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Public Prosecutor v Bice [2007] VUSC 43; Criminal Case 100 of 2006 (7 May 2007)

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

CRIMINAL CASE No.100 of 2006

PUBLIC PROSECUTOR

-v-

TOVOR BICE

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

JUDGMENT

This is the trial of the Defendant, Tovor Bice. He is charged with one count of Possession of Cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] and one count of Cultivation of Cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12]. The Defendant pleaded not guilty to both counts.

This Defendant, like 21 others involved in the drug offences in October 2006, at Melip village, was represented by the law firm of Ridgway Blake Lawyers until the plea stages. The defence counsel were excused to attend the trial with the leave of the Court.

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) Gerald Molturalala
(3) Hickson Siba
(4) Erickson Paul
(5) Exhibits:-

- Plants
- Photos
- Crime scene report

The brief facts show that Moses Tom, the Chief of Melip, reported the Defendant to the police. The police went to Melip village. On 20 October 2006, the police arrested the Defendant for planting 92 cannabis plants. He was brought to Vila with the plants. The plants were identified, weighed and tested. The weight of the plants was 11.04kgs. The test revealed the presence of cannabis substance in the plants. The accused admitted to Chief Inspector George Towmey that he had a garden of cannabis, in the area of Molumet, South Malekula.

The Defendant exercises his right to remain silent. He made final submissions and he said he planted cannabis because it was God’s creation.

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

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."

Applying the law to the facts, I am satisfied that the prosecution fails to prove the offence of possession of cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] against the Defendant beyond reasonable doubt.

I am satisfied that the prosecution has proved the elements the offence of Cultivation of Cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12] beyond reasonable doubt against the Defendant.

VERDICT

Possession of Cannabis: NOT GUILTY and ACQUITTED
Cultivation of Cannabis: GUILTY and CONVICTED

I direct that the 92 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