IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	 Revised
Not Restricted
Suitable for Publication	
Case No. CR-20-01751

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
THIEN DINH NGUYEN		

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JUDGE:	Lyon	
WHERE HELD:	Melbourne	
DATE OF HEARING:	8 June 2022	
DATE OF JUDGMENT:	8 June 2022	
CASE MAY BE CITED AS:	DPP v Nguyen	
MEDIUM NEUTRAL CITATION:	[2022] VCC 850		

REASONS FOR JUDGMENT
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Subject:			Criminal Law			
Catchwords: 	
Legislation Cited:			Criminal Procedure Act 2009; Jury Directions Act 2015
Cases Cited:			Falzon v R [2019] VSCA 294		
Judgment:			Not Guilty 	

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Mr Simon Lee		
			
For the Accused	Mr John Moore	Paul Vale Criminal Law	

HIS HONOUR:

1	The accused Thien Dinh Nguyen was charged on indictment L11115143 with one charge of Cultivation of a narcotic plant – commercial quantity and one charge of theft. 
2	The accused has pleaded not guilty to those charges. 
Trial by Judge-Alone
3	This case is being tried by me as judge-alone.  The accused’s application to be tried by judge-alone was granted on 10 May 2022, pursuant to s.420D Criminal Procedure Act 2009 (CPA). 
4	In hearing this matter I may make any decision that could have been made by a jury.  My decision will have for all purposes the same effect as a verdict of a jury.
5	Section 4A Jury Directions Act 2015 (‘JDA’) applies in this case. 
6	Section 4A provides that the Court's reasoning with respect to any matter in which Parts 4 and 7 apply must be consistent with how a jury would be directed in accordance with the Jury Directions Act.  Further, I must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving.
7	I must apply all directions of law to myself that would have been given to a jury in this case. 
8	In returning a verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.
The Issues at Trial 
The Prosecution Opening
9	By the Further Amended Summary of Prosecution Opening dated 20 May 2022 and Mr Lee’s opening before me on 25 May 2022, the Crown opened its case with the following essential propositions:
10	Victoria Police officers executed a search warrant on 6 May 2020 at 1 Chevrolet Avenue Shepparton. No one was present at the time of the warrant execution.  A hydroponic cannabis growing operation was discovered at the house. The operation included the location of lights, irrigation, vast amounts of electrical equipment, growing agents and the use of false walls.
11	The botanist Emily Sowter identified 183 cannabis plants weighing a total of 247.6 kg (excluding roots) growing at the premises.
12	The cannabis was found growing in 8 rooms as follows:
•	Room 3	36 plants	103.4 g  
•	Room 4 	17 plants	54.80 kg
•	Room 5 	12 plants	38.54 kg
•	Room 9 	41 plants	14.36 kg
•	Room 10	36 plants	8.78 kg
•	Room 11	12 plants	33.46 kg
•	Room 13	17 plants	57.48 kg
•	Room 14 	12 plants	40.14 kg
13	An electrical bypass was located in the wall of the premises.
14	The accused Thien Nguyen was arrested in a car driven by Andy Du on 6 May 2020. Mr Nguyen made a no comment record of interview.  (I do not draw any adverse inferences from this fact).
15	The Crown case for Mr Nguyen’s guilt is based entirely on circumstantial evidence. Although the Crown cannot exclude the possibility that others were involved in the cultivation, the Crown alleges that the accused is connected to the cultivation and that the only reasonable inference to be drawn is that the accused participated in the cultivation of a commercial quantity of cannabis at the house, including by attending and nurturing the plants.
The Defence Reply
16	The defence response dated 1 July 2021 and summarised by Mr Moore of counsel before me on 25 May 2022, put the following matters squarely in issue. 
17	By his plea of not guilty, Mr Nguyen contends that he:
•	did not participate in the cultivation of a crop at the premises;
•	had no knowledge of the quantity or weight of plants growing at the premises; and/or
•	did not intend to cultivate a commercial quantity of cannabis (that is the cultivation of 100 or more plants, or plants weighing 25 kg or more (excluding roots)).
General Directions of Law
18	I now refer to the general directions given in a criminal trial which I must apply.
Presumption of Innocence
19	In all criminal trials, an accused person is presumed innocent of the charge unless and until they are proved to be guilty.
Burden and Standard of Proof
20	The prosecution bears the burden of proving the case against the accused.  No accused person must prove their innocence.  The prosecution always bears the burden of proving the accused’s guilt. 
