Filippou v The Queen

[2015] HCATrans 61

[2015] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S284 of 2014

B e t w e e n -

CHRISTOPHER ANGELO FILIPPOU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2015, AT 12.54 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   I appear for the applicant, with MS G.A. BASHIR, SC.  (instructed by John Anthony Solicitors)

MR J.H. PICKERING, SC:   I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Game.

MR GAME:   Your Honours, we are well out of time.

HAYNE J:   What is the attitude of the respondent to time?

MR PICKERING:   There is no issue.

HAYNE J:   Yes.

MR GAME:   Thank you, your Honour.  So, I want to make some points about conviction and sentence but I am going to speak briefly first about conviction.  Can I take your Honours to page 96 of the application book?  What one sees at 103 is an error in her Honour’s approach to the assessment of the question of loss of self‑control and however one views it that is a significant error.  If one imagined it, shall I say, as a direction to a jury, it would be a wrong direction.  I will not take you to the particular passage but her Honour said, talking about the statements made by Mr Filippou afterwards, she described them as even greater significance than his actions.  So, it would be an error that would, shall I say, drive one, in our submission, to the proviso.

Now, if I then take your Honours to paragraphs 110 and 111.  There was a ground about onus and then in dealing with that the Court of Criminal Appeal made their own errors about the test only forming and going and killing the brothers and then an error about disproportionality which was one of the grounds, and then the court in 111 makes another error about the test.  Now, the significance of this is ‑ and I really do want to do it as quickly as I can ‑ but the significance of this is that there is something kind of a bit weird about the New South Wales provocation test because it says “are you provoked here” and then when it applies the ordinary person test, it is hypothetical and it is not related to the conduct of the person.  So, in theory you could have a hot tempered person like this person who was provoked by the events but you apply the ordinary person test, the ordinary person test asks you a question about the intention and whether the person could form an intention to kill or do serious injury.  So, those errors are significant.

Could I come back then to 105 which is, shall I say, the passage that would be put against us, but his Honour has not entered into the discourse of identifying error – has not entered into the discourse of proviso at all, has not assessed the significance of the errors.  We would say properly asked that question in this context is this, would it be open to a jury to find that the accused lost self‑control?  We say if the facts are that the Willis brothers brought the gun, that the accused was wrongly accused of throwing a telephone book through their window.  If they had scratched his car, there is a shouting match out in the street, and he is a hot tempered person, those – the question is could you on those – and you disarm the other person of a loaded gun, could you lose self‑control – could he have lost self‑control?  Then, the ordinary person is a hypothetical question.

Those are the questions that arise on conviction and buried in there is a question of process about how a court deals with findings made by a trial judge.  We say what has really happened here is the court has assumed they are operating the same way as – I have forgotten the section in the Victorian legislation but I am thinking of a section 75A rehearing appeal in civil proceedings, namely, the court seized of it and conducted a rehearing, which is not the nature of this exercise.  So, that is what we say about conviction.

Now, I come to sentence.  Can I take your Honours then to page 100 and 101?  Actually, it starts at paragraph 113 on 99.  I am sorry, Justice Nettle, if I use shorthand but there is a Muldrock error identified here ‑ ‑ ‑

NETTLE J:   I am familiar with the conception, thanks, Mr Game.

MR GAME:   Then this case – what happens in this case, we say ‑ and we are not saying this is a special leave point but it is kind of like we were hoping to make it our way in, shall I say ‑ but then at – through the front ‑ ‑ ‑

HAYNE J:   You put it so attractively, Mr Game.

MR GAME:   We would like to come in through the back door.  So, then ‑ but what we do have then ‑ and again sorry for the jargon ‑ but 116, 120 and 123 we have got a Kentwell error because the court has not exercised the function of resentencing.  They have not engaged with the discretion.  That makes sense because the judge sentenced the day before Muldrock, the court decided this case before Kentwell, so that is that.  But then what I want to come to, which we say is a special leave point, and it is this question where her Honour says ‑ and one sees it at application book 47 ‑ ‑ ‑

HAYNE J:   This is the who brought the gun.

