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Public Prosecutor v Amboas [2007] VUSC 38; Criminal Case 83 of 2006 (7 May 2007)

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

CRIMINAL CASE No.83 of 2006

PUBLIC PROSECUTOR

-v-

ELMO AMBOAS

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

JUDGMENT

This is the trial of the Defendant, Elmo Amboas. The Defendant is charged with the offence 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 Dangerous Drugs Act [CAP.12].

The Defendant pleaded not guilty to both charges.

This Defendant, like 21 other Defendants of Melip Village, who are charged with drug offences on 20 October 2006, was represented by Messrs Nigel Morrison and Christina Thyna of Ridgway Blake Lawyers. The Defendant like 21 others, decided to represent himself in this trial without the assistance of the defence counsel who are excused from their attendance at the trial with the leave of the Court.

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

(1) Moses Tom
(2) Arnold Wayback
(3) Jim Songi
(4) Gerald Molturalala
(5) The exhibits of the plants, photos and the crime scene report.

The summary of the prosecution evidence are as follows:-

The Defendant, Elmo Amboas, is arrested on 20 October 2006 for cultivation and possession of cannabis.

The Defendant showed to the police officers his garden at Melip Village of 51 plants of cannabis. The photographs show different sizes of the plants and seeds. They were 43 small plants and 17 big plants.

The police arrested and brought the Defendant and the cannabis plants to Port-Vila. The plants were identified and weighed. The weight is 6.02 kg. The Deuquinos Test was carried out on the cannabis plants and seeds. The test showed a reaction of blue colour showing the presence of cannabis substance in the tested samples.

A case was made out against the Defendant, Elmo Amboas. He is required to put forward his defence.

Section 88 of the Criminal Procedure Code Act [CAP.136] was read and explained to the Defendant. He understands his right under s.88.

In his defence, the Defendant admitted he planted cannabis because it was a creation of God and he believes in the Motto of Vanuatu "In God we stand" and also he believes in the biblical principle of the 10 Commandments.

When cross-examined, he said Moïse Tohtes Païs brought the cannabis seeds to Melip Village in 2000. He said he believes in the 10 Commandments but he did not know about the other laws. He also said, he is part of an association and Moïse Tohtes Païs is the Chairperson of it. He said Markwin Ali was the Secretary but when he was in Vila, they appointed Kevin Ailul as the Secretary. He further said that the Association was created under the 10 Commandments of Bible but could not explain nor show to Court which part of the 10 Commandments the Association was created under. He said he did not know about the laws of Vanuatu. He did not go to school but he only reads the bible.

THE LAW

This is a criminal trial. It is the duty of the prosecution to prove each essential elements of the offences charged against the Defendant beyond the reasonable doubt.

The Defendant is not required to prove his innocence. If at the end of the trial, I have a reasonable doubt, on one or both offences charged against the Defendant, I must acquit him on one or both charges.

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."

On the evidence before the Court, there is overwhelming evidence on the offence of cultivation of cannabis plants and this is confirmed by the own admission of the Defendant. However, there is no evidence led by the prosecution against this accused on the offence of Unlawful Possession of Cannabis on the criminal standard required.

Applying the law to the facts, I find the prosecution has proved the offence of cultivation of cannabis plants beyond reasonable doubt against the Defendant Elmo Amboas. I convict the Defendant on the offence of Cultivation of Cannabis Plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12].

I acquit the Defendant Elmo Amboas for Unlawful Possession of Cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12].

VERDICT

Cultivation of Cannabis Plants: Guilty and convicted
Possession of Cannabis: Not guilty and acquitted.

I direct that the 51 Cannabis plants and seeds seized from the Defendant 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