Supreme Court New South Wales Medium Neutral Citation: R v Filippou [2011] NSWSC 1379 Hearing dates: 10/10/2011 - 14/10/2011 Decision date: 18 November 2011 Jurisdiction: Common Law - Criminal Before: Mathews AJ Decision: Guilty of murder in relation to both charges Catchwords: MURDER - plea of guilty of manslaughter - provocation - whether loss of self-control - firearm -Judge alone trial Legislation Cited: Crimes Act (NSW) 1900 Cases Cited: 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 Texts Cited: Nil Category: Principal judgment Parties: Crown Christopher Angelo Filippou (Accused) Representation: P Barnett SC (Crown) P Rosser QC / N Moir (Accused) Director of Public Prosecutions (Crown) John Anthony Solicitors (Accused) File Number(s): 2010/208897 Publication restriction: Nil Judgment 1On 10 October 2011 the accused, Christopher Angelo Filippou, was charged by way of indictment with the following two charges: First , that on 27 June 2010 at Mayfield he murdered Samuel Willis. Second , that on the same day, 27 June 2010 at Mayfield he murdered Luke Willis. 2In relation to both charges the accused pleaded not guilty of murder but guilty of manslaughter. The Crown did not accept this plea and the matter went to trial on the issue of murder. The sole issue raised by the defence related to provocation. 3In accordance with an order previously made on 29 September 2011 a jury had been dispensed with and the trial proceeded by myself alone. 4Considerable efficiencies were gained through the trial being heard by Judge alone, largely because of close co-operation between counsel as to the presentation of evidence. Only those witnesses who were required for cross-examination gave evidence orally; and even in those cases, their evidence in chief often consisted of confirming the accuracy of their written statements. As a result, there was a considerable amount of documentary evidence in the trial, consisting of the statements of all 47 witnesses, in addition to other exhibits. However, only twelve of the Crown witnesses were called to give oral evidence. As a result, the hearing of the trial was completed within a much shorter time than was originally anticipated. 5At the close of the hearing I reserved my judgment as to whether the accused was guilty of murder, as charged, in relation to each of the two counts in the indictment. Factual background 6The two victims, Luke and Samuel Willis, were brothers. They were aged respectively 28 and 22 at the time of their deaths. Their parents separated in 1995. Their father, William Willis, purchased a house at 12 Y Street Mayfield in about 2000 and the two victims lived there from time to time over the next ten years. In early 2009 the accused purchased a house at 7 Z Street Mayfield. This was situated directly behind the Willis' home, so that they shared a back fence. Mayfield is a suburb of Newcastle. 7Mr William Willis used to travel extensively, and was sometimes absent from the Mayfield home for extended periods. In 2009 he was away between 4 April and 20 June. Not long before his return, Sam Willis, who was then living in the Y Street house, had a party, or a drinking session, at his home one Sunday night. The revellers were apparently sitting around an open fire in the back yard playing music very loudly. This continued well into the early hours of the next morning. It provoked a neighbour, who lived diagonally to the rear of the Willis home (and therefore next door to the accused), to call out and ask the revellers to be quiet. The noise continued and the neighbour telephoned the police, but they did not attend. At one stage, the neighbour turned his hose onto the party-goers in the Willis back yard. Verbal abuse ensued between them. At some point the accused came into his yard and joined in the heated exchange. All of them, including the accused, were delivering insulting expletives. However, it has to be said that the evidence indicates that it was the party-goers in the Willis home who probably used the most offensive language. 8This incident is, in one sense, highly significant, as it marked the beginning of the neighbourhood conflict between the Willis household and the accused, which ultimately led to the killing of the Willis brothers. 9Sam Willis told his father about this incident shortly afterwards, when his father returned from overseas. It would appear from this account that there were only two of them in the Willis back yard that night, namely Sam himself and his close friend Alex Best. It would appear that they had consumed a considerable amount of alcohol. Alex Best gave evidence in the trial in which he described an incident in 2009 when he said that he and Sam were in the Willis back yard playing music and the neighbour directly to their rear turned a hose on them and said, "keep the noise down or I'll come around and shoot you". Mr Best's description of the man who did this could only apply to the accused. 10It would appear from the whole of the evidence that the incident described by Mr Best must be the same incident which Sam Willis told his father about. It was also described by a number of neighbours, including the wife of the accused. Mr Best's evidence was clearly inaccurate in a number of respects: as to the volume of the music (he said that it was not loud); as to the timing of the event (he said that it took place at dusk); and as to which neighbour it was who turned the hose on them (it was clearly not the accused). 11Mr Best played a significant part in the events which ultimately escalated the neighbourhood conflict to its tragic climax, as I shall describe later. It is not at all unlikely that he has unconsciously reconstructed events so as to minimise his own role. In any event, I do not accept Mr Best's evidence that the accused threatened to shoot them during the course of this episode. This is contrary to the evidence of the two neighbours from adjacent properties, one of whom described the accused as saying, "turn the music down or I'll come over there and knock your fucking head off", and the other who described the accused as saying, "come over here you little cunt and I'll show you". 12A few days after this incident a handwritten note was left at the Willis property. It was in the following terms: "My elderly mother is sick and tired of the noise you make daily and nightly so I followed you on Friday night and Saturday. It's a nice place where your mummy lives lets see if mummy likes being disturbed like my mother has to put up with So dopey if my mother rings me again the cops might like to know about all the dope you've hidden at 12 Y St and your mummys place." 13According to the evidence of Matthias Zierholz, the handwriting expert called by the Crown, this letter was written by the accused. Mr Zierholz was extensively cross-examined by Mr Moir on behalf of the accused. However, the probity of his opinion remained, in my view, essentially undiminished, and I accept that the letter was in fact written by the accused. It is, I believe, unnecessary for present purposes to elucidate my reasons for accepting Mr Zierholz's opinion. Indeed, Mr Rosser QC acknowledged in his final address on behalf of the accused that it was open for me to find that the accused wrote this letter. 14Interestingly, the reference in this letter to "my elderly mother" might appear to indicate that the letter came from the neighbour who lived next door to the accused, who had sprayed water into the Willis back yard, for that neighbour shared his house with his elderly mother. There was no elderly woman in the accused's household, which consisted of the accused himself, his wife Glenda and their son, who is also called Christopher. 