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Public Prosecutor v Ailul [2007] VUSC 32; Criminal Case 89 of 2006 (7 May 2007)

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

CRIMINAL CASE No.89 of 2006

PUBLIC PROSECUTOR

-v-

WASAMI AILUL
EDWIN APAL
PASCAL AROPKALO
MARKWIN ALI

Ms Kayleen Tavoa, Public Prosecutor
The Defendants in person and on their own behalf

JUDGMENT

This is the trial of the Defendants: Wasami Ailul, Edwin Apal, Pascal Aropkalo and Markwin Ali. They are from Melip village, Malekula. They are charged as follows:-

- Wasami Ailul, Edwin Apal and Pascal Aropkalo are charged with the offence of Possession of Cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12].

- Wasami Ailul, Edwin Apal, Pascal Aropkalo and Markwin Ali are charged with the offence of Cultivation of Cannabis, contrary to Section 4 of the Act [CAP.12].

The Defendants were represented by the law firm of Ridgway Blake Lawyers from the Preliminary Inquiry to plea stages in the Supreme Court. With the leave of the Court, their counsel were excused from appearing.

The prosecution and the defence counsel have considered the case prior to Court sitting and on 27th February 2007, they agreed that the following statements and exhibits go in by consent:-

(1) Moses Tom
(2) PC Gerald Molturalala
(3) Jeffrey Wimbong
(4) Erickson Sylvain
(5) The exhibits:-

- Plants
- Photos
- Crime scene report

The facts show that after the complaint of Chief Moses Tom of Melip Village, Police arrested the Defendants Wasami Ailul, Edwin Apal and Pascal Aropkalo. The Defendant Markwin Ali was already in Vila in October 2007.

The first three Defendants (Wasami Ailul, Edwin Apal and Pascal Aropkalo) informed the police officers that they have a joint venture including Markwin Ali to plant and sell cannabis. The police officers removed 140 plants of cannabis in the joint garden of the Defendants.

The plants are identified, weighed. The weight is 65.82kgs. The plants were tested. The result of the test show the presence of cannabis substance with a deep blue colour as showed the photographs. The plants were contained in 5 big bags.

The Defendant Wasami Ailul and Markwin Ali exercise their right to remain silent. The Defendants Pascal Aropkalo and Edwin Apal gave evidence.

Pascal Aropkalo said he planted cannabis following his faith. He did not know the law that he was charged under. He knows about one law which is of the 10 Commandment. He said he became aware of the Dangerous Drugs Act when the police arrested him. In his cross-examination he confirmed they had a joint garden in which they planted cannabis for the purpose of selling to make money.

Edwin Apal confirmed that he had a joint garden with Pasacal, Wasami and Markwin to plant cannabis for the purpose of seling cannabis to make money.

The law is for the prosecution to prove the essential elements of the offence against each of the Defendants beyond the reasonable doubt. If there is a reasonable doubt, in respect to one or all the Defendants, one or all the 4 Defendants must be acquitted of the charges he or they all face.

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

Applying the law to the facts as found, I am satisfied beyond reasonable doubt the prosecution has proved the offence of cultivation, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] against the 4 Defendants: Wasami Ailul, Edwin Apal, Pascal Aropkalo and Markwin Ali.

The prosecution failed to prove the offence of possession of cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] against Defendants Wasami Ailul, Edwin Apal and Pascal Aropkalo on the required criminal standard.

VERDICT

- Defendants Wasami Ailul, Edwin Apal, Pascal Aropkalo and Markwin Ali are found GUILTY of the offence of Cultivation of Cannabis Plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] and they are CONVICTED accordingly.

- Defendants Wasami Ailul, Edwin Apal and Pascal Aropkalo are found NOT GUILTY of the offence of Possession of Cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] and they are ACQUITTED of the charge accordingly

I direct that the 5 large bags of Cannabis plants seized from the Defendants must be condemned by 8 May 2007 before lunch time.

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

BY THE COURT

Vincent LUNABEK
Chief Justice