Vella v The State of Western Australia
[2007] WASCA 59
•15 MARCH 2007
VELLA -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 59
| (2007) 33 WAR 411 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 59 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:36/2005 | 21 NOVEMBER 2006 | |
| Coram: | WHEELER JA PULLIN JA BUSS JA | 14/03/07 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| A | |||
| PDF Version |
| Parties: | JOSEPH BERNARD VELLA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Conviction appeal Conduct of counsel Admissibility of written expert evidence where oral evidence given Impartiality of jurors Fresh evidence Criminal law Sentencing Provocation Circumstances and gravity of offence |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(4) Criminal Code (WA), s 23, s 626, s 628, s 630, s 633, s 646 Criminal Procedure Act 2004 (WA) Evidence Act 1906 (WA), s 32 Juries Act 1957 (WA), s 32, s 38 |
Case References: | Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1 Barry v The State of Western Australia [2007] WASCA 12 Bentley v The State of Western Australia [2007] WASCA 38 Butera v DPP (Vic) (1987) 164 CLR 180 I v The State of Western Australia [2006] WASCA 204 Johns v The Queen (1979) 141 CLR 409 Mansell v The Queen (1857) 8 El & Bl 54; 120 ER 20 R v Greening [1957] NZLR 906 R v Healey (1965) 109 SJ 700 R v Tichowitsch [2006] QCA 569 Ras Behari Lal v King-Emperor (1933) 102 LJ (PC) 144 Smith v The Queen (1970) 121 CLR 572 Vella v The State of Western Australia [2006] WASCA 177 Webb v The Queen (1994) 181 CLR 41 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VELLA -v- THE STATE OF WESTERN AUSTRALIA [2007] WASCA 59 CORAM : WHEELER JA
- PULLIN JA
BUSS JA
- CACR 76 of 2005
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH JA
Citation : VELLA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 177
(Page 2)
Catchwords:
Criminal law - Conviction appeal - Conduct of counsel - Admissibility of written expert evidence where oral evidence given - Impartiality of jurors - Fresh evidence
Criminal law - Sentencing - Provocation - Circumstances and gravity of offence
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(4)
Criminal Code (WA), s 23, s 626, s 628, s 630, s 633, s 646
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA), s 32
Juries Act 1957 (WA), s 32, s 38
Result:
Appeals dismissed
Category: A
Representation:
Counsel:
Appellant : In person
Respondent : Mr J Mactaggart
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1
Barry v The State of Western Australia [2007] WASCA 12
Bentley v The State of Western Australia [2007] WASCA 38
Butera v DPP (Vic) (1987) 164 CLR 180
I v The State of Western Australia [2006] WASCA 204
(Page 3)
Johns v The Queen (1979) 141 CLR 409
Mansell v The Queen (1857) 8 El & Bl 54; 120 ER 20
R v Greening [1957] NZLR 906
R v Healey (1965) 109 SJ 700
R v Tichowitsch [2006] QCA 569
Ras Behari Lal v King-Emperor (1933) 102 LJ (PC) 144
Smith v The Queen (1970) 121 CLR 572
Vella v The State of Western Australia [2006] WASCA 177
Webb v The Queen (1994) 181 CLR 41
(Page 4)
1 WHEELER JA: The appellant brings an application to review the decision of Roberts-Smith JA, who refused the appellant leave to appeal on all but one of his grounds of proposed appeal in respect of his conviction for the wilful murder of his wife (Vella v The State of Western Australia [2006] WASCA 177). In relation to the ground in respect of which his Honour granted leave, this is the appellant's appeal. The background to the appeal and to the review application are as follows.
Background
2 At the time of the death of Mrs Vella on 29 December 2003, the appellant was in his late 40s and Mrs Vella in her early 40s. There were four young sons of their marriage ranging in age from 5 to 11 years. The marriage had broken down. The appellant says that the circumstances leading up to the breakdown of the marriage were, broadly, that the deceased had been working at a tavern and was often returning in the early hours of the morning from work, telling the appellant that she had stayed for after work drinks with the staff. However, it was his belief, in hindsight, that she had been visiting a Mr Susta, who sometimes drank at that tavern. Mrs Vella had been on a visit to England, where she had family. She was "unsettled" on her return. Her Uncle Brian came from England to visit her and she often went out with him. Again, she would come in late and, says the appellant, she was "being difficult".
3 On 12 or 13 November 2003, Mrs Vella 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. That letter, provided to us by the appellant in voluminous materials accompanying his appeal papers, was dated 27 November 2003.
4 A violence restraining order was served upon the appellant requiring him to leave the premises. He went to stay with Bruce and Joan Forlonge. The children remained in the Kallaroo house with their mother.
5 Between the service of the restraining order and the death of the deceased, the appellant would sometimes have the children with him for
(Page 5)
- sleepovers or visits, on occasions having two of them and on other occasions having four of them. He remained with the Forlonges for about three weeks and then went to stay with a Mr and Mrs Nippierd for two weeks.
6 The appellant described his emotional condition during the separation as devastated, upset, disbelieving, and concerned for the welfare of his children.
7 In the day or so leading up to the death of the deceased, the appellant had arranged to take two of his children to see a film. His wife, however, telephoned him and told him that he would have to take all four of them if he was going to have any of them. He took it that the arrangement was cancelled. On Sunday morning he went to church. He then drove to Mr Susta's residence, and then went to Bunnings and purchased a sharpening stone. He had already purchased a hunting knife and a beanie. His evidence was that he intended to slash the tyres on Mr Susta's car. Later he collected two of the boys and took them to the Nippierds' house.
8 At some time in the middle of the night on Monday 29 December 2003, he left the Nippierds' house and drove to the Kallaroo house. He saw a white Mercedes parked there. Although he did not know it at the time, it belonged to Mr Susta. He saw his wife and a man, when he sneaked up to the window to look in. He returned to his car and rang 000. He reported that there were people at the house screaming and smoking marijuana. He said he did that because if his wife got into trouble with the police for smoking marijuana it would assist his case for custody of the children. He then returned to the Nippierds'.
9 Later he thought he would check to see if the police had attended so he drove back to the house. The car was still there so he returned to the Nippierds' house and called the police emergency number twice more, with much the same report. Not surprisingly, he was advised that he should not use the emergency line for that purpose.
