VELLA and MACTAGGART

[2011] WASAT 28

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   VELLA and MACTAGGART [2011] WASAT 28

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

JUDGE T SHARP (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   16 FEBRUARY 2011

FILE NO/S:   VR 193 of 2009

BETWEEN:   JOSEPH VELLA

Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent

JAMES MACTAGGART
Second Respondent

Catchwords:

Professions - Legal practitioner - Complaints dismissed by Legal Profession Complaints Committee - Whether reasonable likelihood that practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct - Turns on own facts

Legislation:

Criminal Code, s 611(B)
Criminal Procedure Act 2004 (WA)
Justices Act 1902 (WA), s 103(1)(b)
Legal Profession Act 2008 (WA), s 435(1)
Sentencing Act 1995 (WA), s 32
State Administrative Tribunal Act 2004 (WA), s 24

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

First Respondent           :     Not Applicable

Second Respondent      :     Self-represented

Solicitors:

Applicant:     Self-represented

First Respondent           :     Law Complaints Officer

Second Respondent      :     Self-represented

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

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

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

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

Vella v The State of Western Australia [2007] WASCA 59

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Joseph Vella raised a number of complaints against a legal practitioner, Mr James Mactaggart, in relation to Mr Mactaggart's conduct as prosecutor in respect of a wilful murder charge against Mr Vella.  Mr Vella was convicted of wilful murder, and appeals against that conviction were unsuccessful. 

2. Mr Vella's complaints against Mr Mactaggart included complaints of inadequate disclosure of prosecution materials and improper conduct during the course of the trial.  The Legal Profession Complaints Committee dismissed Mr Vella's complaints on the basis that there was no reasonable likelihood that the State Administrative Tribunal would find Mr Mactaggart guilty of either unsatisfactory professional conduct or professional misconduct in relation to the allegations made by Mr Vella.  Mr Vella sought a review of that decision.

3. The Tribunal examined the voluminous materials which had been before the Complaints Committee, and considered each of the complaints made by Mr Vella.  In all cases, the Tribunal agreed with the Complaints Committee that there was no reasonable likelihood of any adverse finding against Mr Mactaggart in relation to Mr Vella's allegations.

The application

1. The applicant, Mr Joseph Vella, seeks a review of a decision by the Legal Profession Complaints Committee (Committee) to dismiss various complaints against a legal practitioner, Mr James Mactaggart, because it was satisfied that there was no reasonable likelihood that Mr Mactaggart would be found guilty by the State Administrative Tribunal (Tribunal) of either unsatisfactory professional conduct or professional misconduct. Pursuant to s 435(1) of the Legal Profession Act 2008 (WA) (LP Act), a person aggrieved by a decision of the Committee to dismiss a complaint may apply for a review of the decision by the Tribunal.

2. The allegations by Mr Vella concern Mr Mactaggart's conduct in relation to criminal proceedings which resulted in Mr Vella's conviction for the wilful murder of his wife on 29 December 2003 and in the context of subsequent appeals against conviction and sentence.  Mr Mactaggart, a Senior Prosecutor in the Office of the Director of Public Prosecutions (DPP), represented the State in Mr Vella's trial. 

3. Mr Vella first complained to the Committee by letter dated 1 September 2008. His initial complaint was of a failure by Mr Mactaggart to comply with what Mr Vella described as a ruling by Roberts­Smith JA to provide certain documents, a failure to comply with a prosecutor's duty of disclosure, and a failure to serve a certificate of compliance in accordance with s 611B(3) of the Criminal Code.  Following that initial complaint, extensive correspondence ensued between Mr Vella and the Committee, and Mr Mactaggart and the Committee.  During that time, Mr Vella added a number of additional complaints.  From time to time, the legal officer of the Committee sought to formulate the precise points of complaint.  Eventually that was done, and by letter dated 5 October 2009, the Committee gave its decision dismissing each of the complaints.  The complaints determined by the Committee were as follows:

   1.Failure to serve the certificate of compliance under s 611B(3) of the CriminalCode.

   2.Failure to disclose materials prior to trial, and in particular:

   •a letter from Ms Berry;

   •notes from Ms Bennett; and

   •Mr Susta's criminal record.

   3.Coaching a witness (in particular a Mr Susta).

