Western Australia: If it please the Court, I
appear with my learned friend, MS M.A. YEATS, on

behalf of the respondent. (instructed by the State
Crown Solicitor)

MASON CJ:	Mr Fenbury.
MR FENBURY:	If Your Honours please, the applicant was

convicted in October 1989 of four counts of
offences of a dishonest kind. Three of those were
stealing offences and one was one of improper
conduct contrary to a provision of the Companies

Code. The applicant sought leave to appeal to the
Court of Criminal Appeal in January of this year
and was granted leave and the conviction in
relation to the fourth count being one of improper
conduct was quashed.

MASON CJ:

Yes.

Do you have an outline of submissions?

MR FENBURY:

I do not have an outline of submissions,

Your Honour, no. I was not aware that one was
required in an application.

MASON CJ: Normally, it is not in the case of an application

for special leave but, of course, under the current
procedure the Court hears the application for
special leave and concurrently hears the appeal,
against the possibility that special leave will be
granted.

MR FENBURY:

Yes, I -

MASON CJ: Very well, if you would proceed with your

argument.

MR FENBURY:

The application for leave to appeal in respect of the convictions for stealing was dismissed.

The

applicant is an accountant and - - -

MASON CJ:

We are familiar with the circumstances and we

have read the judgments under appeal.

MR FENBURY:

Thank you, Your Honour.

I will then refer

particularly to the judgment of His Honour the
Chief Justice in this matter. There were no
admissions of guilt made by the applicant in or out
of court and the Crown case, basically, relied on
inferences to show fraudulent intent and the intent
of the applicant was really the only issue in the
case. There was no dispute by him that he had
taken the moneys concerned in respect of each of

Vella

23/10/90

the three convictions but, in relation to two of
them, he maintained that he had a right to take
those moneys and, in relation to the third, he
maintained that he had taken them following a
mistake.
Thus, Your Honours, the issue at the trial was

whether the applicant had an intent to defraud when he took the moneys or, as was put by the prosecutor at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vella v The Queen

Details

AGLC: Vella v The Queen [1990] HCATrans 249
Case: [1990] HCATrans 249
Decision Date

CaseChat Overview and Summary

The applicant, Mr Vella, sought special leave to appeal to the High Court of Australia against his convictions for three counts of stealing and one count of improper conduct contrary to the Companies Code. The respondent was the State of Western Australia. The applicant had been granted leave to appeal to the Court of Criminal Appeal in relation to the improper conduct conviction, but that conviction was upheld. Leave to appeal in relation to the stealing convictions was dismissed by the Court of Criminal Appeal.

The central legal issue before the High Court was whether the applicant had received a fair trial, specifically concerning the conduct of the Crown prosecutor. The applicant contended that the prosecutor's cross-examination of him and final address to the jury contained conduct calculated to unfairly prejudice the jury against him, thereby preventing a fair trial. The applicant argued that this conduct was not isolated or accidental but repeated and deliberate, amounting to a substantial blemish on the trial process.

The applicant's defence at trial was that he had an honest belief that he was entitled to the moneys he took, or that he had taken them following a specific arrangement. Consequently, the sole issue for the jury was whether the applicant possessed the requisite intent to defraud. The applicant's credibility was paramount to this determination, as he had no prior convictions and the Crown case relied heavily on inferences to establish fraudulent intent. The applicant submitted that the prosecutor's conduct undermined the jury's ability to impartially assess his credibility and the evidence.

Orders