July 2018, immediately before the police arrived. However, I have also found it is likely this work was being done by only one man, and that this man may have been Van Thu Le.
The wardrobe in bedroom 3 appears to contain items that were being stored, such as liquid fertilizer,[173] and there is an electric screwdriver lying on the carpet with no indication what, if anything, it was being used for.[174] There is evidence of a folded stepladder and an open box of what appear to be screwdrivers, in bedroom 2,[175] and there are some items being stored in the wardrobe of that room, and some electrical wires that appear to be coming from the ceiling in the wardrobe and plugged into transformers on the shelf in the wardrobe. However, there is no evidence of any particular work being done in that room.[176] Neither is there any evidence of work being done in the kitchen, although items were being kept there for use elsewhere in the house.
[173] Exhibit 5, photograph 36.
[174] Exhibit 5, photographs 34 and 35.
[175] Exhibit 5, photograph 31.
[176] Exhibit 5, photograph 32.
I have said that I consider it is possible that the accused did help Van Thu Le move a mattress while he was in the house, as he said. However, there is no evidence upon which I can make a finding about what work the accused actually did in the house on that morning, other than move the mattress. That is the State has failed to prove beyond reasonable doubt that the accused did any act alleged to have been an act whereby the accused is alleged to have cultivated the prohibited plants, or to have aided Van Thu Le in that cultivation.

Did any of the alleged work amount to cultivation of the cannabis?

However, even if I were able to make a finding that the accused did any act relied on by the State, in my view, it is not open to me to find that those alleged acts amounted to cultivation of the cannabis in the house.
The State submits that the work being done, whether starting to cut a hole in the ceiling of bedroom 3, or some other, unidentified, work, could factually fall within the meaning of 'to cultivate' which is an inclusive definition, and not an exclusive one. However, as I have said above, if what the accused is alleged to have been doing does not fall within the meaning of the words included in the definition, it must fall within the ordinary meaning of the verb, which does not go beyond the scope of the words in the definition.
In my view, the words 'to cultivate' do not encompass any of the alleged work, there is no evidence that work contributed in any way to the establishment, survival or health of the prohibited plants found at the house, at any point in the life cycle of those plants, from inception to harvest and storage.
Accordingly, I find that whatever work the accused was doing in the house he was not cultivating the prohibited plants found at the house, or doing any act which actually aided in the cultivation of those plants.

Intent to sell or supply

As I have found beyond reasonable doubt that 28 cannabis plants were found in the master bedroom of the house, if I had found that the accused was cultivating, or aiding in the cultivation of, the cannabis plants found in the house, that evidence is sufficient proof of an intention to sell or supply the cannabis to another.
The accused says that he was not cultivating the cannabis in the house, and that he did not know of its existence. Accordingly, there is no evidence to rebut the presumption of intent.
In any event, on the evidence of the number of cannabis plants, the location of the plants in a room with lights and reticulation, in an unfurnished house, containing other equipment that might be used to equip other areas of the house, I find that it is beyond reasonable doubt that the intention of whoever was cultivating the cannabis was to sell or supply it to another or others.

Attempt to cultivate

The attempt to cultivate prohibited plants in house cannot include an attempt to cultivate the plants found in the house, as the offence of cultivation of those plants with intent to sell or supply was complete. The attempt alleged by the State was to cultivate prohibited plants in the future, by 'an attempt to develop other areas of the house for that purpose'.[177]
[177] ts 149.
The State submitted that it was not necessary for the accused to know that there were prohibited plants being cultivated in the master bedroom, in order to prove the accused has committed the offence of attempting to cultivate a prohibited plant, with intent to sell or supply it to another. The State submits the existence of the plants in the house, whether the accused knew of them or not, evidences that the alleged work was more than merely preparatory to commit the offence of cultivation of cannabis. I do not accept this submission.
If the accused is to be convicted of attempting to cultivate cannabis in the house as a principal offender, the presence of cannabis in the house, and of a room fitted for the hydroponic cultivation of cannabis, of which the accused was unaware cannot be relevant to his intention to commit that offence, and whether the work the accused was doing was more than merely preparatory to the growing of cannabis elsewhere in the house.
I have found that the State has not proved beyond reasonable doubt that the accused did any act towards fitting out any part of the house for the hydroponic cultivation of cannabis. However, even if I were satisfied that the accused did start to cut a hole in a ceiling of bedroom 3, or used a screwdriver, or performed any other act, as a first step towards equipping other rooms in the house for use in the hydroponic cultivation of cannabis, in my view that must be described as no more than merely preparatory to the commission of the offence taking into account in particular that:
(a)The nature of the completed offence is the cultivation of cannabis inside the house.
(b)That cultivation required equipment to be set up in the house, including, at least something to grow cannabis with, such as pots and growing medium for in which to germinate seed or strike cuttings. There was a tent that might be used for seedlings or cuttings, however, that was empty. There was no evidence of cannabis seed in the house, or of any growing medium (other than in the pots in the master bedroom). Although cuttings may have been taken from the plants in the house, I have found that the State has not proved the accused knew about those plants. In order to establish a hydroponic arrangement such as that found in the master bedroom, more elaborate equipment such as the heat lamps, watering system, ducting and carbon filters are required to be set up and connected. Whilst this equipment was in the house, I have found that the accused could not have brought it to the house, and there is no evidence he knew of the presence of any of it in the house, other than the items in the kitchen, which have other uses.
(c)At the most the step the accused had achieved towards the cultivation of cannabis was starting to cut a hole in the ceiling, which is an act I find too far remote from cultivating cannabis to be more than merely preparatory.

Conclusion

For the reasons set out above, I find the accused not guilty of the offence of cultivation of a prohibited plant with intent to sell or supply it to another, either as a principal offender, or by aiding Van Thu Le, and I also find the accused not guilty of attempting to commit that offence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Vernon
4 MAY 2020