10 He then drove for a third time to the house occupied by his wife. His intention at that stage, he said, was to slash the tyres on the Mercedes although he still did not know that it belonged to Mr Susta. He took a baseball bat with him because he was "very frightened and nervous and shaking". At one point in cross-examination, he suggested that the bat was always kept in his car. He parked his car within a convenient walking distance and walked to the house. Then the man came out, got into his car and drove off.
(Page 6)
11 It was Mr Susta's evidence that he had left the house because he thought that he had seen someone out in the garden. He saw the silhouette of a person with a bald head (the appellant's head is shaven). He left the house in order to investigate and the deceased shut the door behind him. It was also Mr Susta's evidence that after initially driving and looking in an area with quite thick bush, he remembered a nearby car park and went to investigate it. At the far end of the car park he saw a car that he remembered he had seen the deceased driving and he realised that it belonged to the appellant. Because he was aware of the restraining order, he drove straight back to the Kallaroo house to warn the deceased.
12 In his statement to police, Mr Susta had said that he thought that between five and 10 minutes elapsed between his leaving the house and his return to it. However, when proofed by the State prosecutor he advised that he had retraced that journey at a later time and discovered that it took more like three to four minutes. The prosecutor disclosed that in a letter to the appellant's counsel after Mr Susta had been proofed and Mr Susta's evidence at trial was consistent with what he had told the State prosecutor.
13 At the Kallaroo house, the appellant said that once he had seen the man leave he knocked on the door, intending to tell his wife that he proposed to agree with her request to take the children on New Year's Eve so that she could go out. It was his evidence that she called out, "Who is it?" and he replied that it was him, and that he would take the four children on New Year's Eve. He had the baseball bat, and the knife was in his pocket. He took them to the front door simply because it never entered his mind not to take them. At that stage he was quite calm.
14 However, it was the appellant's evidence that the deceased then said, "You will never see the kids again. I'm going to make sure you never see those kids again". He said that she spoke venomously and threatened to stop him seeing the children and to "destroy" him. He called out "you bitch" and kicked the door open, and while he was kicking the door she was screaming from the other side, "The kids hate you, the kids hate you". He thought he heard the bedroom door slam but did not recall her going to the bedroom. He ran to the bedroom door and kicked that in. She was still saying that the kids hated him.
15 He recalled using neither the baseball bat nor the knife. He saw his wife bleeding. He panicked and thought, "Oh, my God, what have I done". He then ran out and bumped into Mr Susta and there was a brief scuffle.
(Page 7)
16 It was Mr Susta's evidence that when he returned to the house the front door was open, rather than closed, as it had been when he left. He went into the house and began to run down the stairs into the kitchen/lounge area, as he could hear a male voice yelling from that direction. He saw into the bedroom. One of the appellant's younger sons was standing on the right hand side of the bed. The appellant ran towards him from the bedroom, starting to take the knife from his pocket and yelling, "You're another problem. I'll kill you too".
17 During the course of a scuffle, Mr Susta said he managed to get the knife from the appellant and throw it towards the lounge room. He managed to get the appellant out of the house and told him to "eff off", and that the police had been called. He returned to the bedroom, and attempted to assist the deceased. I describe her injuries later.
18 When arraigned at the commencement of his trial, the appellant pleaded guilty to manslaughter, but that plea was not accepted by the State. Immediately preceding the State prosecutor's opening to the jury, the appellant made a number of formal admissions pursuant to s 32 of the Evidence Act 1906 (WA). He admitted that on 27 December 2003 he purchased a Winchester knife and a black beanie and that on 29 December 2003 he forcibly entered the premises at which his wife was living and unlawfully killed her. The only live issues at trial were intention and provocation.
19 The State led evidence which went to the relationship between the appellant and the deceased generally, and a number of witnesses were cross-examined by counsel for the appellant about that issue. As is not surprising, witnesses had a range of impressions of the behaviour of the deceased and the appellant's apparent attitude towards her and towards their children. In broad summary, it is fair to say that a picture emerged of a woman who was not happy in her marriage. It seemed that she had been behaving at the tavern in a way which her employer considered to be too familiar with some customers, and it was clear that she had been in a relationship with Mr Susta, although precisely when that relationship changed from one of friendship to something more was not clear. It was Mr Susta's evidence that that was around December 2003.
20 There was evidence that the appellant had appeared to some witnesses to be concerned about the deceased's behaviour, and concerned for the welfare of his children. There were suggestions in the evidence that the fault had not been all on the side of the deceased. For example, one witness referred in passing to the appellant's "temper" and rejected
(Page 8)
- any suggestions that it appeared that the deceased was unable to cope with the children.
21 There were two aspects of the evidence of Mr Susta which were apparently inconsistent with the appellant's account. The three minutes which he said it had taken him between leaving the house and returning to it was a very short period of time. The State prosecutor put to the jury at trial that it was too short a time to allow for the exchange which the appellant said had taken place with the deceased; rather, the prosecutor in effect suggested that it was only enough time for a man who had always intended to kill his wife to enter the premises and quickly carry out that intention. Further, if the appellant had said to Mr Susta words to the effect of "I'll kill you too", a jury might have had difficulty in reconciling those words either with a lack of intention to kill his wife at any stage, or with his having acted suddenly under the stress of provocation emanating from his wife.
22 Other than as indicated above, the evidence was, largely, not in dispute. In particular, there was no challenge to the medical evidence, the effect of which was that 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.
The grounds of appeal
23 The appellant's grounds of appeal against conviction are set out by Roberts-Smith JA at [15] in his reasons for decision. His Honour summarised them at [16] into eight sets of grounds, each dealing with a different topic, and noted which of the various 42 original grounds fell into each category. It was largely to those eight categories that the appellant addressed argument before us. However, Roberts-Smith JA dealt separately with each of the 42 grounds. In my view, none of
(Page 9)
- grounds 7, 8, 9 and 11 to 42 inclusive has any substance. Each was appropriately dealt with by Roberts-Smith JA, and it would be needless repetition for this Court to perform the same exercise again. An arguable issue is raised by each of grounds 10, in respect of which his Honour gave leave, and 6, in respect of which he did not give leave. I deal with those shortly.