15Not surprisingly, Sam Willis was concerned about the tone of this letter and wanted to find out who had written it. For this reason, he went around the neighbourhood, with the letter in his hand, and asked the residents whether they knew anything about it. Several of the neighbours gave statements in which they described Sam's visit. It would appear from all of these that Sam's attitude was polite and composed. He expressed concern that his music might have been disturbing the neighbours. One neighbour described him as "apologetic and respectful". Another said that he was "polite ... and completely non-threatening". His next-door neighbour, an elderly lady, described him as "a little agitated, but always polite". According to accounts that Sam gave afterwards, the majority of the neighbours whom he approached gave positive feedback, saying that they did not have any problem with his activities at the Y Street address. They expressed shock at the tone of the letter. The one exception was the accused. Sam told his father that, when he went to the accused's home and asked him if he had written the note, the accused denied writing the note and said, "if you come around and threaten me again I'll shoot you". Sam told his mother that the accused had threatened to kill him. 16The accused himself referred to this incident in his ERISP (Exhibit BB) the day after the killing. He was asked if he knew the name of one of the boys. He said (A 55): "...first off it was Sam, he come around to our place last year going someone ripped me ... someone put some dope on the car, blab, blab, blab. Then he went round the rest of the neighbours as well. ... Q 56 So there's obviously, there's obviously already tension, conflicts between you and Sam. A Just the noise, just the noise factor and ... yeah, how he sort of went on, you get me. Something happened, they'd come to our place, they'd go to next door, they'd go there and there but in the whole meantime they're the dickheads who are causing it all so to speak. You know, they'd come whingeing someone's done this, someone's done that." 17A few days after the conversation between Sam Willis and the accused, Sam's father, William Willis, spoke to the accused over the back fence. In his statement dated 2 July 2010, Mr Willis described the conversation as follows: "I asked him what had happened. I raised the issue of his threats towards Sam. I can't remember the exact conversation but he replied your son was really upset and angry he was really threatening me. I made a comment that it was the heat of the moment. He said 'I was upset Sam was upset we just let off a little bit of steam'. He said 'I just don't want to be threatened by Sam again'. I told him that I would talk to Sam and sort it out." 18During Mr Willis' evidence before me the Crown prosecutor asked him about this conversation. He gave the following answer: "A. Yes, the conversation also included comment by the man which was to the effect that Sam came around with the note, which I've referred to in that paragraph, but he also said that Sam came around and Sam had - he was dressed - he didn't have a shirt on when he came around and the man said that he told Sam that, 'If you come around again, I will shoot you'. Q. What, if anything, did you say when the man said that to you? A. I can't remember my exact words, but I was in a state of shock and said that, to some effect, that maybe it was just sort of a misunderstanding, that it would blow over, that it was just comments made in the heat of the moment." 19Mr Willis was cross-examined about this conversation by Mr Rosser. He described the tone of the accused during this conversation as "unemotional". He was asked why he had omitted from his statement the important fact that the accused acknowledged threatening to shoot his son Sam. He denied that he had forgotten this aspect of the conversation when he made his statement. Rather, he said, he thought that those words were included in the statement and only realised that they were not when he read the statement not long before giving his evidence. 20Mr Willis has every reason to dislike the accused, to put it mildly. After all, on any way of looking at it, it was the accused who shot and killed his two sons. Nevertheless, I gained the firm impression that he was trying to remain objective during the course of his evidence and to give his best recollection of events as they occurred. It is clear from the accused's answers at paragraph [16] above, that he resented Sam Willis approaching him and asking about the letter. In all the circumstances I accept that the accused did threaten Sam Willis by saying words to the effect of "if you come around and threaten me again I'll shoot you". 21It would seem that there were no further overt conflicts between the two households for the rest of 2009. Mr Willis Snr was in Turkey between 15 August and 17 November 2009. Before his departure he had a discussion with the accused about the erection of a new common fence between their properties. On all accounts this was completely amicable. Also before his departure he warned Sam not to have any more loud parties and to keep the noise down during his absence. 22It would appear that Sam heeded his father's advice as, as already mentioned, no further incidents took place during Mr Willis' absence. After his return the new fence was erected between the Willis and Filippou back yards, with the complete co-operation of both the accused and Mr Willis. 23During this time Luke Willis was living in Hay, where he was teaching at the local primary school. He had a three-year tenure there, which finished in December 2009. At that time he returned to Newcastle where he had obtained a permanent job at Thornton Primary School as a Year 6 teacher. He initially lived in the Y Street house with his father and brother, pending the purchase of his own home in E Street, Mayfield. 24Early in January 2010 a number of hypodermic syringes were scattered on the pavement immediately outside the Willis home. Mr Willis said in his statement that they used gloves to pick them all up, and they then threw them away. He said: "We didn't approach anyone or report it to the Police, we took it as just part of living in Mayfield." He was asked about this by Mr Rosser. He said: "In Mayfield there can be incidences of what I call vandalism that take place, and also people dumping things around the area." 25Later in January, on the eve of Luke's move into his new home in E Street, the three Willises, namely Luke, Sam and their father, had a barbeque at the back of the Y Street home. As Mr Willis described it, they had some beers and listened to music which was at a "moderate level". Luke had already left before they packed up the barbeque and went to bed, which Mr Willis said was at about 11:00 pm. 26The next day they found that the front gate of the Y Street property and a significant part of the front fence had been sprayed with a shiny grey paint. The paint had also spilled out onto the driveway and part of the pavement. They noticed a trail of paint splatters going down Y Street. They followed it and found a small empty paint tin about four houses away from the Willis home. It was apparent that this was the tin which had contained the paint sprayed onto their property. 27A few days later Mr Willis found a two-page handwritten note lying on his front lawn. It was in the following terms: "To the noisy residents of 12 [Y] I've lived in [Y] St for over 20 years and it is a quiet and clean area Since you and whoever have moved in at the above address the noise and rubbish people who frequent your house is not acceptable. You show no respect for the people around a lot whom are elderly. I have spoken to a few residents near your house and not one has said anything positive about you. So if you are renting go rent some where else, if by any chance you own the home, I will personally make your stay there unbearable I can hear your noise half way down the street so clean your act up and show some respect or you wont be in your little house to long [sic] and no-one around here will mind at all" 28The handwriting expert called by the Crown, Mr Zierholz, was of the opinion that this letter was also written by the accused, and I accept this to be the case. In this regard, it is interesting to note that both letters contained false information as to the purported author of the letter, no doubt in an attempt to deflect attention away from the accused. The first letter referred to the author's "elderly mother". As already mentioned, the accused's mother was at no time living in his house. The second letter purported to come from a long-time resident of Y Street. The accused had never been a resident of Y Street - he lived in a street which was parallel to Y Street. Nor was he a long-term resident. He had bought the property approximately eighteen months earlier. 29This second letter clearly caused considerable concern to Sam Willis and his father. They decided to canvass the neighbourhood as to the authorship of the letter, and also as to whether their neighbours had continuing concerns about noise emanating from their home. This time the two of them, father and son, went together to their neighbours' homes. 