21	The accused may be found guilty of a charge only if the prosecution has proved its case beyond reasonable doubt; the highest standard known to our law.  Proof to any lesser extent must result in a verdict of not guilty.  
Decide Solely on the Evidence 
22	I must decide the case only on the evidence led in this trial. I must not have regard to any media reporting or social media, or conduct any research about the parties or witnesses. The transcript of the record of interview and transcript of the evidence in this trial are to be used as aids and not as a substitute for the evidence adduced at trial. The addresses of counsel are not evidence.
23	The evidence adduced in this trial is the evidence of each of the witnesses, the exhibits and the tendered witness statements.
The Evidence
Witness Evidence
24	The witnesses called were as follows.
25	Emily Sowter is a VFSL botanist who gave evidence and produced the certificate of botanist certifying that she attended at 1 Chevrolet Avenue Shepparton on 6 May 2020 and found 183 cannabis plants weighing a total of 247.66 kg.  Ms Sowter described the hydroponic set-up as a commercial enterprise involving the likely mixing of nutrient solutions in the bathtub, reservoirs for water and pumps to feed the plants running to several of the rooms.  These rooms were programmed to “set and forget” watering and lighting programs. Lighting to several rooms was set to an 18:6 hour cycle of light-dark; indicating that the cannabis plants in those rooms were in a vegetative growth state. Lighting in other rooms was set at 12:12 hours; indicating they were at the flowering state. Plants in room three were immature plants being propagated in Jiffy pots on a bed of coco peat. The plants were being grown in a black grow tent.
26	Ms Sowter gave evidence of the number of plants and await of those plants (excluding roots) room by room. I have already referred to that aspect of her evidence in the course of my description of the rooms in the Crown opening.
27	There was no irrigation in rooms 3 and 10. The plants in these rooms required hand watering.
28	Ms Sowter produced a number of photographs of the hydroponic operation. 
29	Janelle Heffernan is a VFSL DNA scientist.  Ms Heffernan gave evidence of DNA testing performed by another scientist on items seized from 1 Chevrolet Avenue in the course of the search warrant.  I shall outline the testing with respect to each item in turn.
30	First, Ms Heffernan reported the testing on item 4, a drink bottle found in the kitchen (room 8 on the floorplan of the premises, exhibit C).  Ms Heffernan gave evidence from the notes, and referred to the Deconvolution Report.  Two swabs were taken from the drink bottle which revealed three contributors to DNA found on the bottle.  
31	The amount of DNA was expressed for the first contributor as 3580, but the unit of measurement was not otherwise described. The second amount was measured as 184, and the third as 80.  The first contributor contributed 93% of the DNA found. The second contributor (best aligned with Mr Nguyen’s profile), contributed 5% of the DNA. The third contributor contributed 2% of the DNA.
32	The DNA profile obtained was compared with DNA profile of Mr Nguyen. Initially, scientists used the Australian Caucasian database to calculate the likelihood ratio. It concluded that the DNA profile of the second contributor was 750 times more likely to be from Mr Nguyen and 2 other contributors than if it was from 3 other, unknown contributors.
33	When that calculation was made using the Vietnamese database, the likelihood ratio was reduced to 66 times more likely to be from Mr Nguyen and 2 other contributors than if it was from 3 other, unknown contributors.
34	The second item on which Ms Heffernan reported was a cigarette butt found on the floor of the entrance hall to the house. The DNA profile of the contributor was calculated as over 100 billion times more likely to be from Mr Nguyen than from another unknown contributor.  Although the Australian Caucasian database was used to perform this calculation, Ms Heffernan stated that the calculation using the Vietnamese database would not produce a different figure given the high likelihood ratio.
35	LSC Warren Lomas took photographs of the operation before it was dismantled (exhibit D).
36	Immediately before 6 May 2020, the informant DSC Adam Ashley was tasked with investigating a potential hydroponic crop growing operation at 1 Chevrolet Avenue. Powercor Australia Ltd gave evidence of very high readings which could damage the electricity infrastructure and sought immediate intervention. 
37	Mr Ashley attended pursuant to a search warrant on 6 May 2020. He could smell cannabis from 5 to 6 metres away as he approached the house. The smell grew stronger as he approached the front door. When police entered, he stated that the smell was overwhelming. The house reeked of cannabis.
