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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: VELLA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 177

CORAM: ROBERTS-SMITH JA

HEARD: 1 AUGUST 2006

DELIVERED : 1 SEPTEMBER 2006

FILE NO/S: CACR 36 of 2005
CACR 76 of 2005

BETWEEN: JOSEPH BERNARD VELLA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :SIMMONDS J
File No  :INS 100 of 2004

Catchwords:

Appeal - Criminal law and procedure - Leave to appeal against conviction for wilful murder - Selfrepresented appellant - 42 grounds of appeal - Conduct of trial by defence counsel - Whether miscarriage of justice - Prosecutor "stopping" evidence - Lies - Whether misdirection - Provocation - Whether misdirection - Whether evidence of "previous history of provocation" wrongly excluded - Anger - Relevance to provocation

Appeal - Criminal law and procedure - Leave to appeal against sentence - Sentence of strict security life imprisonment - Order that appellant serve 20 years before eligibility for parole - Whether manifestly excessive - Whether specific errors made in sentencing - 10 grounds of appeal

Criminal law and procedure - Appeal - Request by appellant that DPP produce copy of correspondence - Claim of legal professional privilege by DPP - Whether available

Legislation:

Evidence Act 1906 (WA), s 79C

Result:

Application for leave to appeal conviction granted in part
Leave to appeal sentence refused
Appeal against sentence dismissed pursuant to r 43(2)(g)(i) Supreme Court (Court of Appeal) Rules 2005 (WA)

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms J D Whitbread

Solicitors:

Appellant: In person
Respondent: State Director of Public Prosecutions

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

Ali v The Queen (2005) 79 ALJR 662
Attorney‑General's Reference (No 3 of 1979) (1979) 69 Cr App Rep 411
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
Dhanhoa v The Queen (2003) 217 CLR 1
D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755
Edwards v The Queen (1993) 178 CLR 193
Errey v The Queen [2001] WASCA 75
Griffin v The Queen [2001] WASCA 11
Hetherington v Brooks [1963] SASR 321
McSwan v The State of Western Australia [2005] WASCA 128
Nudd v The Queen (2006) 80 ALJR 614
Paterson v The Queen (2004) 28 WAR 230
Penney v The Queen (1998) 72 ALJR 1316
Prestage & Shearing v The Queen [1976] Tas SR 16
R v Alexander [1975] VR 741
R v Armstrong (1983) 35 SASR 356
R v Birks (1990) 19 NSWLR 677
R v Booth [1983] 1 VR 39
R v Bryant & Dixon (1946) 31 Cr App Rep 146
R v Bunting (2002) 84 SASR 378
R v Harrison [1966] VR 72
R v Kaddour (2005) 156 A Crim R 11
R v Lucas [1981] QB 720
R v Olasiuk (1973) 6 SASR 255
Roberts v The Queen (2003) 28 WAR 381
TKWJ v The Queen (2002) 212 CLR 124
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647
Turner v The Queen [2004] WASCA 127
Vella v The State of Western Australia [2006] WASCA 129
Vella v The State of Western Australia [2006] WASCA 30
Webb v The Queen (1994) 181 CLR 41

Case(s) also cited:

Allwood v The Queen (1975) 18 A Crim R 120
Beamish v The Queen [2005] WASCA 62
Broadhurst v The Queen [1964] AC 441
Bryer v The Queen (1994) 75 A Crim R 456
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Cushing v The Queen [1977] WAR 7
De Gruchy v The Queen (2002) 211 CLR 85
Director of Public Prosecutions v Camplin [1978] AC 705
Easterday v The Queen (2003) 143 A Crim R 154
Gallagher v The Queen (1986) 160 CLR 392
Hogue v The State of Western Australia [2005] WASCA 102
Johnson v The Queen (1976) 136 CLR 619
King v The Queen (1986) 161 CLR 423
Mallard v The Queen (2003) 28 WAR 1
Martin v Osborne (1936) 55 CLR 367
Masciantonio v The Queen (1995) 183 CLR 58
Maxwell v Director of Public Prosecutions [1935] AC 309
McCreed v The Queen (2003) 27 WAR 554
Meko v The Queen (2004) 146 A Crim R 131
Mickelberg v The Queen (1989) 167 CLR 259
Murray v The Queen (2002) 211 CLR 193
Nicholls v The Queen (2005) 219 CLR 196
Parker v The Queen (1963) 111 CLR 610
Plomp v The Queen (1963) 110 CLR 234
R v Anderson [1972] 1 QB 304
R v Attfield (1961) 45 Cr App Rep 309
R v Baillie-Smith (1977) 64 Cr App Rep 76
R v Banks (1917) 12 Cr App Rep 74
R v Bathgate (1946) 46 SR (NSW) 281
R v Bliss (1987) 84 Cr App Rep 1
R v Bradbury [1969] 2 QB 471
R v Brown [1994] 1 WLR 1599
R v Burns (1973) 58 Cr App Rep 364
R v Ching (1976) 63 Cr App Rep 7
R v Curr (1967) 51 Cr App Rep 113
R v Davies [1975] 2 WLR 586
R v Dolan (1969) 53 Cr App Rep 556
R v Dolan (1976) 62 Cr App Rep 36
R v Edwards (1983) 77 Cr App Rep 5
R v Eidinow (1932) 23 Cr App Rep 145
R v Falconer (1990) 171 CLR 30
R v Foley [2000] 1 Qd R 290
R v Gibson (1983) 77 Cr App Rep 151
R v Gray (1974) 58 Cr App Rep 177
R v Groom (1976) 62 Cr App Rep 242
R v Knightley (1971) 55 Cr App Rep 390
R v Krausz (1973) 57 Cr App Rep 466
R v Lamb (1874) 59 Cr App Rep 196
R v Lawrence [2002] 2 Qd R 400
R v LSS [2000] 1 Qd R 546
R v Lucas [1973] VR 693
R v McFadden (1976) 62 Cr App Rep 187
R v Moghal (1977) 65 Cr App Rep 56
R v Phillips (1936) 26 Cr App Rep 17
R v Puddick (1865) 4 F & F 497
R v R(D) [1996] 2 SCR 291
R v Rees (1977) 64 Cr App Rep 155
R v Roberts [1936] 1 All ER 23
R v Singh (2003) 86 SASR 473
R v Smith [2000] UKHL 49
R v Stripp (1979) 69 Cr App Rep 318
R v Sugarman (1935) 25 Cr App Rep 109
R v Thorpe (1974) 59 Cr App Rep 295
R v Vickers [1972] Crim LR 101
R v Ward [1993] 2 All ER 577
R v Warner (1971) 55 Cr App Rep 93
R v Wilkins [1975] 2 All ER 734
R v Ye Zhang [2000] NSWSC 1099
Roche v The Queen [1987] WAR 278
Stingel v The Queen (1990) 171 CLR 312
Tahche v Abboud [2002] VSC 42
Thorpe (1974) 59 Cr App Rep 295
Van Den Hoek v The Queen (1986) 161 CLR 158
Weiss v The Queen (2005) 80 ALJR 444
Wooding v The Queen (1979) 70 Cr App Rep 256