30According to Mr Willis, all of the neighbours to whom they spoke said that they had no problems at all with the residents of 12 Y Street. This is confirmed by the statements of several of the neighbours who were approached. When the Willises went to the accused's home, Mr Willis said that a female came to the door and declined to allow them to speak to her husband, who she said was asleep. Mr Willis asked her, "are you having any problems with us, has the noise been disturbing you?" She said: "No. We haven't had any problems since the incident in June last year." 31This description of the incident was essentially confirmed by the accused's wife, Glenda Filippou, in an interview conducted by the Police later on the evening of 27 June 2010. She referred to Sam Willis and his father coming around to their home saying that somebody had been spray painting their fence, saying that if this continued they would call the Police. Mrs Filippou said (Exhibit Q, answer 291): "And I said, well don't look at me, you know. I said, as far as I'm concerned I haven't heard his music again since that night, not, you know, not to bother you anyway, you hear it but not to bother you." 32On 9 February 2010 Mr Willis' partner arrived from Turkey and stayed with them until 11 April, when the two of them left together to go to Turkey. During that period Mr Willis said that there were no further incidents. He was still overseas when the killings took place on 27 June. In the meantime, Mr Willis said that he kept in regular contact with his sons who told him that there were no problems in the Y Street home. Only days before the killing Mr Willis used his computer to "Skype" with the two boys at Luke's home. They assured him that they were looking after the Y Street house and that there were no problems. Sam told his father that he was studying and working. He described himself as having a "boring life". 33I should interpolate here that at that stage Sam Willis was studying Environmental Science at Newcastle University. He had commenced this course in 2007, after finishing High School. The studies were interrupted after his first year when he went to Mexico where he studied Central American Art at the University of Monterrey and learnt to speak fluent Spanish. When he returned to Australia in 2009 he re-enrolled in the Environmental Science course for which, according to his mother, he was receiving distinction grades. In 2010 he was also working part-time with Allambie Youth Services where he was a team leader of a ten-year-old boy who had problems in foster care. 34The killing of the Willis brothers took place on the evening of Sunday 27 June 2010. At that time there were two people living at 12 Y Street, namely Sam Willis and Luke's girlfriend, Monica Dorbecker Del Rio. On the afternoon of Saturday 26 June the two of them went, together with Alex Best, to a barbecue at Luke's home in E Street. There, according to Mr Best, they were drinking beers. At about 9.00 pm Mr Best and Sam left to return to the Y Street house. On the way home they stopped at a liquor store and bought a bottle of bourbon. As they were walking across the front lawn to enter the house, they found a plastic bag on the ground. Sam opened it and, according to Mr Best, found inside a mass of dried leafy material, or "pot pourri" as they described it, together with a piece of cardboard on which was written, in large handwriting: "Cheers you Dope from Alex". It is possible that this bag had been on the lawn for some little time, as Ms Dorbecker Del Rio said in her evidence that she had seen it there for something between one and two weeks. However it is apparent that this was the first time that any member of the household had opened it. 35According to Mr Best, both he and Sam were shocked by this. They were wondering how this person knew Mr Best's name. Sam said that he wanted to talk to the person responsible before things escalated even further. They had no doubt as to who was responsible, namely the person who lived in the house immediately behind them. So they decided to go to that person's home. They started walking around the block. On the way, Sam rang Luke and told him what had happened. Luke also was shocked, according to Mr Best. However he instructed the other two not to continue on their mission, but to go home. He reminded them that the neighbour in question had young daughters, who might be disturbed. So Sam and Mr Best decided not to knock on the accused's door. However Mr Best said that they wanted to convey to the man that they knew that he was responsible for what had been happening. So they poured the contents of the plastic bag, including the cardboard note, onto the white utility which was parked in the driveway of the accused's house. Mr Best also used a cigarette lighter to scratch the words "Suck me" onto the back of the utility. 36I should interpolate here that the scratch marks on the car must have been very superficial, for the accused's wife, Mrs Glenda Filippou, was able to polish them off the next day. 37It was Mrs Filippou who first found the leafy material and the message on the car outside their home at about 11 o'clock the next morning, Sunday 27 June. She called the accused, and according to what she later told the police, when the accused saw what had happened he responded by calling out (no doubt abusively) at the back fence. However there was no response from the Willis household. 38Mrs Filippou said that her husband left their home only once that day, to go to the local TAB. This was at about midday. He was gone for a few minutes only. When he returned, he told her that he had pulled up outside 12 Y Street on his way home, but there was no one there. The accused then remained at home until the arrival of the Willis brothers early that evening. 39Mr Zierholz was unable to determine who wrote the note saying "Cheers you Dope from Alex". A factual issue therefore arises as to whether it was in fact written by the accused, as implied by Mr Best's evidence, or whether it was written by Mr Best himself, and then put into the bag which the two of them poured over the accused's car. I initially thought that it was likely to be the latter. The accused had never met Mr Best (although he had heard him over the back fence), and may well not have known his name. Indeed, he told the Police, in his ERISP, that the thing that baffled him about this episode was the name "Alex". He thought that the neighbour's name was "Sam". On the other hand, a friend of Sam's, Jordan Appleyard, described a telephone conversation with Sam on that Sunday, in which the latter told him that he and Alex had found a bag containing pot pourri in their garden the previous evening, together with a note saying "From your mate Alex". Although this is classic hearsay, it is powerful evidence in support of the proposition that the accused did indeed write the note, for Mr Appleyard almost certainly had no other source of information about this matter when he made his statement to the Police two days later. 40It is however, unnecessary to make any conclusive finding on this matter, which is essentially peripheral to the main events, which occurred some time later, on the Sunday evening. The day of the shooting 41I turn now to say something about the activities of the Willis brothers that Sunday. Sam Willis regularly worked on Sundays, between about 8.30 am and 5.00 pm. His co-worker and friend, Spencer Thebus, who took over from him that afternoon, had a conversation with him about the "neighbourhood dispute" that the Willises were involved in. Sam told him about the letters they had received, the paint being splashed on the fence, and the bag of pot pourri. He said that he knew who had been doing this, namely the older man who lived behind them. Mr Thebus said in his statement that although the two of them were laughing about these incidents, he could see that Sam was concerned. 42After Sam left work that afternoon, he went to Luke's home in E Street. He was described by the people who shared the house with Luke as being "a bit down" and "a bit subdued". He did not stay long, and left at about 5.30 pm. It would appear that Luke left at much the same time. The evidence indicates that they both must have gone immediately to the Y Street home. 43What happened then comes from the evidence of Ms Dorbecker del Rio. She had been out with friends for much of that day, and arrived back at the Y Street house at about 5.50 pm. Both Luke and Sam Willis were standing outside. They told her that the lounge room window had been broken. She looked over and saw that a plastic bag with a book or books had been thrown through the window, and was lying on the couch immediately below the window. Luke and Sam told her that they were going to talk to the neighbour who was responsible, pointing to the rear of the house. They then left, with Sam saying "Don't touch anything from the broken window." Ms. Dorbecker Del Rio heard nothing more until she heard police sirens approaching, which she thought was about half an hour later. She could see flashing lights from the rear of the house. Later, the police came to the house, and she learnt about the deaths of Luke and Sam Willis. 