38	There was no one present at the house. As police move through the house, Mr Ashley noted that there were multiple rooms with false walls set up. He found eight rooms were used for the hydroponic growing of cannabis. For safety reasons, police then left the premises to enable Powercor Australia Ltd to locate and remove the electrical bypass.
39	The electrical bypass was plastered behind the wall in room one.
40	The botanist, Ms Sowter processed each room. Police did their own count of the number of plants and photographed them.
41	Police found an AGL power bill for $331 addressed to 3 Chevrolet Avenue with a receipt for the sum of $250 paid on 5 May 2020.  Mr Ashley produced CCTV footage of the payment of the bill at Australia Post on 5 May. The defence admits that Mr Nguyen attended and paid the bill.
42	The prosecution stated that there is no link between 1 and 3 Chevrolet Avenue.
43	Mr Ashley was advised that 2 men were in custody. After a considerable delay, police were able to arrange a Vietnamese interpreter. Mr Nguyen was given legal advice. He made a no comment record of interview.
44	Mr Ashley was advised that fingerprints were obtained from a bowl in room 3, a fertilizer bottle and on the shower screen in room 8. These prints matched the accused.  Thirty-six plants were growing in room 3 (in a black tent/box). There were no plants in room 8.
45	Mr Ashley referred to photographs which showed the hallway and the view of power cords, electrical set-up, ladders and large chemical canisters which were visible to a person going up the hallway as far as room 8.
46	In cross-examination, Mr Ashley stated that Mr Nguyen has no prior convictions or subsequent matters.
47	There is no further forensic or other evidence which links Mr Nguyen to the offending.
48	Several other persons of interest were identified in the course of the investigation, but no other arrests were made (that is, apart from Mr Du at the time Mr Nguyen was arrested).
49	There was a pillow and doona on a couch in room 1, but no personal items or clothing were located in the house
50	In re-examination, Mr Ashley stated that at arrest, Mr Nguyen produced a Northern Territory licence to establish his identity.
51	Exhibits received were: 
•	Certificate of Botanist – 183 plants, 247.66 kg cannabis plants (excluding roots) (Exhibit A). 
•	Photographs of the crop and house at 1 Chevrolet Avenue Shepparton (Exhibit B).
•	Floor plan of 1 Chevrolet Avenue Shepparton (Exhibit C).
•	Folder of photographs from LSC Warren Lomas (Exhibit D). 
•	Supplementary statement of the informant DSC Adam Ashley dated 17 May 2022 (Exhibit E).
•	CCTV footage taken from Australia Post on 5 May 2020 (Exhibit F).
•	Statement of Detective Leading Senior Constable Paul Van Emmerik (Exhibit G) – DLSC Van Emmerik arrested the accused on 7 May 2020. Mr Van Emmerik conducted a search of the Toyota Kluger car being driven by Du at the time of arrest.  Mr Van Emmerik located two bags of soil covered by a blanket in the rear cargo area of the vehicle; two electrical transformers in the rear footwell (covered) and receipts of $9,000 of growing agents behind the passenger seat, the same type that were located at Chevrolet Avenue. When he questioned the accused he was informed that Mr Nguyen did not speak English.
•	Statement of Glen Turner (Exhibit H) – Australia Post worker. On 5 May 2020 at approximately 2:42 pm he served the accused at the counter. The accused attended to pay an electricity bill dated 21 November 2019 for 3 Chevrolet Avenue in the sum of $331.79. Mr Nguyen did not speak English.  Mr Turner spoke to an unidentified female on the phone passed to him by the accused, and then the accused paid $250.00 off the bill with cash.
•	Statement of First Constable Simon Bingham (Exhibit J) – FC Bingham attended 1 Chevrolet Avenue on 6 May 2020 to execute the search warrant. On 7 May 2020 Mr Bingham also attended Shepparton Towing to conduct a search and seize of the Toyota Kluger vehicle. The following items were seized: a Caltex receipt found driver's side door, a garage door remote in the centre console, two transformers on the floor behind the driver's seat, a $9,000 receipt behind the passenger seat and two packets of fertilizer in the boot.
•	Statement of Leading Senior Constable Annie Clark (Exhibit K) – LSC Clarke attended Shepparton Motor Panel on 7 May 2020 and took a series of photographs of the vehicles and the items removed from the vehicle. LSC Clark also conducted a forensic examination on the vehicle and all examined areas were of no value.
