R v Truong [2023] NZDC 13291 (30 June 2023)

Last Updated: 21 October 2024

IN THE DISTRICT COURT AT WHANGAREI I TE KŌTI-Ā-ROHE KI WHANGĀREI-TERENGA-PARĀOA
CRI-2020-090-002541 [2023] NZDC 13291

THE KING

v

OAI DAC TRUONG

Hearing:	20 June 2023
Appearances:	Ms A Tupuola for the Crown Mr D Reece for the Defendant
Judgment:	30 June 2023

RESERVED JUDGMENT OF JUDGE D J ORCHARD

[1] Mr Oai Dac Truong faces three charges of cultivating cannabis contrary to s 9(1) of the Misuse of Drugs Act 1975 (hereinafter referred to as the Act), three charges of possession of cannabis for supply under s 6(1)(f) of the Act and one charge of wilfully attempting to pervert the course of justice.

[2] The cannabis charges arise out of the discovery by the police of three large and sophisticated commercial cultivations in the first half of 2020. The first, at [number deleted] Oturei Settlement Road, Aratapu, Kaipara (referred to in the Crown charge notice as Dargaville) was spotted by the police from the air while Operation Piano was underway. This is an operation dedicated to locating cannabis and destroying it and where possible making arrests of the person or persons responsible for the cultivation. Four Vietnamese nationals Dang Gia Cu, Nhat Kuan Nguyen, Minh Nhat Nguyen and

R v OAI DAC TRUONG [2023] NZDC 13291 [30 June 2023]

Chu Truong Thanh were seen to leave the address in a motor vehicle. They were soon stopped and arrested. They were charged with cultivating cannabis and possession of cannabis for supply together with the defendant, Mr Truong. All four pleaded guilty and were sentenced to imprisonment for terms of two years and nine months.

[3] The growing operation at [number deleted] Oturei Settlement Road was on a very large scale. There were five large polyhouses occupying an area of about 2,810 square metres, a total of 4,065 healthy female cannabis plants were being cultivated and the manner of cultivation suggested expertise. Besides the plants, the police found manicured seedless cannabis head weighing 18.35 kilograms or 40.45 pounds. If sold in one-pound measures the estimate is that the value of that cannabis would be

$188,000. In addition 1,258 root balls containing stems of previously harvested cannabis plants were found outside the tunnel houses. It is estimated that 629 pounds of cannabis would have been harvested from those plants at an estimated value of

$2,516,000. Of course, it may be that some of the 18.35 kilograms of cannabis head the police found came from those root balls in which case some adjustment would be needed to these figures.

[4] In addition, the potential yield of the 4,059 cannabis plants which were growing in the tunnel houses is estimated at $8,116,000. The set-up would be likely to produce three crops over a calendar year so the annual value of that would be

$24,348,000.

[5] Police enquiries revealed that the defendant had made an email enquiry of the owner of the property who had listed it for sale on Trade Me on 28 June 2019. It is alleged that Mr Truong subsequently travelled to Auckland where he met with a representative of the property owner and a verbal rental agreement was reached for him to lease part of the property.

[6] It is further alleged that between July 2019 and January 2020 Mr Truong spent over $11,000 at Bunnings Warehouse on items consistent with items found at the Oturei Settlement Road property and the illegal cannabis cultivation operation going on there. Evidence will be produced that he paid at least $2,391.71 of that amount in cash. Further evidence will be produced that on 6 August 2019 Mr Truong purchased

over 3,000 pots and 333 bales of peat moss from Primehort, Kaiwaka. He paid for these items using $28,143.38 cash and he provided his driver’s licence as identification. Mr Wearmouth, the manager of that business will give evidence that he retained a copy of the driver’s licence which is in Mr Truong’s own name and he was able to produce that to the police. It is also apparent from his evidence that he struck up a cordial relationship with Mr Truong who became well known to him. The items purchased from Primehort were delivered to [number deleted] Oturei Settlement Road at Mr Truong’s direction. Evidence will be given that between 30 July 2019 and 10 January 2020 Mr Truong made at least three purchases from Waterworks Irrigation Limited for items such as pumps, alkathene pipe, joiners, borewells, drippers and pipe cutters which were consistent with items found at the Oturei Settlement Road property. Those items were paid for in cash in the sum of $14,440.95.

