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

Copyright in the High Court of Australia

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 to the second leg unless somebody was say, for example, being taunted for their irascibility or something like that.

Subsection (2)(b) is quite different than the common law because it is hypothesised.  It is hypothesised to what an ordinary person:

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 –

so it is about a state of mind.  It is not about anything that they do and it is about a state of mind directed to – and it has nothing to do with what was used or what was done.  So it is about an intent to kill or inflict grievous bodily harm and both the trial judge and the Court of Criminal Appeal, we say, misconstrued subsection (2)(b). 

Now, that is all I want to say about section 23 for the time being.  If I go back to the written document, paragraph 3, when one comes to section 6 of the Criminal Appeal Act, in a judge‑alone trial, as Fleming makes clear, has to be looked at through the prism of section 133 of the Criminal Procedure Act.  That provision is in relevantly identical terms to section 33 as considered in Fleming. 

For present purposes, if one looks at 133(1), 133(1) is just about the verdict, finding on the – it is like guilty or not guilty, or not guilty by reason of mental illness or something like that.  Subsection (2) is about the findings.  Subsection (3) is about the warnings, which was dealt with in Fleming, but although the court with 133(2), shall I say in passing in Fleming, it did not go deeply into what was ultimately lying behind it. 

What we say is that section 133(2) means, in effect, that section 6 of the Criminal Appeal Act becomes a very different animal when you are looking at judge‑alone findings and one sees from cases that we have cited in our reply such as Garrett, Mraz, Wilkes, that one draws very little from a jury’s verdict.  One draws, shall I say, superficial things like the person was raped or no rape or – and the jury – it is kind of a fiction to say that the jury actually makes any findings at all.

They may proceed by exclusion or they may proceed – there are different ways in which a jury could proceed.  When a judge, say here, makes a finding about, shall I say, who brought the gun, we say there is no real – once you have applied the standard of proof and made the finding it is as if that thing happened in the world.  So, it is as if the other people really did bring the gun.  You need to take that finding through to the next step.  So, when a judge sits down to make reasons in a judge‑alone trial they are actually doing something quite different than a jury is doing when directed.  That is, what we are saying is that there is no necessary relationship between the standard of proof by which you find a fact and the fact that you find.

So, say, for example, to take a totally different context, in repatriation cases there is a burden of proof beyond reasonable doubt, so if a soldier said my addiction to heroin was caused by war – by what happened in Vietnam, burden of proof is beyond reasonable doubt.  If the repatriation authority has not excluded the possibility of that then the finding is that the person’s drug addiction was caused by their exposure to war.  They have not excluded beyond reasonable doubt the contrary.  So, once you have got a finding in a judge‑alone trial you have to, kind of, take it forwards and, in practical terms, that means section 6 kind of works in a different and not entirely satisfactory way.

We would say also at this point that there is some kind of parallel here to what happened around the time of Warren v Coombes which was there were decisions like Edwards v Noble and Da Costa where Justice Windeyer and Chief Justice Barwick were saying these are like jury – findings on negligence are like jury findings and that is how they should be treated.  That was swept away by the logic of Warren v Coombes and in a sense we say the process is different but the logic applies in these circumstances.

BELL J:   That is difficult because Warren v Coombes is looking at a section 75A appeal.

MR GAME:   Quite. 

BELL J:   Here one is looking not only at the determination of an appeal under 6(1), but one is looking at the right of appeal conferred under 5(1).

MR GAME:   Yes, your Honour.

BELL J:   It is only with the leave of the court that one may appeal on a ground of fact.  To the extent that you are seeking to craft an argument about the significance of factual findings in a judgment that accords with the statutory requirement of 133(2), it cannot be every factual finding.

MR GAME:   No, quite, your Honour, quite.  It will not be every factual finding but you will be able to work out what the significance of the factual finding is within which it arises.  The real difference is this.  One is sort of drawn into this because we say that what Justice McClellan did was something quite similar to a rehearing, i.e. wrong reasons but right result. 

We say wrong reasons now you are forced to inquire as to how the separate limbs of section 6 apply.  That is what we say, so we are not trying to draw this in as a rehearing at all.  We are actually resisting that.  We are saying not a rehearing but we are trying to kind of say well, what is it, and what we would draw out from it is that when one looks at how unsafe has been dealt with and how the proviso is dealt with then there is a unity that emerges in relation to what the function of the court is and that is all we are trying to do, is to bring those principles together, your Honour.

FRENCH CJ:   The function of the court in relation to the first limb of section 6(1) in a trial by judge alone does not depend upon finding a non‑compliance with section 133.

MR GAME:   That is correct.

FRENCH CJ:   Fleming says it goes to the question of:

the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt.

MR GAME:   Yes, that is correct.  So if you look at the first limb then the court is required ‑ subject to the natural limitations that the cases speak about, the court is required to examine for itself the questions of fact.  Now, the natural limitations is in a sense the reason why the words “open to convict” are used because there are natural limitations, but beyond that the court has to examine the questions for itself.

When one comes to the proviso - and the language in Baini is the language of open to acquit in respect of proviso, the language of open to acquit is also – carries with it the implication that there are natural limitations.  There may be limitations.  In that circumstance, it works in favour of the appellant because you say, well, we cannot apply the proviso if that is the case.  So there are limitations.  So when one comes to the third limb, miscarriage of justice – sorry, the third limb in a judge alone trial, that will involve the court examining for it – with leave, but, if leave is given – factual findings and there may be limitations that apply to that, but it is difficult to see why one would not bring to bear the logic of the appellate process that one sees in Warren v Coombes.

It would be kind of curious if you did not when, say in administrative law, in cases like Li and SZMDS, administrative law in fact finding has actually come as far, if not further, than these cases like O’Donoghue and the like suggest.  So the discipline we say is the same but it is not a rehearing.  Once - you do not - except in the first limb you do not absorb errors in the same way as you do in a rehearing.  You actually have to accumulate them, or park them, and then work out what you do with them in terms of the second and third limbs of section 6.  That is how we put it. 

FRENCH CJ:   The second limb would embrace a failure to comply with section 133.

MR GAME:   Yes.

FRENCH CJ:   That is your argument, for example, about the inferences question.

MR GAME:   Yes.  I will come to that in a minute.  So Fleming accepts that those kinds of errors could be described as wrong – it is not, it is really awkward – but could be described as wrong decisions.  They could also be described as miscarriages of the fact‑finding process, but just because there is an error of fact does not mean there is a miscarriage of the fact‑finding process.  Inevitably, you must look at the significance of the fact in the process. 

But take the first factual error here – if it is engaged that we – about the timing, was it Mrs Filippou or Mr Allen’s accounts and how Justice McClellan brought them together - and I will come to that in a moment - but in the first limb, you could, shall I say, absorb that error if you are working out whether the verdict can be sustained.  In the third limb, you have to park that error and then ask yourself whether or not that gives rise to a miscarriage of the fact‑finding process and then if you get to that point you have to ask yourself a question about the proviso. 

So you would have to – so that is quite different from the process of a rehearing because in the process of a rehearing you are working out whether or not the result was the right result or the correct result.  Now, I just wanted to pause at this moment and take your Honours to a passage in Weiss 224 CLR 300 at 315 to 316. It is at paragraphs 39 to 41.

FRENCH CJ:   Page?

MR GAME:   Page 315 to 316.  Now, there is a footnote (62) to Fox v Percy, and what we draw from those passages, particularly at 41, is that in the exercise of the proviso nothing is hypothesised, the Court has to examine the evidence for itself so that is all there is to it.  Now, in Baini, I will just take your Honours to a short passage in Baini, but again – in Baini 246 CLR 469 at page 481, paragraph 32, we see that reference to the different ways in which the first limb and the proviso are dealt with; one is was it open to convict, that is unsafe, the other is was it open to acquit, that is a proviso or an aspect of it.

Again, we see footnotes to Fox v Percy and the relevant passages of Weiss at footnote (38).  With the benefit of hindsight, what is happening in Weiss and Baini is that although they are different questions that, shall I say, unity is being sought to be brought to the appellate process and all we are saying is that when one deals with findings made by a trial judge that process is carried through but it is not a rehearing, it is confined and constrained by section 6.

Now, if I could take your Honours to paragraph 5 of our recent outline.  Now, in Fleming ‑ and can I say O’Donoghue and the like may or may not arise in this case but it arises entirely dependent at what, shall I say, level of abstraction you deal with findings of fact because it will bite.  The higher you go in terms of an inference, the more it will bite.  So, was it open to find that he lost self‑control – so, was it open to find he did not lose self‑control.  If you frame the question in those terms then O’Donoghue would put us out of Court.  So, it depends on, shall I say, at what level you are making that finding in terms of inference drawing.

NETTLE J:   Just before you go to O’Donoghue, and I am sorry to stop you, on Baini and Weiss and the unity or symmetry to which you have referred, are you saying any more than that for the purposes of the exercise as it is under section 6?  The Court makes its own decisions of fact in order to decide whether the trial judge has made an error of fact and then in the context of its own findings decides whether it is sufficient and material to be a miscarriage.  That is it?

MR GAME:   Yes, your Honour, nothing more, yes.  The point I was making just a moment ago, maybe not successfully, is that if, shall I say, open to find a fact applies at quite a high level, say, open to lose self‑control, then it bites but it does not bite if, shall I say, you are talking at very low level factual findings. 

Now, in Fleming the question of the correctness of O’Donoghue was left open but factually in Kyriakou, this Court, after a full hearing, had already held Kyriakou – that line of cases was wrong because they said the Court must determine the question for itself.  That was a refusal of leave but, in criminal proceedings, many of our leading cases are dealt with as refusals of leave.  For example, Mickelberg, on the fresh evidence, is a refusal of leave.  Wilkes is a refusal of leave. 

There are historical reasons for that because prior to - before 1984 civil appeals stood in an entirely different position to criminal appeals.  Prior to 1989 criminal applications for special leave were dealt with by a full hearing before this Court.  So what really has happened is that Kyriakou has got lost in the tides of history, but nobody really questions that it is correct.

So that is what we say – and I have said it fairly quickly – but that is what we say about the foundation for how one approaches judge alone findings in section 6.  Incidentally, in Western Australia now the provisions apply in judge alone trials for the appeal to be heard by way of rehearing and that is what happened in Rainey.  There is a good deal of logic to that but, anyway, that is not this situation.

So, now I turn to what happened in the Court of Criminal Appeal.  I am on page 2 of the outline.  If I take your Honours to the appeal book at page 460 – can I just mention this?  At the bottom of 467 – and this is not intended as a criticism – but up to paragraph 73 of Justice McClellan’s judgment that is almost word for word the same as Justice Mathews.  It is not to suggest that it was not independently thought through because his Honour interpolates at various points, but from 74 onwards it departs in various ways from it.

If one looks at page 469 of the appeal book one sees this factual question is dealt with at paragraphs 78 and following.  What it amounts to is this – and one can understand how one would deal with an error like this in dealing with the first limb.  But if you are dealing with the third limb it is going to have to be dealt with in a different way.  What it amounts to is this, that Justice Mathews thought that Mrs Filippou’s account could not be reconciled with Mr Allen’s account but the point was that Mr Allen did not see anything until after there were shots.

BELL J:   Can I just take an aspect of that up with you?

MR GAME:   Yes, your Honour.

BELL J:   If one goes to Justice Mathews, Justice Mathews says at appeal book 388, paragraph 93:

I must assume that the sequence of events as described by Mr Allen is the correct one.

That suggests that she is concluding that there is an inconsistency between Mrs Filippou and Mr Allen.

MR GAME:   Yes.

BELL J:   As I understand it, Justice McClellan pointed out that is not necessarily so since we do not know when Mr Allen’s vision of events relevantly commenced.

MR GAME:   Can I just ‑ ‑ ‑

BELL J:   Can I just ‑ ‑ ‑

MR GAME:   Sorry, your Honour.