ROBERTS-SMITH JA: On 11 March 2005 the appellant was convicted of the wilful murder of his then estranged wife, Mrs Ruth Vella, on 29 December 2003.
On 30 March 2005 he filed a notice of appeal against conviction. That contained one ground which related to provocation.
On 22 April 2005 the appellant was sentenced for the wilful murder, a further offence of assault occasioning bodily harm and two offences of breaching a violence restraining order.
He filed an application for leave to appeal against sentence on 12 May 2005.
The Appellant's Case was filed on 17 November 2005. Since that time (as indeed prior to it), the appellant has made multiple prolix applications seeking production of many documents and other items, the production of witnesses to be interviewed and other matters. He also filed an application for leave to appeal (CACR 216 of 2005 in respect of the assault conviction). Each application was also attended by multiple ancillary applications of various sorts. On 25 January 2005 I refused the appellant leave to appeal against his conviction for assault occasioning bodily harm to his wife, and accordingly ordered that appeal be dismissed (Vella v The State of Western Australia [2006] WASCA 30). I also made a number of other orders on various outstanding applications. The appellant sought review of those orders. The review was dealt with by the Court of Appeal on 20 April 2006, and on 28 June 2006 the Court published its judgment dismissing the application for review (Vella v The State of Western Australia [2006] WASCA 129).
The appellant's extant applications for leave to appeal are accordingly CACR 36 of 2005, which is against his conviction for the wilful murder of his wife, and CACR 76 of 2005 which is against the sentence of life imprisonment imposed upon him.
On 1 December 2005 I reserved the question of leave to appeal in both matters for the time being, and ordered the respondent be required to file and serve the Respondent's Answer. The progress of these matters was then overtaken by further requests and applications made by the appellant.
The applications for leave to appeal and a number of other requests, applications and issues raised by the appellant were listed for hearing before me on 1 August 2006, on which occasion he continued to represent himself, and Ms Whitbread appeared for the respondent. On that date I dealt with all but one of the then outstanding matters. I heard submissions from the appellant and Ms Whitbread on the applications for leave to appeal, but reserved my decision. The other matter reserved concerned a request that the Director of Public Prosecutions provide to the appellant copies of correspondence. It is not entirely clear what particular items of correspondence are being referred to, but for present purposes I approach the matter on the basis there are two categories of correspondence, that the first is correspondence between Mr Bowden (the appellant's trial counsel) and the DPP and that the second is correspondence apparently contained in a file seized by police from Mrs Vella's residence and being between her and her then solicitor, Mr Chris Baker.
On 25 January 2006 Mr Mactaggart said (t/s 31 ‑ 32) that the DPP did not have that file and he was uncertain whether or not the police had seized such a file, but if they had, Mr Baker ought to be given an opportunity to make submissions about it because "… it's his file, obviously". In the circumstances described, I would have thought the file was that of Mrs Vella, not Mr Baker, and her claim of privilege in respect of it would be maintainable by the representative of her estate. The content of the file apparently relates to proceedings in the Family Court between the appellant and his then estranged wife.
At a hearing on 25 January 2006, Mr Mactaggart, who then appeared for the respondent, said a claim for legal professional privilege was being maintained in respect of the correspondence. He relied on the authority of R v Bunting (2002) 84 SASR 378.
As Mr Mactaggart said the DPP did not have the file of Mrs Vella's correspondence with Mr Baker, I take it that claim is being made by the DPP in respect of correspondence between Mr Bowden as the appellant's then legal representative and the DPP. It may be shortly disposed of. That correspondence was either to or from the appellant's legal representative, acting on his behalf. The DPP has no claim of privilege in it as against the appellant, although he may have such a claim against other persons. Likewise, the appellant would no doubt be entitled to maintain a claim of legal professional privilege in that correspondence as against third parties, but not against the Director. If correspondence of this description is being sought by the appellant, he would presumably be able to get it from Mr Bowden. Alternatively, if that were not possible for some reason and he were to seek it from the DPP, production of it could not properly be refused on the basis of any claim for legal professional privilege. Bunting has no application to this category of correspondence.
As to correspondence in the second category, I note that at the hearing before me on 1 August 2006, Mr Vella said he was not pursuing that. It is accordingly not necessary for me to deal with it further.
I turn to the Appellant's Case in relation to the application for leave to appeal against conviction.
The appellant has set out 42 grounds in CACR 36 of 2005. They consist of general assertions, expressed vaguely, lacking specificity and giving no or inadequate particulars. In some instances it is possible to gain some idea from Mr Vella's written submissions what it is he seeks to complain about. In other instances his submissions do not allow of any appreciation of that. Some better understanding is possible from the appellant's oral elaboration of his ground and submissions made on 1 August 2006.
The grounds of appeal as set out by the appellant are:
"1.There was a miscarriage of Justice in that New\Fresh evidence was not presented and adduced diligently by defence council. Error of fact
2.There was a miscarriage of Justice in that defence council [sic] did not cross examine diligently on inconsistent statements and perjury: Error of fact and law
3.There was a miscarriage of Justice by the defence council [sic] in not calling certain witnesses I asked him to call. Lawyers not asking a question unless they know the answer is not always the best alternative. Error of fact
4.There was a miscarriage of Justice by defence council [sic] in not gathering evidence, presenting further evidence and getting certain evidence which I had asked for. New Fresh evidence. Error of fact.
5.There was a miscarriage of Justice by defence council [sic] asking the wrong questions. of the wrong witnesses. Lack of preparation. Error of fact
6.The learned Judge erred in allowing a juror to be sworn who knew one of the witnesses. Error of law.
7.The learned Judge erred in allowing the improper questioning by the prosecutor on lies: Error on Rules, Fact and Law
8.The learned Judge erred in stopping evidence being given. (Rebecca Berrys [sic] letter) Error of law
9.The learned judge erred in allowing hearsay evidence. Error of law.
10.The learned Judge erred and was biased in his decision to allow the state [sic] (Karen Margolius give her evidence and admit all the documents) and deny the defence the same with R Berry's letter to which she swore that it was true. Error of fact and law
11.The learned Judge erred in allowing evidence whose prejudiced value far outweighed it's probative value. Error of law and fact
12.The learned Judge erred in misdirecting on facts and circumstantial evidence. Error of fact and law.
13.The learned Judge erred in misdirecting on lies. Error of fact.
14.The learned Judge erred in directing properly on the onus of proof. Error of fact and law.
15.The learned Judge erred in properly directing the Jury to events occurring in the public gallery Error of fact and rules.
16.The learned Judge erred in directing jury to ignore inferences and evidence favourable to defence. Error of law.
17.The learned Judge misdirected as to requisite intent. Error of fact and law
18.The learned Judge misdirected on provocation Error of fact and law.
19.The learned Judge did not direct properly on provocation Error of fact and law
20.The learned Judge misdirected on previous acts of provocation by not directing on them Error of fact
21.The learned Judge erred by wrongfully excluding evidence. Error of Law.
22.The learned Judge erred by allowing the admission of Margolius' charts of the back and front with bruises not proven to be by accused. Error of fact Prejudice and bias.
23.The learned Judge erred in allowing perjury to occur and did not direct on it Error of law and fact.
24.The learned Judge misdirected on the 'ordinary man' Error of fact and law.
25.The learned Judge erred in not directing on previous history of provocation Error of fact
26.The learned judge [sic] erred in directing on provocation and confusing the issue by bringing the son in the bedroom. Error of law and fact.
27.The learned Judge erred in properly directing on provocation. Error of law
28.The learned Judge misdirected the jury re the CD. Error of fact
29.The learned Judge failed to direct on the accused's motive. To gather evidence to take children away from what I deemed to be a unhealthy environment for children to be raised in. Get custody of children. (Error of Fact)
30.The learned Judge erred in not directing on anger Error of law.
31.The learned Judge erred in directing on demeanour Error of fact.
32.The learned Judge erred in failing to refer to previous acts of provocation Error of fact.
33.There was a miscarriage of Justice by the Prosecutor in stopping and trying to stop evidence favourable to accused to be heard thus depriving the jury of an insight into the deceased's unsuitability as parent to the children. Error of law and fact.
34.There was a miscarriage of Justice by the prosecutor in breaking the Prosecutor Code of conduct for a fair trial. Struggling to stop any evidence favourable to accused re character and behaviour of deceased, his cross examination was 60% fact finding and 40% character assassination contravenes international human rights. Error of law and fact.
35.There was a miscarriage of Justice by the prosecutor in making allegations which he did not prove. Error of law and fact
36.There was a miscarriage of Justice by the prosecutor in 'coaching' witness. Error of law and fact.
37.There was a miscarriage of Justice by the police in not gathering evidence properly Camera photos. Error of fact. Camera was at 5 Gwedue Court and I had taken 4 photos. Vince Nippierd remembers packing it. Error of law
38.There was a miscarriage of justice by the way the prosecution cross examined the accused. Error of law.
39.There was a miscarriage of Justice by the prosecutor in stopping evidence about the background to all this. Error of law and fact.
40.There was a miscarriage of Justice by the police by giving away evidence which was helpful to the accused. Brian's letters Error of fact and law.
41.There was a miscarriage of Justice in that the primary court's decision is against the weight of evidence and cannot be supported having regard to the evidence. Error of fact
42.There was a miscarriage of Justice in that the learned Judge did not direct on the fact that at the time I had no recollection of what I was doing. Error of law."
At the hearing on 1 August 2006 the appellant agreed that his 42 grounds of appeal could be subsumed under the following eight generic grounds:
1.The appellant's counsel at trial conducted his case so inadequately as to lead to a miscarriage of justice (grounds 1, 2, 3, 4 and 5).
2.The trial Judge erred in law by allowing a jury to be sworn who knew one of the witnesses (ground 6).
3.The trial Judge made errors of law in either wrongfully allowing or wrongfully excluding evidence (grounds 7, 8, 9, 10, 11, 21 and 22).
4.The trial Judge erred in law by giving erroneous directions to the jury, or failing to give directions which were required (grounds 12 ‑ 20 inclusive, grounds 23 ‑ 27 inclusive, grounds 29 ‑ 32 inclusive and ground 42).
5.The trial Judge erred in fact by misdirecting the jury about the evidence (ground 28).
6.The conduct of the prosecution resulted in a miscarriage of justice (grounds 33 ‑ 36 inclusive and grounds 38 and 39).
7.Failure by the police to obtain or retain relevant evidence resulted in a miscarriage of justice (grounds 37 and 40).
8.The verdict should be set aside because it is unreasonable or cannot be supported having regard to the evidence (ground 41).
I shall return to these below, but in the meantime need to consider each of the appellant's grounds as he has framed them, as explained or supplemented by his written or oral submissions.
The first five grounds go to a complaint by the appellant that the way in which his counsel conducted his case resulted in a miscarriage of justice. The appellant's proposition was and is that he was not guilty of wilful murder or murder of his wife because she provoked him. He gave evidence at the trial. He said then that although he stabbed his wife to death, he had no intention to kill and could recall nothing of what happened after an acrimonious exchange between him and his wife.
The issues of intent and provocation were the critical issues in the appellant's trial.
Expressed in very summary form, the appellant says he was upset with, and concerned about, his wife's behaviour with other men and the witness Mr Susta in particular. He says she was unfaithful to him and was having an affair with Mr Susta. He says her activities made her an unfit mother for their children, and as a result of them she neglected her responsibilities as wife and mother. He says she was planning on leaving him and that he later found out from someone else that she had told that person she was trying to provoke him into assaulting her, so she would have an excuse to leave. There is much more to what he says, but that is the gist.

Ground 1- Evidence not presented and adduced diligently

As I understand the appellant's written and oral submissions (see eg [1](a) and (b) of his written submissions) the evidence which he would seek to rely upon on appeal which he says his trial counsel failed to investigate and then adduce or use at trial, is evidence from a number of witnesses who he says would testify that the appellant's wife behaved flirtatiously or licentiously at the Glengarry Tavern, where she was employed as a bar waitress. He says he had been concerned about her behaviour as going to her suitability to "parent morally".
I note these witnesses were the Manager, Mr C R Morris, Mrs Joan Forlonge, Mrs Diane Talbot, Mr Michael Cornell, Mrs Kirsten Marie, Mr Vince Nippierd and Mrs Rebecca Berry. All these witnesses were in fact called at trial. The point then is that the appellant's counsel did not ask them about these matters - or at least not to the appellant's satisfaction.
There are two limbs to this ground. The first is that his counsel "did not gather evidence diligently in relation to Mrs Vella's behaviour" at the tavern. The second is that counsel did not cross‑examine certain witnesses about his wife's behaviour at the tavern. This also includes what the appellant says would be observations by them indicating that she was having an affair or was in a relationship with Mr Susta (the witness who was with her the night she was killed).
There would be, of course, a very real question whether the behaviour the appellant ascribes to his wife, was capable of constituting provocation for the purposes of s 281 of the Criminal Code, but that question aside, unless he was present at the tavern (or anywhere else where he says she behaved promiscuously) evidence from other people of what her actual behaviour was, was simply irrelevant. For the purposes of s 281, provocation must be something done to, or (at the very least) in the presence of the accused. Being irrelevant, the evidence would have been inadmissible at the appellant's trial. Furthermore, I am unable to see any forensic purpose or any way in which that information could have been used for the purposes of cross‑examination at the trial. These things being so, it could not properly be said the fact the appellant's trial counsel did not "gather [the] evidence diligently" nor ask questions about it, resulted in a miscarriage of justice. The appellant's ground 1 has no reasonable prospect of succeeding on appeal. I would accordingly refuse leave to appeal on that ground.

Ground 2 - Failure to cross‑examine diligently

Again, this is really one aspect, or a particular, of the appellant's complaint about Mr Bowden's conduct of the trial. The transcript and other references given in support of it are not capable of demonstrating what the appellant asserts. Most of what he asserts to be conflicts or lies or perjury, are not necessarily conflicts at all. For example he refers to the evidence of the forensic pathologist, Dr Karin Margolius. He contends there were contradictions in her evidence. He draws attention to her cross‑examination at t/s 158:
"All right. Then as far as the mark shown at the top of the skull, it's your evidence, as I understand it, that that is consistent with a separate blow?---Just going back to that, there are four blows to the head.
Yes?---There are four blows. I can see at least three. Maybe that one is a fourth.
So as far as the blows to the head or the skull region is concerned your evidence, as I understand it, is that it's three, possibly four. Is that correct?---There's definitely four separate externally.
Yes?---Looking at the bony ones, I could say that there's at least, one, two and three, possibly four.
And as far as those injuries to the skull is concerned, as I understand your evidence, they are potentially fatal injuries by themselves?---Correct.
You then have gone on to describe the wound across the throat?---That's correct.
And again you've described that as obviously a potentially fatal injury?---In itself, yes.
Are you able to say, or is it impossible to say whether or not the blows to the skull in fact killed the deceased? Are you able to say that or not?---What I can say is that, ignoring the neck wound, they were potentially fatal and, untreated, she would have died from them; so at the very least she was obtunded in a way and starting to die.
All right. But are you able to say whether or not those blows to the skull in fact killed her?---Without ‑ ‑ ‑
Without being also ‑ ‑ ‑?---If she never had that?
Yes?---She would have died from those."
The appellant specifically complains about the questions and answers underlined and says the answers are conflicting. They clearly are not. There is simply no point to be made about those questions and answers in support of a claim defence counsel's conduct caused a miscarriage of justice.
The appellant also draws attention to the cross‑examination at t/s 159:
"Yes, all right, but are you able to say whether she was alive or dead at the time that the throat was cut?---No ‑ yes, she - as I say, she was still alive but going downhill.
And as far as the injuries - and again I'm referring to the diagram of injuries to the front of the body. You have described a number of bruises to the right and to the left of the legs?---That's right.
And are you able to say whether or not they also were caused by the instrument that we have seen, or are you simply not able to tell us?---All I - there is no pattern to them. So if something impacted on it, I can't tell you what it is.
Because, as I understand, what you're saying is that a blow struck with this particular implement would show quite a distinct patterned mark?---It doesn't have to. The way it comes down on the body, depending on whether it's a bony prominence, whether the skin's taught or lax, it will just. give you an impact site, but in an area where it actually gives you a patterned one - a patterned bruise, it gives me an idea as to the instrument.
So as far as those bruises to the right and to the left legs are concerned, you're not able to say in fact how they were caused?‑‑‑No. I could just say it's some blunt instrument.
And bruising, as I understand it, is difficult to age?---That's correct.
As far as the yellow bruise that you've described, that indicates that is an older injury. Is that correct?---That's the one and - yes.
As far as the remaining bruises are concerned, you're not able to say anything more definitive than they are recent injuries?---That's correct.
And when you refer to recent, what do we describe as a recent injury? Are we looking at six hours, 12 hours, 24 hours?---I'm working on six hours.
Within six hours? ---Yes."
The appellant says the second underlined answer contradicts the third. It does not. The point may be one for comment to the jury, but it is not a contradiction. In any event, those questions and answers likewise do not afford any basis for complaint about counsel conduct of the cross‑examination causing or contributing to a miscarriage of justice.
The remaining propositions put by the appellant at [2](b) ‑ (g) inclusive are merely arguments that the jury should have taken a particular view of the evidence.
As ground 2 has been "particularised" in the appellant's submissions, it does not have a reasonable prospect of success on appeal. I would refuse leave to appeal in respect of it.

