District Court New South Wales Medium Neutral Citation: R v Trinh [2020] NSWDC 688 Hearing dates: 2, 3, November 2020 Decision date: 04 November 2020 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: The Accused is found not guilty Catchwords: CRIMINAL LAW – Knowingly take part in the cultivation of prohibited plant not less than commercial quantity – By enhanced indoor means – Judge alone trial – Initial lease entered in false name by Accused's husband and subsequently expired – Accused not a signatory to the lease – Accused was point of contact with landlord and paid rent – 97 cannabis plants found at premises – Accused's DNA could not be excluded from mask found at premises – Character evidence – Expert evidence on DNA and on use of electricity at the premises – Circumstantial case – Inferences – Evidence did not establish that the Accused knowingly took part in cultivation – Accused found not guilty Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133 Drug Misuse and Trafficking Act 1985 (NSW), ss 6, 23(2)(a), 43 Evidence Act 1995 (NSW), s 177 Road Transport Act 2013 (NSW), s 257 Cases Cited: Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 Fleming v R (1998) 197 CLR 250 R v Tao [1977] 1 QB 141 Category: Principal judgment Parties: Regina (Crown) Thi Thuy Trinh (Accused) Representation: Counsel: Mr J. Overall (Accused) Solicitors: Director of Public Prosecutions (Crown) Skopelja Solicitors (Accused) File Number(s): 2019/230936 Judgment 1. On 2 November 2020 the Accused, Thi Thuy Trinh was arraigned before me and pleaded not guilty to one count that between 10 June 2012 and 21 December 2018, at Canley Vale in the State of New South Wales, she did knowingly take part in the cultivation of a number of prohibited plants, namely, ninety seven cannabis plants, which was not less than the commercial quantity applicable to that prohibited plant. This is an offence contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (the 1985 Act). Judge alone trial 1. As this is a judge alone trial, s 133(2) of the Criminal Procedure Act 1986 (NSW) (the 1986 Act) requires me to state the principles of law to be applied, as well as findings of fact which are made. Section 133(3) of the 1986 Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter. 2. I approach these statutory obligations in accordance with the statements made in both Fleming v R1 and Filippou v The Queen. [1] Directions Presumption of innocence 1. The Accused is entitled to the presumption of innocence. She has pleaded not guilty to the charge and has elected to proceed to a trial by Judge alone – it is my duty and responsibility to consider whether she is guilty or not guilty of the charge and to return my verdict according to the evidence. 2. The Accused is not required to prove her innocence. The Accused is presumed to be innocent of the crime charged unless the evidence led in the trial satisfies me to the appropriate standard that she is guilty of the crime. Onus and standard of proof 1. The Crown bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the Accused. The Accused bears no onus and is not required to prove anything in the trial. 2. The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the Accused is probably guilty. 3. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. However, the Crown is not required to prove the truth and reliability of every disputed fact nor is it required to answer every question that might be posed concerning the evidence in the case. 4. In a criminal trial the only one ultimate issue is: Has the Crown proved the guilt of the Accused beyond reasonable doubt? If the answer is "yes", the appropriate verdict is "Guilty". If the answer is "no", the verdict must be "Not Guilty". Dispassionate approach 1. It is necessary to consider the evidence in the trial impartially and dispassionately. The Court must not let sympathy or emotion affect its judgment. 2. In the same manner as required of a jury, I will approach the assessment of evidence in this trial in a dispassionate manner and without emotion or sympathy and without any element of prejudice. Election not to give evidence 1. In this case, the Accused has not given evidence. 2. As already noted, the Crown bears the onus of satisfying me beyond reasonable doubt that the Accused is guilty of the offence charged. 3. As earlier referred the Accused bears no onus of proof. 4. In respect of any fact that is in dispute she is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that she is guilty of the offence charged. 5. As a matter of law, the Accused's decision not to give evidence cannot be used against her in any way at all during the course of my deliberations. That decision cannot be used as amounting to an admission of guilt. I must not and I do not, draw any inference or reach any conclusion based upon the fact that the Accused decided not to give evidence. I cannot use that fact to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. 