Vella v The State of Western Australia
[2006] WASCA 129
•28 JUNE 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VELLA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 129
CORAM: STEYTLER P
WHEELER JA
BUSS JA
HEARD: 20 APRIL 2006
DELIVERED : 28 JUNE 2006
FILE NO/S: CACR 216 of 2005
BETWEEN: JOSEPH BERNARD VELLA
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :ROBERTS-SMITH JA
Citation :VELLA - v - THE STATE OF WESTERN AUSTRALIA [2006] WASCA 30
File No :CACR 216 of 2005
Catchwords:
Application for review of decision of single Judge of Appeal - Where single Judge refused leave to appeal against conviction - Where conviction based on plea of guilty - Whether miscarriage of justice demonstrated - No ground of appeal has reasonable prospect of success - No matter raised in grounds of review affects this conclusion - Application dismissed
Legislation:
Criminal Code (WA), s 23, s 245
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: In person
Respondent: Mr J Mactaggart
Solicitors:
Applicant: In person
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Borsa v The Queen [2003] WASCA 254
Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996
Hogue v The State of Western Australia [2005] WASCA 102
Kaporonovski v The Queen (1973) 133 CLR 209
Kelly & Connolly v The Queen [2002] EWCA Crim 2957
Lim v Bateman [1999] WASCA 305
Meissner v The Queen (1995) 184 CLR 132
Murray v The Queen (2002) 211 CLR 193
R v Foster [1985] QB 115
Re Knowles [1984] VR 751
Rumping v Director of Public Prosecutions [1964] AC 814
Vella v The State of Western Australia [2006] WASCA 30
Case(s) also cited:
Button v The Queen (2002) 25 WAR 382
Glover v Reyne (2001) 124 A Crim R 496
Moffa v The Queen (1977) 138 CLR 601
R v Garofalo [1999] 2 VR 625
R v Lucas [1981] QB 720
STEYTLER P: The applicant has lodged three applications for leave to appeal in this Court. These relate to his conviction by a jury, on 11 March 2005, on a charge of wilful murder, to the sentence imposed in respect of that offence and to a conviction for assault occasioning bodily harm arising out of the applicant's plea of guilty to that offence on 22 April 2005.
On 25 January 2006, a single judge of this Court, Roberts-Smith JA, heard the application for leave to appeal against the conviction for assault occasioning bodily harm and also a number of interlocutory applications in relation to the three appeals. He refused leave to appeal against the assault conviction, made an order as regards the items which should be included in the appeal books in the other appeals and dismissed an application which had been brought by the applicant to have the Court closed to members of the public. The applicant has applied for a review of each of these decisions. However, at the hearing of the applications, he abandoned the application for a review of the decision refusing to close the Court (although he has since written to the Court saying that he will leave it in the hands of the Court to decide whether or not to make such an order). The application for review of the order concerning the items to be included in the appeal books was referred by the Court to the Registrar of the Court of Appeal because the order made by Roberts-Smith JA in that respect was directed by him to have effect only unless otherwise ordered by her. There consequently remains for determination only the application for review of the decision refusing leave to appeal against the conviction for assault occasioning bodily harm.
The applicant's pleas of guilty.
After his conviction, on 11 March 2005, in respect of the wilful murder of his wife, Ruth Vella, on 29 December 2003, the applicant came before Simmonds J on 22 April 2005 for sentencing in respect of that offence. On the same day, he was sentenced in respect of two other charges relating to his wife, one being the charge of assault occasioning bodily harm and the other relating to a breach of a violence restraining order which had been made against him as a result of the assault.
