R v Nguyen [2006] VSCA 293

2 I agree, substantially for the reasons advanced by King AJA, that the application for leave to appeal against conviction should be granted, the appeal allowed and a new trial ordered.

3 The applicant, Nguyen, seeks leave to appeal against convictions returned on 7 December 2005 in respect of three counts: trafficking in a drug of dependence in a commercial quantity, cultivation of narcotic plants in a commercial quantity, and theft of electricity.

4 On 30 November 2005 the applicant was arraigned before a judge of the County Court in respect of six counts: Count 1, cultivation of narcotic plants; count 2, possession of a drug of dependence; count 3, theft of electricity; count 4, trafficking in a drug of dependence - commercial quantity; count 5, cultivation of narcotic plants - commercial quantity; and count 6, theft of electricity.

5 The applicant pleaded guilty to counts 1, 2 and 3 on the presentment and not guilty in respect of counts 4, 5 and 6 and on the 1 December 2005 the applicant was arraigned and a jury heard the trial relating to the three counts on which the applicant pleaded not guilty. A verdict was delivered on 7 December 2005, a plea was heard, and an overall sentence of five years with a three year minimum was imposed.

Background

6 On 4 September 2002 a search warrant was executed at the applicant's

premises in North Sunshine which uncovered a hydroponic cannabis crop and diverted electricity. That address was the location of the cannabis cultivation, theft of electricity and possession of cannabis to which the applicant pleaded guilty in counts 1, 2 and 3. The applicant was arrested at the scene. Simultaneously another search warrant was executed by police officers at 743 Barkly Street, West Footscray, in the process of which they uncovered a commercial level hydroponic cannabis crop. The applicant was charged in relation to those matters on 22 December 2003 and committed for trial on 21 April 2005.

The Trial

7 Evidence was given in the trial by a number of witnesses and the case presented was a circumstantial case. In summary the relevant parts were that on 4 September 2002, the applicant was arrested at 10 Berry Street, North Sunshine. Also present at the address at the time were Mai Ha Dui, Philip Nguyen, Fung Tu Bhu and Tien Van Bhu, those persons being the wife and children of the applicant. No evidence was led before the jury of the locating of the cannabis crop at the North Sunshine property. However, evidence was led that a search warrant issued under the Drugs, Poisons and Controlled Substances Act had been executed at those premises.

8 At the Berry Street premises items were located, photos were taken and an exhibit log maintained. The relevant items produced in the trial were:

• First, a bag of Canna coco, which is described as a natural plant medium.

• Second, a set of keys containing a Commodore key and seven other keys ('the Commodore keys') which were located on the kitchen bench of the premises. One of those keys opened the rear bedroom of the premises in Berry Street North Sunshine which was a bedroom occupied by the applicant.

• A second set of keys were located on the coffee table in the lounge room of those premises (the 'Las Vegas keys'), which contained seven keys, one key opened the front security door of the premises at 743 Barkly Street, West Footscray, and one opened the front door of the premises at 10 Berry Street, North Sunshine.

• No evidence was led as to the ownership of the keys by the Crown but the applicant, through his counsel, put to the police officer who located the keys that the applicant had told him that he owned 'the Commodore keys'. As a result evidence was led in re-examination as to a conversation between the applicant and the police officer at the premises:

THE APPLICANT WAS ASKED: "The keys that were here that had the Commodore key on it whose are they?"

THE APPLICANT REPLIED: "Mine."

POLICE OFFICER SAID: "What does the car key fit?"

APPLICANT REPLIED: "I don't know. I just found the key, I just found the key and put it on the - put it on there to make it look like a car key."

9 Police simultaneously attended 743 Barkly Street, West Footscray ('the West Footscray house'), where a Holden Commodore station wagon was parked in the driveway of the premises. No answer was received and ultimately a forced entry was made. Two of the three bedrooms in the house as well as the garage had cannabis growing in them, all in hydroponic form. The Commodore keys that had been located at the premises in North Sunshine were transported to the premises and used to unlock the remote control of the Commodore parked in the driveway and move it out of the way. There was evidence that the electricity had been bypassed in the premises. Located in the Commodore was a tax invoice in relation to the purchase of the motor vehicle, a Vic Road's roadworthy certificate and registration certificate together with two receipts from Bunning's Warehouse in Sunshine. The Commodore vehicle was registered in the name of Van Hoang.

