Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Filippou v R [2013] NSWCCA 92 Hearing dates: 9 November 2012 Decision date: 02 May 2013 Before: McClellan JA at [1] Fullerton J at [124] S Campbell J at [125] Decision: 22 December 2011 Catchwords: CRIMINAL LAW - appeal against conviction - murder - application of s 23 Crimes Act 1900 CRIMINAL LAW - appeal against sentence - application of standard non-parole period following Muldrock v The Queen [2001] HCA 39; 224 CLR 120 Legislation Cited: Crimes Act 1900 Cases Cited: Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58 Moffa v The Queen (1977) 138 CLR 601 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 R v R (1981) 28 SASR 321 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 R v XX [2009] NSWCCA 115 at [52]; (2009) 195 A Crim R 38 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Christopher Angelo Filippou (Appellant) Crown Representation: Counsel: P Rosser QC (Appellant) S Dowling (Crown) Solicitors: John Anthony Solicitors (Appellant) Solicitor for Public Prosecutions (Crown) File Number(s): 2010/208897 Decision under appeal Citation: [2011] NSWSC 1607 Date of Decision: 2011-12-22 00:00:00 Before: Mathews AJ File Number(s): 2010/208897 Judgment 1McCLELLAN JA: The appellant was charged with and convicted of the murder of Sam Willis and his brother Luke Willis on 27 June 2010. He admitted that he had shot them on the footpath outside his home in Mayfield but pleaded to each count that he was not guilty to murder but guilty to manslaughter. 2The issue at the trial was provocation. It was accepted by the appellant that his acts had occasioned death in each case in circumstances which, but for the assertion that he was provoked, would have amounted to murder. He was tried by a judge sitting without a jury. Accordingly, the reasons for judgment of the trial judge can be examined by this Court. 3The appellant was sentenced on each count to a non-parole period of 20 years imprisonment with an additional term of 6 years. The trial judge provided an accumulation of 5 years and accordingly the effective sentence is a minimum of 25 years with an additional term of 6 years. 4There are three grounds of appeal although, having regard to the submissions that are made, Ground 3 has no significance. The grounds are as follows: Ground 1: Her Honour's verdict is unreasonable and cannot be supported having regard to the evidence, in particular, but not exclusively, upon the following bases: (a) that, in finding that there was no reasonable possibility that the applicant had lost self control within the meaning of s 23 of the Crimes Act 1900 at the time that he fired the shots causing death, her Honour: (i) misdirected herself as to the inferences to be drawn from statements made by the applicant while in custody; (ii) drew erroneous inferences from those statements; and (iii) failed to consider alternative inferences fairly available on the evidence; and (b) that, in finding as to the circumstances of the shooting and the explanation for the gap in time between the second and third shots, her Honour: (i) failed to direct herself as to the need to consider other inferences; and (ii) failed to consider other [inferences] fairly available on the evidence. (c) that, in dealing with the 'ordinary person' test within the meaning of s 23 Crimes Act 1900 her Honour: (i) misdirected herself as to the question of proportionality; (ii) determined the reasonable person issue on the basis of that misdirection; and (iii) applied the wrong burden of proof Ground 2: Her Honour made the following errors of law: (a) misdirected herself as to the inferences available to be drawn from statements made by the applicant while in custody; (b) failed to direct herself with respect to such statements of the need to be satisfied that the inference proposed to be drawn is the only rational inference available; (c) failed, in that regard, to consider available alternative inferences; (d) with respect to the movements of the applicant at the time of the shooting and the sequence of shots failed to direct herself as to the need to be satisfied that the inference proposed to be drawn is the only rational available inference; (e) misdirected herself as to the role of 'proportionality' in the issue of provocation; (f) in considering the issue of the reasonable person within the meaning of s 23 Crimes Act 1900, her Honour applied the wrong onus of proof. Ground 3: In all the circumstances the conviction of the applicant for murder amounts to a miscarriage of justice. The judge's reasons 5The trial judge provided an account of the factual background followed by an account of the events of the day of the shooting. In order to enable an appropriate understanding of her Honour's reasons and the criticism made of them in the appellant's submissions it is necessary to set out her Honour's factual findings. Factual background 6The two victims, Luke and Samuel Willis, were brothers. They were aged respectively 28 years and 22 years 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 brothers lived there from time to time over the next ten years. In early 2009 the appellant purchased a house at 7 Z Street Mayfield. This property 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 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 appellant), 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 appellant came into his yard and joined in the heated exchange. All of them, including the appellant, were delivering insulting expletives. However, the trial judge concluded that the evidence indicates that it was the party-goers in the Willis home who probably used the most offensive language. 8This incident marked the beginning of the neighbourhood conflict between the Willis household and the appellant, 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". The trial judge concluded that Mr Best's description of the man who did this could only apply to the appellant. 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 appellant. The trial judge found 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 appellant). 