   4.Improper conduct during the trial, and in particular:

   •objecting to evidence being led about Ms Berry's letter;

   •Making false and unsubstantiated allegations as to lies told by the complainant;

   •Using improper means to prejudice the jury.

   5.Failure to comply with a continuing duty of disclosure (post­trial).

   6.Failure to produce a copy of all correspondence between Mr Vella's counsel, Mr Bowden and the DPP.

   7.Providing the complainant with an incorrect case.

4. The function of the Tribunal in its review jurisdiction is conduct the 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 a referral to it of the complaints, find Mr Mactaggart guilty of either unsatisfactory professional conduct or professional misconduct.

Application to call oral evidence

1. Following the initial directions hearing the Committee was directed to, and did, file a bundle of all relevant documents in its possession, in accordance with s 24 of the State Administrative Tribunal Act2004 (WA). At a subsequent directions hearing, it was determined that, given the extensive and detailed correspondence and submissions contained in the s 24 bundle, it was appropriate for the matter to be determined entirely on the documents, subject to parties having the opportunity to file any additional submissions which they wished to make. Mr Vella filed additional submissions, but Mr Mactaggart advised the Tribunal that he relied upon his responses to the Committee and did not wish to file further submissions.

2. Subsequently, Mr Vella wrote to the Tribunal advising that he wished to call four witnesses and also Mr Mactaggart in relation to the application. Those witnesses were Mr Alan Susta, a witness who gave evidence at Mr Vella's trial and who Mr Vella alleges was the subject of coaching by Mr Mactaggart. The second and third were Ms Deborah Gould and Ms Ann Sydney who were named in a notice given under s 103(1)(b) of the Justices Act1902 (WA) as 'persons from whom no statement, report or deposition has been obtained but who may be able to give relevant evidence'. The fourth witness is Detective Brian Hill who was apparently an investigating officer in relation to the charges brought against Mr Vella.

3. Mr Vella gives as the reason for his request that 'the LPCC's findings to certain matters were based on inferences some of which were not before the Committee'.  References are made to certain items of correspondence. 

4. It is not easy to understand the point which Mr Vella seeks to advance by calling oral evidence.  The documents referred to deal with a request by Mr Vella to obtain certain affidavits that were before the Court of Appeal which annexed telephone records from which Mr Vella contends that certain inferences as to the deceased's conduct with Mr Susta should be drawn.  These proceedings do not, of course, involve any examination as to the merits of Mr Vella's defence to the charge of wilful murder on the basis of lack of intent or provocation.  With the possible exception of Mr Susta, none of the named witnesses appear to be in any way relevant to the matters discussed in the correspondence which Mr Vella puts forward to explain the basis of his seeking to call oral evidence.

5. Mr Vella puts forward no detail as to evidence that any of the four identified witnesses might give and his proposal to call them appears to amount to what is colloquially referred to as 'fishing'.  That conclusion is supported by a subsequent letter received from Mr Vella seeking to call Mr Mactaggart to give evidence under oath.

6. Against the lack of any cogent reasons to examine the witnesses, the lengthy history of Mr Vella's criminal litigation, and the enormously detailed volume of materials submitted to the Committee, and in turn the Tribunal, for consideration, the direction by the Tribunal that the matter should be dealt with on the documents, which at the time it was made was not opposed, remains the appropriate manner of disposition of the application for review.  In the absence of any cogent basis for the application to call witnesses, the application should be declined.

Background to the complaints

1. Mr 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.

2. At 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. 

3. The 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.

4. The 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. 

5. Mr 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.

6. Mr 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.

7. Mr 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.

8. Mr 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. 

9. In 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.

10. Mr 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.

11. Mr 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. 

12. Mr Mactaggart represented the State of Western Australia in respect to each of Mr Vella's appeals. 

Failure to serve a certificate of compliance

1. Up until the Criminal Procedure Act2004 (WA) came into force on 2 May 2005, the question of disclosure of documents by the prosecution was governed by s 611(B) of the Criminal Code. Section 611(B) relevantly reads:

   (1)If an indictment has been presented to a court against a person, the prosecution is required to file and serve on the person -

   (a)a copy of every statement or deposition, obtained by the prosecution, of any person who may be able to give relevant evidence at the trial;

   (b)notice of the name and, if known, the address of any person from whom no statement, report or deposition has been obtained but who the prosecution thinks may be able to give relevant evidence at the trial and a description of the relevant evidence concerned;

   (c)notice of any person whom the prosecution proposes to call as a witness at the trial;

   (d)a copy of every other document or exhibit that the prosecution proposes to adduce at the trial or, if it is not practicable to copy the document or exhibit, a description of it and notice of where and when it can be inspected;

   (e)a copy of the criminal history of the accused; and

   (f)any other document prescribed by rules of court.

