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District Court 4 November 2020

R v Trinh

[2020] NSWDC 688

Drugs
CRIMINAL LAW BY ENHANCED INDOOR MEANS JUDGE ALONE TRIAL ACCUSED NOT A SIGNATORY TO THE LEASE 97 CANNABIS PLANTS FOUND AT PREMISES CHARACTER EVIDENCE

Citation: R v Trinh [2020] NSWDC 688
Court: District Court of New South Wales
Date: 4 November 2020
Judge: Hatzistergos DCJ

Background

The accused was charged with knowingly taking part in the cultivation of 97 cannabis plants (not less than the commercial quantity) at a residential property in Canley Vale, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). The alleged offending period spanned from June 2012 to December 2018, when police discovered a hydroponic cannabis setup at the premises.

The accused's husband had originally signed the lease using a false name. The accused herself was never a signatory to the lease. However, she acted as the point of contact with the landlord and made rent payments on behalf of the household. Police also found a face mask at the premises from which the accused's DNA could not be excluded.

The accused elected a judge-alone trial, did not give evidence, and did not participate in a police interview. The Crown's case was entirely circumstantial.

  • Whether the Crown proved beyond reasonable doubt that the accused knowingly took part in the cultivation of the cannabis plants at the premises.
  • Whether the accused's role in paying rent and liaising with the landlord was sufficient to establish that she "took part" in the cultivation.
  • Whether the DNA evidence connecting the accused to the face mask found at the premises supported the necessary inference of knowing participation.
  • Whether the expert evidence on electricity consumption established the timing and extent of the accused's involvement in the hydroponic setup.

Decision

Hatzistergos DCJ applied the standard criminal directions applicable in a judge-alone trial under s 133 of the Criminal Procedure Act 1986 (NSW), including the presumption of innocence, the Crown's burden of proof beyond reasonable doubt, and the requirement that no adverse inference be drawn from the accused's election not to give evidence or to participate in a police interview. The accused's prior criminal history was tendered by the Crown with the defence's consent, and the judge accepted that this established good character, which was taken into account in the accused's favour.

On the question of "taking part," the judge found that the Crown had not established a sufficient connection between the accused and the cultivation activity. While the accused paid rent and had contact with the landlord, the evidence did not demonstrate that she occupied or controlled the premises in a way that linked her to the cannabis operation. The Crown did not advance the case on the basis that she was an occupier.

The electricity consumption evidence given by expert William Lockhart did not establish when the hydroponic setup was initiated. His estimate rested on an assumption that the electrical bypass commenced near the start of the tenancy, but there was no direct evidence of the amount of electricity consumed through the bypass. The judge was not satisfied the setup predated the period proximate to the actual cultivation found.

The DNA evidence from the face mask was similarly insufficient. The finding that the accused "could not be excluded" as a contributor did not permit the court to draw the inference the Crown sought, given the acknowledged limitations of that evidence. Even accepting that the accused may have known the lease was entered in a false name, and thus may have suspected unlawful activity at the premises, this fell well short of proving she knowingly took part in the cultivation itself. The accused was found not guilty.

Orders Made

• The Accused is found not guilty on the count on the indictment.

Key Takeaways

  • A conviction for knowingly taking part in drug cultivation under s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) requires proof beyond reasonable doubt that the accused had actual knowledge of, and participated in, the cultivation. Mere proximity to or connection with the premises is insufficient.
  • The District Court treated expert evidence on electricity consumption as unreliable to establish timing where the underlying estimate depended on an unproven assumption about when an illegal electrical bypass commenced.
  • DNA evidence that cannot exclude an accused as a contributor to a sample does not, without more, support an inference of the knowing participation required for a drug cultivation offence.
  • Where a Crown case is entirely circumstantial, each inference relied upon must be established beyond reasonable doubt; suspected awareness of "nefarious activities" at a premises does not substitute for proof of knowing involvement in a specific criminal act.
  • Good character evidence, admitted through the accused's prior criminal history, formed one relevant factor that Hatzistergos DCJ took into account in assessing the likelihood that the accused committed the offence charged.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 6, 23(2)(a), 43
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW), s 177
- Road Transport Act 2013 (NSW), s 257

Cases
- 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