The State v Gigere Undamu [1990] PNGLR 151

• Jurisdiction: Papua New Guinea
• Judge: Doherty AJ
• Judgment Date: 19 April 1990
• Citation: [1990] PNGLR 151
• Court: National Court
• Year: 1990
• Judgement Number: N840

Full Title: The State v Gigere Undamu [1990] PNGLR 151

National Court: Doherty AJ

Judgment Delivered: 18 and 19 April 1990

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 Enzi 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...