44At this stage it is necessary to interrupt the narrative of events in order to say something more about the broken front window at 12 Y Street. It was always assumed that it was the accused who threw the telephone books through the window. However when the accused was already in custody, his son, Christopher junior, apparently told his parents that it was he who had done it, in retaliation for the vandalism of the accused's utility the night before. He gave evidence at the trial, to the same effect. He said that he left his parent's home in Z street at about 5.00 on the Sunday afternoon, and drove around the block to 12 Y street. He said: "I got out of the car, seen no one was at home, picked up a phone book, threw it through a window". He then drove to his girlfriend's home, where he remained until he received a telephone call from his mother a little later in the evening. 45The accused's son had initially objected to giving evidence against his father. He withdrew his objection when he was told that the Crown Prosecutor was not proposing to ask him questions, but was making him available for cross-examination at the request of Mr Rosser. His evidence as to the breaking of the window at Y Street was obviously favourable to the defence, and Mr Rosser did not query it in any way. Nor was the Crown Prosecutor in a position to cross-examine him about it. The evidence was therefore accepted without challenge. However I have to say that I have considerable difficulty with it, and I strongly suspect that the accused's son was shouldering the blame for this action in order to protect his father. Apart from anything else, his description of his actions does not accord with the material evidence. He said that he "picked up a phone book" which he threw through the window. However the photographs show that the window was broken by a white plastic bag, into which two telephone books had been placed, and which had then been tied at the top. 46Despite these misgivings, I must accept, for present purposes, that it was the accused's son, not the accused himself, who broke the window at 12 Y Street. Given that the sworn testimony is all one way, there is no basis upon which I could possibly be satisfied beyond reasonable doubt that Mr Filippou junior was lying when he gave this evidence. 47I return now to the central events of that Sunday evening. It is apparent that the when Luke and Sam Willis left the Y Street house they walked immediately around the block to the accused's home. The accused and his wife were there alone. As already mentioned, their son Christopher, who also lived there, had left earlier to go to his girlfriend's house. 48Mrs Filippou was interviewed by Police later that night (Exhibit Q). She said that at about 6.00 pm she heard male voices outside their home calling out for "Chris". At that time her husband was sitting in the loungeroom towards the back of the house, reading the paper. She went and told him about the yelling at the front. Both of them assumed that it was the "dickheads" from the house behind. The accused went straight down the hall and out the front door. She could see two males outside. She assumed, she said, that the men were on the footpath rather than on their property, as she heard the accused open the gate when he went out to them. Shortly afterwards the accused came running back inside, saying "Ring Christopher!" She went to the telephone in the dining room, and rang their son. Telephone records show that the first call from the accused's home to Christopher Filippou took place at 6.07 pm. After telling her to ring their son, the accused ran straight back outside, where she could hear an altercation going on, with all three of them yelling. She made out the word "police". The accused was angry, she said. Then, shortly afterwards, the accused came running back inside, saying "I'm going". He went straight to the kitchen, grabbed the car keys, and went out the back door to the utility, which was parked in the driveway. He reversed it out and left immediately. She did not speak to him again that day. Not long afterwards she heard sirens outside, but she did not go out to see what had happened. 49There is no doubt that the shooting of the Willis brothers took place when the accused was outside with them. Whether it was on the first or second occasion that he went out is a matter I will be discussing later. Mrs Filippou denied ever hearing any shots, saying that you could not hear what was happening out the front of the house if you were in a room towards the back. This is one of the inconsistencies in the case. For she also said that she could hear shouting; and one would expect the sound of gunshots to be significantly more penetrating than voices, even loud voices. Certainly many of the neighbours heard the shots, without apparently having heard the shouting which Mrs Filippou said preceded them, and all of these lived further away from the source of the sound than she was. 50This takes me to the evidence of other people who lived in the vicinity. By far the most significant of these was Mr Brett Allen, who lived in A street, Mayfield. This street formed the top of a "T" intersection with Z Street. From windows at the front of his house, Mr Allen had a clear and unobstructed view down Z Street, past the accused's home at No. 7. Mr Allen made a statement to Police later that evening, in which he said that as he was walking towards his front door he heard two popping sounds, like fire crackers, in very quick succession. He went to the window at the front of his house and saw the figure of a man on the nature strip outside the accused's home. The area generally was well lit, Mr Allen said, and there was also a light shining from the front of No. 7. The man was side on to Mr Allen, and was bending slightly over, pointing to the ground with his right arm outstretched. Mr Allen saw the silhouette of something on the ground, but was unable to make out what it was. He then saw a flash come from the end of the man's arm, followed by a loud popping noise, the same as the noises he had heard earlier. Mr Allen realised that the man had been shooting a gun, and that the silhouette on the ground must have been a person. He immediately picked up the phone, which happened to be beside him, and rang 000. While he was on the phone, he saw the man walk "fairly casually" back into the front yard of No. 7, where he went out of sight. About a minute later the same man returned to the nature strip, and crouched down over the silhouette on the ground. His arms were moving in a "pulling motion", according to Mr Allen. The man then stood up and returned into the front of No. 7. At that time the light at the front of the house went off. Shortly afterwards Mr Allen heard a vehicle start, and a white utility reversed out of the driveway of No. 7 and initially reversed up Z Street before driving off in the opposite direction. In the lights of the car Mr Allen could see a person lying on the nature strip. 51Mr Allen gave evidence at the trial, in which he affirmed the account given in his statement. He said that the first two shots were in very quick succession, only about a second apart. The total time between the first and third shots was between about five and ten seconds. 52Mr Allen was the only witness who actually saw anything happen in the street that evening. Other people in the vicinity heard the shots, and all but one of them confirmed Mr Allen's evidence as to the timing of the shots. Six people made statements to the police in which they said they heard two shots in rapid succession, followed by a third shot a few seconds later. The one who gave a different account said that it was several minutes between the second and third shots. However, given the overwhelming weight of the evidence in support of Mr Allen's version, I must assume that this witness was mistaken in his timing. 53This finally takes me to the accused's version of what happened outside his home that night. He is, of course, the only surviving participant in these events. He did not give evidence at his trial. This cannot be used in any way adversely to him, and I certainly do not do so. All it means is that I am completely dependent on what he told the police about the events of that evening. This is almost entirely contained within an ERISP which the accused entered into on the afternoon of Monday 28 June at Belmont Police Station. The accused had earlier that day handed himself into the police at Belmont, in circumstances which I shall describe later. 