   (2)The requirements of subsection (1) must be compiled with as soon as practicable after the prosecution has obtained the document.

   (3)As soon as practicable after the requirements of subsection (1) have been complied with, the prosecution must file, and serve on the accused person, a certificate of compliance.

   (4)The certificate of compliance must -

   (a)be made by a person who was involved in, and who has knowledge of, the investigation of the charge in the indictment;

   (b)certify that the prosecution has complied with subsection (1); and

   (c)state the person's grounds for so certifying and any inquiries made by the person before so certifying where inquiry has been necessary.

2. Mr Vella's complaint is as to the failure of the prosecution to provide a certificate of compliance. Mr Mactaggart says in response that responsibility for completion of the certificate referred to in s 611B(3) lay with the enquiry police officer, and not him as counsel for the State. That practice is consistent with the requirements of s 611B(4). Mr Mactaggart acknowledges that he did not request the case officer to serve a certificate of compliance on Mr Bowden but notes that Mr Bowden made no request for a certificate. Mr Mactaggart says that Mr Bowden had been provided with all of the evidence and information required under s 611B(1)(a) to (e), and thus the substantive purpose of s 611B had been met.

3. Mr Mactaggart suggested that the reason he did not request that a certificate be provided may have been because he had been advised by Mr Bowden that Mr Vella intended admitting at the outset to unlawfully killing Mrs Vella and thereby pleading guilty to the crime of manslaughter at the outset of the trial.  Those admissions had the effect of significantly limiting the issues for trial, and thus the evidence to be called by the prosecution.

4. In his response to Mr Vella's initial complaints concerning compliance with s 611B(3), Mr Mactaggart enclosed a notice purportedly under s 103(1)(b) of the Justices Act, but containing the information necessary to satisfy the requirements of s 611(B)(1)(b). In his letter to the Committee of 2 June 2009, Mr Mactaggart maintained that he had complied with all of the requirements of s 611(B)(1). Mr Vella disputes that, but that conflict can be dealt with in context of the particular documents that Mr Vella says were not disclosed.

5. It is apparent that no certificate under s 611(B)(3) was provided.  Responsibility for signing the certificate was not, however, that of Mr Mactaggart but rather the investigating officer.  Section 611 is designed to ensure that an accused has the opportunity to consider all evidence gathered by the investigating officers.  Disclosure of that evidence and of relevant materials is the focus of the section.  We agree with the Committee's observation that the production of the certificate under s 611(B)(3) 'would appear to be significantly less important than the compliance with the disclosure requirements under s 611(B)(1).'  In the circumstances where the responsibility for signing the certificate did not rest with Mr Mactaggart, the evidentiary issues have been greatly narrowed by the foreshadowed plea of guilty to manslaughter, and (subject to consideration of Mr Vella's arguments in relation to specific non-disclosure) s 611(B)(1) had been complied with, we do not consider that there is any reasonable likelihood that Mr Mactaggart would be found guilty of unsatisfactory professional conduct or professional misconduct by reason of the fact that no certificate under s 611(B)(3) had been provided.

Failure to disclose materials prior to trial

Letter from Ms Berry

1. By letter dated 21 July 2004, Mr Bowden wrote to Mr Mactaggart asking to sight 13 items which Mr Vella had instructed Mr Bowden were in the possession of the police.  Item 10 in that letter was described as 'letter from Rebecca Berry'.  The letter was referred to the case officer for the inquiry, Detective Hill.  On 29 September 2004, Detective Hill wrote to Mr Mactaggart reporting on his attempts to locate each of the items referred to in Mr Bowden's letter of 21 July 2004.  In relation to the letter from Ms Berry, Detective Hill said 'to my knowledge no such letter was seized as I am unable to find any record of same'.

