VELLA and BOWDEN - [2011] WASAT 56

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION: VELLA and BOWDEN [2011] WASAT 56

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
JUDGE T SHARP (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 8 APRIL 2011

FILE NO/S: VR 223 of 2009

BETWEEN: JOSEPH VELLA
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
MICHAEL JOHN BOWDEN
Second Respondent

Catchwords:

Legal practitioner - Complaint by client dismissed by Legal Profession Complaints Committee - Application for review - Whether any reasonable likelihood that practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct - Allegations of failure to follow instructions - Forensic decisions by counsel - Turns on own facts

Legislation:

Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 402, s 425, s 435

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
First Respondent           :     Not Applicable
Second Respondent       :     Mr PD Quinlan

Solicitors:

Applicant:     N/A
First Respondent           :     Law Complaints Officer
Second Respondent       :     Francis Burt Chambers

Case(s) referred to in decision(s):

Ali v The Queen (2005) 214 ALR 1
Browne v Dunn (1893) 6 R 67
R v McLoughlin [1985] 1 NZLR 106
Tihanyi v The Queen (1999) 21 WAR 377
Vella and Mactaggart [2011] WASAT 28
Vella v the State of Western Australia [2007] WASCA 59

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Joseph Vella sought a review of a decision by the Legal Profession Complaints Committee to dismiss a complaint concerning his former legal representative, Mr Michael Bowden. Mr Bowden had represented Mr Vella at Mr Vella's trial on a charge of wilful murder in March 2005. Mr Vella was convicted, and his appeal against conviction was dismissed. Several of the unsuccessful grounds of his appeal related to Mr Bowden's preparation for and conduct of trial.
The Complaints Committee examined each of the complaints made by Mr Vella. It found that Mr Bowden's conduct in relation to preparation for trial and conduct of trial was consistent with his instructions and based upon reasonable professional judgments. The Tribunal agreed with the Complaints Committee that there was no reasonable likelihood that Mr Bowden would be found guilty of unsatisfactory professional conduct or professional misconduct in relation to his preparation for and conduct of the trial. It reached the same conclusion in relation to complaints that Mr Bowden had given improper advice in relation to certain property matters and had refused to pay damages to Mr Vella. Accordingly, the application for review was dismissed.

The application

The applicant, Mr Joseph Vella, seeks a review pursuant to s 435 of the Legal Profession Act 2008 (WA) (LP Act) of a decision by the Legal Profession Complaints Committee (Complaints Committee) to dismiss a number of complaints by Mr Vella. The complaints were made against Mr Michael Bowden, who at the relevant time was a legal practitioner acting for Mr Vella in relation to charges of wilful murder. Mr Vella was convicted of wilful murder of his estranged wife by a jury after a trial in the Supreme Court of Western Australia which took place between 8 and 11 March 2005.
Mr Vella made a number of complaints, which can be summarised as follows:
1.Failing to follow instructions in relation to preparations for trial by:
•    failing to obtain certain evidence;
•    failing to speak to specified potential witnesses.
2.Failing to properly conduct the trial by:
•    failing to present the defence case as instructed;
•    failing to object the tendering of a postmortem report;
•    failing to object to improper remarks and allegations by the prosecutor;
•    failing to seek directions as required.
3.Disclosing Mr Vella's defence to the prosecution prior to trial.
4.Giving improper advice in relation to the use to be made at trial of an earlier plea of guilty by Mr Vella to an assault charge;
5.Overcharging.
6.Giving improper advice in relation to property matters.
7.Refusing to pay damages to Mr Vella.

The issue for determination

The committee dismissed the complaint by Mr Vella pursuant to s 425 of the LP Act on the basis that it was satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
In reviewing the Complaints Committee's decision, the function of the Tribunal is to conduct a hearing de novo, that is, to consider each of the complaints made by Mr Vella, and to determine whether there is any reasonable likelihood that the Tribunal might, on referral to it of the complaints, find Mr Bowden guilty of either unsatisfactory professional conduct or professional misconduct.
Unsatisfactory professional conduct is defined in s 402 of the LP Act as follows:
402. Unsatisfactory professional conduct
For the purposes of this Act
unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Professional misconduct is defined by s 403 of the LP Act as follows:
403. Professional misconduct
(1)For the purposes of this Act
professional misconduct includes
(a)unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For the purpose of finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

