Public Prosecutor v Ali [2007] VUSC 39; Criminal Case 53 of 2006 (7 May 2007)

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

CRIMINAL CASE No.53 of 2006

PUBLIC PROSECUTOR

-v-

MARKWIN ALI

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

JUDGMENT

This is the trial of the Defendant, Markwin Ali. The Defendant is initially charged with the offence of Possession of Cannabis Leaves, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] and Cultivation of Cannabis Plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12].

The prosecution entered a Nulli Prosequi in relation to the charge of cultivation. The Defendant, Markwin Ali, was discharged of that offence of cultivation of cannabis plant and acquitted of it accordingly.

He then pleaded not guilty to the offence of possession of cannabis leaves, contrary to Sections 2(13) of the Act [CAP.12]. Before the trial, the Defendant like 21 other Defendants of Melip village, who are charged with offences of possession of cannabis leaves and cultivation of cannabis plants, was represented by Messrs Nigel Morrison and Christina Thyna of Ridgway Blake Lawyers.

In the trial, the Defendant, like 21 others elected to represent himself in his trial. With the leave of the Court, the defence counsel were excused.

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

(1) Uriel Leo

(2) Tonny Berry

(3) The exhibits of the plants, photos and the crime scene report.

The summary of the prosecution’s evidence show the following:-

The Defendant, Markwin Ali, is from Melip village, South West Malekula. On 17 August 2006, he was in Port-Vila. He arrived in Port-Vila to sell cannabis leaves. One Oliver Jimmy reported the incident to the police. The Defendant was at Fresh Water, Vila. The police searched the house the Defendant lives in and found in a green bag in hi room. In the green bag, police discovered cannabis leaves are contained in:

- bamboo
- wild umbrella with writing
- packet 2,000VT
- 2 white papers containing cannabis
- packet 1,000VT
- small packet.

Furthermore, there was a cargo container at Anabrou, Vila, where cannabis plants were used there. After search, the police found a green plastic bag with the following-

- 100 small packets of cannabis
- 1 packet 6,000VT of cannabis
- 1 packet 3,500VT of cannabis
- 6 small plastic bags of cannabis.

The cannabis found were weighed with their contenant. The total weight is 1007.5 grams (more than 1kg of cannabis). The Deuqunios Test was carried out on the cannabis samples. The test turn blue colour showing the presence of cannabis substance in the samples tested.

A case is made out against the Defendant, Markwin Ali. He is required to put his defence.

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

In his defence, the Defendant says cannabis is a natural thing. God created it. He followed the 10 Commandment and the Vanuatu Motto: "In God we stand". He admitted he came to Vila to sell cannabis. He admitted there are bad side of cannabis. A user of cannabis must use cannabis "long goodfala saed blong hem".

He admitted he sold cannabis for an association. The association is established as a process. He said: "(Association) hemi one process we yumi work long hem. Yumi salem ol samting." He said the 10 Commandment does not prohibit smoking cannabis. He said he is ready to go in prison for how many years because of his faith. He admitted he is a citizen of Vanuatu. He did not deny that the cannabis found and taken by the police at Anabrou and Fresh Wota are his possession.

THE LAW

The law is that in a criminal trial, the prosecution must prove each and all the essential elements of the offence charged against the Defendant beyond a reasonable doubt. The Defendant is not required to prove his innocence. If at the end of the trial, I am left with a reasonable doubt, I must acquit the Defendant of the offence as charged against him.

Sections 2(13) 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

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." [as amended]

Applying the law to the facts as found and admitted by the Defendant, Markwin Ali, the evidence are overwhelmingly against the Defendant Markwin Ali.

I find the Defendant had in his possession on 17 August 2006, a quantity of more that 1kg of cannabis at Anabrou and Fresh Wota for the purpose of selling them for money. I reject the defence and the submission of the Defendant that he planted the cannabis and had cannabis on his possession because of his faith. I found the Defendant misapprehends the biblical principle contained in the 10 Commandments. He used the 10 Commandment for the purpose of hiding behind them because of the commission of the offence.

I find the Defendant, Markwin Ali, guilty of the offence of Possession of Cannabis, contrary to Section 2(13) of the Dangerous Drugs Act [CAP.12] and convict him accordingly of that offence.

VERDICT

GUILTY and CONVICTED as charged.

I direct that the cannabis substance seized from this 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