BELL J:   I am just trying to get to the underlying resolution of this factual issue and its significance.  Justice Mathews went on to say, at paragraph 94:

The most likely picture which emerges is this –

and to give an account that the appellant had gone out on the first occasion, the shooting had taken place at that point, he had gone back inside the house, returned to place the gun in the hand of Sam Willis and then left.  Now, that was a conclusion that depended not only, so it would seem, on Mr Allen’s evidence, but if you read the balance of paragraph 93 on the account that the appellant gave in his electronically recorded interview.  It might also reflect her Honour’s earlier findings that Ms Filippou’s evidence involved an inconsistency, because Ms Filippou was consistent in denying hearing any shots.

MR GAME:   Yes, but your Honour, it is quite difficult to work out what the significance of this finding is, but what we say about it is this – if you go back to page 374, at paragraph – what it really means is that her Honour is discounting Ms Filippou’s evidence.  If you go back to 374 at paragraph 48, about line 28:

The accused was angry ‑

And so what – incidentally, there is another problem with what both judges say because neither of them really see Mr Filippou going back inside the house.  I mean, he may have walked away and then come back so it is – but the point is ‑ and it is not easy to work out the significance of it, but the point is that that leaves more room for a finding of anger and a squabble before the shooting.  Then if you go to page 471, paragraph 84:

On the first occasion the appellant went back inside, which was before the shooting he was agitated.

BELL J:   What I am coming to, Mr Game, is the primary judge in paragraph 94 seems to come to a conclusion about the sequence of events, based on matters apart from the suggested inconsistency with Ms Filippou.  Now, is it right to proceed on the basis that the Court of Criminal Appeal concluded correctly that her Honour’s finding was factually flawed?

MR GAME:   We would say yes, but the Court of Criminal Appeal does not say, actually, what – this sounds derisive – but it does not say exactly what they are doing when they are dealing with this factual – but it seems to be ‑ ‑ ‑

BELL J:   Well, indeed.  So, if we are – I mean, there is a very lively issue about the significance of a flawed factual finding in this context.

MR GAME:   Yes, of course.

BELL J:   It is essential in one sense to the resolution or to the issue raised by your special leave point, but to the extent that we are proceeding upon some understanding that the court concluded there was a factual error, I am just seeking to understand that.

MR GAME:   Incidentally, Justice Mathews thought it was a significant factual issue, she said so at paragraph 91 back on the page where we just were a moment ago.  I can see ways in which it could kind of work both for and against Mr Filippou, but in the context of these findings it seems that the significance of it is at least that it is taking out of play Mrs Filippou’s account about the accused being angry before the shooting, and it leaves her saying – he just walked calmly away afterwards which is what was said by Mr Allen but that was after everything had happened.  But on Mrs Filippou’s evidence she has got him angry before the shooting and agitated when he walks away. 

So our position is that Justice McClellan is finding – has found that that is an error that her Honour made and an error of fact, and for present purposes we would submit that his Honour was correct to say that that was erroneous finding.  But it is far from clear what his Honour has done with that error, if anything – sorry, I am interrupting you, but can I just finish one moment.  But Justice McClellan says there is nothing to suggest that he was not, shall I say, calm but he never deals with the significance of this issue in respect of the significance of it in the context of miscarriage of the fact‑finding process and proviso.

BELL J:   The matter that I am raising with you is do we understand that his Honour went further than to point out a logical flaw in describing Mrs Filippou’s evidence as inconsistent with Mr Allen’s given that we do not know when Mr Allen commenced viewing the scene?  Did his Honour go on to discuss the significance of the finding that her Honour made in light of the contents of the appellant’s record of interview to the factual conclusion that the sequence was as she described at paragraph 94 of her reasons?

MR GAME:   Not except for what one sees at paragraphs, for example, 84 and following but, your Honour, what we would say is – then one sees at 86, you see the reference to him being “an inherently angry man” and, as I said, we do make the submission that both the trial judge and the Court of Criminal Appeal thought that was a disentitling factor which is another point but ‑ ‑ ‑

BELL J:   That is another factor, but just staying with this for the present ‑ ‑ ‑

MR GAME:   Certainly, your Honour.  I am not sure I am answering your Honour’s question very well, but what we say is that what his Honour has done is said her Honour made a mistake and it is not an insignificant mistake about the sequence of events, but what he has done with that mistake is he has simply absorbed it as if it were whether he is deciding whether or not Mr Filippou is guilty.  That is what has happened, and we say that is a process that has gone wrong at that point.  He says nothing further about it.  It is not mentioned again.

BELL J:   What are we to do if it was not a mistake, if it was true there was a logical flaw to the extent that there is a suggested inconsistency between Ms Filippou’s account and Mr Allen’s, but that one cannot conclude that it was not reasonable for her Honour to find as she did in light of the contents of your client’s interview.

MR GAME:   It depends what one means by “reasonable to find” because that is one of the questions that - we say “reasonable to find” is not the actual question except in, kind of, describing the – once one goes to ‑ ‑ ‑

BELL J:   Let us analyse it in terms of section 133(2) of the Criminal Procedure Act and 6(1) of the Criminal Appeal Act.  If her Honour stated her factual findings, there was an illogicality that did not affect that finding, what is the significance of it?

MR GAME:   Then we lose. 

BELL J:   Yes.

MR GAME:   But it would be an illogicality that was not of significance.  I cannot see how ‑ ‑ ‑

FRENCH CJ:   In the territory we are in here it is not non‑compliance with section 133 but the first limb of section 6.

MR GAME:   That is what is happening here.  What his Honour is doing here is all first limb we would say.  That is borne out when one gets to page 476 at 95.  This is quite opportunistic but we say that you cannot actually work out what is going on in this judgment and we say that gets us home in the sense of – that the process miscarried.  I am not sure whether it is still conceded but the Crown’s position at an earlier point at 105 at page 480 was just his Honour’s conclusion on unsafe and that may be so, but, in any event, it is redolent of the languages of – there may be mistakes here but we agree with the outcome which is the processes of rehearing.  Now, can I just come back to your Honour Justice Bell for a moment?  This question about whether Mr Filippou was angry and agitated before the events is quite an important one factually in this case.  It is not a small thing.

BELL J:   Well, her Honour appreciated that.  At 391, paragraph 102, she observes that it was:

abundantly clear from the totality of the evidence that the [appellant] was, at the relevant time, an inherently angry man.

She points out that Mr Rosser did not seek to contend otherwise - as I would read that, a reference to consideration of the first limb and the subjective loss – the actual loss of self‑control.  Her Honour seems aware of that.

MR GAME:   Yes, it is a little bit later in our argument but I will just take your Honour to it now.  The bottom of 394 to 395 there is an error about that because what has happened there is her Honour has thought that the “unusually low threshold of uncontrollable anger” is a disentitling factor on the question of loss of self‑control.  Then her Honour cites a passage from Green, but that passage from Green is all about the second limb.

BELL J:   Yes.

MR GAME:   If one goes back to paragraph 108 at page 393, her Honour, and this seems to have been taken up by the Court of Criminal Appeal at paragraph 91 of their judgment, her Honour seems to have thought that the susceptibility to lose his temper quickly was relevant on the second limb, which it was not, unless there was some special aspect of the case which there is not.

BELL J:   Accepting that paragraph 102 one would think is directed to Mr Rosser’s submissions on the first limb, her Honour moves then – this is at 394 – to a consideration of the ordinary person test.

MR GAME:   Yes.

BELL J:   There, at paragraph 110, I think, she correctly states the test in accordance with section 23, does she not?

MR GAME:   Yes, but she gets it wrong a little bit later.

BELL J:   Yes, but earlier she has stated the principles ‑ ‑ ‑

MR GAME:   Yes, she does get it right – yes.

BELL J:   She has twice set out correctly the principle, is that right.

MR GAME:   Yes.

BELL J:   Yes, and then, the balance after that statement of the principle is directed to the objective test.

MR GAME:   I missed the last words your Honour said, sorry.

BELL J:   To the objective test, is it not?

MR GAME:   Yes.

BELL J:   So that, just on the question of anger, accepting that it would be a most unusual circumstance in which one would take into account as an attribute of the accused for the purpose of the application of the ordinary person test that the person was quick to anger – accepting that – her Honour nonetheless does, at 102, appear to appreciate that inherent angriness is by no means inconsistent with satisfaction of the first limb.

MR GAME:   Well, she seems to – we would contest that, your Honour, because if you look at 104, 108 and 113 in combination it seems the fact that he is an inherently angry man is the thing that disqualifies – one of the main things that disqualifies him – from succeeding on the first limb.

BELL J:   You have directed some of the balance of that submission to things that are put under the heading in her reasons, the ordinary person test.

MR GAME:   I know, your Honour, but, paragraph 113 is all about losing his self‑control, which is the first limb.

BELL J:   Yes.

MR GAME:   That is wrong.  What she says at 104 is wrong, and what her Honour says at 108 is wrong.  So it is all wrong.  That is the top of page – anyway, now I am coming to this ultimate question about whether or not Justice McClellan was finding ‑ that her Honour fell into error about finding that the statements made after the event were ultimately determinative and if you just look at the top of 392, where we have been at the moment, paragraph 103 – that is the passage.  Now in Justice McClellan’s judgment at 479 the reasoning really starts at paragraphs 96 and following.  Then we come to 103:

There is an ambiguity –

But the next sentence says if her Honour means (a) then that is wrong, but if her Honour means (b) that is wrong too.  So Justice McClellan is finding an error in quite an important part of her reasoning process.  One could describe this, applying Fleming, as a wrong decision on a question – it is awkward but it does fit into the second – and our opponents would concede that what we say about that is correct.  

So that error – unless you are dealing with the first limb you are not free, shall I say, to absorb that error.  You are not free to just go on and say conclusion correct.  You have now got to put that error, whether you characterise it as a miscarriage of the fact‑finding process, limb three or the second limb or both, you have to put it to one side for the time being and see what you are left with when you have actually finished examining the grounds of appeal. 

I just, by a side wind, mention that there was a decision of this Court in a case called Jones in 1988 that said that the court has a duty to consider all grounds of appeal.  But nowhere does his Honour actually kind of deal with the grounds of appeal and the ones he grants leave on are in fact confusing as well.

BELL J:   The notice of appeal did not help.

MR GAME:   The notice of appeal did ‑ ‑ ‑

BELL J:   The notice of appeal threw up, in ground 2, asserted errors of law which plainly were not – all of which overlapped with ground 1 and said, either we are asking for leave or we are not depending on whether we want it - on whether we need it, and you tell us.

MR GAME:   Quite, your Honour.  Ground 1 picked up errors that were errors under ground 3 and not ground 1.  So it is there.  But in any event the court has to deal with it in some way.  But that might involve, shall I say, working through what the issues were with those.  But when one gets to the end, really one can have no satisfaction, we would submit, that anything other than whether or not the verdict is unsafe has actually been dealt with.

So I am up to now paragraph 7 of our submissions.  What this comes to now is a passage in the Court of Criminal Appeal’s judgment at paragraph 110.  It was submitted by expressing herself as she did – now, that passage in her Honour’s judgment is back at page 394 and it is:

I am quite unable to accept . . . However, if the response is grossly disproportionate to the provocation, then it inevitably means that it will fail –

But there is actually a section that says that disproportionality – and if you apply the “ordinary person” test, under this legislation it works quite differently.

So if one comes back to 110, it is quite unclear as to exactly how Justice McClellan has dealt with it but we say that there was an error, but we also say that what follows in his own judgment shows fresh errors because at line 31 an ordinary person could have been induced to lose their self‑control and kill the brothers - that is wrong.  Then grossly disproportionate, that is wrong too.  Then we see also the point in 7d in our submissions – sorry, just while I am on that, at paragraph 111, while I am there, it says:

satisfied that there has been no miscarriage of justice.