MR GAME:   Yes, who brought the gun.  Her Honour says, well look, I found – again, her Honour says, look, for the purposes of conviction I found that the Willis – I operated on the assumption that the Willis brothers brought the gun.  Her language was – I will just read it:

I cannot conclude that it is not reasonably possible that he did so ‑

that they brought the gun – that is at paragraph 85.  You come to paragraph 22 and her Honour says she is in limbo.  We say that that is wrong in principle and we say that this raises an important question about how and if Olbrich applies in these circumstances and it makes a difference.  If one thinks of it this way, start with the proposition which is Filippou brought the gun.  Next proposition is cannot say who brought the gun.  Next proposition is Filippou did not bring the gun.  Next proposition is they brought the gun.  Now, in these circumstances, her Honour is on the second of those, cannot say who brought the gun.  We say Cheung kind of provides an answer to this in that passage we have set out in the submissions.

HAYNE J:   Could I see if I understand the point?  Is the point that the trial judge is to sentence on a basis where – although the sentence is to be passed on the basis that it cannot be concluded that he went armed and in that sense and degree was premeditating violence and that is either a good point or a bad point, is it not?

MR GAME:   Yes, your Honour, exactly, but think about it this way.  In the sentencing legislation there is a provision that says that it is aggravating circumstances if it is planned, and there is another section that says it is a mitigating circumstance if it is not.  So, it is a real question, and it is said against us that it does not make any difference, but the findings would be completely different if you operate on the assumption that they brought the gun.  They would even be totally different if you operate on the assumption that Filippou did not bring the gun.  Could I just draw this out by reference to a passage which is undoubtedly a hard passage both sort of for and against me but at page 53, paragraph 42 ‑ now, paragraph 42 her Honour says:

these two unprovoked killings, committed by this inherently angry man.  His acts of gratuitous and senseless –

then her Honour says ‑

Whatever the origin of the firearm –

but the firearm did not kind of come down like a stage prop, one or other of the – there are really only two choices here.  Then ‑

were clearly unarmed when the offender fired the fatal shots at point blank range, from less than a metre away.  The two young men had no chance whatsoever:  they were given no warning, and no opportunity to escape. 

Would you make findings like that if you actually found that they had brought the gun?  It would be completely different.  It would be completely different if, in fact, you operated on the third of my propositions – is you operate on the basis that Filippou did not bring the gun.  You might say the reverse to him – he comes along and they have got a loaded gun, if that is the case.  So, we say, it cannot be the case that Olbrich in a circumstance like this leaves you in a situation where you make no finding at all about, shall I say, the most critical issue, factual issue, in the case.

NETTLE J:   Because you cannot be satisfied beyond reasonable doubt that he brought it you must assume for the purposes of sentencing that they brought it in the circumstances of this case.

MR GAME:   Yes, in the circumstances of this case.  You cannot say, look, you failed on – the Crown failed on their onus and you failed on your onus so that is the point.

NETTLE J:   Yes, I understand.

MR GAME:   Can I say this?  It will be said against me this is not a great vehicle.  It is actually a very good vehicle because her Honour says she is in limbo.  So, the facts have not ‑ ‑ ‑

HAYNE J:   But the question of vehicle – if the point has merit it is an interests of justice case I would have thought.  It is not – it may or may not yield general principle but it would be, at least, I think, an interests of justice case if the point is good.

MR GAME:   Yes, your Honour, but we do say – can I say this?  The English, the Canadians and the New Zealanders all have different ways of dealing with these problems and people have thought about this.  This is a real problem that has been kind of thought about how you deal with these kinds of problems.  Justice Callaway wrote a dissenting story and Justice Kirby wrote a – I am not asking to get them back but they kind of said, well, this is going to come up and, we say, here it is.  About 20 years ago I brought a special leave case in a case called Papalia that raised a similar question and it is actually quite hard to find cases that, sort of, really pose the problem but it is a real problem about how one deals with fact finding in sentence.

Just before I resume my seat, in New South Wales there is – sorry, can I say this also?  Sentencing has come a long way from the old practices such as Butterwasser where there was – it was regarded as an inquiry where no issue was joined.  Things have changed a lot but when one gets to this point one sees the hard end of that discourse.  Section 4(2) of the Evidence Act in New South Wales and Victoria says that in sentence proceedings you can apply the rules of evidence either to the sentence proceedings or to a particular issue, so say the parties said, you could actually have a trial on that issue.  Those are my submissions.