The assault was said to have occurred on 12 November 2003. The applicant pleaded guilty to the charge in respect of it before Simmonds J on 22 April 2005. He had earlier pleaded guilty to that charge in the Magistrates Court. However it was convenient for the matters all to be dealt with together and that sentencing process was consequently adopted pursuant to s 32 of the Sentencing Act 1995 (WA). The applicant was sentenced to a term of 18 months' imprisonment, with eligibility for parole, in respect of the assault. That sentence was ordered to be served concurrently with the sentences imposed in respect of the wilful murder (20 years' strict security life imprisonment, with eligibility for parole) and in respect of the breach of the violence restraining order (11 months' imprisonment, with eligibility for parole, to be served concurrently with the sentence imposed in respect of the wilful murder conviction).
Circumstances of the assault
There had been evidence, at the applicant's trial on the charge of wilful murder, regarding the circumstances of the alleged assault. The prosecution case in this respect was that, on 12 November 2003, Mrs Vella and a relative who was visiting from England had gone on a river cruise. At about 7 pm she returned to the house in Kallaroo in which she and the applicant lived. An argument developed, in the course of which the applicant grabbed Mrs Vella's face with his left hand with enough force to cause her nose to bleed and the back of her head to hit the brick wall behind her. There was a tussle between the two. Mrs Vella then went into the laundry of the house. The applicant followed her. The altercation continued and, in the course of it, the applicant pushed Mrs Vella, causing her to fall backwards down some stairs. She hit her ribcage on the stairs and lost consciousness for a short period of time. When she regained consciousness, she told the applicant to call the hospital because she could not breathe. He initially pulled all of the house telephones out of their sockets and would not let anyone call for help. However, he then allowed one of their children to call a family friend, who arrived soon afterwards and took Mrs Vella to hospital. There, she was found to have sustained three fractured ribs, a collapsed lung, bruising to her ribs, swelling and tenderness to her right jaw and swelling to the back of her head.
After the prosecutor had recited the facts on which he relied for the purposes of sentencing, the then counsel for the applicant told the sentencing Judge that the applicant's version of events was that which he had given in evidence in the course of the murder trial. This was to the following effect. The applicant had hurt his thumb and was unable to use it. He had consequently assumed that Mrs Vella would return in time to prepare the evening meal. When she had not returned by 6 pm, he became concerned. He bought some pizza for the family to eat. He then tried twice, unsuccessfully, to contact his wife on her mobile telephone. He was successful on his third attempt. She told him that she was on her way home on the train. She arrived home with her uncle at about 7 pm. Her uncle was very drunk. The applicant tried to talk to his wife about the way in which she had neglected the family. She took two steps towards him and "came up to … [his] face and said, 'I don't want to talk to you'". He was taken by surprise by this and pushed her against the wall. At this point in his evidence, the following exchange took place between the applicant and his counsel:
"You are showing a motion, for the transcript, of grabbing her with an - - - ?-‑‑Yes.
- - - open hand, palm of the hand, around the chin?‑‑‑On the chin, and I pushed her against – I said, 'What do you mean, don't want to talk to me?'
And pushing her backwards?‑‑‑I pushed her back, yes.
When she was pushed back did she come into contact with anything?‑‑‑The wall, yes."
The applicant said that there was then an argument about why Mrs Vella had not been home in time to prepare the evening meal when she knew that the applicant could not cook. He said that events then "sort of … settled", and the two of them were walking downstairs when Mrs Vella "came from behind and punched … [him] on the ear". He went on to say:
"I lost my temper when she punched from behind and I grabbed her from her hair and I took her to … the laundry door … and I said, 'Don't you ever hit me from behind' and then she started flailing and everything. My son got involved. He came in between us and at that stage I was more concerned about her hitting him than me and I just kept on pushing her back, pushing her back. She took two steps and fell back up the stairs, not down the stairs … It was a carpeted stairway."
The applicant acknowledged that he had pulled the telephone plugs out of the wall so that his son could not call an ambulance but said that he did this because he had at first believed that his wife was pretending to be injured. There was evidence that Mrs Vella had scratched his face during the course of the altercation.