Then the reason given at the bottom is -

I have no doubt that an ordinary person with the characteristics of the appellant, including his tendency to anger, would not have acted as the appellant did in the circumstances by taking the gun and forming the intention to kill.

Then we see a little bit higher, so that is another error.  So 7d in our submissions, that passage that I spoke about before, is where her Honour seems to think that the unusually low threshold is disentitling on the first limb, so we say the court should have found that that was an error as well.

FRENCH CJ:   Is that a correct reading of 113?

MR GAME:   We say so, your Honour, because of the words “in fact lost his self‑control”.

FRENCH CJ:   Yes, so if that was the explanation that might have been an explanation for losing his self‑control, but if it was it has no purchase on the second limb, “ordinary person”.

MR GAME:   If that is how you reason ‑ ‑ ‑

FRENCH CJ:   That is correct, is it not?

MR GAME:   If that is how you read it, but the weight of the sentence is he lost his self‑control because of his “low threshold”.  It is not entirely clear but ‑ ‑ ‑

BELL J:   I am sorry, where are you?  Which paragraph are you?

MR GAME:   I am sorry, your Honour, paragraph 113, page 394.  So I just wanted to pick up something back in paragraph 105.  In 105 at page 480 it says:

Notwithstanding my reservations about her Honour’s approach to the issue I am not persuaded that her Honour’s conclusion was erroneous.

We say that is the language of there is an error but the outcome is an outcome that I share, at least in respect of whether the verdict is safe.

NETTLE J:   Might it not be a vice, that is to say, looking at the whole of the record, I am satisfied he was proved guilty beyond reasonable doubt of the offences of which he was convicted?

MR GAME:   Yes, but that would only be dealing with the first limb.  Yes, your Honour, that could be the case, but it cannot be the language of ‑ ‑ ‑

NETTLE J:   Because of Fleming, once you are into two or three you say you have to go back and have another go.

MR GAME:   Yes, and “I am not persuaded” would not be the language of the proviso anyway because it would be reversing the onus.  Can I just say this?  There is a statement in that paragraph which says:

There was nothing to suggest that he acted as a result of losing his self‑control.

If that were the case, that would mean that there was no case to go to the jury at all.  Now, I would like to just pause here, your Honours, and just take you to a few short bits of Mr Rosser’s address just to see how it was put.  So if we just go to page 324, lines 40 to 50, so they come with a loaded gun, he – on this approach, they wrongly think that he has thrown a brick or a telephone book through their window, there is an angry argument outside his place, and then at 334, line 48:

ROSSER:   So let’s – it is likely that they were angry.

HER HONOUR:   Yep.

Then at 345, line 35:

The crown does tell me in commendable fairness that in the record of interview the hand gestures would suggest pointing of the gun.

So, to ascertain whether or not he lost self‑control, whether or not he acted under provocation, one has to ascertain the whole question from his point of view.  So, although findings of fact are made about things that happen, they are not findings about his perception of things that happened, and they are two quite different things in terms of provocation.  We say that nowhere either in Justice Mathews’ judgment or the Court of Criminal Appeal does one see that quite critical issue actually engaged.  I come back to then our ‑ ‑ ‑

BELL J:   It remains, does it not, open to – this is in the Court of Criminal Appeal reasons at 105 ‑ observe that there was nothing to suggest that the appellant acted as the result of losing his self‑control?  That is not to say there was not a basis upon which the partial defence was open, bearing in mind the reasonable possibility the two young men turned up to the house angry and with a gun.  But, when one looks at the evidence, it would be open to say in light of Mr Allen’s evidence that there was nothing to suggest that at the time there was a lack of self‑control.  That might mean you might not exclude as a reasonable possibility that he was, but I am just trying to ascertain quite what freight you have got out of that line.

MR GAME:   What I would say is this.  If that is a comment about whether the verdict is unsafe, then that is fine, but if it is a comment about whether there is any evidence of loss of self‑control upon which a jury could acquit, we say there is clearly evidence upon which a jury could acquit.

BELL J:   What evidence of loss of self‑control is there?

MR GAME:   Mr Allen only sees what happens after two shots.

BELL J:   Yes.

MR GAME:   But what there is is Mrs Filippou’s evidence, the fact that he is an inherently angry man, and that within the very short time of them producing and pointing at him a loaded gun, he shoots them.  That is evidence from which you can infer a loss of self‑control.  I am not saying that you could not come to a conclusion that the verdict is not unsafe but applying the proviso would be a very tall order based on a proposition that there was no case to go to the jury or that it was not open to acquit.  As I say, we say one will not find anywhere where the Court of Criminal Appeal has actually addressed the proposition I have just put to your Honour taken from what Mr Rosser is saying in his address, which is look at it from his point of view.  That is what I was saying at the very beginning of my argument ‑ ‑ ‑

KEANE J:   His record of interview gives us that perspective, does it not?

MR GAME:   Yes, your Honour, but he said it all happened so quick.  He says ‑ ‑ ‑

KEANE J:   It is not just what he actually said though, it is what he does not say in the record of interview, where there is not the faintest suggestion that he acted out of fear. 

MR GAME:   Fear is not a necessary element of ‑ ‑ ‑

KEANE J:   Well, in terms of loss of self‑control, what could it be?  Could it be fear?  No suggestion of that.  He actually says he did not feel much at all really.  The only basis that he gives for his actions is that they brought the gun and he has always been told that if you bring a gun you should use it.

MR GAME:   Yes, your Honour, I accept that, but he does say it all happened so quick.  Van Den Hoek says you do not need actual – somebody saying I lost self‑control, but if they bring a loaded gun, point it at him, he takes it and then in very quick time shoots them and he is a person with a very short fuse, that is a – I am not saying you would decide – the judge could not decide it was unsafe, but that is evidence that could go to the jury on the issues.  If a judge took it away from the jury, that would be an error, it would be an appealable error.

The only territory in this appeal that we are in is whether or not this case goes back to the Court of Criminal Appeal to sort out those issues which may involve the Crown putting a reasoned argument about the application of the proviso which we really have not given you the whole of the material and I think we are both approaching it on the basis that the Court does not move to the proviso.  Our point is, really, that Justice McClellan never moved to the proviso, never addressed the proviso, having identified those errors at the least back at 103 which is – anyway, that is ‑ ‑ ‑

NETTLE J:   So what do you think Justice McClellan is doing at 105?

MR GAME:   What we think he is doing is he is coming to his own conclusion about whether Mr Filippou is guilty for the purposes of determining the first limb of section 6 of the Criminal Appeal Act.

NETTLE J:    It might be for the second but he does not go on then to deal with the proviso, you say.

MR GAME:   Well, if it is the second then all he has done is treat it as a rehearing which is, there is an error, I will fix it.

NETTLE J:   I can fix this, yes.

MR GAME:   So, if it is the second limb, there is a process problem.

BELL J:   The error is that her Honour’s fact finding, namely, that on the issue of loss of self‑control the statements in the interview were ultimately determinative of that issue, was an error in fact finding of a character such as to (a) require the grant of leave and (b) come within – well, it is really 6(3), is it not?

MR GAME:   Yes, your Honour ‑ 6(3) is the sentence, but what it is is this, your Honour.  In one way you could say it is a miscarriage of the fact‑finding process, but in another way it is a wrong decision because what it is, it is not the finding itself but it is the prioritisation of a particular post‑event account in how you determine the facts.  So, her Honour is wrongly directing herself as to what is drawn from those post‑event things.  If I could just pick up at 108, it said:

her Honour failed to warn herself about the caution necessary in drawing inferences.

In fact, in jury directions juries are always told to be very careful in drawing inferences and Fleming would suggest that her Honour should have given herself that warning.  These statements get in under the Evidence Act as admissions, but the common law was very circumspect about post‑event, out of court, statements about states of mind and intention.

BELL J:   A good deal of common law was developed before the interview was electronically recorded.

MR GAME:   Quite, your Honour.  Yes, I am not talking about in the criminal process.  I am talking about in civil law about cases like Williams v Lloyd.

FRENCH CJ:   Mr Game, can I just take you back, perhaps to Justice Nettle’s question ‑ ‑ ‑

MR GAME:   Yes, your Honour.

FRENCH CJ:   ‑ ‑ ‑and power of 105.  His Honour says:

Indeed, having considered the evidence I am satisfied that the Crown discharged the onus that it carried to the criminal standard.

What would he do differently in application of the proviso?

MR GAME:   Well, he would have to ask himself the question in Baini, was it open to acquit?  And he would have to ask himself a question about the significance of the error – also in the sense of Baini, because the sine qua non is it open to acquit?

FRENCH CJ:   If he is satisfied that the Crown discharged the onus that it carried to the criminal standards, does that mean something different from the Crown proved the case beyond reasonable doubt?

MR GAME:   The opening words are “I am not persuaded that her Honour’s conclusion ‑ ‑ ‑

FRENCH CJ:   He then says “Indeed”.  He goes further, does he not?

MR GAME:   Yes, your Honour.  But, if one looked at that – first of all, he does not say he is exercising the proviso.  He does not mention ‑ ‑ ‑

FRENCH CJ:   No, I am just asking what he would do differently if he were.

MR GAME:   We say it is a big step to say that that is an exercise of the proviso.  There is a problem because you do not know what he has made of the error or how he has dealt with it because he does not actually articulate it.  That, in section 133 language, is an error in the fact‑finding process and we have not made this point – although we did make it in reply – there is content in 133(2) which is a duty to make findings of fact that answer to reason and logic and from which one can ascertain what the judge is actually thinking.

FRENCH CJ:   What Fleming said, it requires the judge state the principles of law that he or she has applied, the findings of fact, made the reasoning process linking them and justifying the latter and ultimately the verdict that is reached.

MR GAME:   Yes, but that is enough for present purposes, in our submission.  But, it is similar to that which has emerged in administrative law in cases like Li and SZMDS. 

NETTLE J:   Just before you go from the proviso, does Baini add anything to Weiss, or is it just the same?  There is nothing in Weiss about it being open to acquit.  The question is whether the Court of Criminal Appeal is satisfied beyond reasonable doubt on examination of all their evidence that he has been properly found guilty.  Baini says it must be satisfied it was open to acquit.

MR GAME:   Yes, there is a kind of contentious second level which applies to jury verdicts about whether it could have made a difference to the outcome and that has kind of gone – that has not been addressed.  If that second level applies, then you would have to kind of look at the significance of the error in the context of what her Honour did, and was there another reason for exercising the proviso.

NETTLE J:   Does that operate here, or not?

MR GAME:   Well, we would say so, but that would appear to be potentially a contentious issue because we have got her Honour’s reasons, but we would say yes, your Honour.  What I am thinking of is cases like AK and Gassy and Evans, and that line of cases where, post‑Weiss, the Court asks not only was it open to acquit, but could it have made a difference in the context of the trial.  If you give away the jury trial it is hard to see why you should not keep the full work of the proviso.  So what that means is if it is a deep error in her Honour’s reasoning we would say that the sine qua non does not get you there.

BELL J:   It remains unclear the extent of the depth of the error because, of course, at 388, paragraph 90, her Honour has made a finding that the accused’s acts were not of themselves such as to indicate a loss of self‑control.  So that, I think, explains the Court of Criminal Appeal’s view respecting the ambiguity of her statement about what is ultimately determinative.

MR GAME:   Yes, but another way of looking at that could be to say – applying – not that the court mentioned O’Donoghue – open to find, so you lose.  So it is a high level factual finding and you lose the issue of – on self‑control.  But we say that the inability to work out what has gone on, shall I say, in a case as grave as this, as redolent with errors, then really it is one – the court should have done a lot better than this and we are entitled to have the matter heard properly by the court below.  So one is left with questions hanging about the significance of things, and one is left with the interposition of clearly erroneous statements about the ordinary person test, both in Justice Mathews’ judgment and the Court of Criminal Appeal’s.  So there are errors at both levels of section 23.

NETTLE J:   If all that is right, why should it go back to the Court of Criminal Appeal?  Why should it not go to a new trial?

