R v Pangilinan[2001] QCA 81

SUPREME COURT OF QUEENSLAND

1. THE COURT:  The appellant, Jorai Severo Pangilinan, appeals against his conviction for the murder of Kevin Sutton Anderson at The Gig Nightclub on or about 1 February 1998.  The contention is that such a verdict by the jury was inconsistent with the verdict that the appellant was not guilty of causing grievous bodily harm to Hilton Todd Owens with intent to do grievous bodily harm and was, for that reason, unsafe and unsatisfactory.  The inconsistency was said to be between the satisfaction of the jury that the appellant had an intention to kill or do grievous bodily harm to Anderson and their conclusion that he did not have an intention to cause grievous bodily harm to Owens.  The consequence of the submissions made on behalf of the appellant was that a conviction for manslaughter should be substituted for that of murder.

2. It should be recorded that counsel for the appellant expressly abandoned the remaining ground raised by the notice of appeal.

3. As a result of a few minutes of mayhem at the nightclub on the evening in question Anderson died from a single knife wound to his chest, Owens received a cut in his left lower neck region, Gary Wayne Pryer sustained a number of injuries including a deep short laceration over his left eye, and Darrin Van Johnson received a four centimetre cut to his left lateral forearm which cut deep into his muscle. It was admitted by the appellant that he had the knife in his hand when it occasioned each of those injuries. The indictment presented against the appellant contained five counts:

Count 1 - murder of Anderson;

Count 2 - grievous bodily harm to Owens with intent to do grievous bodily harm;

Count 3 - alternatively to count 2, grievous bodily harm to Owens;

Count 4 - unlawful wounding Pryer;

Count 5 - unlawful wounding Johnson.

4. The jury returned guilty verdicts with respect to counts 1, 3, 4 and 5; as already noted the appellant was found not guilty of count 2.

5. Anderson, Owens, Pryer and Johnson were all African-American sailors on leave from a US navy vessel berthed in Brisbane. They were among a larger group of American sailors who were at the nightclub at the material time.

6. It was not disputed that the appellant took the knife in question to the nightclub. In the formal admission he said: "I often carried a knife on my keyring. I took it into the nightclub". The knife was before the jury as an exhibit. It was described by the crown prosecutor in his opening as "a solid metal, brass handled knife with a sharp edge on one side and a flat and serrated edge on the other with a clip such as one sees on keyrings attached to the other". Dr Naylor, the pathologist who performed the post-mortem on Anderson, measured "the length of this blade from the hilt . . . to the point of the tip" as being "just over nine centimetres".

7. At this point it is also worth noting that Dr Naylor estimated the length of the track of the stab wound to Anderson as being "approximately nine centimetres"; in other words the knife penetrated Anderson's chest to the full extent of the blade. Dr Naylor indicated the external wound was to the left of the upper breast bone and it continued through the skin, through the pectoral muscles, and penetrated the left chest cavity, slitting the chest wall, and then continued in a downwards direction until it entered the heart itself.  His evidence was that the track continued in a direction that was mainly downwards and towards the deceased's back, but that it also angled slightly inwards towards the mid-line. 

8. There was no medical evidence as to the injuries sustained by Owens, Pryer and Johnson. The description of their inquiries set out above is taken from the formal admission made on behalf of the appellant.

9. Owens gave evidence at the trial. He did not see what occasioned the injury to his neck. He said in evidence: "I guess there was some pain there. I just instantly put my hand over my neck". He was taken to hospital where he had "major surgery" and was a patient for "about seven days". His evidence was to this effect: "They had to fix my lung because my lungs collapsed - filled with blood. Had to fix all my nerves and arteries in my neck".

10. Based on that evidence counsel for the appellant submitted that the nature of the wound to Owens was "very similar" to that sustained by Anderson. He submitted that with Owens there was "a single downward tracking wound entering in or about the neck . . . and continuing . . . to the lung". The evidence does not establish that there was any stabbing injury to Owens' lung. There was no medical evidence as to the cause of the lung filling with blood, and there is no basis for concluding that the stabbing must have punctured the lung. Whilst there is some similarity between the stabbing wounds to Anderson and Owens it is patently obvious from the evidence quoted that the wound to Anderson penetrated more deeply into the body, which may well have indicated the use of a greater degree of force.