Ground 3 - Defence counsel failing to call certain witnesses

As explained by the appellant, this is a repetition of his ground 2, except there were other witnesses he would also have wished to call to testify about his wife's conduct. He named only two, Mr Barry O'Shea and Mrs Debra Gould, but says no more about the evidence they would have been able to give other than that they "would have explained" his wife's behaviour. As elaborated, this ground has no reasonable prospect of succeeding on appeal and I would refuse leave to appeal on it.

Ground 4 - Defence not gathering evidence

This ground is repetitive of the previous two grounds. I would refuse leave to appeal for the same reasons.

Ground 5 - Defence counsel asking wrong questions of wrong witnesses - lack of preparation

In his submissions the appellant makes various assertions such as his counsel did not prepare himself, that his handling of the case was "very substandard" because the appellant asked him for certain evidence and witnesses and he never bothered, that the appellant had many further questions he wanted asked of witnesses than counsel put to them, and that when the prosecutor was cross‑examining the appellant "and breaking each rule and law he could" his lawyer did not object. There were other complaints, but these are illustrative.
The notion of miscarriage of justice flowing from the conduct, omissions or incompetence of an accused's counsel at trial has been the subject of consideration by the High Court in recent times, notably in TKWJ v The Queen (2002) 212 CLR 124; Ali v The Queen (2005) 79 ALJR 662, D'Orta-Ekenaike v Victorian Legal Aid (2005) 79 ALJR 755 and Nudd v The Queen (2006) 80 ALJR 614 (and see also R v Armstrong (1983) 35 SASR 356 and McSwan v The State of Western Australia [2005] WASCA 128).
What must be shown is that counsel's failure led to a miscarriage of justice. That may be because the evidence before the Appeal Court shows the appellant to be innocent, or at least instils in the court such a doubt about his guilt that the verdict of guilty should not be allowed to stand. Alternatively, it may be demonstrated that as a result of the default the appellant has not had a fair trial. There the outcome may turn on whether the prosecution case was so strong there can be no doubt of the appellant's guilt - however that will not be so if the default deprives the appellate court of the capacity justly to assess the strength of the case against the appellant (Nudd (supra) per Gleeson CJ at [6] ‑ [7]).
The authorities make it clear counsel has a wide discretion in the conduct of their client's case, and the client will ordinarily be bound by that. "Second guessing" counsel's forensic decisions or conduct once the trial is over is not uncommon by disappointed accused persons. That different strategies may have been employed or other decisions made are not considerations which of themselves give rise to a proper ground of appeal (R v Birks (1990) 19 NSWLR 677 per Gleeson CJ at 684; D'Orta-Ekenaike v Victorian Legal Aid (supra) at [196]).
What the appellant has advanced before me in support of his first five grounds does not reveal any more to his concerns than that. I would refuse leave in respect of ground 5.

Ground 6 - Juror who knew one of the witnesses

The practice in this State is that the empanelment of the jurors is not transcribed. When this ground was first advanced by the appellant I ordered a transcript from the tapes. That was subsequently made and a confidential transcript provided. Having read it, on 25 January 2006 I ordered the transcript be released to the file and a copy sent to the appellant and the respondent.
The empanelment of the jury in the appellant's trial took place on 8 March 2005. The statutory procedure is for the jurors to be referred to by number not by name.
In this instance, juror no 440 was the fifth juror called. After 12 jurors had been called, the Clerk of Arraigns commenced to swear them. When it came to the turn of juror 440, the following occurred (Conf t/s 4):
"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:   1 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.
JUROR 440:   I swear by Almighty God to give a true verdict according to the evidence upon the issues to be tried by me."
The "test" which his Honour referred to had been included in prefatory directions he made to the jury panel after the State prosecutor had read out the names of the prosecution witnesses. His Honour then said (t/s 13):
"SIMMONDS J: Very well. 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 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. Thank you very much. We now proceed to the empanelment process."
That direction was in accordance with authority. The test for determining whether or not some irregularity with the jury requires the jury (or juror) to be discharged, or whether (on an appeal) it demonstrates a miscarriage of justice, was propounded by Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41 at 53:
"It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror, or in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair‑minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
The question is whether a fair‑minded and informed member of the public might think there is a reasonable possibility that the juror was, or may have been, infected with bias and that he or she was not indifferent between the State and the appellant and had a determination to bring in a verdict against the appellant no matter what the evidence (R v Booth [1983] 1 VR 39; (1982) A Crim R 4; see also R v Kaddour (2005) 156 A Crim R 11).
Clearly the juror felt there was no impediment to him or her returning a verdict in accordance with their oath. The appellant does not advance anything to show that there was a miscarriage of justice on this account. This ground has no reasonable prospect of succeeding on appeal and I would refuse leave to appeal in respect of it.

Ground 7 - Improper questions by prosecutor

The appellant asserts the Judge should have "admonished" the State prosecutor because he was constantly and repeatedly discrediting the appellant without proving anything relevant. In his oral submissions on 1 August 2006 the appellant argued that the Judge erred in allowing improper questioning by the prosecutor on lies. He said (t/s 122):
"Mr Mactaggart opened on lies and accused me of telling lies when I wasn't even lying and made a lot of allegations about lies."
It is a perfectly legitimate and normal forensic approach for a prosecutor to seek to discredit an accused's evidence where that evidence is in conflict with or seeks to refute the prosecution case. Indeed, in those circumstances, such an approach is both necessary and inevitable. Likewise, where the prosecution is contending that an accused ought not to be believed on his oath because he has told lies in evidence or on some other occasion, it is legitimate to put the matter in that way. In this case, however, the prosecution alleged certain lies as part of the circumstances of the offence. So it was that in opening the prosecution case at trial, the State prosecutor, Mr Mactaggart, said (t/s 43):
"What the accused did before attacking his wife speaks wonders and gives you an insight into the measure and extent of the ill feeling that he had developed for his estranged wife. Shortly at about, on the prosecution's case, 10 to 1 in the morning he, the accused, rang the triple zero emergency line that we have probably all heard about, and that's accessed, you will hear and which you would know as a matter of commonsense, in matters of extraordinary emergency.
But the accused thought he would ring it for this reason: he rang up and advised the police officer or officer who was manning at least one of the lines that he had heard a lot of screaming from 14 St Ives Loop and he added for good measure he thought they, the people in the house, which could only have been referring to his late wife and her companion, were smoking marijuana, clearly intending to give the operator the idea that something of a sinister overtone was happening in the house. None of that was true, and on the prosecution's case the accused was lying through his teeth.
He was told to get off the triple zero line but not to hang up, but he did so but rang up about 20 minutes later and again said, 'I just passed in front of the house and they're in there smoking cannabis or marijuana.' One of the officers said, 'What, can you smell it, can you?' and the accused said, 'And heaps,' or something like that, and he said it was really strong.
The accused made yet another in this series of phone calls, Mr Foreperson and ladies and gentlemen of the jury, and by this stage somebody had cottoned on, given the nature of the resources the police have to determine who it is using a mobile phone, or whatever, and one of the officers said, 'That's not Mr Vella, is it?' and he said, 'No,' it wasn't even though it was, but reiterated that he could still smell the strong smell of marijuana coming out of the house.
So on the prosecution's case, ladies and gentlemen, the accused man's ill feeling towards his estranged wife had developed to such an extent that he was prepared on the prosecution case to tell what was really a string of pathetic lies to those officers monitoring the triple zero line early that morning, and on the prosecution's case these were the actions of a rational man well and truly in control of his actions."
These alleged lies were factual matters going to the commission of the offence as part of it, and as tending to prove the appellant's state of mind and that his actions were the deliberate actions of a rational (but obsessed) man. For him to object to reference to them in opening, and to being cross‑examined on them, because he maintained they were not lies, does not raise a proper point for appeal.
In Dhanhoa v The Queen (2003) 217 CLR 1 at 12 [33] ‑ [34], Gleeson CJ and Hayne J held that:
[33] The facts of the case are quite different from those of Zoneff, where the prosecutor, in cross-examination of the accused, had attributed lies to him, but had not addressed the jury. The trial judge himself, in his summing-up, had raised the question of lies and consciousness of guilt, evidently considering that there was a risk that the jury would consider that it was part of the prosecution case that the suggested lies were evidence of consciousness of guilt (Zoneff v The Queen (2000) 200 CLR 234 at 244 [16]‑[17]).
[34] It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction (Zoneff v The Queen (2000) 200 CLR 234 at 244 [16]; R v Burge [1996] 1 Cr App R 163 at 173). Zoneff was said to be an unusual case (Zoneff v The Queen (2000) 200 CLR 234 at 245 [23]), and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."

Those remarks are applicable to this case. In the context of a case where the issues raised were essentially those of intention and provocation, it was not necessary for the trial Judge to give any further direction specifically on the use to be made of lies.
This ground has no reasonable prospect of success on appeal. Leave to appeal in respect of it is refused.