MR GAME:   Well, if the Court was clearly of the view that that was the correct outcome, then we would ask them to do so.  But we would accept that if the Court – it is really a question of - if the Court is clearly of the view that her Honour erred and that emerges from the errors in the Court of Criminal Appeal’s approach, but we are kind of accepting that our ground – it is difficult for our ground to get us there, but if our ground leads one to the conclusion that it is so clear that the process miscarried at both levels, then the Court could make an order for a retrial under section 37 of the Judiciary Act, putting yourself in the position of the Court of Criminal Appeal.  But that would not be – that would be based on – not be based on the first leg of Weiss, which is the sine qua non, that would be based on that the process has miscarried.

So because you do not have all the evidence to decide the first leg of what I call the sine qua non, but if the process was so miscarried, and it can be seen at trial level, then an appropriate order is an order for a retrial, but only in that circumstance.  That term really picks up the errors that we say emerge from the Court of Criminal Appeal’s judgment. 

Sorry, I should have just mentioned that passage at 106 at page 480 picking up the question that your Honour Justice Keane asked.  If we are right about the significance of the first factual error, then you do have something rather different in Mrs Filippou’s account about anger and agitation before the shooting which Justice McClellan should have brought into his account at 106 having identified the error.  So 106 kind of indicates that that error has been put to one side, or his Honour has not picked up the significance of the anger and agitation – anger and agitation in the argument and anger and agitation when he walks away. 

So now I come to the question of sentence.  If I just go to the Court of Criminal Appeal’s judgment at 482.  So the appeal as conducted in the Court of Criminal Appeal was post‑Muldrock, pre‑Kentwell and we do not have leave on it but at 116 we would say that that is a Kentwell error, and at 117 is, shall I say, as close as one gets to the actual factual issue:

were unarmed.  They were not provided with any opportunity to escape and were shot at point blank range -

which would sit rather uncomfortably if they brought a loaded gun and pointed at Mr Filippou.  So if I go back then to what her Honour did.  At page 425 her Honour said – top of 425:

Accordingly, I accepted, for the purposes of the trial, that it was Luke Willis who brought the revolver to the confrontation.

Incidentally, at paragraph 15, one sees in the fourth line:

Of even greater significance were the numerous statements made by the offender well after the event in which he continued to justify his conduct –

Incidentally, I should have mentioned in answer to a question from your Honour Justice Bell that the out‑of‑court statements would draw a warning under section 165, hearsay and admissions, so that would feed in as well as the drawing of inference.  So that is the post‑event statements, it is not just a warning about the drawing of inferences.  They are out‑of‑court statements to which 165 would apply.

BELL J:   Was she asked to give a 165 direction?

MR GAME:   No.

BELL J:   Does that perhaps diminish the strength of that point?

MR GAME:   Not really, your Honour, because she has got to give – in the context of giving it this great significance, no, but if her Honour had just said well, these are statements made afterwards and I – so, it is really the same point about ‑ ‑ ‑

BELL J:   I had forgotten, but does not 165 ‑ ‑ ‑

MR GAME:   If asked, it says yes.  But it does not destroy the substance of the point about cautioning yourself about that.

FRENCH CJ:   She is to take the warning into account.  That is what is required.

MR GAME:   Yes.

BELL J:   If asked.

MR GAME:   Yes, but ‑ ‑ ‑

FRENCH CJ:   I am just looking at 133(3).

BELL J:   But section 165 requires the judge, if asked, to give the warning.

MR GAME:   She is going to have to – nobody asks her a single thing.  She is going to have to give herself a careful warning about the drawing of an inference about this.

BELL J:   That is the subject of your ground.

MR GAME:   Yes.

GAGELER J:   Is that the error of law, Mr Game?  Is that the way you put the error of law?

MR GAME:   The other error of law is I would say prioritising it, giving it, shall I say, precedence over anything else, it being determinative, which is a different point.  It is similar but it is a slightly different – what I am getting at is there is an error of finding of a fact is “I have found X - i.e., that happened in the world, but how am I going to go about finding it?  Well, I will do this and I will do that and then I will do this” - that is an error of law because you have set up ideas by which you proceed to make that finding.  There is a clear distinction between those two things.  So we say it falls within the second limb of section 6.

NETTLE J:   Is that to say it was not open as a matter of law to regard the post‑offence conduct as determinative of the lack of provocation?

MR GAME:   Yes, your Honour.  Can I come back to the judge’s remarks on sentence and I was at page 425.  Then when one comes through to 426, one sees at the bottom of the page something that is an interesting contrast because her Honour had real misgivings about whether or not it was correct that Mr Filippou Junior had thrown the brick through the window but she says:

I have no choice but to find that the offender knew nothing about –

Well, there you have a finding on the process of finding about culpability and her Honour accepts that that is how she has to approach the thing.  Yet, when one gets to the very next paragraph about who brought the gun that goes out the window.  There cannot be a stage of limbo when it comes to the issue of who found the gun.

If that were correct, then when one got to the end of a judge alone trial, one would put the findings of fact about culpability to one side and then ask what did the verdict throw up?  Has the accused satisfied me on the balance of probabilities about anything that is said to mitigate in the – planning or no planning can be described as a factor relevant to culpability, it could also be described as a mitigating circumstance. 

But if you throw them up in this way, you will not end up with a finding at all and it does make a difference.  It makes a real difference because the idea of a man, shall I say, forming an immediate intention to shoot when other people present a gun is quite different from a man going inside and getting a gun, and it is quite different from a “we do not know whether they brought the gun”.  But once you conclude that he did not bring the gun you have to conclude that they brought the gun.

BELL J:   If one goes back to the finding at the bottom of 426, top of 427, concerning who broke the window, the significance of that to the process of fact finding for sentence is that her Honour, though expressing the misgivings about the quality of the son’s evidence, nonetheless accepted that she could not be satisfied, absent evidence to the contrary, that the son did not break the window and that was significant to the conclusion that the Crown could not establish that this was a premeditated killing.  What her Honour was simply recording was that she could not be satisfied that the killing was premeditated, though she would proceed upon an acceptance that it was not a premeditated killing.

MR GAME:   It is not an assumption.   He knew nothing about – it is not an assumption.  It is a fact.  He knew nothing about the breaking and the doubt about it would make one think it is very unlikely she would have been satisfied on the balance of probabilities about that proposition given her doubts about the son’s evidence.  So that would fall into the same category as this error about the gun.

BELL J:   There is a difference, is there not, between saying “I cannot be satisfied that this was a premeditated killing, so I will sentence upon the basis that it was unpremeditated” and saying “I am persuaded more likely than not the accused had the gun.  Nonetheless, because I cannot be satisfied of that fact beyond reasonable doubt, I will sentence upon the basis that he did not.”?

MR GAME:   Well, who brought the gun is more important than the brick and the only defect here is that her Honour has not gone on to inquire in paragraph 21 about the limbo that the Crown has put to her she is in, in respect of this proposition.

BELL J:   The two go to much the same point, do they not, for the purposes of sentencing – that is, the inability to conclude that the appellant brought the gun was another powerful reason for concluding against any level of premeditation.

MR GAME:   Quite, but this ‑ ‑ ‑

BELL J:   So, in that sense, reflecting the inability to find beyond reasonable doubt that it was the appellant who brought the gun, her Honour sentenced on the favourable acceptance that this was an entirely spontaneous unpremeditated killing.  But that did not require her to find as a fact for the purpose of sentencing that it was the deceased who brought the gun and to sentence on that acceptance.

MR GAME:   Well, your Honour, we say it does.  If you go back to page 425 of the passage I just took you to:

Accordingly, I accepted, for the purposes of the trial, that it was Luke Willis who brought the revolver to the confrontation. 

Now, that is not hypothesised.  That is a finding and it is a central finding.  That finding has to be carried through, in our submission, to sentence.

BELL J:  So that there is a relevant difference in a trial that is judge alone.

MR GAME:   Yes, yes, very much so.

BELL J:   The sentencing process is – the trial judge effectively is bound by the findings made.

MR GAME:   Yes.  Our submission is that when one looks at Olbrich – that was in the context of a plea of guilty.  Here we have a trial and a series of findings.  There needs to be consistency.  The findings need to be carried through, otherwise they are conditional.  They are contingent.

FRENCH CJ:   What is the finding at trial, or in the reasons for verdict, in relation to who brought the gun?  How much further does it go than the proposition that the trial judge could not be satisfied beyond reasonable doubt that Luke Willis did not bring the gun?

MR GAME:   That is not the finding.  That was the point I was making before.  The finding is ‑ ‑ ‑

FRENCH CJ:   I thought there was – well, I have looked at 14 and I am looking at – this is at page 424 at the bottom:

I was unable to find . . . Accordingly, I accepted, for the purposes of the trial –

Is that not just a way of saying the same thing as the previous sentence?

MR GAME:   No, your Honour, because as I was saying before when one – strangely, there was no real challenge at trial to the proposition that Mr Filippou had no previous association with guns except that he had an air ‑ ‑ ‑

FRENCH CJ:   Yes, yes, I understand.

MR GAME:   Mrs Filippou’s evidence was not challenged on that.  The son’s evidence was not challenged.  It was not really put in dispute. 

FRENCH CJ:   I am just looking at the character of the judge’s finding.

MR GAME:   Yes.  Well, what we say is this.  In that group of cases – Wilkes, Mraz, Garrett - the critical thing is that these things are not conditional and they are not.  It was not established beyond reasonable doubt that there was a rape.  It is not just that it was not established beyond reasonable doubt that the people in Wilkes were abortionists and had committed manslaughter.  In the world, they were not abortionists.  In the world, Mr Mraz had not raped the victim.  So, at that point, that is what – and there is a reason for that because you have got to carry it through.  You have to know – that is why I said at the beginning what a jury does is quite different and they could just be proceeding by exclusion, but a judge is actually making findings.

BELL J:   But going back to that line of cases – Mraz and that line of territory, one is concerned there with not canvassing the facts that must have been found by a jury.  Is that not right?

MR GAME:   One is canvassing – shall I say at a superficial level – that which must have been found.

BELL J:   Yes.  Now, that is very different to the proposition that is now being developed relating to judge alone trials.

MR GAME:   Yes, it is very different except the point of it is this, that Justice Dixon in both of those cases, Wilkes and Mraz, is saying it is rape or no rape.  It is not if it was not established X.  That is where we end up and it is critical.

BELL J:   But these are ultimate findings.  We are looking at here ‑ ‑ ‑

MR GAME:   Absolutely.

BELL J:   ‑ ‑ ‑ the finding was murder.  That is for whatever ‑ ‑ ‑

MR GAME:   Quite.

BELL J:   The finding was that this was a killing not done under provocation.  For the purposes of sentencing you say that her Honour was obliged to sentence upon a factual basis that was accepted for the purpose of an issue in the trial but, ultimately, if you like, went nowhere.

MR GAME:   Yes, your Honour – yes, I do, but take a clearer example.  Say her Honour had found that there was provocation and he did lose self‑control – she found that, but in truth she was not satisfied beyond reasonable doubt of the contrary, but that is what she found.  He lost self‑control under provocation, but he failed the “ordinary man” test.  We come to sentence, because that was a finding only to a particular sentence, do you throw it away?

BELL J:   It would still be the same, surely?  The point that I am raising with you is that the finding here is that the appellant is guilty of murder.  It is not in any sense inconsistent with that that a finding made on the way “for the purposes of the trial”, as her Honour put it, that she could not be satisfied beyond reasonable doubt concerning who brought the gun, that falls away ‑ ‑ ‑

MR GAME:   No, it does not.  That is the utter difference between a jury and a judge.  It is an utter difference.  There is no comparison at all.

BELL J:   Why is that?

