THE HAI PHAN
[2025] NZCA 166
•13 May 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA544/2024 |
| BETWEEN | THE HAI PHAN |
| AND | THE KING |
| CA545/2024 | ||
| BETWEEN | KHANH HOI PHAN | |
| AND | THE KING | |
| Hearing: | 2 April 2025 |
Court: | Campbell, Dunningham and Harvey JJ |
Counsel: | C S Fredric for Appellants |
Judgment: | 13 May 2025 at 11.00 am |
JUDGMENT OF THE COURT
The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dunningham J)
Introduction
The appellants, Mr The Hai Phan and Mr Khanh Hoi Phan, are brothers. Following a jury trial, they were both convicted of cultivating and possessing cannabis for supply.
During the trial, the appellants sought to adduce evidence relating to Tat Thang (Andy) Nguyen, who owned the property in Sunnynook, Auckland, at which the Phan brothers were accused of operating a cannabis growing operation (the Property). The evidence addressed the fact that police found commercial cannabis growing operations in four other properties owned by Mr Nguyen around the same time as the operation at the Property was discovered, including in a neighbouring property.
Mr Fredric, for the appellants, asserts that key aspects of this evidence were ruled inadmissible by the Judge. That decision was in error and meant the appellants were unable to properly test the Crown’s theory of the case and to advance an available alternative narrative to that promoted by the Crown. As a result, a miscarriage of justice has occurred and the convictions should not stand.[1]
The alleged offending
[1]Criminal Procedure Act 2011, s 232.
The police executed a warrantless search at the Property on 9 September 2022. Inside they found a cannabis growing operation. It included 115 cannabis plants at various stages of growth, along with a hydroponic irrigation system, an extensive lighting system and the diversion of electricity around the meter to avoid suspicion caused by excess power usage. Police also located 4,815 grams of dried cannabis head stored in plastic bags in the ceiling space of the Property.
Both appellants’ fingerprints were located on the cannabis growing equipment and electronic scales located at the Property. A subsequent search of Mr Khanh Phan’s address located further equipment typically used for cannabis growing, including buckets modified to connect with irrigation pipes, air ducting and piping, cables, light bulbs and ballasts.
Mr The Phan was the sole occupant of the Property, having signed a tenancy agreement and paid a bond in August 2022. But there was evidence that he had had access to the Property earlier than that. A number of his personal effects were located at the Property and a neighbour also said he saw Mr The Phan’s vehicle at the address every night.
Mr Khanh Phan purchased a range of items at Bunnings which were consistent with the items found in the grow room. An orange Mitsubishi Triton vehicle registered to Mr Khanh Phan was filmed on CCTV being loaded at Bunnings. A neighbour said he saw a vehicle matching that description at the Property every two to three days for months before the search was conducted.
At trial, the appellants denied growing the cannabis and said they were not aware of its presence at the Property. Their defence was that the cannabis and the equipment belonged to someone else; they suggested the landlord, Mr Nguyen, and the property manager, Mr Dinh, ran the operation.
The jury returned guilty verdicts against both appellants on the charges of cultivating cannabis and possessing cannabis for supply. Both appellants were subsequently sentenced to home detention.[2]
The basis of the appeal
[2]R v Phan [2024] NZDC 17774 at [41] and [47].
During the trial, the appellants sought to adduce evidence contained in a summary of facts prepared by police for the purposes of bringing charges against Mr Nguyen. Mr Nguyen was the owner of the Property and its neighbouring property, both of which were searched on 9 September 2022, and the owner of two other neighbouring properties in Glen Eden and a third property, all of which were searched on 1 December 2022. Two of the properties searched on 1 December were found to contain an active grow house, and the third property had been set up as a grow house but had no cannabis plants in it at the time of the search.
The appellants sought to adduce this evidence to demonstrate that other parties with a link to the Property, namely Mr Nguyen and Mr Dinh, were likely involved with the cultivation of cannabis, in order to argue that the appellants were not involved with the cannabis growing operation at the Property. The appellants say that it was an improbable coincidence that five properties owned by Mr Nguyen and managed by Mr Dinh would happen to have simultaneous cannabis growing operations in them with no knowledge or involvement on the part of the property owner or property manager.
Mr Fredric also points out that while the appellants did not need to prove their innocence, in practical terms it was necessary for them to point to the existence of credible alternate suspects for the cultivation operation at the Property.
The admissibility ruling
On the fourth day of trial, counsel sought to introduce the summary of facts for charges to be brought against Mr Nguyen by asking the officer in charge of the investigation, Detective Aaron Morris, questions about it. The Crown objected, and legal discussion with the Judge followed. The outcome of those discussions was that Mr Fredric was only permitted to ask limited questions of the officer in charge, essentially ruling parts of the evidence inadmissible.