11The trial judge concluded that Mr Best played a significant part in the events which ultimately escalated the neighbourhood conflict to its tragic climax. Her Honour concluded that it is not at all unlikely that he has unconsciously reconstructed events so as to minimise his own role. In any event, her Honour did not accept Mr Best's evidence that the appellant 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 appellant as saying, "turn the music down or I'll come over there and knock your fucking head off", and the other who described the appellant 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 appellant. Mr Zierholz was extensively cross-examined by Mr Moir on behalf of the appellant. However, the probity of his opinion remained, in her Honour's view, essentially undiminished. Her Honour accepted that the letter was in fact written by the appellant. 14Sam 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. Her Honour concluded from their evidence 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 appellant. Sam told his father that, when he went to the appellant's home and asked him if he had written the note, the appellant denied writing the note and said, "if you come around and threaten me again I'll shoot you". Sam told his mother that the appellant had threatened to kill him. 15The appellant himself referred to this incident in his ERISP the day after the killing. He was asked if he knew the name of one of the boys. He said: "...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." 16A few days after the conversation between Sam Willis and the appellant, Sam's father, William Willis, spoke to the appellant 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." 17During Mr Willis' evidence before her Honour 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." 18Mr Willis was cross-examined about this conversation by counsel for the appellant. He described the tone of the appellant during this conversation as "unemotional". He was asked why he had omitted from his statement the important fact that the appellant 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. 19Her Honour found that Mr Willis has every reason to dislike the appellant, to put it mildly. After all, on any way of looking at it, it was the appellant who shot and killed his two sons. Nevertheless, the trial judge said that she 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. Her Honour found that it was clear from the appellant's answers that he resented Sam Willis approaching him and asking about the letter. Her Honour said that 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." 20There 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 appellant 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. 21It would appear that Sam heeded his father's advice. After Mr Willis returned the new fence was erected between the Willis and Filippou back yards, with the complete co-operation of both the appellant and Mr Willis. 22During 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. 23Early 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." 24He was asked about this by defence counsel. 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 halfway 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 appellant, evidence which her Honour accepted. The trial judge remarked that both letters contained false information as to the purported author of the letter, which her Honour believed to be an attempt to deflect attention away from the appellant. The first letter referred to the author's "elderly mother". As already mentioned, the appellant'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 appellant 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. 29The second letter 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 was confirmed by the statements of several of the neighbours who were approached. When the Willises went to the appellant'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 appellant'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. 32Mrs Filippou said: "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." 33On 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". 34At 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. 1The 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 appellant'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 appellant's house. Mr Best also used a cigarette lighter to scratch the words "Suck me" onto the back of the utility. 36The scratch marks on the car were very superficial. The appellant'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 appellant, and according to what she later told the police, when the appellant 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 appellant 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". Accordingly, her Honour identified that a factual issue arose as to whether it was written by the appellant, 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 appellant's car. Her Honour said that she initially thought that it was likely to be the latter. The appellant 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". Her Honour believed that this was powerful evidence in support of the proposition that the appellant did indeed write the note because Mr Appleyard almost certainly had no other source of information about this matter when he made his statement to the police two days later. 40However, her Honour did not 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 41Sam 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. 44It was generally assumed that it was the appellant who threw the telephone books through the window. However when the appellant 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 appellant'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 pm 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 appellant'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 defence counsel. His evidence as to the breaking of the window at Y Street was favourable to the defence, and defence counsel did not query it in any way. However the trial judge said that she had considerable difficulty with it and strongly suspected 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 did 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, her Honour said that she must accept that it was the appellant's son, not the appellant himself, who broke the window at 12 Y Street. Her Honour said that "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." 