Legal Research
Cases
Filippou v R

Filippou v R

Case [2013] NSWCCA 92 2 May 2013

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Filippou v R [2013] NSWCCA 92
Hearing dates: 9 November 2012
Decision date: 02 May 2013
Before: McClellan JA at [1]
Fullerton J at [124]
S Campbell J at [125]
Decision:
22 December 2011

Catchwords: CRIMINAL LAW - appeal against conviction - murder - application of s 23 Crimes Act 1900
CRIMINAL LAW - appeal against sentence - application of standard non-parole period following Muldrock v The Queen [2001] HCA 39; 224 CLR 120
Legislation Cited: Crimes Act 1900
Cases Cited: Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Moffa v The Queen (1977) 138 CLR 601
Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
R v R (1981) 28 SASR 321
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v XX [2009] NSWCCA 115 at [52]; (2009)
195 A Crim R 38
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category: Principal judgment
Parties: Christopher Angelo Filippou (Appellant)
Crown
Representation: Counsel:
P Rosser QC (Appellant)
S Dowling (Crown)
Solicitors:
John Anthony Solicitors (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/208897
Decision under appeal

Citation:

[2011] NSWSC 1607

Date of Decision:

2011-12-22 00:00:00

Before:

Mathews AJ

File Number(s):

2010/208897

Judgment

McCLELLAN JA: The appellant was charged with and convicted of the murder of Sam Willis and his brother Luke Willis on 27 June 2010. He admitted that he had shot them on the footpath outside his home in Mayfield but pleaded to each count that he was not guilty to murder but guilty to manslaughter.

The issue at the trial was provocation. It was accepted by the appellant that his acts had occasioned death in each case in circumstances which, but for the assertion that he was provoked, would have amounted to murder. He was tried by a judge sitting without a jury. Accordingly, the reasons for judgment of the trial judge can be examined by this Court.

The appellant was sentenced on each count to a non-parole period of 20 years imprisonment with an additional term of 6 years. The trial judge provided an accumulation of 5 years and accordingly the effective sentence is a minimum of 25 years with an additional term of 6 years.

There are three grounds of appeal although, having regard to the submissions that are made, Ground 3 has no significance. The grounds are as follows:

Ground 1: Her Honour's verdict is unreasonable and cannot be supported having regard to the evidence, in particular, but not exclusively, upon the following bases:

(a) that, in finding that there was no reasonable possibility that the applicant had lost self control within the meaning of s 23 of the Crimes Act 1900 at the time that he fired the shots causing death, her Honour:

(i) misdirected herself as to the inferences to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Filippou v R

Details

AGLC: Filippou v R [2013] NSWCCA 92
Case: [2013] NSWCCA 92
Decision Date: 02 May 2013

CaseChat Overview and Summary

The appellant, Filippou, was convicted of murder and subsequently appealed both the conviction and the sentence imposed. The case was heard by the court of appeal, which had to determine the validity of the lower court's decision on the applicability of section 23 of the Crimes Act 1900, as well as the appropriateness of the non-parole period set following the precedent established in Muldrock v The Queen. The primary issue before the court was whether the trial judge erred in law by applying section 23 of the Crimes Act, which pertains to the definition and circumstances of murder. The appellant argued that the trial judge incorrectly interpreted the law and misapplied it to the facts of the case, thereby affecting the conviction.

In addition to the conviction, the appellant challenged the sentence, arguing that the non-parole period set by the trial judge was too severe. The court of appeal was required to examine whether the trial judge appropriately considered the principles set out in Muldrock v The Queen when determining the non-parole period, particularly in light of the unique circumstances of the case. The court had to consider whether the trial judge erred in the application of the Muldrock principles, leading to an excessively long non-parole period. The court of appeal meticulously examined the arguments presented and the evidence provided, ensuring that the trial judge's decisions were in accordance with the law and that the sentence imposed was proportionate to the crime committed. Ultimately, the court of appeal upheld the conviction but varied the sentence to reflect a more appropriate non-parole period.

Orders