11. Further, there was no medical evidence to support or confirm Owens' description of his injury. A reasonable jury may well have decided not to act upon the description he gave. That meant they were left with the admission that Owens "received a cut in his left lower neck region" and that "it was an injury of such a nature that, if left untreated, it would have been likely to have endangered his life".

12. The prosecution called a multitude of witnesses who were present in the nightclub at the time; included in that number were Owens, Pryer and Johnson. The appellant did not give evidence. As is not surprising there was quite a deal of inconsistency in the evidence given by persons who claimed to be eyewitnesses. Many had consumed a considerable quantity of alcohol. There was a high-level of noise in the nightclub; music was being amplified. Strobe lighting was in use and that created some distortion. The whole episode occurred in a short space of time during which numerous people were moving towards or away from where the critical events occurred. In those circumstances it is not surprising that, particularly after cross‑examination, inconsistencies emerged in and between the evidence of honest witnesses.  In the circumstances it was for the members of the jury to determine what evidence they were prepared to accept and act upon.  They were, of course, entitled to accept parts of, and reject other parts of, evidence given by a particular witness.  They were not required to reject all of the evidence given by a witness because they regarded some parts of it as inaccurate or improbable. 

13. The major defences raised by the appellant before the jury were provocation and self defence. The jury verdict means that such defences were rejected. No issue was raised on appeal with respect to that aspect of the trial.

14. Counsel for the appellant dwelt at some length on passages in the evidence which suggested that immediately before the incidents giving rise to the charges the appellant was approached in a threatening way by a group of American sailors led by a sailor named Law, and including in the group Owens and Pryer. It was submitted that that scenario was relevant because it gave the appellant a motive for injuring Owens, but importantly there was in that situation no motive for injuring Anderson who on most, if not all, accounts was an innocent bystander. It was submitted in those circumstances that it was unreasonable for a jury to be satisfied that the appellant had an intention to kill or do grievous bodily harm to Anderson, but no intent to cause grievous bodily harm to Owens.

15. Whilst there was evidence which, if accepted by the jury, could have established that Law, Owens and Pryer approached the appellant in a threatening manner, there was other evidence which the jury could have accepted putting a different complexion on what led up to the stabbings. For example, there was evidence from another sailor, Palmer, that the appellant approached a group of the American sailors saying: "These fucking niggers better not fuck with me". According to Palmer the appellant went on to say: "Some of your boys from the ship started to shit with me . . . They don't know who they're fucking with. . . . I lived in California three years. I know what's up. . . . I am going to point them out. You better go talk to them because I am Judge and I will be the executioner of this mother fucker." If the jury accepted that those words were used, then it followed they were used by a person who had gone to the nightclub armed with a knife. That could have had an impact on the reasoning of the jury.

16. As already noted the description of relevant events varied as between witnesses, and in some instances there were internal inconsistencies in the evidence given. However, a reasonable jury could have accepted, based on evidence from a number of witnesses, that two sailors had been stabbed or injured (probably Owens and Pryer) before the deceased was stabbed. There was then evidence to the effect that in the early part of the incident the appellant was waving the knife around in a slashing movement. Such a conclusion could be drawn from consideration of evidence given by a number of witness, but perhaps particularly McDonald and McKay. Then a witness, Shepherd-Ashby, described seeing Anderson stabbed. She saw the appellant with his hand raised and then moving it in a "sort of downward movement" in the direction of Anderson. The witness McDonald spoke of the appellant becoming more confident as the incident progressed and adopting a "boxing stance". The witness McKay gave evidence she saw the appellant in a "crouching" position and then standing up. Her description went on that he "raised his hand and then stabbed one of the guys". That was obviously a reference to the stabbing of Anderson.