54Between handing himself into the police and the commencement of the ERISP, there was a brief conversation between the accused and two police officers in which the accused said: "I don't want to say anything other than I shot them, they pulled a gun on me and I took it off 'em and shot 'em. They're shit. If you're going to pull a gun on me, be prepared to use it. That's all I'm going to say." 55It was not all he had to say: the ERISP he entered into about two hours later lasted for nearly an hour, and the transcript runs to 31 pages. In it the accused said that when the Willis brothers arrived outside his home on the Sunday evening, he was reading the paper in the dining room. He was drinking a stubby of beer with two scotch whiskeys, but he said that he was not affected by alcohol. His wife came and said: "It must be those dickheads from the back, they're out the front yelling". The accused said that he went out the front door, where he could hear the men "loudmouthing" just outside the street. There were two of them: one, whom the accused knew as Sam, and another whom he had never seen before. The lighting was good, the accused said, as the front porch light was on. He walked out to the fence. At about that point the unknown man took a gun out of his pocket with his right hand and said "I've got this". The accused immediately grabbed the gun with his own right hand, put his finger on the trigger, and shot "that dickhead, Sam". He said that he shot Sam first because he was still mouthing off. He then pointed the gun at the other man and shot him. At the time they were no more than a metre away from him. He was asked what happened then, and the following exchange took place: "Q127 And what happened then? A I just left. Shoved the gun, I should have shoved the gun up his arse, but just left it on him and then left. Q128 And who did you, when you say you left it on him, what do you mean? A Just in his hand or whatever I done, I don't remember to tell you the truth, you know what I mean, it was just, I just had to go. Q129 Do you remember whose hand you lift it in? A No, I don't, not at that time. Q130 Pardon? A No, I don't not at that time, I just ... Q131 You don't, O.K. Why did you do that? A Because it['s] theirs, they may as well keep it. Q132 O.K. What did you do then? A Went inside, put me, this flannelette shirt on and just drove. Q133 Yes. What car did you take? A The ute." 56The accused was told about Mr Allen's observations, and asked whether he remembered shooting someone on the ground. He said that he might have done so, but everything happened so fast that he could not remember the details. He initially said that he fired the gun two or three times, but then said that he "just shot whatever bullets were there", and he could not remember how many shots were fired. 57I will return later to say something about the accused's movements after he left his home that evening. In the meantime, it is apposite to refer to the observations made by the police who first arrived at the scene, and the results of the post mortem examinations of the two deceased. 58The first police to arrive at the scene were Senior Constable Stuart Tylor and Constable Bowman, in response to a radio message received at 6.15 that evening. Senior Constable Tylor said that when they arrived in Z Street they found two men lying on the grass verge outside No. 7. One of them was lying on his chest. The other was lying on his back with his right arm outstretched and a small revolver in his hand. His hand was in the trigger guard and very close to the trigger. Constable Tylor slid the revolver away from the man. He then realised that the man was dead. Constable Bowman checked the other man, lying face down, and said that he also was dead. Shortly afterwards, the paramedics arrived. They placed conductive pads on the man lying face upwards, and rolled the other man over. They confirmed that both men were deceased. 59It is clear that the man lying face upwards, with the gun in his hand, was Sam Willis. The other man was Luke Willis. 60Shortly afterwards, Constable Tylor said that Christopher Filippou junior walked along Z Street towards No. 7, calling out profanities, waving his arms and yelling "hysterically". He was detained by police, and was placed into a caged police vehicle in order to restrain him. 61On 29 June 2010 a post mortem examination was conducted on each of the two deceased. Sam Willis was found to have a bullet entry wound to the left side of his neck. The bullet had travelled through the neck from left to right, and had exited at the back right of the neck. No vital structures had been injured, and the wound would not have been fatal. The projectile has never been located. This was almost certainly the first shot that was fired. There was also a bullet entry wound on the upper mid front of his chest. The bullet had lacerated the arch of the aorta, causing extensive haemorrhaging into the chest cavity. This injury would have been rapidly fatal. The bullet was located under the skin on the left back of his chest. This must have been the third shot that was fired, when the victim was lying on the ground. 62Luke Willis was found to have a bullet entry wound on the outer front of his left chest. The bullet traversed the chest cavity and exited at the right back of the chest. Its path was in a front to backward, left to right and slightly downward direction. It had penetrated the left ventricle, both lungs and the aorta, with extensive bleeding into the chest cavities. Death would have been very rapid. A projectile was found on the road in Z Street which must have caused this injury, as it had blood on it which matched Luke's DNA profile. 63No alcohol or drugs were located in the blood of either of the victims. 64A ballistics expert, Mr Van der Walt, gave evidence for the Crown. He conducted proximity tests in relation to each of the three entry wounds. As a result, he concluded that the shots which caused each of the chest wounds were discharged from a distance of between 800 millimetres and a metre. The shot which caused Sam Willis's neck wound was discharged from a distance of approximately 300 millimetres. 65No significance can be attached to the fact that one of the projectiles has never been located, nor to the precise position of the projectile on the roadway. For there was a considerable amount of traffic and movement in the area during the period immediately after the shooting, and they could easily have been unwittingly moved or removed. 66At this stage I return to say something about the accused's movements after he left home in his utility. 67In June 2010 the accused was employed as a cleaner at the Belair Public School at Adamstown, which is 7.6 kilometres from the accused's home in Z Street. At 7.03 on the evening of 27 June the alarm system at the school was disarmed by a person using the accused's pin code. At 7.15 pm a phone call was made from the Belair School to the home of a person whom I shall call, for present purposes, by her first name Margaret. Margaret's statement was tendered by the Crown. She did not give evidence in person. Margaret lived at North Belmont, about 13 kilometres from the school. The call was from a man she knew as "Steve Tatu". Margaret knew Steve through a singles social group which she had joined in the late 1990's. Steve had telephoned her, and they had arranged to meet for a drink. No details were given in her statement as to the relationship which then developed between them, but it must be assumed that some relationship existed between them at some stage. Margaret said in her statement that the last time she had seen Steve was just before Christmas 2009. 68Margaret said that on the evening of Sunday 27 June she received a phone call from Steve. She instantly recognised his voice. He asked if he could come and see her. She agreed, and he arrived within about an hour. They sat down and chatted. He asked if he could stay that night and the Monday night, saying that if it was not convenient he would sleep in the garage. He asked where he could buy some cigarettes. Margaret suggested Foodworks, and agreed to go with him to show him the way. They both then went in Steve's white utility to Foodworks, where they each bought some cigarettes. When they returned home they chatted some more and watched some television. Margaret commented that Steve was different. He seemed to be on edge. Eventually Margaret went to bed, and a little later Steve followed her, fully clothed. She said that he was very restless. At one time she found him in the family room using her phone. It is apparent from the telephone records tendered by the Crown that these calls took place between 6.23 and 6.27 in the morning, and that the calls were made to the accused's two daughters. A little later Steve asked Margaret where he could get a newspaper. She told him where the newsagent was. Not long afterwards she realised that Steve was gone, as was the utility. 