On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with G A Bashir SC and J L Roy for the appellant (instructed by John Anthony Solicitors)
L A Babb SC with K McKay for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Filippou v The Queen
Criminal law – Appeal – Appeal against conviction – Trial by judge alone – Application of Criminal Appeal Act 1912 (NSW), s 6(1) in appeal from trial by judge alone – Application of "proviso".
Criminal law – Appeal – Appeal against sentence – Aggravating and mitigating circumstances – Onus and standard of proof – Where not proved beyond reasonable doubt that appellant brought murder weapon to scene and not proved on balance of probabilities that deceased brought murder weapon to scene – Whether sentencing judge bound to take view of facts most favourable to offender.
Words and phrases – "miscarriage of justice", "substantial miscarriage of justice".
FRENCH CJ, BELL, KEANE AND NETTLE JJ. In October 2011, the appellant stood trial before the Supreme Court of New South Wales by judge alone (Mathews AJ) on two counts of murder. To each count he pleaded not guilty of murder but guilty of manslaughter by reason of provocation. The sole issue at trial, therefore, was provocation. On 18 November 2011, the judge found the appellant guilty of murder on both counts[1] and, on 22 December 2011, her Honour sentenced the appellant to an effective head sentence of imprisonment for 31 years with an effective non-parole period of 25 years[2].
The appellant appealed to the Court of Criminal Appeal against conviction and sentence but the appeals were dismissed[3]. McClellan CJ at CL, with whom Fullerton and S Campbell JJ agreed, held that, although the trial judge erred in fact as to the sequence of events leading up to the killings, and may perhaps also have erred in law in directing herself as to the elements of the "ordinary person" test of provocation[4], there was no miscarriage of justice because the appellant had been proved guilty beyond reasonable doubt of the offences charged. The Court of Criminal Appeal also found no error in the sentence.
On 13 March 2015, Hayne and Nettle JJ granted special leave to appeal on grounds concerning both conviction and sentence. The principal question in relation to conviction is the…
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.
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AGLC
Filippou v The Queen [2015] HCA 29
Case
[2015] HCA 29
Decision Date
CaseChat Overview and Summary
The case of *Filippou v The Queen* concerned an appeal against conviction and sentence following a trial by judge alone. The appellant, Filippou, was convicted of murder. The appeal raised questions regarding the application of the Criminal Appeal Act 1912 (NSW), particularly the "proviso" in s 6(1), and the principles governing the determination of aggravating and mitigating circumstances during sentencing.
The legal issues before the High Court included whether the Court of Criminal Appeal had erred in its application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) in dismissing the appeal against conviction. This involved considering the meaning of a "substantial miscarriage of justice" and whether the trial judge's findings, particularly concerning the partial defence of provocation under s 23 of the Crimes Act 1900 (NSW), had been wrongly determined. Additionally, the appeal addressed the onus and standard of proof for aggravating and mitigating circumstances in sentencing, and whether a sentencing judge is bound to view facts in the manner most favourable to the offender when those facts are not proven beyond reasonable doubt.
The High Court considered the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), which allows an appeal to be dismissed if, despite an established error amounting to a miscarriage of justice, the court is satisfied that the error has not resulted in a substantial miscarriage of justice. A substantial miscarriage of justice means the appellant may have been denied a fairly open chance of acquittal or there has been some other departure from a trial according to law. The Court noted that if the first limb of s 6(1) (error of law) is established, it follows that there has been a substantial miscarriage of justice. However, where the second limb (wrong decision on a question of law) applies, the proviso may operate if the error could not have deprived the appellant of a chance of acquittal. In relation to sentencing, the Court affirmed that where facts relevant to aggravating or mitigating circumstances are not proven beyond reasonable doubt, they should not be treated as established facts against the offender.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any of the three limbs is established and amounts to a miscarriage of justice, the Court of Criminal Appeal may dismiss the appeal if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By "substantial miscarriage of justice" what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her[14] or that there was some other departure from a trial according to law that warrants that description[15]. Consequently, if the Court of Criminal Appeal is persuaded that the first limb applies, it will follow that it has concluded that there has been a substantial miscarriage of justice. In contrast, where the second limb applies, the circumstances in some cases may be such that, despite the judge making "the wrong decision of [a] question of law", the Court of Criminal Appeal is persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her. In that case the proviso will operate. Where the third limb is engaged, if the Court of Criminal Appeal has concluded that the appellant has not received a fair trial it will follow that it has concluded that there has been a substantial miscarriage of justice. But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate. It is also to be borne in mind, as was explained in Baiada Poultry Pty Ltd v The Queen[16] and more recently noticed in Lindsay v The Queen, that, although the proviso is expressed in permissive terms, "if the condition (the conclusion that no substantial injustice has actually occurred) is satisfied"[17] the proviso must be applied. [14]Pollock v The Queen (2010) 242 CLR 233 at 252 [70]; [2010] HCA 35.[15]Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at 102‑103 [22]‑[23] per French CJ, Gummow, Hayne and Crennan JJ; [2012] HCA 14; see, eg, AK v Western Australia (2008) 232 CLR 438 at 456‑457 [57]‑[59] per Gummow and Hayne JJ, 482 [109]‑[110] per Heydon J; [2008] HCA 8.[16](2012) 246 CLR 92 at 103 [25].[17](2015) 89 ALJR 518 at 528 [43] per French CJ, Kiefel, Bell and Keane JJ; 319 ALR 207 at 219; [2015] HCA 16.The facts In early 2009, the appellant purchased a home in Mayfield, New South Wales. The property shared a back fence with the home of William Willis ("the Willis home"). William Willis was away from the Willis home between 4 April and 20 June 2009. One Sunday night during his absence, his son Sam Willis held a party or "drinking session" at the Willis home. The party involved an open fire in the back yard and very loud music which continued well into the early hours of the morning. A neighbour (not the appellant) yelled out at the partygoers, called the police (who did not attend), hosed the partygoers with water and later commenced a verbal exchange of abuse. At some point during that exercise, the appellant entered his back yard and joined in the abuse of the partygoers, but the partygoers returned the abuse using offensive language.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, BELL, KEANE AND NETTLE JJ
GAGELER J
After his arrest, the appellant was taken into custody and his telephone conversations were recorded. In a call recorded on 18 August 2010, the appellant said to Mrs Filippou: "They come around with a fucken gun we didn't" and "Who the fuck do they think they are coming around like fucken would be gangsters ... if they had of fucken brought a knife I would have cut their fucken heads off".The judge's reasons for judgment At the time of the Willis brothers' deaths, the partial defence of provocation in New South Wales was defined by s 23 of the Crimes Act 1900 (NSW) as follows: "Trial for murder—provocation(1)Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.(2)For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:(a)the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and(b)that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.(3)For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:(a)there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission,(b)the act or omission causing death was not an act done or omitted suddenly, or(c)the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.(4)Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.(5)This section does not exclude or limit any defence to a charge of murder." Thus, after summarising the evidence, the judge turned first to the question posed by s 23(2)(a) and (4) of the Crimes Act of whether the Crown had established beyond reasonable doubt that the appellant's acts of shooting the deceased were not the result of a loss of self-control on the part of the appellant induced by any conduct of the deceased. Defence counsel had argued in the course of his final address that the evidence left open a reasonable possibility that one or other of the deceased brought the gun to the scene and that that act, combined with the events which occurred leading up to their arrival at the appellant's house with the gun, caused the appellant to lose self-control and in that state of lost self-control shoot the deceased. The judge rejected that submission.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, BELL, KEANE AND NETTLE JJ,
GAGELER J