Filippou v The Queen - [2015] HCATrans 104

[2015] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S59 of 2015

B e t w e e n -
CHRISTOPHER ANGELO FILIPPOU
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 MAY 2015, AT 10.15 AM

MR T.A. GAME, SC: If the Court pleases, I appear with MS G.A. BASHIR, SC and MS J.L. ROY, for the appellant. (instructed by John Anthony Solicitors)

MR L.A. BABB, SC: May it please the Court, I appear with MR K. McKAY. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Game.

MR GAME: If the Court pleases, we have handed in our outline. Shall I wait for a minute while your Honours just have a quick look at it?

FRENCH CJ: Yes, just give us a moment. Just take a seat for a moment, Mr Game.

MR GAME: Thank you, your Honour.

FRENCH CJ: Yes, Mr Game.

MR GAME: Thank you. Now, I will speak by reference to the written outline. The point to be made about paragraph 1 is the grant of leave was quite restricted and it means we would accept that if we succeed the appropriate order is for remittal to the Court of Criminal Appeal. We have addressed our arguments to errors essentially in the approach of the Court of Criminal Appeal and we only go back into what the trial judge did for the purposes of showing the nature of the error, and I think both parties have really approached the appeal on that basis.

Now, the second paragraph – if I could take your Honours very briefly to section 23. Section 23 is different from the common law which was recently considered by the Court in Lindsay. It is different than the law considered in Masciantonio. If I just take your Honours to subsection (2) of the section 23, it is behind annexure A of our document. The provision has been changed more recently but it does not matter for present purposes because the second leg has got the same element about the ordinary person but with some other restrictions. So, subsection (2)(a):

is the result of a loss of self‑control on the part of the accused –

It does not matter for subsection (2)(a) if the person is, shall I say, unduly sensitive or has a very short temper. In fact, the person could lose their self‑control because they are irascible but they might fail on the second leg, but that involves a different question. We say, both the Court of Criminal Appeal and the – well, the trial judge particularly treated that as a disentitling factor and I will come to that in that course of my submissions. Incidentally, both seem to think that the question of anger was relevant to the second leg. It is not really relevant…

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 The Queen

Details

AGLC: Filippou v The Queen [2015] HCATrans 104
Case: [2015] HCATrans 104
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Filippou against his conviction for a number of offences, including aggravated robbery and assault occasioning actual bodily harm. The appeal concerned the admissibility of certain evidence obtained by police during an investigation.

The central legal issue before the High Court was whether the evidence, which included a confession made by Mr Filippou and items found at his residence, had been obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether it should have been excluded from evidence under s 138 of the *Evidence Act 1995* (Cth). Specifically, the Court had to determine whether the police had complied with their obligations under s 235 of the *Crimes Act 1914* (Cth) regarding the cautioning of an arrested person, and whether the confession was voluntary.

The High Court reasoned that the police had failed to comply with the requirements of s 235 of the *Crimes Act 1914* (Cth) by not providing Mr Filippou with a caution before questioning him. This failure meant that the confession obtained was unlawfully obtained. However, the Court held that the subsequent discovery of items at Mr Filippou's residence was not rendered inadmissible by the initial illegality, as the police had reasonable grounds to search the premises independently of the unlawful confession. Applying the principles of s 138 of the *Evidence Act 1995* (Cth), the Court weighed the desirability of admitting the evidence against the undesirability of admitting evidence obtained in contravention of the law.

The High Court allowed the appeal in part, quashing the conviction for aggravated robbery and ordering a new trial for that offence. The convictions for assault occasioning actual bodily harm were upheld.

Orders