MR GAME:   Well, because, as I said right at the beginning, when a judge makes findings, once the judge has given certain directions and applied a standard of proof, the finding – incidentally, one can make a finding about a probability and it can be confusing.  It could be a – finding can be a probability.  So a finding could be a probability that the car that went through a set of traffic lights was a blue car, applying Bayes’ theorem, and your finding would be a probability, but this is not a finding that it is a probability.  This is a finding applying a standard of proof that leaves you with a finding of fact that they brought the gun.  You have to have that finding because you need to do something else with that finding.

BELL J:   That finding is made on the criminal standard for the purpose of determining an issue in the trial.  The trial has come to an end by a verdict of murder, the judge is now engaged on sentencing and applying a different standard of proof to a consideration of whether or not she is satisfied that the deceased brought the gun.

MR GAME:   Well, what your Honour is putting to me, I submit, is wrong, but it is also inconsistent with Cheung and it would be a recipe for disaster in the process of the criminal law if you actually carried that through.  The findings of fact on culpability, they are the findings that have to be taken to sentence, in my submission.

BELL J:   Ultimate findings on culpability but ‑ ‑ ‑

MR GAME:   Well, not just ultimate findings because we know what the findings were.  Can I just take your Honour to Cheung?

BELL J:   But just to be clear before we go to Cheung ‑ ‑ ‑

MR GAME:   Yes, certainly, your Honour.

BELL J:   ‑ ‑ ‑ you accept that the consequence would be that had the same trial been run in front of a jury and the jury returned a verdict of guilt of murder, it would have been open to Justice Mathews to sentence on the basis that she was ‑ ‑ ‑

MR GAME:   Absolutely, no problem at all.

BELL J:   So it is purely because this has been a judge alone trial that this issue arises.

MR GAME:   Yes.

BELL J:   All right, I understand.

KEANE J:   In relation ‑ ‑ ‑

MR GAME:   Sorry, unless, as in Mraz or one of those cases, there was a direction that enabled you to work out what the issues were.

BELL J:   Assuming it is the usual opaque version of a jury, yes.

MR GAME:   Yes, quite.  Yes, unless there was a direction and sometimes it – but the interesting thing in a way about what happens in cases like Mraz (No 2) is the relative superficiality of what those conclusions are, like – but the critical thing is when Justice Dixon says it is rape or no rape.  It is not they did not establish X beyond a reasonable doubt.  It is like saying in the world that is what happened.

BELL J:   But Justice Dixon would have been startled, indeed, if the concept of a judge hearing this trial and giving a reasoned judgment.

MR GAME:   That is correct.

BELL J:   It may not help us a lot to resolution of what you accept is an issue that only arises under this procedure.

MR GAME:   That is correct.

KEANE J:   Just before you go to Cheung, 133(2) says:

A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

Her Honour did not really need to include this finding in her reasons, did she?

MR GAME:   She did because she had to work out each of the steps.

KEANE J:   No, she finds that there was no provocation.  There was murder.  She does it on the basis notwithstanding that she does not conclude that your client brought the gun.

MR GAME:   In subsection (2) you need to read the findings of fact that lead ‑ ‑ ‑

KEANE J:   On which the judge relied.

MR GAME:   Yes, but she relied on all of those central – that would be a mistake, in my submission, to read down the findings of fact in subsection (2).  In fact, it should be given a quite expansive reading.  Imagine, for example, that there was no appeal provision and it was an inferior court and you wanted to bring it up by way of judicial review so that the cases I have been referring to would apply to this.  There is content in 133(2) that would require one to draw out how it was that one reasoned one way or the other and those are findings of fact on the question of culpability.

As I said, take, for example, the example we gave in the submissions in‑chief.  Say she did find loss of self‑control, say she did find provocation.  The implication of what is being put to me is that that would all go by the window if the accused – or go out the window if the accused could not establish it on the balance of probabilities.  That would be a very wrong thing, in my submission, in criminal process, to treat findings of fact on conviction in that provisional way.

GAGELER J:   Mr Game, sorry to keep badgering you about the facts, but when her Honour says at the top of the page 425 that she:

accepted, for the purposes of the trial, that it was Luke Willis who brought the revolver to the confrontation.

Is she referring to a particular statement in her earlier reasons for judgment, other that paragraph 85, at page 386?

MR GAME:   Yes, well if you go back to – well, at 85 she calls it “a significant finding”.  So, it is – 86 is really the paragraph.

GAGELER J:   That is after her saying in the middle of paragraph 85:

that it was probably the accused who brought the revolver into the confrontation.

MR GAME:   Yes, as I said, once she has made the finding – it is not magic, but once she has made the finding, that is what she is, shall I say, taking with her in the process.  She is not just saying X was not established beyond reasonable doubt.  That is the critical stamp, is how you get from 85 to 86.  What is 86?  Now, if ‑ ‑ ‑

BELL J:   Paragraph 86 is a conclusion that it is reasonably possible that one of the deceased brought the gun.

MR GAME:   No, your Honour, it is not.  That is the problem.  It is not a finding that it is reasonably – what I said is there are findings that are probabilities.  This is not a finding that is a probability.  This is a finding of what happened, applying a standard of proof.  Say, for example, one looked at findings of fact on sentence, which judges do all the time.  They make findings of fact beyond reasonable doubt, and there are possibilities all the time that end up becoming findings of fact, but they are not possibilities.  What your Honour is putting to me is not a proposition that makes logical sense in this context, because it is not – the finding is not a finding about a possibility.  The finding is a finding of a fact, applying a law about how you determine what the possibility ‑ what the facts are.

BELL J:   Applying that law about how you determine facts, the judge cannot approach the factual analysis necessary to deal with the partial defence on any basis other than acceptance that the deceased may have brought the gun.

MR GAME:   That is right, but it does not mean that that is all the finding is.  Just as in Mraz, it does not mean that it may have been a rape or it may have been this or that.  That is the step, is ‑ ‑ ‑

BELL J:   It seems to me, Mr Game, that the introduction of Mraz – we are in a different territory.

MR GAME:   No, your Honour, we are not, because that is the situation where we know very little, this is the situation where we know a lot.

BELL J:   But what we know – the very little that we know in Mraz, we know from the verdict, do we not?

MR GAME:   Yes.  Sorry –yes, and more, because what those cases say is we are entitled to look at how the case – the extra step in those cases is, and we are entitled to look at how the case was put.  Here, we go further and say, and we are entitled to look at how the case was put and we are entitled to look at what the judge found.

Now, if I could take your Honours to Cheung 209 CLR, paragraph 7, one sees pointedly the very different circumstances of a jury’s verdict and understanding of the issues.  But then the simple example is a simple example drawn from how the case was put, so that the simple example given is that if not satisfied that it is a desire to steal the estate, one is left with a mercy killing.  Now, in this situation there are only two possibilities.  My client brought the gun or they brought the gun.  One cannot leave a factual finding, shall I say, in limbo, as it is put, and that is the same as this.

BELL J:   And for that reason one finds this appellant sentenced on a view that the killing was entirely unpremeditated and spontaneous, contrary to the way the matter had been put on the Crown’s behalf, as I understand it.

MR GAME:   Well, your Honour, the findings ‑ ‑ ‑

BELL J:   That still did not require a finding about the gun.

MR GAME:   Yes, but if you read the findings of fact, they would be a very different set of findings of fact if the finding had been that the others brought the gun.  If one read those findings of fact with the thought in one’s head that they brought the gun, there would be a very discordant read.  The reason for that is we are talking about premeditation.  One would not describe them, for example, as completely defenceless and totally unexpected with no room to – if they had actually brought a loaded gun.  So it makes the world of difference.  To simply pretend that it is not premeditated because we do not know where the gun came from does not give substance to what is at the heart of it.

Now, the only other passage I wanted to refer to in Cheung is that passage at – sorry, there was another point I wanted to make which is one we make in submissions as well.  We do not, for example, proceed in manslaughter on sentence by saying the absence of provocation was not proved.  We say we proceed in manslaughter on the basis that there was provocation.

BELL J:   Well, one proceeds to sentence for manslaughter.

MR GAME:   I know, your Honour, but one is not proceeding on the basis that it is possible that X.  One is proceeding on the basis of X.  The same applies to findings of fact made by a judge on culpability.  Now, we say that what we put is also consistent with that which is at paragraphs 13 and 14 in Cheung applying Olbrich.  Now, that is all we wanted to say on sentencing.  If the Court pleases.

KEANE J:   Mr Game, just before you sit down, in 133(2) the findings of fact on which the judge relied, are these not the findings of fact on the ingredients of the offence?

MR GAME:   Not according to Fleming and it is not just ‑ ‑ ‑

KEANE J:   So, it is anything along the way.

MR GAME:   Not anything along the way.  If one looks at the top of page 263 it is not satisfied merely by a bare statement of the principles of law and the findings of fact that the judge has made.  I mean, it has got to be a matter of substance.  You have got to actually expose the whole of your reasons.

KEANE J:   Sure, you certainly have to expose the reasons on the basis of which there is a conviction.  These relate to findings of fact on the ingredients of the offence. 

MR GAME:   I mean I have said this before, but if what your Honour said is correct then a finding that the person acted under provocation and lost self‑control would not be a finding caught by section 133(2) if the person was convicted of murder, which cannot possibly be right.

GAGELER J:   So, the finding that is actually expressed in terms that it is not possible to conclude beyond reasonable doubt that the accused brought the gun has to be interpreted through the prism of section 133 as a finding that the accused did not bring the gun.

MR GAME:   That is right, and that is why we say everything is different than a jury’s verdict applied to section 6 and then to sentence. 

BELL J:   Why is that so in point of principle given your acceptance that it would have been open to the sentencing judge to sentence on the basis that she did had the verdict of murder been returned by a jury, in which case, amongst other things, the jury may have accepted that the first limb of provocation was made out but not the second.  One simply is not to know. 

MR GAME:   There are reasons of consistency of approach that are significant but – and it would be a very discordant criminal law if the findings that the judge made on conviction no longer had any status other than the very ultimate findings.

BELL J:   Why would that be discordant – why would it not be discordant to require a judge to sentence on a basis which her reasons for judgment showed she considered to be an unlikely basis?

MR GAME:   Apart from 133(2), all of this is common law, all of this is – and in other jurisdictions, New Zealand, UK and Canada, they do it the way – we have got little schedule we can give ‑ ‑ ‑

BELL J:   But, you accept, I think, Mr Game ‑ ‑ ‑

MR GAME:   No, I do not accept that there is anything good about putting the findings of fact to one side, it is a mistake, and Cheung makes it clear that you cannot just read Olbrich as kind of a literal test about how you go about sentencing.  You have to draw more from what has happened.  Shall I say, if you say to the accused person, in conviction, I accepted that you lost self‑control, on the question of sentence I am not satisfied about that at all, goodbye.  How could that be an appropriate way of communicating ‑ a big aspect of a judgment is the communication, how could that be a satisfactory way of communicating with the accused about how they have been dealt with?

It would create a very deep chasm between the two stages of the process, and really the whole thing about the process is that it is a continuum and it is a continuum that should not be broken if possible.  There is an obligation on a judge to find facts, and yet we say in this case, let us not make a finding about where the gun came from because neither side can establish, according to their onus.

In sentence, all the time things are done that the judge is not satisfied about.  Say, an offence, different but new or ought to have known, cannot be satisfied new, it does not mean the judge is satisfied beyond reasonable doubt ought to know, it is just that that was the default position.  It happens all the time and just as in the Cheung example.  There are things that do not fit exactly into a, shall I say, totally logical frame.  They have to be lived with and reconciled and the reconciliation is easy to perform.

BELL J:   In many instances – as Olbrich illustrates – the court sentences for the offence on the material that satisfies the court on the balance if it is urged in mitigation or beyond reasonable doubt if it is urged in aggravation, and there are matters upon which the court cannot pass because the material does not permit it to.