Ground 8 - Letter from Rebecca Berry to the appellant's wife

This is the same letter that was discussed by Steytler P in Vella v The State of Western Australia [2006] WASCA 129 at [11], [19] ‑ [20] and [49]. His Honour (with whom Wheeler and Buss JJA agreed) said at [49]:
"… It seems to me that, regardless of whether or not the letter might otherwise have been admissible at a trial (he relies, in this respect, upon Rumping v Director of Public Prosecutions [1964] AC 814, a case which is distinguishable upon the basis that the letter there under consideration constituted an admission made by the accused himself), it is irrelevant to any defence to the charge of assault. Ms Berry's conclusion that Mrs Vella had purposely provoked the applicant into pushing her away is undoubtedly inadmissible. It amounts to no more than an opinion from someone who did not observe the incident in question and was consequently in no position to form any conclusion in respect of it. While she does refer to scratch marks and bruises sustained by the applicant, she was in no position to know in what circumstances those injuries were inflicted. Other comments made by her, including comments with respect to the fact that Mrs Vella had been having an affair, are irrelevant to the assault charge."
The killing occurred on 29 December 2003. The letter was written by Mrs Berry to Ruth Vella. In it, she wrote mostly about particular conflicts and events between the two of them. Mrs Berry complained at length about Mrs Vella's conduct, both to her and to others. In that context she also made comments about the relationship between the appellant and Mrs Vella. I have read the letter. It is not necessary to set out the content here.
The letter from Rebecca Berry was in fact tendered at trial as exhibit 7 by the appellant's counsel in the course of the appellant's evidence‑in‑chief (t/s 260 ‑ 261). Mrs Berry was Mrs Vella's sister. She had earlier been cross‑examined about that letter by Mr Bowden (t/s 116 ‑ 123). There she testified that the letter had been discussed between a group of adults (including the appellant) at a birthday gathering sometime before 29 December 2003. She said (t/s 122) that she gave the appellant a copy of it. In his evidence he confirmed having received a copy by mail a few days after the gathering.
The appellant's counsel elicited from the appellant that he wanted a copy of the letter because of what it said about his relationship with his wife and his wife's activities, but that was the extent of his cross‑examination about it.
The letter was admitted on the wilful murder trial, not as evidence of the truth of the content of it, but only to prove the fact that the appellant had been made aware of the content of it. The trial Judge recognised that, as did the State prosecutor. That was the basis of the letter's admission into evidence. Importantly, it was not admitted as proof of the facts asserted in it - and it could not have been. However, that seems to be how the appellant wanted (and still wants) to rely upon it. He asserts, for example, that the Judge "stopped" this evidence and that it was evidence that, at the time it was typed, showed how even the deceased's sister was concerned about the children and the effect the behaviour of the deceased was having on them. By "stopping it" the Judge deprived the jury of an insight which would have shown the true concern the appellant had about his children's well‑being, which was shared at the time by her own sister and brother‑in‑law.
As I have said, the letter was not admissible for that purpose.
There is another point the appellant makes about it. That is that by "stopping that evidence" the Judge "… allowed Rebecca Berry to lie and make inconstant [sic inconsistent] statements and commit perjury".
There is no substance to this point. The evidence of the letter was not "stopped", it was admitted. In any event, the contention is no more than an argument.
In his oral submissions, the appellant said that when the letter was put to him in evidence, Mr Bowden was then "supposed to see what impact it had" on him, but that was not asked of him at all. He conceded the letter was given to the jury.
It is not possible to say what view counsel took as to the best way forensically to deal with that letter and the appellant's reaction to it, or the part it may have played in what the appellant did on 29 December 2003. Presumably much would turn on what counsel's instructions were and his forensic approach to the case generally. The material before me does not raise anything specifically which could show that the fact his counsel did not ask the appellant his reaction to the letter resulted in a miscarriage of justice.
Ground 8 has no reasonable prospect of success on appeal. I would refuse leave to appeal in respect of it.

Ground 9 - Judge allowed hearsay evidence

The contention of the appellant is that Mr Susta's evidence regarding his son T being in the bedroom was "all based on hearsay evidence".
The questions and answers of which the appellant complains are, first, in the evidence‑in‑chief of Mr Susta (t/s 181) when he was referred to a plan of the dwelling and was asked about the bedroom in which he found Mrs Vella's body:
"And there's an indication of where the bed was. Is that right?---That's it there.
And had [T] been asleep in that bedroom that night, had he?---I never went in the bedroom ‑ ‑ ‑
You never went into ‑ - ‑?--- ‑ ‑ ‑ and actually saw [T] sleeping in there.
You just saw [T] sleeping ‑ ‑ ‑?---But Ruth told me he always sleep - slept in the bed with her.
He told you he slept there?---So I would assume that he was asleep in there."
Mr Bowden asked Mr Susta about it at the beginning of his cross‑examination (t/s 184):
"Mr Susta, as I understand your evidence, and please correct me if I'm wrong, the first time that you saw young [T] on the evening in question was when you went into that, what has been described as bedroom 1?---Correct.
So you hadn't seen him earlier in the evening?---No, I hadn't.
And you don't know, in fact, where he was asleep. You're simply relying on what somebody else told you?---Ruth told me he was asleep in the bed ‑ ‑ ‑
I understand that's what Ruth told you but you didn't see that yourself?---No, not with my own eyes; no."
Those answers have to be looked at in context. Earlier in his evidence‑in‑chief Mr Susta had described how he had arrived at Mrs Vella's residence sometime between 10 and 10.30 pm on 28 December 2003. He said that besides Mrs Vella, there were two children at the house, both asleep. He said he spent the evening at the house in Mrs Vella's company in the front lounge room and was still there in the early hours of the morning. About 4 or 4.30 am he saw a bald‑headed figure trying to look through the window. He told Mrs Vella he thought there was someone out there. She thought it was probably just the trees, but he was doubtful. They waited a little while and then he got up and walked across the room. As he did so he saw a figure running across the road. He told Mrs Vella that he thought it was a burglar and to call the police. He said he would go out and have a look. He did go outside and drove around trying to see if there was anyone there. After a short while he saw the appellant's car parked by the corner at the car park of the Northshore Country Club. He immediately did a u‑turn and drove back to Mrs Vella's place. He had been away for about three minutes. When he got to the house he ran towards the door and found it open. He ran inside towards the bedroom where he could hear a male voice screaming and yelling. He was about three or four metres from the bedroom door when the appellant came out and started running towards him. The appellant put his hand in his pocket and started to pull a knife out. They wrestled. Mr Susta took the knife off the appellant and threw it away from him. As the appellant had run towards him he said "You're another problem. I'll kill you too". Mr Susta wrestled the appellant, grabbed him in a headlock, dragged him outside and threw him out the door. He then latched the door and went to the bedroom. When he went in he saw T standing on the corner of the bed looking at Mrs Vella who was lying on the bed bleeding to death.
It is clear that Mr Susta's evidence about the appellant's son being in the bedroom was not all based on hearsay evidence. Mr Susta's testimony was that T was in the bedroom with the deceased's body when Mr Susta returned. Nonetheless, it is correct to say that his evidence that T had been sleeping in the bedroom was hearsay. However, that was shown on his own evidence to have been an assumption on his part and the jury could have been under no apprehension about that. Viewed in that light, nothing turns on him initially asserting that T was sleeping in the bedroom. The fact that T had in fact been sleeping there may well have been open as a matter of inference from other evidence. Be that as it may, the hearsay character of what Mr Susta first said about that does not give rise to a viable ground of appeal. This ground has no reasonable prospect of success on appeal and I would refuse leave to appeal.

Ground 10 - Error and bias in allowing State evidence but refusing defence evidence

The way this is put by the appellant is that his Honour erred in allowing Dr Margolius' testimony "and all the documents" to be tendered and "stopping our evidence showed bias and unfairness to the defence". He asserts that Mrs Berry was the only other person with whom the deceased lived and as such could have provided a true insight to her and the jury were denied the significance of that information.
The notion that evidence should be admitted in favour of a party as some quid pro quo for evidence admitted in favour of another party, irrespective of its relevance or character, is misconceived. A trial Judge is required to make rulings on evidence having regard to the relevance and admissibility of the particular evidence concerned in each instance. That is what the trial Judge did here. I have already explained that although Mrs Berry's letter was admitted into evidence, it was not admitted for the purpose for which the appellant wished to use it - that is to establish the truth of its contents.
Dr Margolius gave evidence in the course of the prosecution case. At the conclusion of her cross‑examination the State prosecutor sought to tender her post‑mortem report. Mr Bowden objected (t/s 155). The objection was argued at the end of the doctor's cross‑examination (t/s 160 ‑ 167). Mr Bowden said his objection was that the doctor had given her evidence orally and had been taken to particular matters or aspects of the prosecution case. If the post‑mortem report were tendered that would run the risk of distracting the jury from the witness' verbal evidence and furthermore put before the jury material which had not been contained in that evidence.
For this part, Mr Mactaggart submitted that in his experience, post‑mortem reports were always tendered and with that expectation he had taken the doctor in her oral evidence only to some aspects of her findings. He referred to Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, 190 and contended the principle to be found there is that a convenient summary [sic] of a witness' evidence may be produced to a court without the necessity of taking the witness through every word of it.
The trial Judge reserved his ruling pending further submissions from counsel. The matter was revisited at t/s 224 and his Honour gave his ruling at t/s 230. He referred to s 27A of the Evidence Act 1906 (WA), which he observed, had not been mentioned by either counsel. That section provides that evidence may be given in the form of a chart, summary or other explanatory document if it appears to the court that the document would be likely to aid comprehension of other evidence that has been or is to be given.
Section 27B of the Evidence Act provides that if a court is satisfied that particular evidence is so voluminous or complex that it would be difficult to assess or comprehend if adduced in narrative form, the court may direct the party to adduce it in another form including in that of a chart, summary or other explanatory document.
In this case, no direction under s 27B had been sought.
On its face, s 27A does not appear to allow the adducing of evidence in a document, which has not been the subject of oral testimony or evidence adduced in another admissible form. Butera is not at all pertinent to this point. That case concerned the admission into evidence of written translations by interpreters of recordings of intercepted telephone conversations in a mix of languages, including some English. The original recordings were admitted into evidence. The interpreters testified to their interpretations of the non‑English language parts and verified their written translations which were admitted into evidence. Mason CJ, Brennan and Deane JJ confirmed that the evidence was what was on the actual recording. That might (aurally) exhibit deficiencies from which human testimony is usually free. The recording may need to be played many times before it could be understood. That has led courts to receive transcripts, not as evidence of the conversation or other sounds recorded, but as a means of understanding what is on the recording. Nonetheless, evidence is what is on the recording and the transcript cannot be used as a substitute for that.
That principle has nothing to do with the point raised here. The post‑mortem report was simply an out of court record of Dr Margolius' observations and findings.
Neither counsel drew his Honour's attention to s 79C of the Evidence Act. That is a facilitative provision which allows evidence to be given by the production of documents in certain circumstances. There is, however, an important exclusion. It is contained in subs (4). That provides that, notwithstanding the general admissibility provisions in the preceding subsections, in any criminal proceedings a statement in a document made in the course of, or for the purpose of the investigation, the preparation of a defence to a charge or the preparation of the case for the prosecution in respect of any offence shall not be rendered admissible as evidence by that section.
The ordinary evidentiary rule is that a witness must give their evidence orally and from memory and without reference to a written statement of notes or other aid (R v Harrison [1966] VR 72; Prestage & Shearing v The Queen [1976] Tas SR 16; Hetherington v Brooks [1963] SASR 321). There are exceptions to this rule. The most common is that a witness who cannot accurately recall the events being spoken of, may be given leave to refer to contemporaneous notes (Attorney‑General's Reference (No 3 of 1979) (1979) 69 Cr App Rep 411). Where a witness has no recollection whatsoever, but can swear he or she made notes while the matter was fresh in their mind and which are accurate, the witness may be allowed to read from those notes (R v Alexander [1975] VR 741; R v Bryant & Dixon (1946) 31 Cr App Rep 146; Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647, 675, 686).
Ordinarily though, as I have said, absent some statutory provision, the evidence of a witness cannot be adduced in a criminal case merely by tendering a statement or report of the witness.
It seems to me there is a real question in this case whether the post‑mortem report of Dr Margolius was properly admitted - especially those parts which had not been mentioned by her in her oral evidence. There is also a real question whether the report would have been admissible under s 79C of the Evidence Act, not least of all because it would seem to fall squarely within subs (4) of that section. The contention that the trial Judge erred in law in admitting that report has a reasonable prospect of success on appeal and I would accordingly grant leave to appeal in respect of it. I would, however, amend the ground to reflect the argument which might be put, so that it would read:
"The learned trial Judge erred in admitting into evidence the post‑mortem report of Dr Margolius as it was not an admissible document."