Earlier, evidence had been given by Ms Dianne Talbot, the friend who had been telephoned by the applicant's son and who had taken Mrs Vella to hospital. She was asked, in the course of cross‑examination by the applicant's counsel, whether, when she had visited Mrs Vella in hospital after the incident, she had told Mrs Vella that Mrs Vella had provoked the applicant. She said that she had not used the word "provoked", but that she had advised Mrs Vella not to take out a restraining order at that point.
The application for leave
The application for leave to appeal against the conviction for assault occasioning bodily harm was filed by the applicant on 27 July 2005. Because an extension of time was required, the applicant also lodged an affidavit sworn by him on 25 July 2005 explaining the delay. In his affidavit, he said that, on 17 November 2003, prior to pleading guilty in the Magistrates Court, he had sought advice from a Legal Aid lawyer. He said that the advice was to plead guilty and that "Options of defence" were not explained. He said that, at that time, he had no knowledge of the possible defences of provocation, self defence and accident and that he still believed that the event had been "a misunderstanding" which could be resolved and that he could "save the marriage". He said that he did not think that fighting his wife in court would help the situation. He also said that he did not then know that his wife had had a "boyfriend on the side".
He went on, in his affidavit, to say that, on 23 December 2003, he spoke to the lawyer who was then handling proceedings for him in the Family Court, Mr Michael Dawson. He gave Mr Dawson a copy of a letter that had been written to Mrs Vella by her sister, Rebecca Berry. This letter had been written on 8 December 2003. In it, Ms Berry had said that she knew that Mrs Vella had seen her boyfriend on the evening of 12 November 2003 and that she had "purposely provoked" the applicant into continuing to push her away. She also said that she had seen scratch marks and bruises on the applicant's face, neck, arms and legs whereas Mrs Vella had had no marks or scratches other than on her back. In his affidavit, Mr Vella also said that he gave to Mr Dawson a photo of his wife's car in her "boyfriend's" driveway. We were told that this was taken in the early hours of the morning.
The applicant next deposes to the fact that, after the death of his wife on 29 December 2003, he needed a criminal lawyer urgently and consequently contacted Mr Michael Bowden, who appeared for him at the murder trial. Then, in early 2004, two of his ex‑neighbours (Mr Hubert Smith and Mrs Mabel Smith) visited him and told him that Mrs Vella had told them that she had been drunk at the time of the alleged assault. The applicant says that he did not know that at the time. He asked Mr Bowden if he could change his plea but was told, "You have already pleaded now".
Finally, so far as is presently relevant, he refers to the fact that Mr Bowden had not, at any time, viewed a videotape of an interview that the applicant had had with police in the Joondalup Police Station in November 2003, notwithstanding that the applicant had asked him to do so.
The applicant raised four grounds of appeal, as follows:
"1.There was a miscarriage of justice in that police gave 'legal' advice to a guilty plea. Error of Fact.
2.There was a miscarriage of justice in that legal aid lawyer did not advice [sic] on defence options. Error of Law and Fact.
3.There was a miscarriage of justice in that my barrister did not give me proper legal advice after my guilty plea and led me to believe that as I pleaded 'Guilty' I could not change my plea. Error of law and Fact.
4.New/Fresh evidence became available after my plea and after sentencing. Error of Fact."
Amongst the orders wanted by the applicant was an order that he be permitted to interview a number of witnesses in order to "adduce Fresh/New evidence, cross examine on prior inconsistent statements which my lawyer did not do in court, due to negligence".
The judgment of Roberts-Smith JA
On 25 January 2006 the primary Judge, Roberts-Smith JA, delivered a judgment in which he concluded that none of the grounds had a reasonable prospect of succeeding. He accordingly refused leave to appeal: Vella v The State of Western Australia [2006] WASCA 30. In his judgment, Roberts‑Smith JA set out the competing versions of the facts to which I have earlier referred, and the sentencing Judge's findings in respect of them, before turning to the four grounds of appeal.