Incompetence of counsel
24 It is also desirable to deal briefly with grounds 1 to 5 inclusive, not because there is any substance in them, but because the argument put before us by the appellant appeared to be somewhat different - perhaps only in emphasis - from that put to Roberts-Smith JA. These grounds are collectively to the effect that the appellant's counsel at trial conducted his case so inadequately as to lead to a miscarriage of justice. The principles applicable to a ground of this kind are summarised by Roberts-Smith JA at [34] to [36] inclusive of his Honour's reasons for decision, and I do not repeat them. I would only add that it is important, in dealing with the appellant's submissions about his counsel's conduct, to bear in mind that "[i]t 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" (Ali v The Queen [2005] HCA 8; (2005) 214 ALR 1, at [6], per Gleeson CJ).
25 Further, I also agree with Roberts-Smith JA's analysis of those aspects of the evidence which the appellant alleged, before his Honour, had not been the subject of adequate preparation or cross-examination by his counsel. I would, however, make the following additional observations.
26 When analysing counsel's conduct in this particular trial, it is necessary to bear in mind a number of matters. The appellant had, but a short time before her death, assaulted his deceased wife, causing significant injuries. He had relatively recently separated from her, and had made it plain to a number of witnesses that he was unhappy and angry about the circumstances of their separation, and about her behaviour. On the evening on which he killed his wife, he was seen by Mr Susta in the bedroom where the deceased lay seriously injured. He was the only adult person to have had access to that room during the period in which those injuries were inflicted. It is probable that the infliction of those injuries had been witnessed by his own young son. He had been seen, in the period leading up to the fatal attack, to purchase a knife and a beanie.
(Page 10)
- Even without his admissions at trial, it was abundantly clear that he was the person who had killed the deceased.
27 Further, 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.
28 The 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
(Page 11)
- 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.
31 There were two matters relating to counsel's conduct which were particularly referred to by the appellant before us, which do not appear to feature in the reasons of Roberts-Smith JA; it is therefore desirable to mention them briefly.
32 A considerable proportion of the appellant's argument before us was devoted to the proposition that counsel's cross-examination of Mr Susta was inadequate. A particular aspect of that inadequacy emphasised by the appellant, was his failure to cross-examine Mr Susta in relation to Susta's evidence that he had seen a person who appeared to be the appellant looking in at the window of the house at Kallaroo. The appellant asserted that, when one looked at one of the photographs which was put in evidence, it was not possible to see out of the window in that photograph, which was taken in daylight. He said that it followed that at night, with no lighting, it would have been impossible for Susta to have seen him, let alone to have recognised him. He further said there were inconsistencies in Susta's evidence about the direction in which he had seen the person he had allegedly observed running away from the house.
33 It is difficult to imagine a less profitable line of cross-examination. As I mentioned to the appellant during the course of argument, examination of the photograph suggests that it probably is possible to see out of the window in daylight. As to the position at night, there was simply no evidence about the nature of the lighting in and around the house, or in the street, or about the degree of ambient light generally. Most importantly, it is undeniable that something caused Susta to leave the house suddenly. It is undeniable that Susta returned after a very brief time. It is conceded by the appellant that he was in fact in the garden near the window. In those circumstances, Susta's evidence was both internally coherent and consistent with the known facts. Cross-examination on this issue would be more likely to bolster Susta's credibility than to weaken it.
34 Finally, 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
(Page 12)
- 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.
(Page 13)
- 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.
Ground 10 - Report of Dr Margolius
36 As reformulated by his Honour, this ground reads:
"The learned trial Judge erred in admitting into evidence the post-mortem report of Dr Margolius as it was not an admissible document."
37 It is important to understand the sequence of events. There is in that respect, a slip in [69] in the reasons of Roberts-Smith JA, which suggests that the prosecutor sought to tender the report at the conclusion of cross-examination.
38 Dr Margolius gave evidence-in-chief, referring to her report in order to do so. Her evidence consisted of a description of the wound to the throat, the significant fractures of the skull, and a description of the majority of the other marks which she observed on the deceased, many of which she characterised as "defensive" type wounds. She also gave evidence of the toxicology results which demonstrated a minimal consumption of alcohol, and no consumption of marijuana, by the deceased.
39 It was towards the conclusion of her examination-in-chief that the State prosecutor sought to tender her post-mortem report. There was then an objection, and argument was deferred until the close of cross-examination. During the course of argument on the objection, Mr Bowden for the appellant, said that his objection was that if the post-mortem report were tendered, it would run the risk of distracting the jury from the witness' oral evidence and also would put before the jury material which had not been contained in that evidence. The State
(Page 14)
- prosecutor submitted that the report should be tendered on the basis that it was a convenient summary, which could be produced to the Court without the need for taking the witness through every word of it. It does not seem to have been suggested by either counsel that there was any material contained in that report which was of significance to either the State or the appellant and which had not been referred to by Dr Margolius in the course of her evidence-in-chief, or explored with her in cross-examination.
40 It should also be noted that there was no objection to the tendering by the State of three diagrams which accompanied Dr Margolius' report. One of those was a drawing of a human brain, upon which was marked the areas of injury found by Dr Margolius. The other two were sketch outlines of a human body, upon which Dr Margolius had marked the location of the various wounds she had observed. They were drawn very roughly to represent their actual size, so that, for example, the wound to the throat extended all the way across the throat, but it does not seem to have been suggested that they were accurately drawn to scale.
41 Roberts-Smith JA referred in his reasons to the provisions of s 79C of the Evidence Act, and before us some argument was directed to that provision. In my view, it is not necessary to consider it. As his Honour noted, it is a facilitative provision which allows evidence to be given by way of production of documents in certain circumstances. However, as I understand the objection which was made at trial, it was not suggested that the document would have been inadmissible in all circumstances. Rather, the objection was one which relied upon the general principle that evidence in a trial is, by and large, to be given orally, and upon the general principle of fairness which requires that evidence should not be given in a way which unduly emphasises some aspect of it or which might have the effect of distracting or confusing a jury.
42 The importance of oral evidence is emphasised in Butera v DPP (Vic) (1987) 164 CLR 180. The circumstances of that case were very different from this, and it is not necessary to set them out. However, the principles are of universal application. In the joint judgment of Mason CJ, Brennan and Deane JJ, at 189 of that decision, appears the following:
"The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness
(Page 15)
- whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence. And there are, of course, logistical and financial obstacles to the provision of general transcripts for each juror. If the general body of evidence is given orally, a written transcript of a part of the evidence available in the jury room tends to give an emphasis and perhaps an undue air of credibility to that part."