47Her Honour concluded that it was apparent that the when Luke and Sam Willis left the Y Street house they walked immediately around the block to the appellant's home. The appellant and his wife were there alone. Their son Christopher, who also lived there, had left earlier to go to his girlfriend's house. 48Mrs Filippou was interviewed by the police later that night. 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 appellant 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 appellant open the gate when he went out to them. Shortly afterwards the appellant 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 appellant's home to Christopher Filippou took place at 6.07 pm. After telling her to ring their son, the appellant 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 appellant was angry, she said. Then, shortly afterwards, the appellant 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. The appellant's wife 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. 49Her Honour was in no doubt that the shooting of the Willis brothers took place when the appellant was outside with them. 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. Her Honour believed that this was one of the inconsistencies in the case. She also said that she could hear shouting. Her Honour said it could be expected that the sound of gunshots would be significantly more penetrating than voices, even loud voices. Many of the neighbours heard the shots, without apparently having heard the shouting that Mrs Filippou said preceded them, and all of these lived further away from the source of the sound than she was. 50The trial judge discussed 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 appellant's home at No. 7. Mr Allen made a statement to the 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 appellant's home. The area was generally 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, Her Honour concluded that this witness was mistaken in his timing. 53The trial judge discussed the account of the events which the appellant gave to the police. He did not give evidence at his trial. His account is almost entirely contained within an ERISP which he entered into on the afternoon of Monday 28 June at Belmont Police Station. The appellant had earlier that day handed himself into the police at Belmont. 54Between handing himself into the police and the commencement of the ERISP, there was a brief conversation between the appellant and two police officers in which the appellant 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." 55His ERISP lasted for nearly an hour, the transcript running to 31 pages. In it the appellant 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 appellant said that he went out the front door, where he could hear the men "loud mouthing" just outside the street. There were two of them: one, whom the appellant knew as Sam, and another whom he had never seen before. The lighting was good, the appellant 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 appellant 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 (sic) 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 appellant 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. 57The 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 pm 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. 58It is clear that the man lying face upwards, with the gun in his hand, was Sam Willis. The other man was Luke Willis. 59Shortly 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. 60On 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. Her Honour found that 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. Her Honour concluded that 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. 61Luke 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. 62No alcohol or drugs were located in the blood of either of the victims. 63A 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. 64The trial judge concluded that no significance could 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. 65In June 2010 the appellant was employed as a cleaner at the Belair Public School at Adamstown, which is 7.6 kilometres from the appellant's home in Z Street. At 7.03 pm on the evening of 27 June the alarm system at the school was disarmed by a person using the appellant's pin code. At 7.15 pm a phone call was made from the Belair School to the home of a person to whom the trial judge gave the 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. 66Margaret 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 appellant'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. 67About 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. There is no doubt at all that her companion was the appellant. 68It was not until 10.35 am on the Monday morning that the appellant handed himself into the Belmont Police Station. There is no evidence as to his movements in the meantime. 69There is one final conversation between the police and the appellant of relevance. This comes from the statement of Senior Constable Benjamin King, who was in charge of forensic procedures involving the appellant. At about 6.00 pm on 28 June he said to the appellant: "Why did you come to Belmont, Chris?" The appellant 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." 70Up to this point Constable King said that the appellant 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 71The only issue in the trial was whether the Crown had proved that the appellant had not acted under provocation. There was no suggestion that the appellant acted in self defence. Section 23 of the Crimes Act 1900 presently provides the legal structure within which the "defence" of provocation may be established. Section 23 provides: "(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." 72Her Honour concluded that but for the question of provocation the appellant would be guilty of murder. Her Honour's judgment includes a discussion of s 23(2) and s 23(3) and correctly identifies the elements of each section and the fact that the onus rests upon the Crown, if provocation has been raised, to disprove it beyond reasonable doubt. As her Honour indicated this can be done by the Crown disproving either of the elements in s 23(2) to the requisite standard. 