HAYNE J:   Thank you, Mr Game.  Yes, Mr Pickering.

MR PICKERING:   Your Honours, we say that this was actually a good example of where her Honour was correct both in law and also in the facts of this case in being in a state of limbo in this particular matter.

HAYNE J:   Is this as to conviction or as to sentence, Mr Pickering?

MR PICKERING:   I am concentrating on the sentence; sorry, your Honour, given that Mr Game focused heavily on that at the end.  I am basically going in reverse, in that respect.

HAYNE J:   Yes.

MR PICKERING:   Your Honours, her Honour clearly was not satisfied beyond reasonable doubt that the Crown could establish that the applicant was the person who brought the firearm to the incident.  However, it was a very different question to then make a finding, even what, we say, should have been made on the balance of probabilities that it indeed was one of the two men – or the two deceased who brought the firearm.  Mr Game addresses in a way that it creates some problem or artificial ‑or miscarriage on sentence to be in a state of limbo. 

However, both in the facts of this particular matter where there is some debate whether or how important that binding was because Mr Game has taken the Court to paragraph 42 on page 53 where her Honour actually, in her sentence remarks, did not seem to regard it as a matter of importance, she specifically said whatever the origin of the firearm it did not impact on the significance of her finding that the killings were senseless and so unnecessary in the circumstances.  So, that was actually her Honour’s finding but ‑ ‑ ‑

NETTLE J:   It was only the third shot that he put into him on the ground, was it not?  The other two were almost immediately after the confrontation arose?

MR PICKERING:   Yes, your Honour.

NETTLE J:   Well, it is a fairly remarkable observation that it did not bear upon it, is it not?

MR PICKERING:   In the circumstances of if he then had the firearm and her Honour’s finding that it was not in provocation and as such, to use essentially her language, that it was calmly and cold‑bloodedly done.  It was not just the additional shot whilst he was on the ground, it was the shooting in circumstances where he was the only person armed and the two deceased at that stage could do nothing in response to that.

However, if you did regard who brought the firearm as important, and I accept that perhaps even the issue of provocation would not have even arisen had it been the case that the Crown could prove beyond reasonable doubt that it was the applicant who brought the gun to the scene, it is a whole other factor to then just make an assumption as a matter of law in a fact‑finding episode that, therefore, that must place the gun in the possession of the two deceased. 

What is wrong from a factual point of view and what is, indeed, unusual to be in a state where you are not satisfied on the onus and standard required by the Crown but equally not satisfied on the lesser onus and requirement on the applicant or the defendant in a sentence proceeding to satisfy and, therefore, sentence on the basis of what ultimately was the act in this matter, that being an act not done under provocation, an act where whatever the origin of the firearm, using her Honour’s language, he then was in possession of a firearm and fired it into – and killed two unarmed men, including one whilst he was on the ground.  So her Honour focused ultimately on the acts of the applicant as opposed to concentrating on aspects of what pre‑meditated or what led up to that incident.

Now, it will be cases where what led up to that incident forms a very important part of the assessment of the seriousness of the offence, but in this one the mere actions of the applicant himself once he had this firearm was truly where you see the gravity of this offence, and that was the basis that her Honour sentenced on rather than trying to necessarily find precisely how this offence – the facts leading up to this particular offence.  So, we say that her Honour was correct in her findings at paragraph 42 that whatever the origin of the firearm that this was not an important factor for her but, more importantly, we say that ‑ ‑ ‑

HAYNE J:   Can I interrupt you a moment, Mr Pickering?  Does not the special leave point then become what is a sentencing judge to do in a circumstance where not persuaded beyond reasonable doubt in this case of who brought the weapon, cannot say on balance of probabilities, opposite answer?  You, I think, have to adopt the awkward middle ground of saying, well, because you cannot resolve the issue, what, you ignore that factor, put it out of mind?  Is that not where your argument takes you?  If it is not, please correct it.

MR PICKERING:   In saying that you are in a state of limbo, that is exactly what your Honour is saying.  So, from that point of view, I accept that that is our argument consistent with her Honour’s approach.  But, we say, that that – it will not be unusual, on sentence, that a judge particularly after a jury trial ‑ I appreciate this was judge alone ‑ may not be able to solve every factual issue that aggravates the offence, but that is not to say that you necessarily need to resolve every factual issue. 