As to the first ground, he referred to what had been said by the applicant, in the course of his submissions, to the effect that, when he was interviewed by the police at Joondalup and following the interview, a police sergeant told him "off the record" that, if he pleaded guilty, he might not get a criminal record as it was his first offence and that the "going rate" with the Magistrate at the time was that he might have to do an anger management course. The applicant also said that the police sergeant told him that, while the conviction would be on his police record, it would not show if he applied for jobs "etc". The applicant told the primary Judge that he had discussed this with the Legal Aid lawyer in Perth. However, the primary Judge ruled that the first ground of appeal had no reasonable prospect of succeeding because there was no evidence of what the applicant had asserted in his submissions. He also said that, even if there had been such evidence, "it would not go to the integrity of … [the applicant's] plea of guilty … on the advice of his trial counsel".
As to ground 2, Roberts-Smith JA referred to submissions that had been made by the applicant to the effect that, when he saw the Legal Aid lawyer in Perth, he discussed with her whether Mrs Vella could withdraw charges, as he still considered that it had all been a misunderstanding. The applicant said that the Legal Aid lawyer advised him that the police had enough medical evidence to prosecute him and that she did not discuss any "defence options" with him. The primary Judge said that, once again, there was no evidence to support the assertions which had been made by the applicant in respect of this ground.
As to ground 3, Roberts-Smith JA referred to submissions that had been made by the applicant arising out of the letter that had been written to Mrs Vella by Ms Berry and the photograph of Mrs Vella's car in the driveway of her "boyfriend", a Mr Alan Susta. Roberts-Smith JA also mentioned that, in his oral submissions, the applicant had said that Mrs Vella had told Ms Berry, and others, that she would give the applicant an opportunity to strike her, so as to make it easier for her to leave the marriage. The primary Judge also referred to submissions which the applicant had made concerning the advice that he had received from Mr Bowden to the effect that it was too late for him to change his plea. In addition, he referred to submissions that had been made by the applicant to the effect that Mr Bowden had not viewed the videotape of his interview with the police.
Roberts‑Smith JA concluded that the letter from Ms Berry could not give rise to any defence which might have availed the applicant. He said that it was not a letter "from" Mrs Vella. He said that none of the other matters referred to gave rise to any doubt about the integrity of the applicant's plea of guilty. As to the videotape, he said that the failure to view it was a "non‑issue" for the purposes of the application because the applicant had told him that there had been no significant variation between the account that he had given the police and that which he gave in evidence before the Judge and jury in the course of his trial on the wilful murder charge.
As to ground 4, Roberts-Smith JA said that this appeared to turn on what had been said to the applicant by Mr and Mrs Smith to the effect that Mrs Vella had admitted to them that she had been drunk when the assault took place. The applicant, in his submissions to the primary Judge, had said that he knew that Mrs Vella had had a few drinks but that he had not previously known that she was drunk. He said that this might explain why, when he pushed her backwards, she took a few steps and lost her balance. Roberts-Smith JA also referred to comments that the applicant had made to the effect that his wife, after being injured, had purportedly telephoned a Dr Brockhoff but had, in fact, telephoned Mr Susta. He concluded that none of the matters raised by the applicant demonstrated any miscarriage of justice flowing from his plea of guilty.
The application for review
On 30 January 2006, the applicant filed his application to review the decision of Roberts-Smith JA. His grounds of review are as follows:
"1.New/Fresh Evidence was not adduced or presented.
2.Video of Police Interview of Assault Occasioning Bodily Harm MN1715109 not viewed by judge only made passing reference to.
3.Being in Jail creates a Disparity of Resources and makes the process of getting evidence a very slow process.
4.R v Foster [1984] 3 WLR 401 CA. Convictions were quashed despite pleas of guilty upon receipt of fresh evidence.
5.The learned judge Roberts-Smith rejected evidence Exhibit 7.
6.Still awaiting evidence from DPP in regards to the above which could not have been presented on the 25th January 2006 to his Honour Roberts-Smith JA."
