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Public Prosecutor v Bice [2007] VUSC 36; Criminal Case 85 of 2006 (7 May 2007)

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

CRIMINAL CASE No.85 of 2006

PUBLIC PROSECUTOR

-v-

JSERETY BICE

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

JUDGMENT

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

Messrs Nigel Morrison and Christina Thyna of Ridgway Blake Lawyers represented this Defendant, like the 21 other Defendants, from the Preliminary Inquiry to the plea processes. At the trial, the defence counsel were excused from representing the Defendant.

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) Erickson Paul

(3) Hickson Siba

(4) Exhibits

- Plants

- Photos

- Crime scene report

The brief facts are that on 20 October 2006 the Defendant was arrested at Melip Village, South West Malekula after a complaint made by Moses Tom, Chief of Melip.

The police have discovered that the Defendant had cultivated 31 cannabis plants in her garden. This is confirmed by her mother and the Defendant Tovor Bice. Police removed the plants and brought the Defendant with the plants in Port-Vila. The plants were identified and weighed. The weight is 1.90kg. The plants were tested and the test showed the presence of cannabis substance in the plants.

The Defendant admitted she planted cannabis because cannabis plant is ‘God’s creation’.

She was cross-examined. She said she is a member of an association. Cannabis became popular at Melip Village in 2000 after Moïse Tothes Païs brought them to Vanuatu. She admitted also that cannabis is good money. When challenged on whether the defence of "God’s creation" is an excuse because the real reason for planting cannabis is that cannabis provide good money, she confirmed that.

The law is that the prosecution must prove the element of the offence on beyond reasonable doubt. If there is a reasonable doubt, I must acquit the Defendant.

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 facts as found, there is evidence against the Defendant on the offence of cultivation of Cannabis plants. There is not enough evidence on the offence of Unlawful Possession of Cannabis.

The Defendant, Jserety Bice is convicted on the charge of cultivation of cannabis plants, contrary to Section 4 of the Dangerous Drugs Act [CAP.12].

The Defendant, Jserety Bice is acquitted on the charge of unlawful possession of cannabis, contrary to Section 2(13) of the Act.

VERDICT

COUNT 1: GUILTY and CONVICTED for the offence of Cultivation of Cannabis
COUNT 2: NOT GUILTY and ACQUITTED on the charge of unlawful Possession of Cannabis

I direct that the 31 plants of Cannabis 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