Ground 11 - Trial Judge allowed evidence the prejudicial value which far outweighed its probative value

The appellant raises various matters in support of this ground. I will not repeat them all. The following are indicative. He contends that Mr Susta's testimony was "hostile, biased and disrespectful". He showed no respect for either the oath or the court by "lying through his teeth". He says that even though defence counsel did not cross‑examine, the Judge should have known from the prosecution brief that aspects of his evidence were inconsistent with his previous statement. The Judge should have questioned Mr Susta himself. The appellant refers to the short time in which the events of which he spoke, took place.
These are matters of mere assertion and are no more than argumentative. They seek to urge that a particular view should have been taken of Mr Susta's evidence. Alternatively, they postulate that the trial Judge should have taken an active part in the questioning of witnesses to draw out inconsistencies. That is not the function of a trial Judge in our adversarial system. There is nothing in these matters which could found a proper ground of appeal. I would refuse leave to appeal on this ground.

Ground 12 - Misdirection on facts and circumstantial evidence

The proposition advanced here is that the trial Judge directed that in this case they did not have to exclude every reasonable hypothesis consistent with innocence.
The direction complained of is this (t/s 317):
"Put differently, where a person charged with a crime can be found guilty of the crime on circumstantial evidence, before that can occur the facts or circumstances as understood established to your satisfaction must exclude every reasonable hypothesis consistent with innocence. Here, of course, in relation to intention and certain other matters the accused testified, and I will say some more later about the position of an accused and the testimony an accused may give."
That direction was given in the course of a correct direction about circumstantial evidence and specifically the drawing of inferences with respect to an intent to kill or cause grievous bodily harm. Immediately prior to the direction set out above, his Honour had explained to the jury that inferences are part of the ordinary processes of reasoning, but that in the present context where the circumstances or inferences were being relied upon to prove guilt in relation to a criminal offence, they had to be established to the satisfaction of the jury (which his Honour had earlier indicated meant satisfaction beyond reasonable doubt). He said they must not only be such as are consistent with guilt, but must also be inconsistent with any other reasonable conclusion, remembering the burden and the standard of proof.
What the appellant complains about in this direction simply cannot be read into it. The direction clearly was that the jury did have to exclude every reasonable hypothesis consistent with innocence.
This ground has no prospect of success on appeal. Leave to appeal must be refused.

Ground 13 - Misdirection on lies

The appellant refers to a statement in his Honour's directions drawing the jury's attention to the State prosecutor's address concerning what the appellant had said in certain 000 telephone calls earlier in the evening of the killing, and to him admitting that a number of things that were said in those phone calls were lies. The appellant says the lie he admitted to was that he did not recall he said "screaming" and that is "hardly the kind of lie trying to cover guilt". He argues that for lies to be corroboration or confirmatory they must satisfy the four requirements identified in R v Lucas [1981] QB 720, 724. The appellant acknowledges that Mr Mactaggart pointed out to the trial Judge that he did open on lies and did cross‑examine the appellant on lies but wished to make it clear he was using lies in the Zheng credibility sense and not in any other sense. The appellant argues that by misdirecting the jury in this way, his Honour effectively directed them not to believe him.

In fact, the cross‑examination of the appellant on this went as follows (t/s 282 ‑ 283):
"… in any event, Mr Vella, you rang up, as you've admitted, the 000 line on a number of occasions, didn't you?---That's correct.
Four, in fact?---That's correct.
Is that so?---Yes.
The emergency line, and you were told it's for emergencies, weren't you?---I was.
Yes, and one of the officers said in one of the first phone calls, 'What is your life‑threatening emergency, sir?' or something like that, didn't they? I beg your pardon?---Could be.
Yes, could be. We listened to the calls. And you said words to the effect, 'There's a lot of screaming coming out of 14 St Ives Loop and they're smoking cannabis - or marijuana,' didn't you?---That's - something to that effect, yes.
But that, I suggest to you, Mr Vella, was a pack of absolute lies?---The screaming was, yes.
The screaming was a lie?---Yes.
There was in fact no screaming coming out of there at all, was there---No.
No. Why did you tell the 000 operator that there was screaming?---I don't know. I didn't recall I told the screaming until I read the transcript.
But you did tell the 000 operator that, didn't you?---I did."
The lies told to police in the telephone calls to the 000 number were relied upon in two ways by the prosecution. First, as part of the circumstances leading up to the offence and secondly, as going to the appellant's credibility. The direction in Lucas which the appellant says should have been given, is a direction required when a lie is relied upon as proof of guilt (Edwards v The Queen (1993) 178 CLR 193). That was not the situation here. The State prosecutor made that quite clear. It would have been a misdirection for his Honour to have directed the jury in the way contended for by the appellant. I refer to, without repeating, what I have said about this in relation to ground 7. This ground has no reasonable prospect of success. Leave to appeal must be refused in respect of it.

Ground 14 - Error in directing on onus of proof

The appellant complains the trial Judge erred in directing "properly" [sic improperly] on the onus of proof. He refers to the following portion of the trial Judge's directions at t/s 318:
"The state [sic] also referred you to what, on the evidence of Mr Alan Susta, was the short time within which the words that the accused said were uttered could have been uttered and the acts that follows those words he said were uttered took place."
The appellant contends in relation to that, that the State alleged there was no time but did not prove it. In that way, he says, the onus of proof was shifted onto the defence. He says the State never cross‑examined on how long it took and it was not evidence properly tried and tested.
In the impugned portion of his directions, the trial Judge was referring to the arguments which were being advanced to the jury by both the prosecution and the defence. What his Honour says there has nothing to do with the onus or burden of proof. The reference was to the evidence of Mr Susta about the time over which the events occurred. The observation was entirely legitimate. If the jury accepted Mr Susta's evidence in that respect, then the State would have proved the point. There is nothing in this ground. Leave to appeal is refused.

Ground 15 - Direction concerning events in the public gallery

At the hearing on 1 August 2006, the appellant dispensed with this ground.

Ground 16 - Direction to ignore inferences and evidence favourable to defence

The appellant complains about the Judge saying to the jury (t/s 328):
"I must warn you against proceeding directly in this way, and in particularly doing so in this case."
At that point the trial Judge was talking again about inferences and the intention of the appellant. He had just told the jury they had to weigh the appellant's evidence and statements along with whatever inference as to his intentions could be drawn from his conduct and from other relevant facts. He then said:
"You may have heard it said that a person intends the ordinary, likely or probable consequences of his or her acts."
Then immediately followed the passage now complained of.
This direction was in no way urging the jury to ignore inferences or evidence favourable to the defence - to the contrary, it was an entirely correct direction as a matter of law warning the jury against drawing the inference of an intent to kill on the basis of the likely or probable consequences of the appellant's acts (Parker v The Queen (1964) 111 CLR 665; R v Olasiuk (1973) 6 SASR 255).
This simply does not mean what the appellant takes it to mean. There is nothing in this ground. Leave to appeal is refused.

Ground 17 - Misdirection as to intent

The appellant contends the Judge misdirected as to intent and provocation. He argues that at t/s 328 the Judge is saying the appellant would be guilty of manslaughter if he had no requisite intent and subsequently on the same page is saying there can be no provocation unless there is intent.
This argument reflects a misunderstanding of the law. That is not surprising. The law is complex and difficult to understand in this area.
Nonetheless, the directions given by his Honour in this regard were correct. His Honour pointed out that provocation is not a complete defence to a charge of wilful murder, in that it would not result in a total acquittal. The consequence would be to reduce what would otherwise be a verdict of guilty of wilful murder to one of manslaughter. He explained that provocation would only arise in the event of the jury being satisfied beyond reasonable doubt that the appellant unlawfully killed the deceased with the intent to do so or to cause her grievous bodily harm and that unless they reached that point, they did not get to provocation at all. He pointed out the other way in which they may arrive at a verdict of guilty of manslaughter, however, was to find there was no intention of the requisite sort at all.
Those directions were correct. This ground has no reasonable prospect of success and I would refuse leave to appeal.

Ground 18 - Misdirection on provocation

On this ground the appellant refers to the following paragraph from the Judge's directions to the jury (t/s 329):
"In this case you are concerned with words that the accused said were uttered to him shortly before the fatal blows. I can tell you that words like those the accused said the deceased uttered, uttered in the way he said the accused uttered them, could - and I underline 'could' - amount to provocation, depending - and I underline 'depending' - upon all the facts of the case. The words do not necessarily amount to provocation. It's entirely for you to judge that question."
The appellant says in this paragraph the Judge puts the onus on whether the jury believed the accused and not on the prosecutor having to prove beyond reasonable doubt that there was no provocation.
The direction must be read in context. It was a direction about what provocation is at law. The Judge had told the jury that words may amount to provocation. This was to the appellant's benefit. Then he went on to direct them in terms of the above paragraph. His Honour's directions on provocation were quite lengthy.
The paragraph referred to does not have the effect argued for by the appellant. Furthermore, his Honour did give an entirely correct direction with respect to onus in this regard.
At t/s 332 his Honour said:
"The onus is on the crown [sic], if it wishes to sustain a verdict of wilful murder or murder, to prove beyond reasonable doubt that the fatal acts by the accused were not as a result of provocation. It is not for the accused to satisfy you that he was provoked. If at the end of the day you have a reasonable doubt as to the matter, then the crown [sic] has not proved that the unlawful killing was unprovoked."
There is no substance to this ground. Leave to appeal will be refused.

Ground 19 - No proper direction on provocation

The reference here is to the Judge saying (at t/s 330) that it is not necessary that the attack in which the accused engaged and which brought about the death should be proportionate in any sense to the provocation offered.
The appellant says that "[t]he severity of the attack in relation to the provocation is not an acceptable argument any more. If a person 'loses control', how can he control the degree of the attack?"
Again, the appellant has misunderstood what the Judge is there saying. The Judge is in fact saying exactly what it is the appellant contends he ought to have said.
There is nothing in this ground. Leave to appeal in respect of it is refused.