10 Located inside the premises was a further receipt from Bunning's Warehouse dated 2 September 2002 which related to a staple gun. A staple gun was found in the premises in West Footscray in the hallway. A compact disc of surveillance footage relating to the purchase of a staple gun on 2 September 2002 was tendered which purported to show the applicant purchasing a staple gun of the same type, at the time indicated upon the receipt. Also located at the premises in West Footscray were a pair of shoes at the front door, hydroponic related equipment, including chemicals, fan extractors and balusters, two bags of Canna coca - one in the bedroom, one in the garage - a footprint on the plasterboard in one of the rooms, a dog at the rear of the premises and a box in the hallway with the name Loi Tran.

11 The value of the electricity bypassed was $5,638.22.

12 Further evidence was given that the applicant knew the owner of the West Footscray property, had worked for her as a repair man at the property in the past, the repair work was around the outside of the premises, and there may have been one occasion when he checked something inside the premises. In 2002 the applicant informed her that his friend wished to lease the premises and introduced her to a person named Sang Nguyen who subsequently leased the premises from April 2002. The rent was paid each month in cash, $900, by the wife of Sang Nguyen, or on one occasion by Sang Nguyen himself. If the owner of the house wished to contact Sang Nguyen she would contact and speak to the applicant.

13 Latent fingerprints were taken from different bedrooms where the hydroponic crops were being grown. The items included a number of lights and shrouds used to heat the crop, light globes in a cupboard, transformers and inside the Holden Commodore station wagon. The evidence was that 12 of the items examined had recognisable fingerprints containing one or more fingerprints. Six of those 12 items were able to be identified as matching the applicant's. The fingerprints referred to were located on the inside of the Commodore motor vehicle and on various light globes and shrouds hanging over the hydroponic crops. There was evidence produced in respect of the keys on the Commodore key-ring. Keys were discovered, which first, fitted the front flywire screen on the premises at 743 Barkly Street, second, another key that opened up the three bedroom doors in the same premises which were locked at the time of the arrival of the police. A heavily edited record of interview of the applicant was also tendered.

14 In that interview the applicant stated that the Commodore key-ring was not his. The informant gave evidence that they were unable to identify or locate a person by the name of Sang Nguyen. In relation to the person Van Hoang, the informant gave evidence that he had ascertained that he had been living at some stage in West Australia but he was not able to say where he was presently residing. Further, in terms of the premises in West Footscray, the informant also gave evidence that there was a television located in the lounge area of the house which operated on a timing device.

15 It is my view that this was a very strong circumstantial case. This was conceded by the counsel for the applicant in this court.

The Grounds

16 Pursuant to leave granted by the Honourable Justice Vincent on 7 July 2006, the amended grounds in relation to this appeal are:

Conviction

(1) The trial miscarried as a consequence of the learned trial judge's having, in his charge to the jury, impermissibly expanded the Crown's case. In particular, the judge erred by directing on:

(b) whether the applicant with others participated in the offences committed;

(c) joint enterprise or common design.

(2) The trial miscarried as a consequence of the trial judge having failed properly to direct the jury on its use of an alleged lie told by the applicant and on consciousness of guilt. In particular, the learned judge erred by:

(a) exposing for the jury the circumstances surrounding, and the law applicable to, defence counsel's having cross examined into evidence the alleged lie;

(b) failing properly or at all to direct the jury on the unsupported evidence of police member Ridley alleging an off tape admission made to him by the applicant;

(3) The trial on Count 4 miscarried by reason of the learned judge having

proceeded to enter a conviction on that count;

(4) The trial miscarried as a consequence of the cumulation of some or all of the errors and matters alleged in grounds 1 to 3.

In relation to the appeal against sentence, the sole ground is:

(i) the conviction and sentence imposed by the learned judge for the offence the subject of count 4 subjected the applicant to double punishment.

Ground 1 - Judge's Expansion of Crown Case

17 Counsel for the applicant submitted, that it was apparent from the transcript, that the prosecutor opened, closed and conducted the trial on the basis that it was the applicant who was solely responsible for and guilty of, cultivating and trafficking the cannabis contained in the premises. It was submitted that the prosecutor did not expressly or impliedly open, prosecute the case, or subsequently address the jury on the basis or possibility that the applicant jointly possessed the property with another or others, or that the applicant together with others participated in the offences, or that the case was one of joint enterprise or common design.

18 Counsel for the applicant submitted that the defence was conducted by counsel for the applicant, on the basis that a person or persons other than the applicant were, in fact, responsible for the premises and the growing of the crop within the premises. Counsel's cross-examination was directed to distancing the applicant from the premises, raising a reasonable doubt about the applicant being in control of the premises, and not being satisfied beyond reasonable doubt that others were not involved in some way.