Background to the complaints

As well as the complaints against his own counsel, Mr Vella complained to the Complaints Committee about the conduct of the State prosecutor at his trial, Mr James Mactaggart. The Complaints Committee dismissed the complaints against Mr Mactaggart, and Mr Vella sought a review of that decision. The decision in that matter was recently delivered, see Vella and Mactaggart[2011] WASAT 28. In that decision, the Tribunal set out the background to the complaints at [14] - [24] and it is convenient to repeat that background for the purposes of this decision. The background reads:
14Mr Vella was tried before a jury on a charge of wilful murder for four days from 8 - 11 March 2005. He was represented at trial by counsel, Mr Michael Bowden. As mentioned, Mr Mactaggart represented the State of Western Australia. Simmonds J presided over the trial.
15At the outset of the trial, Mr Vella, through his counsel, made a number of admissions, including that on 27 December 2003, Mr Vella had purchased from a store a Winchester knife and a black beanie and that on 29 December 2003, Mr Vella forcibly entered the deceased's home and on that day unlawfully killed his estranged wife. In light of those admissions, the issues for determination by the jury were whether Mr Vella intended to kill his wife and whether he was provoked into the actions which brought about his wife's death.
16The essence of the provocation defence was that, on the night in question, Mrs Vella said words to the effect that Mr Vella would never see his children again. Those words, coupled with the history of Mrs Vella's conduct in the months leading up to 29 December 2003, caused Mr Vella to fly in to a rage as a result of which he killed her by striking her repeatedly with a baseball bat before cutting her throat with the knife he had purchased two days before.
17The jury returned a verdict of guilty of wilful murder, and Mr Vella was sentenced to strict security life imprisonment with a minimum term of 20 years before eligibility for parole.
18Mr Vella was sentenced on 22 April 2005. At the same time he pleaded guilty to three further charges which had been referred to the Supreme Court by way of a s 32 notice under the Sentencing Act1995 (WA). Those charges were first that, on 12 November 2003 at Kallaroo, he unlawfully assaulted Mrs Vella and thereby did her bodily harm, second that on 28 November 2003 and 29 December 2003 at Kallaroo, having been personally served with a violence restraining order, he breached that order by entering the deceased's home and behaved in a manner that breached the peace. On the sentence for assault occasioning bodily harm, Simmonds J sentenced Mr Vella to a period of 18 months imprisonment to be served concurrently with the sentence for the wilful murder.
19Mr Vella subsequently appealed against his conviction for wilful murder, and the sentence, and also appealed against his conviction for assault occasioning bodily harm. Leave to appeal in relation to the assault occasioning bodily harm was refused by RobertsSmith JA on 25 January 2006 - see Vella v The State of Western Australia [2006] WASCA 30.
20Mr Vella appealed against Justice Roberts Smith's refusal of leave. That appeal was heard by a Court of Appeal consisting Steytler P, Wheeler JA and Buss JA on 20 April 2006, and on 28 June 2006 the Court of Appeal dismissed that appeal - see Vella v The State of Western Australia [2006] WASCA 129.
21Mr Vella's appeal against conviction contained some 46 grounds. A number of those grounds were comprised of complaints about the conduct of both his own counsel and Mr Mactaggart. There is a clear overlap between the grounds concerning Mr Mactaggart's conduct, and the complaints dealt with by the Committee which are now before the Tribunal.
22In a lengthy consideration of the 42 proposed grounds of appeal, RobertsSmith JA refused leave on all but one ground - see Vella v The State of Western Australia [2006] WASCA 177. The ground in respect of which leave was granted concerned the admission into evidence by the trial judge of a report of the forensic pathologist who gave evidence at trial. That ground has no relevance to the complaints against Mr Mactaggart.
23Mr Vella then appealed against RobertsSmith JA's decision to refuse leave on the 41 other proposed grounds of appeal. The Court of Appeal dealt with that appeal at the same time as dealing with the substantive appeal on the ground in respect of which leave had been granted. Those matters were heard before Wheeler, Pullin and Buss JJA on 21 November 2006. The Court, by a majority, overturned RobertsSmith JA's decision in respect of one of the 41 grounds and granted leave on that ground, but then dismissed the substantive appeal on both grounds - see Vella v The State of Western Australia [2007] WASCA 59.
24Mr Vella subsequently sought special leave to appeal to the High Court against the decision of the Court of Appeal, but special leave was refused on 17 October 2008.

Failure to follow instructions re preparations for trial

The allegation that Mr Bowden failed to follow Mr Vella's instructions for preparations for trial were particularised as a failure to obtain certain evidence, and a failure to speak to certain witnesses.
The evidence which Mr Vella complains that Mr Bowden did not obtain consisted of:
•Telephone records for the deceased and Alan Susta.
•A copy of Mr Vella's video record of interview with Police for the assault matter.
•A copy of Mr Vella's diary.
•A wire note pad with lyrics and a writing pad with writing on the first page regarding the Family Court matters.
•Two photos of Mr Vella's son Dominic.
•A West Australian newspaper (Saturday edition) being held by Dominic in the above photographs.
•A photo of Mr Vella's son Reuben's underpants.
•A photo of a Mercedes car taken by Mr Vella on the night of the deceased's death.
•Two folders of bank statements.
•Two computers.
•A letter from Rebecca Berry (deceased's sister).
•Two letters from David Berry (deceased's brother-in-law).
•A copy of a quote for motivational material.
•Results of samples Police took from Mr Susta on the night of the deceased's death.
•Mr Susta's criminal record.
The witnesses, whom Mr Vella contended Mr Bowden should have spoken to but did not, were as follows:
•Staff members at the Glengarry Tavern.
•Ian Shadbolt (family friend).
•Diane Talbot (family friend).
•Margot Bennet (family friend).
•Hubert and Mabel Smith (family friends).
•Constable Knight (Interviewing Officer, assault matter).
•Deborah Gould (DCD).
