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Public Prosecutor v Ailul [2007] VUSC 35; Criminal Case 93 of 2006 (7 May 2007)

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

CRIMINAL CASE No.93 of 2006

PUBLIC PROSECUTOR

-v-

KEVIN AILUL

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

JUDGMENT

This is the trial of the Defendant, Kevin Ailul Karlpuas. The Defendant is charged with 3 offences:

(1) Possession of Cannabis plants, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] in Count;

(2) Cultivation of Cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] in count 2; and

(3) Possession of Cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] in count 3.

The Defendant pleaded not guilty to the 3 offences charged against him.

The Defendant, like 21 others Defendants, was represented by the law firm of Ridgway Blake Lawyers from the Preliminary Inquiry to the plea stage.

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) John Edmanly
(4) Kalboas Eilul
(5) Exhibits:-

- Plants
- Photos
- Crime scene report

The brief facts show that Moses Tom, the Melip Chief, complained to the police that the Defendant and others were in possession of Cannabis plants and were cultivating Cannabis plants at Melip village, South West Malekula, contrary to the laws of Vanuatu.

On 19 October 2006, the Defendants father, Karlpuas Ailul, made a statement to the police that his son Kevin Ailul, the Defendant, planted cannabis plants in a garden with other boys and this because his son and other persons have an association. On 19 October 2006, the Defendant’s father took police officer Tony Berry inside the Defendant’s house. Inside the Defendant’s house, the policeman discovered 123 dried cannabis plants hanging in there. The police officer also discovered a carton containing mainly dried cannabis leaves. The policeman took them to MV Tukoro as part of the exhibits in the investigation of this case.

On 20 October 2006, Police Officer Tonny Berry visited the defendant’s garden and discovered 5 living Cannabis plants in the defendant’s garden. He removed them and brought them to RVS Tukoro.

At that point in time, the Defendant, Kevin Ailul, was in Port-Vila. He was not at Melip village. On 21 October 2006 the police arrived in Port Vila on board RVS Tukoro with the other Defendants from Melip village and the cannabis plants, seeds and leaves seized at the Melip Village.

The Defendant was arrested on that date by the police at the police station in Port-Vila.
On 22 October 2006, police officer Moulon Gerald was informed that the Defendant Kevin Ailull came to Vila to sale cannabis. The policeman asked the Defendant of where he put the cannabis. The Defendant told the policeman that he put the cannabis in the house he stayed in. Outside that house, the Defendant took out some stones and dig out a plastic bag containing 8 other small cello taped plastic bags. They contained cannabis packed leaves and seeds which were in the Defendant’s possession.

The Defendant gave evidence. He admitted that the police brought on board MV Tukoro, his cannabis from his village. He admitted also that 8 small packed cello taped plastic bags were taken from him at Fresh Water, Port-Vila, by the police. This Defendant was cross-examined for sometime. He said he is a member of Presbyterian Church. He believes in the 10 Commandments. The church does not allow cultivation of cannabis. But cannabis is money. Today he and others planted cannabis plants because they bring money to satisfy their physical needs.

He knows that the laws of Vanuatu prohibit the planting of cannabis plants but he planted cannabis because he said he respected the 10 Commandments. Later on he conceded that the 10 Commandments did not allow the cultivation of cannabis plants but cannabis is the creation of God. He said cannabis came on Melip village through Moïse Tohtes Païs. He confirmed that the sale of cannabis generate big cash money. He admitted that he knew that the law of Vanuatu prohibits the cultivation of cannabis plants.

He admitted in his cross-examination when he was questioned that he and others agree that each and all will put as a defence the 10 Commandments. He admitted the secretary general of the Association, Moïse Tohtes Païs, told them to advance their defence in Court and he clarified that Moïse Tohtes Païs gave right to everyone to speak. He also recognized during his cross-examination that the stories of the Old and New Testaments are the same message.

He was asked whether he knows about the bad effects of the cannabis. He hesitated. The question was repeated to him. He evasively said when I sold cannabis to a person, I told the person to smoke cannabis with purpose. The person must not abuse cannabis.

He knows that that he is a citizen of Vanuatu. Malekula Island is part of Vanuatu. Every one follows the laws of Vanuatu. He said he is 20 years of age. He could vote and he had already voted. He finally confirmed that the Government of Vanuatu legislates by enactment against the possession and cultivation of cannabis.
The law is that the prosecution must prove the essential elements of the offence charged against the Defendant beyond reasonable doubt. It there is a reasonable doubt in the prosecution evidence, I must discharge the Defendant and acquit him of one or all offences charged against him.

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 present case, I am satisfied on the evidence (Cannabis taken at the defendant’s house with the assistance of his father on 19 October 2006) that the prosecution has proved the offence of Possession of cannabis plants, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] against the Defendant, Kevin Ailul, as charged in count 1 on beyond reasonable doubt.

I am also satisfied on the evidence (5 living cannabis removed in the defendant’s garden on 19 October 2006) that the prosecution has proved the offence of cultivation of cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12], against the Defendant, Kevin Ailul, as charged in count 2.

I am finally satisfied on the evidence (8 packets leaves and seeds of Cannabis taken at Fresh Water on 22 October 2006), that the prosecution has proved the offence of Possession of cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] against the Defendant, Kevin Ailul, as charged in count 3 on beyond reasonable doubt.

VERDICT

I find the Defendant, Kevin Ailul, guilty of the offences of:

▪ Possession of Cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] in Count 1;
▪ Cultivation of Cannabis, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] in Count 2; and
▪ Possession of Cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] in Count 3;

I direct that the 123 dried cannabis plants, 5 living cannabis plants and 8 packets leaves and seeds of cannabis seized from the Defendant, Kevin Ailul, 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