Filippou v The Queen [2015] HCA 29: Provocation and Murder

Wednesday 12 August 2015 @ 2.18 p.m. | Crime

The High Court has handed down its decision in the case of Filippou v The Queen [2015] HCA 29 and unanimously dismissed an appeal by Christopher Angelo Fiippou from the Court of Criminal Appeal of the Supreme Court of New South Wales. The appeal was regarding the convictions and sentence imposed on Filippou for two counts of murder.

Background to the Case

The incident dates back to 2010 where Filippou shot and killed brothers Sam and Luke Willis. The incident took place as a result of a neighbourhood dispute between the men. At the time of the incident, the brothers had confronted Filippou outside his house. At a point during the altercation, a gun was produced and the brothers were shot at close range by Filippou. Filippou admitted to the shooting the next day but claimed that the gun was produced at the incident by Luke Willis. Filippou had seized the gun from Luke and subsequently shot the brothers.

Filippou was charged with murder. He pleaded not guilty to both counts of murder and insisted that he was guilty of manslaughter by reason of provocation.

At Trial in New South Wales

Before the Supreme Court of New South Wales, the sole issue to be decided on was that pertaining to provocation. The prosecution argued that Filippou had brought the gun and not the brothers. The trial judge rejected this argument but nevertheless found that there was no reasonable possibility that Filippou had lost control prior to the shooting and consequently, the partial defence of provocation failed. The trial judge therefore convicted him of both counts of murder. In her sentencing, the trial judge held that there was no conclusive evidence one way or another regarding the origin of the gun and thus sentenced Filippou on the basis that the origin of the gun was unknown.

The Court of Criminal Appeal found that the trial judge had erred regarding the sequence of events leading up to the shooting and might therefore have erred in law regarding the defence of provocation. However, the Court found that Filippou was nevertheless found guilty of the murders beyond reasonable doubt and thus, there was no error in the trial judge’s sentencing or a miscarriage of justice.

High Court Appeal

 The High Court agreed with the Court of Criminal Appeal and dismissed Filippou’s appeal. The Court found that the alleged error of the trial judge’s decision regarding the provocation defence were either not made out or of no consequence to the ultimate ruling. The High Court therefore found no miscarriage of justice that would warrant allowing the appeal to be remitted to the Court of Criminal Appeal for re-trial. On the appeal against sentence, the Court held that the judge was not bound to adopt the view of the facts most favourable to the appellant, and was therefore correct in sentencing on the basis that the origin of the gun was unknown.

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