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Public Prosecutor v Alick [2007] VUSC 40; Criminal Case 86 of 2006 (7 May 2007)

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

CRIMINAL CASE No.86 of 2006

PUBLIC PROSECUTOR

-v-

JUSTIN ALICK

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

JUDGMENT

This is the trial of the Defendant, Justin Alick. He is charged with one count of Cultivation of Cannabis Plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] and one count of Unlawful Possession of Cannabis Plants, contrary to Section 2(13) of the same Act.

He pleaded not guilty to both charges. This Defendant, like 21 other Defendants who are charged with same type of drug offences, was represented by Messrs Nigel Morrison and Christina Thyna of Ridgway Blake Lawyers. However, the defence counsel were excused to represent the Defendant, with the leave of the Court at the trial.

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) The following exhibits are part of the agreed facts:

- Plants
- Photos
- Crime scene report

The brief facts are that, Moses Tom, the Chief of Melip complained to the police about 21 people of Melip including the Defendant cultivating cannabis plants and possession of cannabis.

On 19-20 October 2006, the police on board MV Tukoro arrested 20 persons at Melip Village, South West of Malekula, including the Defendant. The Defendant planted cannabis plants in his garden. He was brought to Vila with the cannabis plants. The plants were identified, weighed and tested by the police/Quarantine Officer. The plants weighed 0.14kg. The Deuqunois Test turned blue colour showing the presence of cannabis substance in the plants. On 20 October 2006, the police officers (Gerald Moulon, Chief Inspector CID Officer George Towmey, CPL ARio Charley, PTE Winbong Jeffrey) witnessed the Defendant Justin Alick took 4 Cannabis plants from his garden to them.

A case was made out against the Defendant. He was 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 and to offer no defence.

However, during the final submissions, he said based on his faith, he knows that cannabis is the God’s creation so he planted cannabis.

The law is that the prosecution must prove the elements of the offence charged against the Defendant. If there is a reasonable doubt the Defendant must be acquitted of the offence.

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."

There is evidence against the Defendant on the charge of cultivation of cannabis plants on the criminal standard. There is no evidence or not sufficient evidence against the Defendant on the charge of Unlawful Possession of Cannabis plants on the criminal standard of burdens.

The Defendant Justin Alick is guilty of the offence of Cultivation of Cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] and convicted accordingly.

He is not guilty and acquitted on the charge of Unlawful Possession of Cannabis, contrary to Section 2(13) of the Act.

VERDICT

COUNT 1: GUILTY and CONVICTED
COUNT 2: NOT GUILTY and ACQUITTED

I direct that the 4 Cannabis plants seized from the Defendant 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