R v Portelli - [2001] VSCA 183

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 231 of 2000

THE QUEEN
	v.
HENRY PORTELLI

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JUDGES:	PHILLIPS, CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2001
DATE OF JUDGMENT:	15 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 183

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Crime – Murder – Customer entering real estate agency with shotgun and killing staff – Whether miscarriage through default of defence counsel – Alleged failure to explore defence of accident and to call evidence from accused – Default not established by credible evidence – Lies going to credit only – No need for “Edwards” direction – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D.McArdle, Q.C. and Ms S.E. Pullen	K.Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr G.D. Wendler	Allan McMonnies & Co.

PHILLIPS, J.A.:

The applicant, who was born on 11 June 1934, is now 67 years old. On 10 March 1999, at the conclusion of a six-day trial, he was found guilty of murdering Traci Anne Beck on 2 April 1997, but not guilty of attempting to murder Salvatore Privitelli on the same day. After a plea in mitigation he was sentenced for the murder to 18 years' imprisonment and a non-parole period was fixed of 15 years. Initially the applicant filed notice of application for leave to appeal against sentence but later he abandoned that application and filed instead an application for an extension of time within which to seek leave to appeal against conviction. That extension of time was granted by Master Gaffney on 4 September 2000 and the application now before us was duly filed. On 1 May 2001 the Registrar granted leave to add to the grounds of appeal. In the result the application for leave to appeal against conviction comes before us more than two years after the applicant was sentenced. In my opinion there is no substance in the appeal and the application should be dismissed.

The offences with which the applicant was charged arose out of the purchase of a house property in Avondale Heights. The house was for sale through the Moonee Valley Real Estate Agency, the manager of which was Privitelli. On 16 March 1997 the applicant and his wife, together with their daughter, inspected the property which was listed for sale at $168,000. Afterwards the applicant made an offer to purchase the property for $150,000 and that offer was accepted by the vendor. The contract of sale was drawn up and was signed by all parties, including the applicant, on 18 March and a deposit of $15,000 was duly paid by the applicant to the real estate agent.

Subsequently, the applicant spoke with another agent in Avondale Heights who claimed to have valued the property at something between $130,000 and $150,000. This was the start of what followed; for the applicant then re-attended at the property just purchased, measured the size of the garage and realised for the first time that the garage was no…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Portelli

Details

AGLC: R v Portelli [2001] VSCA 183
Case: [2001] VSCA 183
Decision Date: 15 October 2001

CaseChat Overview and Summary

The defendant, Portelli, was charged with the murder of an employee at a real estate agency. The incident occurred when Portelli entered the premises armed with a shotgun and fatally shot the victim. The case was heard in the Court of Criminal Appeal, which was tasked with determining whether there was a miscarriage of justice due to the default of the defendant's counsel. Specifically, the appeal centred on the allegation that the defence counsel failed to explore the defence of accident and did not call the accused to testify. The defendant argued that these omissions resulted in a miscarriage of justice.

The court examined whether the defendant's counsel had indeed defaulted and, if so, whether this default led to a miscarriage of justice. The appeal hinged on the quality of the evidence presented to substantiate the claims of default. The court held that the alleged failures of the defence counsel did not amount to a default as they did not establish a miscarriage of justice. The matters raised by the defendant pertained to the credit of witnesses and did not necessitate a direction under Edwards v The Queen. Consequently, the appeal was dismissed, and leave to appeal was refused.

The court determined that the issues raised by the defendant were matters of credit and did not justify a direction to the jury regarding the failure of the defence counsel. No miscarriage of justice was found due to the defence counsel's alleged omissions. As a result, the conviction and sentence of the defendant remained unaffected. The court emphasised that the alleged defaults were matters for the defendant to address on appeal, and the evidence presented did not substantiate a claim of miscarriage of justice.

Orders