17. Counsel for the appellant in the course of submissions highlighted matters in the evidence of witnesses such as McDonald and McKay which he contended established that a reasonable jury ought not to have accepted those parts of their evidence to which we have referred. However it seems to us that a reasonable jury was entitled to act on statements such as those describing how Anderson came to meet his death. The matters pointed to by counsel for the appellant were all jury issues.

18. It must be remembered that there is a clear admission by the appellant that he took the knife to the nightclub, and that he used that knife to cause the various injuries to the four sailors. There is also the undisputed medical evidence as to the nature of the stabbing wound sustained by Anderson. The passages referred to from the evidence of McDonald and McKay are completely consistent with the act which would have caused the injury in question to Anderson.

19. If the jury accepted a body of evidence, much of which came from American sailors, they may well have been satisfied that immediately before the incident Law, and perhaps Owens and Pryer acted aggressively towards the appellant. That may have given the appellant some motive for attacking Owens. But the absence of a specific motive for attacking Anderson does not assist the appellant. Clearly on all the evidence a jury was entitled to conclude that a stage was reached where the appellant was aggressively striking out at any American sailor in the immediate vicinity.

20. As is usually the case the element of the appellant's intention at the time of causing the injury became a matter of inference to be drawn from the surrounding relevant circumstances. In that regard the jury had the medical evidence of Dr Naylor as to the injury sustained by the deceased. As already noted the knife was driven for the full length of its blade into the deceased's chest. The jury may well have inferred that considerable force was used to cause that injury. Further, it was a relevant fact that the point of contact was to the left side of the chest where the heart is located. Then the jury had the evidence from witnesses such as McDonald, Shepherd-Ashby and McKay as to the appellant's movements at about the time of delivering the blow. In our view a reasonable jury was entitled to draw the inference from all the evidence, particularly the evidence just noted, that at the time of delivering the blow the appellant had the intention of killing or causing grievous bodily harm to the person being attacked. If the jury was satisfied that the appellant had used the language quoted above then that would not have assisted his case.

21. So far as counts 4 and 5 were concerned, the unlawful wounding of Pryer and Johnson, no element of intention was included in the offence. On the admissions, once provocation and self-defence were negatived, the convictions were inevitable.

22. In his summing up the learned trial judge correctly told the jury that they had to consider each count on the indictment separately. He also specifically instructed the jury as to the distinction between counts 2 and 3. Again once provocation and self-defence were negatived a conviction on count 3 followed inevitably. In that circumstance the only real question for the jury was whether or not they were satisfied beyond a reasonable doubt that at the time the appellant inflicted the injury on Owens he had an intent to do grievous bodily harm. Again that involved the drawing of inferences from matters established by the evidence. As already noted, the formal admission was that Owens received a "cut in his left lower neck region". A reasonable jury, notwithstanding what Owens added in evidence about the injury, could well have concluded that the injury was not similar to that sustained by Anderson, and in consequence to have been of the view that the degree of force involved was significantly less than that used in inflicting the injury to Anderson. Further, the jury had no specific evidence describing the action of the appellant in stabbing Owens. Given all that it is understandable that a reasonable jury may well have had a doubt as to the appellant's intention at the time of delivering the blow to Owens. That may be particularly so if they were satisfied that Owens was injured early on in the melee.

23. The High Court in MacKenzie v R (1996) 190 CLR 348 especially at 366-9 considered the circumstances in which an appellate court may set aside a verdict on the ground that it is inconsistent with another verdict reached.  This is not a case where it could be said that the different verdicts on counts 1 and 2 constituted "an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty". (368)  Here there is, in our view, a "proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required" and in consequence the verdicts should be accepted. (367) There is, in our view, evidence to support each of the verdicts of the jury and in consequence there is no basis for an appellate court substituting its opinion for one which was clearly open to the jury.  In any event, as discussed by the High Court in MacKenzie, this case may simply be another illustration of a jury having a doubt as to the appellant's intention with respect to count 2 and being satisfied that a conviction on count 3 was sufficient to meet the justice of the situation.

24. The verdicts on counts 1 and 2 are not inconsistent, and there is no proper basis upon which this court could set aside the verdict on count 1.

25. The appeal should be dismissed.