73Her Honour indicated that counsel were in agreement that identical issues were raised in relation to each of the counts with which the appellant had been charged. The two deceased were clearly acting in concert when they went to the appellant's home and accordingly provocative conduct by either of them was relevant in relation to both counts. 74Her Honour first considered whether the appellant had lost his self control. In the course of considering this question her Honour examined the evidence in relation to whether or not the appellant had the gun or whether it was brought to the scene by one of the victims. Her Honour concluded that although it was probable that the appellant brought the revolver into the confrontation there was "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." Her Honour then indicated that this finding was significant because the appellant relied upon the brandishing of the revolver as a major part of the provocative conduct causing him to lose his self control together with the fact that the two men were calling out or "loud mouthing" outside the appellant's home. Her Honour indicated that the "loud mouthing" would almost certainly not have constituted adequate provocation: R v R (1981) 28 SASR 321; Moffa v The Queen (1977) 138 CLR 601 at 616. 75When considering the issue of the loss of self control by the appellant her Honour instructed herself that "a loss of self control involves a temporary suspension of the capacity to reason, or to think rationally and sensibly." It is a question of fact. 76Much was made at the trial of 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. That issue was again ventilated before this Court. Counsel for the appellant submitted that the gap may have been explained by the fact that the appellant was pulling the trigger of the gun but the chambers were empty and accordingly no shots were fired. The trial judge believed this to be a matter of mere speculation observing that a good explanation for the gap between the second and third shots is provided by the known sequence of events supported by the evidence of Mr Allan. The first and second shots were fired at the two brothers when they were still standing and close to the appellant. The third shot was fired from a completely different angle. The appellant was observed by Mr Allan to be bending over slightly with his arm outstretched and pointing towards the silhouette on the ground before the third shot was fired. 77For these reasons the trial judge concluded that the appellant's acts were not of themselves such as to indicate a loss of self control on his part. Her Honour said that "if anything, his conduct both during the shooting and immediately after it, point in the opposite direction." 78The trial judge observed that there was a significant factual question arising because of what her Honour believed to be the different observations of Mr Allan and the evidence of the appellant's wife, Mrs Filippou. Mrs Filippou said that after the appellant went out into the street the first time he briefly came back into the house and ask her to ring their son. Her Honour believed that this was consistent with Mr Allan's observations. But she also said that after the appellant went out again she could hear the altercation continuing. Her Honour concluded that if this evidence was correct the shooting must have occurred on the second occasion that the appellant went out onto the street. However, her Honour thought that Mr Allan's evidence would suggest that the shooting occurred on the first occasion and on the later occasion the appellant returned to place the gun in the hand of the deceased, Sam Willis. 79This of course overlooks the fact that Mr Allan was not alerted to look in the direction of the incident until he heard the sound of the gun being fired. This could only have been after, on Mrs Filipou's account, the appellant had briefly returned inside, an event which would have occurred before Mr Allan made his observations. 80Her Honour compared the two accounts and concluded that the evidence of Mr Allan should be accepted. For my part having read the evidence I do not discern any necessary inconsistency. 81Her Honour concluded that the most likely picture of the relevant events was as follows: "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." 82However, for my part I am satisfied that this account is not correct. I am satisfied that the appellant went out to the street and then returned inside. He then went out again, the brothers were shot and the appellant then went inside or moved in that direction before returning to place the gun and then again leave the scene by returning to the house. Although after the shooting Mr Allan observed the appellant to walk back into the front yard of the house he did not see him go inside. Mrs Filipou said that the appellant came back inside on two occasions but on the second occasion rather than return to the scene of the shooting he took a motor vehicle and left altogether. 83Her Honour observed that Mr Allan described the appellant 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. Her Honour concluded that the appellant's actions in returning outside and placing the revolver into Sam Willis's hand is an action "at least suggestive of rational thinking." 84Again, I believe her Honour has not identified the correct sequence. On the first occasion the appellant went back inside, which was before the shooting he was agitated. However, after the brothers had been shot his demeanour changed and he in relative calm returned to place the gun. 85Her Honour then turned to consider the statements which the appellant had made when he was interviewed by the police. Her Honour said: "The 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 ... Q:167: 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.' The 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.) The 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.' 86The trial judge correctly observed that it was not necessary for an accused person to say after the event that he or she had lost self-control in order for the "defence" of provocation to succeed. It depends upon the evidence. Her Honour concluded that it was "abundantly clear" from the totality of the evidence that the appellant was at the relevant time an inherently angry man. This was sought to be used to his advantage by his counsel who submitted that he had a low threshold of tolerance and was particularly susceptible to losing his self-control when confronted by the two brothers calling abuse outside his home and wielding a gun. 87With respect to the issue of the appellant losing his self-control her Honour said that she regarded the statements made by the appellant after the event as ultimately determinative of this issue, for the following reasons: "... 