43 Their Honours recognised, in the passages following that quoted above, that the provision of written material will on occasion be appropriate and desirable. For example, in Smith v The Queen (1970) 121 CLR 572, to which their Honours referred, a chart was admitted in evidence to explain complicated business transactions, notwithstanding that those transactions could have been described, laboriously, in oral evidence. In that case, the High Court had described the provision of the chart as a "usual and desirable procedure" where necessary to save time or assist comprehension (at 577). Smith v The Queen was referred to also by Dawson J, who agreed with the majority Justices. Although Gaudron J dissented in Butera, her Honour was of the view that evidence in written form could well be of assistance to a jury. Her Honour particularly noted that it might be desirable in some cases to make a transcript of the oral evidence available (at 210 - 211). A transcript of the kind her Honour there discussed would, however, be a reminder of the oral evidence rather than - as this report was, in part - a substitute for it.
44 It can be seen, as a matter of principle, that there are a number of reasons for requiring evidence to be given orally. As a matter of public policy, oral evidence is public while written evidence may not be. That, however, is a consideration which goes to the public interest in open justice, rather than to the fairness of the trial in relation to a particular accused. It is a consideration which might well make the production of a written report, rather than the giving of oral evidence, generally undesirable, but is not a consideration which would lead to the allowing of an appeal.
(Page 16)
45 Where issues of credibility arise, the giving of oral evidence allows a jury to understand and explore those issues properly. It therefore follows that, even where evidence is complex, if questions of credibility of the witness giving that evidence arise, it is desirable that the witness give enough of his or her evidence orally to permit a proper assessment. That will usually be all or most of the evidence. That consideration does not arise in the present case, since Dr Margolius' credibility was not in issue.
46 Even where evidence has been given orally, the provision of that evidence in written form may cause a jury to give it undue weight, where other evidence has not been provided in written form. That consideration also does not arise in the present case. That is because there was no objection to provision to the jury of the three diagrams, which together reproduced all of the relevant injuries to the deceased. As the jury already had a documentary record of those injuries, the injuries would not have been given further emphasis by the provision of the written report.
47 In some cases, where a written report is tendered and not all of the report has been explored in oral evidence, there is a danger that jurors may have regard to those parts which have not been explored in oral evidence and use them to "play detective", or may speculate about them in a manner which is prejudicial. There was no suggestion in the present case that there was anything in the report which the jury could conceivably have used in that way.
48 Finally, the majority in Butera mentions the view that, by generally restricting the jury to consideration of oral evidence, it may be that the jury's discussion of the case will be more open and the exchange of views will be easier than if jurors were given a transcript. It is not necessary in the present case to consider that question. I would, however, note that, particularly as trials become longer, there are problems of concentration and recall associated with oral evidence which may be overcome by the provision of substantially increased written material: see, for example, New Zealand Law Commission Preliminary Paper 37, Vol 2 "Juries in Criminal Trials: A Summary of the Research Findings" (November 1999) at 3.2 - 3.9. In order to overcome those problems, there is an increased tendency on the part of trial Judges to allow counsel to provide a variety of aids to comprehension, and to permit the tender of complex written reports which have been explored in oral evidence. In some jurisdictions, a full transcript of evidence is often made available to juries: see the useful discussion in R v Tichowitsch [2006] QCA 569, per Williams JA at [7] - [17], Keane JA at [52], Philippides J at [90].
(Page 17)
49 Nothing in these reasons is intended to suggest that written material should not be made available to jurors where the trial Judge is satisfied that it will, or may, aid comprehension, and where it will not unduly emphasise some aspects of the evidence or lend them an undue air of credibility. Nothing in these reasons is intended to suggest that transcript should not be made available where the trial Judge considers it appropriate.
50 The general principle remains, however, that evidence should be given in oral rather than written form, and that evidence which has been given in oral form should not also be made available to the jury in written form (leaving aside those cases where the entirety of the transcript is made available) unless there is some good reason to do so and it can be done in a way which avoids prejudice. The report of Dr Margolius should not have been tendered in this case, not because there was a risk of prejudice, but because there was no good reason for its tender. Her evidence was not particularly complex. The diagrams may have been of use as an aid to comprehension, demonstrating physically where the particular injuries to which she referred were located. The diagrams may also have been useful aides-memoire, having regard to the number of injuries. The report, however, would have added nothing to them and nothing to the oral evidence. Because the report was expressed in more technical language, it was less likely to have been understood by the jury than either the oral evidence or the diagrams.
51 However, admission of the report caused no prejudice to the appellant. To the extent that it covered the same ground as the oral evidence and the diagrams, it added nothing by way of credibility or emphasis. To the extent that it contained material which had not been canvassed in oral evidence, it contained nothing relevant and adverse to the appellant. While the ground is made out, it is not a reason to allow the appeal, because no substantial miscarriage of justice has occurred (s 30(4) Criminal Appeals Act 2004 (WA)).
Ground 6 - Juror who knew one of the witnesses
52 Roberts-Smith JA was of the view that this ground of appeal had no reasonable prospect of success. It is my view that the ground is arguable and raises an important issue of principle. However, I am, in the end, of the view that it should fail. It is necessary, however, to consider it in some detail.
53 The statutory background at the time at which the appellant was tried, in March 2005, was as follows. The procedure for empanelling the
(Page 18)
- jury was prescribed in part in the Criminal Code (WA) and in part in the Juries Act 1957 (WA). It has since been altered and is largely to be found in the Criminal Procedure Act 2004 (WA). Aspects of the practice actually followed were somewhat more favourable to the accused than an examination of the legislation might have suggested.
54 As a matter of statute, s 626 of the Criminal Code provided that it was the function of the proper officer of the court (the Clerk of Arraigns) to inform an accused that the persons whose identification numbers were to be called were the jurors to be sworn for his trial, and to inform the accused that if he desired to challenge any of them he must do so before they were sworn. Section 38 of the Juries Act gave to any party at a criminal trial the right to challenge five jurors peremptorily, and provided that a right to challenge a juror must be exercised (in the usual case where the juror read the words of the oath from a card) before the juror began to recite those words. Section 628 of the Criminal Code provided that either the prosecutor or the accused could object to a particular juror on the grounds of lack of qualification or on the ground that the juror was "not indifferent" as between the State and the accused. Those challenges were in addition to peremptory challenges. Section 630 provided that if it became necessary to ascertain the truth of any matter alleged as a cause of a challenge, that fact was to be tried by the jurors already sworn, if more than one, with alternative procedures prescribed if no more than one juror had been sworn. Section 633 of the Code provided that:
"If, after a juror has been sworn, it appears to the court from his own statement that he is not indifferent as between the State … and the accused person, or that for any other reason he ought not to be allowed or required to act as a juror on the trial, the court may, without discharging the whole of the jury, discharge that particular juror, and direct another juror to be sworn in his place."