•Anne Sydney (CJS).
•Erica Hampson (Relationships Australia).
•David Berry (brother-in-law).
•Barry O'Shea (family friend).
The nub of Mr Vella's complaint in relation to preparation for trial is that Mr Bowden failed to follow his instructions. The starting point is, therefore, to identify the instructions given to Mr Bowden with respect to the preparation for trial, and as to the conduct of the trial.
As observed above, the only issues for trial were whether Mr Vella intended to kill his wife and whether he was provoked into the actions which brought about his wife's death. The forensic challenge faced by counsel in presenting Mr Vella's defence was discussed by Wheeler JA in Vella v the State of Western Australia [2007] WASCA 59 (the 2007 appeal) at [27] [30], when she said:
27Further, against the background of a somewhat acrimonious separation, he had inflicted on the deceased devastating injuries, a number of which would have been fatal on their own. Any counsel would face a very difficult task in convincing a jury that there was any doubt whatever as to whether the appellant had intended the inevitable consequences of his actions, or as to whether the deceased woman might have said or done something which provoked the appellant to carry out his attack. Obviously, much would depend upon the jury's assessment of the appellant himself as he gave evidence and was cross-examined.
28The raising of a doubt would also be assisted by some evidence which might demonstrate that the deceased woman herself was a person who, by reason of bad temper, or impulsivity and thoughtlessness, or perhaps some settled dislike of the appellant, might have behaved in a provocative way towards him. That latter task - of demonstrating that the deceased woman may have been prone to provocative behaviour - could have been performed in one of two ways. The first, and the course apparently adopted by counsel, was a fairly "broad brush" cross-examination designed to allude to some aspects of the deceased's behaviour which attracted disapproval from those who knew her, and which might have attracted the disapproval of the jury. The second might have been (subject to questions of remoteness and relevance) a more detailed examination of the deceased's behaviour, by reference to some or all of the incidents about which the appellant complained before us.
29 There were considerable dangers for the appellant attendant upon the second possible course. One danger was that many of the incidents and behaviours spoken about by the appellant were not things of which he had any direct personal knowledge, but rested upon hearsay and inference. Cross-examination of witnesses directed to establishing those matters might therefore have failed to achieve its end, and the appearance might then be given to the jury that the appellant was prepared to instruct his counsel to blacken the character of the deceased with untrue allegations.
30 That course also presented the danger that, even if the various allegations against the deceased were supported by evidence, a jury might consider that many of them were no more than the sort of unfortunate, but not uncommon, behaviour which can occur in a marriage which is unhappy. Assuming that the jury understood that questions about those matters were put to witnesses on the instructions of the appellant, there was a real risk that they would then form a view that he was a person prone to dwelling obsessively on marital offences and magnifying the deceased's faults out of their proper proportion. One can well understand, in that context, why this defence counsel, who had long experience in criminal trials, did not explore at trial every avenue which the appellant now says should have been explored.
The difficulty alluded to by her Honour was no doubt increased by the fact that Mr Vella was unable to provide any cogent explanation as to why, when he went to the door of his estranged wife's home (in breach of a violence restraining order) he armed himself with a baseball bat and a hunting knife. His evidence was that he intended to tell his wife that he would have the children on New Year's Eve so that she was free to go out. It was only, he said, when she made comments about stopping him seeing the children, that he flew into a rage and killed her. It is apparent that Mr Bowden was alive to the risk that highlighting allegations of infidelity, allegations of her taunting him after obtaining the violence restraining order, and her alleged failures to properly look after the children, might appear to the jury as reasons why Mr Vella would form an intention to kill his wife, and thus forcibly enter her home armed with a baseball bat and a hunting knife. Thus a forensic decision to focus upon the alleged provocative words uttered by the deceased, painted against a background of what Wheeler JA described as a 'broad brush' crossexamination designed to allude some aspects of the deceased's behaviour which attracted disapproval, can be easily understood.
Amongst the papers submitted to the Complaints Committee and the Tribunal were a number of letters passing between Mr Bowden and Mr Vella prior to trial. In January 2004, Mr Bowden wrote a letter of general advice in relation to the offence of wilful murder and the available defences and outlining the likely course of the prosecution (Volume 1, Hearing Bundle (1HB) 68). The letter records that Mr Bowden asked Mr Vella to write down as much as he could recall about the actual incident and give it to him. A number of letters were written to Mr Bowden by Mr Vella about various aspects of Mr Vella's relationship with his wife and as to her general conduct.
On 26 November 2004, Mr Bowden wrote to Mr Vella in response to a letter from Mr Vella (1HB 27). In his letter, Mr Bowden said:
The situation if [sic is] you have to make your mind up as to which way you are going if you are saying that you were provoked because of her conduct towards you and the children on prior occasions it is a very dangerous game because that in my opinion will allow them to bring in the evidence relating to the previous assaults and the like.
If you are saying that you were provoked by her conduct on the night in question then we at least have an argument to stop the Crown leading evidence of prior acts of violence.
On 1 December 2004, Mr Vella replied (1HB 21). He said:
Please let me make this clear, I am not in the least trying to suggest what our strategy should be! I am leaving that up to you. This is a game I don't even know the rules of let alone how it should be played!

