Joseph Bernard Vella v The State of Western Australia

[2012] HCASL 81

JOSEPH BERNARD VELLA

v

THE STATE OF WESTERN AUSTRALIA

[2012] HCASL 81
P22/2006
P10/2007

1. On 29 December 2003 the applicant killed his estranged wife.  He was charged in the Supreme Court of Western Australia with wilful murder.  At the commencement of his trial he pleaded guilty to manslaughter but the prosecution did not accept the plea in satisfaction of the indictment.  The jury returned a verdict of guilty of wilful murder.

2. At the sentencing hearing the applicant pleaded guilty to having assaulted his wife on 12 November 2003 thereby doing her bodily harm.  He had earlier pleaded guilty to that offence in the Court of Petty Sessions but that Court had not dealt with the matter.

3. The applicant appealed to the Court of Appeal of the Supreme Court of Western Australia against his conviction for wilful murder and subsequently, despite his plea of guilty, appealed against his conviction for assault.

4. In January 2006 Roberts‑Smith JA refused[1] the applicant leave to advance any of his proposed grounds of appeal against his conviction for assault.  The applicant sought review of that order by the Court of Appeal but on 28 June 2006 the Court of Appeal (Steytler P, Wheeler and Buss JJA) dismissed[2] the application for review.

   [1]Vella v The State of Western Australia [2006] WASCA 30.

   [2]     Vella v The State of Western Australia [2006] WASCA 129.

5. In September 2006 Roberts‑Smith JA refused[3] the applicant leave to advance any except one of his proposed grounds of appeal against his conviction for wilful murder.  The applicant sought review of that order.  The Court of Appeal (Wheeler, Pullin and Buss JJA) gave[4] the applicant leave to advance one of the grounds for which leave had been refused, but dismissed the applicant's appeal against conviction.

   [3]Vella v The State of Western Australia [2006] WASCA 177.

   [4]Vella v Western Australia (2007) 33 WAR 411.

6. The applicant applied for special leave to appeal to this Court against the orders of the Court of Appeal dismissing his application for review of the refusal to grant leave to advance any of his proposed grounds of appeal against his conviction for assault.  He later applied for special leave to appeal against the orders of the Court of Appeal in respect of his appeal against his conviction for wilful murder.

7. On 27 April 2007 Gummow and Heydon JJ directed[5] the Registrar to draw up, sign and seal an order dismissing the first application.  On 17 October 2008 Gummow and Kiefel JJ directed[6] the Registrar to draw up, sign and seal an order dismissing the second application.

   [5]Vella v The State of Western Australia [2007] HCATrans 167.

   [6]Vella v The State of Western Australia [2008] HCASL 552.

8. The applicant has filed a summons seeking to reopen the second application.  His written submissions, however, appeared to be directed to reopening both applications.  It is, therefore, convenient to proceed on the footing that, regardless of form, the applicant seeks leave to reopen both applications. 

9. He alleges that his trial counsel, the trial prosecutor, and the police were all incompetent and acted improperly at or in connection with his trial for wilful murder.  As a result, he says, relevant evidence was not put before the jury at his trial.  The applicant further alleges that some or all of the judges who considered his proceedings in the Court of Appeal of Western Australia were biased.

10. In an affidavit filed in support of his application, the applicant says that "the defence of self defence and a chance of acquittal was open" to him at trial and that "matters which were relevant to a defence of provocation" were not placed before the jury at his trial.

11. We are not persuaded that the applicant has demonstrated that it is arguable that there has been a miscarriage of justice.  It is not shown to be in the interests of justice generally or in this particular case that there be a grant of special leave to appeal to this Court.  His applications for leave to reopen his earlier applications for special leave should be treated as further applications for special leave to appeal but dismissed.

12. Pursuant to r 41.10.5 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal orders dismissing each application.

K.M. Hayne
31 May 2012 S.M. Crennan