55 Section 646 permitted the Judge, at the request of the accused and with the consent of the Crown, to discharge a juror who became, in the opinion of the Court, "incapable of continuing to act", and to proceed with the remaining jurors. In practice, that provision was understood to permit a Judge to discharge a juror where a reasonable apprehension of bias arose after swearing, without directing another juror to be sworn.
56 Finally, s 32 of the Juries Act permitted the Judge before whom a jury panel was returnable, to excuse from attendance any person whose name was included in the panel, on the grounds specified in the Third
(Page 19)
- Schedule. Those grounds included "[c]ircumstances of sufficient weight, importance or urgency".
57 As a matter of practice, the empanelment of a jury in the Supreme Court would proceed in this way. Counsel for the accused would usually announce that he or she would exercise the right of challenge, but that counsel had explained to the accused that the accused could also challenge, if he or she wished. The trial Judge would confirm that the accused understood that he or she could, personally, challenge.
58 The trial Judge would invite the prosecutor to read to the jury the names of witnesses proposed to be called, and would advise members of the jury panel that that was done in order that they could seek to be excused if they had any relevant knowledge of any person. The precise words would vary, and I will shortly describe what the trial Judge said in this case. If counsel for an accused desired to mention the names of any witnesses, he or she could do so, but was not required to do so.
59 Individual jurors were then called, by number, from the panel. As each juror was called to take his or her place in the jury box, either the State or the accused might exercise the right of peremptory challenge. The person so challenged would then return to the body of the court and a new number be called to replace that juror. Once the requisite number of jurors had been selected and were seated in the jury box, they would then individually be sworn. As each rose to be sworn, it was open to counsel for the State or for the accused to exercise a right of peremptory challenge at that stage. If a person was challenged at that stage, he or she would return to the body of the court, a new number would be called, and the person having that number would then (if not also challenged) immediately be sworn.
60 Prior to the empanelment procedure, the jury panel would have been shown a video which made it clear that they could seek to be excused if they wished and in addition, the jury panel would have been addressed in open court by the Judge in the way I have already mentioned. It was not unusual for members of the jury panel, as their numbers were called, to stand by the jury box and address the Judge. Most usually, a person would seek to be excused on the basis of some personal inconvenience, but on occasion a person would seek to be excused by reason of some problem in potentially serving as a juror, such as a difficulty in hearing, or an association with an accused or a witness. Even if the Judge did not consider it was appropriate to excuse the juror, counsel for either the State
(Page 20)
- or the accused might often, in those circumstances, exercise the right of peremptory challenge.
61 It seems, both from the history of the right to challenge at common law, and from the legislation I have described, that the primary means of ensuring that the jury was indifferent as between the accused and the State, was the exercise by the accused of either the right of peremptory challenge or of challenge for cause (see Johns v The Queen (1979) 141 CLR 409 at 428 - 429 per Gibbs CJ). Because challenge for cause was "an imperfect instrument" to secure a fair trial (R v Greening [1957] NZLR 906 at 914) and because of the cumbersome nature of the procedure prescribed by s 630 of the Code, the following practice had evolved in this State. If it appeared, prior to a juror being sworn, that there might be some danger of bias, then either counsel for the State or for the accused (depending upon the apparent nature of the possible bias) might peremptorily challenge the juror, or counsel might invite the Judge to excuse the juror from further attendance. The view was taken that the words of the Third Schedule to the Juries Act were sufficiently wide to permit this procedure or that, alternatively, the Judge had an inherent power to excuse the juror in the exercise of his or her responsibility to ensure a fair trial. If there was a very clear risk of bias, the Judge might occasionally exercise that power of his or her own motion, without application being made by counsel. Both counsel at this trial - that is, counsel for the appellant and for the State - were very experienced criminal trial counsel and were familiar with the procedure which I have described. Against that background, I turn to the proceedings at this trial.
62 Simmonds J confirmed with the appellant that he understood that he retained his own right to challenge jurors and confirmed with him that he knew how to do so - by saying "challenge". The State prosecutor then read the names of all the witnesses, 18 of those proposed witnesses being male. His Honour addressed the jury panel in the following terms:
"That was for the purpose of enabling all of you to hear whether there are any names of persons known to you. That is because it is most important that as members of the jury you be in a position to decide impartially in this matter, so that if there were any names familiar to you that would cause you to doubt whether you might be able to hear their testimony in an impartial way or - and this is another way in which you can test it and should test it - whether if anyone else, any other reasonable person were aware of your connection with that witness, they might doubt your capacity to impartially evaluate
(Page 21)
- that evidence, then you should indicate that at the time, if it is the case that your number is called because, as I said, it is most important to the administration to justice that you be in a position to evaluate and that others see that you are in a position to evaluate the evidence to be given in this trial in an impartial way."
63 Twelve numbers were then called from the box containing the numbers of the members of the jury panel. None of those was challenged. None of those, as they came forward, sought to be excused or raised any issues with his Honour. A number of jurors were then sworn. During that process, one person was challenged by the State and was duly replaced from the panel and one was challenged by counsel for the appellant and was replaced from the panel. Juror 440, one of the numbers originally called from the panel, was then asked to take the bible and the following exchange took place:
"THE CLERK OF ARRAIGNS: Please take the - - -
JUROR 440: Your Honour, it's been brought to my attention that I'm actually an acquaintance of one of the witnesses. I wasn't aware of it at the time.
SIMMONDS J: Would you then wish to be excused, applying the test I suggested a short while ago?
JUROR 440: I don't believe it will hinder my judgment - - -
SIMMONDS J: And you have thought about it both ways, both in terms of how you would react but also how someone else would might react who knew all of the circumstances, sort of an independent third person? If you have any doubt on that account, you would need to excuse yourself but if you have no doubt - - -
JUROR 440: I have no doubt. It's been quite a while since we've had any contact but I have known him for a few years now.
SIMMONDS J: Very well.
THE CLERK OF ARRAIGNS: Please take the Bible in your right hand and read the oath out aloud.
(Page 22)
- JUROR 440: I swear by Almighty God to give a true verdict according to the evidence upon the issues to be tried by me."
