SUPREME COURT OF QUEENSLAND
CITATION: R v Pangilinan [1999] QCA 528 PARTIES: R
v
PANGILINAN, Jorai Severo
(appellant)FILE NO/S: CA No 73 of 1999 SC No 408 of 1998 DIVISION: Court of Appeal PROCEEDING: Appeal against conviction ORIGINATING
COURT:Supreme Court at Brisbane DELIVERED ON: 23 December 1999 DELIVERED AT: Brisbane HEARING DATE: 24 November 1999 JUDGES: McMurdo P, Davies JA and Thomas JA
Judgment of the CourtORDER: Appeal allowed and convictions on all counts set aside.
Retrial limited to counts 1, 3, 4, 5 and 6CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – WHERE GROUNDS FOR INTERFERENCE WITH VERDICT – PARTICULAR CASES – WHERE APPEAL ALLOWED CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – SELF DEFENCE AND OTHER FORMS OF DEFENCE – GENERALLY – Appellant convicted of murder, grievous bodily harm with intent and wounding of four persons by stabbing in incident at nightclub – whether trial judge erred in failing to permit jury to consider self-defence under s 271(1) and s 272(2) of the Code – whether some evidence which, if accepted, reveals a sufficient level of violence directed against appellant to support inference of reasonable belief on his part of very serious personal danger – no statements or evidence from accused as to his state of mind – existence of appropriate "belief" of accused person nearly always a matter of inference by jury from the circumstances – evidence that deceased was part of a group who were assaulting the appellant – no reason to confine "assailant" in s 271 to singular person – issue should have been left to the jury CRIMINAL LAW – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – AVAILABILITY OF DEFENCE – Appellant convicted of murder, grievous bodily harm with intent and wounding of four persons by stabbing in incident at nightclub – whether trial judge ought to have directed jury on issues of provocation and mistake – whether evidence reasonably capable of raising defences – accused did not give evidence of actual loss of self-control – whether s 269 definition of provocation governs its meaning in s 304 of the Code – balance of authority supporting common law definition of provocation – Roche v The Queen [1988] WAR 278, (1988) 29 A Crim R 168 distinguished – evidence in this case sufficient to raise reasonable possibility of loss of self-control due to mixture of fear and anger based on threats, physical gestures and conduct by group of persons of whom the victim might reasonably be thought to have been a member – issue should have been left to the jury Acts Interpretation Act 1954, s 32C applied
Criminal Code 1899, s 24, s 269, s 271, s 304 discussed
R v Buttigieg (1993) 69 A Crim R 21, followed
R v Muratovic [1967] Qd R 15, discussed
R v Porritt [1961] 1 WLR 1372, discussed
R…
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Details
- AGLC
- R v Pangilinan [1999] QCA 528
- Case
- [1999] QCA 528
- Decision Date
CaseChat Overview and Summary
In the matter of R v Pangilinan, the appellant contested his convictions on various criminal charges, including unlawful wounding and murder, in the Supreme Court of Queensland. The appeal centered on the trial judge's direction to the jury, specifically regarding the self-defense provisions under sections 271(1) and 271(2) of the Code. The appellant argued that the trial judge failed to properly instruct the jury on self-defense under section 271(2), which pertains to the defense of others. The court was required to determine whether the trial judge's omission constituted a misdirection that warranted a retrial of the appellant's convictions.
The court found that the trial judge erred in not allowing the jury to consider the issue of self-defense under section 271(2) and in failing to direct the jury on the possibility of provocation as a mitigating factor for reducing murder to manslaughter. The evidence presented during the trial indicated that the appellant faced threats and aggressive conduct from a group of individuals, including the victim, which could have reasonably led to a belief of serious personal danger. This belief, if accepted by the jury, would have supported the defense of self-defense. Furthermore, the court noted that the trial judge should have instructed the jury to consider provocation as it was properly raised by the evidence. The court held that these errors in the jury instructions necessitated a retrial to ensure a fair trial.
The court allowed the appeal and set aside the convictions on all counts. It ordered a retrial limited to specific counts: 1, 3, 4, 5, and 6. The court also commented on the admissibility of certain evidence that was improperly excluded and on the competence of the appellant's trial counsel, though these points did not affect the ultimate decision due to the need for a new trial on the identified counts. The court's ruling underscored the importance of properly instructing juries on all available defenses to ensure the integrity of the trial process.
The court found that the trial judge erred in not allowing the jury to consider the issue of self-defense under section 271(2) and in failing to direct the jury on the possibility of provocation as a mitigating factor for reducing murder to manslaughter. The evidence presented during the trial indicated that the appellant faced threats and aggressive conduct from a group of individuals, including the victim, which could have reasonably led to a belief of serious personal danger. This belief, if accepted by the jury, would have supported the defense of self-defense. Furthermore, the court noted that the trial judge should have instructed the jury to consider provocation as it was properly raised by the evidence. The court held that these errors in the jury instructions necessitated a retrial to ensure a fair trial.
The court allowed the appeal and set aside the convictions on all counts. It ordered a retrial limited to specific counts: 1, 3, 4, 5, and 6. The court also commented on the admissibility of certain evidence that was improperly excluded and on the competence of the appellant's trial counsel, though these points did not affect the ultimate decision due to the need for a new trial on the identified counts. The court's ruling underscored the importance of properly instructing juries on all available defenses to ensure the integrity of the trial process.