Specifically, counsel was not permitted to adduce evidence that another two of the five grow houses were also next door to each other. Counsel was also not permitted to ask questions regarding the relevant dates of purchase of the properties, noting that Mr Nguyen purchased all five properties in 2021. Nor was he permitted to ask questions regarding the relevant dates of the search warrants, being 9 September 2022 and 1 December 2022.
The Judge was concerned that much of the material was not relevant and would call for speculation by the jury. The Judge confirmed that Mr Fredric could ask whether there were cannabis plants found in the other properties owned by Mr Nguyen and whether there was a similar “set‑up”, but he did not permit Mr Fredric to ask questions about the addresses of the houses.
The Judge was hesitant to allow any further questions to be asked, noting that the police had withdrawn the charges against Mr Nguyen and to ask the jury to go behind the police’s discretion would be inviting them to speculate. The Judge said “[t]his is not a trial about whether there’s sufficient evidence about whether Andy Nguyen is involved or not. It’s whether there’s sufficient evidence about these two defendants.”
The Crown agreed with the Judge that the possibility that Mr Nguyen was involved in permitting the premises to be used for cultivation was a “red herring” because the question for the jury was whether there was sufficient evidence to prove that the Phans were involved.
The further evidence given
When Detective Morris was recalled, the Crown briefly led the fact that Mr Nguyen, the landlord of the Property, had faced charges for permitting premises to be used for cannabis cultivation, but that there was insufficient evidence to continue to a trial, so the charges were withdrawn.
When cross‑examined by Mr Fredric, Detective Morris confirmed he was the officer who had charged Mr Nguyen with five charges of permitting premises to be used for cannabis offences and, further, that he considered there had been sufficient evidence to charge Mr Nguyen. He also confirmed that at each of the five properties there was a fairly similar set up, including having the plants planted in buckets. He also confirmed that the searches conducted at the other three addresses were conducted on 1 December 2022.
Grounds of appeal
Mr Fredric argues that the inability to elicit the fact that two more of the five grow houses were also next door to each other was prejudicial to the defence case. He says the fact that Mr Nguyen was involved in cultivations at another set of neighbouring properties was a detail that made it more likely that Mr Nguyen was involved in the cultivations at the Property and its neighbouring property.
In relation to the inability to elicit the fact that Mr Nguyen purchased all five properties in 2021, Mr Fredric says the short time between purchasing the five houses and having them filled with cannabis growing equipment makes it much less credible that Mr Nguyen was simply the victim of bad luck when it came to choosing tenants. To have five separate houses filled with cannabis plants, or at least set up for cannabis growing, within a three‑month window and only a year following purchase, constitutes, in Mr Fredric’s submission, compelling evidence that Mr Nguyen must have had knowledge of, and involvement with, the cannabis cultivation.
Finally, although the officer in charge mentioned the date of the further search warrants as being 1 December 2022, Mr Frederic says his not being permitted to ask further questions regarding relevant dates meant the jury were less likely to have adequately appreciated the proximity of the dates of the search warrants.
Mr Fredric also argues that the unfairness in not allowing the defence to adduce this evidence was exacerbated by the Crown being allowed to adduce propensity evidence relating to Mr Khanh Phan’s previous conviction for cultivating cannabis. It meant that the Crown was permitted to argue that this fact made it more likely that he was involved in growing cannabis at the Property, whereas he was not permitted to properly explore the extent of coincidences involving Mr Nguyen.
The defence case that the cannabis growing operation at the Property was set up by others was supported by the fact that mature cannabis was found in the Property despite Mr The Phan only having a lease from 1 August 2022. Thus, the appellants’ case that this was someone else’s growing operation was not, in Mr Fredric’s submission, fanciful.
Mr Fredric says the evidence was admissible under ss 7 and 8 of the Evidence Act 2006. The test for relevance under s 7 is a low threshold.[3] Furthermore, the evidence could not be excluded under s 8 as it could not reasonably be argued that the small number of additional questions sought to be asked of the officer in charge regarding Mr Nguyen’s possible involvement in grow operations would have needlessly prolonged the proceeding.
[3]Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].
Mr Fredric submits that the exclusion of the evidence left the jury with an artificial and incomplete evidential picture which was an “unfair context” in which to make its factual findings. It also impinged on the appellants’ rights to a fair trial, by presenting their defence and properly examining the witnesses for the prosecution. Because the disallowed evidence was critical to the defence case at trial, the exclusion of the evidence resulted in a potential miscarriage of justice.