64 It is to be observed that counsel for the appellant did not seek to challenge juror 440, and did not invite his Honour to either make further inquiry or to excuse the juror. The appellant himself did not challenge. The swearing of that juror was not raised as an issue at any time during the course of the trial.
65 It seems to me that the course which was taken raises a number of issues. I start with the proposition that the existence of a significant connection between a juror and either the accused or any witness whose evidence might in any way be contentious, which might give rise to a reasonable apprehension of lack of impartiality on the part of the juror, would have the consequence that any verdict in which that juror was involved should be quashed. The test of reasonable apprehension of lack of impartiality, on the part of a fair-minded observer, is taken from Webb v The Queen (1994) 181 CLR 41. I do not understand it to be in issue in this case.
66 It is, I think, self-evident that there would be such an apprehension if a juror had any significant connection with a contentious witness. That would be so even if the juror himself or herself was certain that the connection would not affect his or her impartiality, since the insidious quality of bias is such that a person may in good faith believe that they are acting impartially but may nevertheless unconsciously be affected: "I" v The State of Western Australia [2006] WASCA 204 at [14]. In order to assess whether there is a basis for a reasonable apprehension of bias, it is important to know the nature and extent of the association, and when the association took place: "I" v The State of Western Australia at [15]. However, the mechanism for ensuring that no relevant connection exists rests, ultimately, on the good sense and conscience of individual jurors who are now guided in that respect by remarks from the trial Judge. Jurors are not routinely examined, and nor are their backgrounds investigated, in order to search for such possibilities.
67 The question which arises in this case is whether it is now open to the appellant to suggest that, in circumstances where the name of the witness and the nature of the connection were not known, and neither he nor his counsel requested that any further information be obtained, there was a risk of a miscarriage of justice which would require the quashing of his conviction. As I have noted, prior to the juror being sworn, if any issue concerning impartiality arises, the primary responsibility for
(Page 23)
- ensuring that the juror is indifferent as between the State and the accused rests upon the accused and upon counsel. That is evidently the assumption behind s 633 of the Code, which expressly provided for the ability of the court to discharge a juror for lack of indifference " … after a juror has been sworn" (emphasis supplied). Either the appellant or his counsel could have exercised a right of peremptory challenge prior to the swearing of juror 440.
68 There is some authority which might suggest that if the accused, knowing of a possible basis of challenge, fails to challenge a juror before the juror is sworn, then no objection to that juror can be taken. In R v Healey (1965) 109 SJ 700, a jury had been sworn on the trial of the appellant, without challenge. He was charged with breaking and entering the offices of the National Coal Board of which, it appeared, some members of the jury were employees. Lord Parker dismissed the appeal, in part because "[t]he panel of jurors was available from which the defendant could have seen the occupations of the jurors and could have challenged any that were miners" (at 700).
69 In Ras Behari Lal v King-Emperor (1933) 102 LJ (PC) 144, the Privy Council (at 147) said that:
"According to ordinary procedure in criminal trials the accused has a right of challenge, either peremptory or for cause, and it may very well be that if, knowing the alleged defect, he stands by and takes his chance of a verdict he is precluded from thereafter taking the objection."
70 I would not, however, understand that case as requiring an appellate court to disregard an unfairness in the trial merely because counsel had failed to challenge. In the passage immediately preceding that quoted above, the Privy Council referred to Mansell v The Queen (1857) 8 El & Bl 54; 120 ER 20, and to Lord Campbell's observations in that case, which were (at 147):
" … we cannot doubt that there may be cases, as if a juryman were completely deaf, or blind, or afflicted with bodily disease which rendered it impossible to continue in the jury box without danger to his life, or were insane, or drunk, or with his mind so occupied by the impending death of a near relation that he could no duly attend to the evidence, in which, although from there being no counsel employed on either side, or for some other reason, there is no objection made to the juryman being sworn,
(Page 24)
- it would be the duty of the Judge to prevent the scandal and the perversion of justice which would arise from compelling or permitting such a juryman to be sworn, and to join in a verdict on the life or death of a fellow creature."
- Lord Atkin in Ras Behari Lal went on to observe (at 147):
"This duty has later been held to be a continuous duty throughout the trial. It would be remarkable indeed, if what may be 'a scandal and perversion of justice' may be prevented during the trial, but after it has taken effect the Courts are powerless to interfere. Finality is a good thing, but justice is a better."
72 The relevant statutory provision governing this appeal is the Criminal Appeals Act 2004, which provides that the Court of Appeal "must" allow an appeal if in its opinion there was a miscarriage of justice (s 30(3)(c)). In my view, the existence of a connection (or, in this case, a possible connection) between a juror and a witness may be taken into account in determining whether there was a miscarriage of justice. The time at which the connection became apparent and, in cases such as the present, the failure of either the accused or counsel for the accused to challenge the juror or to pursue the matter further, would also be relevant to the question whether there was a miscarriage of justice.
73 If counsel or the accused has not taken issue with a juror being sworn, or continuing on the jury, in circumstances where there may have been a reason to do so, an appellate court should, in my view, consider whether the accused or his or her counsel acted under some mistaken belief (as was apparently the case in R v Greening (supra)). A mistake may be established by affidavit sworn by the appellant or his or her counsel, or may appear if the court considers that there was simply no forensic reason for the course taken by the appellant or his or her counsel.
(Page 25)
74 In the present case, the appellant himself was plainly aware of his right to challenge. That appears from the transcript of the trial. There is no evidence on the issue from counsel, who was, as I have mentioned, a very experienced criminal trial counsel.
75 I do not consider that there was no possible forensic reason for the lack of either a challenge or a request that the Judge enquire further. Only the credibility of Mr Susta was in issue, and the mathematical probability is that the juror was an acquaintance of one of the other 17 males whose names were read out as witnesses. Even if the juror knew Mr Susta, the nature of the issues in the trial were such that counsel may well have formed the view that the defence would stand or fall on the jury's assessment of the appellant himself, and that any weakening of the credibility of Mr Susta, while desirable, was not of very great significance. Finally, there is, it appears, a reasonable and fairly widely held view that those jurors who are prepared to come forward and raise issues concerning the possible risk of prejudice are the very persons who "would be most capable of leaving that prejudice aside when considering the case" (New South Wales Law Reform Commission Report 48, "Criminal Procedure: The Jury in a Criminal Trial", March 1986, par 7.26). Counsel knew, from what this juror had said, that his acquaintanceship with the witness, whoever the witness might have been, had been "quite a while" ago. In those circumstances, he might have considered that this juror, because of his obvious concern for fairness, would be likely to take very seriously his oath and his responsibility to be satisfied beyond reasonable doubt before convicting the appellant.