6. In particular the Court is not to speculate about what might have been said in evidence if the Accused had given evidence. Accused did not participate in an interview 1. I further observe that the Accused was offered the opportunity to participate in an electronically recorded interview with police following her arrest. The Accused declined this opportunity. 2. That is, the Accused chose not to answer questions put to her by the police at the time of her arrest. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told her when she was asked if she wanted to answer their questions. There are some exceptions to this right, but those exceptions do not apply here. 3. In this case, it would be quite wrong if the Accused, having listened to what the police said, and having decided to exercise her right to silence, later found that I were to use that fact against her. I must not do that and it is important, therefore, that I bear in mind that her silence cannot be used against her in any way at all. The fact that she took note of the caution given by the police and chose to remain silent cannot be used against her. Under our law, an accused person has a right to silence. Character 1. The Crown, with consent of the Defence, adduced evidence of the Accused's prior criminal history, which was tendered as Exhibit E. Therefore, I should accept the fact that the Accused is a person of good character. 2. The law provides that I am entitled to take evidence of an Accused's good character into account in favour of her on the question of the whether the Crown has proved the Accused's guilt beyond reasonable doubt. The fact that the Accused is a person of good character is relevant to the likelihood of her having committed the offence alleged. I can take into account the Accused's good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown. Whether I do reason in that way is a matter for me. 3. None of this means, of course, that good character provides the Accused with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the Accused. What weight I give to the fact that the Accused is a person of good character is a matter for me, but I should take that fact into account in the manner I have indicated. Expert evidence 1. In this case, Lisa-Ann Wedervang was a senior forensic biologist called and who gave evidence in the form of an expert certificate was admitted under s 177 of the Evidence Act 1995 (NSW) (the 1995 Act), [2] together with oral evidence. William Lockhart provided an expert certificate under s 177 of the 1995 Act tendered as Exhibit D. An expert witness is a person who has specialised knowledge based on that person's training, study or experience. Unlike other witnesses, a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions. 2. Of course, the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach his or her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness's specialised knowledge. 3. Expert evidence is admitted to provide me with information and an opinion on a particular topic being: 1. In Ms Wedervang's case, a DNA analysis of the black and white checked face mask found at the subject premises on 21 December 2018; and 2. In Mr Lockhart's case, the extent of electricity consumption consumed by the hydroponic setup located at the subject premises on 21 December 2018. 1. These are matter within each witness's expertise, but which is likely to be outside the experience and knowledge of the average lay person. 2. The expert evidence is before me as part of all the evidence to assist me in determining whether the Accused knowingly took part in the cultivation of cannabis at the subject premises during the particularised dates. 3. I should bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. 4. Having said that, I am also mindful that the evidence of both witnesses has not been relevantly challenged. The Evidence Station Officer Geoffrey Wood 1. Station Officer Geoffrey Wood provided a statement that on 21 December 2018 he received notification of a house fire of a premises in Canley Vale (the Canley Vale Premises). He attended at 12.42pm, and knocked on the door to speak to residents but there was no answer. Fire fighters arrived at 12.43pm and he ordered them to use thermal imaging to check for signs of a possible fire within the roof space. An unusual heat pattern was observed in the eave near the electrical point of attachment. Thereafter fire fighters raised their extension ladder to the roof to remove roof tiles and reported a bank of electrical transformers wired in the roof space. Mr Wood thereafter requested the attendance of NSW Police and the Energy Authority. 2. Following arrival of Police, Mr Wood stated that fire fighters made entry into the premises and forced open a locked door to the top of the stairs and obtained access to a manhole in the upstairs ceiling. When no further sign of fire was discovered, the premises were handed over to NSW police. 