Vella v Bowden [No 2]

[2012] WASCA 271

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   VELLA -v- BOWDEN [No 2] [2012] WASCA 271

CORAM:   MARTIN CJ

NEWNES JA
MURPHY JA

HEARD:   6 DECEMBER 2012

DELIVERED          :   21 DECEMBER 2012

FILE NO/S:   CACV 39 of 2011

BETWEEN:   JOSEPH BERNARD VELLA

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:

Appeal against strike out of portions of appellant's indorsement to writ of summons - Issues previously litigated and determined in criminal proceedings - Application of Hunter principles - Allegations of fraud - Natural justice - Application to have coram disqualified

Legislation:

Nil

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr P D Quinlan SC

Solicitors:

Appellant:     In person

Respondent:     MDS Legal

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

Hunter v Chief Constable of the West Midlands Police [1982] AC 529

Re The State of Western Australia; Ex parte Vella [No 2] [2012] WASCA 272

Vella v Bowden [2011] WASC 78

Vella v Bowden [2011] WASCA 158

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] HCATrans 167

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

Vella v The State of Western Australia [2008] HCASL 552

Vella v The State of Western Australia [2012] HCASL 81

REASONS OF THE COURT:   

Introduction

1. This is an appeal against a decision of Kenneth Martin J in which his Honour struck out aspects of the indorsement of the writ issued by the appellant against the respondent.  The respondent had appeared for the appellant as counsel at a trial in which the appellant was convicted of the wilful murder of his estranged wife.  The portions of the writ which were struck out by his Honour contained allegations to the effect that:

   (a)the respondent's conduct had resulted in the appellant's 'false imprisonment';

   (b)the respondent had conducted the appellant's defence in a manner that 'was detrimental and fatal to the defence of provocation' by allegedly failing to obtain certain evidence and make certain investigations, and by advising the appellant that he could not change his guilty plea in relation to the 'assault charge';

   (c)the respondent had disclosed the 'defence of provocation' to the prosecutor; and had not put the appellant's case properly, including by not examining and cross‑examining witnesses in accordance with instructions given by the appellant; and

   (d)the respondent had deliberately conducted the appellant's case so as to deny the appellant a fair trial.

2. His Honour found, in effect, that the appellant's allegations involved a collateral attack on his criminal convictions and associated appeals in the criminal justice system.  His Honour in this regard relied upon the principles in Hunter v Chief Constable of the West Midlands Police [1982] AC 529.

3. The basis upon which Kenneth Martin J struck out those parts of the indorsement was summarised by his Honour at [41], [57] ‑ [58] and [70] ‑ [72] of his Honour's reasons for judgment in Vella v Bowden [2011] WASC 78:

   However, for the purposes of applying the Hunter principle as explained by Newnes J at [33] above, it would be difficult to envisage a collateral attack against an earlier final decision, being assessed by a court as bringing the administration of justice into disrepute - if there really has emerged some arguable platform to suggest that an earlier decision had been fraudulently obtained. However, to blandly render a bare assertion of 'fraud', without also revealing some underlying foundation should not, in my view, interrupt a scenario that otherwise calls for an application of the Hunter principle.

   ...

   Towards provocation and self-defence, it seemed to be Mr Vella's argument that the defendant, as his solicitor and trial counsel, deliberately conspired to deprive Mr Vella of the benefit of self-defence, or the lesser ameliorative benefit of provocation - by the defendant's active participation in a form of conspiracy engaged in, in conjunction with prosecuting counsel, at the murder trial - to see Mr Vella ultimately convicted of wilful murder.  This alleged conspiratorial conduct, constituted 'fraud' by the defendant, so Mr Vella contended.  But the 'fraud' was only capable of being discerned by a minute examination of an aggregation of many discrete matters or incidents, which, when factored all together, were said to support the grave allegation.  This 'sum of the components being greater than the individual parts' submission from Mr Vella, lacked any degree of rational coherency, in my assessment.  When the particular incidents raised by Mr Vella were evaluated closely, the invariable position was that the same matters or events had already been raised (unsuccessfully) by him, within the context of many grounds and arguments previously ventilated during his (in person) appeals to the Court of Appeal (in each instance, without success).

   As to the alleged conspiratorial deprivation of a benefit of a potential defence of self-defence at his murder trial, there is also no rational relevance to be found in this contention, in circumstances where, on the jury's verdict against him, Mr Vella, on 29 December 2003, had forcibly entered the premises of his estranged wife at around 4.00 am in the morning and there battered her with a baseball bat before finally cutting her throat with a knife; all in circumstances where Mr Vella alleged at his trial that he lacked a memory as to carrying out such acts of extreme violence.