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". 88Her Honour then expressed her conclusion in the following terms: "I 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." 89For this reason her Honour concluded that the "defence" of provocation "could not succeed." However, her Honour proceeded to consider the issues raised by s 23(2)(b), which she shortly described as the "ordinary person test." 90Her Honour instructed herself as to the elements of the test and in particular that it is established that the particular attributes, characteristics and background of an accused are relevant in assessing the gravity of the effect of the provocative conduct of the person in question. Her Honour referred to the decision of the High Court in Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58 at 67 where Brennan CJ, Deane, Dawson and Gaudron JJ said: "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 persons' 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." 91Apart from her finding that the appellant was an inherently angry man with a susceptibility to lose his temper quickly her Honour otherwise determined that he had no particular characteristics that would have made him more vulnerable. Her Honour identified the history of neighbourhood conflict between the households and the fact that on the previous evening the appellant's car had been the subject of minor vandalism. However, the conflict between the households had never previously involved physical clashes. Her Honour believed that the history of conflict "might well" have made the appellant more wary when he went outside and confronted the two brothers. 92Her Honour then expressed the following conclusions in relation to the "ordinary person test": "The 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. When 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 a 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'. I 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. Had 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 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.' It follows that the defence of provocation must fail, and I find the accused guilty of murder in relation to both charges." 93Before turning to consider the specific grounds of appeal I should refer to the submissions made on behalf of the appellant in relation to the firing of the gun. The weapon was a 5-shot Smith & Wesson pistol. When it was examined by a scientific officer from the Forensic Ballistics Investigation Section of the police he found that chambers 3, 4 and 5 contained spent cartridges. The chamber under the hammer was empty indicating that there had been an attempt to discharge the firearm after the last shot had been fired. However, it was not possible to determine the position in which the chamber may have been when the trigger was first pulled. 94The appellant offered a variety of alternatives as to the number of times the trigger had been pulled and the sequence in which the trigger was pulled and cartridges fired. From this analysis the appellant argued that the trigger must have been pulled more than 3 times making it less likely that the appellant had produced the gun having previously loaded it himself. It was also submitted to be relevant to the appellant's asserted lack of self-control that he may have pulled the trigger on more occasions than there were bullets in the chamber. 95In SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 at [11] - [14] (French CJ, Gummow and Kiefel JJ), the High Court set out the test to be applied when considering an appeal on the basis that a verdict was unreasonable or unsupported by the evidence: "The task of the Court of Criminal Appeal It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to "unsafe or unsatisfactory" in M is to be taken as "equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'." The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." (footnotes omitted) 96In relation to grounds of appeal 1(a), 2(a), 2(b) and 2(c) the appellant submitted that it was accepted that the appellant at no stage expressed any regret or remorse for his actions. It was submitted that her Honour appears to have regarded this evidence of the appellant's apparent lack of remorse as fatal to his case on the issue of loss of self-control. It was submitted that the portion of her Honour's reasons which I have extracted at [88] contains significant errors of law and misdirections. In particular it was submitted that the actions of a person well after the event and statements that he or she would do the same thing again were not relevant to the issue of whether at the time of the shooting the appellant had lost his self control. 97It was submitted that her Honour's use of the word "continues" strongly suggests an assumption on Her Honour's part, that the state of mind that the appellant evidenced in his statements to the police was but a continuation of the state of mind that had existed at the time of the shooting. It was asserted that this was an assumption that her Honour was not entitled to make. 98It may be accepted that a tribunal of fact may in various circumstances have regard to the subsequent statements of an accused person to assist in understanding the state of mind of a person at a relevant time. Sometimes there is no difficulty in doing so, the most obvious occasion being where an accused person unequivocally asserts that he had a particular state of mind at the relevant time. 99Where, however, an accused person's statements do not unequivocally assert a particular state of mind the question is whether any inference can be drawn from those statements as going to establish the state of mind at the relevant time. An obvious example is where the prosecution submits that lies were told by an accused person out of a consciousness of guilt and may be relevant to establish the state of mind of an accused person at the time of the relevant offence. Part of the direction given to a jury in those circumstances would be a caution about too readily drawing the asserted inference and the need to be satisfied that the inference as to the state of mind sought to be established by the Crown is the only rational available inference. 