3. Endeavour Energy were also contacted and a representative attended to render the premises safe from electrical hazards. It was then discovered that the hydroponic equipment was being powered by un-metered electricity through an electricity by-pass that had been installed before the premises' power meter. [3] Constables Holly Murdoch and Bol Bol 1. Constables Holly Murdoch and Bol Bol were the two officers who attended from NSW Police at 1.01pm on 21 December 2018. [4] Following entry into the premises they found that the bathroom had a large blue plastic drum with many water pipes and the rooms had multiple green plants in black pots which were believed to be cannabis, together with lights and electrical cords. 2. Fairfield detectives were then contacted. Senior Constable Khan, being the authorised officer, conducted an examination of the cannabis plants and certified them issuing a certificate under s 43 of the 1985 Act. [5] Suchada Huynh 1. Mrs Suchada Huynh gave evidence that she was the owner of the Canley Vale Premises Canley Vale. This was a property purchased by her late husband in 2001 or 2002. He died in 2015 and Mrs Huynh believes the property was transferred into her own name in 2019. 2. Mrs Huynh's evidence was that the property was rented to a couple whose wife's name was Lisa. It was first rented to them in 2011 or 12 for about a year and then "they" moved out and then rented it again after telephoning her husband. She described that "they" continued renting the property after her husband passed away. She described the payment of rent to be intermittent and that she had to go and collect the rent. Most of the time she met the wife who she knew as Lisa. 3. When the Accused and her husband came to rent the house a second time she stated that she was there, however, it was her husband who arranged everything. She stated that she was there during the discussion as was the Accused, who she knew as Lisa. The lease that was entered into was tendered as Exhibit B. The property was leased for a twelve month term at $600 per week. She described the property as newly renovated and "like new". Photographs of its condition were marked as Exhibit C. Rental payments were paid two weekly and sometimes after four weekly to her husband. She stated that sometimes her husband would collect it from their place and sometimes they would come to her house. When her husband would go to their house she would sit in the car. She had observed that they had planted some plants at the fence and they cut the grass. She stated that her husband would go to the veranda, and he never went in the house, rather "they" would come out. She stated that Lisa and her father sometimes handed the money but not her husband. Sometimes the money was paid every month and sometimes "they" would be late and the matter would be followed up by phone. She stated that she would call Lisa, not her husband as she did not have his number. 4. She stated that after the lease expired "they" continued to rent the property. 5. In November 2018 she stated that she went to Thailand. Prior to her leaving she recalled receiving a payment for rent in November from Lisa in cash. She stated that there was no conversation, just payment of two or four weeks rent. Coming to December 2018, she had not received the rent and tried to call Lisa. She couldn't get to contact her so she called own her daughter and asked her to go to the house. Her daughter called her and stated "Mum, I don't know what's happened, it looks like the door has been bashed in." She then returned to Australia. She could not remember when but said it may have been in December, but was most likely January. When she went to the house the front door was pushed in and kind of leaning on an angle. She came around the front and pushed the door ajar as far as she could so as to have a look inside. There was a lot of rubbish and she went upstairs and observed that it was "characteristic of planting marijuana." She then contacted police, and went to Cabramatta Police Station. 6. In cross-examination, Mrs Huynh admitted that she had not issued receipts and all payments in person were by cash or transferred to her account. She agreed that the reference in the lease to Van Nan Nguyen was Lisa's husband and that Lisa herself never signed the lease. 7. Mrs Huynh admitted that sometimes between 2012 and 2014 they obtained a mortgage on the house to finance renovations and Westpac required a valuation. She stated that she did not see a valuer and Westpac said they were going to send a valuer. Westpac later phoned and informed her and her husband that the loan had been approved. This was when her husband was alive. In re-examination she stated that she did not know if the renovations were for the Canley Vale Premises or another property. She stated that the only person she was aware that lived at the house was Lisa as she had phoned her to tell her that the bank was going to send a valuer. She stated that Lisa had also told her husband that her father was there as her father was in touch with him about repairing a motor. She stated that Lisa stated that her father was there, but whether he was or not, she didn't know. She stated that because she had not been inside the house she could not say who was actually living there. Thanapron Huynh 1. Thanapron Huynh was Mrs Huynh's daughter. Her statement of 22 March 2019 recorded that she had gone with her mother to the Canley Vale Premises on 24 January 2019, entering through the rear door. Subsequently contact was made with police and Detective Senior Constable Littlewood (DSC Littlewood) subsequently asked them to attend the Cabramatta Police Station. DSC Littlewood informed them that police had gone to the house in December and located cannabis plants growing there and her mother provided information as to who was living there. 