   ...

   It is demonstrable, on my assessment, that the (impugned) matters now foreshadowed by Mr Vella against the defendant, in a context of this civil action have substantively been raised, considered but then finally rejected previously, within the framework of the criminal justice system.

   In my view, to allow the foreshadowed civil proceedings by Mr Vella (in their impugned respects) to continue, would bring the administration of justice into disrepute.  Controversies finally quelled within the framework of the criminal justice system (against Mr Vella) should not be allowed to be re-opened yet again, in the civil justice system, especially on what looks to be a conceptually misconceived basis.  The generality of repetitive, but bare assertions of fraud against a defendant, is no counter.  It is clear that the matters sought to be raised again, but now in a civil context, have already been thoroughly ventilated and rejected within the framework of the criminal justice system.

   The foreshadowed matters, now seen within the impugned components of the indorsement to Mr Vella's writ, do not constitute arguable fresh evidence.  And even were there to be seen some truly fresh potential evidence, to which Mr Vella might point, so as to sustain his fraud arguments, he has wholly failed in any relevantly causative way to make out an argument as to a potential favourable impact that such identified new evidence, might deliver him ‑ in terms of it having an important (positive) influence towards a different outcome at his trial (see Lord Diplock in Hunter at (545)) [70] ‑ [72].

4. The appellant's grounds of appeal are to the following effect:

   (1)the primary judge erred in applying the principle in Hunter in that the principle did not apply 'where the conviction was brought by fraud, collusion or perjury', and the appellant had been the victim of 'fraudulent conduct' in the period 2003 to 2005;

   (2)the primary judge denied the appellant natural justice and was guilty of apprehended bias;

   (3)the primary judge's decision is 'unreasonable and unsafe' and cannot be supported having regard to the evidence in that the appellant was himself 'a victim to a conspiracy' and was denied 'a chance of acquittal' through the respondent 'perverting the course of justice and having the appellant unfairly imprisoned'; and

   (4)the primary judge's decision is 'unconstitutional and must be vacated' because his criminal trial was 'fixed' and was a 'sham trial'.

Background

1. The events referred to in the appellant's writ have formed the subject matter of various appeals to this court and applications to the High Court.  Those proceedings and applications include and are recorded in:  Vella v The State of Western Australia [2006] WASCA 30; Vella v The State of Western Australia [2007] WASCA 59; 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 [2007] HCATrans 167; Vella v The State of Western Australia [2008] HCASL 552; Vella v The State of Western Australia [2012] HCASL 81.

2. The underlying events in question concerned the appellant's:

   (a)conviction of the wilful murder of his estranged wife on 11 March 2005 following a trial by jury, and his subsequent sentencing in that regard;

   (b)plea of guilty and sentencing in respect of a charge of assault occasioning bodily harm and his sentencing relating to a breach of a violence restraining order which had been made against him as a result of the assault.

3. On 22 April 2005, the appellant was sentenced to a term of 18 months' imprisonment, with eligibility for parole, in respect of the assault.  He was sentenced to strict security life imprisonment, with a requirement that he serve a minimum term of 20 years' imprisonment before eligibility for parole, in respect of the wilful murder, and he was sentenced to 11 months' imprisonment with eligibility for parole in respect of the breach of the violence restraining order.  The sentences in respect of the assault and the breach of the violence restraining order were ordered to be served concurrently with the sentence imposed in respect of the wilful murder conviction.

4. In relation to the assault, to which reference was made in the appellant's writ, Wheeler JA, in the context of an appeal in relation to the appellant's conviction for wilful murder, recorded in Vella v The State of Western Australia [2007] WASCA 59:

   On 12 or 13 November 2003, Mrs Vella [the appellant's wife] had been on a river cruise with her uncle and on her return to the house in Kallaroo which she shared with the appellant, an argument developed. There was a tussle between the appellant and his wife. During the course of the altercation, the appellant pushed her and caused her to fall backwards either up or down some stairs. During the course of the assault Mrs Vella sustained fractured ribs, a collapsed lung, bruising and swelling. The appellant wrote her a letter of apology, apparently while she was in hospital. He received in return a letter from solicitors she had consulted, setting out proposals for a matrimonial property settlement and for future arrangements for the care of the children [3].