•	Statement of Sergeant Mark Washington (Exhibit L) – Sgt Washington was present with SC Barker during the arrest of Du on 6 May 2020. 
•	Statement of Sergeant Jason Frost (Exhibit M) - On 6 May 2020, Sgt Frost attended Chevrolet Avenue to execute the search warrant. He assisted with securing the exhibits. Sgt Frost conducted an initial DVD record of interview with Du and Nguyen. Both interviews were suspended as the accused’s both required an interpreter. Sgt Frost assisted Senior Constable Ashley with subsequent record of interviews. 
•	Statement of Mark Buckley (Exhibit N) – Licensed Electrical Inspector/Licensed Electrician. Mr Buckley was requested by Powercor Australia Ltd on 6 May 2020 to investigate alleged non-compliance of electrical wiring. Mr Buckley located an illegal connection concealed in the wall cavity below the meter box to unmetered consumer mains. 
•	Statement of Senior Constable Sarah Trewin (Exhibit O) - On 6 May 2020, S/C Trewin attended 1 Chevrolet Avenue to execute the search warrant. She located 3 power bills and 1 electricity bill with a payment receipt from Australia Post in the lounge room. On 7 May 2020, S/C Trewin attended Australia Post to enquire about the electricity bill. She viewed and received the CCTV footage of the bill being paid, and obtained photographs and a copy of the CCTV footage. S/C Trewin obtained a statement from Glen Turner. She later attended Chemist Warehouse about a receipt located at Chevrolet Avenue. She viewed CCTV footage and observed a female of Asian appearance making a purchase. 
•	Statement of Senior Constable Lance Wiltshire (Exhibit P) - On 6 May 2020, S/C Wiltshire attended Chevrolet Avenue to execute the search warrant and was in attendance when the Kluger was intercepted.
•	Statement of Senior Constable David Barker (Exhibit Q) – S/C Barker intercepted the Toyota vehicle, activated his body-worn camera which recorded the initial interaction with Du and Nguyen, and then conducted a pat-down search of Du. 
•	Statement of First Constable Nathan Berryman (Exhibit R) – On 6 May 2020, First Constable Berryman attended Chevrolet Avenue to execute the search warrant. FC Berryman was present with Sgt Washington and other officers when the accused was pulled over in the Toyota Kluger. F/C Berryman processed the accused when he was arrested and corroborated the DVD interview.
•	Statement of Robert Skvor (Exhibit S) Mr Skvor is a Forensic officer. He concluded that the accused’s fingerprints were found on a bowl in the kitchen (room 3), on a fertiliser bottle (room 8) and the shower screen in the bathroom (room 8).
•	English translation of receipt in Vietnamese  (Exhibit T).
•	Deposition Photographs – 1- 165 (Exhibit U). 
52	As the Judge of the facts and the law, I must find the facts and draw inferences from the evidence, as well as apply the law to the facts as I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately, and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
Inferences
53	I note that the Crown case for guilt relies entirely on circumstantial evidence – the accused was not observed or intercepted at the house, and has made no admissions to the offending.
54	This means that when putting all the pieces of circumstantial evidence together, I must take care not to jump to conclusions.
55	I may only return a verdict of guilty on the charge if I am satisfied that guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused’s innocence, then the prosecution will not have proved Mr Nguyen’s guilt beyond reasonable doubt, and I must acquit him.
56	The evidence must be considered as a whole and not by a piecemeal approach to each particular circumstance.
57	I may only consider alternative hypotheses which are consistent with the facts which I find to have been established. I cannot have regard to any hypothesis or explanation which is inconsistent with the established facts.
58	I must assess and determine the credibility and reliability of each witness called and I may accept all, some, or none of a witness' evidence.  I must base my verdict only on evidence I find to be credible and reliable. 
Expert Opinion
59	I heard expert evidence from prosecution witnesses Janelle Heffernan, Emily Sowter and the statement of Robert Skvor.
60	The evidence of the three experts was essentially unchallenged. Rather, Mr Moore made submissions regarding the use to be made of some of this evidence; in particular an aspect of the DNA opinion evidence in relation to the drink bottle found in room 3.
61	I recognise that I am not required to accept the opinion of the experts. Even as experts in their fields, their opinions were merely pieces of evidence like others which I may accept or reject.
62	When I come to consider the evidence of each expert I will have regard to:
•	The expertise of the witness;
•	The way they set out their opinions;
•	The quality of the reasons for the opinions and the facts offered in support of their conclusions;
•	The whole of the cross-examination; and 
•	Whether I consider they appeared to be impartial.
