R v Mema No. DCCRM-02-599

R – v - MEMA
[2003] SADC 81
Judge Bright
Criminal

Mr Mema is charged with taking part in the production of cannabis. He elected for trial by judge alone.
In 1998 a Mr Ruzehaji acquired the house at 3 Pierre Road, Holden Hill. In May 2000 he advertised it for lease. In June a man, whose identity is not known, called and claimed to be looking for a house for his brother, who was arriving from somewhere in the Balkans. He signed a tenancy agreement and paid some rent in advance. The tenancy agreement has been lost. A different person thereafter called to pay the rent. It was always at night. His identity is not known.
On 15^th May 2001 police attended at the house and found a large, obviously commercial crop of cannabis growing hydroponically. There was no sign that anyone was living in the house. It appeared that the sole use to which the house was being put was the production of cannabis. AGL confirms that an account for electricity at the house was opened on 26^th May 2000 in the name of Mr Petrit Joone. Subsequent inquiries by police have not revealed any evidence that a person of that name ever existed. From the first account on, large quantities of electricity were charged and paid for (with the exception of a final account). It suggests that “grow lights” were in use from very soon after the tenancy began.
Other evidence suggests that cannabis can grow to maturity in around three months. In May 2001 there was a crop just short of maturity. There were clear signs of at least one earlier crop. Time and electricity usage suggest that the crop found could have been the fourth. The charge relates only to that last crop. I will return to it in a moment.
On 30^th December 2001 police attended at a house at 1041 Grand Junction Road, Holden Hill, at which Mr Mema resided. There they found three cannabis plants growing hydroponically. Mr Mema admits his responsibility for them. He claimed they were for his own use.
When he was charged, his fingerprints were taken. Two fingerprints located at Pierre Road were matched to Mr Mema and a third was not clear enough to match definitely, but was, as far as it went, consistent with being from him. No one purports to identify Mr Mema as the tenant, the payer of rent, the person who dealt with AGL, or otherwise to have seen him at 3 Pierre Road, or doing anything in connection with it.
The two fingerprints which are said definitely to match Mr Mema were located on the shades of “grow lights” located at 3 Pierre Road. A good deal of time during the case was devoted to establishing or questioning the chain of evidence said to establish that those two lights were installed at 3 Pierre Road and in use in association with the crop. Police were definite that they were. However, there were some inconsistencies. For example, two police officers claimed that he, or she, had personally made certain marks on the shades with a black felt tip pen and each claimed to recognise his, or her, handwriting in photographs of those items. Both cannot be correct. The exhibit log may have some inaccuracy in noting what came from where and went to where. At another stage in the chain an officer wrote an incorrect police file identification number on some exhibits – it was out by one digit and was then corrected by him.
Having heard the relevant police, and on looking at photographs which show the light shades at various places, with certain markings on them and with visually identifiable lengths of wire, chain and cord attached to them, I am, despite the errors, satisfied that both shades were shades used to aid the cultivation of the crop.
The significance of the dispute was the submission that, in certain circumstances, the handling of equipment adapted to the cultivation of a prohibited substance might not amount to taking part in that offence. I was referred to the New South Wales case Reg v. B D, NSWCR 2001, NSWCCA, 184. In that case police stopped a car and found in it certain precursor chemicals and equipment adapted to the illegal manufacture of amphetamines. It was held that, in the circumstances, the accused (the driver of the car) had not taken part in the manufacture of a prohibited substance. In the context of 3 Pierre Road, it was submitted that, even if it be accepted that Mr Mema touched, perhaps handled two shades, could it be proved he had taken part?
Equipment found at the second crop had stickers indicating that, at some stage, it had been in the possession of Cash Converters. So did some equipment at 3 Pierre Road. An inference in relation to the second crop is that Mr Mema may deal with Cash Converters. Could those responsible for 3 Pierre Road have, by chance, purchased equipment from Cash Converters previously handled by Mr Mema? The age of his fingerprints cannot be established, other than by inference from extraneous circumstances.
In this context, the third print is important. It was found on a plastic bottle labelled as “apple and blackcurrant juice” – and looking as if correctly labelled, though the contents were not analysed. A quarter to a third of the bottle had been consumed or used. It was found in the kitchen at 3 Pierre Road. The print was smudged in parts.