5. In relation to the appellant's killing of his wife, her Honour recorded material aspects of the evidence at trial (reasons [2] ‑ [22]) and observed that there was no challenge to the medical evidence to the effect:

   [T]hat there were two to four distinct fractures of the deceased's skull, each of which was potentially fatal, and a gaping wound to the throat which was also potentially fatal. The cause of death was given as multiple injuries. It was plain that the appellant had battered the deceased about the head with the baseball bat and cut her throat with the knife. The forensic pathologist's conclusion in respect to the wound to the throat was that it had been made at a time when the deceased was already so seriously injured that she was unable to defend herself or to respond in any way. In effect, it had occurred when she was clearly already dying. There were also a number of other injuries detailed by the forensic pathologist. There were defence injuries to the deceased's hands and arms which suggested she had attempted to defend herself from blows with the baseball bat. The toxicology report indicated that the deceased had consumed a minimal amount of alcohol and no cannabis [22].

6. A brief summary of the procedural history is conveniently outlined in Vella v The State of Western Australia [2012] HCASL 81 in which Hayne and Crennan JJ said:

   1.On 29 December 2003 the applicant killed his estranged wife.  He was charged in the Supreme Court of Western Australia with wilful murder.  At the commencement of his trial he pleaded guilty to manslaughter but the prosecution did not accept the plea in satisfaction of the indictment.  The jury returned a verdict of guilty of wilful murder.

   2.At the sentencing hearing the applicant pleaded guilty to having assaulted his wife on 12 November 2003 thereby doing her bodily harm.  He had earlier pleaded guilty to that offence in the Court of Petty Sessions but that Court had not dealt with the matter.

   3.The applicant appealed to the Court of Appeal of the Supreme Court of Western Australia against his conviction for wilful murder and subsequently, despite his plea of guilty, appealed against his conviction for assault.

   4.In January 2006 Roberts-Smith JA refused the applicant leave to advance any of his proposed grounds of appeal against his conviction for assault.  The applicant sought review of that order by the Court of Appeal but on 28 June 2006 the Court of Appeal (Steytler P, Wheeler and Buss JJA) dismissed the application for review.

   5.In September 2006 Roberts-Smith JA refused the applicant leave to advance any except one of his proposed grounds of appeal against his conviction for wilful murder.  The applicant sought review of that order. The Court of Appeal (Wheeler, Pullin and Buss JJA) gave the applicant leave to advance one of the grounds for which leave had been refused, but dismissed the applicant's appeal against conviction.

   6The applicant applied for special leave to appeal to this Court against the orders of the Court of Appeal dismissing his application for review of the refusal to grant leave to advance any of his proposed grounds of appeal against his conviction for assault.  He later applied for special leave to appeal against the orders of the Court of Appeal in respect of his appeal against his conviction for wilful murder.

   7On 27 April 2007 Gummow and Heydon JJ directed the Registrar to draw up, sign and seal an order dismissing the first application.  On 17 October 2008 Gummow and Kiefel JJ directed the Registrar to draw up, sign and seal an order dismissing the second application.

   8The applicant has filed a summons seeking to reopen the second application.  His written submissions, however, appeared to be directed to reopening both applications.  It is, therefore, convenient to proceed on the footing that, regardless of form, the applicant seeks leave to reopen both applications.

   9He alleges that his trial counsel, the trial prosecutor, and the police were all incompetent and acted improperly at or in connection with his trial for wilful murder.  As a result, he says, relevant evidence was not put before the jury at his trial.  The applicant further alleges that some or all of the judges who considered his proceedings in the Court of Appeal of Western Australia were biased.

   10.In an affidavit filed in support of his application, the applicant says that 'the defence of self defence and a chance of acquittal was open' to him at trial and that 'matters which were relevant to a defence of provocation' were not placed before the jury at his trial.

   11We are not persuaded that the applicant has demonstrated that it is arguable that there has been a miscarriage of justice.  It is not shown to be in the interests of justice generally or in this particular case that there be a grant of special leave to appeal to this Court.  His applications for leave to reopen his earlier applications for special leave should be treated as further applications for special leave to appeal but dismissed.

   12Pursuant to r 41.10.5 of the High Court Rules 2004 we direct the Registrar to draw up, sign and seal orders dismissing each application. (emphasis added)

7. The appellant's complaints against the prosecutor, the police and others, referred to in point 9 of the above recitation of the procedural history, form the subject matter of proposed separate proceedings by the appellant.  Those proposed proceedings concern another appeal by the appellant which this court also heard on 6 December 2012 - see Re The State of Western Australia; Ex parte Vella [No 2] [2012] WASCA 272.