MR GAME:   Yes.  I can say this because Justice Hayne is not here but there is a deep problem with an aspect of Olbrich pointed out by Justice Kirby which is that Justice Howie found that either he was a principal or a courier.  So, the strange thing is it emerged – that case emerged in the context of such a, shall I say, dichotomy that the judge had created at first instance.

Sorry, I am being told something.  So, just coming back to – it has just been pointed out to me by Ms Bashir ‑ one point, coming back to your Honour Justice Keane’s question, the fact that the judge has to give warnings about evidence means the judge is going to have to make findings about that evidence even if it falls by the wayside in the ultimate step.  So, one cannot think that 133(2) is simply limited to the ultimate findings or what, in administrative law, would be very high level non‑jurisdictional facts, or jurisdictional facts themselves.

BELL J:   Mr Game, this point on sentence was not taken before the Court of Criminal Appeal.  There are other jurisdictions in which the trial proceeds by judge alone.  In any has this issue arisen?  Has any intermediate court which has such a scheme considered that the sentencing of an offender following a judge alone trial is bound by the factual findings in the way that might produce a result different to a jury trial?

MR GAME:   We have got a little schedule, which we have provided to the Court, of the UK, Canada and New Zealand where they have – in the UK, for example, they have Newton hearings where – and those things have to be established beyond a reasonable doubt; the same in Canada and New Zealand.  In Australia – except Queensland has got a statutory provision that puts the onus on the balance of probabilities which might create some federal issues, but otherwise, as far as we are aware – and we have got a schedule about that – only South Australia, ACT, Western Australia and Queensland have judge alone trials.  But this particular issue, the closest we can find is Cheung, and we have not found State cases ‑ ‑ ‑

BELL J:   Cheung is a long way away, is it not – an illustration in a judgment to do with the approach to sentencing.

MR GAME:   Yes, but it points the way, and it points the way ‑ ‑ ‑

BELL J:   But it does not raise the issue, and this Court is being asked for the first time to consider this sentencing point.

MR GAME:   Quite, your Honour.  It all arose from a Crown submission that was accepted that the judge was in limbo.  I identified this issue years later when Mr Hamil went to the Bench, and so that is how it came about.  But there is no bar in Crampton and other – and it is fundamental, and what – and I know this sounds opportunistic, but there is another deep problem with the judgment of the Court of Criminal Appeal because it uses

the language of Simpson, not Baxter and Kentwell.  So the judgment, we say, is flawed for other reasons, and that is abundantly clear at paragraph 116, and if you go back to Justice Mathews’ judgment, it is abundantly clear that she applied the standard non‑parole period in the way it was applied in Way.  We can provide your Honours with the UK, Canada, New Zealand schedule and we can provide your Honours with a little schedule relating to judge alone trials in other countries, but we have not found cases that deal with this ‑ ‑ ‑

BELL J:   The UK adopts a different approach.

MR GAME:   So does New Zealand, and so does Canada.

BELL J:   Yes, yes.

MR GAME:   Similar issues were considered by the New Zealand Law Reform Commission, and they have done a paper about findings which we could also provide.  But, none of it is – it is there and we can provide it, but it did not seem to necessarily take the arguments forward one way or the other.  There was a request for a 165 warning, but there are two problems.  Yes, a direction was…..for a 165 warning, at 1316, line 19, but 165 says “If there is a jury and a party so requests”.  My troops are, you know, overtaking this appeal a little bit.

FRENCH CJ:   Well, they probably have enough problems to deal with.

MR GAME:   Thank you.

FRENCH CJ:   Thank you, Mr Game.  Yes, Mr Babb.  Perhaps you would just take a seat for a moment, Mr Babb, and we will have a quick look at your outline.

MR BABB:   Thank you, your Honours.  Your Honours, if I could take your Honours forward in my outline of oral argument to paragraphs 5 and following and deal directly with the idea that somehow there is a different process that occurs in relation to the dealing with section 5 and section 6 of the Criminal Appeal Act because it is a judge alone trial.  In appeals from a trial by judge alone the record of the trial includes the judgment on conviction and that is an additional material available to the appellate court but it does not essentially change the process that the appellate court undertakes.

The respondent agrees that the principles set out in O’Donoghue do not limit the full scope of what an appeal court does in relation to consideration of appeals in relation to section 6.  That was not a case that addressed that question.  It was looking at consideration of an interlocutory decision about the admission of evidence, and in relation to limb two and, I submit, limb three of section 6(2), those principles apply, that is, rather than it being an open consideration of questions of fact, particularly where no leave has been granted, an appellant needs to establish no evidence to support a finding that the evidence is all one way or that the judge misdirected him or herself.

Those limitations do not apply in relation to the first limb where the question of whether the verdict is unreasonable requires the appellate court to review the evidence independently and determine whether the verdict was open.  This does not require the appellate court to review the individual findings of fact and then determine the significance of any disagreement with the individual findings and that is one way in which my submissions fundamentally differ from those of my learned friends, and if you have a look at my learned friend’s outline of oral argument at paragraph 6a, my learned friend indicates that if factual errors are found somehow those errors engage the first limb of section 6(1) and I disagree with that.  The respondent submits that it is simply an independent assessment of the evidence.

Similarly, in relation to the proviso, the appellate court reviews – independently reviews the evidence and there is – but for taking into account consideration of error, is not subject to the limitation of finding there was no evidence to support a finding, or evidence is all one way.  Clearly it is an open review of the totality of the evidence with the appellate court giving it its independent assessment.

BELL J:   What do you say the court was doing at paragraph 105 on appeal book 480?

MR BABB:   Your Honour, my primary submission is that Justice McClellan was there expressing reservations as to the ambiguous term of it being the decisive factor, but not finding error and not proceeding on to consider the proviso that rather subject to noting those reservations, he then goes on to consider the series of factors which mirror the factors that Acting Justice Mathews also outlined in relation to why she determined that there was not a loss of control.

It is not – I must submit that it is not entirely clear, and the other possibility is that it was some review in line with what is required of the proviso, which is making an independent assessment of the evidence without considering that question of the post‑statements which his Honour had reservations about, and a finding that – a very strong finding – that:

Indeed, having considered the evidence I am satisfied that the Crown discharged the onus that it carried to the criminal standard -

which is an essential part of applying the proviso.

FRENCH CJ:   You would say that that satisfied the requirements of rejection of the unreasonable verdict ground.

MR BABB:   Yes.

FRENCH CJ:   And would also satisfy the requirements of the proviso.

MR BABB:   Yes, I would certainly ‑ ‑ ‑

FRENCH CJ:   In terms of the principle to be applied.

MR BABB:   In terms of the principle to be applied, but certainly satisfies the requirements of rejection of the unreasonable verdict ground.

NETTLE J:   But 105 does not satisfy the requirements of an exercise of the Weiss proviso.  The Court of Criminal Appeal has to go through all of the material and say why it is satisfied on the whole of record.

MR BABB:   Yes.

NETTLE J:   This does not seem to begin to come near it, does it?

MR BABB:   No, and my principal submission is that there has just been no error.

NETTLE J:   So, it is not material.  There is an error, but it is not material, so therefore not a miscarriage.  Is that what it is taken as being?

MR BABB:   Well, my primary submission is that he just has not found error.  He is talking about some ambiguity and some concern, but it does not go on to find error in relation to what has been alleged to have been an error.  That is supported because he does not go on to look at the proviso and he would have, had he found error, and it is also supported by an analysis of the issue, your Honours, and in my submission, there was not error in her Honour’s approach to the question of the statements made after the event in the record of interview to the police officer, after the record of interview and in the recorded conversations at the prison.  The trial judge was correct to have given significant weight to those admissions and to have relied on them, even predominantly, in my submission.

NETTLE J:   What do you say about Mr Game’s point at paragraph 103, where Justice McClellan puts the two possibilities that the trial judge may have had in mind and says he disagrees with both?  Does that not bespeak a necessary conclusion of error?

MR BABB:   He starts it off by talking about ambiguity, your Honour, and, in my submission, he simply has not gone on to flesh it out.  It is ambiguous and he has only relied on two examples there but he has not resolved the issue.  He simply says it is ambiguous and that ambiguity really may flow from – as he points out – the idea that it is determinative, that is, either the sole factor or the factor in the exclusion of all other considerations and that is not what her Honour did in the way that her Honour approached the question of the loss of control.  Her Honour clearly referred to the same important features that the Chief Judge at Common Law did.  If I could take your Honours to 388 of the appeal book in paragraph 90:

his conduct both during the shooting and immediately after it, pointed in the opposite direction -

pointed away from there being a loss of self‑control, a very significant feature based on the conduct during – which was witnessed by Mr Allen who described the appellant as bending one knee forward, leaning towards Sam Willis who was on the ground and with his arm extended, firing the third shot to make sure he was dead.

NETTLE J:   I was not too sure why the deliberate third shot was inconsistent with loss of self‑control.  I mean, those sorts of things happen all the time, do they not?

MR BABB:   Yes.

NETTLE J:   People take deliberate shots when they have lost self‑control?

MR BABB:   Yes.  That was not so much of a key feature.  The key features her Honour came to at 95 were that he walked calmly away.

NETTLE J:   Well, that is the point about Mrs Filippou’s evidence, is it not?

MR BABB:   No, that is indisputable, your Honour.  That was the independent evidence of ‑ ‑ ‑

NETTLE J:   Allen.

MR GAME:   Mr Allen.

NETTLE J:   Yes.

MR BABB:   So that was not affected at all by Mrs Filippou’s evidence.  Also, his presence of mind to return and place the gun, not just at the scene but actually into the hand with the hand inside the trigger guard with Sam Willis holding the gun at the time that the paramedics and the police arrived.

The next thing that was relevant to the trial judge was the ERISP interview, or the recorded interview with the appellant, and at appeal book 390, line 20, her Honour refers to the accused going “on to describe the shooting” and gives the full questions 166 to 168 and importantly:

Q168How were you feeling at the time, Chris?

AWell I was feeling nothing to tell you the truth –

Your Honours, in its context, when your Honours look at it, it actually could be read as what the appellant was feeling at the time of the third shot, so:

Q166Why would you have shot him when he was on the ground -

is the reference to Sam Willis being on the ground, two shots having been fired:

Q168How were you feeling at the time, Chris?

AWell I was feeling nothing to tell you the truth –

There is further evidence in the ‑ ‑ ‑

NETTLE J:   Just a moment:

to tell you the truth . . . I mean I just wanted to know what they were going on about –

Does that not mean he was feeling nothing when they arrived and he went outside to see what they wanted?

MR BABB:   In my submission, your Honour, it is in the context of the question, why would you have shot him when he was on the ground, and what were you feeling at the time?

NETTLE J:   I am talking about 168:

How were you feeling at the time ‑ ‑ ‑

MR BABB:  

Well I was feeling nothing to tell you the truth ‑ ‑ ‑

NETTLE J:  

I mean I just wanted to know what they were going on about   when I went out the front, sort of thing.

After that it all changes.

MR BABB:   Well, what he was feeling actually at the time of the first shot is further outlined at question 119 in the record of interview and that is at appeal book 243, line 20 and following.  So he shot Sam Willis first and shot him “because he was still mouthing off”:

Q120What was he saying?

AOh F’ing this or whatever, whatever, at that stage –

The next relevant part in her Honour’s assessment of the loss of self‑control was her conclusion at paragraph 102 at appeal book 391:

It is abundantly clear from the totality of the evidence that the accused was, at the relevant time, an inherently angry man.

Mr Game is raising – saying that there is some ‑ ‑ ‑

KEANE J:   Well, he slides into short fuse.

MR BABB:   Exactly.

KEANE J:   The implication being the short fuse has come to the end and there is an explosion, but when one is “an inherently angry man” one is being oneself.  The point is that he was not ever not himself.  He was not losing control of himself.  He was just behaving as an angry man behaves, if one cuts through the rhetoric. 

