Police found 4.8kg of dried cannabis head stored in plastic bags in the ceiling space.
The Phan was listed on a tenancy agreement as the occupant of the property and had paid a bond in the month before the police raid.
Khanh Phan was implicated after his vehicle was filmed on CCTV at Bunnings, being loaded with equipment that matched items found in the growing room.
A neighbour said he saw the brothers’ vehicles at the property regularly and The Phan’s personal effects were found there, along with both brothers’ fingerprints.
After a jury trial the Phan brothers were convicted of cultivating and possessing cannabis for supply. They were sentenced to home detention.
During their trial, the brothers tried to shift responsibility for the cannabis growing to other people associated with the property, including the landlord and a property manager, according to a Court of Appeal decision.
“The evidence addressed the fact that police found commercial cannabis-growing operations in four other properties owned by [the landlord] ... including in a neighbouring property,” the decision said.
Key parts of evidence ruled inadmissable
The judge who presided over their trial ruled that key elements of this evidence were inadmissible.
The brothers took their case to the Court of Appeal, arguing their convictions should not stand because a miscarriage of justice had occurred.
The brothers said the landlord had two properties in Sunnynook, two neighbouring properties in Glen Eden, and another property elsewhere in Auckland.
All had been searched by police. Four were found to contain active grow houses and another had been set up to be one but had no cannabis in it at the time it was raided, they alleged.
The Court of Appeal said the brothers tried to bring evidence to the trial that “other parties”, including the landlord and property manager, were probably involved with the cultivation of cannabis.
Their defence case that the operation was set up by others was supported by the argument that mature cannabis was found in the property, even though The Phan had a lease dated August 1, 2022, which was less than six weeks before it was raided.
The judge allowed only limited questioning about the other houses at the brothers’ trial, but noted the police had withdrawn charges laid against the landlord because there was insufficient evidence against him.
The Court of Appeal justices said the questions the brothers’ lawyer had been able to ask at the trial clearly raised the possibility the landlord had been involved in cannabis cultivation.
“Even if further questioning could have been permitted ... the critical questioning is whether by restricting the questioning, the trial was unfair and a miscarriage of justice resulted,” the Court of Appeal decision said.
“We accept the [Crown’s] submission that this was not the case.”
The court dismissed the brothers’ appeal.
Ric Stevens spent many years working for the former New Zealand Press Association news agency, including as a political reporter at Parliament, before holding senior positions at various daily newspapers. He joined NZME’s Open Justice team in 2022 and is based in Hawke’s Bay. His writing in the crime and justice sphere is informed by four years of frontline experience as a probation officer.
