Citation: R v Filippou [2011] NSWSC 1379
Court: Supreme Court of New South Wales
Date: 18 November 2011
Judge: Mathews AJ
Background
The accused was charged with two counts of murder following the shooting deaths of two brothers, Samuel and Luke Willis, on 27 June 2010 at Mayfield, a suburb of Newcastle. The accused and the Willis family had shared a back fence and a running neighbourhood dispute since 2009, which had included noise complaints, anonymous threatening notes, and a series of hostile verbal exchanges.
On the evening of the killings, the accused confronted the two brothers outside his property. Luke Willis produced a revolver and said words to the effect of "We've got this." The accused then grabbed the revolver and shot both brothers at point-blank range, beginning with Samuel.
The accused pleaded not guilty to murder but guilty to manslaughter on the basis of provocation. The Crown rejected that plea, and the matter proceeded to a judge-alone trial on the sole issue of whether the killings constituted murder or manslaughter by reason of provocation.
Legal Issues
- Whether the accused in fact lost his self-control at the moment of the shootings
- Whether an ordinary person in the position of the accused, with the background of the neighbourhood dispute, could have so far lost self-control as to form an intention to kill or cause grievous bodily harm to the two victims
- Whether the defence of provocation was therefore available so as to reduce the murders to manslaughter
Decision
Mathews AJ applied the two-stage test for provocation under New South Wales law. The first stage asks whether the accused actually lost self-control at the time of the killing. Her Honour found this question was at best open on the evidence, given the accused's demeanour and conduct immediately before and during the shootings, but declined to resolve it definitively because the defence failed at the second stage in any event.
The second stage asks whether an ordinary person in the accused's position could have so far lost self-control as to form an intention to kill or inflict grievous bodily harm. Her Honour held that this stage clearly failed on the facts. While the Willis brothers had been shouting and using abusive language, and Luke Willis had produced a revolver, the accused's response of seizing the gun and shooting both men at close range was grossly disproportionate to the provocation experienced.
Her Honour acknowledged that the defence of provocation does not strictly require proportionality between the provocation and the response. However, she reasoned that where a response is grossly disproportionate to the provocation, it will inevitably fail the ordinary person test. The confrontation that evening, viewed against even the full background of the neighbourhood dispute, could not satisfy that standard.
Her Honour also addressed the possibility that the accused may have had an unusually low threshold for uncontrollable anger. Citing Brennan CJ in Green v R, she confirmed that an extraordinary want of self-control on the part of an accused provides no protection against a murder conviction. The defence of provocation was accordingly rejected, and the accused was found guilty of murder on both counts.
Orders Made
• The accused is found guilty of murder in relation to both charges
Key Takeaways
- Where a defendant's response to provocation is grossly disproportionate to the conduct experienced, that response will inevitably fail the "ordinary person" test, even though proportionality is not formally an element of the provocation defence under NSW law.
- An accused's personal tendency toward unusually low self-control or extraordinary aggressiveness is not a characteristic that assists a provocation defence. As confirmed by Brennan CJ in Green v R, such traits confer no protection against a murder conviction.
- The "ordinary person" test for provocation operates in two cumulative stages: first, whether the accused actually lost self-control; and second, whether an ordinary person in the accused's position could have so far lost self-control as to form the requisite intention to kill or cause grievous bodily harm.
- A judge-alone trial can deliver significant procedural efficiencies, particularly where counsel cooperate closely on the presentation of evidence, reducing the need for oral testimony across a large witness pool.
- Background history of a neighbourhood dispute, even one involving repeated threats and hostility over an extended period, does not automatically satisfy the ordinary person test where the final precipitating act and response remain grossly disproportionate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
Cases:
- Green v R [1997] 191 CLR 334
- Masciantonio v The Queen (1995) 183 CLR 58
- Moffa v The Queen (1977) 138 CLR 601
- R v R (1981) 28 SASR 321