2. Mr Vella was, in fact, himself in possession of a copy of the letter from Ms Berry to which Mr Bowden's letter referred.  He had given that copy to a solicitor acting for him in relation to his matrimonial matters, and the solicitor had passed his file, including the letter, to Mr Bowden well before Mr Vella's trial.  After Ms Berry gave evidence at Mr Vella's trial, a copy of the letter was tendered in evidence as Exhibit 7.  Objections to its admissibility were made by Mr Mactaggart, and they form the subject of other complaints against Mr Mactaggart which we will deal with below.

1. According to Mr Vella, after his conviction, and apparently in the context of his attempts to obtain access to materials for the purposes of his appeals, Mr Vella received from the office of the DPP a copy of the letter from Ms Berry sent to the deceased in December 2003.  The letter is typed, and is identical to the copy which Mr Vella had, save for Ms Berry's handwritten words 'loving you always Beca' at the foot of the final page of the letter which appears in the DPP's copy.

2. Mr Vella complains that the first time Mr Mactaggart disclosed that copy of the letter was after the trial in Mr Mactaggart's letter of 11 January 2006 when he enclosed 'a copy of Exhibit 7'.

3. Mr Mactaggart, in his response to the complaints, suggests that Ms Berry's letter had been disclosed to the defence and Mr Bowden cross-examined on it.  Whether the document upon which Mr Bowden cross-examined was Mr Vella's own copy of the letter, which bore no signature by Ms Berry, or whether it was the version of the document, bearing Ms Berry's signature, is not clear.  In her evidence on 8 March 2005, Ms Berry identified the letter shown to her by Mr Bowden as her own letter to her sister, the deceased.  The document was only admissible in the trial on the basis that its contents were known to Mr Vella (and thus relevant to his state of mind) but not as to the truth of its contents.  After identification by Ms Berry, the document was marked for identification.  When Mr Vella gave evidence at the trial, two days later, Mr Bowden tendered the letter.  Mr Mactaggart queried whether the maker of the document had been identified, but after Mr Bowden drew attention to the relevant passage in the transcript of Ms Berry's evidence, he withdrew that objection.

4. It might be thought that if the document which became Exhibit 7 bore the signature 'Beca', Mr Mactaggart might have been unlikely to raise the question as to its authorship.  That might suggest that the document produced by Mr Bowden was Mr Vella's copy and not the copy subsequently produced by the prosecution.  That is, however, not a powerful inference.  The very terms of the letter make it clear that it was a letter from Ms Berry to her sister, the deceased.  Whether Mr Mactaggart had a copy of the letter in front of him when it was being tendered is not evident from the papers.  The answer to his objection lay not in the content of the document, but rather in the evidence that had been given two days earlier by Ms Berry.  The possibility that the document actually tendered was the version obtained by the police during the investigation cannot be discounted.  If that were the case, then Mr Mactaggart's suggestion that the document was disclosed prior to the trial may be correct.

5. It may be appropriate, however, for present purposes, to assume that the document upon which Mr Bowden cross-examined Ms Berry was the version of the letter provided by Mr Vella, and the version eventually sent to Mr Vella in June 2006 was not previously disclosed.  If that is assumed, the question arises as to whether it is likely that Mr Mactaggart might be found guilty of unsatisfactory unprofessional conduct or professional conduct for failure to provide the letter prior to hearing.

6. Mr Bowden sought inspection of the letter from Ms Berry in his letter of 21 July 2004.  Mr Mactaggart immediately referred that request to Detective Hill, and Detective Hill's report to Mr Mactaggart was provided in late September 2004.  Detective Hill's response was provided to Mr Bowden on 20 January 2005.  At that point, Mr Mactaggart was entitled to rely upon Detective Hill's advice that he was unable to find any record of the letter.  We are satisfied, therefore that Mr Mactaggart had a reasonable basis for not disclosing the letter at that time.  Mr Vella, in some of his correspondence, suggests a conspiracy between Detective Hill and Mr Mactaggart to conceal the existence of the letter.  There is no evidence to support that theory.

