Regina v Michael Filitis [2004] NSWCCA 68

New South Wales Court of Criminal Appeal

CITATION : Regina v Michael Filitis [2004] NSWCCA 68 HEARING DATE(S) : 11 February 2004 JUDGMENT DATE : 11 February 2004

JUDGMENT OF : Sully J at 1; James J at 26; Hulme J at 27 DECISION : Appeal allowed; Ruling of trial Judge vacated; Matter remitted to District Court

LEGISLATION CITED : Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) CASES CITED : Domican v The Queen (1992) 160 CLR 583 Festa v The Queen [2001] HCA 72 PARTIES : Regina Michael Filitis FILE NUMBER(S) : CCA 60041/04 COUNSEL : B.J. Knox SC - Crown S.J. Odgers SC - Respondent SOLICITORS : S. Kavanagh - Crown Murphys Lawyers - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3122 FILE NUMBER(S) : LOWER COURT Bellear DCJ JUDICIAL OFFICER :

- 9 - IN THE COURT OF CRIMINAL APPEAL 60041/04

SULLY J JAMES J HULME J

11 February 2004 REGINA v MICHAEL FILITIS Judgment

1 SULLY J: Before the Court there is an appeal brought pursuant to s 5A of the Criminal Appeal Act, 1912 (NSW). The appeal derives from a ruling upon evidence given by Bellear DCJ sitting with a jury in the District Court at Campbelltown. His Honour is currently presiding over the trial by jury of Mr Michael Filitis, the respondent to the present appeal.

2 Mr Filitis stands charged upon indictment: first, with having assaulted one Daniel Karan on 13 July 2002 at Bankstown; secondly, with having wounded Daniel Karan at the same time and place and with intent to murder him; thirdly, and in the alternative to the second charge, with having maliciously wounded Daniel Karan at the same time and place and with intent to do grievous bodily harm to him. 3 The trial commenced on 2 February instant; and on the following day Mr Karan was called by the Crown to give evidence. The evidence led in chief from Mr Karan described a number of related incidents, of which it is sufficient to say they comprehended among other things his prolonged and serious assault with a wooden baton, the severity of the assault having been such as to have caused the baton not so much to break as to splinter. At the height of the incidents Mr Karan was stabbed in a way of which it is sufficient to say that it was both serious in its incidence, and life-threatening in its consequences. All of these matters are uncontroversial in the trial; and, indeed, are uncontroversial in the present proceedings. 4 In the course of taking that evidence in chief from Mr Karan the Crown produced two video recordings of identifications made by Mr Karan variously on 12 and 15 October 2002. Of particular importance for present purposes is the identification made by Mr Karan and recorded by video recording on 15 October 2002, for it is in that procedure that Mr Karan purportedly identifies the present respondent as the assailant who stabbed him. 5 The respondent was represented, and indeed, so far as we can see, continues to be represented at trial by counsel. 6 Counsel did not raise any objection to the leading of the evidence until after it had actually been taken and the video recordings marked for identification and placed in front of the jury. Counsel then applied to the Judge to withdraw the identification evidence from the jury before he embarked upon cross examination of Mr Karan. That touched off a lengthy exchange, the end result of which was that the learned presiding Judge decided that his Honour would not deal with any such objection until the cross examination had concluded; and indeed, the matter was not revisited until, essentially, the entirety of the balance of the Crown case had been completed. 7 A substantive application was then made to withdraw from the jury the material which they had variously seen and heard. His Honour heard an application on 5 February 2002 and had time over-night to consider what he would do in connection with it. What his Honour in fact did was to publish a ruling, the conclusion of which is expressed by his Honour in this fashion: "I am satisfied that the probative value is outweighed by its prejudicial effect and, exercising the discretion pursuant to ss 135 and 137, propose to withdraw the evidence of identification procedure. conducted by Detective Senior Constable Scott on 15 October 2002 where the complainant identified the photograph numbered 3 from the jury".