Ground 20 - No directions on "previous history of provocation"

There are various grounds relating to the trial Judge's directions on provocation. They go to different aspects of the directions or of the case. Because they raise specific and different complaints by the appellant, it is not possible to deal with them globally. Some of them also relate to matters the subject of other grounds, such as the lack of diligent inquiry by defence counsel. Thus, for example, in his submissions in respect of ground 20, the appellant claims he was denied the opportunity to explore the background for the jury (Rebecca Berry's letter) and other evidence that could have been adduced by a diligent defence counsel, and the little that there was, was not mentioned. It did not show how previous taunting and frustration caused by the deceased could have affected the appellant. He refers to t/s 331 specifically:
"So as to whether the words were provocation, the first question then is this: was the conduct of the deceased - the words the accused said were uttered in the way he said she uttered them - such as to be capable when done to an ordinary man of depriving him of his power of self‑control, and did it deprive the accused of his power of self‑control not merely to some form of retaliation but so as to do the acts of the kind done by the accused to cause the death of the deceased with the intention of which you are satisfied?
Remember, what might appear to be circumstances of relatively less gravity on an isolated occasion may well prove to be of extremely serious significance when viewed in relation to prior events. Final words might themselves not be enough on their own but, when taken with what has gone before, may be the last straw in a cumulative series of incidents which finally broke down the accused's self‑control and caused him to act in the heat of passion. Matters leading up to a culminating act of provocation may therefore properly be taken into account. However, earlier acts in themselves are not sufficient but they may throw considerable light on the culminating events."
In order for provocation to reduce the offence to manslaughter, certain other conditions set out in the section of the Criminal Code, which I have read from, must be present. There must of course have been the provocative conduct you are satisfied of. You must be satisfied that there was in fact the provocative conduct testified to - here, the words the accused said were uttered to him at the time they were uttered to him. The provocative conduct, the words, must be sudden. Further, it's necessary that the fatal acts be done when the accused has lost his power of self‑control or, as the law says, in the heat of passion and critically before there is time to cool down."
It is the paragraph in italics above to which the appellant specifically refers.
All that can be said about that is that in the context of the much more extensive direction the trial Judge gave about provocation (of which the quoted passages are only part) the direction is in accordance with the law.
Insofar as the appellant claims the jury was denied the opportunity to consider the content of Rebecca Berry's letter, as evidence of the truth of what she asserted in it, the claim has no substance for the reason I have already explained. Ground 20 appears to be predicated on the trial Judge not directing the jury to take account of what was in Rebecca Berry's letter in that way. His Honour could not have directed the jury to take cognisance of the contents of that letter in that way. To the extent that is the basis for this ground, it has no substance.
The reference to "other evidence that could have been adduced by a diligent defence counsel" appears to be repetitive of grounds 1 to 5, with which I have already dealt. Otherwise, in the context of this ground, which asserts misdirection by the trial Judge in not directing on certain things which had not been adduced by defence counsel, it necessarily must mean the trial Judge did not tell the jury about matters which were not in evidence. Clearly his Honour could not have done so. There was no substance in this aspect of the submissions advanced in support of this ground.
Finally, the appellant's complaint is that "… the little that there was, was not mentioned. It did not show how previous taunting and frustration caused by deceased [sic] could have effected [sic] the accused".
In the passages quoted above, his Honour does in fact, appropriately include reference to the effect of things upon the appellant himself, and in particular, refers to the cumulative impact or effect of circumstances over time.
His Honour had earlier reminded the jury of what had been put to them by both counsel. In the course of that, he referred to the defence drawing their attention to evidence as to the appellant's concerns for the custody and wellbeing of his children as part of the backdrop to the appellant's testimony about the words uttered by his wife and the way they were uttered by her, which he said, provoked him into attacking her. He referred (t/s 320) to the violence restraining order and the incident which had given rise to it for the purpose of providing evidence of the relationship between the parties. He referred to evidence as to what was said to the appellant about things which had occurred involving other persons including the deceased. He explained to them that the truth of those reports was not in issue, rather the material was before them for what they might be able to conclude the accused, because of it, may have believed and where that belief may have led him.
It is a question of judgment in each instance as to how much a trial Judge should comment on the evidence in the course of his or her summing‑up. On the face of it, the directions given by the Judge were such as to remind the jury of the relevant evidence and put that in the context of the applicable law and the issues they had to decide. I would not grant leave to appeal on this ground.

Ground 21 - Wrongful exclusion of evidence

As set out in the appellant's submissions, this ground complains that the trial Judge wrongfully excluded evidence of Rebecca Berry's letter. I have already dealt with that in relation to ground 8.

Ground 22 - Wrongful admission of Dr Margolius' charts of bruises

The short submission advanced in support of this is that his Honour erred by allowing the admission of Dr Margolius' charts of the back and front of the deceased "with bruises not proven to be by accused. These bruises could have prejudiced the jury".
The diagrams were aids used by the doctor to illustrate her oral testimony. They were properly admitted for that purpose. The assertion that they showed bruises which were "not proven to be by" the appellant is simply argument. There is no substance in this. Leave to appeal will be refused.

Ground 23 - Trial Judge erred in allowing perjury to occur and did not direct on it

There is no elaboration on this ground in the appellant's submissions. It presumably repeats his claims about the evidence of Mr Susta and other witnesses with whose testimony he disagrees. This is mere argument. It is not a proper ground of appeal. Leave to appeal is refused.

Ground 24 - Misdirection on "ordinary man"

In support of this ground the appellant states that he had four children under 11 at the time and had a sense of responsibility towards them which he took very seriously. He says he was very concerned in case they were molested. He asserts that that concern was not shared by the deceased "for reasons that defence council [sic] didn't adduce".
Apart from factual assertions, the substance of the submission in support of this ground appears to be that the trial Judge ought not to have made reference to the "ordinary man" (t/s 330). However, that is a requirement of the law and his Honour's directions in respect of that were correct. It is simply not sufficient for the appellant to disagree with reference to the "ordinary man" because he considers his actions should be judged exclusively by reference to his own reaction. That is not the law. There is no substance to this ground. Leave to appeal is refused.

Ground 25 - Error in not directing on previous history of provocation

The appellant's submission on this ground is very brief and refers simply to a statement in the prosecution brief and specifically, that Rebecca Berry's letter showed his wife intended to provoke him. I have already dealt with that letter.
The appellant refers to evidence given by Dianne Talbot (t/s 214) and specifically:
"I recall Ruth saying to me that she wished Mr Vella would hit her so she could - make it easier for her to leave."
She said that was around the latter part of 2003.
The complaint asserted in this ground is that the Judge erred in not specifically referring to that.
As I have already observed, the extent to, and way in which a trial Judge should be expected to make comment on the evidence or refer to it, is largely a matter for the Judge. Given what his Honour did say about the evidence concerning things Mr Vella had been told prior to the killing, I am unable to see that a failure to refer specifically to this answer could have led to a miscarriage of justice.
Leave to appeal on this ground will be refused.

Ground 26 - Erroneous direction on provocation and confusing the issue by bringing the son in the bedroom

All that is said about this in the appellant's submissions is a reference to t/s 320 and "based on hearsay evidence".
The passage to which the appellant refers is part of his Honour's explanation of what had been advanced to the jury by defence counsel about the backdrop to the appellant's testimony as to the words uttered by his wife that were likely to be of a sort that would precipitate a sudden response in him without the formation of a specific intent and:
"… ignoring everything else including, it was said, evidence of the presence of the son - of one son - in the room where the attack occurred."
Here the Judge was repeating what the defence had put to the jury. I have already explained why the "hearsay" point about Mr Susta's evidence on this does not give rise to an appeal ground, and in any event, as I understand it, in his own testimony the appellant conceded the young son was in the bedroom but maintained he was so blinded by provoked rage that he did not realise the son was there.
There is nothing in this ground. Leave to appeal is refused.

Ground 27 - Trial Judge erred in misdirecting on provocation

There are no submissions advanced in support of this ground. There are only references to the trial Judge's direction at t/s 329, 330 and 332. I have already dealt with these. For the reasons already expressed, there is no appeal point raised. Leave to appeal is refused.

Ground 28 - Judge misdirected in relation to the CD

The CD referred to was a recording of the telephone calls he made to the police. His only submission is that a person calling the police is not one intending to commit a crime. All it did was to remind the jury and emphasise the "lie" and prejudice them.
The transcript reference of which the appellant complains in this regard is at t/s 334. All the trial Judge says there is to refer to the compact disc and tell the jury that they will have it as an exhibit to play in the jury room if they wish. He then gives certain instructions to them not to play the radio which is part of the CD player.

Ground 39 - Miscarriage of justice - prosecutor stopping evidence of background

The appellant gives a number of transcript references:
(a)t/s 307 - This was in the course of an exchange between the trial Judge and counsel in the absence of the jury. Mr Bowden had told his Honour that he proposed to address the jury on both specific intent and also provocation. He raised that in case the prosecutor intended to argue provocation was not a live issue. Mr Mactaggart's response was that he accepted that provocation would have to be left to the jury, but he did intend to argue that certain statements the appellant claimed had been made to him had in fact not been made, and that even if there was provocation, it was not such as to cause an ordinary man to lose his self‑control.
The trial Judge said he would be leaving provocation to the jury.
There was nothing wrong with any of this.
(b)t/s 331 - This is a reference to part of the trial Judge's summing‑up to the jury explaining the legal aspects of provocation. The direction was correct. It has nothing to do with the prosecutor "stopping" anything.
(c)t/s 255 - 256 - this was in the appellant's evidence-in‑chief. He was being asked about having access to his children after his wife had obtained a violence restraining order against him. He was asked whether he had noticed changes in the children. He began to answer by relating what another child (H) had said which caused him to have concerns. The State prosecutor objected on the ground that would be hearsay. A ruling on that was deferred. It was revisited at t/s 276. The Judge pointed out that he understood the evidence was sought to be led by Mr Bowden only to show what the appellant had been told, not that what he had been told was true. The prosecutor then withdrew the objection. The appellant was then asked the question and answered it (t/s 277). There is nothing in this.
(d)t/s 256 - A further objection was taken to the appellant being allowed to say what one of his sons had told him (presumably about the deceased). The objection was not merely that it would be hearsay, but on the basis the prosecutor said he had specifically raised with the defence the question whether any of the children would be required to give evidence. (I assumed they were named on the back of the indictment and he had been informed that they would not). Mr Bowden said he conceded the force of that objection and did not press the question.
This was patently an area in which counsel was necessarily required to make careful forensic decisions. Those would ordinarily be binding on an accused. See TKWJ v The Queen (supra); Ali v The Queen (supra).
It is readily understandable why counsel could rationally decide it would be tactically unwise to have the appellant's young children called as prosecution witnesses and cross‑examined, in a trial of their father for savagely killing their mother. That decision apparently having been made and agreed with the prosecution, the particular questions could not have been put without the real prospect that leave would have to be given to the State to call the child (or children) in rebuttal - which would likely have been even more to the appellant's disadvantage. There is no appeal merit in this point.
(e)t/s 260 ‑ 263 - This refers to the admission of the letter from Rebecca Berry. I have already dealt with it.
There is nothing in ground 39. Leave to appeal is refused.

Ground 40 - Miscarriage of justice: police giving away evidence

The appellant says about this only that the police gave away evidence helpful to the accused. He refers to the deceased's Uncle Brian's letters in the prosecution brief.
I assume the letters were not sought to be tendered at trial. If not tendered, it would presumably be usual for the DPP or police practice to return items to their owners or proper custodians after the trial. There is nothing advanced here which would indicate any error of law or miscarriage of justice. Leave to appeal will be refused.

Ground 41 - Miscarriage of justice: primary court's decision against the weight of evidence and cannot be supported having regard to the evidence

No particulars of this ground are given. Numerous references are made to particular items of evidence. The appellant then argues that those parts of the evidence should not be taken as indicative of his guilt, or that alternatively, they show his lack of intent. By way of illustration only, I refer to part of what the appellant says here about buying the beanie:
"(41.7)The request for a balaclava and purchase of a beanie point to somebody who doesn't want to get caught. The receipt in the glove box points to someone who doesn't think he'll be caught. With a VRO on me do you think I thought I would get away with the murder of my wife?? Furthermore, if I intended to kill my wife, why purchase a knife? After living in the house for 11 years I knew there were plenty of knives in the house and where they were. Why sharpen a knife that was very sharp T Pg 199 prg 8 Paton G B 'It's a very sharp knife.'"
None of the specific matters raised by the appellant are capable of giving rise to a view in an appeal court that there was an insufficiency in either the extent or quality of the evidence to lead to satisfaction of his guilty beyond reasonable doubt (Morris v The Queen (supra)).
As presented, this ground has no reasonable prospect of success on appeal. Leave to appeal will be refused.