7. As already observed, it is not clear when the version of the letter signed by Ms Berry came to Mr Mactaggart's attention. Assuming it was some time after January 2005 but before the trial in early March 2005, Mr Mactaggart had no obligation under s 611(B) to disclose the letter. The signed copy of Ms Berry's letter was accompanied by the envelope addressed to the deceased. On the face of the letter, therefore, it was not admissible at trial. Nothing on the face of the letter suggested that Mr Vella was aware of its contents. As Simmonds J ruled, the letter was not admissible as to the truth of its contents. It was not, therefore, a document which, on its face, might assist in the accused's defence. That view was expressed by Mr Mactaggart in his response to Mr Vella's complaints. There was a reasonable foundation for that view, especially given the fact that, while it may have been expected that Mr Vella might run a defence of provocation, the precise formulation as to the nature of the provocation was by no means apparent to Mr Mactaggart prior to trial.

8. In our view, if there was a failure to disclose the original version of Ms Berry's letter prior to trial, we do not consider that that fact is reasonably likely to result in a finding of unsatisfactory conduct or professional misconduct on Mr Mactaggart's part.

Notes from Ms Bennett

1. The notice under s 103(1)(b) of the Justices Act (which outlined the names and addresses of persons from whom no statement had been obtained, but who may be able to give relevant evidence) included, as witness number 26, Margo May Bennett. A description of the evidence that she may be able to give was as follows:

   Initial [sic] met accused through work and then became the victim's best friend.  Has a lot of general knowledge of the Vella relationship from what she has witnessed and from what Ruth has told her.  Ruth had told her that the accused [sic] items home from work that were meant to be destroyed. 

   A statement has not been obtained but if necessary one will be forwarded.

2. At some stage, notes were obtained from Ms Bennett apparently by a Detective Douglas from Warwick Detectives.  The notes range over a number of topics including events surrounding the assault occasioning bodily harm in November 2003, observations as to the character and personality of both the deceased and Mr Vella, the history of the relationship of Mr Vella and the deceased and Ms Bennett's involvement in certain incidents, a number of derogatory observations about Mr Vella's violence towards his children and various other observations about Mr Vella.

3. The notes were not provided to Mr Vella prior to the trial.  They were provided to Mr Vella by Mr Mactaggart under cover of letter dated 11 January 2006.  That letter was apparently written in response to a letter from Mr Vella to Mr Mactaggart dated 27 December 2005 seeking inspection of a range of documents or other items.  Mr Vella's complaint is that Mr Mactaggart failed to disclose the notes prior to trial. 

4. In his response to this complaint, Mr Mactaggart says that he was not aware of the existence of the notes at the time of the trial.  He observed that Ms Bennett's name, and the nature of any evidence she might give was disclosed in the s 103 notice.  Mr Mactaggart observes that the evidence referred to in the notes was largely hearsay and inadmissible, and also was highly prejudicial to Mr Vella.  He said that he would never have contemplated leading the evidence referred to in the notes or calling Ms Bennett to give evidence.  He confirmed that he was not aware of any draft statement having been prepared.

5. Our review of the notes confirms that Mr Mactaggart's assessment of them is accurate. We have no reason to doubt Mr Mactaggart's assertion that he was not aware of the existence of the notes until after trial. But even if he were, his assessment that the notes were inadmissible and irrelevant (save that they were prejudicial to Mr Vella) was reasonably based. In those circumstances, his failure to disclose them, even if he were aware of them, did not constitute any failure to comply with s 611(B) of the Criminal Code nor of the Statement of Prosecution Policy and Guidelines 1999  (Prosecution Guidelines) published by the DPP.

Mr Susta's criminal record

1. Mr Vella complains that Mr Mactaggart failed to disclose Mr Susta's criminal record.  As has been mentioned above, MrSusta was a witness who was present with the deceased on the night that she was killed.  The deceased's relationship with MrSusta was one of the circumstances said to have contributed to the provocation of MrVella. 

2. It is apparent that MrSusta had no criminal record other than some traffic matters.  Even if he did, it is at best doubtful that MrMactaggart had any obligation to disclose the record.  As it was, the record was patently irrelevant to any issue, including the credibility of MrSusta.  This allegation has no foundation. 

Coaching a witness

1. Mr Vella complains that MrMactaggart coached a witness, namely MrSusta.  The allegation appears to be based upon the fact that, prior to trial, MrMactaggart gave notice to MrBowden that, in interview with MrMactaggart, Mr Susta had indicated that some evidence contained in his deposition was incorrect.  The correction related to the time that he was away from the deceased's home whilst MrVella killed the deceased.