MR BABB:   Exactly, and that is exactly the point that her Honour concludes at 104 in her judgment that she was firmly of the view that it was his inherently angry nature which led to him behaving as he did when he fired the fatal shots.  She was abundantly satisfied that there is no reasonable possibility that it was a loss of self‑control which caused the firing of those shots.  The totality of the evidence that her Honour referred to at 102 in relation to the angry nature of this accused – of this appellant, include the intense antipathy to Sam Willis. 

There were two threats.  There was a threat made to Sam Willis when he came to his door inquiring about a note - if you come around and threaten me again, I will kill you.  He confirmed the making of that threat to the father, William Willis.  The hostility – it was in that context that her Honour dealt with section – the statements made after the event at paragraph 103, appeal book 392. 

The hostility expressed so soon after the shooting was highly relevant to the appellant’s state of mind at the time of the shooting.  The hostility was something that he had before the shooting as outlined by his antipathy to Sam Willis.  It was shown in his threat to shoot him if he – “If you come around and threaten me again I will kill you” and “I’ll shoot you” was the statement made to William Willis and that is what he did.  He shot him. 

He continued to express this hostility after the event and immediately after the event.  Within 20 hours of the event, in the record of interview there were the relevant passages that her Honour refers to in 103 which were very important to the determination of this matter and it was not in error in my submission.

GAGELER J:   Are you saying that the Court of Criminal Appeal was wrong in paragraph 103 at page 479?  Is this effectively a notice of contention point?  I am just not understanding how it fits into your submissions.

BELL J:   Does it tie in with the first sentence in paragraph 105?

MR BABB:   Yes, they are reservations that have been expressed but it is not a finding of error in that regard.  It is a different analysis of that part of the evidence but not anything but reservations on the part of the ‑ ‑ ‑

NETTLE J:   But what is the conclusion referred to in the second line of 105 that Justice McClellan is persuaded is not erroneous.

MR BABB:   That there had not been a loss of self‑control for the factors that he outlines immediately thereunder.

NETTLE J:   Does it come to this then, that the process of reasoning was found to be erroneous, but the judge is satisfied that there was no error in the conclusion that lacked provocation?

MR BABB:   That is one way to look at it, your Honour, but he does not go so far as to use the word “error”.  He says that he has reservations and he does not say that it was necessarily ‑ ‑ ‑

NETTLE J:   Except that, as Justice Gageler points out to you, in paragraph 103 when he deals with the two alternatives.

BELL J:   It may be that his Honour is not concluding that he can be satisfied that the primary judge reasoned in either of those two ways that are erroneous, because he refers to an ambiguity, and then speaks of reservations about her approach, but the conclusion not being erroneous is a little unclear.

MR BABB:   Yes.  It is quite clear that her Honour never intended that the statements after be seen as the sole evidence that she was deciding on.  I have taken your Honours through the fact that it was a combination of those things so it is really ultimately little more than the statements by themselves could not substantiate the finding, but in combination with other evidence, the finding is made out and there is no error.  That is supported, in my submission, by the lack of an undertaking of the proviso exercise.  The precise exits and entrance from the house that my learned friend has relied upon were inconsequential in my submission. 

I have gone into some detail in the written submissions in setting out the reasons why her Honour’s findings were reasonable, available and that they were not against – the evidence was not all one way and there was evidence to support her Honour’s findings and, in my submission, they were correct.  In any event, it was an inconsequential matter. 

There was little doubt about the anger that arose in this accused in that it was a finding of her Honour – there was an inherently angry man – and that was a finding that was urged upon her by Mr Rosser of counsel, as shown by paragraph 102 in her Honour’s judgment, and that idea that somehow it was significant that there was not the reference to him returning once before going back out and being angry is of little moment, in my submission.

One of the features that were significant in her Honour’s determination was that the ERISP interview did not support the idea that he came back inside prior to again confronting the men and there being a shooting.  Your Honours, the “ordinary person” test and the proposition that her Honour erred in relation to the second limb, it is firstly significant that in her Honour’s judgment at paragraph 105, page 392 of the appeal book, her Honour has decided:

It follows that the defence of manslaughter cannot succeed and the accused is to be convicted of murder in relation to both charges.

So, her Honour has determined that the first limb is not made out.  Normally, a jury would not need to proceed to consider the second limb.  Her Honour does, and sets it out.  But there was no such – firstly, the Court of Criminal Appeal found no such error in relation to the onus of proof, and that is at 110 of the Court of Criminal Appeal judgment, page 481 in the appeal book.  That was for good reason.  The full text of section 23 was set out by her Honour at paragraph 72 of her judgment at 382.  Then, specifically, at paragraph 75 on page 383, her Honour said:

Pursuant to subs (3), once the issue of provocation has been raised, the onus lies on the Crown to disprove it beyond reasonable doubt.  This can be done by disproving either of the above elements to the requisite standard.

Having given herself those clear directions, your Honour, it is my submission that the Court of Criminal Appeal was quite right in finding that there was no error displayed in the wording at paragraph 110 of her Honour’s judgment.

BELL J:   Your submission is, if I understand it – a submission anterior to that.  Even if there were error, either in the approach that the Court of Criminal Appeal took to the objective test or in her Honour’s approach, ground 1(c) and 2(e) and (f) do not arise unless the finding that there was no loss of self‑control is displaced.

MR BABB:   Exactly.  The additional errors that are said to have been made by the Court of Criminal Appeal were not any mistake that the trial judge made the reference to “would” instead of “could” and “acted” instead of “formed the intent” and they just cannot be sheeted home to the trial judge. 

BELL J:   Well, I think it is really at 111 where the court states:

I have no doubt that an ordinary person with the characteristics of the appellant, including his tendency to anger, would not have acted as the appellant did in the circumstances by taking the gun and forming the intention to kill.

Mr Game makes two points about that.  The reference to the tendency to anger was not relevant and one is not concerned with his actions in taking a gun and forming an intention to kill.  It is sufficient that there was, at least, an intention to cause grievous bodily harm. 

MR BABB:   Yes, and neither of those errors were anything found in the trial judge’s initial ‑ ‑ ‑

BELL J:   Though the trial judge twice correctly stated the test in her statement of her application of it there seems some – there was some criticism, I think.

MR BABB:   There was some criticism but if one looked - the criticism arose out of a suggestion that the onus has been reversed in paragraph 110 and paragraph 110 sets out the test in terms of “could” have lost self‑control and formed the intent rather than going to any act of the accused.

BELL J:   But what does one make of 112 where her Honour speaks of a response that is grossly disproportionate to the provocation, inevitably meaning that a person will fail the “ordinary person” test.

MR BABB:   In my submission, although the provocation section says that it does not have to be proportionate, that is not an inaccurate statement.  Really, what you are looking at in relation to the ordinary person is some looking at the Acts, the provocation and the ‑ ‑ ‑

BELL J:   The difficulty of section 23(3)(a) there is no rule of law that provocation is negatived if:

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 ‑ ‑ ‑

MR BABB:   That is quite so.  It is negatived and it was perhaps infelicitous to even use the word “proportion” but her Honour has confronted that head on in that she says I am hesitant to use the word “disproportionate” and really what she is looking at is the provocation and what was done.  Can I take your Honours to the question of the lack of a direction on inferences?

BELL J:   Yes.

MR BABB:   The Court of Criminal Appeal dealt with that at paragraph 108 in that it was said that:

Complaint was made that her Honour failed to warn herself about the caution necessary in drawing inferences.

With respect, that complaint cannot be made out when one looks at her Honour’s judgment.  There were two key areas where ‑ ‑ ‑

FRENCH CJ:   Incidentally, the statutory requirement is not to warn herself but to take the warning into account.

MR BABB:   Take the warning into account, and that is what her Honour has done, with respect.  You can see that in relation to the two key areas where inferences were drawn and that was, firstly, at paragraph 85.  So this is the consideration of the evidence in relation to the bringing of the gun.  Her Honour, at the end of that paragraph, says:

However there is insufficient evidence to satisfy me –

that the appellant brought it to the scene -

beyond reasonable doubt.  Or, to put it another way:  although I consider it unlikely that one of the Willis brothers brought the gun with him, I cannot conclude that it is not reasonably possible that he did so.

That is clearly a use of the “beyond reasonable doubt” test in relation to the drawing of inferences which is the direction that her Honour needed to follow in relation to drawing inferences there.  Similarly, at paragraphs 101 to 104, in relation to the question of loss of control and drawing inferences from all the facts in relation to loss of control, at paragraph 101: 

the tribunal must be satisfied that there is no reasonable possibility that the accused lost his self control as a result of the conduct of the deceased.

At 104, over the page:

I am abundantly satisfied that there is no reasonable possibility that it was a loss of self‑control which caused him to fire those shots.

Again, they were the key areas where inferences were drawn and her Honour has clearly used the correct test there and there can be, in my submission, no successful ground in relation to that and the Court of Criminal Appeal were correct at paragraph 108 to reject that ground. 

Your Honours, on the question of sentence, the finding of the trial judge in the judgment on conviction is set out at paragraph 85 at page 386 of the appeal book.  Unlike the situation where you have a jury and you do not have an insight into exactly why decisions have been made, here there is absolute clarity about what her Honour has found.  In my submission, she has found that it is:

unlikely that one of the Willis brothers brought the gun with him, I cannot conclude that it is not reasonably possible that he did so.

She then goes on, in order to determine provocation, giving the accused the benefit of the finding for that determination that Luke Willis brought the gun.  Her Honour found that she could not be satisfied.  She was completely consistent in her findings on sentence.  She could not be satisfied to the requisite standard that the appellant brought the gun – this is at 427 of the judgment – and that was a clear and unambiguous finding that he was to be sentenced on the basis that he did not bring the gun.  There was no doubt about that.

That, however, did not necessitate a finding that the brothers bought the gun.  In light of what was set out in her Honour’s judgment on conviction, there was nothing inconsistent with the approach that the appellant did not bring the gun, but it was not determined who did, in terms of sentencing.

Contrary to the appellant’s submission, this is not a radical or fundamental difference in terms of the moral culpability for the shooting of the brothers, had they brought the gun or not.  To characterise this as the central issue is to misplace the measure of criminality and place it all on the provenance of the gun and reagitate the issue of provocation.  It was found that the appellant had not lost self‑control, even accepting that he did not bring the gun, and that demonstrated that the provenance of the gun was not a measure of his criminality. 

His criminality was determined by the findings that he had an extreme and unjustified antipathy to Sam Willis.  He had threatened to shoot him if he ever came around, and he deliberately shot him when he did.  My learned friend said that it would significantly change the findings because you could not have found that they were defenceless and unarmed.  That finding applied only from the time that the appellant trained the gun on them and they were clearly defenceless and unarmed at the time that they were shot. 

The offence was murder, with all that that entailed, and in Sam Willis’ case her Honour found that, having shot each of the men, he deliberately aimed the third shot at the chest to make sure that he was dead.  The criminality of the conduct was not dependent upon determining whether or not Luke Willis originally had the gun.  The criminality was very strongly illuminated by the statements 24 hours after the shooting and by the statements in the gaol‑recorded telephone intercepts that the brothers were “shit” and “garbage” and that he was “proud” of having shot them because the appellant’s moral sense and his attitude to the taking of the life and the lack of remorse and his character were vividly shown by those statements.

It was more than possible to determine the appropriate sentence without determining that Luke Willis brought the gun.  It is crucial that on sentence a court sentence on the basis of what is known to the court.  This is a point that is taken up, then, in Olbrich.  If I could take your Honours to, firstly, paragraph 12.  This was the nature of the error that was considered, a finding in the Court of Criminal Appeal – and this is about five lines down – that:

“[t]he identification of the precise nature of the involvement of an accused in an act of importation of drugs is an essential aspect of the sentencing process”.

That is very much the submission that is being made here, that the identification of who brought the gun is an essential aspect of the identification process.  The Court determined at 13 that:

We do not accept the identification of the precise nature of the accused’s involvement . . . is an essential aspect of the sentencing process.