69About six weeks later the police called at Margaret's home, having traced her through the telephone records of Belair School. They asked her if she knew Chris Filippou, and she answered that she had never heard of a man by that name. They then showed her a photograph taken at Foodworks on the night of 27 June, and she immediately recognised herself and the person she knew as Steve Tatu. The Crown also tendered a DVD of Margaret and "Steve" at Foodworks that night, and there is no doubt at all that her companion was the accused. 70It was not until 10.35 on the Monday morning that the accused handed himself into the Belmont Police Station. There is no evidence as to his movements in the meantime. 71There is one final conversation between the police and the accused which I must mention before I turn to the defence of provocation. This comes from the statement of Senior Constable Benjamin King, who was in charge of forensic procedures involving the accused. At about 6.00 pm on 28 June he said to the accused: "Why did you come to Belmont, Chris?" The accused responded: "To tell you the truth I didn't even know there was a Police Station here. I asked four people on the street, I haven't been down here for a long time." Constable King asked: "Where did you spend last night?" The accused said: "I just stayed in my ute in Adamstown getting my head together. I was heading to Sydney. I was going to slip back into Punchbowl and you never would have found me. Then I thought you would give my family a hard time and I didn't want that. I was always taught never bring a gun unless you are prepared to use it." Up to this point Constable King said that the accused had appeared calm. However his demeanour suddenly changed and he clenched his fists, gritted his teeth and said, with anger in his voice: "I'm fucking proud of what I done. Fucking proud of it." Provocation 72As already mentioned, the only issue at the trial was whether the killing of the two victims was done under provocation. This defence is provided by s 23 Crimes Act (NSW) 1900 ("the Crimes Act "), which is as follows: " 23 Trial for murder - provocation (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. (3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if: (a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission, (b) the act or omission causing death was not an act done or omitted suddenly, or (c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm. (4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation. (5) This section does not exclude or limit any defence to a charge of murder." 73Under subs (1) the defence applies only in situations where, in the absence of provocation, the accused would have been found guilty of murder. This is clearly the case in relation to both charges against the accused. Indeed, it is acknowledged by his plea of guilty to manslaughter, and by the entire conduct of the defence case. Accordingly, there is no need to consider this precondition further. 74Pursuant to subs (2) there are two essential elements in the defence of provocation. They are, as relevant here: (1) that the act causing death was done as the result of a loss of self-control on the part of the accused which was induced by conduct of the deceased towards the accused; and (2) that the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed the intent to kill or inflict grievous bodily harm upon the deceased. 75Pursuant to subs (3), once the issue of provocation has been raised, the onus lies on the Crown to disprove it beyond reasonable doubt. This can be done by disproving either of the above elements to the requisite standard. 76I should preface this discussion by saying that it has been agreed between counsel that essentially identical issues apply in relation to each of the charges against the accused. The two deceased were clearly acting in concert when they went round to the accused's home, and provocative conduct by either one of them would be relevant in relation to both charges. 77I turn now to discuss each of the above elements as they apply to the facts of this case. Loss of self-control induced by conduct of the deceased 78This element contains two essentially separate concepts, the first relating to the accused's state of mind, and the second to the conduct of the deceased. In the circumstances of this case, it is necessary to consider the second concept first. For there is a significant factual issue as to where the gun came from: whether it was the accused or one of the deceased who first produced it. My finding on this matter will inevitably influence my finding as to the state of mind of the accused when he shot the two deceased. Who first produced the firearm? 79The firearm in question is a .38 special calibre Smith & Wesson Model 36 five-chamber revolver bearing serial number J113032. It is a small weapon. It was found by Senior Constable Tylor in the right hand of the very recently deceased Sam Willis. There was never any suggestion, however, that Sam had discharged the firearm. The evidence on this was all one way, namely that the three shots were fired by the accused, who then put the revolver into Sam Willis's hand before departing the scene. The real question is who brought the gun to the scene of the killing. The accused told police that it was Luke Willis who first produced it. The Crown disputes this, and says that it must have been the accused who brought it with him when he came out of his house to confront the two brothers. 80Enquiries made by police established that the revolver in question was stolen during an armed robbery committed on a CBC Bank security van in Camperdown, NSW, on 9 March 1977, by persons unknown. There has been no record of the gun since then. 81A considerable amount of evidence at the trial was directed to the question of who first produced the gun; with the associated question as to which of the two households it came from. The accused, of course, said that it was first produced by Luke Willis. The accused denied ever seeing it before, and he was supported in this by the evidence of his wife and son, who said that they had never seen a revolver in the house. Given that there were no witnesses to the commencement of this confrontation, there was no direct evidence to refute the accused's version. However Mr William Willis, and all the associates of the Willis family, denied that they had ever seen either of the deceased with a revolver, or that there had ever been one in the Y Street house. 82I do not propose to go through the details of the extensive evidence which addressed this issue. It included evidence from the firearms expert as to the operation of the gun, and the significance, if any, of the position of the cartridges in the firing chamber. An air rifle was found under the bed in the accused's bedroom, and air rifle pellets were in the top drawer of a bedside table. But as Mr Rosser submitted, there is a significant difference between an air rifle and a revolver, and it would involve an impermissible leap to conclude from the possession of one that the accused was also the owner of the other. 83A large carton was found inside the Willis home, in a prominent position beside a couch in a room at the back of the house. In it were two paper targets, featuring a man holding a revolver which is pointed at the observer. Mr Willis explained that these were almost certainly given to Sam when the two of them were travelling in Cambodia a few years earlier. During their trip they were taken to a rifle range where Sam fired some shots at a target. Afterwards, Mr Willis said, Sam was allowed to keep the target at which he had fired. 84Mr Rosser suggested that I could infer from the position of the carton, and from other objects in the vicinity, that before the Willis brothers left to confront the accused about the broken window, they had taken the revolver from this carton. 