The applicant seeks the following orders:
"1Criminal Appeals Act 2004 s40(1)(b) interview Barry O'Shea and the people as per my interim application forms of the 25 July 2005 and 25 October 2005 To adduce fresh evidence and cross examine on prior inconsistent statements which my lawyer did not do in court at my trial.
2Court of Criminal Appeal to reserve judgment until all the appeals are heard as they are very interlinked.
3The learned Judge Roberts-Smith, on the 25 January 2006, dismissed Exhibit 7, Rebecca Berry's letter to her sister, as hearsay. At the trial Rebecca Berry swore that she wrote it, it was the truth and gave me a copy. Transcript pg 116, 119, 122.
4.The learned judge Roberts-Smith to submit in writing why the above (3) is hearsay and under which hearsay rule did he reject that evidence please?"
The applicant lodged a number of affidavits in support of his application for review. He also provided the Court with typed notes prepared by a police officer in relation to an interview that was conducted with a Ms Margot Bennett which, he contends, support his proposition that he was "set up" by Mrs Vella. He has since provided a body of additional material to the Court, including a lengthy affidavit sworn by him on 5 June 2006, other affidavits sworn by him on 26 April, 14 May and 23 May 2006 and an affidavit sworn by Mr Bowden on 2 May 2006.
I propose to address the various matters raised by the applicant by considering, first, the circumstances in which a plea of guilty will be set aside, then the various grounds of appeal raised by the applicant and, finally, the grounds of review raised by him.
Circumstances in which a plea of guilty will be set aside
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.
The four grounds of appeal
Ground 1
The applicant has sworn an affidavit on 14 April 2006 to which he has attached notes made by a Legal Aid lawyer in the course of his interview with her on 17 November 2003, prior to his plea of guilty in the Magistrates Court. Under the heading "FACTS", the Legal Aid lawyer has recorded the following:
" … Last Wed [applicant's] wife went on a river cruise [with] her uncle who is visiting. [Applicant] + his wife had a discussion re dinner for the children. Arrangements didn't go as [applicant] thought. Wife late home. He wanted to talk to her / she didn't want to talk. [Applicant] ended up grabbing wife + pushing her – banged her head against the wall, pushed her against the door. As moved through house – oldest son wanted to call Po [police]. [Applicant] wouldn’t let him. [Applicant] pushed wife onto the stairs → resulted in 3 broken ribs/punctured lung – head injuries (minor). [Applicant] has no crim. record.
Wife still in hospital → [Applicant] @ home looking after 4 children → Po have VRO [violence restraining order]: have not yet served as [applicant] is looking after children until wife gets out of hospital.
[Applicant] believes r/ship is over. Needs to contact wife re children.
Po advised he may not get a criminal record. Can wife w/draw charges."
Then, under the title "ADVICE", the lawyer has recorded the following:
"AOBH [assault occasioning bodily harm] is a serious charge: wife has suffered significant injuries – still in hospital. Max penalty in PS [Court of Petty Sessions] → $8,000 or 2 years jail. As [applicant] has no previous criminal record → 1st offence ↓poss of jail. May be put on orders – breach and will go to jail. Discussed poss of PSR [pre‑sentence report] → recommendations – orders w/ counselling/prog req. Discussed court process. Duty lawyer. Options re plea. Re bail cond/VRO – must not contact wife or use a friend to do so. Will need to get further advice re Family law / use solicitor to write to wife so don't breach VRO. Not up to wife to w/draw charge: Po have enough to prosecute anyway: medical ev. etc.
AOBH → serious offence → affects bail cond.
Unlikely will not have crim record – AOBH is a serious offence – not likely to get SCO [spent conviction order].
As children witnessed this: may need counselling.
[Applicant] to see duty lawyer. Get further advice re other matters."