Accused did not give / call evidence
63	Thien Nguyen did not give or call evidence in this case. That is his right. It is for the prosecution to prove its case beyond reasonable doubt, and the accused is not required to give or call any evidence. The onus of proving the accused’s guilt always remains on the prosecution, regardless of whether the accused chooses to give/call any evidence.
64	This means that the fact that Mr Nguyen did not give/call evidence cannot be used as evidence against him. That fact is not evidence in the case – and I must decide the case only on the evidence.
65	The fact that Mr Nguyen did not give/call evidence does not constitute an admission by the accused, and may not be used to fill gaps in the evidence led by the prosecution. It does not add to or strengthen the prosecution’s case in any way. It proves nothing at all.
66	I must not draw any conclusions against the accused because he did not give/call evidence, or even consider the fact that Mr Nguyen did not give/call evidence when deciding whether the prosecution has proved its case beyond reasonable doubt.
67	I must not speculate about what Thien Nguyen might have said if he had given evidence. I must decide this case solely on the evidence which has been given in court.
Good Character 
68	In this case, I have heard evidence that Thien Nguyen has no prior criminal convictions and no subsequent convictions.
69	It is therefore open for me to conclude that Thien Nguyen is a person of good character.  If I accept that Thien Nguyen is a person of good character, then I can use this fact when determining the likelihood that Mr Nguyen committed the offences charged. As it is generally believed that a person of good character is unlikely to commit a criminal offence, I may be less willing to accept the prosecution’s allegation that Mr Nguyen committed that offence than I would be if he was not a person of good character.
70	Of course, this does not mean that I must find Mr Nguyen not guilty if I accept that he is a person of good character. The mere fact that a person is of good character cannot alter proven facts – it can only help me to determine whether or not those facts have been proven. In addition, I should keep in mind the fact that a person who has previously been of good character can commit a crime for the first time.
Elements of the Charge
Cultivation of a narcotic plant – commercial quantity 
71	To prove this crime, the prosecution must prove the following three elements beyond reasonable doubt:
One - the accused intentionally cultivated a plant.
Two - the plant cultivated by the accused was a narcotic plant.
Three - the accused intentionally cultivated a commercial quantity of the plant.
72	As I have already stated, a commercial quantity of cannabis is defined as not less than 100 plants or 25 kg. 
73	The first element relates to what the accused did. He must have intentionally cultivated a plant.
74	The law defines cultivation to include tending and nurturing a plant.  These are the aspects of cultivation relied upon by the Crown in this case.  The defence submits that whilst there may be evidence of Mr Nguyen’s presence at the property, there is insufficient evidence that he tended or nurtured plants.
75	The second element that the prosecution must prove beyond reasonable doubt is that the plants cultivated by the accused were narcotic plants.  This element is not in dispute.
76	The third element that the prosecution must prove beyond reasonable doubt is that the accused intentionally cultivated not less than a commercial quantity of plants. 
77	There are two parts to this element. The prosecution must prove that the accused cultivated not less than a commercial quantity of Cannabis L. They must also prove that the accused intended to cultivate not less than a commercial quantity of the plant in question.
78	I conclude that 183 plants / 247.66 kg (excluding roots) constitutes a commercial quantity of Cannabis L. The first part of this element will therefore be satisfied if the prosecution has proved, beyond reasonable doubt, that Mr Nguyen cultivated not less than the commercial quantity of cannabis. 
79	It is not necessary for the prosecution to establish the precise number and/or the weight of plants cultivated by the accused for this part of the element to be met. They only need to establish that the amount cultivated was not less than the amount specified by the law.
80	In determining whether or not the accused intended to cultivate not less than the commercial quantity of plants, I will need to decide if I can draw an inference from all of the evidence in the case that he had this intention.  The intention may be proved by either knowledge or awareness that there was a significant and real chance that he was cultivating not less than a commercial quantity of plants. 
Theft
81	To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:
One - the accused appropriated property that belonged to another person.
Two - the accused intended to permanently deprive that person of his or her property.
Three - the accused acted dishonestly.
