Vella v Bowden
[2011] WASCA 158
•1 AUGUST 2011
VELLA -v- BOWDEN [2011] WASCA 158
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 158 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:39/2011 | 24 JUNE 2011 | |
| Coram: | PULLIN JA MURPHY JA | 1/08/11 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOSEPH BERNARD VELLA MICHAEL JOHN BOWDEN |
Catchwords: | Courts and judges Application for coram of interstate judges to hear the appeal Reasonable apprehension of bias Application dismissed |
Legislation: | Nil |
Case References: | British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429 Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Re The State of Western Australia; Ex Parte Vella [2010] WASC 213 Vakauta v Kelly (1988) 13 NSWLR 502 Vella v Bowden [2011] WASC 78 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 Western Australia v Watson [1990] WAR 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VELLA -v- BOWDEN [2011] WASCA 158 CORAM : PULLIN JA
- MURPHY JA
- Appellant
AND
MICHAEL JOHN BOWDEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : KENNETH MARTIN J
Citation : VELLA -v- MICHAEL JOHN BOWDEN OF CANNON BOWDEN & CO [2011] WASC 78
File No : CIV 1709 of 2010
Catchwords:
Courts and judges - Application for coram of interstate judges to hear the appeal - Reasonable apprehension of bias - Application dismissed
(Page 2)
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr P D Quinlan SC
Solicitors:
Appellant : In person
Respondent : McCallum Donovan Sweeney
Case(s) referred to in judgment(s):
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429
Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Re The State of Western Australia; Ex Parte Vella [2010] WASC 213
Vakauta v Kelly (1988) 13 NSWLR 502
Vella v Bowden [2011] WASC 78
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
Western Australia v Watson [1990] WAR 248
(Page 3)
1 REASONS OF THE COURT: The appellant seeks an order that this appeal be heard by a coram of interstate judges. The appeal concerns the decision of Kenneth Martin J, who made an order striking out parts of the appellant's indorsement of claim in a writ which the appellant issued against his former solicitor and counsel (now a District Court judge) who represented the appellant at a criminal trial. In that trial, the appellant was charged with and convicted of the wilful murder of his wife. The appellant made allegations in the indorsement, inter alia, of negligent conduct of that trial. The parts of the indorsement of claim which were struck out were those which Kenneth Martin J held amounted to a collateral attack on the conviction for murder: Vella v Bowden [2011] WASC 78.
2 The appellant submits that there is a reasonable apprehension of bias concerning all the members of this court as a result of the following circumstances. The appellant was convicted of an assault occasioning bodily harm on his late wife sometime before he murdered her. Roberts-Smith JA refused the appellant's application for leave to appeal against that conviction: Vella v The State of Western Australia [2006] WASCA 30. The appellant filed an application for a review of that decision. That application was dismissed by the Court of Appeal: Vella v The State of Western Australia [2006] WASCA 129 (Steytler P, Wheeler & Buss JJA agreeing). After his murder conviction, the appellant applied for leave to appeal against that conviction and against his sentence for that offence. That application came on before Roberts-Smith JA in August 2006. In relation to the conviction appeal, his Honour refused the appellant leave on all but one of his proposed grounds of appeal. His Honour refused leave to appeal against sentence, and as a result the sentence appeal was dismissed: Vella v The State of Western Australia [2006] WASCA 177. The appellant filed an application for a review of the decision of Roberts-Smith JA, which application was heard by Wheeler, Pullin and Buss JJA. The Court of Appeal allowed part of the application to review the decision on the conviction appeal but then dismissed the appeal against conviction. The application to review the decision to refuse leave to appeal against sentence was dismissed: Vella v The State of Western Australia [2007] WASCA 59. An application for special leave to appeal to the High Court was dismissed.
3 Subsequently, the appellant attempted to file and issue a writ which made allegations of misconduct against one of the prosecutors in relation to the criminal proceedings. The registrar refused to file or issue the writ without the leave of the judge first having been obtained. Hall J refused the appellant leave to file and issue the writ on the basis that it was an
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- attempt to mount a collateral attack on his criminal convictions: Re The State of Western Australia; Ex Parte Vella [2010] WASC 213.
4 Against that background, the appellant submits that no currently sitting judge of this court can bring an unbiased and unprejudiced mind to the appeal because so many judges of the court have dealt with Mr Vella's matters, because those who have not sat have some association with judges who have sat in previous proceedings, and because the defendant in the decision under appeal is now a judge of the District Court.
5 The point has to be made immediately that Steytler P, Wheeler JA and Roberts-Smith JA, who dealt with matters concerning the appellant, have all retired from the court. Only two present members of the Court of Appeal, namely Pullin JA and Buss JA, have previously heard a matter concerning the appellant. There is no allegation that the other members of the court have heard a case involving the appellant.
6 The test to be applied in determining whether a judge should be disqualified from sitting to determine a case by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492. The plurality in that case pointed out (493) that in applying the test two things need to be remembered: the observer is taken to be reasonable, and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' (Vakauta v Kelly (1988) 13 NSWLR 502, 527). This test has recently been affirmed by the High Court in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429 [78] - [84], [132] and [139].
7 The involvement of Pullin JA and Buss JA in relation to the criminal appeal does not give rise to any reasonable apprehension of bias. No fair-minded lay observer would think otherwise. The mere fact that the appellant has been largely unsuccessful in previous proceedings in this court would not lead a fair-minded observer to conclude that his current appeal could not be dealt with fairly by this court.
8 In the case of Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1, it was necessary for the Court of Appeal in New South Wales to assemble a coram of interstate judges for the purpose of hearing an allegation that a judge of that court had been negligent when acting earlier
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- as counsel. That decision may be distinguished on the facts because it concerned an allegation against a judge who was a member of the court hearing the appeal. In contrast, the present appeal involves allegations against a District Court judge. The physical and professional distance between District Court and Supreme Court judges precludes any risk of bias. The administration of justice is a practical business which relies to a very great extent on judges putting aside whatever personal or professional associations they may have had and doing justice as they are sworn to do: Western Australia v Watson [1990] WAR 248, 264.
9 The appellant's application for the appeal to be heard by interstate judges should be dismissed.
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