2. That change of time appears to have been based upon MrSusta retracing where he went at the time he was absent from the house, and assessing that he could not have been away for as long as he had originally estimated.

3. There is absolutely no foundation for any allegation that MrSusta was coached either in respect to that aspect of his evidence or otherwise.  This allegation has no foundation.

4. As the Committee observed, MrMactaggart's letter to MrBowden dated 9 July 2004 simply reveals that he, quite properly, met with MrSusta and then disclosed the substance of their conversation as it differed from the statement previously disclosed. 

Improper conduct by Mr Mactaggart during trial

Objecting to evidence being led about Ms Berry's letter

1. As referred to above, Mr Bowden examined Ms Berry about her letter to the deceased during cross-examination.  Objection was taken to the questions on the basis that the witness was being asked about a letter she had written to the deceased, and it was therefore inadmissible as to the truth of its contents.  That objection was sound.  The learned trial judge required Mr Vella's counsel to establish that a copy of the document had been provided to Mr Vella so that the document might be relevant to his state of mind.  That fact was then established, and examination on the document continued and it was marked for identification.

2. As referred to above, when the document was sought to be tendered through Mr Vella, Mr Mactaggart raised an objection based upon whether its authorship had been established.  When the transcript revealed that Ms Berry had acknowledged it as her letter, the objection was withdrawn. 

3. There is nothing improper in those events.  Mr Mactaggart was perfectly entitled to take objections where he considered that evidence being adduced might be inadmissible.  That he made an error (which was quickly corrected and acknowledged) as to the evidence that had been given two days earlier is of no particular significance, and certainly does not lead to any reasonable likelihood that Mr Mactaggart would be found guilty of unsatisfactory professional conduct or professional misconduct.

Made false and unsubstantiated allegations as to lies told by the complainant

1. In 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.

2. The 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'.

3. Mr 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. 

4. The 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.

5. Even 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.

6. In 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.

7. It 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.

8. The one exception which his Honour identified was not, in his Honour's view, sufficient to 'put this cross-examination in the category of impropriety or unfairness capable of giving rise to a miscarriage of justice'.  Although Mr Vella makes the point that the task of the Committee, and in turn the Tribunal, is to identify improper professional conduct regardless of whether it might have led to a miscarriage of justice, it does not follow that any imperfection in the presentation of the prosecution's case justifies disciplinary action.

9. We agree with the Committee's view that Mr Vella's complaint under this heading is not likely to lead to a finding of unsatisfactory professional conduct or professional misconduct.

Used improper means to prejudice jury

1. The substance of this complaint appears to be that Mr Mactaggart's cross-examination went beyond the areas necessary to deal with the matters in issue at the hearing.  In particular Mr Vella expressed concern about the cross­examination directed to Mr Vella's admission that he had unlawfully killed his wife, and the circumstances of the killing.  As the Committee observed, the complaints as to prejudicial conduct by Mr Mactaggart have been dealt with both by Roberts­Smith J and by the Court of Appeal who found that there was nothing in the practitioner's cross-examination which affected the integrity or fairness of the trial.  No criticism was made of Mr Mactaggart's conduct of the trial, save for the one inappropriate line of questioning identified by Roberts­Smith J.  Mr Vella suggests that the Court of Appeal's analysis of the cross­examination should be ignored because the Court was addressing the question of any potential miscarriage of justice rather than the propriety of Mr Mactaggart's conduct.  The Court conducted a detailed and considered examination of the conduct of the prosecutor.  Its findings in that respect were appropriately given weight by the Committee, and by this Tribunal.

2. Our own review of the criticisms against Mr Mactaggart, some of which are dealt with above, leads us to the same conclusion as the Committee that there is no reasonable prospect that Mr Mactaggart would have been found to have used improper means to prejudice the jury against Mr Vella.  Mr Vella, on his own admission, had inflicted a violent death on his estranged wife.  The manner in which he killed her was relevant to the question of his intention.  The State's case was that the nature of the blows to her head with a baseball bat, and the cutting of her throat, could lead to no other conclusion that the accused intended the consequence of his actions to be death.  It was quite proper for the prosecutor to cross-examine Mr Vella as he did, as the Court of Appeal has found.

Failure to comply with the continuing duty of disclose (post-trial)

1. The requirements of s 611(B) and of the Prosecution Guidelines are generally concerned with disclosure prior to trial. It is accepted, however, that the obligation to disclose is a continuing one, so that it would continue in relation to subsequent appeals.