Appropriation of Property Belonging to Another
82	The only element in issue is whether Mr Nguyen appropriated that property.
83	It is not in issue that the electricity belonged to Powercor Australia Ltd when it was appropriated. 
Final Addresses
The Crown Final Address
84	Mr Lee for the Crown submitted that the Crown case is proved on charge 1 by a combination of the following:
85	The DNA on the water bottle and the cigarette butt is evidence that places Mr Nguyen at the house.  There is no evidence to suggest or support the proposition that Mr Nguyen’s DNA was secondarily transferred to the water bottle.
86	Mr Nguyen’s fingerprints on the bowl, fertilizer bottle and shower screen lead to the conclusion that he was in the house and entered sufficiently into the house that he could see the indicia of the hydroponic operation, and down to the end of the hallway to the rooms where cannabis was grown. In addition, the overwhelming smell of cannabis pervaded through the whole house.
87	More specifically, there are seven aspects to the Crown’s circumstantial case for guilt:
•	First, the Australia Post evidence proves that Mr Nguyen paid the AGL bill. Then, that bill was found in room 1 at number 1 Chevrolet Avenue.  Both Mr Lee and Mr Moore emphasised that there was no further link or conclusion that could be drawn from the bill. Mr Lee submitted that it may be speculated that the bill was partly paid because of a mistaken understanding that it related to 1 Chevrolet Avenue and not 3 Chevrolet Avenue. In any event, I will not use the evidence beyond its submitted purpose.
•	Second, the cigarette butt in the hallway can only be attributed to Mr Nguyen;
•	Third, the water bottle in room three provides some evidence of Mr Nguyen’s presence in that room.
•	Fourth, 2 of Mr Nguyen’s fingerprints were found on a bowl in room three.
•	Fifth, fingerprints were found on the shower screen and in room 8.
•	Six, fingerprints were located on a fertiliser bottle in room 8.
•	Seventh, when arrested, Mr Nguyen produced a Northern Territory licence. The car in which Mr Nguyen was a passenger contained two transformers, a list in Vietnamese of cultivation products costing $9000 and two bags of plant growing soil. The transformers match the type found in the house.
88	Mr Lee submitted that the theft is a corollary of the cultivation.
89	Section 239 CPA allows for alternative verdicts.
The Defence Closing Address
90	In his closing address, Mr Moore submitted that the case comprises three issues:
•	First, whether or not it is proved that Mr Nguyen cultivated the cannabis;
•	Second; if it is proved that he cultivated the cannabis, whether it is proved that he held the requisite intention to cultivate a commercial quantity;
•	Third, whether or not it is proved he stole electricity.
91	Mr Moore submitted that overall the evidence is insufficient to support guilt as the Crown cannot exclude other reasonable inferences; namely that Mr Nguyen was present on one occasion but it was others who carried out the cultivation. Mr Moore submitted that mere knowledge and presence are insufficient to establish the act of cultivation:  Falzon v R [2019] VSCA 294.
92	Mr Moore addressed the aspects of evidence raised in the Crown case and closing submissions.
93	First, the cigarette butt was attributable to Mr Nguyen but was found in a part of the house demarcated and away from the cannabis. In any event, it was one of two cigarette butts; indicating that someone else had also been in the house.
94	It was submitted that I should not rely on the water bottle as providing evidence against Mr Nguyen . The low amount of DNA and the low likelihood ratio where there were two other contributors make the evidence unreliable.
95	Although Mr Nguyen’s fingerprints were found on the bowl in room 3, the seedlings themselves were in a black sealed box. There is no evidence that he saw or tended/nurtured those plants.
96	Mr Nguyen’s thumbprint on the fertiliser bottle is barely probative. It is not known if the bottle was sealed or open; empty or full. There is no evidence as to how it fits into the cultivation process.
97	Although the palm print shows that Mr Nguyen was present in the bathroom (room 8), the chemicals were mixed in the bathtub and not in the shower where the print was found.
98	There is no evidence that Mr Nguyen knew of the electrical bypass. The bypass was located behind and secreted in the wall. It had been plastered over.
99	The power bill is largely irrelevant to the consideration of guilt.
100	Mr Nguyen was a passenger in the car and there is no evidence that he saw the items which were all behind him.
101	There is no evidence that Mr Nguyen received payment or had in any way benefited from the operation.
102	Although the Crown relies on the fact that Mr Nguyen produced a Northern Territory driver’s licence, there is no evidence provided as to why he was in Shepparton. Mr Moore warned against speculation.
103	Mr Moore submitted that I ought to take into account Mr Nguyen’s good character in my determination of guilt.
104	Several other persons of interest were identified but not charged. Mr Du was originally charged but the charges were withdrawn.
105	There is no evidence of Mr Nguyen’s involvement in the setup of the operation or buying of the items found in the car; there is no evidence that he went into the commercial quantity rooms or even saw the plants in those rooms; there is no evidence that Mr Nguyen went beyond room 8.  There is no evidence that he looked in the black growing tent/box.
106	There is no evidence that Mr Nguyen saw the extent of the plants; that it even crossed his mind how many plants there were or their weight. It is difficult to predict the weight of a plant by looking at it. The height of a plant does not provide any indication of its weight.
107	There is no evidence that Mr Nguyen set up the bypass, or plastered over the bypass.
Analysis
108	I accept that Mr Nguyen is a person of good character.
109	I turn first to a consideration of the DNA examination of the water bottle, found in room 3.
110	As the evidence shows, there were three contributors to DNA profiles found on the bottle. As I have outlined in my examination of the evidence, DNA contribution of the second contributor was low; amounting to only 5% of the total DNA taken from the bottle. Moreover, Ms Heffernan concludes that there is only ‘moderate’ support of the accused being one of three contributors to the DNA on the water bottle.
111	In my view, these three factors – the fact that there are three contributors; a low contribution of DNA by the second contributor and the relatively low likelihood ratio expressed as against the Vietnamese population combine to suggest that, even if the evidence is admissible, it should be given little to no weight. In combination, these factors all combine to greatly reduce the reliability of the evidence.
112	In any event, there was no evidence called to suggest that the water bottle was necessarily associated with the cultivation process in room 3, where the seedlings were found. Further, there was a bowl found in that room with fingerprints belonging to Mr Nguyen. In other words, there was one item in that room which may suggest Mr Nguyen had been present in room 3.
113	It is sufficient to say that the cigarette butt, and fingerprints; especially the fingerprint on the shower screen combine to enable me to reasonably infer that Mr Nguyen had been present in the house at 1 Chevrolet Avenue at some point in time. 
114	Of course, it may be argued that several of the items could have been taken into the house but, given the number of different items and locations of those items together with the fact that Mr Nguyen’s palm print was found on the fixed item of the shower screen, it cannot be reasonably argued that Mr Nguyen had not been present in the house.
115	Given the presence of the AGL bill paid on 5 May 2020 in room 1, the inference is open that Mr Nguyen was present in the house in the 24-hour period before his arrest. It may be (but was not) argued that the bill was passed to another who put it in the house. However given the other indices to which I have referred, I conclude that it was likely that Mr Nguyen put that bill in room 1.
116	Accordingly, the evidence enables a reasonable inference to be drawn that Mr Nguyen had been present in the hallway entrance (cigarette butt), room 1 (AGL bill), room 3 (bowl), and room 8 (fertiliser bottle and shower screen).
117	In my view, the:
•	Smell in the house; 
•	View of the electrical cabling outside room 12 which was clearly visible from the hallway and, in my opinion from the doorway and room eight;
•	Fertiliser bottle with Mr Nguyen’s fingerprint; and
•	Other items such as the ladder and chemical canisters seen in the photographs
lead to the conclusion that when he was present in the house, Mr Nguyen knew that this premises were being used to cultivate cannabis.
118	There is no evidence that Mr Nguyen went into rooms 4, 5, 11, 13 or 14 where commercial quantities of cannabis were grown ‘(the commercial quantity rooms’) or into rooms 9 or 10, where substantial but less than commercial quantities of cannabis was being grown.
119	Further, there is evidence that the rooms had in effect self-closing doors and false walls were used to keep each room closed and separate. There is no evidence Mr Nguyen set the lights or irrigation, or bought or mixed the chemicals, or tended or nurtured the plants in the commercial quantity rooms. The nature of the hydroponic operation in those rooms was, as Ms Sowter gave evidence, ‘set and forget’. The inference that I draw from this is that the growing of cannabis took place in those rooms with a degree of independence; or at least requiring only periodic attention and care.
120	In any event, there is no direct forensic evidence that Mr Nguyen provided that periodic care.
121	It is necessary to then turn to the available evidence to see what inferences can be drawn from it. Specifically I refer to the:
•	Bowl; 
•	Cigarette butt;
•	Shower screen print;
•	AGL bill;
•	Fertiliser bottle;
•	Circumstances of Mr Nguyen’s arrest on 6 May 2020; including the fact that hydroponic agents were found in the car in which he was travelling; 
•	Fact that I have already concluded that by his presence, Mr Nguyen was aware cannabis was grown at the house; and
•	Other factors such as the payment of the AGL bill on 5 May 2020 and the production of Northern Territory licence.