The letter concluded:
So as far as strategy etc I will take your advice.
In a letter to Mr Bowden dated 8 February 2005 (1HB 71), Mr Vella said:
I know I keep harping to you about Ruth's behaviour but I'm coming from Ruth as an unfit mother not Ruth as an unfaithful wife.
In another undated letter to Mr Bowden headed 'At the time this is how I felt', (1HB 73) Mr Vella identified a number of issues. The first was a contention that the police treated him unfairly in relation to the assault occasioning bodily harm charge. The second was that the VRO was unnecessary. The third was that Mrs Vella 'denied me my children'. Fourth, she made it difficult for him to see the children and he became upset at how she was treating the children. Fifth, he expressed concern that she had made excessive demands in relation to property settlement and, sixth, that 'she's cheating on me and behaving like a slut and gets everything and I'm kicked out my home!' He was concerned that she had told lies to someone concerning her conduct towards her, that she had sent text messages to a boyfriend whilst having coffee with him and other matters concerning her involvement with a 'boyfriend'. He expressed concern that when he asked her why she had lost her job, she replied 'it's none of your business'. The letter proceeded:
Now imagine a man did that to a woman! Everyone would be yelling 'serves him right' and proclaim her a heroine! Yet is it ok for a woman to treat a man such? Where is the equality???
The worst thing though, is she cut herself off [sic from] her mother, Rebecca and treated her children very cruelly and insensitively! Why? To get a bit of money?? She was determined to tear us apart but for what and why???
Mr Bowden's approach to tactical decisions was explained in a letter from Mr Bowden's solicitor to Mr Vella dated 28 January 2009 (1HB 240) where it was said:
He doesn't resile from his advice to you that, particularly in light of your purchase of the woollen cap and knife shortly before the incident, that the more you concentrated on your deceased former wife's activities, including her relationships with others, the more you ran the danger of being seen to be obsessive and acting as a result of that obsession and not under sudden provocation as a result of events occurring on the night and in particular what was said to you at the door.
That approach was also explained by Mr Bowden to Mr Vella in a letter dated 22 March 2006 (1HB 43) when he said in response to a question from Mr Vella:
I didn't explore the possibility of the relationship with her Uncle Brian because I discussed with you at the time in my opinion all we were doing was providing them with an extra motive as to why you would want to kill your wife and form an intent to kill her.
The tone and content of Mr Vella's letter (1HB 73) quoted above suggest that the concern about the danger referred to in Mr Bowden's letter of 28 January 2008 was soundly based.
In his submissions to the Tribunal Mr Vella said that immediately after the trial he thought Mr Bowden had done a good job, and he told him so. However, he said that in the last five years he had read many legal cases, journals and statutes and formed the view that Mr Bowden had either been extremely negligent or deliberately destroyed his defence.
Mr Vella has aired his criticisms of the conduct of Mr Bowden, and of the prosecutor, at some length before the Court of Appeal. Considerable attention has been given to his detailed concerns. None of his concerns have been found to have affected the fairness of his trial, and the vast majority have been found to have no substance.
The law in relation to the duties of counsel is summarised in Dal Pont, Lawyers Professional Responsibility (4th ed, 2010) at [17.40] as follows:
A lawyer pressed by clients to 'make every point conceivable and inconceivable without judgment or discrimination' must exercise professional judgment so as 'not to use public time in the pursuit of submissions which are really unarguable'. This does not mean refraining from pursuing points unlikely to succeed, but that the lawyer must determine those points that are reasonably arguable and jettison the rest. Mason CJ made the point as follows in Giannarelli v Wraith:
[I]t is that a barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in crossexamination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow.
Counsel for Mr Bowden also drew the Tribunal's attention to the observation by Gleeson CJ in Ali v The Queen (2005) 214 ALR 1 at [6] that:
… It is not a mark of competent advocacy to pursue at trial every line of argument that can be imagined, regardless of its consistency with other arguments, and regardless of its prospects of success. On the contrary, such an approach is the hallmark of incompetence.
Mr Vella referred the Tribunal to the decision in R v McLoughlin [1985] 1 NZLR 106. In that case, the New Zealand Court of Appeal ruled that a barrister has no right to disregard his client's instructions, and that a barrister may not take it upon him or herself to disregard the instructions and conduct the cases he or she thinks best. In that case, the barrister was instructed to run a defence of alibi and notice of that defence was given to the prosecutor. Another barrister subsequently was assigned to the case and, after initially advancing the alibi defence in cross-examination, decided to take it no further, but rather to rely on an incompatible defence of consent. The barrister elected to call no evidence despite the client's instructions to do otherwise. Thus, in continuing the case as he did, counsel acted contrary to his instructions and thereby deprived the appellant of the opportunity of presenting his intended defence. There is, of course, an important distinction between that case and the present circumstances. Mr Bowden did pursue the only two defences available to the charge of wilful murder (given the admission of unlawful killing) and thus acted in accordance with his instructions. Mr Vella's complaint is as to forensic decisions taken in relation to those defences and the manner of presentation of those defences at trial. This is a case, therefore, which falls squarely within the area of independent discretionary judgment in the conduct or management of a case.
The evidence before the Tribunal demonstrates that Mr Vella left to Mr Bowden the tactical decisions in relation to the presentation of his defence. Mr Bowden's approach was to avoid a detailed examination of the deceased's behaviour. That approach had a clear rationale which had been explained to Mr Vella. Mr Vella's complaints both as to Mr Bowden's preparation for trial, and as to his conduct of the trial, arises essentially because of Mr Vella's subsequent view, based on his own legal research, that the case should have been approached differently. The examination of Mr Vella's contentions in that respect by the Court of Appeal does not support Mr Vella's contention that an alternative approach to the trial may have led to a different result. The Tribunal's own analysis of the extensive materials submitted by Mr Vella to the Complaints Committee also leads us to the conclusion that the forensic decisions as to the conduct of the case were made on a firm foundation. Given that Mr Vella expressly left the tactical decisions to Mr Bowden, and that Mr Bowden apparently made his views on the appropriate approach known to Mr Vella in advance of trial, we do not consider that Mr Bowden's approach to the preparation of trial, or the conduct of trial itself, has any likelihood of being found to amount to unsatisfactory professional conduct or professional misconduct.
As to the particular evidence which Mr Bowden was said to have failed to obtain, the following can be said.
Mr Susta was at the deceased's home on the night she was killed. He left the house briefly after seeing someone (who he later found was Mr Vella) at the window. He spent a brief time looking for the person he had seen, before returning to the house and encountering Mr Vella. By that time the assault which resulted in Mrs Vella's death was over. Mr Vella asserts that the deceased's mobile phone record, tended to demonstrate that Mr Susta had commenced a relationship with Mrs Vella earlier than Mr Susta asserted at trial. Given the admissions by Mr Vella, perhaps the most important aspects of Mr Susta's evidence was as to the time he was away from the deceased's home during which Mr Vella killed his wife. The precise point at which Mr Susta commenced any relationship with Mrs Vella was, at best, of marginal relevance. Its relevance could only relate to Mr Vella's state of mind, and thus his susceptibility to provocation, on the night of the murder. The production of the telephone records to demonstrate that the deceased was in a relationship with Mr Susta prior to her separation from Mr Vella could only have been designed to demonstrate infidelity. Infidelity of which Mr Vella had no knowledge was simply irrelevant. Pursuing the matter at trial, even if it had been permitted, could only have been designed to attack the deceased's character. The forensic decision not to take that approach was reasonably open. We do not consider that a failure by Mr Bowden to obtain copies of the deceased's telephone records was required given the approach to be taken at trial.