Discussion
The defence run by Mr Khanh Phan at trial (noting Mr The Phan was separately represented at trial) was that all the strands of evidence relied on by the Crown had alternative explanations, and that someone else was responsible for managing the cannabis grow at the Property under the supervision of Mr Nguyen.
In those circumstances, we accept that the information contained in the summary of facts for the charges faced by Mr Nguyen was relevant to the appellants’ defence. As Detective Morris was the officer in charge of both the current police investigation and the investigation which was commenced, but discontinued, against Mr Nguyen, he was well placed to answer questions about that investigation.
However, even if further questioning could have been permitted without unfairly prejudicing the trial, the critical question is whether by restricting the questioning, the trial was unfair and a miscarriage of justice resulted. We accept the respondent’s submissions that this was not the case.
First, we consider the questions which were permitted clearly raised the possibility of Mr Nguyen’s involvement in cannabis cultivation at this and the neighbouring address, along with the three other properties searched in December, noting that the set‑ups all appeared similar. The jury also heard that the Detective believed there was sufficient evidence to support the charges against Mr Nguyen which, as the respondent points out, was technically inadmissible opinion evidence but which was undoubtedly favourable to the appellants.
While Mr Frederic was not allowed to question on the fact that two other grow houses were located next door to each other, we do not consider this evidence added anything to the defence case. No matter where the rental properties were located, the key point was that all five of them were being used for cannabis grow operations at the relevant time. The likelihood of Mr Nguyen’s involvement in all these operations is not enhanced by the fact that two other properties were located side by side.
The timing of the discovery of the grow operations was also before the jury because the Detective acknowledged that the date of the other searches was 1 December 2022. Furthermore, Mr Fredric highlighted this twice in his closing submissions. For example, he said that Mr Nguyen “has had five properties, some in September and then even after that, some in December where cannabis or cannabis equipment has been found. It’s hard to see [any more] overwhelming evidence that [Mr Nguyen] was knee deep in all of this”. We therefore reject the submission that the jury would not have appreciated the proximity of the dates of the search warrants.
The next aspect of the appeal is that Mr Fredric was not able to point to the fact that Mr Nguyen purchased all five properties in 2021. However, again, we do not consider that adds anything material to the defence case. Whether Mr Nguyen purchased the properties in 2021 or over a number of years, the relevant fact is that all five had cannabis growing operations (or were set up for that purpose) at the material time in late 2022. The element of coincidence in this, and the likelihood that Mr Nguyen had some involvement in all the grow operations, was clearly before the jury. Indeed, Mr Fredric focused on this in closing, saying:
… the first person who springs to mind is somebody who must’ve been involved in some way is the owner of both [neighbouring properties], and that is [Mr Nguyen]. The man who had five separate properties all full of either cannabis plants or cannabis cultivation equipment.
…
If you have five properties full of cannabis plants and equipment, some found in September and some found in December, that’s not unlucky. That has happened to [Mr Nguyen] because he was heavily involved in all of this. He knew cannabis was being grown at his properties. He allowed it to happen and you might think he is involved in organising this.
The real difficulty for the defence case, as Mr Fredric acknowledged, was that regardless of Mr Nguyen’s involvement, that did not rule out the possibility that the Phan brothers were involved in growing cannabis at the Property.
Contrary to Mr Fredric’s submissions, we do not accept that the Crown case relied on the Phan brothers being the only persons involved. The involvement of others was immaterial to the case the Crown had to prove, which was that the Phan brothers were guilty of the charges.
Finally, we do not accept the submission that the exclusion was “doubly unfair” in circumstances where propensity evidence was adduced against Mr Khanh Phan. First, the propensity evidence in relation to Mr Khanh Phan was properly before the jury. It was one of the many strands of evidence the Crown relied on to prove Mr Khanh Phan’s involvement. Furthermore, sufficient questioning was allowed of the officer in charge for the appellants to also rely on coincidence reasoning to suggest Mr Nguyen’s involvement. Indeed, a repeated theme in Mr Fredric’s closing submissions was that Mr Nguyen would have to be “very unlucky to have five houses with cannabis growing in them” and where the grow operations all had similar features.
In summary, we are satisfied that there was ample evidence allowed to be adduced by the defence to suggest that the landlord may have been involved as part of a wider cannabis growing operation that he was overseeing. However, that did not address the multiple strands of evidence that the Crown was relying on, which included fingerprint evidence, evidence of occupation by Mr The Phan, the observation by a neighbour of each appellant’s motor vehicle regularly attending the Property over an extended period of time, and that one of the appellants purchased a number of items that were the same as those used in the grow operation.
Result
The appeals are dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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