[7] The Crown also proposes to call evidence that between 19 July 2019 and 11 February 2020 Mr Truong travelled from Auckland to Oturei Settlement Road on at least 28 occasions.

[8] On 23 June 2020 the police executed a search warrant at Mr Truong’s address of [address 1 deleted], Avondale, Auckland. A detective attached to the Organised Crime Unit Whangārei, [Detective A], was one of the officers who went to the address and he spoke to Mr Truong and recorded their conversation in his notebook. Mr Truong produced $23,000 cash in a brown bag which he claimed was from sales the previous day from his business “Yes Grow” which he said was a hydroponic retail shop operated from rented premises in Stoddard Road, Mt Roskill. While he said he had started the business in April the previous year he also said he had had the Stoddard Road warehouse premises for only about 10 days. When asked whether he owned any other homes in Auckland he said that he owned [address 2], Massey, Auckland which was rented to man called Cuong Do Hung. The police had already executed a search warrant at that address in the early hours of that morning and found another large cannabis growing operation. Two Vietnamese nationals were found at the address at the time of the search. While Mr Truong’s home was being searched the police found a document which appeared to have practice signatures for Cuong Do Hung on it. The jury no doubt will be invited to draw the inference that Cuong Do

Hung does not exist and that the rental agreement for [address 2] was a fiction created by Mr Truong to put distance between himself and the growing operation.

[9] The police also found a power bill for [address 3] (also referred to as Kerikeri). This bill had been paid in cash on 20 May 2020. On 28 July 2020 the police executed a search warrant at the [address 3] address and found yet another major cannabis growing operation. Again, a Vietnamese national was found at the address, apparently helping with the cultivation of the plants. The police found 18.2 pounds of manicured seedless cannabis head, the value of which they estimate at $72,000 if sold in one- pound quantities. They also found 2,156 female cannabis plants growing. The police estimate that that would have produced 539 pounds of dried seedless cannabis head valued at $2,156,000. They estimate that over the period of the year the set-up would have produced cannabis valued at $10,780,000.

[10] The police also executed a search warrant at the Stoddard Road property and I have seen the photographs taken of the premises. It is full of all the equipment and materials necessary for the kind of operations that the police discovered in the three locales I have mentioned. As far as I can see there are no products in the warehouse which could not be used in such operations. There even appears to be a small stand-alone grow room (not in use).

[11] When Mr Truong spoke to the police on 23 June 2020 he denied that he had ever been to the Oturei Settlement Road property or arranged for goods to be delivered there. Effectively he denied any knowledge of the property.

This application

[12] By application dated 12 June 2023 counsel for the defendant, Mr Reece, applied for affidavits sworn by three of the defendant’s co-defendants in November 2021 to be admitted into evidence as hearsay statements pursuant to ss 16 and 18 of the Evidence Act 2006. The application is opposed by the Crown. The relevant provisions of the Evidence Act 2006 are set out below:

16 Interpretation

...

circumstances, in relation to a statement by a person who is not a witness, include—

(a) the nature of the statement; and

(b) the contents of the statement; and

(c) the circumstances that relate to the making of the statement; and

(d) any circumstances that relate to the veracity of the person; and

(e) any circumstances that relate to the accuracy of the observation of the person.

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

• (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
  
• (b) either—
  
  • (i) the maker of the statement is unavailable as a witness; or
    
  • (ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
    

[13] The affidavits of all four of the defendant’s co-defendants were sworn on 10 November 2021. Because of COVID restrictions they went as a group to the offices of an immigration advisor, [name deleted] on that date. A private investigator, [name deleted] and a Vietnamese interpreter, [name deleted] (none of the co-defendants speak English or write English) attended on them by Zoom. Statements were taken and subsequently converted into affidavits, which were sworn remotely. At the pretrial hearing on 20 June 2023 I was informed that [the immigration advisor] could not be contacted. I sought further information as to whether each of the defendants had made their statement in the presence or in earshot of the others. Further affidavits have been sworn by [the private investigator] and [the immigration advisor], who appears to have resurfaced. [The immigration advisor] says that the four defendants came to his

offices as a group but each of them went into the booth in his office where the call was made separately and was out of earshot of the others as each made their statement.