These notes make it plain that, before pleading guilty, the applicant received comprehensive legal advice. As I understand the notes, the advice was to the effect that the possibility of a term of imprisonment was decreased in his case, because it was his first offence and he had no criminal record, but that it was unlikely that he would not have a criminal record if convicted of the assault occasioning bodily harm. Consequently, and assuming that the lawyer who wrote those notes would give evidence in accordance with them, this evidence would be of little assistance to the applicant and, indeed, seems to me to defeat his contention that he relied upon the advice given to him by the police. Also, as was pointed out by Roberts-Smith JA, the applicant had the benefit of advice from his trial counsel before pleading guilty to the offence on the second occasion. In any event, the fact that the applicant received a higher sentence than had been anticipated does not amount to a miscarriage of justice: Hogue, above, at [37] - [39] and Lim v Bateman [1999] WASCA 305 at [34], [39] per Scott J.
In the course of his oral submissions, the applicant relied also upon the fact that he had hoped to reconcile with his wife, that he had not wanted to fight her in court and that he thought it would be easier just to "take the rap". However, these matters are insufficient to establish that a miscarriage of justice has occurred. In Meissner (at 157) Dawson J said:
"It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred."
Finally, in the materials received since the hearing of the appeal, the applicant has sought to rely upon the case of Kelly & Connollyv The Queen [2002] EWCA Crim 2957. In that case convictions of one of the two appellants (Connolly), on charges of robbery and conspiracy to rob, were overturned, notwithstanding his pleas of guilty, but only because of extraordinary circumstances that are very dissimilar to those relied upon in this case. Connolly's plea of guilty had been made in circumstances in which there had been a non‑disclosure of important evidence by the Crown and in which his co‑offender (whose conviction, after trial, was also overturned) had been convicted of murder and sentenced to death. This last circumstance had resulted in Connolly's counsel advising him to plead guilty on the terms available to him. The Court considered that, had the undisclosed evidence been available, Connolly's counsel's advice might well have been different.
It consequently seems to me, with respect, that Roberts-Smith JA was right in his conclusion that this ground has no merit. None of the matters raised in the applicant's grounds of review affects that conclusion.
Ground 2
As to the second ground, there is nothing in the available evidence to suggest that any advice given to the applicant, or any failure to advise him, has resulted in a miscarriage. I have already said that the Legal Aid notes upon which the applicant relies are of no assistance to him. Moreover, they disclose that he was advised of "Options re plea". While the applicant relies upon the fact that the Legal Aid lawyer advised him that the police had enough medical evidence to prosecute, it is plain, from the notes, that this advice was given to the applicant in connection with the question of whether or not the charges would be dropped if Mrs Vella withdrew her complaint and not in respect of the question whether or not he should plead guilty. Also, while it may be so, as the applicant contends, that no detailed advice was given as regards potential defences that might be open to him (leading him, as he now says, to believe that he should plead guilty if he caused his wife's injuries, no matter what the circumstances might have been), that may be because, on the facts disclosed to the Legal Aid lawyer, there was no apparent defence.
In any event, even on the applicant's own version of events as given in the course of his murder trial, no obvious defence presents itself. Even if Mrs Vella was drunk, as he now contends, his evidence at the trial was that he lost his temper, grabbed her by her hair and "just kept on pushing her back, pushing her back" until she took two steps and fell back against the stairs. There consequently seems to be little scope for the defence of accident, even if that consequence was not intended or foreseen by the applicant, as it could not be said that it would not have been foreseen by an ordinary person: Kaporonovski v The Queen (1973) 133 CLR 209 at 231 per Gibbs J and Murray v The Queen (2002) 211 CLR 193 at 208. In any event, the grabbing of Mrs Vella's face, causing her nose to bleed and her head to hit the wall, could hardly be described as an accident. Nor could it be described as an act committed in self defence or one committed as a result of provocation sufficient to amount to a defence. I would not regard the fact that Mrs Vella stepped towards him and told him that she did not want to talk to him, even if taken in combination with other events leading up to that incident, as giving rise to any defence. This is so, even if (unknown to the applicant) Mrs Vella had wanted him to hit her so that it would be easier for her to leave him and move in with Mr Susta. Any provocation must have been such as to have been likely, when done to an ordinary person, to deprive that person of the power of self control and to induce him to assault the person from whom the provocation emanated: s 245 of the Criminal Code (WA). I do not consider that the events relied upon can sensibly be said to fit that description.