For the reasons I have outlined, nor would this Court consider that the identification of Luke Willis as bringing the gun was an essential aspect.  At paragraph 17, there is a discussion there of the –

sentencing judge to take into account, so far as “known to the court” ‑

which was a statutory requirement under the Crimes Act (Cth) but the Court goes on to say that -

The reference to what is “known to the court” is very important and mirrors what would be the position in the absence of statutory provisions.

That statement “what is known to the court” does appear in section 21A of the Crimes (Sentencing Procedure) Act (NSW) in relation to aggravating and mitigating factors.

Your Honours, it would be wrong, in my submission, when the trial judge has outlined the findings that she has made in the judgment on conviction at 85 that on her view of the evidence, after considering it all:

it was probably the accused who brought the revolver into the confrontation . . . If this matter were to be determined according to the civil standard of proof, I would almost certainly have made a finding to that effect.

To then suggest that there is some obligation on the court to make that finding on sentence because necessarily the judge took her lack of satisfaction beyond reasonable doubt into account in ultimately determining the provocation issue, this is different to – my learned friend has said that,

well, this would undermine the sentencing process.  What about a conviction for manslaughter?  You have to then relitigate the issues.  That is a completely different situation.  Where there is a conviction, or a plea, then the elements of the offence are taken to be made out and provocation is established by the conviction or the plea.

In this case there was a determination that the appellant was guilty of murder.  The thought processes of the trial judge were completely outlined in the judgment on conviction and there is no obligation to continue on that position which was only taken as – for the reasons that the judge set out. 

The case of Cheung, the example that is given, and this is my last point, your Honours, so I will finish on this point, the example did not purport to prescribe a general approach for the drawing of conclusions.  It merely illustrated why, as a practical matter, favourable findings may need to be made in some circumstances.  Those findings must depend on the particular circumstances of each case. 

Now, in this case, the two alternatives were not equally available, as they were in Cheung.  Her Honour had found that is most unlikely that the brothers bought the gun and the probabilities were that the appellant brought it and, in that context, it did not necessitate a finding that Luke Willis brought the gun.  Cheung quotes the applicable principle which is set out in Isaacs that:

the practical effect . . . in a given case, may be that, because the judge is required to resolve –

This is at paragraph 14 in Cheung –

any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable –

Whether that practical effect will operate in a particular case will depend on the circumstances of that case.

BELL J:   On one view it operated here because her Honour sentenced upon acceptance that this was an unpremeditated, spontaneous killing.

MR BABB:   Absolutely.  Her Honour sentenced on the basis that he did not bring the gun and there was no requirement to determine who in fact did.  They are my submissions.

FRENCH CJ:   Thank you, Mr Babb.  Yes, Mr Game.

MR GAME:   Just on the last point, it is just not correct that her Honour sentenced on the basis that the offender did not bring the gun.  In fact, the whole point of paragraph 22 is that she does not make that finding.

BELL J:   She sentenced on the basis that this was an unpremeditated, spontaneous killing ‑ ‑ ‑

MR GAME:   Yes, whether or not ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ and that reflected a finding that she could not be satisfied that the appellant brought the gun to the confrontation.

MR GAME:   No, she could not make a finding one way or the other.  The only alternatives are they brought the gun, we do not know – sorry, he brought the gun, do not know, he did not bring the gun, or they brought the gun, but it is just not correct to go from ‑ ‑ ‑

BELL J:   In terms of the ‑ ‑ ‑

MR GAME:   ‑ ‑ ‑ do not to the second to the third.

BELL J:   In terms of the analysis in Isaacs, what happened was it was incumbent on the Crown to establish that the appellant brought the gun.  It was unable to do so.  She sentenced on the basis this was a not premeditated and spontaneous killing.

MR GAME:   She quite distinctly did not sentence on the basis that the offender did not bring the gun.  It is essential to the reasoning at paragraph 22, page 427.  It is quite wrong to put the contrary.  Now, if that were the case, you would inevitably be driven to the fourth proposition which is that they brought the gun.  The whole point is that it is up in the air.  All it means is, premeditated – whether he got the gun from inside or whether they brought the gun, one way or the other, it leaves that unresolved.  That is – we do not say that that is – I think the Crown said we put all our weight on it, but we did put a great deal on it and ‑ ‑ ‑

BELL J:   It is the last sentence on paragraph 21, page 427.

MR GAME:   Yes.

BELL J:   What is the basis of that, Mr Game?

MR GAME:   Yes, your Honour, but if you look at – all that means is, whether or not he got the gun from inside when they came or whether or not – because the last sentence of 22 is:

the origin of the revolver is an unknown quantity -

not that he did not bring the gun.  It is quite critical.  They are utterly different things.  In fact, that is what this appeal is about, that if ‑ ‑ ‑

BELL J:   Mr Game, is this the suggestion that the appellant was sentenced upon a view that he may have brought the gun ‑ ‑ ‑

MR GAME:   It is brought upon a view that you cannot say one way or the other.

BELL J:   Yes, because it could not be established by the Crown, contrary to the submission that they put, that the appellant brought the gun.

MR GAME:   Yes, but that is quite different than him not bringing the gun and then bringing the gun.  That is quite different.  The whole point of this appeal is the distinction between those two things.  Now, the other thing is, manslaughter verdict actually throws up its own different difficulties where you may well not be satisfied about something, for example, a distinction between unlawful and dangerous act and provocation and there are other awkward decisions that actually throw up problems that do not fall into the Olbrich dichotomy.

Now, back on conviction, I just have a few points and I appreciate the timing.  I will finish in a few minutes.  First of all, O’Donoghue was a conviction appeal and what was said in O’Donoghue was purporting to be about the test to be applied on the appeal and we see that in 34 A Crim R conviction appeal, 401:

It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing.

That is the whole genesis, and that was only three or four months after, or a short while after this Court’s decision in Kyriakou.  It is not an interlocutory.  So, now the point in our written submissions when the Crown said that we say the factual error engages the first limb, all I am saying is it is relevant to the unsafe question, not that it kind of has some magical effect.

An important part of the Crown’s argument in relation to the judgment of the Court of Criminal Appeal is that the court is not finding error at 103.  Your Honours, if one goes to 103, one sees if it is (a) then it is wrong, if it is (b) determinative, it is wrong.  There is no (c).  However, it goes on to say:

To my mind . . . does not provide any significant assistance in determining the state of mind –

Well, if you feed that back into what her Honour said at 392, paragraph 103:

I regard the statements made by the accused after the event as ultimately determinative –

So, whatever it is, she has made a mistake.  You cannot get past a mistake when you get to:

does not provide any significant assistance –

It is gone, at that point.  It is an aspect of reasoning.  Then when you get to 105, really all one can say about that is that it seems to be his Honour’s conclusion that the accused is guilty.  It has not a word about the proviso.  The discipline is not engaged in.  The significance of the errors – the errors are not collected.  In fact, this is done, shall I say, before one would get to the proviso which would be after you considered all of the errors.

In respect of her Honour’s – the Crown seemed to accept that the Court of Criminal Appeal made errors about the “ordinary person” test.  Her Honour unfortunately, as does the Court of - refers to Masciantonio in the opening paragraph on “ordinary person” and that is wrong because that is not the “ordinary person” test.

BELL J:   Undoubtedly, but in Masciantonio the point is made, as it has been made on a number of occasions, that in each of the jurisdictions there tends to be a marching in step.  True it is that New South Wales makes clear that which may or may not be in common law jurisdictions as to whether proportionality of the response has any significance.

MR GAME:   Yes.

BELL J:   But her Honour does correctly state the test after setting out the provisions of section 23 and she returns to it at 110 and again correctly states it.

MR GAME:   Then she gets it wrong at 112.

BELL J:   Well, in 112, she speaks about proportionality, having recognised it is not relevant under the statutory test.

MR GAME:   Yes, but she says “inevitably means”, which means that her Honour has completely misunderstood the “ordinary person” test.  The disproportionality has nothing to do with the “ordinary person” test because that is about a state of mind.

BELL J:   That is the very reason for her hesitation to refer to it, because she recognises that.

MR GAME:   Yes.  If these things were said to a jury, we would not be here; this would have been a retrial.  This level of deference is not appropriate, in my submission, to ‑ ‑ ‑

BELL J:   Do you accept that you need to make good the challenge to – let me just turn to your grounds.  You challenge under ground 1(a) – it really depends on the erroneous approach to the factual finding of no loss of self‑control.

MR GAME:   That is the most important thing in the case.

BELL J:   I am trying to work out what the importance of ground 1(c) is, if you cannot shift the finding of no loss of self‑control.

MR GAME:   If you cannot get through the first leg, you are not going to get through the second leg.  It is, shall I say, once you have shown error in the first leg and you can see error in the second leg then the prospects of applying the proviso to that, shall I say, are appreciably stronger.  There were just a couple of other points.  In paragraph 95, which the Crown relied on quite – 95 of the trial judge’s findings, the Crown relied on that quite heavily.  It says:

Mr Allen described the accused as walking “quite calmly” when he went back towards the house.  Mrs Filippou said that he was running, or was walking quickly, and was angry.

So, one cannot just ‑ as I said, this really brings back the first factual issue, is that the judge has really put what Mrs Filippou says to one side because of the difference or, at least, we do not know what the situation is.

BELL J:   Well, the judge is making clear when she goes on to speak of his presence of mind in the things that he did thereafter.  In other words, you get two subjective impressions of a person’s demeanour and you draw an inference from the accepted fact of what it is the person did.

MR GAME:   Yes, but her Honour is not really giving Mrs Filippou – she is rejecting her really.

BELL J:   She found that she was inconsistent so perhaps she was.

MR GAME:   Yes, but the crucial inconsistency went.

BELL J:   No, the inconsistency was not hearing the shots.

MR GAME:   Sorry, that inconsistency, but that is explicable, in terms of what she was doing, which is at that very time she was making a phone call to the son.  But can I just go back to also 249, 168, and a question – issue raised by your Honour Justice Nettle.  This is:

Well I was feeling nothing to tell you the truth when they, I mean I just wanted to know what they were going on about when I went out the front –

So the “nothing” relates to the when.  So, then back at 165 –

It happened real quick –

So the feeling of “nothing”, which both the trial judge and the Court of Criminal Appeal put weight on, in our submission, is misplaced.  Now, one last thing – sorry, two last things.  Respectfully, we put to your Honour Justice Keane that it is a wrong analysis to say that because he is inherently angry and therefore does not, shall I say, that is in his nature, that there is no losing of self‑control.  That is not logical.  It may just mean that he loses his self‑control regularly.

If a person – the losing of self‑control involves, shall I say, the removal or the changing of a mental state about what one desires to do and then the doing of the thing.  It has got a physical aspect and a mental aspect.  The inherent anger will not take you away from either of those if the circumstances, particular circumstances, pertain.  Mr Green was described as being “a volcano”, and a volcano ready to go off, and that was no disentitling factor.  In this circumstance, the presentation of a loaded gun by people may well mean that an inherently angry person loses their self‑control despite the fact it makes no – the fact that they were inherently angry does not detract in any sense from that.

There was just one last thing, the inferences.  The Crown said you could look at 85 and 101 to 104 and say that inferences were drawn but that does not comply with Fleming in terms of what the judges ‑ ‑ ‑

BELL J:   Fleming was concerned with giving warning that the law required be given.

MR GAME:   Yes, but the point is you must take the warning into account.

BELL J:   Yes.

MR GAME:   There is nothing to suggest the warning was taken into account.  Sorry, we made this little schedule of the New Zealand, UK and Canada and a little schedule of ‑ ‑ ‑

FRENCH CJ:   Yes, that might be useful.

MR GAME:   We will just provide it.

FRENCH CJ:   Thank you, Mr Game.  The Court will reserve its decision.  The Court adjourns until 9.40 tomorrow morning for pronouncement of orders.

AT 1.08 PM THE MATTER WAS ADJOURNED