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Public Prosecutor v Sandy [2007] VUSC 29; Criminal Case 84 of 2006 (7 May 2007)

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

CRIMINAL CASE No.84 of 2006

PUBLIC PROSECUTOR

-v-

JOHNERY SANDY

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

JUDGMENT

This is the trial of the Defendant, Johnery Sandy. He is charged with the offences of Cultivation of Cannabis Plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] and the offence of Unlawful Possession of Cannabis Plants, contrary to Section 2(13) of the Act. He pleaded not guilty to both charges.

This Defendant, like 21 other Defendants who are charged with drug offences at Melip Village on 20 October 2006, was represented by Messrs Nigel Morrison and Christina Thyna of Ridgway Blake Lawyers until the trial. At the trial, the defence counsel were excused from representing the Defendant.

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) George Towmey
(3) Gerald Molturalala
(4) Uriel Leo
(5) The exhibits of the plants, photos and the crime scene report.

Briefly the facts are that the Defendant was arrested on 20 October 2006 at Melip Vilalge, South West Malekula. He was asked by Chief Inspector George Towmey if he has a garden of cannabis. He replies that he has a garden. The officer asked him to bring the cannabis to him. He came back with 10 plants of green cannabis plants as shown on the photographs ranging from 50 to 100 centimeters. They weighed 0.22kg. The samples were tested and the test shows the presence of the cannabis substance in the plants.

A case was made out against the Defendant. He is required to call his defence.

Section 88 of the Criminal Procedure Code Act [CAP.136] was read and explained to him. He exercises his right to remain silent.

The law is that the prosecution must prove all essential elements of the offences against the Defendant beyond a reasonable doubt. If I have a reasonable doubt on the evidence, I must acquit the Defendant on each or both offences as charged against the Defendant.

Sections 2(13); 4 and 17 are the relevant provisions of the Dangerous Drugs Act [CAP.12]. They provide 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."

On the evidence before the Court, there is overwhelming evidence against the Defendant on the offence of cultivation of cannabis plants. There is no evidence against him on the charge of Unlawful Possession of Cannabis plants.

The Defendant Johnery Sandy is convicted on the offence of Cultivation of Cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12]

He is acquitted on the charge of Unlawful Possession of Cannabis, contrary to Section 2(13) of the Act.

VERDICT

COUNT 1: GUILTY and CONVICTED for Cultivation of Cannabis Plants
COUNT 2: NOT GUILTY and ACQUITTED for Unlawful Possession of Cannabis:

I direct that the 10 Cannabis seized from the Defendant must be condemned before lunch time on 8 May 2007.

DATED at Port-Vila this 7th day of May 2007

BY THE COURT

Vincent LUNABEK
Chief Justice