The High Court has unanimously dismissed an appeal from a decision of the New South Wales Court of Criminal Appeal on sentencing in the context of a judge-only conviction and provocation. Following a long history of domestic noise disruption complaints culminating in a shooting, the appellant was convicted by Mathews AJ of two counts of murder and sentenced to 31 years in prison with a non-parole period of 25 years. Mathews AJ held that a pleaded partial defence of provocation had not been proven beyond a reasonable doubt because the appellant’s actions did not indicate a loss of self control. While the NSWCCA dismissed Filippou’s appeal against conviction and sentence, it was critical of the trial judge’s reasoning at several points. Before the High Court, the appellant contended that these errors constituted a substantial miscarriage of justice and that the case should be retried.

The High Court held the appeals against conviction and sentence should both be dismissed. The joint judgment (French CJ, Bell, Keane and Nettle JJ) concluded that while the NSWCCA’s reasoning was problematic in that it did not deal with the consequences of what the NSWCCA perceived to be errors in the trial judge’s reasoning on the sequence of events leading up to shooting and the appellant’s post-offence conduct ([54] and see at [43]–[53]), it was nonetheless clear that the trial judge did not err in either of these respects. The joint judges held that the trial judge was entitled to prefer the account given by an eyewitness over the recollections of the appellant’s spouse (at [56]) and that the post-offence conduct was acceptably treated as final and determinative in the sense that it was the last piece of evidence in addition to other evidence sustaining an inference beyond reasonable doubt that the appellant had not lost control at the time of the shooting ([57]–[58]). The joint judges also rejected the appellant’s argument that while the trial judge thought it likely that the appellant had brought the gun, because that fact was not proven beyond reasonable doubt her Honour should have sentenced the appellant on the basis that one of the deceased brought it, and taken that into account in the appellant’s favour (see [65]): where the court is not otherwise disposed to accept a fact that the offender argues should be taken in his or her favour, it is for the offender to establish that fact on the balance of probabilities ([66]ff). Gageler J agreed with the conclusions of the joint judges but differed as to why the appeal against conviction should be dismissed. In Gageler J’s view the NSWCCA did not err in its method of examining the trial judge’s possible errors (at [97]), and while the NSWCCA’s reasoning was ‘not abundantly clear’ it should be inferred that the NSWCCA saw those errors as errors of fact and not of law and correctly disposed of them (see at [98]–[99]).