N840

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GIGERE UNDAMU

Lae
Doherty AJ

30 March 1990
18-19 April 1990

CRIMINAL LAW - Criminal liability and responsibility - Defences Compulsion - Matter for defence evidence - Cannot be raised on no case submission - Criminal Code (Ch No 262), s 32.

CRIMINAL LAW - Practice and procedure - No case submission - Defences - Compulsion - Cannot be raised - Matter for defence evidence - Criminal Code (Ch No 262), s 32.

Held:

The issue of compulsion or justification and excuse under s 32 of the Criminal Code (Ch No 262) is a defence and must be raised by the defendant as part of his evidence in defence: it cannot be argued on a no case submission where it is raised before the court as part of a record of interview tendered by the prosecution.

The State v Angela Colis Towavik [1981] PNGLR 140, considered.
Browne v Dunn (1893) 6 R 67 (HL), adopted.

Cases Cited

The following cases are cited in the judgment:

Browne v Dunn (1893) 6 R 67 (HL).
R v Lupalupa-Sisarowe [1967-68] P&NGLR 455.
The State v Angela Colis Towavik [1981] PNGLR 140.

Trial

This was the trial of an accused on charges of robbery with violence.

Counsel:

B Poiya, for the State.
G Langtry, for the defendant.
Cur adv vult

18 April 1990

DOHERTY AJ.: The defendant is indicted on one count that he on 27 February 1989 at Lae stole from Mack Meninga with actual violence K6,620.00 in cash, the property of one Indosuez Bank, contrary to s 386(2)(a)(b) of Criminal Code (Ch No 262).

The State alleged that the defendant was not one of the persons who actually wielded the gun or entered the bank but a person who assisted the three men who did enter the bank, threatened the employees and took the K6,620.00 by helping them make good their escape after the robbery.

All evidence of prosecution witnesses and the record of interview between the defendant and the police originally presented in the committal proceedings in the District Court were admitted by consent before me. No prosecution witness was called nor was any prosecution witness cross-examined. Defence counsel now makes a submission that the defendant should be discharged, a "no case submission" as it is commonly referred to, on the basis of:

1. insufficient evidence adduced by the prosecution;

2. State case not improved on if the defence was called on to give evidence.

The facts before me show:

The defendant, an employee of TNT Aircargo drove with his fellow employee Alex Kowana to deliver various packages (as they were employed to do) in Lae on 27 February 1989. They delivered packages at the IPI Building, 2nd Street, Lae and at 8.40 approx delivered packages at Indosuez Bank in 2nd Street Lae. That package was delivered by a person referred to as a "Finschhafen man", Kowana is from the Eastern Highlands, the defendant from Finschhafen. When Kowana finished delivering the package, the defendant who was driving, was no longer at the place where Kowana had left him, so Kowana walked to the next stop on his list, Enzit Bookit. While there he saw the defendant, in the company vehicle a Mazda, AFJ 842, drive past. The defendant stopped; they entered Enzit Bookit but Kowana was told to wait there while the defendant went off without saying where he was going. Kowana waited a "long time" and after waiting this unspecified "long time" left to get himself something to drink, consumed it and returned to Enzit Bookit. After a further half hour wait, the defendant returned and collected him. Their work run was then resumed until the police interviewed and told the defendant to go to the station. He did not explain to Kowana, other than to say ‘mi save", why he should be called to the station.

In the period the defendant was not with his fellow employee, Kowana, the bus was seen at about 10 am parked at the back of the Indosuez Bank. Four people were seen "telling stories" at the bus. The defendant was seen to open the door of his bus and sit on the driver’s seat. A witness spoke to him in passing and after doing so the witness heard a gunshot and saw three people running down the small lane leading to the back of the Indosuez Bank, one was masked and armed with a gun. He says "they ran straight into the TNT bus, jumped in and the driver drove off". Seken Amuwa was also walking in that area at 10 am and saw the three men running, his finger was injured by a pellet from a shot fired by one of the three men.

At 10.30 am three men, one masked and armed with a shotgun and one with a knife had entered the Indosuez Bank and threatened several employees and robbed a teller of bank money within his custody, a total of K6,620, before running off firing a shot was they left.

There is no doubt the robbery occurred and the perpetrators made good their escape by driving off in the TNT bus. A witness, Thomas Kumani, describes three young men dressed in a manner similar to the description given by bank tellers talking to the defendant. The bus was seen by Agino Eruna; later he parked in the same place. In the interim Kumani had gone to the office where he worked, delivered a newspaper and collected money for other papers and walked back to see the three men get into the bus.

This evidence has been unchallenged in court and is unrebutted. An explanation was given to police in the record of interview and this was also tendered as part of the evidence without objection the defendant says he makes no reference to his conversation with the three men. His first explanation was that he was delivering documents to PSA and PEA first and then Indosuez — which fails to explain why he sat there for a further half an hour. Later he says Indosuez was first and the delivery to PEA and PSA was later and a delay was from Nadzab, when he went to the hospital "to pick another boy". I do not understand this reference to Nadzab and the hospital.

Defence counsel says his client was forced to drive. This raises a fundamental question. Can the defendant raise compulsion in a "no case submission"? Compulsion arises under s 32 of the Criminal Code. Compulsion is a defence and a matter that must be raised by the defendant. He has not raised it in this Court; it comes as part of the investigatory evidence carried out by the police.

All the prosecution evidence indicates that the defendant was absent from his employment for a long time, that he was parked in a place to which he had already delivered packages and had, it appears from prosecution evidence, no cause to be in, was seen chatting, "telling stories", as it is stated, to three men answering the description of the robbers, who were seen going into his vehicle some short time later, after a robbery was committed. We do not know the exact time it took to rob the bank but an estimate from various witnesses’ statements is 7-10 minutes. During this time the three were absent and the defendant had time to drive away.

There was no immediate compulsion on the defendant at that time. No person was actually present or in a position to inflict harm on him. There was no immediate danger, nor was it an act done, to cite R v Lupalupa-Sisarowe [1967-68] P&NGLR 455 at 464: "... on resisting actual and unlawful violence."

In The State v Angela Colis Towavik [1981] PNGLR 140 at 145, Miles J considered that "actual" must mean "physical" and on the evidence here there is no physical presence compelling the defendant. Compulsion is a defence, it is to be raised by the defendant in defence: a court cannot raise it through a record of interview. It must be a defence raised in court by the defendant. I find a case to answer.

19 APRIL 1990

I ruled yesterday on the no case answer and stated the findings of facts. The defendant has given evidence.

I was not impressed with the way this case was conducted, the defendant in his own evidence disputes facts of the prosecution witnesses which were put in as evidence without question or comment. If evidence is tendered by consent of both counsel, counsel cannot later dispute its contents in whole or in part. The rule in Browne v Dunn (1893) 6 R 67 (HL) has been adopted and is often referred to. A party must put his case and failure to do so carries certain implications.

[Her Honour then considered the evidence, found compulsion proved and entered a verdict of not guilty.]

I have found as a fact that the defendant was away from his normal run, was talking to the other three (which he denies) and had no cause to be in the place he was. He now raises further matters.

Verdict of not guilty

___________

Lawyer for the State: Public Solicitor.
Lawyers for the defendant: Mionzing and Associates.