Mr Vella complains that Mr Bowden failed to obtain a copy of a video record of interview with police in relation to the assault occasioning bodily harm in November 2003. Precisely what obtaining that tape might have achieved is not clear. As the Complaints Committee observed, Justice RobertsSmith, in his decision in 2006, noted that, given that the complainant acknowledged that his evidence at the wilful murder trial about the assault incident was consistent with the account he gave to the police, the video was 'a non-issue'.
It may be that Mr Vella considers that the video record of interview was relevant to what he described as being 'set up'. Both before the Court of Appeal, and in his complaints to the Complaints Committee, Mr Vella contended that Mr Bowden should have, as part of the defence of the wilful murder trial, pursued Mr Vella's contention that he had been 'set up'. It is to this issue that Mr Vella says that cross-examination of Ms Talbot at trial should have been directed.
Mr Vella explained his view of his 'set up' defence in a letter to the Complaints Committee dated 29 April 2009 (1HB 6 - 7). He suggests that the 'set up' consisted of the deceased 'frustrating his contact with the children so that he would break the VRO and she could have me jailed'. He continued 'this set up would have helped me as it was calculated to get me to break the VRO by talking to her or approaching her'.
The argument about 'set up' was discussed by Wheeler JA in the 2007 appeal at [34] - [35]. Her Honour said:
34Finally, the appellant was particularly concerned that cross-examination had not been pursued, and evidence had not been led, which would have tended to show that he was "set up". It was never made clear quite what this "set up" consisted of, since he plainly did kill the deceased, so that it was not being suggested that he was, for example, being "framed" for an act which he did not perform. Nor did I understand him to be saying that the deceased and/or Susta had deliberately embarked on a campaign which would cause him to kill the deceased, although his submissions at times went close to that proposition. Rather, as I understood the appellant's affidavits and oral submissions, the "set up" consisted of the following elements. I comment in brackets on some aspects of them:
1.The deceased wished to obtain 80 per cent of the matrimonial assets in a divorce settlement. (A proposal of 70 per cent to 80 per cent was put to the appellant in a letter from her solicitors.)
2.In order to obtain 80 per cent of the assets, the deceased had to keep secret her relationship with Susta. (However, the deceased had obtained legal advice about the issue of property settlement. Any legal advisor would have told her that her relationship with another man would have had no bearing on the amount of a property settlement.)
3.Further, in order to obtain a favourable property settlement, it was necessary for the deceased to have the appellant "labelled" as violent. (It is not clear why this was "necessary" - perhaps so that the children would reside with her and she would therefore have greater financial needs.)
4.Therefore, it was necessary for her to provoke the appellant to strike her. (This is the context in which he explains the earlier assault occasioning bodily harm.)
5.For some reason, never clearly articulated by the appellant, the earlier assault was not sufficient, and it was necessary for the deceased also to "provoke" the appellant to breach the violence restraining order. (He did this by going to the Kallaroo house. It is not clear why it was also "necessary" for her to then further provoke him by saying that the children hated him).
6.Pursuing that plan to further provoke the appellant, the deceased uttered the provocative words to which he referred in his evidence at trial.
35 In addition to the various problems with the "set up scenario" which I have referred to in the bracketed comments above, there are two further problems with a complaint that this "set up" should have been raised. A fundamental difficulty is that it seems improbable that a woman who had already been assaulted by the appellant, resulting in her ribs being broken, would, in pursuit of some unspecified degree of financial advantage, shortly thereafter deliberately set out to provoke him again. A jury might well label this proposition, and by association with it the appellant's entire defence, as preposterous. The other difficulty is that it adds little or nothing to the case made at trial in any event. A jury would have no difficulty in understanding that partners to a marriage are likely to know how to wound and enrage each other and, once that marriage has broken down, may sometimes be willing to do so. The "set up" scenario does little or nothing to increase the likelihood, as the jury would see it, of the deceased having uttered some provocative words.
With respect, we agree with her Honour's observations.
In our view, there is no reasonable likelihood that Mr Bowden would be found guilty of unsatisfactory professional conduct in not obtaining or viewing Mr Vella's record of interview in relation to the assault charge.
In relation to the items of evidence referred to at dot points 3 to 13 in [11], the complaint has no substance. In relation to those items, the Complaints Committee concluded:
A review of correspondence between the practitioner and the DPP reveals that on 21 July 2004 the practitioner requested all of the above items and that on 29 September 2004 the police provided the information about the whereabouts of those items. On 4 February 2005 the practitioner contacted the DPP to make arrangements in relation to the items available for inspection. Further, the practitioner then attended the DPP's office to inspect items obtained by the police during the investigation.
No suggestion is made by Mr Vella in his submissions that those observations were incorrect, and we accept them. Mr Vella's complaint in that respect has no foundation.
Mr Vella complains that Mr Bowden did not obtain copies of 'samples police took from Mr Susta on the night of the deceased's death'. We agree with the Complaints Committee's conclusion that there is no evidence that any samples were taken from Mr Susta, and, given the issues at trial, the relevance of any samples if they had been taken, is not evident.
Finally Mr Vella complains that Mr Bowden failed to obtain a copy of Mr Susta's criminal record. This was a matter agitated before the Court of Appeal. It is evident that Mr Susta did not have a criminal record, but only a traffic record which would have been wholly irrelevant to any issue at trial, including Mr Susta's credibility.
Mr Vella complains of a failure by Mr Bowden to speak to a number of witnesses. It is not apparent what relevant evidence might have been obtained from a number of those witnesses listed, given the issues at trial, and the forensic approach to the question of provocation and intent which Mr Bowden advised Mr Vella to adopt, and which was adopted at trial. Thus, interviewing staff members at Glengarry Tavern as to the deceased's conduct whist an employee there would serve no apparent purpose. Conduct of the deceased of which Mr Vella was not aware was irrelevant. If it had been admissible, which we strongly doubt, it could only have been designed to blacken the reputation of the deceased. There is no suggestion that, before the offence occurred, Mr Vella had any knowledge of her conduct. It could not therefore have been relevant to his state of mind in December 2003.
Evidence from Mr Shadbolt, Ms Margo Bennet, Constable Knight, Deborah Gould, Anne Sydney, Erica Hampson, David Berry and Barry O'Shea would all appear to be related to questions going to the history of the relationship between Mr Vella and the deceased. The evidence of Hubert and Mabel Smith went broadly to the same question. Mr Bowden did, in fact, interview Mr Smith and prepared a statement from him, but obviously decided that, consistent with the approach to be taken at trial, he should not be called as a witness. Having reviewed Mr Smith's statement, we would not consider that the decision not to call him, given the issues at trial, was inappropriate.
Ms Talbot did give evidence at the trial, and was cross-examined by Mr Bowden. In a note given to Mr Bowden by Mr Vella prior to trial (1HB 11), Mr Vella suggested contact with Ms Talbot because:
She could give evidence that 'Ruth told her prior to incident that she had met someone and was waiting for 'Joe to hit me' to leave. Dianne knows Ruth provoked incidents.
To the extent that Mr Vella is critical of Mr Bowden for not pursuing the 'set up' defence, we do not consider that that criticism raises any reasonable likelihood of Mr Bowden being found guilty of unsatisfactory professional conduct or professional misconduct. That is because Mr Vella expressly left to Mr Bowden the responsibility for tactical decisions in relation to the proceedings, and the tactical decision taken by Mr Bowden in relation to the 'set up' defence was entirely justified.
As to the other witnesses referred to above, we do not consider that Mr Vella has demonstrated that they were in a position to give relevant or admissible evidence in relation to the issues at trial, and there is no basis for criticism of Mr Bowden in failing to interview those witnesses.