Disposition

1. The appellant's complaints are, in effect, that he was denied a fair trial because he had defences of provocation, self‑defence and that his wife 'set [him] up' to 'strike' her (ts 40).  The appellant contends, in effect, that these points are so obvious, and the trial was so obviously unfair to him, that the only conclusion that can be drawn is that his conviction was procured by fraud, and that Kenneth Martin J erred in failing to appreciate this.

2. Two overarching points should be made at the outset.  First, the appellant's complaints have, in substance, all previously been ventilated in his criminal appeals and applications with respect to his convictions.  For example, as Kenneth Martin J observed at [62] ‑ [64], the question of whether the appellant was 'set up' in relation to the murder of his wife, was addressed by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia [2006] WASCA 129 and Wheeler JA (Pullin JA and Buss JA relevantly agreeing) in Vella v The State of Western Australia [2007] WASCA 59. In the latter case, Wheeler JA at [34] pointed to a number of difficulties with the proposition that the appellant was 'set up' and continued:

   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 [35].

3. Secondly, having considered and examined all the materials referred to by the appellant, his submissions alleging fraud lack any foundation in reality. The primary judge was correct in approaching the disposition of the application on the basis that the appellant's assertions of fraud were of a 'barren character' [69].

4. In relation to the first ground of appeal, there has been no misapplication of the relevant principles.  Despite the appellant's asserted belief that he has been the true victim of the events in connection with his wife's murder, none of the materials before Kenneth Martin J or before this court reveal that he was the subject of 'fraudulent conduct' in the period 2003 to 2005.  Essentially for the reasons given by Kenneth Martin J, the principles in Hunter applied, and the offending parts of the indorsement of his writ were properly struck out.  Ground 1 has no merit.

1. In relation to ground 2, there was nothing in the materials before us to indicate that there is any basis for the allegation of apprehended bias.  Insofar as it is alleged that the primary judge denied the appellant natural justice by way of a fair hearing, the appellant has relied on five matters:

   (a)'obstructing the filing of evidence and denying the appellant's request to adjourn the matter';

   (b)'starting proceedings when the appellant was not linked up by video link, denying the appellant what was said in his absence';

   (c)proceeding by way of video link rather than in person;

   (d)making 'unreasonable and biased comments' at the hearing; and

   (e)allowing the application after hearing oral arguments rather than taking time to reserve.

2. As to the first of those matters, the respondent's chamber summons to strike out portions of the indorsement was filed on 24 September 2010.  The appellant's written submissions in opposition were dated 17 October 2010 and 15 December 2010, and the appellant filed affidavits in opposition on 16 November 2010 and 21 February 2011.  There is nothing to indicate that there was any error involved in failing to grant an adjournment, and the appellant had, and took, ample opportunity at the hearing on 21 February 2011 to present his case.  As to the second matter relied on by the appellant, the transcript indicates that there were some technical difficulties at the commencement of the hearing before substantive submissions were commenced.  The technical difficulties were mentioned by the appellant and were corrected before substantive arguments commenced.  As to the third matter relied upon, it was in the proper exercise of his Honour's discretion to hear the appellant by video link.  As to the fourth matter, having examined the transcript, there is no basis for the allegation that the judge's comments were 'unreasonable and biased'.  As to the fifth matter, plainly no error is shown in the delivery of the extempore decision.  Ground 2 has no merit. 

3. In relation to ground 3, there was simply no evidence that the appellant was the 'victim' of a conspiracy in relation to his conviction for wilful murder.  Nor was there any evidence that the respondent was in any way perverting the course of justice.  None of the materials to which the appellant took the court supported the proposition advanced.  There is no merit in ground 3.

4. In relation to ground 4, the appellant's criminal trial was not 'fixed' or a 'sham'.  The allegation that the primary judge's decision is 'unconstitutional' is entirely without foundation.  That ground must also be dismissed.

5. Finally, it should be noted that at the commencement of the hearing of this appeal, and the related appeal referred to in [11] above, the appellant applied for the members of the coram to disqualify themselves on the ground of apprehended bias by 'association'.  It was contended that the court was associated with the respondent, who is now a judge of the District Court.  The appellant had, in substance, made the same application last year in relation to the hearing of this appeal.  That previous application was dismissed:  Vella v Bowden [2011] WASCA 158. Nothing had materially changed since then and the reasons for dismissal of the earlier application remained applicable to the application made by the appellant at the commencement of this appeal. Accordingly, the application for recusal was dismissed.

Conclusion

1. For these reasons the appeal should be dismissed.