100In the present case none of the statements of the appellant spoke unequivocally as to his state of mind at the time of the shootings. He did not assert that he lost his self control and nor was he required to do so in order to raise the issue of provocation. In the case of each statement relied upon by her Honour the appellant expressed a state of mind at that time, that is his state of mind at the point in time at which he was speaking. The possible exception is in the ERISP. "Q168 How were you feeling at the time Chris? A Well I was feeling nothing to tell you the truth, 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 [emphasis added] 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. 101The question did not with any particularity direct the appellant to respond with respect to his capacity or actions at the time of the shooting. The first part of the answer deals with the appellant's state of mind at the time that the two deceased went to the front of his home. The balance deals with his state of mind after the shooting. 102It was open to her Honour to have regard to the appellant's subsequent statements to the extent they were capable of shedding light on his state of mind at the time of the shootings. However, her Honour could not reason that because those statements made at a time when the appellant was apparently calm and rational, sought to justify the killing without a suggestion that he lost control were determinative of his state of mind at the time of the shootings. Nor could the statements of themselves negative loss of self-control. 103There is an ambiguity in her Honour's reasons. Her Honour said that the appellant's later statements were "ultimately determinative" of the issue. If her Honour meant that they alone determined the issue I could not agree. If she meant that they provided determinative weight I, with respect, could also not agree. To my mind the statement justifying his conduct together with the indication that he would do the same thing again (although no doubt engendering a sense of revulsion in ordinary people), does not provide any significant assistance in determining the state of mind under which the appellant did the relevant acts and whether he lost his self control. It is conceivable that a person who temporarily loses their self-control may later not regret their actions. Although they may have acted in a complete absence of control, later justification of their actions may not prove to be of any assistance to the prosecution case. 104There are many ways in which the point can be illustrated. A man may kill the person who has killed his wife or child. The fact that that person may be proud that they had done so or assert that they would do it again or assert that their victims deserved their fates, would not inevitably, on account of those feelings or assertions lead to the conclusion that they had not acted while under a loss of self-control. Indeed they could indicate the opposite. 105Notwithstanding my reservations about her Honour's approach to the issue I am not persuaded that her Honour's conclusion was erroneous. Indeed, having considered the evidence I am satisfied that the Crown discharged the onus that it carried to the criminal standard. I have previously related the findings that her Honour made in relation to the actions of the appellant and the observations of his movements made by the witnesses. The appellant said in his ERISP that he removed the gun from one of the deceased and then fired it to kill both brothers. There was nothing to suggest that he acted as a result of losing his self-control. Indeed the only available conclusion was that in taking the gun and shooting the brothers he acted in a deliberate and calculated way not only in firing the first two shots but in firing the third shot, which the evidence established was responsible for the death of Sam Willis. 106There was nothing to suggest that having approached the brothers as he said in his ERISP "feeling nothing" he thereafter almost instantly changed his response and lost control. It must be remembered that the appellant had previously threatened to shoot Sam Wilis, a threat that the circumstances enabled him to carry out. Having killed the brothers the appellant was observed to walk "fairly casually" away. 107In reaching this conclusion I have not overlooked the argument that the appellant may have pulled the trigger on the gun on more than three occasions. This may have happened. However, to my mind it does not either by itself or with any other evidence suggest that the appellant may have lost his self-control. I am also satisfied that the delay between the second and third shots, identified by Mr Allan as a matter of seconds, was almost certainly due to the appellant changing position and firing at Sam Willis who by this stage had collapsed onto the ground. 108Complaint was made that her Honour failed to warn herself about the caution necessary in drawing inferences. There is no reason to doubt that her Honour, a very experienced trial judge, was mindful of the need to be careful in this respect and there is nothing in her Honour's judgment which would suggest that the proffered criticism could be sustained. 109With respect to the issue concerning the "ordinary person" the appellant criticised her Honour's conclusion, which I have incorporated at [93] above. 110It was submitted that by expressing herself as she did her Honour has reversed the onus of proof. I am not persuaded that the submission should be accepted. The criticism is focused on the paragraph which commences with the words "I am quite unable to accept ..." A reading of the entire paragraph suggests that her Honour may have merely been intending to convey that in the circumstances she was satisfied beyond any doubt that an ordinary person could not have been induced to lose their self-control and kill the brothers. Her Honour's finding is reflected in the last sentences of the paragraph where she identifies the response as being grossly disproportionate to the provocation with the consequence that the Crown has proved its case to the criminal standard. 