Failure to properly conduct trial

Failure to present case as instructed

The particulars of this complaint were distilled by the Complaints Committee in the following way. The complaint was identified as being that Mr Bowden failed to:
•Call witnesses who could have given evidence about the deceased's previous extra-marital sexual relationships.
•Bring into evidence items confirming the deceased had sought a job at a brothel.
•Bring into evidence the marital difficulties between the complainant and the deceased.
•Bring into evidence the deceased's alleged mistreatment of the children.
•Bring into evidence the complainant's ethnicity and religion.
•Cross-examine Mr Susta on prior inconsistent statements made by him.
•Cross-examine Ms Berry on the basis she was a liar.
•Cross-examine Ms Talbot on the basis there was a 'set up'.

The previous discussion as to the approach by Mr Bowden to the trial demonstrates that there is no reasonable likelihood that Mr Bowden would be found guilty of unsatisfactory professional conduct or professional misconduct in relation to these aspects of his conduct of the trial.
The failure to call witnesses about the deceased's previous extramarital sexual relationships is entirely justified, given the approach to trial. In the absence of evidence that Mr Vella knew of these relationships (and thus that they contributed to his state of mind) the evidence would have been inadmissible in any event. The materials submitted to the Complaints Committee demonstrate, at best, no more than the grounds for suspicion on Mr Vella's part. Whether those grounds existed at the time that Mr Vella killed his wife is not, in all cases, apparent. In any event, the concern that, if Mr Vella did know of infidelity on the part of his wife, then the jury might consider that a motive for him to form an intent to kill, was a real risk which was considered by Mr Bowden, and appropriately avoided at trial.
Mr Vella did give evidence that the deceased had applied for a job as a receptionist in a brothel and explained his concerns about that application T: [245246], [10.03.05]. That evidence was not challenged. Production of the advertisements or telephone records confirming the deceased rang the number mentioned in an advertisement was not necessary, and would have added nothing to the defence.
The extent to which Mr Bowden chose to bring into evidence the marital difficulties between Mr Vella and the deceased was a matter of forensic judgment. That Mr Vella now considers that he should have had the opportunity to dwell longer on his marital difficulties, or that other evidence should have been brought on that topic, does not lead to a conclusion that the forensic judgments made by Mr Bowden constitute unsatisfactory professional conduct.
The same observations can be made about Mr Vella's complaint of a failure to bring evidence of the deceased's alleged mistreatment of the children.
Mr Vella complains that Mr Bowden did not bring into evidence his ethnicity and religion. Mr Vella complained that 'on a defence of provocation the ethnicity and religious beliefs are to be taken account of by the jury' (1HB 40). Precisely what Mr Vella contends should have been made of those beliefs is not clear, and it is difficult what might have been made of those factors in the context of Mr Vella's defence. There is no basis for a conclusion that Mr Bowden's failure to highlight those matters in evidence amounts to unsatisfactory professional conduct.
The complaint of a failure to cross-examine Mr Susta on prior inconsistent statements is presumably a reference to the alteration of his evidence as to the time that he was away from the deceased's house on the night in question. The basis for that change in evidence was explained by Mr Mactaggart, the prosecutor, when he notified Mr Bowden in advance of the trial that the evidence that would be given by Mr Susta would differ in that respect from his written deposition. The explanation was that, since making his original estimate, Mr Susta had retraced his steps during the time he was away from the house, and concluded that he must have been away for a shorter period than he had originally estimated. That was a cogent explanation. Crossexamination on that point would presumably, have elicited the same explanation as had been given to Mr Bowden by Mr Mactaggart prior to trial. Permitting the witness to explain for a second time (he had already explained it in examination in chief) how he assessed the period he was away from the house would be of doubtful value at best. The line of cross-examination was likely to be unproductive, and may possibly have served only to reinforce Mr Susta's evidence. Mr Bowden's decision not to cross-examine on the point appears to have been a soundly based forensic decision.
A complaint of a failure to cross-examine Ms Berry on the basis that she was a liar was also made by Mr Vella. In a letter to the Complaints Committee dated 16 July 2009 (1HB 245 - 246), Mr Vella deals with this point. Mr Vella makes reference to questioning by Mr Bowden of Ms Berry about a letter she had written in December 2003 to her sister, the deceased, which was critical of the deceased and contained observations favourable to Mr Vella. Mr Bowden tendered that letter through Mr Vella when Mr Vella gave evidence, on the basis that he had received a copy, and it was therefore relevant to his state of mind. The lie which Ms Berry is said to have given in evidence is said to arise from the following exchange with Mr Bowden at T: [123], [08.03.05]
Can I just ask you briefly, if I may, Mrs Berry this:
Did you ever say to the accused that Ruth couldn't look after the children?
-- No. She stayed in the marriage for the children.
Mr Vella's criticism is that, in her letter to the deceased, Ms Berry said 'He stayed home all those years knowing full well you could not cope with 4 small boys on your own'. Putting aside whether the suggestion of not coping with four small boys on her own is the same as being unable to look after the children, putting the letter to Mrs Berry would not have established that she 'said' to the accused that the deceased could not look after the children. In any event, Mr Vella's case was that the comments contained in Ms Berry's letter were believed by him to be her truthful views, and cross-examination designed to demonstrate her to be a liar would appear to be counterproductive to that forensic objective. There was no basis for suggesting that Mr Bowden's decision not to pursue the unfavourable answer he had received to a single question was other than a reasonable forensic judgment. There is no basis for asserting that it constituted unsatisfactory professional conduct.
As to cross-examination of Ms Talbot to establish that there was a 'set up', our observations about the allegation of a 'set up' are dealt with above. Mr Bowden's forensic decision not to pursue the concept of a set up was entirely justified.

Failure to object to tendering of post-mortem report

There is nothing in this complaint. Mr Bowden did object to the tender of the post-mortem report, but the trial judge ruled against that objection.

