R v Nguyen [2006] VSCA 158

1 The applicant was found guilty, on 18 May 2003, by a jury in the County Court on one count of trafficking in a commercial quantity of a drug of dependence (count 1), one count of cultivation of a commercial quantity of narcotic plants (count 2) and one count of theft (count 3).

2 Initially, the applicant sought and was granted leave to appeal against the sentences imposed upon him for these offences[1], but, by notice dated 17 December 2004, now applies for leave to appeal against his conviction[2].

The Application for Leave to Appeal Against Conviction

3 With respect to this application, the applicant contends that -

1. A miscarriage of justice resulted from the taking of a jury verdict, the recording of a conviction and the imposition of a sentence on count 2 (cultivation of cannabis in not less than a commercial quantity) given that the facts giving rise to and/or the elements of that count were wholly subsumed by the facts giving rise to and/or the elements of counts 1 (trafficking in cannabis).

2. The learned trial judge erred:

(a) in directing in a manner that tended to reverse the onus of proof - e.g. "Do you accept it [the applicant's explanation] or not?"

(b) in directing that "[the evidence of Mr Pham and Ms Vo] is in direct conflict with the accused and both cannot be right".

3. The learned trial judge erred in failing adequately or at all to summarise the evidence and counsel's addresses and to relate the issues, the evidence and the law to each other.

4. The learned judge erred in his directions on the elements of counts 1 and 2; and in particular he erred:

(a) in failing to direct adequately on the meaning of trafficking, including the elements of possession for sale and the concept of possession.

(b) in failing to direct on the mens rea applicable to the commercial quantity elements of the offences of trafficking and cultivation in a commercial quantity of cannabis.

5. The learned judge erred in failing to leave as alternative verdicts the offences of (a) trafficking simpliciter, (b) possession and (c) cultivation simpliciter.

The Background

4 Gat Van Pham (Pham) lived with his wife, Linh Moh Vo (Vo) and younger brother, Vo Hong Quang (Quang). Quang owned a house situated in Mark Street, St Albans which, with the assistance of Pham and his wife, he prepared for rental. The availability of the premises was advertised and, it was common ground, the applicant contacted Pham by telephone in response, subsequently coming to their home to meet them. Later, Pham said he met with the applicant at the Mark Street premises and was told that the applicant needed a house in which to live with his wife and children. He claimed that, about a week later, the applicant gave him a cash deposit which Pham passed on to his wife. The applicant indicated that, although some of the work that was being done on the house had not been completed, he needed to move in. Thereafter, for a "couple of months", the applicant came to Pham's house to pay the rent. On one occasion, when he was late with his payment, Pham phoned him, speaking first to the applicant's wife and then later to the applicant who paid him on the following day. According to Pham, he [Pham] would go to the Mark Street premises at two or three week intervals in order to mow the lawn but did not, on any occasion, enter the building. Some time later, he was contacted by the police and asked for the applicant's telephone number. When he subsequently went to the house, he found that the police were there. He said that they took things away and that bolts were placed on the doors.

5 What had transpired was that the police, upon executing a search warrant of the premises, had discovered that the premises were being used for the hydroponic cultivation of cannabis plants. There were a number of cannabis plants in the bedrooms. The bathroom contained hydroponic chemicals and a watering system. An electrical bypass had been installed from the outside supply to the house. In one room, 54 cannabis plants, seven light bulbs, eight transformers, three ozone generators, an electrical fan and an electrical bypass were located. The cannabis plants were approximately half a metre to a metre in length and the hydroponic system was operating at the time of entry. Another room contained 31 cannabis plants, seven light fittings, seven transformers, a power board fuse box and three bags of green vegetable matter. A third room contained 33 plants, seven light fittings, seven transformers and an electric ceiling exhaust fan with ducting attached. The bathroom contained one bottle of nutrient, a bottle of blue minerals, a container of super bloom concentrate and a length of watering hose with an electric pump attached. In the lounge room, the police located some beer cans on which subsequent examination disclosed the presence of the applicant's fingerprints. The dry weight of the cannabis recovered was estimated to be 6.9 kilograms and the street value of the crop as being between $60,720 and $172,500.

6 When the applicant was subsequently interviewed, he denied any involvement in the renting of the premises or the growing of marijuana there.

7 The applicant gave evidence at the trial in which he stated that he owned and lived in another property that he intended to sell in order to pay off debts. He went to Pham's house to discuss the possibility of renting the house in Mark Street as accommodation for his family and himself after his own had been sold, but denied ever assuming occupancy or paying rent. On the third occasion that he went to the Mark Street house to discuss the possibility of renting it, he was told that it had been let already. However, he said he was asked to fix a transformer while he was there and did so. He denied any involvement in the cultivation of marijuana and indicated that he was unaware that any such activity was taking place. He had purchased some items of the kind found in the Mark Street house from a hardware store, but this was coincidental and they had been bought for use in his own home. Ultimately, he did not rent any premises at all, as he finally decided that he would not sell the family house as earlier contemplated.

The Grounds of the Application

Ground 1

8 In support of this ground, it was asserted that the offences alleged in counts 1 and 2 were based on precisely the same evidence; the cultivation in count 2, on the evidence indicating that the applicant had control of the crop which had been growing between 14 July and 14 October 2002; and the trafficking encompassed by count 1, on the possession of that crop for sale during the same period. Although it was accepted that the elements of the two offences were not identical, counsel argued that there was such an overlap in the circumstances of each offence and the evidence linking the applicant to each of them that it was oppressive to take verdicts, proceed to conviction or impose sentences on both.

9 Ms Quin who appeared on behalf of the Crown accepted that, in the particular circumstances of the present case, there was force in this contention. I agree and am of the opinion that the appeal should succeed on this ground. The prosecution will need to consider the basis upon which it desires to proceed in the event of any re-trial.

Ground 2

10 When considering the complaints advanced in support of this ground, it is the basis upon which the Crown case against the applicant rested that must be borne in mind. There was uncontroverted evidence that the hydroponic cultivation of a commercial quantity of marijuana (and obviously for sale), was being conducted at the house in Mark Street. As a practical proposition, the only question to be determined by the jury was whether the Crown had established beyond reasonable doubt that the applicant was implicated in this activity. In support of the contention that that was the case, evidence was adduced from Pham and Vo to the effect that the applicant had leased, attended at and paid rent for the premises. There was further evidence concerning his purchase of relevant items of equipment and the presence of his fingerprints inside the house. He, in turn, denied that he had leased the house, explained the presence of his fingerprints and proffered an explanation for the purchase of the items concerned. Although the presence of his fingerprints and the purchase of the items could be seen to provide support for the Crown case, ultimately, whether he was convicted or not depended upon whether the jury accepted, beyond reasonable doubt, the evidence of Pham and Vo. In delivering his charge to the jury, the trial judge instructed them correctly on the burden and standard of proof, making specific reference to the need for the jury to remain conscious that the onus of establishing guilt never shifts from the prosecution and pointing out that an accused person does not assume any burden by giving evidence in the trial. However his Honour also said:

"The accused has offered an explanation for how these fingerprints got there. It is a matter for you to assess that evidence. Do you accept it or not, is it realistic, is it realistic that empty cans would be there for a considerable period of time if people were in the place. I do not know, but it is a matter for you to look at that evidence, or was it something that the accused did when he was much more recently at the premises.

...

... Their evidence [i.e. that of Gat Van Pham and Linh Moh Vo] is in direct conflict with the accused and both cannot be right. That is the long and the short of it. But he has given evidence denying that he did any more than go to the house. He does not concede, in fact he denies that he paid any money for rent or that he had anything to do with the property. Really that is where the evidence lies." (My emphasis.)

These statements were made at the very end of his Honour's charge and provoked the following exchange with counsel for the applicant:

"HIS HONOUR: Any exceptions?

COUNSEL: Just one, Your Honour. Your Honour just a short time ago dealt with one topic twice, that is with the issue of the apparent conflict between Tran and Vo and the accused person.

COUNSEL: There is nothing wrong with that Your Honour, but it is my submission, it is appropriate in dealing with that issue, to with respect, remind the jury that even though there may be a consideration of different versions, it is still incumbent upon the Crown to prove the case beyond reasonable doubt.

HIS HONOUR: Look I have said that I don't know how many times I've said they've got to be satisfied beyond reasonable doubt that the accused - indeed just before that, I said the accused has taken on no obligation, given no burden by giving evidence, and in that context I said the onus is still on the Crown so I don't think a jury can be under the slightest apprehension or misapprehension about that matter.

HIS HONOUR: I think if you looked at the transcript of my charge, you'd probably find I said something along the lines that the onus is on the Crown and the Crown has got to prove beyond reasonable doubt about ten times."

11 In this Court, the submission was advanced that the statements of his Honour, which it was emphasised were made almost immediately prior to the jury retiring to consider their verdicts, tended to reverse the onus of proof on the principal issue in the trial. With respect to the first of them, Mrs Quin, who appeared on behalf of the Crown in this Court, argued that the expression "do you accept it or not" must be considered in the context of the whole of the charge and the immediately following words "is it realistic". When made in the context of the factual issues raised in the case and the clear and repeated instructions of the judge with respect to the burden and onus of proof, the jury would have understood, she contended, that his Honour was presenting for their consideration the issue whether the applicant's explanation of the presence of his fingerprints in the premises raised a reasonable hypothesis consistent with innocence.

12 I am by no means persuaded that the jury would have so interpreted his Honour's remarks. Rather than regarding the question posed by him as bearing upon the existence or otherwise of a reasonable hypothesis consistent with innocence, the query "Is it realistic that empty cans would be there for a considerable period of time if people were in the place?" might very well have been perceived by them as a means of testing whether they accepted the applicant's evidence or not. The second statement, in which the judge drew the attention of the jury to the conflict between the evidence of the applicant and that of Pham and Vo, that "both cannot be right that is the long and the short of it" was made immediately after the one just considered and possessed the potential to reinforce in the minds of jurors the implication in those remarks that the guilt of the applicant was to be determined by whether or not they accepted his evidence.

13 The combination of these statements and the stage at which they were made could well have been viewed by the jury as instructing them as to how the burden resting upon the prosecution to establish its case beyond reasonable doubt could be satisfied. The position was similar in that respect to that considered by the High Court in Murray v. R[3]. In that case the accused, who was charged with murder, had admitted to having pointed a gun at the deceased, but asserted that he had done so with the intention of frightening him and denied having deliberately fired the weapon. On appeal, complaint was made about the trial judge's directions with respect to the burden of proof. In a short passage in their joint judgment Gummow and Hayne, JJ. addressed this situation:

"Having referred the jury to conflicting evidence that had been given at the trial about the appellant's conduct on the night of the shooting, the trial judge said:

'Now, you are going to have to decide which versions of those events and conversations you accept and in deciding that it may help you to reach your ultimate conclusion on the question of intent. What was his [the appellant's] intent? Was it just to frighten [the deceased] and drive him out of the house rather than to kill him or to cause him grievous bodily harm? If you find that his intent was just to frighten him and drive him out of the house, then you should find that he is not guilty of murder. Relevant to this will be whether you accept the [appellant's] evidence that [the deceased] was yelling out to him while he was using the toilet, whether you accept his evidence that he was concerned for his own safety.' (emphasis added)

In the course of her directions, her Honour made several other references to the jury accepting the appellant's evidence or version of events.

Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused's evidence or version of events were apt to mislead the jury about the decision they had to make. The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant."

14 The jury here may have been similarly misled and no instruction of the kind considered necessary by Brennan, J. in Liberato v. R.[4], was provided to guard against this possibility:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

15 I consider that this ground has been made out.

Grounds 3, 4 and 5

16 Although it is not necessary to address any of these grounds, in view of the conclusions at which I have arrived, I would, for completeness, add that I do not consider that any of them possesses substance.

17 The issues in the trial were straightforward and confined and the evidence was in short compass. The nature of the dispute concerning the evidence and the arguments advanced by counsel with respect to it could hardly have been simpler. As this Court observed in Dao[5]:

"The duty of a trial judge in charging a criminal jury arises from their respective roles at trial. In its most basic form, this duty requires the judge to define the legal principles necessary for the determination of the case and to communicate them to the jury in a manner which will assist them in carrying out their role. The role of the jury is, of course, to determine issues of fact and to apply the facts to the principles communicated to them so as to return a verdict. The judge, also, has an important role in assisting the jury in its fact-finding function. The judge in the charge must identify the issues and relate them to the evidence in the case; ... the judge must direct the jury as to the manner in which they must or may or may not use certain evidence; the judge, in the appropriate case, must or may warn the jury to approach certain evidence with caution or not to act upon it without corroboration; and the judge in performing these tasks must do so in a fair and even-handed way. Finally, the judge must put the defence fairly to the jury so that upon their retirement to consider the verdict, they have a clear understanding of what is the position of the accused. ..."

Whilst it is incumbent upon a trial judge to ensure that the jury has a clear understanding of the issues to be determined in a criminal trial and to so instruct them that they are able to address those issues in accordance with the application of correct legal principle, it does not follow that the judge is required in every case to recite ritually every piece of evidence adduced. Nor is it necessary, in order that the jury might understand the defence response to the Crown case, to address all of the propositions advanced by counsel in the course of the final address. The duty of a trial judge when instructing a jury was the subject of attention in Alford v. Magee[6] where it was pointed out that:

"... it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are."

18 When regard is had to the nature of the issues raised in this matter, in the context of a trial of relatively short length, I am not persuaded that the learned trial judge's instructions were inadequate as asserted in ground 3. It is to be noted in this context that no exception was taken by counsel appearing on behalf of the applicant at the trial.

19 With respect to the complaints contained in ground 4, there was no need for the trial judge to instruct the jury with respect to the concept of possession either at common law or pursuant to section 5 of the Drugs Poisons and Controlled Substances Act 1981. The jury were directed that before they returned a verdict of guilty of trafficking that they would need to be satisfied that the plants were in the possession or control of the applicant. There was, as counsel for the Crown contended before us, no evidence in the case suggestive of any other form of trafficking or upon which a jury could reasonably consider any other form of trafficking. Importantly, there was nothing in the evidence that raised the possibility that anyone else was involved in the crop and, if the jury accepted the Crown case as to the applicant's sole role in the cultivation and possession of the crop, no issue arose, as a practical proposition, with respect to whether the applicant intended to possess the crop for sale. The learned trial judge directed the jury that personal use was not an issue in the case and no exception was taken to that direction.

20 The complaint with respect to the alleged failure of the judge to direct on the mens rea applicable to the commercial quantity elements in the offences of cultivation and trafficking in a commercial quantity of cannabis also lacks substance. The prosecution case proceeded on the foundation that 110 plants had been cultivated and were in the applicant's possession for sale. He denied any association with the operation. No question ever arose with respect to his state of mind in relation to the weight of the marijuana or number of plants involved. The situation here was significantly different from that addressed in Coviello[7], upon which reliance was placed on behalf of the applicant, where the central question had to be considered was:

"... what did the applicant possess for sale when he grew a crop of cannabis? It is that question which falls for resolution. Upon the outcome hinges the question as to whether the applicant trafficked in a 'commercial' quantity or merely, a 'traffickable quantity'."[8]

"The trial judge should have directed the jury to consider what quantity of cannabis was possessed by the applicant for sale and drawn their attention to the evidence that bore on the question. They should also have been told that, in considering this matter, whether any part of the cannabis was usable or not did not render that part any the less cannabis and the only relevance of its being unusable was that that fact might allow an inference to be drawn that the useable part was not being possessed for sale."[9]

Nor was this a case in which there was any necessity to leave an alternative verdict, as there was simply no basis upon which any would have been reasonably open.

22 In conclusion, as I have earlier indicated, the applicant has succeeded on two quite separate grounds, the first of which relates to the taking of a verdict on count 2 and the consequent recording of a conviction and the imposition of a sentence of imprisonment. The second involves the fundamental requirement that a jury should be left in no doubt whatever as to the proper principles to be applied concerning the standard of proof in a criminal trial. The prosecution case against the applicant was undoubtedly very strong, with the evidence of Pham and Vo being supported by evidence of the presence of the applicant's fingerprints inside the premises, his purchase of items of the kind found there, his acceptance that he performed work on a transformer in the home and, depending on the jury's assessment, what appears to me to be the general implausibility of his explanation of his association with the premises. Properly instructed the jury would, I think, in all probability, have convicted him. But it is fundamental to the acceptance of a jury verdict that there should not be doubt concerning the correct application of principle relating to the burden and standard of proof in a criminal trial. In Weiss[10] the High Court stated that:

"... there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."

23 In view of the presence of this fundamental defect, it is inappropriate for the proviso in section 568 of the Crimes Act 1958 to be applied.

24 Accordingly, I would allow this appeal and direct that a retrial be had.

25 I agree with Vincent, J.A., for the reasons which his Honour gives, that this appeal should be allowed and a new trial had.

26 For the reasons given by Vincent, J.A., I agree that the appeal should be allowed.

[1] After hearing a plea in mitigation of penalty, the applicant was, on 19 May 2004, sentenced as follows:

The sentencing judge directed that six months of the sentence imposed on count 3 was to be served cumulatively with that imposed on count 1. This created a total effective sentence of five years and six months' imprisonment in respect of which he fixed a non-parole period of four years.

[2] In view of the conclusion at which I have arrived, the appeal against sentence need not be addressed.

[3] [2002] HCA 26; (2002) 211 C.L.R. 193 at 212-213.

[4] [1985] HCA 66; (1985) 159 C.L.R. 507 at 515.

[5] [2005] VSCA 196; (2005) 156 A. Crim. R. 459 at 464.

[6] [1952] HCA 3; (1952) 85 C.L.R. 437 at 466.

[7] (1995) 81 A. Crim. R. 293.

[8] (1995) 81 A. Crim. R. 293 at 294.

[9] (1995) 81 A. Crim. R. 293 at 298.

[10] [2005] HCA 81; (2000) 80 A.L.J.R. 444 at 455.