What you need to resolve, and was resolved here, is the legal element issue which her Honour did and then look at the essential criminality, and the essential criminality here was that at the time he had the firearm there were two unarmed men and he murdered them.  It was not a crucial factor or crucial fact and one that she just simply could not determine on the various different onuses of proof about what the origins of the gun was.  We pose hypothetically, why is it necessary to always resolve all lead‑up factual issues in a sentencing manner?  There must be times where, unfortunately, because of these different factors, a judge is in limbo and that would not be an error of law or in the facts of this particular case, not an error of fact in this case. 

Your Honours, I only wish to speak briefly on a conviction appeal in the same manner that Mr Game did and just take your Honours back to page 96 of the application book and paragraphs 102 and 103.  The respondent argues that his Honour was not actually finding error of law in either paragraphs 102 and 103.  His Honour was questioning some of the reasoning process of her Honour’s factual determination about whether there was a loss of self‑control.  However, he did not find any specific errors of law at that stage. 

When his Honour moved on to paragraph 105 on page 97 it was not a matter where his Honour was in the proviso, his Honour had not found error of law, his Honour was still considering reasonable verdict which was, of course, ground 1 on this appeal.  It is clear that, at that aspect, his Honour did not find any error in relation to her Honour in her determination of this issue of self‑control and, likewise, found it to be essentially an overwhelming satisfaction by the prosecution in relation to the loss of self‑control.  As the respondents put in their written submissions, once that determination was made, any question of looking at the other limbs of provocation were simply just irrelevant in this particular matter.  They are my submissions.

HAYNE J:   Thank you, Mr Pickering.  Mr Game, we need not trouble you about leave in respect of sentence but if there is anything you wish to say in reply about conviction.

MR GAME:   Just one thing, your Honour.  If one looks at paragraph 105 – two things ‑ if one looks at paragraph 105 the Crown has just said that is addressing the unsafe submission and we were not, kind of, game to go that far but if that is what it is it is certainly not about the proviso.  One is, is it open to acquit, the other is, is it open to convict?  Proviso is, is it open to acquit.  Unsafe is, is it open to convict.

The second point is, 103 is exactly the same thing as a misdirection to a jury.  Section 6 of the Criminal Appeal Act applies very awkwardly to judge aligned findings, whether you would call it a wrong decision or whether you would call it a miscarriage point.  In Fleming, they have found – the Court that – I cannot remember whether your Honour was on the Court, but the Court found that it was a misdirection on a question of law – a wrong decision on a question of law because the judge had failed to give proper reasons under section 32 of the Juries Act.  So, I mean it is not exactly on point but there is a question there.  If the Court pleases.

HAYNE J:   Mr Game, this point on conviction.  It may be that Mr Pickering may also have to be heard further on this, but if there is a point about the intersection between Criminal Appeal Act and trial by judge alone, where is it found in your notice of appeal – draft notice?

MR GAME:   I think ground 4 is the one to ‑ ‑ ‑

HAYNE J:   Page?

MR GAME:   Page 112.  It is not glorious but it does cover it.

HAYNE J:   This is not a question of whether you have taken the point, the question is ‑ ‑ ‑

NETTLE J:   Automatic defence mechanism.

MR GAME:   I have been knocked down too many times to ‑ ‑ ‑

HAYNE J:   To get back up.

MR GAME:   I just give up.

HAYNE J:   If there is a point on conviction it is, I think, a rather more starkly expressed point, is it not, about our – in effect, what is the appellate task?

MR GAME:   Yes, that is obviously the question which emerges, but I am sorry that it has emerged in this way, but it emerges in the process of articulating what the problem is because when one looks at it, one would say, what exactly – I mean, this sounds terrible, but what exactly is going on?  What is the court actually doing with the judge’s findings about the case and what is the court then engaged in itself, and so there is a real question about the intersection between section 6 of the Criminal Appeal Act and the identification of error in judge alone trial and what task the court is engaged in.

NETTLE J:   What task do you say they should be engaged in?

MR GAME:   We say that they should be engaged in – sorry, first of all, it has the – it comes covered with section 32, I think, of the Juries Act duty to give reasons which is Fleming, but the task of the Court on appeal is to – see, applying section 6 – say a judge made a wrong finding of fact.  Now, that is a difficult question and in Fleming itself the Court referred to a case of O’Donoghue and we would say, actually, O’Donoghue is wrongly decided because it is based on pre‑Judicature Act ideas about error and that kind of brings in another discourse.