85There was considerable other evidence addressed to this issue, but none of it was sufficiently cogent, in my view, to support an affirmative finding that the gun emanated from a particular household. In the end, I must therefore determine this matter in accordance with the onus of proof. My own view, after considering all the evidence, is that it was probably the accused who brought the revolver into the confrontation. I accept that Mr Willis knew nothing about the revolver, and it is most unlikely that either of his sons would have been harbouring it. If this matter were to be determined according to the civil standard of proof, I would almost certainly have made a finding to that effect. However there is insufficient evidence to satisfy me of that matter beyond reasonable doubt. Or, to put it another way: although I consider it unlikely that one of the Willis brothers brought the gun with him, I cannot conclude that it is not reasonably possible that he did so. 86This is a significant finding in the circumstances of this case, for the brandishing of the revolver by one of the deceased was a major part of the provocative conduct which was relied upon by the defence as causing the accused to lose his self-control, together with the fact that the two men were calling out, or "loudmouthing" outside the accused's home. However the "loudmouthing" alone would almost certainly not have constituted adequate provocation under s 23: R v R (1981) 28 SASR 321; Moffa v The Queen (1977) 138 CLR 601 at 616. It follows that an adverse finding on this issue would have meant that the defence of provocation had failed to reach first base. 87On the other hand, the provocative conduct of the deceased is but one of the matters to be considered under s 23(1). The principal requirement of this provision is that the conduct of the deceased must have induced the accused to so far lose his self-control as to cause him to inflict the fatal injuries. It is therefore necessary to consider whether the accused had lost his self-control when he fired the fatal shots, (remembering of course that it is for the Crown to prove beyond reasonable doubt that he had not done so). I turn now to discuss that question. Did the accused lose his self-control? 88A loss of self-control involves a temporary suspension of the capacity to reason, or to think rationally and sensibly. Whether an accused person has lost his or her self-control is a question of fact to be determined according to the evidence in the particular case. 89In some cases where provocation has been raised, the sheer ferocity of the killing has been indicative of a loss of self-control. Mr Rosser submitted that this might be the situation in the present case. He relied on the fact that the first two shots were fired in rapid succession, followed by a gap of some seconds before the firing of the third shot. He submitted that it was possible that during the period between the second and third shots the accused might have been pulling the trigger on more than one occasion, but given that there were empty chambers in the cylinder, no shots were in fact being fired. However in my opinion this is a matter of sheer speculation. A perfectly good explanation for the gap between the second and third shots is provided by the known sequence of events, as supported by the observations of Mr Allen. For, as already mentioned, the first and second shots were fired at the two brothers when they were still upright and close to the accused. The third shot was fired from a completely different angle. The accused had to re-position himself in order to fire this shot, as confirmed by Mr Allen, who observed the accused bending slightly over, with his arm outstretched and pointing towards the silhouette on the ground, before he saw the third shot being fired. 90Accordingly, in my view, the accused's acts were not of themselves such as to indicate a loss of self-control on his part. If anything, his conduct both during the shooting and immediately after it, pointed in the opposite direction. 91A significant factual question arises here, as to how Mr Allen's observations of these crucial events can be reconciled with the account Mrs Filippou gave to the police later that night. Mr Allen said that after all three shots had been fired, the accused went back into the front of No. 7, and was away for about a minute. When he returned, he crouched down over the silhouette on the ground, moving his arms in a pulling motion. There is no doubt, on the evidence, that this was the occasion when the accused put the revolver into the hand of the deceased Sam Willis. 92Mrs Filippou said that after the accused went out into the street the first time, he briefly came back into the house and asked her to ring their son. This much was consistent with Mr Allen's observations. But she also said that after the accused went out again, she could hear the altercation continuing. If she was correct in this, then the shooting must have occurred on the second occasion that the accused went out into the street. 93I must assume that the sequence of events as described by Mr Allen is the correct one. He was very precise in his observations, and had no personal interest in this matter. Mrs Filippou said that it all happened very quickly, and at one point she expressed uncertainty as to whether the verbal confrontation she heard might have taken place before her husband returned and asked her to ring Chris. Moreover the accused, in his ERISP, described only one confrontation between himself and the two brothers, which immediately preceded his taking of the revolver and firing the fatal shots. 94The most likely picture which emerges is this: When the accused first went out to the street, a verbal confrontation took place between himself and the Willis brothers which culminated in the shooting. The accused then went back inside and asked his wife to ring their son, before returning to the scene of the shooting and placing the revolver into Sam Willis's hand. After doing that he went straight back inside, took his car keys and immediately drove off. 95Mr Allen described the accused as walking "quite calmly" when he went back towards the house. Mrs Filippou said that he was running, or was walking quickly, and was angry. Certainly he had the presence of mind immediately afterwards to return outside and place the revolver into Sam Willis's hand, an action which is at least suggestive of rational thinking. 96I have already recounted what is known of the accused's movements after he left the Z Street address. As the Crown Prosecutor submitted, they appear to be the actions of a man in command of his reason. On the other hand, much of this was well after the event; and it is inherent in the nature of a loss of control under s 23 that it be a temporary condition, and sometimes only a fleeting one. 97The remaining evidence on this issue consists of what the accused said later about these events. I have already referred to some of this material, but the relevant portions bear repetition here. 98The first relevant comment was made shortly after the accused handed himself into police on the morning of 28 June 2010. He said: ".. .they pulled a gun on me and I took it off 'em and shot 'em. They're shit. If you're going to pull a gun on me, be prepared to use it." Later, during the course of his ERISP, the accused said (in answer to question 43): "..one of them, the right handed one pulled a gun and he goes, I've got this. I said, you've got that, have you? And then I ripped it off him and shot them. That's it. No more and no less. You know, they want to be heroes, that's what happens." Three answers later, he volunteered the following comment: "But I've always said, you know, come fight, you know, by fist. Pull a gun on some cunt, sorry sweetness, pull a gun on someone, it's a different story altogether, right." The accused went on to describe the shooting, during the course of which he made the comment (described more fully in paragraph [54] above): "I should have shoved the gun up his arse." Finally, towards the end of the ERISP, the following exchange occurred: "Q166 Why would you have shot him when he was on the ground? A It was, just, it was just happening, right. He, that's what happened, I shot them, you've got your thing, you know, lock me up so to speak ... Q167 All right A ... but you know, don't come around to my place and be heroes, you know, like I've always been taught if you pull a gun use it on someone. You know, don't be a hero and ... Q168 How were you feeling at the time, Chris? A Well I was feeling nothing to tell you the truth when they, I mean I just wanted to know what they were going on about when I went out the front, sort of thing. Do you get me? But after I shot them like to tell you the truth, you know, they probably deserved what they got. Right. Either get shot or, or shoot them, so to speak. So that's it, I'm not going to go into any more, I shot 'em, you got your thing, you know, your charges whatever you got, you know." 99The last relevant comment made by the accused that day was when he said to Senior Constable King later that afternoon: "I was always taught never to bring a gun unless you are prepared to use it", followed by a change of demeanour, and his saying: "I'm fucking proud of what I done. Fucking proud of it". (See paragraph [71] above.) 