2. A review of the extensive correspondence between Mr Vella and Mr Mactaggart throughout the course of the appeals reveals that Mr Mactaggart continued to give disclosure in response to Mr Vella's requests.  That is not to say that he produced or located everything which Mr Vella asked for.  Where he did not, he wrote to Mr Vella explaining his reasons why.

3. In our view, the complaint that Mr Mactaggart failed to comply with disclosure obligations after the trial is without foundation.

Failure to produce a copy of all correspondence between Mr Bowden and the DPP

1. In his decision in relation to leave to appeal against the conviction for wilful murder, Roberts­Smith JA dealt with an application by Mr Vella for a direction that the DPP furnish him with copies of certain correspondence.  There were two categories of documents identified as being the subject of the request.  One category was the file containing correspondence between Mrs Vella and her family law solicitor, which file was not in the possession of the DPP.  The other category was the correspondence between Mr Bowden and the DPP.  Mr Mactaggart on behalf of the DPP apparently expressed an objection to production of the correspondence on the basis of legal professional privilege.

2. Roberts­Smith JA noted that Mrs Vella's family law file was not in the possession of the DPP, and any privilege in relation to that file could only be maintainable by the representative of her estate.  He also observed that no claim for privilege could be raised by the DPP in relation to its correspondence with Mr Vella's counsel.  Although it is not clear from the documents before the Tribunal, we infer that Roberts­Smith JA gave a direction for production of the correspondence with Mr Bowden, and it is compliance with that direction about which Mr Vella now complains.  That could be the only subject of complaint, since the general disclosures duties of a prosecutor do not extend to providing copies of correspondence between the prosecutor and the accused's own counsel, all of which the accused could access through his own counsel. 

1. In a letter dated 11 October 2008 to the Committee, Mr Vella raised the complaint that a letter from Mr Bowden to Mr Mactaggart dated 4 March 2005 had not been sent to Mr Vella 'when he sent me his and Mr Bowden's correspondence'.  In his response to the Committee dated 20 October 2008, Mr Mactaggart said that all correspondence between Mr Bowden and himself was made available to Mr Vella pursuant to the order of Roberts­Smith JA.  In his final response to the Committee dated 26 February 2009, Mr Mactaggart enclosed copies of the various items of correspondence between himself and Mr Bowden, and confirmed that to the best of his recollection he supplied all of those documents, including the letter of 4 March 2005, to Mr Vella under cover of a letter dated 6 October 2006.

2. The matter does not appear to have been further dealt with by Mr Vella in his correspondence.

3. There is, therefore, a conflict between the assertions of Mr Vella and Mr Mactaggart as to whether the letter of 4 March 2005 was provided to Mr Vella.  The letter itself is of the same character as other letters supplied, namely it contained advice from Mr Bowden as to whether certain witnesses would be required.  There is no apparent reason why Mr Mactaggart would intentionally not include that letter with the correspondence he provided to Mr Vella.  The letter is of no apparent consequence to any issue in the appeal.

4. We agree with the Committee that, in all those circumstances, even if the practitioner omitted to include that particular letter with the balance of the correspondence, that omission would be unlikely to be regarded as sufficiently serious to constitute a finding of unsatisfactory professional conduct.

Providing the complainant with an incorrect case

1. Mr Vella's complaint in this respect is that, in the course of the appeals, he was served with an unreported decision which did not relate to the appeal in question.  Mr Mactaggart acknowledged that the case was served inadvertently.  There is no reason to doubt that assertion.  The allegation of unsatisfactory professional conduct in that regard has no substance.

Conclusion

1. In our view, there is no reasonable prospect that Mr Mactaggart would be found guilty of unsatisfactory professional conduct or professional misconduct in relation to the matters of complaint.  The decision of the Committee to dismiss the complaint on that basis should be affirmed and the application to the Tribunal dismissed.

Orders

1.The decision of the Complaints Committee dated 5 October 2009 to dismiss Mr Vella's complaints against Mr James Mactaggart because it was satisfied that there was no reasonable likelihood that he would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct is affirmed.

2.The application for review is dismissed.

I certify that this and the preceding [76] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUSTICE J A CHANEY, PRESIDENT