Ground 42 - Miscarriage of justice : judge did not direct on the appellant's lack of recollection of what he was doing

No submission is advanced in support of this ground. The single transcript reference given is to t/s 273. That is where the appellant gave evidence‑in‑chief that he remembers nothing between the time he kicked in the bedroom door and shortly afterwards when he found himself standing over his wife who was bleeding profusely. I have referred to this above.
The appellant does not explain what he means by saying the Judge "did not direct on the fact". I assume he means here the Judge should have told the jury that had been in the appellant's evidence. However, his Honour did advert to that. He said (t/s 318):
"The accused said he did not have any intent to kill - that at the relevant time he can recall nothing, and he can recall nothing, so far as he is able to understand it, because of how he says he was affected by an exchange and particularly by one side of the exchange which he said took place between himself and his wife on that fateful night."
If by this ground the appellant means the trial Judge should have told the jury that if they accepted the appellant had no recollection as he claimed then they could not find he had the requisite intent (which I apprehend may be his intended contention), then that would have been an incorrect direction as a matter of law. A person may do something with a specific intention and later have no memory of it. In addition, it was probably to the appellant's advantage that the trial Judge did not give a fuller direction to the jury particularly about the appellant's claim that he had no recollection of the killing, for had he given one (in the absence of expert evidence) it would have had to have been balanced with a comment to the effect that the jury might well have concluded the claim was simply a convenient one by the appellant to avoid being asked questions he could not answer without incriminating himself.
This ground has no reasonable prospect of success. I would refuse leave to appeal in respect of this.

Conclusion

Leave to appeal against conviction is refused on all grounds except ground 10. Leave to appeal is granted in respect of that ground as I have reformulated it at [79].

Appeal against sentence - CACR 76/2005

On 22 April 2005 the appellant was sentenced for the wilful murder to strict security life imprisonment with an order that he serve a minimum of 20 years before eligibility for parole.
There are 10 grounds of appeal. They are:
"1.The sentence is inadequate because the prosecutor did not allow the defence the opportunity to develop the true background of the deceased and her unsuitability as a parent. See Rebecca Berry and her husband's letters to the deceased. Exhibits 7 & 9 Error of Law and Fact.
2.The sentence is excessive because the learned Judge did not take into account that when I 'came to' and saw the blood I stopped, as soon as I regained control, I stopped. (Fact)
3.The learned Judge failed to take into account that though my son 'might' T p184 pg2,3,4 (based on hearsay evidence) have witnessed the death, I did not have any recollection of him being there!! Error of Law
4.The sentence is excessive because the learned Judge failed to take into account previous acts of provocation by the deceased. T p 265 pg9,12 Prosecution brief p106,prg52,53, p107prg56 (R.Berry's Letter Exhibit 7, D.) Error of Fact
5.The sentence is excessive because the learned Judge got his facts wrong. T Pg 359 prg 2,8 Error of Fact
6.The sentence is excessive because the learned Judge put weight on evidence whose prejudicial value outweighed it's probative value T Pg364, prg 14,15, T Pg 365 prg 1,3,5,7. T Pg366, prg 2. T Pg 373 prg 4 Error of Fact
7.The sentence is excessive when compared to other acts of wilful murder which got 15‑19 years, and 20‑30years. Error of Fact
8.The sentence is excessive because even the learned Judge acknowledged that there was no intent when I was walking up to the house. T Pg 373 prg 6 Error of Fact
9.The learned judge erred by comparing the person at trial with the person on the 29‑12‑2003. That night I was very concerned that my children were in danger with the deceased and even her sister was concerned! At the time I was a 'desperate father.' T Pg 373 prg 6. Error of Fact
10.The sentence is excessive because even the learned Judge acknowledged that the risk of me committing any acts of violence is absent, my previously clean record and my age. T Pg 378 prg 1 Error of Fact"
The reference in ground 1 to the sentence being "inadequate" is obviously an error. The appellant clearly means "excessive".
The Respondent's Answer was filed on 4 January 2006. It does not respond specifically to the appellant's grounds of appeal.
I shall deal with the grounds separately.

Ground 1

This ground again concerns Rebecca Berry's and her husband's letters to the deceased. As I have explained in respect of the appeal against conviction, those documents were in fact in evidence as exhibits 7 and 9. They were therefore before the sentencing Judge. Whatever their relevance or otherwise on the trial proper, they were before the Judge in the sentencing proceedings for the appellant and his counsel to rely on for whatever appropriate purpose they wished. It is not a question of the prosecutor "not allowing" anything. It was for the trial Judge to allow or not allow counsel or the appellant to do what they might have sought to do. This ground does not complain that the Judge did not allow the defence the opportunity "to develop a true background of the deceased and her unsuitability as a parent". In fact Mr Bowden had made it quite clear at the trial that the appellant was claiming to have acted out of concerns of that kind. He maintained that position in his plea in mitigation. He was not prevented by the Judge from putting any submission or material before the court. Indeed, there were before his Honour several reports (a pre‑sentence report, a psychological report and a psychiatric report) in which the appellant's account of the offence and his view of the history of the matrimonial relationship and his concerns, were set out in some detail.
There is no substance in this ground. Leave to appeal is refused.

Ground 2

This ground presupposes the Judge had to accept the appellant's account of what happened. Clearly his Honour did not (as nor did the jury). As his Honour rightly pointed out (t/s 368), he was required to form his own view of the circumstances of the offence within the ambit of the jury's verdict. His Honour did so. He acknowledged the appellant had testified that he had no memory of the actual killing. He referred to the appellant's testimony that immediately after the attack he became aware of being in the bedroom and seeing the blood coming from his wife's neck (t/s 371, 373). However, his Honour found that although the appellant was deeply distressed by the breakdown of his relationship with his wife and the life he considered she was leading and its impact on the children, and had "very considerable anger" (t/s 373), there was nothing in the nature of sudden or unexpected provocation to which he was responding (t/s 375). His Honour found the appellant's feelings and anger about his wife, which had been present at least in some form for some months, caused him to do what he did (t/s 375). Pertinently too, the Judge found (t/s 371) that the appellant dealt his wife four heavy blows to the head as she was lying on the bed. These alone were severe enough to have caused her death. She also suffered substantial defence injuries to her left wrist and elbow. While she was lying still and beginning to die from the blows to her head, the appellant used the Winchester hunting knife to cut her throat from ear to ear. This produced a 15cm wound which severed her trachea and jugular vein. This would have been sufficient on its own to cause death, and produced a massive outflow of blood.
It is implicit in his Honour's findings that he did not accept the appellant did not know what he was doing at the time and only "came too" when he saw the blood, nor that the appellant had "lost control" and stopped when he regained it.
This ground does not reveal any error on the part of the Judge. It is no more than a claim that his Honour should have accepted the appellant's evidence on the point and given him credit for it as in some way being mitigating. His Honour was not obliged to accept the appellant's account and clearly did not do so. This ground has no reasonable prospect of success on appeal and leave to appeal is refused.

Ground 3

The Judge expressly referred to the appellant's testimony that he had no memory of the attack or of seeing his son in the room while he committed it (t/s 371). By the end of the trial, there was no question that the son "might" have been in the room. Mr Susta's evidence was that he was there. That was not hearsay evidence. Indeed, the appellant himself conceded the son had been there - although he continued to maintain that he had not seen him. There is nothing in this ground. Leave to appeal is refused.

Ground 4

It is not correct to say that the Judge failed to take into account what the appellant had claimed were "previous acts of provocation" by the deceased. The characterisation of the acts or conduct of the deceased as "provocation" to the appellant was very much an issue at trial.
I have already mentioned some of the references the Judge made to the state of mind and feelings of the appellant relating to his wife. His Honour expressly stated (t/s 375) that the offence was committed in the context of a severe breakdown of matrimonial relations. His Honour had before him, not only the evidence given at trial, but also the material from the appellant contained in the reports to which I have referred.
References to the prosecution brief are irrelevant. His Honour was required to sentence on the basis of the evidence and other material before him. What was in the prosecution brief was not evidence before the court and was not before his Honour for sentencing purposes.
This ground has no reasonable prospect of success on appeal. Leave to appeal in respect of it is refused.

Ground 5

The transcript references given by the appellant are to the following italicised passages (t/s 358 ‑ 359):
"SIMMONDS J: As I understand the materials that were sent up to me, there was a process of counselling or other management to which he was exposed during that period and, at its highest, a rather guarded assessment of how he had responded. Now, it is true, and I immediately wish to make this point because I suspect you will, that the author of the report said things might well be different as soon as the sentencing process had completed. There's a difference between undergoing the counselling prior to sentencing and undergoing counselling after it.
I simply say that because there is also in the materials references to prior counselling episodes, two in number I believe or two in grouping, one arising out of a prior domestic violence incident in 1994, I believe, and the other shortly before these events involving a couple of sessions, I believe, with Relationships Australia arising out of a violence restraining order incident. Am I right?
BOWDEN, MR:   Yes. The last lot of counselling, if you like, was so interwoven with the circumstances that he was involved in at the time which have led to this.
…
BOWDEN, MR:   First of all, there has been the welfare of the children. As you have observed from the pre‑sentence report, sir, and I think my preceding remarks, arrangements have been made for the children to go to a relative in the eastern states but that all had to be taken care of.
SIMMONDS J:   Yes, a relative of the partner in the eastern states, I understood.
BOWDEN, MR:   That's correct, sir, yes. …"
These exchanges occurred in the course of Mr Bowden's plea in mitigation. They are not part of the Judge's sentencing remarks. The information to which his Honour was referring was contained in the reports which had been provided to him. In any event, as is apparent from the transcript itself, his Honour set out his understanding of that information and asked whether or not that understanding was correct. Mr Bowden on each occasion said it was.
There is nothing in this ground. Leave to appeal is refused.

Ground 6

The transcript references given here all concern the prosecution submission that on the evidence of Mr Susta, that he was away from the house for only about three minutes, there would not have been sufficient time for the conversation at the front door, the kicking down of that door and the rest of the events to have occurred in the way the appellant claimed. Mr Bowden put a contrary argument on behalf of the appellant. All but one of the transcript references given relate to exchanges during the course of submissions. The last reference is to his Honour's finding on the point at t/s 373:
"There was evidence from that man, which was not challenged, that the time that elapsed between the man's departure from the house and his return into it was likely to have been in the order of three minutes. This would on your account have left what I consider would have been a very short length of time indeed for the deteriorating conversation to have taken place that you testified to as the deceased's sudden or unexpected provocation of you, to be followed by the kicking in of two doors in succession and the committing of the attack I have described."
Subsequently his Honour found (t/s 375) that there was no sudden or unexpected provocation of the appellant by the deceased.
On the evidence, the Judge was perfectly entitled to make these findings of fact. The evidence to which the appellant refers here was only prejudicial because it showed the matter in a way adverse to him. There was nothing unfairly prejudicial about it. This ground cannot succeed on appeal. Leave to appeal is refused.