I am consequently not persuaded that ground 2 has any reasonable prospect of success.
Ground 3
I have said that, in his affidavit of 25 July 2005, the applicant has said that, after being told by Mr and Mrs Smith that Mrs Vella had told them that she was drunk at the time of the assault, he asked his counsel, Mr Bowden, whether he could change his plea and that he was told that he had "already pleaded". He also says that he then asked Mr Bowden to get a copy of the videotape of the police interview and that, after Mr Bowden had done so (although he never viewed the videotape), he "still insisted that … [the applicant] had pleaded and as if … [he] had no option".
It seems to me, as it did to Roberts-Smith JA, that there is insufficient in any of this to suggest that the applicant's plea of guilty was made in circumstances giving rise to a miscarriage of justice. He made that plea, in the Magistrates Court, after receiving comprehensive advice which does not seem to me to have been incorrect in any material respect. Moreover, as will be apparent, the applicant then had other reasons for pleading guilty, which, at the time, seemed to him to be valid, as to which see Meissner, above, at 157.
The fact that Mr Bowden had not viewed the videotape seems to me to be irrelevant. Nor does it seem to me that any of the other materials made available by the applicant to Mr Bowden (or which, he says, Mr Bowden should have obtained), including the letter from Ms Berry, the evidence of Mr and Mrs Smith and other evidence which tended to show that Mrs Vella had been having an affair and had wished to "set him up", is of any assistance to the applicant.
I should mention that the applicant provided the Court with an affidavit sworn by his sister, Josephine Sacco, on 3 November 2005, in which she confirmed that she had urged her brother to listen to Mr Bowden, who had complained to her that he did not do so. While this might have contributed to the applicant accepting Mr Bowden's advice, for the reasons that I have already given that does not seem to me to have resulted in any miscarriage.
Finally, so far as this ground is concerned, the applicant referred us to the case of Re Knowles [1984] VR 751. In that case a conviction was set aside and a new trial was ordered because the petitioner's counsel had made a fundamental error in the conduct of the petitioner's defence, resulting in a miscarriage of justice. However, there was nothing of that kind in this case.
Ground 4
As to ground 4, the new or fresh evidence relied upon by the applicant is essentially the evidence of Mr and Mrs Smith, the evidence of the telephone call to Mr Susta when Mrs Vella was pretending to call Dr Brockhoff, evidence of other telephone calls made by Mrs Vella to Mr Susta before the incident which led to the charge of assault, evidence of deceit and other forms of dishonesty or immorality on the part of Mrs Vella (primarily but not solely relating to the affair that she was having and to the allegation that she wished to end the marriage and "set … [him] up" accordingly), evidence which was said to demonstrate that Mrs Vella had married the applicant for his money and evidence of deceit on the part of Mr Susta. None of this raises any arguable defence to the assault charge. The applicant did not suggest that he was provoked into assaulting Mrs Vella as a consequence of her deceit or dishonesty or as a consequence of the fact that she was having an affair (which was not then known to him). He was, at the time, himself able to evaluate the extent to which she was affected by alcohol. Moreover, as I have said, alcohol played no part in the injuries which arose out of the initial assault, being the nose bleeding and the injuries which resulted from Mrs Vella's head being banged against the wall. Nor, as I have said, does the evidence relied upon by the applicant support a defence of provocation, self defence or accident, in that respect.