2. She stated that a week or so later, her mother got a friend request on Facebook from the lady she rented the house to. She stated she looked at the profile and took a screenshot of it, which was in the name of Trinh Dung who is the Accused. By looking at the posted photographs, her mother was able to recognise the woman in the profile and her husband as the persons who rented the house. By looking at the photographs through the assistance of a friend, they were able figure out the address of the house depicted and collated this information together with the photos and placed them on a USB which was delivered to DSC Littlewood on 7 February 2019. DSC Daniel Littlewood 1. DSC Senior Daniel Littlewood gave evidence that he was the officer in charge of the investigation. His evidence was that on 21 December 2018 he received information as to hydroponically grown cannabis crop being located within the premises at the Canley Vale Premises. He then obtained a search warrant the same day. [6] Together with other police he searched the premises. On the upper level he observed that each of the four bedrooms had been converted to support the sophisticated hydroponic growing and cultivation of cannabis plants. Each of these rooms contained a number of cannabis plants at varying heights and maturity that were growing inside pots attached to a self-watering system. The growing of the plants was supported by lamp shades and powerful fluorescent globes with charcoal filters cut into the room's roofs. 2. The bathroom and kitchen had been converted for the storage of items associated or linked to the hydroponic cultivation of the cannabis plants, including bags and bottles of fertiliser. There was also a small linen cupboard on this level that was also being used to store fertiliser and other items. 3. A total of 97 plants were found in the four bedrooms together with shades, transformers and globes. Photographs of the plants and other items of interest were taken and are in evidence. [7] 4. Detective Senior Constable Rigney provided a statement dated 2 April 2019 [8] that he was the exhibits officer on 21 December 2018 and he took custody of the exhibits seized on the property. He stated that there were 97 cannabis plants that were seized and hydroponic equipment comprising 59 shades, 67 transformers and 64 globes. A number of other items were seized comprising 3 face masks, 2 blue gloves, a pair of blue pants, 2 resealable plastic bags containing cannabis leaf, a letter found near cannabis leaf, one pair of bondi socks, one pen, scales, 7 clear gloves, and 1 apple charger. The property Exhibit Form indicating where items were found was in evidence as Exhibit A, Tab 6.1. 5. When DSC Littlewood had a conversation with Mrs Huynh on 24 January 2019, he was provided with a photocopy of NSW Driver's licence in the name of Nhan Van Nguyen and an Origin Energy bill dated 15 January 2019 in the same name. [9] Following making enquiries in relation to the details, DSC Littlewood stated that the license number did not exist and he was unable to locate a person with the details on any database available to him. 6. On 7 February 2019, DSC Littlewood had a further conversation with Mrs Huynh and her daughter during which time he was supplied with the USB stick containing the Facebook photographs. 7. On 22 March 2019 he stated that he met again with Mrs Huynh and obtained a statement from her and was provided with a number of screenshots she took on her phone form the Facebook profile of Trinh Dung. 8. He thereafter arrested the co-Accused Minh Thanh Kha on 24 March 2019, the Accused's husband. Following the arrest of the Accused's husband, DSC Littlewood conducted as short search of Mr Kha's mobile phone and located a photograph that appeared to be a screenshot of an email taken on the 8 October 2018 to an address listed as lisatrinh@yahoo.com. He also located a photograph of a piece of paper outlining that rent needed to be paid to Mrs Huynh together with her Westpac account details. These documents were photographed and are to be found in Exhibit A, Tab 3.1 and 3.2. 9. On 25 July 2019 DSC Littlewood arrested the Accused, Ms Trinh. 10. Following her arrest, Senior Constable Hagarty obtained consent to a forensic procedure and a buccal swab was administered. [10] 11. Evidence tendered from Transport for NSW admitted into evidence [11] certifies in accordance with s 257 of the Road Transport Act 2013 (NSW) that from 20 August 2015 to 31 December 2019 the Accused vehicular license was recorded at addresses other than the Canley Vale Premises except for the period 19 September 2013 to 12 December 2013. 