76 This ground, while arguable, must also fail.
77 The application for review succeeds only to the extent of granting leave in respect of ground 6. The appeal must be dismissed.
Additional proposed ground - psychiatrist's report
78 There is only one further matter which should be mentioned, and that is the psychiatrist's report recently obtained from Dr Westmore by the appellant. The State objects to the Court receiving this report, on the basis that the appellant's assessment by Dr Westmore post-dates the offence by three years. It is submitted that the report is for that reason irrelevant. A report obtained some time after an offence may, in unusual circumstances, be relevant to the issues in an appeal (eg Bentley v The State of Western Australia [2007] WASCA 38). This report in fact adds nothing to the appellant's case. I deal with it in order to demonstrate why that is so.
(Page 26)
79 Although no leave was given to the appellant to add any additional grounds of appeal, and although it was made clear at the hearing of his appeal that a further psychiatric report which he proposed to produce would be relevant for his appeal against sentence only, he has, on 19 December 2006, forwarded to the Court the report and some covering submissions which contain the observation, in relation to that report, that it " ... would be ground 42 on my initial grounds". Ground 42 of his appeal against conviction contains an allegation that the trial Judge erred in failing to direct on the appellant's evidence that he did not recall what he had done between kicking in the bedroom door, and standing over his wife with a "river of blood" coming out of her neck. Roberts-Smith JA dealt with this ground, as it stood, at [206] - [209], in terms with which I agree. It appears that what the appellant now seeks to do is to recast this ground.
80 The thrust of the new ground is, according to the appellant's submissions, that fresh expert evidence is available which shows that another defence was possibly available to the appellant pursuant to the first limb of s 23 of the Code. The appellant refers to a paragraph of the psychiatrist's report which reads as follows:
"There are many possible explanations for his reported memory difficulties. He may have full recollection of these events but be denying them for forensic gain. Secondly, individuals who are involved in events which are highly emotional and of an aggressive type often have memory difficulties for significant aspects of the event. This may be the result of mental mechanisms such as repression, suppression or denial. Sometimes individuals experience brief states of dissociation which can occur when they are extremely angry or highly anxious."
81 In addition, Dr Westmore goes on to note that perpetrators of aggressive acts, as well as victims, may suffer from the psychological effects of their behaviour, which effects can include memory difficulties.
82 However, what the appellant does not quote from Dr Westmore's report is the paragraph beginning "I have considered the question of automatism in this case". Dr Westmore correctly defines that state. He correctly records that there were (at least) two specific and quite discrete acts of aggression committed by the appellant, including striking the deceased with the bat and then cutting her throat with a knife. Dr Westmore concludes that " ... the very different and specific nature of
(Page 27)
- the two different acts excludes in my view the probability that he was suffering from automatism at the time the incident occurred".
83 For completeness, I would add that Dr Westmore went on to consider the possibility of a defence of insanity, and ruled that out also. There is nothing in his report, read as a whole, which is capable of giving rise to a suggestion that the appellant's acts were independent of the exercise of his will. This ground, as recast, must fail.
Appeal against sentence - CACR 76 of 2005
84 Roberts-Smith JA has dealt in detail with all 10 of the appellant's grounds of appeal in relation to sentence. I would agree with all of his Honour's reasons, without repeating them. I would add, however, only three general observations.
85 The first additional observation I would make is that a number of the grounds appear to be concerned with the alleged unsuitability of the deceased as a parent, her alleged previous acts of provocation, and the conclusion that, as a result, the appellant was a "desperate father" (as he describes himself in ground 9). Objectively, there was nothing for him to be "desperate" about. It is true that the deceased had developed an interest in another man, and had entered into a relationship with him. It is clear that the appellant suspected her of being involved in other relationships. That, understandably, caused him to become very angry with her on his own account. Those factors of themselves would not, however (even if all the appellant's suspicions were correct), have made her an unsuitable parent.
86 The only incidents which the appellant has ever been able to describe which gave rise to concerns about her suitability as a parent, are the sorts of inappropriate behaviour engaged in at some time or another by many parents. They included such matters as her having apparently washed out a child's mouth with soap as a punishment for using bad language, slapping another child too hard on one occasion, and a number of incidents of that kind. There do not appear to have been very many such incidents, considering that there were four children. Further, it appears that the appellant himself slapped the children from time to time in a manner which he later regretted sufficiently to apologise to the child in question.
87 So far as his access to the children was concerned, the appellant had seen them regularly up to the date of the deceased's death. Two of them were staying with him on that night, but, instead of remaining at home
(Page 28)
- with them, he chose to go out to harass the deceased and Mr Susta. The learned trial Judge specifically found that there was no sudden provocation by way of the deceased threatening, in a venomous and convincing way, that she would deprive the appellant of future contact with the children. Any suggestion that he acted out of sincere concern for his children is simply implausible.
88 The second general observation I would make is that the learned trial Judge, having had the opportunity to hear the evidence and to observe the appellant, made a number of findings which were adverse to the appellant. He found, as I have noted, that there was no sudden or unexpected provocation. He found that the appellant's feelings of anger, which had been present at least in some form for some months, caused him to do what he did. He plainly found that there was no sudden loss of control. He recorded his impression that the appellant was " ... a man with a capacity for careful calculation and very considerable anger", and that it was that anger which was driving the appellant as he approached the door of the Kallaroo house, knowing that the man who was in it had left.
89 All of those findings were well open to his Honour. There was evidence from a number of witnesses referring to the appellant's apparent anger. His behaviour in dialling 000 a number of times is suggestive of a man attempting to seek some kind of revenge. The objective facts were that he had walked up to the door of the house where his wife, to his knowledge, was the sole adult present, carrying a baseball bat and a knife. Although he had explained the presence of the knife by suggesting that he wished to slash tyres, the baseball bat remains unexplained. His evidence was that he had taken it because he was "very frightened", but what he was frightened of is a complete mystery.