100The accused has been in custody since his arrest on 28 June 2010. On 18 August 2010, when he was in Parklea Correctional Centre, he made a telephone call to his wife, which was recorded and tendered into evidence. During the course of the conversation the following exchange took place: "FILIPPOU: They come around with a fucken gun we didn't Glenda: No I know that' see that's our good point too FILIPPOU: No there'll be no good points to this Glenda: No but I mean you didn't it wasn't planned FILIPPOU: No no no Glenda: You know what I mean it wasn't a planned thing FILIPPOU: It should have fucken been you know what I mean fucken garbage like that what the fuck was their fucken problem Glenda: Who the hell do they think they are FILIPPOU: Yeah who the hell do they think they are that's what the Glenda: That's what I get angry at FILIPPOU: Who the fuck do they think they are coming around like fucken would be gangsters Glenda: Who the hell do they think they are somebody special who can do as they please with everything FILIPPOU: that's what I mean you know like I said to ya if they had of fucken brought a knife I would have cut their fucken heads off Glenda: Yeah FILIPPOU: You know that's that's what amazes with these those sort of people Glenda: gives ya the shits they're just garbage people" 101It is well established that it is not necessary for an accused person to say, after the event, that he or she had lost their self-control, in order for a finding to be made to that effect under s 23. If the evidence otherwise points in that direction, then it is well open to the tribunal of fact to make that finding. Indeed, before a negative finding can be made, the tribunal must be satisfied that there is no reasonable possibility that the accused lost his self control as a result of the conduct of the deceased. 102It is abundantly clear from the totality of the evidence that the accused was, at the relevant time, an inherently angry man. Mr Rosser did not seek to argue otherwise. Indeed in one sense he relied upon this fact when he submitted that the accused, with his low threshold of tolerance, was particularly susceptible to losing his self-control when confronted with the two brothers calling abuse outside his home and wielding a gun. 103I regard the statements made by the accused after the event as ultimately determinative of this issue, for the following reason. A loss of self-control under s 23 necessarily involves the accused committing the act causing death whilst his capacity to think rationally has been temporarily suspended by reason of the provocative conduct of the deceased. By definition it is an act which the person would not have done if he was in his normal state of mind. It follows that if the person continues, well after the effect of the provocative conduct has ceased, to justify his conduct and indicate that he would do the same thing again in the same situation, then this is inconsistent with the proposition that it was a temporary loss of self-control which caused him to act as he did. And this is precisely what the accused has continued to do. He did it several times the following day, when he was being interviewed by the Police. Amongst other things, he said that the deceased brothers "probably deserved what they got", and that he was "fucking proud" of what he had done. This is not the attitude of a man who has come back to rationality after a temporary loss of control. Even in his telephone conversation with his wife some six weeks later he was placing the blame on the deceased brothers, saying that they were "just garbage people". 104I am firmly of the view that it was the accused's inherently angry nature which led to his behaving as he did when he fired the fatal shots. I am abundantly satisfied that there is no reasonable possibility that it was a loss of self-control which caused him to fire those shots. 105It follows that the defence of manslaughter cannot succeed and the accused is to be convicted of murder in relation to both charges. But for the sake of completeness I should say that I would, in any event, have found that the requirements of s 23(2)(b) have not been satisfied in this case. I think it is appropriate to briefly give my reasons for this. Given that the defence would in any event have failed by reason of my finding that there was no loss of self-control, I shall be much briefer than I would otherwise have been if this had been a pivotal issue. The ordinary person test 106In the normal course of events, this issue only falls for determination if a finding has already been made that the act causing death was done as a result of the accused's loss of self-control, induced by the provocative conduct of the deceased. For the purposes of this exercise, I shall assume, contrary to my actual finding, that this was the case. 107It is now well established that, in applying the "ordinary person" test, the particular attributes, characteristics and background of the accused are to be taken into account in assessing the gravity of the effect of the provocative conduct on the person in question, but not in what I shall describe as the second stage of this test. As Brennan CJ, Deane, Dawson and Gaudron JJ said in Masciantonio v The Queen [1995] 183 CLR 58 at 67; 129 ALR 575 at 581: "However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person's age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused's actions." 108The accused, as already mentioned, was an inherently angry man, who clearly had a susceptibility to lose his temper quickly. Otherwise he had no particular characteristics which would have made him more vulnerable to the provocation offered by the Willis brothers. However, there was certainly a history of neighbourhood conflict between the two households. Indeed, the night before, the accused's car had been the subject of some minor vandalism. On the other hand, this conflict between the households had never previously involved any physical clashes between the people involved. Indeed the accused had never seen Luke Willis in his life. He did not know who he was. 109Nevertheless, the history of conflict might well have made the accused more wary when he went outside and confronted the two brothers, and I take this into account on this issue. 110The second stage of the test is whether, given this background, an ordinary person in the position of the accused could have so far lost self-control as to have formed the intent to kill or inflict grievous bodily harm on the deceased. And it is here that the defence case must fail. 111When the accused went out of his home that evening he was confronted by two young men who were calling out and shouting. They may well have been using abusive language. But as we heard many times during the course of the trial, the accused himself was no stranger to strong language, and he regularly peppered his speech with swear words. The additional provocation in this case consisted of Luke Willis producing the revolver and saying "We've got this". It was at this point that the accused grabbed the gun from Luke and proceeded to shoot both brothers at point blank range, starting with Sam, who was the one who was "mouthing off". 112I am quite unable to accept that an ordinary person, confronted with this situation, could have lost self-control so as to form an intention to kill or inflict grievous bodily harm on the brothers. I am hesitant to use the word "disproportionate " , for there is no requirement of proportionality in relation to the defence of provocation as currently formulated. However, if the response is grossly disproportionate to the provocation, then it inevitably means that it will fail the "ordinary person" test. And that, in my view, is clearly the situation here. 113Had the accused, contrary to my earlier finding, in fact lost his self-control when he shot the two brothers, then this could only have been because of his own unusually low threshold of uncontrollable anger. This does not assist him in relation to the defence of provocation. As Brennan CJ said in Green v R [1997] 191 CLR 334 at 340; 149 ALR 659 at 660: "Paragraph (b) requires the jury to take full account of the sting of the provocation actually experienced by the accused, but eliminates from the Jury's consideration any extra-ordinary response by the accused to the provocation actually experienced. Thus extra-ordinary aggressiveness or extra-ordinary want of self-control on the part of an accused confer no protection against conviction for murder." 114It follows that the defence of provocation must fail, and I find the accused guilty of murder in relation to both charges. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2011