12. In cross–examination, DSC Littlewood stated that he had spoken to Mr Lockhart when he prepared his statement of expert evidence. He admitted receiving an email from him that indicted that the account started on 17 July 2016 but consumption indicated that it could have commenced as early as July 2015. DSC Littlewood denied suggesting a start date of January 2013. He stated that he had an opinion that many plants were processed over time but he did not know. He conceded that the earliest start date for the co-Accused's charge was 17 December 2018 stating:- … A: When the defendant's husband was arrested, we seized his mobile phone. Smartphones have a tracking system within them, if you go into a certain section of the phone, it literally lists everywhere that person has been for a period of time and where they've spent time. Every location like through the GPS tracking on the phone. The earliest GPS pin that phone had was from 17 December and it was to [the Canley Vale Premises]. [12] Lisa-Ann Wedervang 1. Ms Lisa-Ann Wedervang senior forensic biologist gave evidence that on 21 August 2020 she was given a report in relation to items that she was provided with. One of the items was a black and white checked face mask which was one of the items retrieved from the Canley Vale Premises on 21 December 2018. 2. Ms Wedervang Expert Certificate under s 177 of the 1995 Act was tendered as Exhibit A Tab 11. She recorded that on 3 April 2019 she received the tapelift of the inner lining of the black and white checked face mask. 3. Her findings were:- …the DNA recovered is a mixture that originates from at least four individuals. Thi Thuy Trinh and Thi Huy Duong cannot be excluded as two of the contributors to that mixture. Assuming there are four contributors, it is approximately or it is greater than a hundred billion times more likely to obtain this mixed profile if it originates from Thi Trinh and Thi Duong as well as two unknown, unrelated individuals. Rather than if it originates from four unknown, unrelated individuals in the Australian population. [13] 1. She stated that the DNA in the minor component was too weak as there wasn't sufficient DNA and because there were two more contributors from which "Thi Trinh" and "Thi Duong" could not be excluded as those two major contributors. The DNA was recovered from a tape lift of the inner lining. 2. In cross-examination she stated that she could not say where the face mask was when the DNA was placed on it, when the DNA was placed on it, whether it was placed on directly or by a third party, nor how long it had been on the mask. 3. The Crown conceded during submissions that the name "Thi Duong" formed no part of the Crown case. William Lockhart 1. William Lockhart is a Revenue Protection Manager of Endeavour Energy and an Authorised Officer who provided an expert certificate under s 177 of the 1995 Act. 2. His evidence was that on 4 June 2020 he received an email form DSC Littlewood that contained information as to the hydroponic equipment that was identified within the Canley Vale Premises. 3. Based on the list of hydroponic equipment and from his extensive experience in the electrical operation of enhanced indoor hydroponic setups, he was able to estimate that the electricity that was required to run the equipment as identified within the dwelling house was 480.96kWh per day. 4. Having perused Endeavour Energy's records and from when the previous occupant finalised their account on 5 March 2012 through to 17 July 2016 when the account in the name of Nhan Nguyen was established, there had been no other accounts established. 5. He stated that the occupant and consumption data indicates to him that the hydroponic setup would have been operating from 16 January 2013 through to 21 December 2019. During that period, the daily average consumption was recorded by the electricity meter as 13.13kWh, with the highest daily average during the same period being 28.51kWh and the lowest 6.72kWh. 6. He estimated the stolen electricity used via the illegal bypass system to power the hydroponic setup to be in the vicinity of $312,383.52. 7. In estimating the value of electricity used via a bypass he stated that he used the following formula; watts x hours x days/1000 = total kilowatt hours, then multiply by the retail value). To obtain the watts value and hour value, he referred to the list of the hydroponic equipment as was provided by NSW police and his experience in the operation of hydroponic setups. He obtained the days based on evidence at the dwelling, information from the police, and also with occupant and electricity consumption history at the address from Endeavour Energy's records. He stated that the retail value varies based on the different retailers; however, it is currently around 30 cents per kilowatt hour. 8. Mr Lockhart was not required for cross-examination. Inferences 1. I may in my role as the Judge of the facts, draw inferences from direct evidence. I may only draw an inference adverse to the Accused from proven facts if such inference is a rational inference that can be properly drawn from those facts. 