Orders
Orders of the court
Appeal allowed and convictions on all counts set aside.
Retrial limited to counts 1, 3, 4, 5 and 6
Background
Background to the litigation
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Evidence
Evidence Before The Court
On the unlawful wounding counts his Honour again directed the jury on self defence under s 271(1), but not under s 271(2). Summary of evidence As is common when violence involving multiple persons occurs in a crowded area there is much inconsistency in the evidence and it is difficult to obtain a coherent view of the order of events. The need for a summary of evidence in this appeal is not so much to present the strongest or most likely case from the Crown point of view, but rather to assess whether the evidence raises the reasonable possibility that the appellant acted in self defence. Shortly stated, the central point is whether there is some evidence which, if accepted, reveals a sufficient level of violence directed against the appellant to support the inference of a reasonable belief on his part of very serious personal danger[1]. [1] Cf R v Bojovic [1999] QCA 206; CA No 4 of 1999, 8 June 1999. A considerable number of African-American marines attended the nightclub on the occasion in question. It is not known how many were present, but 15 were named in evidence (Law, Anderson, Owens, Pryer, Johnson, Neal, Scaggs, Martinez, Williams, Butler, Wiggins, Palmer, Clements, McDonald and Randall) and the evidence shows that other unnamed personnel were also present. It is also clearly shown that there had been earlier tension and threatening words between the appellant and a number of the marines, particularly with Neal and Law. These earlier incidents are described in the evidence of Neal, Palmer and Wiggins. The evidence of Butler describes a point prior to confrontation in which the injuries were caused when Law broke his way through the crowd screaming that he was going to kill or get "that motherfucker". Law was pointing toward the appellant who was then standing with his hands at his sides. Butler and others sought to restrain Law but he refused to be restrained or calmed. Williams, who heard a commotion, saw Law, Owens and Pryer close to the appellant, confronting him. Randall saw Law assault the appellant, describing him as "swinging and kicking". Law himself confirmed that he punched the appellant and connected at least twice. There is conflicting evidence concerning the role played by Owens and Pryer, but there is evidence that they went to the immediate vicinity. Pryer weighed 225 pounds and was described as "husky". The appellant is of slim build and at the relevant time weighed 117 pounds. Butler describes Anderson, Pryer and Owens as trying to get Law out of the club. Neal however describes Law and the appellant as "in each other's face" and that when Law pushed the appellant away the appellant stumbled and "that’s when the fight started". The appellant then stood with his hands up in the air, probably in some sort of fighting pose, though his fists were not clenched. There is no suggestion that he was holding a knife at that stage. People on the dance floor backed away and something like an inner circle was formed. Neal saw that Pryer and Owens were with Law within a couple of seconds of the hostility commencing. He did not see the blows or stabs that produced the injuries but he later saw Owens with his hand on his neck and swinging his other arm. Pryer was at that stage "coming at the boy" (the appellant) and was "going to knock him out".
Decision
Reasons for decision
In our view the evidence was sufficient to raise the reasonable possibility of a loss of self control due to a mixture of fear and anger based on threats, physical gestures and conduct by a group of persons of whom the victim might reasonably be thought to have been a member. On the evidence that was given in this trial, the issue of provocation was raised with respect to all charges. It is true that no application was made by the defence for this issue to be considered by the jury, but where it is properly raised the Court has a duty to direct on the issue. Conclusions The learned trial judge erred in refusing to allow the jury to consider the issue of self defence under s 271(2) of the Code. His Honour further erred in failing to advise the jury to consider the question of provocation as a possible basis for reducing murder to manslaughter. There must be a retrial. It is therefore unnecessary to consider the other grounds that have been raised. However as there will be a retrial it is desirable to say something about the admissibility of the evidence referred to in ground 10. In our view his Honour erred in excluding evidence of a statement made by Law to Owens just before the fight including "We'll get in a fight, let's go". Plainly this should have been received as direct evidence of Law's conduct at a material time and as evidence that he was enlisting the support of other persons in his group, including Owens for the purposes of a fight with the appellant. It is unnecessary to canvass the extensive evidence given before this Court designed to support the ground of alleged incompetence of Mr Boe who appeared on behalf of the appellant at trial. It is enough to say that Mr Boe was essentially correct in advising the appellant that there was sufficient evidence in the Crown case to raise self defence and that it should be able to be considered by the jury in the event that the appellant elected not to give evidence. There is nothing in his advice to his client against giving evidence that could support the now popular ground of incompetence of trial counsel. The options were fairly explained to the appellant and the advice was unexceptionable. The only aspect of ground 6 that would bear further examination arises from the fact that after the unfavourable ruling was received from the learned trial judge, Mr Boe did not advise his client of the possibility of re-election. Of course there is no right of re-election, and its grant would have depended upon an indulgence from the learned trial judge. However counsel for the Crown upon the appeal, Mr Rafter, has conceded that in the circumstances if such an application had been made it would have been an error on the part of the learned trial judge to have refused to grant it. It is unnecessary to pursue this point further, as the non-consideration by the jury of defences that were raised on the evidence means that there must be a new trial. Orders The appeal should be allowed and the convictions on all counts set aside. There should be a retrial limited to counts 1, 3, 4, 5 and 6.
Ratio Decidendi
Legal Principle Established
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