[14] The defendant’s counsel says the defendants [associate 1], [associate 2] and [associate 3] cannot be located. One of them, [associate 3] may have returned to Vietnam. The other two are avoiding deportation and have gone to ground. While [the interpreter] has been able to speak to them by phone they are unwilling to come to court to give evidence because they are afraid of arrest and return to Vietnam. Ms Tupuola, counsel for the Crown, has informed the Court that Mr Thanh has an active warrant for his arrest and the other two defendants have parole recall warrants out against them. She submits that the defendant cannot satisfy the reasonable diligence test and therefore cannot establish that they are unavailable because he appears to have left his attempts to locate the two offenders too late. I am not persuaded by that argument. It may be that the defence has left the attempts to locate the deponents rather late. I am satisfied they have done as much as they can to locate them at this point – assuming that Mr Truong has not played a hand in their disappearance and I am not in a position to be satisfied as to that.

[15] The Crown is on much stronger ground when it argues that the circumstances relating to each statement do not provide reasonable assurance that the statement is reliable (s 18(1)(a)).

[16] When I look at the contents of the affidavits of each of the deponents I find them to be general in nature with very few specifics. I also find that they are very similar and all seem to cover the same points which are:

• (a) They all worked for the “boss” whom they never met.
  
• (b) The “boss” always rang when he wanted to speak to them.
  
• (c) That Oai Dac Truong did building work at the Dargaville property.
  
• (d) They said they were not told that they would be growing cannabis when they were hired.

• (e) They lived with other Vietnamese whom they had not known before they came to the Dargaville property.
  
  • (f) Oai Dac Truong came from Auckland to help build the shade houses. He was a builder (when interviewed Mr Truong said that he had worked as a chef for years after he came from Vietnam and then worked as a painter. He did not say that he was, or had ever been, a builder).
    
  • (g) That Mr Truong got building supplies from Dargaville.
    
  • (h) That he never stayed in the house.
    
  • (i) That the “boss” said they were not to talk to Mr Truong or he would reduce their wages.
    
  • (j) The “boss” said that they were to keep Mr Truong away from the cannabis growing area, which they did.
    
  • (k) That Mr Truong also bought unspecified supplies when the cannabis was growing.
    

[17] It seems to me that these statements have the appearance of being coached. In addition, I note that their claims that Mr Truong did come to the property on multiple occasions are at variance with the defendant’s own statement to the police that he had no knowledge of the property. There is also the evidence of the defendant’s connection with three properties all of which had very similar large cannabis growing operations and the evidence of him buying large quantities of supplies to be delivered to the Dargaville address and paying in cash. Using large amounts of cash to pay for products in an age where electronic payments dominate is unusual, except in criminal enterprises.

[18] The circumstances that relate to the making of the statement are also concerning. The defendants all came to the office together which suggests that they were either associating or that someone had rounded them up and taken them to the office. Either way they certainly had plenty of opportunity to put their heads together.

[19] There were also circumstances which reflect adversely on the veracity of the three. Very little is known about them and as far as I am aware the authorities only have their word that they came to New Zealand for legitimate purposes and then fell into assisting with this criminal enterprise, rather than coming to this country for that purpose. I am not aware of any evidence which suggests reluctance on their part. However one looks at it, all three were obviously prepared to assist in serious criminal offending. They are also obviously quite prepared to avoid the authorities even though they are aware that they are illegally in the country. In addition to that none of them speak or write English. I infer that that must mean that they are dependent on others to help them remain concealed and support themselves. That makes them very vulnerable to influence and the person they referred to as the “boss” or his henchmen are in a good position to do that. Finally, the evidence against Mr Troung strongly suggests that either he himself is “the boss” or that he is a trusted lieutenant of the person or persons behind this well-resourced enterprise.

[20] All together I do not consider the circumstances relating to the statements provide reasonable assurance that any of them are reliable. The converse is the case.

[21] The application is refused.

Judge D Orchard

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 30/06/2023