Failure to object to improper remarks and allegations by prosecutor

Mr Vella complains that Mr Bowden should have objected to certain questions put by Mr Mactaggart to Mr Vella in cross-examination, and to Mr Mactaggart's closing argument that Mr Vella was not provoked and had intended to kill the deceased. In particular, Mr Vella contends that Mr Bowden should have objected to a suggestion that Mr Vella was lying in relation to something said by a friend's child, 'Hayden', and a general suggestion that the complainant was a liar. In the Tribunal's decision in relation to Mr Vella's complaints against Mr Mactaggart the Tribunal considered complaints against Mr Mactaggart for having asked the questions to which Mr Vella, in these proceedings, says objection should have been taken. At [55] - [61] the Tribunal said:
55In support of this complaint, Mr Vella provided a number of transcript references. In essence, his complaint is that Mr Mactaggart made unsubstantiated accusations of lies by Mr Vella with the intention, or at least the potential consequence, of prejudicing the jury against him.
56The first reference is at T:[43],[08.03.05] where in opening the State's case, Mr Mactaggart made reference to telephone calls made to the 000 emergency line shortly before he killed his wife. In those telephone conversations, Mr Vella asserted that there was screaming coming from the deceased's home and that people in the home were smoking marijuana. Mr Mactaggart said 'none of that was true, and on the prosecution's case the accused was lying through his teeth'.
57Mr Mactaggart subsequently cross-examined Mr Vella in relation to the 000 calls. Mr Vella acknowledged that the reference to screaming coming out of the house was a lie. Although he was not specifically asked whether the reference to smoking cannabis was a lie, there does not appear to have been any foundation for that assertion either. Mr Mactaggart's reference to lying in his opening was not made without foundation.
58The second transcript reference concerns Mr Vella's evidence that he recollected a conversation between another witness Mr Forlonge, and Mr Forlonge's son, Hayden. Mr Forlonge had earlier given evidence of that conversation. In his evidence, Mr Vella explained that his understanding of what had been said was that there was a child molester in the area. The following exchange then took place:
Mr Mactaggart: That, I put to you, Mr Vella, is an absolute lie on your part?
Mr VellaWhich bit are you talking about?
Mr Mactaggart Your recollection of that conversation with the young man, Hayden?
Mr VellaI'm afraid you're wrong.
59Even after Mr Mactaggart's clarification, it is not particularly clear whether Mr Mactaggart was suggesting that Mr Vella had lied about there having been a conversation, about having heard the conversation, or about his understanding of what was said. The matter was not pursued further in evidence.
60In the decision on leave to appeal ([2006] WASCA 177), RobertsSmith J said at [46]:
It is a perfectly legitimate and normal forensic approach for a prosecutor to seek to discredit an accused's evidence where that evidence is in conflict with or seeks to refute the prosecution case. Indeed, in those circumstances, such an approach is both necessary and inevitable.
61It may be that, in his question concerning the conversation overhead by Mr Vella, Mr Mactaggart went further than he ought in challenging Mr Vella's evidence. In the context of a lengthy crossexamination of an accused proffering a somewhat improbable defence, we do not consider it likely that Mr Mactaggart will be found guilty of unsatisfactory professional conduct in asking the question the way he did. Justice RobertsSmith, who listened to the tape of crossexamination said at [196]:
The cross-examination was obviously done in a way to suggest or imply what the appellant was saying was untrue, unbelievable and in parts a fabrication. At times the State prosecutor was sarcastic, even caustic and critical of the explanations given by the appellant. I gained no sense however (with one exception) that there was anything inappropriate, much less improper or unfair, which should have been stopped or commented upon by the trial Judge.
In the circumstances described above, a failure by Mr Bowden to object to Mr Mactaggart's questions is not capable of amounting to unsatisfactory professional conduct.

Failure to seek directions as required

The Complaints Committee identified the particulars of this complaint as being a failure to seek directions in relation to 'the prosecutor's closing' and 'Mr Susta's prior inconsistent statements'.
The complaint concerning the prosecutor's closing is explained in a letter from Mr Vella to the Complaints Committee dated 16 July 2009 (1HB 247). It is that Mr Mactaggart did not cross-examine Mr Vella on 'how long it took me to reach the door etc, but in his closing he argued that there was no time for the provocation to have occurred'. That submission was based on Mr Susta's evidence that he had been away from the house for only about three minutes. Mr Vella contends that Mr Bowden should have sought from the trial judge a direction based on the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn) . That contention is, in our view, misconceived. The evidence called into question by the prosecutor in his closing was whether the deceased said the words which Mr Vella claimed had provoked him. In cross-examination, it was squarely put to Mr Vella that the words were not said. In closing, the prosecutor submitted to the jury that, based on Mr Susta's evidence, there would not have been sufficient time for the provocative words to have been said and for the accused to have then entered the house and killed the deceased in the way he did. Mr Vella's evidence was that he remembered kicking both the front door and the bedroom door to force them open, but thereafter having no recollection of events until he saw the deceased on the floor with blood gushing from her neck. He could have given no evidence, consistent with that account, as to how long he was at the house. Questions about whether there was sufficient time for events to have occurred as Mr Vella stated would have been nothing more than an invitation to speculation on Mr Vella's part. Mr Vella could not have given admissible evidence as to how long it might have taken Mr Susta to do the things which he said he did when he was away from the house. We do not consider that there was any call for a direction based on the rule in Browne v Dunn by the trial judge, and Mr Bowden's failure to seek one does not warrant any criticism.
Similarly, the complaint that Mr Bowden should have sought a direction by the trial judge in relation to Mr Susta's 'prior inconsistent statement' is without foundation. We have dealt above with Mr Vella's complaint that there was no cross-examination on Mr Susta's 'prior inconsistent statement'. There having been a sound basis for not cross-examining on that point, no direction by the trial judge was called for.

Disclosure of defence prior to trial

In relation to this complaint the Complaints Committee said:
On 13 July 2004 the practitioner wrote to the DPP about arrangements for the trial. Although the issue of provocation is discussed during the letter, the practitioner does not specifically state that the defence will be provocation. On 4 March 2005 the practitioner wrote to the DPP, confirming that the complainant would be entering a plea of guilty to manslaughter at the commencement of the trial[.] The practitioner did not specifically state that the defence would be provocation. The discussions had and the admissions made by the practitioner were entirely appropriate in terms of narrowing the issues at trial, as required by section 611C of the Criminal Code (as it then was). Further, a review of file 292/08 (Mactaggart - Vella) reveals that the admissions resulted in the prosecution deciding not to call evidence that was potentially prejudicial to the complainant such as blood splatter analysis.
We agree with those observations. As already noted, once the admission of manslaughter was made, the only possible defences were absence of intention or provocation. To the extent that the practitioner's correspondence reflected that reality, it was entirely unobjectionable and appropriate. There is nothing in this complaint.