19 The major source of complaint in respect of this is that the learned trial judge charged the jury that the applicant could be convicted on a number of bases, including:

• That it was the applicant who was entirely responsible for the cultivation at the premises; or

• That the applicant was jointly in possession of the property with another or others; or

• That the applicant with others participated in the offences committed; or,

• That the case was one of joint enterprise or common design.

That charge of course was given subsequent to the conclusion of the evidence and the addresses of counsel.

20 It should be noted that as a matter of law it was open for the jury to determine these matters, as there was more than sufficient evidence given of the presence or probable participation of others, apart from the applicant.

21 Counsel for the Crown, in her opening, did not expressly put the legal basis upon which the jury should determine the issue of the guilt or participation of the applicant. In the outline of argument reference is made to a number of relevant sections of the learned prosecutor's address to enable to the court to ascertain in what basis the Crown presented the applicant. Having perused all the relevant material including, all addresses, (opening and closing) and the evidence in the trial, it is my view that the trial was conducted in the manner submitted by counsel for the applicant. Some examples of how the Crown opened and closed the case together with extracts from the defence suffice to demonstrate this issue.

"They are three counts that relate, not to the accused's home, but to a home that Crown says was a rental property that the accused man used in order to cultivate and traffic in cannabis, and, in the process, was stealing electricity in order to do so.[1]

Now members of the jury, at the time that the search was conducted, there were no other people in the property at the time, and you will shortly be given evidence in relation to what the police found when they came to that property, and indeed, you have photographs of that. They knocked on the door. There was no answer. Entry to the property was gained via force. That is, they forced the front door and it would appear that there was a lack of kitchen utensils, crockery and appliances. Which would indicate, the Crown says, that the premises were unoccupied.[2]

Now there were other keys that you will hear about that were at the accused man's home, Mr. Nguyen's home, that opened external and internal doors of the West Footscray property. The Crown is effectively saying that all of these circumstances will lead you to the conclusion beyond reasonable doubt that it was the accused man who was responsible and is guilty of cultivating and trafficking the cannabis at that rental property in Footscray.[3]

The Crown is putting forward a circumstantial case and saying to you when you look at each of the circumstances, each of the pieces of that puzzle, you'll be able to find beyond reasonable doubt that it was the accused man.[4]

I simply point out those four features as being four of the features that the Crown says are significant aspects that lead to Mr. Nguyen, as opposed to anyone else, and the Crown says that is the man who had committed these offences."[5]

22 The defence, in a very brief opening, stated as part of the issues in the case:

"Listen to the detail. Listen to the police investigation. Listen to the gaps in it. Listen to what they say and then you apply that to beyond reasonable doubt."

23 During the trial, defence counsel concentrated on the other persons that had been mentioned, together with the enquiries that the police had made, or not made, in respect of those persons, their whereabouts, and the matching of other fingerprints that were put before this jury as unidentified. The focus of the defence was upon establishing whether it was the applicant who was involved with the premises or if others were involved, and that the presence of various indicia of the applicant's involvement or presence at the house may have had a more innocent explanation than one of guilt. The defence was put forward that it may not have been the applicant who was doing the cultivation but others whom the applicant may have known, or assisted in some way ignorant of what the other person or persons may have been doing. The Crown clearly set out to establish that no other persons had any actual involvement with the cultivation of the cannabis and the presence of others was either fictitious or innocent.

24 This is demonstrated during closing arguments put by the Crown I shall refer to only a few of the examples.

"What the Crown says and I referred to this in my opening, is that this is a circumstantial case. In other words, there are a number of links or circumstances that when joined together forma picture that will lead you to the conclusion in respect of each count beyond reasonable doubt that the accused man, Mr. Nguyen, not Mr. Sang Nguyen, and not Mr. Van Huan is the person who committed these crimes.[6]

The defence may say and you may be thinking, well, the car was registered to some other person. Perhaps in law that is, in terms of the registered owner, he didn't own the car. The Crown says he had the key, he's the person who drove the car and Mr. Nguyen is the man who was in control of this car.[7]

Members of the jury, having taken into account all of the circumstances, the Crown says that you will find beyond reasonable doubt that Mr. Minh Nguyen was the person who was trafficking and cultivating the drugs. Furthermore, the Crown says that when you look at the evidence and you've seen the photographs of the bypass on the property and heard evidence as to how that was set up by Mr. Martucci and by Mr. Buckley and you see that at pp105 and 106 as physical evidence of it. The question is, is Mr. Nguyen the person who was responsible?

The Crown is asking you to look at every circumstance and ingredient in terms of what the witnesses have said and having done that the Crown says that you will find beyond reasonable doubt it was Mr. Nguyen who was running this operation, it was Mr. Nguyen who was the contact for Ms Do for this property and Mr. Nguyen who was stealing electricity for the purposes of running a hydroponic cannabis crop at 743 Barkley Street, west Footscray."[8]

"The Crown have given you the bare facts. The way they say that is a wall that seems to enclose Minh Nguyen and Minh Nguyen.[9]

Have they excluded people effectively and say, 'well it can't be him. It's (sic) can't be him or her. It's definitely him, in my view.' Well, they haven't. They've fixed on this bloke so they can't find anyone else, his prints are there, he'll do. Near enough is good enough. Is it? Is near enough good enough for you?[10]

There are a number of unanswered questions in my submission to that create the doubt. We know that Mrs. Do rented the property at Barkley street to Sang, she said she saw him. We know he exists. She met his wife. We know she exists. Minh wasn't the only contact. Remember, he was the bloke that introduced Sang and the family to Mrs. Do because he does work for her.[11]

Sergeant Stormonth actually told you when he was questioned by the prosecutor, 'Yes I believe people lived there.' We know it's not Minh because Ms Do rings him at Berry street, at his house. That's where he lives so we know he doesn't live at Barkly Street. Sergeant Stormonth says someone does. Who is it? Is that important? That's where all the dope is. Who is it? We don't know. They say it's him because of some fingerprints.[12]

The police didn't follow the leads that they had. The names alone that that they had, even the name on the box, they didn't follow those things. There's a number of people that could have grown this crop - Sang Nguyen, Van Huan, Phillip Nguyen, Loy Tranh, perhaps even Tu Vui - which one? Is near enough good enough? That's what it comes down to are. Are you satisfied beyond reasonable doubt that near enough is good enough."[13]

26 The learned trial judge spoke with counsel shortly after he had commenced his charge to the jury and after explaining what he intended to tell the jury about the different bases on which they could be satisfied of the guilt of the applicant, counsel for the defence attempted to persuade his Honour not to proceed in that manner as that was not the manner in which the case had been conducted.

27 His Honour subsequently provided all counsel with the remarks he intended to make to the jury relating to common purpose, and invited submissions. Counsel for the applicant again sought to dissuade the judge from putting this matter to the jury as common design. The learned trial judge determined that it was open on the evidence before the jury and continued with his proposed course.

28 There is no doubt that there was evidence upon which a jury could have found that the applicant acted with others in what his Honour referred to as "common design", that is not the substance of the complaint in this ground. The substance of the complaint is that the applicant has not received a fair trial as a result of a significant denial of procedural fairness.

29 It is my view that the Crown did not conduct this trial on the basis that the applicant was guilty of the offences either by acting on his own as the principal or alternatively by common purpose with others. It is equally my view that the defence was conducted on the basis that the case they faced was one where the applicant was acting alone, that it was his actions that were responsible for the growing of the cannabis and the theft of the electricity, not others.

30 It is my view that the decision of the learned trial Judge compromised the ability of the defence to meet the case that the Crown presented. The issues were not raised at the commencement of the trial, nor were they raised during the trial, nor even before the parties addressed. The defence conducted the trial and attempted to meet the Crown case on the way the Crown had presented it before the jury. It is clear from his Honour's comments that while "the Crown didn't put it in any particular way. I believe it is implicit in what the Crown - it has never been spelt out exactly how it's put" that the Crown never actually relied upon the basis of the guilt of the accused that his Honour put before the jury in his charge. It is also clear that the defence dealt with the case in the way the Crown put it before the jury, not in an implied way, but in the express way that the Crown put to the jury, as is demonstrated once again from the learned trial judge's comments "It's certainly been put that it's his crop, that he is involved in it. But it was never spelt out clearly, and the difficulty is this: Clearly, I mean you went to the jury and talked about all sorts of other people, whether it was his son that was involved or whether Sang Nguyen was involved or whether this other gentleman who owned the car was involved."

31 The question then arises what are the consequences of the judge expanding the Crown case beyond the way the Crown conducted the trial. The Crown have submitted that if the court is persuaded that his Honour has expanded the Crown case in the manner argued that this would be an appropriate case for the application of the proviso pursuant to S.568 of the Crimes Act 1958.

32 The issue of a judge dealing with a case in which the Crown have not fully argued the basis on which an accused could be convicted or even fully developed the arguments that the Crown could have put forth in relation to the evidence was considered in R v Torney.[14] The court in that case determined that the matters discussed by his Honour were matters of comment and argument relating to the evidence and dismissed the appeal.

33 Starke J, who agreed with Crockett and O'Bryan JJ in dismissing the appeal, examined the issue of the 'comments' of the judge during his charge in a different manner, and with the issue of whether the learned trial Judge had made comments or had put a case that they Crown had not articulated:[15]

"What was objected to both below and before us was that without notice to the defence the judge made a case on behalf of the Crown which the Crown had not made and hence the appellant had no opportunity to reply to it. It is clear that he learned judge recognised the problem that confronted him ..."

His Honour continued and dealt with some of the individual comments or instructions and then stated:[16]

"The way the Crown has put its case is an important consideration before a Court of Appeal (see for example Darrington v McGauley.[17]) For all those reasons the approach is to be discouraged. I have been referred to no authority which requires the trial judge to put the Crown case in a way that arises on the evidence but a way that has not been put by the Crown. The position of course is different when a defence arises on the evidence which is not relied upon by the defence."

34 As I have indicated earlier the case presented against this applicant was and is an extremely strong case and the issue arises whether there has been a miscarriage of justice such as would require the decision of the jury to be quashed and a retrial directed.

35 Counsel for the applicant has submitted that is the case here, for despite the strength of the case, he submits that the error is so fundamental that it goes to the root of whether a proper trial, between the parties, has been conducted at all.

36 Counsel for the respondent submitted that if error is found to have occurred it is a matter of procedural breach and not so fundamental that, in the face of an extremely strong case against the applicant (which as has been conceded by all parties, this case is an example), that the court should not apply the proviso.

37 In R v Panozzo and Iaria[18] a decision of the Court of Appeal in which the Court held that despite a strong Crown case, the manner in which the jury had been empanelled was such an irregularity and so fundamental that the proviso could have no application, they stated:

"The High Court in Wilde v. R.[19] considered the position where an irregularity has occurred which is such a departure from the essential requirements of the law that it went to the root of the proceedings and held that:

'If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.'"

38 The system of justice under which the criminal courts of this state operate is an adversarial system, one in which the Crown bear the onus and burden of proof. The case that was presented by the Crown and contested by the applicant was in my view one in which the Crown argued that it was the applicant, and the applicant alone, who had cultivated the commercial crop of cannabis and stole the electricity. The case that the jury were left to determine was one in which the applicant was either the person who cultivated the cannabis alone or who cultivated it with others, both findings resulting in a conviction. The alternative means of finding guilt that was charged to the jury in my view was not one in which issue was joined by the Crown and the defence during the trial.

39 It is accordingly, my view that the applicant was denied the opportunity of meeting the case that ultimately went to the jury. Whether he would have been able to meet that case is not for this court to speculate. The opportunity denied to him of being informed, prior to the trial or even the final addresses, of the manner in which this would ultimately be left to a jury, makes this trial so fundamentally flawed in the manner submitted by counsel that it would be inappropriate for the application of the proviso.

Conclusion

40 For the reasons I have outlined I would allow the appeal and quash the conviction. I would further direct that the applicant be retried.

41 I do not believe it is necessary to deal with the other grounds relied upon by the applicant other than to note the Crown concession that there should not have been a verdict taken in respect of count 2, the trafficking charge, once there was a verdict of guilty on count 1, the cultivation charge.

[1] Page 4, transcript of opening address

[2] Pages 6-7, transcript of opening address

[3] Pages 11-12, transcript of opening address

[4] Page 12, transcript of opening address

[5] Page 17, transcript of opening address

[6] Page 1, transcript of prosecutor - final address

[7] Page 4, transcript of prosecutor - final address

[8] Page 12, transcript of prosecutor - final address

[9] Page 12, transcript of defence counsel - final address

[10] Page 14, transcript of defence counsel - final address

[11] Page 14, transcript of defence counsel - final address

[12] Page 15, transcript of defence counsel - final address

[13] Page 26, transcript of defence counsel - final address

[14] (1983) 8 A Crim R 437

[15] At 438

[16] At 439

[17] [1980] VicRp 36; [1980] VR 353

[18] [2003] VSCA 184; (2003) 8 VR 548

[19] [1988] HCA 6; (1988) 164 CLR 365