111Irrespective of whether her Honour should be understood as framing her conclusion in an inappropriate manner I am nevertheless completely satisfied that there has been no miscarriage of justice. Even accepting the appellant's submission that he did not bring the gun to the scene and that he responded to the fact that the brothers brought it, he must have taken it from the brother carrying it and then without any apparent hesitation used it to kill both of them. There was no suggestion of a struggle or any attempt by the appellant to remove himself from the scene or deal with the situation without using the gun. I have no doubt that an ordinary person with the characteristics of the appellant, including his tendency to anger, would not have acted as the appellant did in the circumstances by taking the gun and forming the intention to kill. The sentence appeal 112The appellant raises one ground of appeal against sentence: A sentence less severe is warranted at law and ought to have been imposed upon the basis that: (a) Her Honour erred in assessing the offences as of a mid range objective seriousness; and (b) Her Honour erred in treating the standard non-parole [period] as a starting point for determination of [the] sentence. 113Her Honour sentenced the appellant at a time when the decision of the High Court in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 had been handed down. Unfortunately, the decision was not brought to her attention. Accordingly, her Honour has sentenced in accordance with the principles provided by this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, which the High Court have since rejected. 114Her Honour found the offences to fall within the mid range of seriousness. It was submitted that this exaggerated the criminality involved. It was submitted that the appellant being confronted outside his home by two aggressive young men committed the offence on the spur of the moment without the slightest premeditation. Accordingly, it was submitted the offences should have been found to fall below the mid range of seriousness. 115It was further submitted that, there being two persons who were killed, it was appropriate for her Honour to provide for some accumulation but that the accumulation of six years was excessive. 116Notwithstanding that her Honour has sentenced in accordance with the principles in Way I am not persuaded that any other sentence was required in law. As the High Court indicated in Muldrock, both the maximum penalty and the standard non-parole period are relevant as guide posts when sentencing an offender. The maximum penalty will have greater relevance when an offender is being sentenced for an offence found to be in the worst category. The standard non-parole period may have greater relevance for an offence which the sentencing judge finds to be within the mid range of objective seriousness. Provided the standard non-parole period does not exert excessive influence or determinative significance, the sentencing discretion will not miscarry. 117It is apparent that her Honour found that both of the killings were serious examples of murder. At the time when they were shot and killed the two brothers were unarmed. They were not provided with any opportunity to escape and were shot at point blank range. Her Honour found, in my view correctly, that the appellant must have realised that despite the seriousness of the wound he inflicted on Sam Willis's neck that wound was not fatal so he fired a further shot into his chest with the intention of killing him. Luke Willis was a stranger to the appellant. Her Honour described the murders as "so senseless and so unnecessary." To my mind this was an appropriate description. 118The murder of the two brothers came at the end of a period of 18 months of apparent conflict between the parties. However, there was nothing to suggest that that conflict might end with the brothers being shot. The appellant formed an intention to kill and did so in a public street firing a second shot into Sam Willis when he was lying incapacitated by the wound to his neck. 119There is nothing in the appellant's subjective circumstances to adequately explain or ameliorate the seriousness of his offending. He is a mature man who was in fulltime employment. There was no evidence of mental illness. There was no suggestion that alcohol or drugs were causally connected to his offending. The only mitigating factor was that the offences appear to have been unplanned. 120In these circumstances I am satisfied that the standard non-parole period was an important guidepost when sentencing. I am not persuaded that by imposing a non-parole period of 20 years for each offence her Honour has erred. 121With respect to the issue of accumulation it is necessary to consider the principle discussed by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The overall sentence must be proportionate to the gravity of the offences having regard to all of the circumstances. It is important to remember that although multiple offences may form part of one criminal enterprise, where there is separate and serious criminality involved the sentences will usually be partially accumulated: R v XX [2009] NSWCCA 115 at [52]; (2009) 195 A Crim R 38. 122It will be a rare case where multiple persons are murdered where a degree of accumulation is not appropriate. In the present case it was necessary for her Honour to mark out the fact that two persons' lives were taken. Accumulation of at last 5 years was, in all the circumstances, entirely justified. 123For these reasons I am satisfied that, notwithstanding her Honour's formulation of her remarks without reference to the decision of the High Court in Muldrock, the sentences were entirely appropriate and no lesser sentence was warranted in law. Orders 1. Leave to appeal against conviction in relation to Grounds 1 and 3 granted. 2. Appeal against conviction dismissed. 3. Leave to appeal against sentence granted but appeal dismissed. 124FULLERTON J: I agree with McClellan CJ at CL. 125S CAMPBELL J: I agree with McClellan CJ at CL. ********** 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: 02 May 2013