90 In addition to those matters, which were all before his Honour, I would add that the observations which I have been able to make of the appellant, during the course of his oral argument before us, entirely support the view reached by his Honour. It seemed to me that the appellant still does not understand what a very serious thing it is to kill another human being. He remains obsessed with the various shortcomings of his late wife, and the flavour of his submission at times verged on suggesting that he was justified in some way in killing her, even if there had been no sudden provocation as he described in his evidence, on the basis that she had shortcomings as a wife and mother. For example, his affidavit of 14 May 2006 asserts that he lacked "mens rea", not because of the sudden provocation he described at trial, but
(Page 29)
- because of "the taunting and provoking by the deceased by her behaviour and attitude towards me, and later the children".
91 Finally, because the report was not before the learned sentencing Judge, I should note that Dr Westmore's report appears to be consistent with the materials before the learned sentencing Judge, and with the views which his Honour formed. Having had a relatively limited opportunity to review the appellant, Dr Westmore is tentative in some of his conclusions, and a number are presented in the alternative. However, his report certainly recognises the possibility that the appellant is "a controlling man prone to episodes of anger and verbal aggression", although not suffering from any specific psychiatric illness.
92 The only matter in Dr Westmore's report which is definitely favourable to the appellant is the observation that "[a]s a general statement, it would be my view that Mr Vella's risks of re-offending are very low, probably non-existent". However, the reason for that observation is that the events which led up to the death of the deceased had occurred in the context of a long-term relationship, that they ultimately focussed around the four children of that relationship, and if it was accepted that the appellant is an intelligent man (as he clearly is), then his incarceration would be a "powerful learning experience" which should deter him from reoffending in the future. That is, it is suggested that any sensible person would not wish to be incarcerated again. I accept that observation, but with the reservation that it appears to me that the apparently irrational way in which the appellant speaks about his wife and his killing of her, even up to the present day, suggests that, in the unlikely event that he were ever to enter into a long-term relationship, there is at least a possibility that he would be prepared to act in a similar way should the relationship not turn out to his satisfaction. Objectively, given his age and the sentence imposed upon him, that is unlikely. In any event, the conclusion that the appellant was unlikely to offend in the same way in the future was something which was before his Honour. However, he concluded that the circumstances and gravity of the offence nevertheless required the sentence which he imposed, and I would not consider that he was in error in doing so.
93 I would therefore dismiss the application for review, in relation to sentence, also.
94 PULLIN JA: There is an appeal with respect to ground 10 in the conviction appeal and applications in both appeals pursuant to s 61(3) of the Supreme Court Act 1935 (WA) for orders setting aside
(Page 30)
- Roberts-Smith JA's orders refusing the appellant leave to appeal on all other grounds. There was also an application to add an additional ground in the conviction appeal.
95 In Barry v The State of Western Australia [2007] WASCA 12, Steytler P said at [14]:
"In Pezzino v The State of Western Australia [2006] WASCA 131 (at [10]) Wheeler JA suggested that, in a review of this kind, the task of the Court might well be that of evaluating for itself, afresh, the grounds pressed by the appellant. Because nothing turned, in that case, on the distinction between a review of that kind and the task of a court on an appeal, she found it unnecessary to reach any final conclusion in that respect. In the same case Roberts-Smith JA (at [54]) took "the correct principle to be that on a review under r 8 the Court of Appeal is required to make its own assessment of the grounds in accordance with s 27 of the Criminal Appeals Act … '. The third judge, Martin CJ, agreed (at [60]) with everything that had been said by each of the other judges but, because there had been no considered argument on the question of the approach to be taken on an application for review of a refusal of leave, he preferred to leave the question open for another day. While it seems to me that the approach favoured in Pezzinowas that intended by the legislature, it is, in this case also, unnecessary to give further attention to that question. Regardless of whether or not the review is treated as a fresh evaluation of the rejected ground or as an appeal in its stricter sense, the application fails for reasons that I will outline."
96 No submissions were made by the parties about the correct approach to be adopted in review applications and, until the matter is the subject of competent submissions, I would prefer not to decide the matter unless it is necessary to do so. It is not necessary to do so in this case.
97 I agree with all aspects of Wheeler JA's reasons and the orders proposed, save for her Honour's conclusion that Roberts-Smith JA's order refusing leave on ground 6 in the conviction appeal should be set aside and that in lieu an order should be made granting leave. In my opinion, the reasons given by Roberts-Smith JA supported his decision to refuse leave on ground 6, and the fresh evaluation carried out by Wheeler JA (with which I agree) also supports the conclusion that the ground had no reasonable prospects of success.
(Page 31)
98 BUSS JA: The material facts and the relevant issues are set out in the reasons for judgment of Wheeler JA.
Appeal against conviction
99 I agree with Wheeler JA, for the reasons she gives, that:
(a) the application to review the decision of Roberts-Smith JA in relation to the appeal against conviction should succeed only to the extent of granting leave to appeal in respect of ground 6;
(b) the additional proposed ground, based on Dr Westmore's report, is without merit; and
(c) the appeal against conviction should be dismissed.
Appeal against sentence
100 In my opinion, Roberts-Smith JA's decision:
(a) to refuse leave to appeal against sentence in respect of each of the appellant's grounds; and
(b) to dismiss the appeal against sentence,
- was correct, for the reasons given by his Honour.
101 Dr Westmore said in his report dated 9 December 2006:
"As a general statement, it would be my view that Mr Vella's risks of reoffending are very low, probably non-existent. The events which led up to the death of Mr Vella's wife were very specific in that they occurred in the context of a long term relationship he had with his wife and that the events ultimately focused around his four children and his access to those children. If we accept that Mr Vella is an intelligent man with some capacity to learn from his behaviour then the legal proceedings themselves, his incarceration and the stress of that and the separation from his children, would all be powerful learning experiences which in turn should act as a negative deterrent to him reoffending in a similar way in the future.
If it is correct that Mr Vella is a controlling man prone to episodes of anger and verbal aggression, then it would be appropriate in my view for him to continue to receive
(Page 32)
- counselling to help him address these various difficulties which ultimately probably arise from his personality rather than from a specific psychiatric illness."
- Even if Dr Westmore's opinion, expressed "as a general statement", that the appellant's "risks of reoffending are very low, probably non-existent" is accurate, I would not grant the appellant leave to appeal against sentence. The learned sentencing Judge imposed a sentence which was within the appropriate sentencing range, even if the appellant's "risks of reoffending are very low or probably non-existent". Nothing else in Dr Westmore's report persuades me that there is any reasonable basis for contending that the sentence in question is manifestly excessive or should, for any other reason, be set aside.
102 The application to review the decision of Roberts-Smith JA in relation to the appeal against sentence should be dismissed.
16
16
5