Joseph Bernard Vella v The State of Western Australia

JOSEPH BERNARD VELLA
v
THE STATE OF WESTERN AUSTRALIA
[2012] HCASL 81
P22/2006
P10/2007

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

CaseChat Overview and Summary

The applicant, Joseph Bernard Vella, appealed against his conviction for the wilful murder of his estranged wife and also sought to challenge his conviction for assault. The case was originally heard in the Supreme Court of Western Australia where the jury found Vella guilty of wilful murder and he pleaded guilty to assaulting his wife on a prior occasion. The Court of Appeal of the Supreme Court of Western Australia dismissed Vella's appeals against both convictions. Vella subsequently applied for special leave to appeal to the High Court of Australia against the decisions of the Court of Appeal, but these applications were also dismissed. Vella then filed a summons seeking to reopen these applications, alleging incompetence and impropriety on the part of his trial counsel, the trial prosecutor, and the police, as well as bias on the part of the judges who considered his appeal.

The primary legal issues before the court were whether the applicant had demonstrated an arguable case of a miscarriage of justice warranting a reopening of his earlier applications for special leave to appeal, and whether such a reopening would be in the interests of justice. The court considered the applicant's allegations of incompetence, impropriety, and bias and examined whether these grounds were sufficient to warrant a reopening of the earlier applications. The court also assessed whether there were any exceptional circumstances that would justify a departure from the usual rule that once an application for special leave to appeal has been dismissed, it cannot be reopened.

The court found that the applicant had not demonstrated that it was arguable that there had been a miscarriage of justice. The allegations of incompetence, impropriety, and bias were not sufficient to establish a miscarriage of justice or to warrant a reopening of the earlier applications for special leave to appeal. The court concluded that it was not in the interests of justice generally or in this particular case to grant special leave to appeal. The applications for leave to reopen the earlier applications for special leave should be treated as further applications for special leave to appeal and dismissed. The court directed the Registrar to draw up, sign, and seal orders dismissing each application in accordance with rule 41.10.5 of the High Court Rules 2004.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established