Mr Noack, a police officer whose expertise in fingerprints I accept, explained that there are various well recognised characteristics which occur in fingerprints. From their presence or absence and from their location and relationship to each other a conclusion whether a match exists between prints can be made. If even one such point of identification is present in one, but not the other print being compared, it is certain that they were not made by the same person.
At one time it used to be the common wisdom that only if at least 12 points of identification were found to be common to the two prints, could they be said beyond reasonable doubt to be a match. Mr Noack said that the modern view is less rigid. I took him to mean that some points of identification are less common and less clear than others. If the points compared were unusual and were clear, a conclusion that prints matched could be drawn more readily than when the points were common, or unclear. I was not told how many points would, on a purely statistical basis, be expected to be found to match in any two randomly selected prints.
In this case seven points were identified as common and no inconsistencies were found. Mr Noack was not satisfied beyond reasonable doubt on his examination of the print that it must have come from Mr Mema, although it well could have. However, when I note that it was found in the same house as two definitely identifiable prints, it seems to me far more likely that the print on the bottle was left by Mr Mema. I recognise the importance of the link. After carefully considering the matter, I am satisfied it was from Mr Mema.
The possibility, viewed in isolation, that Mr Mema’s prints were the result of him touching the shade at some time before they were acquired from Cash Converters by those responsible for the crop always bordered on the fanciful. Coupled with that on the bottle, I am satisfied that Mr Mema not only touched the shades, but also that he attended at the house. The bottle certainly did not come from Cash Converters. It beggars belief that, by coincidence, his prints on the shades were put there in circumstances entirely unrelated to that on the juice bottle. I am satisfied that Mr Mema visited 3 Pierre Road.
The second part of the submission is that, if so, is it proved that he took part in cultivation there? There was quite a lot of hydroponic gear found at the house. Not all of it was actually in use. In particular, some lights were found which were not in use. If, through the flaws in the chain of evidence, it was not certain where those with Mr Mema’s prints on them came from, could his association have been at that lower, perhaps earlier level that did not amount to taking part?
I do not think so. In Reg v. B D (sup) what was found were precursor chemicals and certain equipment. It seems to me to have been a finding on the facts that production had not yet begun, so the defendant had not taken part in it. It was not proved that production would occur. Where and how the cultivation of cannabis begins will depend on the facts. A person responsible for a mature hydroponic crop of cannabis may well begin to cultivate or to take part in cultivating it at the stage of merely reading books, or putting together equipment. On the facts, the person who lends the book or supplies the equipment, and does no more, may not do so. No exhaustive answer can be given – each case will depend on its facts.
So, is it a reasonable possibility that though Mr Mema touched the shades at, or at least in connection with 3 Pierre Road, but only to such an extent as not to amount to taking part in the cultivation of the cannabis there?
3 Pierre Road had clearly been converted to a cannabis factory. There were indications of earlier crops. This may have been the fourth. The house was not being used for any other purpose. A good deal of time and money had been expended in setting it up. Large amounts of electricity were being paid for. It is very likely that others were involved. A car belonging to a person suspected of involvement with cannabis and a fingerprint of yet another person were found there. Those people have not been located.
Production was on a large scale. The plants, though spindly, were tall and well cared for. 51 plants were growing. Boxes of the type used by furniture removalists were stacked in their flat state in the carport. They would have been suitable for bulk transport of cannabis. Dry remnants of an earlier crop, or crops, were present.
I have no doubt that those responsible had a sufficiently sophisticated knowledge of what they were doing to be aware that it was illegal and to be aware of the consequences of being detected and of the risk of being “ripped off” by others. In short, it was a clandestine operation, knowledge of which would surely be kept to the smallest number of people possible. It is inconceivable to me that Mr Mema could have attended at the premises for any purpose unconnected with the cannabis. The house was not lived in. Entry could only have been by arrangement with those responsible. It was not a place one would visit for a beer and a chat as an outsider.
To that extent it seems to me that my conclusion would be the same, even if I thought that the lights touched by Mr Mema might be lights not actually in use. To me, lights, albeit only spares, in a cannabis factory are still part of the cultivation. I would not draw a distinction between lights actually turned on and those, for example, on the kitchen floor. Nor would I draw a distinction between lights perhaps actually used for an earlier crop, but still there, and those actually erected and switched on during the growing of the current crop. The physical preparation of the house and equipment was not intended for and cannot be associated only with some earlier crop – it was to assist all crops. For these reasons, I do not conclude that the alleged flaws in the chain of evidence are, in the end, of much importance.
In fact, I concluded that the prints were on lights in actual use. It is not known when Mr Mema put his prints on the lights. It was submitted that, more probably than not, that on the juice bottle was not very old. Normally, juice is bought to be drunk, and to be drunk within a reasonably short period. Normally, it is not abandoned with only a small proportion drunk and, once opened, one might expect it not to last well if not refrigerated. Such arguments are pointers. Indeed it may be correct that the bottle was handled quite shortly before the police attended. On the facts it can only be a weak inference.
From it, I am asked to infer that the prints on the lights are relatively recent. If so, they would seem to have been put there at a time when the current crop was growing. I think the inference is too weak. Nor is it inevitable that Mr Mema visited only once. If he were involved, he might well have attended on many occasions. That is not a conclusion I can actually make – he may have attended on only one occasion. If so, I cannot say when.
The prints are consistent with what might be left by a person holding up the light while it was being installed, hanging from the ceiling. But they are also consistent with those that might be left by a person simply carrying them, or even touching them at some time. There are too many possibilities to draw any firm conclusion.
The prosecution refers to the crop found at Mr Mema’s house about 6 months later. I cannot use that simply for propensity or bad character. There may be some specific, more limited uses. The later crop is evidence that, at least by then, Mr Mema knew how to grow cannabis, under lights, in a house, hydroponically. Unless he was very lucky, he was not inexpert – the three plants found were of considerable size – well above average – and were in excellent health. While not conclusive, it suggests that Mr Mema was not a beginner.
When arrested, he protested that the three plants were all for his own use. One cannot elevate scepticism to proof of the contrary. Mr Mema did not give evidence, or a statement to police – and that was his right. I do not draw any inference adverse to him from that, nor, in the circumstances, do I more readily accept the Crown evidence. I assess it on its own merits. However, the absence of his evidence leaves me only able to speculate on what might have been able to be said in exculpation.
In the end, all I can think of that would explain the presence of Mr Mema at the house, but not for the purpose of taking part in cultivation are:-
(a)     a casual social visit;
(b)     a visit to acquire cannabis to smoke or otherwise consume;
(c)     a visit to acquire plant material to be propagated.
Are they, or any of them reasonable possibilities? I think not.
As to (a), I have already said why I believe it fanciful to imagine casual, social visits to 3 Pierre Road. As to (b), it seems wildly improbable that those responsible would give, or sell, cannabis to a friend or purchaser at the factory. The quantities to be sold for personal use would be very small in comparison to production. And Mr Mema knows how to grow his own. If one hypothesises that Mr Mema was there to acquire a larger quantity than he needed for personal use, it seems to me to increase the likelihood of his involvement in cultivation.
As to (c), the crop later found was planted or propagated too late to have been the direct result of cuttings taken from 3 Pierre Road. If it resulted from cuttings taken from 3 Pierre Road, those original cuttings must have been grown in at least one intermediate crop (depending on how much earlier they were acquired) as the later crop could not have been more than four months old when found six months after that at 3 Pierre Road. So – either the later crop had nothing to do with 3 Pierre Road, or Mr Mema was growing rather more than he needed for personal use. If the latter, again it increases the likelihood of involvement with the crop at 3 Pierre Road.
No other innocent explanation for Mr Mema’s presence at 3 Pierre Road was suggested. I do not regard those I have discussed as raising a reasonable possibility of an innocent explanation.
I am satisfied beyond reasonable doubt that Mr Mema took part in the cultivation of the cannabis at 3 Pierre Road. Cannabis is a prohibited substance. I can see no basis for supposing that the part he played was involuntary or accidental, or for thinking that he did not know that cannabis was “illegal”, though he may not have characterised it as “a prohibited substance”.
I find him guilty.

[2003] SADC 81

26 May 2003