So that the court on appeal applying section 6 ‑ and I am thinking of things in Weiss about exchequer rule and so forth – the court has to examine – one can identify error in the factual finding or in the directions that the judge gives herself and it does not necessarily make a great deal of difference whether you call that a wrong decision on a question of law or a miscarriage, but if there is error in the process, that is to say, error of a finding of fact or a – then the court then brings all its appellate functions to that but the court is wholly governed by the need to operate within the discipline of section 6 of the Criminal Appeal Act, which is once error is found the court’s discretion is engaged.  It is not a rehearing – the court’s discretion is engaged and proviso questions then come up.

NETTLE J:   So it is straight to the proviso once miscarriage is identified?

MR GAME:   That is right, yes, and the court’s discretion is engaged so you cannot then go back and say, but the judge found this or that, so then you have to ask yourself questions like did the judge have an advantage about fact finding and so forth.  Then what we would say about that is this; it is not correct to call it a rehearing but there is a lot of guidance to be found from, shall I say, the Warren v Coombes exercises in terms of findings of fact.  In no sense am I saying it is a rehearing, but I am saying the Court is going to have to bring – for example, on factual findings, we would say, the test is fairly straightforward, but was it reasonably open to make those findings?

Once error is established, the court then is – the reasons, I do not say you can throw them away, but the court then ‑ its discretion is wholly engaged in an error sense.  So, you would ask yourself, what is the significance of the error?  Has the – what I am saying is cases like…..and Weiss, Baiada Poultry, Baini would all come to operate on that.  That is held ‑ ‑ ‑

NETTLE J:   You say the Court of Appeal did not do that here.  You said it did a Warren v Coombes and that is all it did?

MR GAME:   Clearly did not do it, yes, your Honour.  That is right, yes.

HAYNE J:   Just so that your defensive mechanisms remain suitably honed, Mr Game, on the question of sentence, could you look please at the notice of appeal, the draft notice, is the sentence point which you want to raise any larger than the point which is made at 2.7(i)?

MR GAME:   Your Honour, yes, in this sense.  If I am right about the Muldrock and Kentwell error then it may make a difference if I get special leave on 2.7 that there is a priori error in the processes of the Court.

HAYNE J:   Why?

MR GAME:   Because if the Court found that there was a priori error then, as it were, it would be an exercise of original – I am hypothesising here but it would be an exercise of original jurisdiction that the court would have been if they had got to that point, so that is all.  But we would like to – anyway, that is ‑ ‑ ‑

HAYNE J:   Yes.  Now, Mr Pickering, you have heard the exchange particularly about this question of the nature of the task that the CCA they should undertake in a judge alone – in a case where trial has been by judge alone.  I think it is fair to say that the point may have emerged in the course of argument.  Is there something you would wish to say in response to the point that ‑ ‑ ‑

MR PICKERING:   Only one area; I agree with everything Mr Game said about that except I would not accept that error of facts ‑ on error of fact immediately leads the court to consider the proviso.  However, if there was an error of law in her Honour’s reasoning it would have implemented proviso.  As you know, our argument in this matter is that the court did not find errors of law but I accept the principles of what my friend was saying.

HAYNE J:   Yes, I see.  Yes, thank you.  Mr Game, you may have leave limited to essentially two grounds; one, the ground concerning the nature of

the task of the Court of Criminal Appeal, which is a ground that goes to the issue of conviction.  It will require some revision of the ground as presently framed.

MR GAME:   So can I take it then that the grant of leave relates to 2.4 reframed and 2.7, would that be correct?

HAYNE J:   Ground 2.7(i).

MR GAME:   Ground 2.7(i).  Sorry, I was not trying to steal two.

NETTLE J:   Nice try but no cigar, Mr Game.

HAYNE J:   Now, on that assumption, how long do counsel think?  A day?

MR GAME:   Yes, your Honour.

MR PICKERING:   Yes, your Honour.

HAYNE J:   The parties will be given the timetable.  It is possible the case will be fixed for May.  The timetable is abbreviated.  It is to be complied with.

At 1.26 PM THE MATTER WAS CONCLUDED