122	Of these factors, the cigarette butt, the AGL bill, and the palm print on the shower screen indicate Mr Nguyen’s presence in the house but no more.
123	The presence of a second cigarette butt indicates the presence of one other person. The water bottle had three contributors of DNA. This may indicate the presence of other persons but this fact must be treated with caution. There were sightings of other people coming from the property at different times but no one was identified and their activities were not observed.
124	In the end, I must consider whether the other evidence being: 
•	The fingerprint on the bowl found in the room where 36 plants were growing in the tent;
•	The fertiliser bottle;
•	The circumstances of arrest;
•	Mr Nguyen’s awareness that cannabis was grown at the house; and
•	The payment of the AGL bill
combined with the evidence of presence enable the inference to be drawn that that Mr Nguyen tended or nurtured a commercial quantity of cannabis, or cultivated cannabis at all.
125	These factors must be examined in turn and then together.
126	The bowl was found in the room where 36 seedlings were grown. The seedlings were in a closed grow tent box.
127	Whilst this evidence raises strong suspicion, there is no evidence that Mr Nguyen tended or nurtured those plans or even opened the tent box.
128	There is no evidence of traces of anything being found or analysed in the bowl
129	Turning to room eight, there is no evidence whether the fertiliser bottle was open or closed, empty or full, applied to the seedlings or to any other plants.
130	Whilst I may suspect that Mr Nguyen knew of the seedlings, and I have found that he knew that he was in a grow house and the extensive nature of the operation was available to see from parts of the house in which he had been present. I must come back to the facts that there is no evidence that:
•	Mr Nguyen entered any of the other cannabis growing rooms; let alone the commercial quantity rooms; or
•	that he knew the extent of the operation to be the cultivation of a commercial quantity of cannabis.
131	The circumstances of Mr Nguyen’s arrest also raise strong suspicions. He was arrested whilst travelling in a car which was carrying transformers the same as those used at the house, soil medium and a receipt for hydroponic chemicals. However, there is no actual evidence he knew of the presence of the items in the car let alone any evidence of his intention to implement them.
132	Both the Crown and defence urged caution in the use of the evidence of payment of the AGL bill. From the outset, Mr Lee stated that the evidence of payment of the bill by Mr Nguyen was led only to provide further evidence of his presence in the house (from the fact that the bill was found in room one). I agree that this does not provide evidence that Mr Nguyen tended or nurtured the cannabis found at 1 Chevrolet Avenue Shepparton.
133	In his submissions before me, Mr Moore placed substantial reliance on the Court of Appeal decision in Falzon.  Essentially, Mr Morse submitted that case stands for the proposition (applied to this case) that knowledge of the existence of the crop and his presence on perhaps only one occasion is insufficient to prove that Mr Nguyen did the acts alleged by the Crown. Of course, Falzon is a slightly different case to this as Mr Nguyen is charged as a principal offender. However in my view, the principles can be broadly applied in this case.
134	In the end, the Crown case proves Mr Nguyen was present on at least one occasion and, in my view proves that he had knowledge of the presence of cannabis growing in the house. But, individually and collectively, the evidence falls short of proving that he tended and nurtured the crop.
135	There is no evidence that Mr Nguyen was observed at the property. In the absence of other evidence such as telephone intercepts, admissions or the like, the bare circumstantial evidence in this case can only allow limited inferences to be drawn.
136	The law must be strictly applied. When considering circumstantial evidence, I must not permit any speculation. Further, before I can find Mr Nguyen guilty of any offence, his guilt must be the only reasonable hypothesis available on an examination of the whole of the evidence.
137	After considering the evidence, I’m not satisfied beyond reasonable doubt that the evidence establishes that Thien Nguyen cultivated a commercial quantity of cannabis.
138	There is no evidence that he knew of the existence or operation of the electrical bypass.
Conclusion
139	Accordingly;
•	 The verdict on charge 1 is not guilty. 
•	The verdict on charge 2 is not guilty.
140	Given my evidential findings, I do not consider there is any scope for the operation of, or need to consider alternative verdicts in respect to charge one.
141	I order that the verdicts be entered into the records of the court.