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: | ||
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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…
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- AGLC
- R v Portelli [2001] VSCA 183
- Case
- [2001] VSCA 183
- Decision Date
CaseChat Overview and Summary
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
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Background to the litigation
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Evidence
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