2. Here the Crown asserted that I should draw an inference that the Accused was a lessee at the relevant time based on the facts that:- 1. The lease was entered into and there was a continuity of the lease up to the time of police involvement evidenced by the absence of any termination action and the energy bill from 16 October 2018 to 15 January 2019; 2. The Accused was present when the lease was entered into and was aware of the fact that a false name was used by her husband; 3. The Accused was the only contact person for the landlord in respect of the tenancy; and 4. Despite the signature on the lease, the Accused was the person who, for the most part, would attend to payment in person of the rent most frequently, with the landlord having only met her husband a handful of other occasions. 1. The Crown also asserts that I should draw an inference based on the presence of the mask in the living quarters of the property and its potential association with other items linked to the cultivation that the Accused was present in the property at a point of time wearing the mask. 2. The Defence contended that it was illogical to contend that the Accused was a lessee. There was only one lessee indicted on the lease and it wasn't open to infer that the Accused was a lessee simply on the basis of her having paid rent. The Defence accepted that at one point she was an occupier consistent with the evidence in Exhibits 1-3 and the evidence that she disclosed the subject address to the RMS during the period 19 September 2013 and 12 December 2013. Circumstantial Case 1. In this case, the Crown relies on circumstantial evidence. The Crown has asked me to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further facts. 2. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. 3. But in a circumstantial case no individual fact can prove the guilt of the Accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then I am asked to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the Accused. I am then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts is that an accused person is guilty of the offence charged. 4. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the Accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the Accused or whether there is any explanation for that particular fact or circumstance which is inconsistent with the Accused's guilt. 5. The correct approach is first to determine what facts I find established by the evidence. As I have already stated, any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the Accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of guilt beyond reasonable doubt. It follows that I must find the Accused not guilty. 6. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict the Accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the Accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the Accused guilt. 7. Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. 8. The Crown contends that an inference can be drawn the Accused had been in the premises at a point of time wearing the mask based on:- 1. The Accused being a lessee of the subject property and having the capacity to control its use, the presence of DNA on the mask and the evidence relating thereto by Ms Wedervang, being its location as found in the living quarters and its potential association with other items including masks and gloves, and that it is not an unrelated moveable item like a water bottle. 2. Further the Crown relies on the evidence of Mr Lockhart as to how long the hydroponic setup was operational for. Piecing all this evidence together, the Crown says that I would be satisfied beyond reasonable doubt that the Accused knowingly took part in the alleged cultivation of cannabis in accordance with s 6(1)(c) of the 1985 Act. 1. The Defence contends that I would not be so satisfied as the evidence falls short of establishing this element. 2. In order to satisfy me beyond reasonable doubt of the Accused's guilt of the offence, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the Accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown's circumstantial case has failed. Elements of the Offence 1. The Accused is charged with one count of knowingly take part in the cultivation of a prohibited plant. 2. The elements of the offence are the Accused:- 1. Knowingly took part in the cultivation of prohibited plants; and 2. The number of prohibited plants was not less than the commercial quantity applicable to prohibited plants. Cultivate 1. There is no issue and I am satisfied beyond reasonable doubt that in the period leading to 21 December 2018 cannabis (a prohibited plant) was being cultivated at the premises at the Canley Vale Premises. 2. Whilst some suggestion was advanced by the Defence that the plants could have been transported to the site, in my view that is implausible in light of the cultivation infrastructure present, the varying degrees of plant maturity and the other ingredients and equipment present. Commercial quantity 1. The number of prohibited plants must be not less than the commercial quantity applicable to prohibited plants. 