Improper advice in relation to earlier plea of guilty to assault charge

It is difficult to identify the precise terms of this aspect of Mr Vella's complaint. Amongst the materials provided to the Complaints Committee was a letter from Mr Vella to Mr Bowden dated 29 July 2006 (1HB 110) in which he says:
In regards to the charge of Assault Occasioning Bodily Harm, I asked you if I could change my plea and you told me that:
1.You will keep it out of wilful murder trial.
2.To stay focused on the wilful murder charge.
3.And I had already pleaded.
Could you please confirm or tell me why we did not change the plea?
Mr Bowden responded to that enquiry by letter dated 1 August 2006 (1HB 249). In that letter, Mr Bowden said:
In so far as the assault occasioning bodily harm is concerned you were never advised by me that you could not change your plea. As you may recall before I had even started acting for you, you had actually pleaded guilty to the charge and as I understood it you had spoken to both Legal Aid and your family law solicitor. I also went through with you what took place in that particular incident and explained to you that it would be very difficult for you to change your plea.
You then gave me no instructions whatsoever to change your plea. The short answer to why you did not change your plea is that you in fact had already had legal advice as I understood it from two other sources prior to entering your plea of guilty and you agreed with my assessment that bearing in mind what you had told me it would be very difficult for us to convince a court to allow you to change your plea and accordingly I had received no instructions from you to change the plea.
Mr Vella contends that Mr Bowden's response is untrue.
In Mr Vella's submissions to the Tribunal of 29 January 2010, Mr Vella complains that 'Mr Bowden coerced me to believe that I could not change my guilty plea'.
There is obviously a conflict between Mr Vella and Mr Bowden as to precisely what advice was given in relation to the possibility of a change of plea to the charge of assault occasioning bodily harm. What is clear is that Mr Vella entered that plea before Mr Bowden commenced acting for him. Mr Vella relies upon the decision in Tihanyi v The Queen (1999) 21 WAR 377. In that case, it was recognised that a discretionary power existed in a superior court to permit a change of plea to not guilty. The decision also makes it clear, however, that the discretion to allow a change in plea will only be exceptionally exercised (at p 391). In Tihanyi, the Court dismissed the appeal, not withstanding its conclusion that the judge below had a discretion to allow a change of plea, on the basis that the plea in the court below was unequivocal. Mr Vella's case appears to be that he wished to change his plea, not because he did not understand or intend to admit the elements of offence at the time that he entered the plea, but rather to gain a forensic advantage by reinforcing his 'set up' defence. If that were the basis put forward to the Court to accept a change of plea, then it would be highly unlikely that the change of plea would have been permitted.
Mr Bowden's recollection is that he explained that it would 'be very difficult' to change the plea. If that was what was advised, the advice would appear to have been sound. Mr Vella's contention is that he was led to believe that he could not change his plea (although that is not how he put his complaint in his letter to Mr Bowden of 29 July 2006). Nothing in the papers submitted to the Tribunal provides any documentary support for a proposition that Mr Bowden advised Mr Vella that, as a matter of law, a change of plea was not possible. We do not consider that there is any reasonable prospect that Mr Bowden would be found guilty of unsatisfactory professional conduct by giving advice to Mr Vella of that kind.
The Complaints Committee appears to have considered the complaint to be that Mr Bowden advised not to change the plea in order to keep evidence of the earlier assault out of trial. If that is the complaint, then we agree with the Complaints Committee that it is unlikely that Mr Bowden would be found guilty of unsatisfactory professional conduct in that respect. As the Complaints Committee observes, the trial transcript reveals that Mr Bowden did seek to have evidence of the earlier incident and the violence restraining order, excluded from the trial. The trial judge did not accept that submission. The fact that the trial judge did not accept Mr Bowden's submissions in relation to that evidence does not mean that Mr Bowden's advice on the point amounts to unsatisfactory professional conduct.

Overcharging

The Complaints Committee did not deal with the complaint of overcharging on the basis that a taxation of costs was being undertaken in the Supreme Court. The Complaints Committee indicated its preparedness to reconsider that matter if, at the conclusion of the taxation proceedings, the complainant provided evidence of possible unsatisfactory professional conduct by overcharging. In the circumstances, therefore, the Complaints Committee has not dismissed that complaint, and thus no right of review by the Tribunal arises.

Giving improper advice in relation to property matters

On 30 June 2004, Mr Bowden wrote to Mr Vella concerning communications Mr Vella was having with the deceased's sister, Ms Berry, in relation to various items of property. In that letter Mr Bowden advised that Mr Vella was entitled to write to Ms Berry and request an itemisation of various items of property taken from the deceased's home. The letter continued (1HB 30):
There is also however a tactical consideration, quiet [sic] frankly if it came out at the trial where you are charged with wilful murder of your wife we are then involved in arguing about over property then it may appear to the jury relative [sic] petty.
You will appreciate that different jurors would have different approaches. But all I am saying is if it [emerges] at the trial under cross-examination or otherwise argument between yourself and one of the witnesses, over the property over your deceased wife, I just don't know whether it would sit very comfortably with some of the members of the jury.
In his submissions to the Tribunal, Mr Vella complains that that advice was 'erroneous because the inference that a jury could draw was that I married into a family of fraudulent thieves which would give further support to the fact that I was set up'.
There is nothing 'improper' about the advice given by Mr Bowden. It was sound tactical advice. We agree with the Complaints Committee which concluded that the practitioner appears to have quite appropriately exercised his professional judgment in advising the complainant.

Refusal to pay damages

This complaint appears to be based on a contention that the Complaints Committee had, in relation to an earlier complaint in 2006, made a finding that Mr Bowden had been negligent, and on that basis had a liability to pay damages to Mr Vella. That proposition is misconceived.
On 7 December 2006, the Complaints Committed wrote to Mr Vella in relation to a complaint that Mr Bowden had failed to place sale proceeds from Mr Vella's former home into an interest bearing account. The Complaints Committee dismissed that complaint. In that letter, the Complaints Committee said (1HB 16):
As to the alleged failure to take the proceeds to a separate interest bearing trust account, the Committee was of the opinion that there was no evidence of unprofessional conduct involved and that at highest it was a matter sounding in negligence only, your remedy being to seek damages equivalent to the interest foregone.
That sentence does not amount to a finding of negligence. The dismissal of Mr Vella's complaint on this point was made under the provisions of the Legal Practice Act 2003 (WA) and not the Legal Profession Act 2008 (WA) [LP Act] which had come into force. No right of review of the Complaints Committee's decision under the 2003 Act existed.
There having been no finding of negligence by the Complaints Committee (even if it had jurisdiction to make such a finding), Mr Bowden had no obligation to pay damages, and his refusal to do so gives rise to no reasonable likelihood that he would be found guilty of unsatisfactory professional conduct or professional misconduct.

Conclusion

In our view, there is no reasonable likelihood that Mr Bowden would be found guilty of either unsatisfactory professional conduct or professional misconduct in relation to any of the matters complained of by Mr Vella. His application for a review of the decision of the Complaints Committee made 2 November 2009 is dismissed.

Orders

1.The decision of the Complaints Committee to dismiss complaints by Mr Vella against Mr Michael Bowden dated 2 November 2009 is affirmed.
2.The application for review is dismissed.

I certify that this and the preceding [82] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT