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Public Prosecutor v Massing [2007] VUSC 26; Criminal Case 94 of 2006 (6 May 2007)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

CRIMINAL CASE NO.94 of 2006

PUBLIC PROSECUTOR

-v-

JERRY MASSING

Ms Kayleen Tavoa, Public Prosecutor
The Defendant in person and on his own behalf

JUDGMENT

This is the trial of the Defendant, Jerry Massing. The Defendant is charged with one count of Possession of Cannabis, contrary to Section 2(13) of Dangerous Drugs Act [CAP.12] and one count of cultivation, contrary to section 4 of the Dangerous Drugs Act. The defendant pleaded not guilty to both counts. Like the 21 others defendants involved in the same type of drug offences at Melip Village in October 2006, he was represented by the law Firm of Ridgway Blake Lawyers to the pleas stage in the Supreme Court.

The prosecution and the defence counsel have considered the case prior to Court sitting and agreed that the following statements and exhibits go in by Consent:-

(1) Moses Tom
(2) Uriel Leo
(3) Gerald Molturalala

Exhibits
- Plants
- Photo
- Crime Scene report

The brief facts show that in October 2006, after Chief Moses Tom complained to the police about the involvement of his people in the drugs offences including this defendant, the police went to Melip Village on board MV Tukoro and arrested the defendants for cultivation and possession of cannabis plants. On 20 October 2006, Chief Inspector George Tomey asked the defendant if he has any garden of cannabis plants. The defendant agreed that he has a garden. The police asked him to remove the plants. The defendant removed 14 plants of cannabis and brought them to the police. He was then arrested and brought to Vila with the Plants.

The cannabis plants was identified, weighed and tested. The plants weighed 1.42 kg and the result of the test show the presence of cannabis substance in the plants.

The defendant gave evidence himself. He admitted he planted cannabis plants and when the police asked him to remove the cannabis plants, he had removed 17 plants of cannabis in his garden but not 14 as mentioned by the police. As other defendants who gave evidence in their trial, this defendant said that he planted the cannabis because it was "god’s creation". He further said he knew that Vanuatu has laws but he planted the cannabis because it was "god’s creation". He said he was part of an association. He did not know the negative effect of the cannabis. He finally admitted that he planted cannabis became of money.

The law is that the prosecution must prove the elements of the offences charges against the defendant beyond reasonable doubt.

If there is reasonable doubt, I must acquit the defendant.

Section 2(13), 4 and 17 of the Dangerous Drugs Act [CAP.12] are the relevant provisions. They provided as follows:-

"PROHIBITED SUBSTANCES AND MATERIALS

2. The .... possession in Vanuatu of the following substances and materials ... is prohibited:

(13) Cannabis"

"PROHIBITION OF CULTIVATION OF CANNABIS PLANT

4. The cultivation of any plant of the genus Cannabis shall be prohibited."

"PENALTIES FOR CONTRAVENTION OF REGULATION

17. Every contravention of this regulation shall constitute an offence punishable by a fine not exceeding 100 million Vatu or to a term of imprisonment not exceeding 20 years or to both such fine and imprisonment."

Applying the law to the facts, I am satisfied on the evidence that the prosecution has failed to prove the offence of possession of cannabis, contrary to section 2(13) of the Dangerous Drugs Act [CAP.12] beyond reasonable doubt, against the defendant.

I am further satisfied on the evidence that the prosecution has proved the elements of the offence of cultivation of cannabis plants, contrary to section 4 of Dangerous Drugs Act [CAP.12], beyond reasonable doubt, against the defendant, Jerry Massing.

VERDICT

• Possession of cannabis, contrary to section 2(13) NOT GUILTY and the defendant is ACQUITTED of that offence.
• Cultivation of cannabis plants, contrary to section 4 of the Dangerous Drugs Act [CAP.12]. I find the defendant, JERRY MASSING, GUILTY and I CONVICT him accordingly of the offence.

I direct that the 14 or 17 Cannabis plants seized from the defendant on 20 October 2006 be condemned by 8 May 207 before lunch time.

DATED at Port Vila this 6th day of May, 2007

BY THE COURT

Vincent LUNABEK
Chief Justice