2. Commercial quantity for cannabis plants enhanced by indoor means is 50. [14] 3. In this case it was not in issue that the number of the plants located at the premises by police was 97 cannabis plants. Further it was not in issue that the plants were propagated by enhanced indoor means. As such I am satisfied beyond reasonable doubt that the number of prohibited plants (enhanced by indoor means) was not less that the commercial quantity. 4. The main issue between the parties was the Accused's knowledge and whether she took part as the Crown alleges. Knowledge 1. It is the Accused's actual knowledge or belief which must be proved by the Crown, and not simply what some person in the Accused's position may have known or believed. However, I may infer or conclude what a person knew or believed from considering all the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on mere speculation or suspicion. Because of the requirement that the Crown proves this element of the offence beyond reasonable doubt, any inference or conclusion I draw about the Accused's knowledge or belief must be the only rational inference or conclusion open on the evidence. In this context, I may consider as one of the circumstances to be taken into account what a reasonable person in the position of the Accused would have known or believed cultivation of cannabis was taking place at the subject premises. However, what I am concerned with is whether I am satisfied beyond reasonable doubt that the Accused herself had this knowledge or belief. Take part in 1. The Crown here relies on s 6(1)(c) of the 1985 Act. Under that section, a person take part in the cultivation or a prohibited plant if:- … (c) The person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates. 1. For an occupier the Crown must establish that Accused had the requisite degree of control over the premises so as to exclude from them those who might otherwise intend to carry out forbidden activities on the premises. [15] 2. The Crown asserts that I would be satisfied that the Accused knowingly took part in the cultivation based on the inferences it seeks to draw and its circumstantial case. 3. On the evidence I am unable to be satisfied that the Accused was a lessee of the subject premises. Whilst she was the contact point and paid the rent, there was evidence that her father also did so, although she was the predominant person. The initial lease arrangement was only with one person. Whilst I am satisfied on the evidence that the Accused was an occupier of the subject premises at some point during the tenancy, as has been conceded by the Defence and acknowledged in the Exhibits 1 to 3, I am not satisfied that she was an occupier at the time of the relevant cultivation or had been present whilst it occurred. The Crown in any event did not advance a case on this basis. The evidence of Mrs Huynh, whilst acknowledging that the Accused made the last payment of rent in November 2018, accepted that this was at her house and not at the Canley Vale Premises. Payments prior to that were described as being both collected from the rented premises, paid at the landlord's residence and also paid directly into the relevant bank account. 4. Without the relevant role relating to the premises the Crown cannot establish that the Accused took part. 5. Beyond that the evidence as a whole does not satisfy me beyond reasonable doubt that the Accused knowingly took part. The evidence of Mr Lockhart does not establish when the hydroponic setup was initiated at the premises. As the Crown appeared to acknowledge, that conclusion was based on the evidence of the dwelling, the information provided by police as well as the electricity consumption at the address. However there is no evidence as to the amount of electricity consumed through the electrical by-pass. Mr Lockhart's conclusion and estimate is a construct based on an assumption that the by-pass must have commenced towards the outset of the tenancy. On the evidence I cannot be satisfied that it occurred that any time other than proximate to the cultivation in question. 6. In respect of the face mask, I am likewise unable to draw the inference the Crown seeks based on the nature of the item and the limitations that pertain to it in light of the evidence of Ms Wedervang. 7. It may well be the case that the Accused, knowing that the lease was entered into using a false name on 10 June 2012, was aware that nefarious activities may occur there. However that knowledge falls well short of establishing that she knowingly took part in the subject cultivation. 8. For these reasons I find the Accused not guilty on the count on the indictment. ********** Endnotes 1. (1998) 197 CLR 250. 2. (2015) 256 CLR 47; [2015] HCA 29 at [6] and [52] (French CJ, Bell, Keane and Nettle JJ with whom Gageler J agreed). 3. Exhibit A, Tab 11. 4. Exhibit A Tab 8 at [8]. 5. Exhibit A, Tab 8 and 9. 6. Exhibit A, Tab 10. 7. Exhibit A, Tab 2.2. 8. Exhibit A, Tab 2.3. 9. Exhibit A, Tab 6. 10. Exhibit A, Tab 2.4. 11. Exhibit A, Tab 4.1. 12. Exhibit A, Tab 2.1. 13. T 42.43-.50. 14. T 35.43-.50. 15. Schedule 1 of the 1985 Act. Amendments 19 November 2020 - Typographical error amended in [1] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2020