Ground 7

The sentence was life imprisonment. The appellant complains that his Honour imposed strict security life imprisonment and fixed a period of 20 years before the appellant could be eligible for parole. 20 years was the lowest period which his Honour could have set within the range available on a sentence of strict security life imprisonment.

By s 282 of the Criminal Code, a person who commits the crime of wilful murder is liable to a mandatory punishment of either strict security life imprisonment or life imprisonment. By s 90(2) of the Sentencing Act 1995 (WA), a court sentencing an offender to life imprisonment for wilful murder must set a minimum period of at least 15, and not more than 19 years, that the offender must serve before being eligible for release on parole. By s 91(1) of that Act, a court sentencing an offender to strict security life imprisonment must, unless it makes an order that the offender be imprisoned for the whole of the offender's life, set a minimum period of at least 20, and not more than 30 years, that the offender must serve before being eligible for release on parole.
The appellant refers to three cases which he says are comparable. The first is Griffin v The Queen [2001] WASCA 11. The applicant there had been sentenced to life imprisonment for the wilful murder of his former de facto, with an order that he serve 18 years and 6 months before eligibility for parole.
By reason of s 90(2) of the Sentencing Act, the sentencing Judge had to fix a non‑parole period between 15 and 19 years, once a sentence of life imprisonment was imposed. The application for leave to appeal against sentence was on the ground that 18 years was excessive.
Briefly, the facts of that case were that in October 1998 the applicant deliberately stabbed his former de facto whilst she was in bed. He had gained entry to her house and threatened her male friend. The applicant knelt over his former de facto who was lying on a bed in a defensive position trying to protect herself. He stabbed her no less than three or four times in the chest with a knife. He also caused wounds to her left arm and the right side of her chest.
Significantly in that case, the Crown prosecutor conceded that the circumstances of the case were not such as to warrant strict security life imprisonment. The sentencing Judge accepted that concession. No such concession was made in the present case.
Malcolm CJ (with whom Owen and Parker JJ agreed) said (at [44] ‑ [45]):
"44 A conviction for wilful murder attracts a mandatory penalty of life imprisonment. In sentencing the offender, the only options open to a sentencing judge are to impose strict security life imprisonment or life imprisonment: Criminal Code, s 282; Offenders Community Corrections Act 1973 (WA), s 40(2)(c), and s 40(2)(d); and Sentencing Act 1995 (WA), s 90(2) and 91(1). There is no statutory guidance regarding the principles to be applied in making the choice between these options, but matters which are relevant are the particular circumstances of the crime and what appears to be an invidious necessity of ranking it in terms of gravity or seriousness within a class of offence which is the most serious offence under the Criminal Code. This involves a consideration of the particular circumstances of the crime together with other considerations including the antecedents of the offender and the need to protect the community: see Mitchell v The Queen (1995) 184 CLR 333; Khoo v The Queen, unreported; CCA SCt of WA; Library No 960184; 2 April 1996; O'Connor v The Queen, unreported; CCA SCt of WA; Library No 940525; 22 September 1994; Monaghan v The Queen (1990) 3 WAR 466; and Jackson v The Queen [1990] WAR 105. The factor which has primacy over other factors is the gravity of the crime which, as I have indicated, involves placing the homicide somewhere in the scale of other crimes of wilful murder: Jackson v The Queen, supra; King v The Queen, unreported; CCA SCt of WA; Library No 6607; 26 February 1987; Hoare v The Queen, unreported; CCA SCt of WA; Library No 6138; 13 December 1985 and Hoare v The Queen (No 2), unreported; CCA SCt of WA; Library No 6240; 10 April 1986.
45The principles to be applied were summarised by Owen J (with whom Kennedy and Pidgeon JJ agreed) in Williams v The Queen (1996) 17 WAR 17 at 26 as follows:
'In relation to the choice to be made under s 282(a), I think that the principles which emerge from the authorities can be summarised in the way set out below.
1.On a conviction for wilful murder the imposition of a custodial sentence for life is mandatory.
2.The sentencing judge is required to choose between life imprisonment and strict security life imprisonment. The discretion to choose between the options is at large but must be exercised judicially.
3.The factors to be taken into account in making that choice are:
(a)the circumstances of the offence and the gravity of the crime so as to place it somewhere in the scale of other crimes of wilful murder;
(b)the antecedents of the offender, with the phrase 'antecedents' being given a broad meaning to include matters such as character, previous criminal history, upbringing and personal circumstances; and
(c)the risk to the community posed by the likelihood of the person committing serious offences of violence in the future.
4.The antecedents of the offender are relevant both in considering what, if any, mitigating factors exist and in considering the need to protect the community in terms of the likelihood of the applicant committing further offences.
5.No one factor has primacy over the other factors. So it is, for example, that in an individual case the sentencing judge may be persuaded by the horrific nature of the crime or by the need to protect the community (whether shown by the offender's antecedents or other material) or by a combination of all of these factors, to impose a sentence of strict security life imprisonment'."
Notwithstanding the Crown's concession, the sentencing Judge took the view the wilful murder the applicant had committed was one of the worst that could have been committed. The concession made by the Crown was that although the Crown would not ask for a sentence of strict security life, nonetheless the sentence should attract a substantial minimum term within the range available on the imposition of life imprisonment. It is apparent the primary consideration leading to that concession was the comparative youth of the offender (he was 38‑years‑old at the time of sentence), and his antecedents.
The appellant here did not have the benefit of comparative youth. Furthermore, as bad as the circumstances of the offence were in Griffin, those which were involved in this case were objectively much worse.
In Errey v The Queen [2001] WASCA 75, a sentence of life imprisonment with a minimum term of 19 years before eligibility for parole was upheld on appeal. The applicant was 32 years old. He had met the deceased some six months earlier in response to an advertisement the applicant put in a newspaper, adverting that he was available as a male prostitute. In the intervening months, he and the deceased had been together three or four times and the applicant had visited the deceased's unit more than once. The applicant had been living in Kununurra but returned to Perth, where he lived largely from handouts and slept wherever he could find a bed. He went to the deceased's unit unexpected and uninvited, wanting to be allowed to stay the night. The deceased did not answer. The applicant took a fire extinguisher which had been hanging on the wall in the public passageway and used it to bash the inner door of the hatch of a servery until it gave way. He managed to make entry, overcoming the deceased's clearly expressed reluctance to let him in. There was a loud exchange at the front door. After a little time a fight developed between the two in the lounge room. The sentencing Judge accepted in the applicant's favour that the deceased picked up a small kitchen knife because he was no physical or emotional match for the applicant's aggressiveness and was trying to get the applicant to leave the unit. The applicant was able to knock the knife from the deceased's hand and threw the deceased onto a lounge chair. Thereafter, on and off, the applicant throttled the deceased, mostly with both hands grasped around the lower neck, and at times he punched the deceased to the head, and continued to do this for a prolonged period. He forced the deceased to the floor where he knelt over him, throttling him and punching him. The Judge was satisfied that he was so angered by the deceased's natural reluctance to have him stay and his picking up of the knife, that he attacked initially in self‑centred anger, but realised quickly that if the deceased lived to tell the story, the applicant would likely be reported to the police and so the applicant decided he must kill the deceased to be sure that did not happen.
Once again there were important features of that case which were not present here. Once again, there was the comparative youth of the offender (32 years of age). There was even less premeditation in that case than in this, and again, the circumstances of the present offence were far more horrific. Even so, it is noteworthy that the period which the appellant will have to serve before eligibility for parole is only 12 months more than that set in Errey.
The last case referred to by the appellant is that of Roberts v The Queen (2003) 28 WAR 381. There the applicant had been sentenced to strict security life imprisonment with a non‑parole period of 20 years.
The applicant had been sitting on a river bank at Caversham with the deceased whom he had met there. The applicant did not know the deceased prior to that. They were talking casually. The sentencing Judge accepted that the deceased said something to the applicant or made some gesture which enraged him, probably a homosexual approach of some sort. The applicant then took a folding knife from a pouch in his jeans and attacked the deceased with it. The deceased tried to defend himself by raising his arm, which received a number of slashing wounds from the knife. The deceased retreated from the applicant, but as he did so the applicant pursued him and stabbed him many times. The deceased left a trail of blood over a distance of some 30 paces. In total the applicant inflicted more than 100 stab wounds. Some were so savage as to almost sever the deceased's head from his body. The wounds were all over his body, including his back. The applicant left the scene.
The sentencing Judge accepted there was no premeditation in the sense of pre‑planning. The applicant had not intended to go and kill anyone and the attack, although savage and persistent, was over a relatively short period of time. The absence of premeditation and of a prolonged attack meant, in her Honour's view, that was not the most serious offence of its kind. However, the ferocity, the persistence, the fact the deceased was entirely unarmed and defenceless and many years the applicant's senior, put it in the upper, rather than the lower range of wilful murders. In the absence of any particular factors of significance, she considered it should attract a sentence of strict security life imprisonment.
Comparisons of cases of wilful murder are inevitably invidious. They will always be different. In my view, all Roberts shows is that a case of a "frenzied" attack (which is a term I would have thought apt to describe the appellant's offence here) might properly attract a sentence of strict security life imprisonment with a minimum term of 20 years. I do not see how this case assists the appellant at all.
His Honour here described the offence as "horrific". Although he was not convinced beyond reasonable doubt the appellant bought, or sharpened, the knife and carried it and the baseball bat to the house with the intention from the outset of using them to attack his wife, the Judge was so satisfied that, once Mr Susta left, the appellant took them with him to the door with the intention of doing his wife harm. His Honour found that although the offence was "not at the most severe imaginable end of wilful murder cases …" it was nonetheless "in the upper end of wilful murder cases". A particularly significant factor was the presence of the youngest son in the bedroom at the time. His Honour took the appellant's personal antecedents and circumstances into account. He referred to them at some length. He found the mitigating features were outweighed by the circumstances of the crime and the gravity of the offending.
The conclusion that a sentence of nothing less than strict security life imprisonment was appropriate was well open to his Honour. The cases referred to by the appellant do not show otherwise. This ground has no reasonable prospect of success on appeal. Leave to appeal is refused.

Ground 8

I have already mentioned that the Judge was unable to be satisfied beyond reasonable doubt the appellant had a specific intent when he was walking up to the house. The Judge took that fact into account. That fact does not make the sentence imposed manifestly excessive. This ground has no reasonable prospect of success on appeal and leave to appeal is refused.

Ground 9

The passage complained of here is the following (t/s 373):
"The impression I gained at trial of you was of a man with a capacity for careful calculation and also very considerable anger and it was anger which had arisen out of the state which you believed your marriage had reached which I find was driving you as you approached that door after the man had left …"
The comment made by his Honour is not to be understood as having been based only on his personal observation of the appellant during the course of the trial (although no doubt it included that). Impressions of the sort described there by his Honour are formed from a consideration of the evidence given in the course of the trial. There was abundant evidence before his Honour which would have allowed him to make that assessment of the appellant. There is no substance in this point. Leave to appeal is refused.

Ground 10

As the appellant himself notes in this ground, the Judge actually did make those findings. He took them into account. But as I have explained above, he concluded the circumstances and gravity of the offence outweighed them. It was well open to his Honour to take that view. This ground has no reasonable prospect of success on appeal. Leave to appeal is refused.

Conclusion

Leave to appeal is refused in respect of each ground.
Accordingly, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appeal against sentence is dismissed.