Other evidence that has since been submitted on behalf of the applicant is also irrelevant. This includes medical records in respect of Dominic Vella, materials said to establish that Mrs Vella had access to sums of money (contrary to what she had said) and evidence of interviews which Mr Bowden had with the applicant's children. Also irrelevant is evidence that Mrs Vella was a secret smoker. The same is true of evidence to the effect that, in 1991, when the applicant went to Malta to visit his parents, shortly before he and Mrs Vella were married, Mrs Vella's then ex‑boyfriend moved into the house and lived with her during that time. This, too, was not known by the applicant at the time of the assault. In an affidavit dated 14 May 2006, sworn by him, he has said that the "betrayal and awakening" stage of finding out what had really been going on with Mrs Vella occurred only after 12 November 2003.
It consequently seems to me, as it did to Roberts-Smith JA, that ground 4 has no reasonable prospect of success.
Grounds of review
That brings me to the six grounds of review.
As to the first of these grounds, it will be apparent from what I have already said that none of the new or fresh evidence referred to and relied upon by the applicant, even if all of it was assumed to be admissible, is of any assistance to him in respect of any of his grounds of appeal.
As to the second ground, it seems to me that, if the applicant is right in his suggestion that Roberts-Smith JA did not view the videotape, there was no need for him to have done so. Even if the contents of that videotape are admissible, the best evidence of what took place in the course of the assault, so far as the applicant is concerned, is that which he gave himself under oath at the murder trial. Moreover, as I have said, the applicant had told Roberts-Smith JA that there was no significant variation between the account that he gave to the police and the account that he gave in evidence. I have viewed the videotape and, to a large degree, that statement is correct. Such differences as there are seem to me to work against, rather than for, the applicant's prospects of raising a defence to the charge of assault occasioning bodily harm. So, for example, the applicant told the interviewing police officers that his wife had had a few drinks but that she "seemed to be in her right frame of mind". He said that the anger that he felt towards his wife at the material time was a product of her neglect of the family and her refusal to discuss the issue with him. He said nothing of any other form of provocation prior to the time when he pushed his wife against the wall, causing her nose to bleed and her head to hit the wall. While he said that his wife had thereafter kept coming towards him and "effing and blinding", and that he had pushed her away in self‑defence, he also said that he had followed her into the laundry (because she kept "hurling" insults at him) and that he had pushed her in the direction of the stairs because he knew that they were carpeted.
It follows that there is no substance to the second ground of review.
The third ground of review is to the effect that, because the applicant is in gaol, this creates a "Disparity of Resources" and "makes the process of getting evidence a very slow process". I do not doubt that this is true. However, that does not have the consequence of casting any doubt upon the correctness of the decision of Roberts-Smith JA.
The fourth ground relies upon the decision of the Court of Appeal, in England, in R v Foster [1985] QB 115; [1984] 3 WLR 401. In that case, the Court noted (at 125 – 126) that it is rare to allow fresh evidence to be heard after a plea of guilty has been made and said that the circumstances must be exceptional. The circumstances which pertained in that case were exceptional. The appellant, a man of low intelligence, had been convicted of sexual offences to which a serial sexual offender later confessed, in great detail. That case is consequently of no assistance to the applicant, there being, as I have said, no exceptional circumstances in this case.
The fifth ground of review challenges the rejection, by Roberts‑Smith JA, of the letter from Ms Berry to Mrs Vella. 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.
As to the last ground of review, I have considered all of the new and fresh evidence relied upon by the applicant. For reasons which will be apparent, in my opinion none of it is relevant to any defence that might have been raised by the applicant to the charge to which he pleaded guilty. There is nothing to suggest that any more relevant evidence is likely to be forthcoming.
I should add that, to the extent to which this is still a live issue, I can see no reason to make an order that the appeal proceedings, or any part of them, should be closed to the public or to any part of it. I would consequently not be prepared to interfere with the decision of the primary Judge in that respect. Finally, I should say that no sufficient reason has been advanced for this Court to reserve its judgment until all appeals have been heard.
Conclusion
It follows that, in my opinion, leave to appeal was rightly refused and no ground of review has been made out.
WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
BUSS JA: I agree with the President.
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