Vella v The State of Western Australia [No 2]
[2025] WASCA 70
•9 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VELLA -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 70
CORAM: MAZZA JA
MITCHELL JA
VANDONGEN JA
HEARD: 13 AUGUST 2024
DELIVERED : 9 MAY 2025
FILE NO/S: CACR 97 of 2023
BETWEEN: JOSEPH BERNARD VELLA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 98 of 2023
BETWEEN: JOSEPH BERNARD VELLA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 99 of 2023
BETWEEN: JOSEPH BERNARD VELLA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
For File No: CACR 97 of 2023
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SIMMONDS J
File Number : INS 100 of 2004
For File No: CACR 98 of 2023
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SIMMONDS J
File Number : JO 9780 of 2003
For File No: CACR 99 of 2023
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SIMMONDS J
File Number : JO 2440 of 2004
Catchwords:
Criminal law - Appeal against conviction - Second or subsequent appeals - Applications for leave to appeal under s 35F of Criminal Appeals Act 2004 (WA) - Appellant convicted after trial of the wilful murder of his estranged wife - Appellant convicted on his plea of guilty of assault occasioning bodily harm - Where appellant's first conviction appeals dismissed in 2006 and 2007 - Where appellant seeks to allege miscarriage of justice by reason of conduct of trial counsel - Whether court has jurisdiction under s 35E of Criminal Appeals Act to hear second or subsequent appeal against conviction in respect of summary offence - Whether grounds of appeal allege fresh and compelling, or new and compelling, evidence within meaning of s 35D of Criminal Appeals Act - Whether grounds of appeal seek to merely relitigate arguments already considered in first conviction appeals - Where applications are hopeless and tantamount to an abuse of process
Criminal law - Appeal against conviction - Application for leave to appeal under s 27 of Criminal Appeals Act - Appellant convicted on his plea of guilty of breaching a violence restraining order - Where appeal notice filed 18 years out of time - Whether appellant's plea of guilty was obtained by improper inducement, fraud, or intimidation and the like by trial counsel
Practice and procedure - Interim applications - Application for recusal - Application for proceedings to be heard by coram of interstate judges - Whether association between members of the legal profession and judiciary in this State creates reasonable apprehension of bias - Applications for bail pending appeal - Application for adjournment so appellant may seek writ of mandamus from High Court
Legislation:
Criminal Appeals Act 2004 (WA), s 23, s 27, s 35B, s 35D, s 35E, s 35F, s 35G
Criminal Code (WA), s 278 (repealed), s 281 (repealed), s 282 (repealed), s 317
Restraining Orders Act 1997 (WA), s 61
Sentencing Act 1995 (WA), s 31, s 32, s 33
Supreme Court (Court of Appeal) Rules 2005 (WA), r 28A
Result:
CACR 97 of 2023
Leave to appeal refused
Appeal dismissed
CACR 98 of 2023
Leave to appeal refused
Appeal dismissed
CACR 99 of 2023
Extension of time within which to appeal refused
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
CACR 97 of 2023
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 98 of 2023
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 99 of 2023
Counsel:
| Appellant | : | In person |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Adams v The State of Western Australia [2014] WASCA 191; (2014) 290 FLR 165
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
Borsa v The Queen [2003] WASCA 254
Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Ding v De Wit [2024] TASSC 6
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441
JS v The State of Western Australia [2014] WASCA 177
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Luo v The King [2025] WASCA 36
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Orr v Geason [2024] TASMC 11
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148
Rahimi v The State of Western Australia [2024] WASCA 13
Rajski v Powell (1987) 11 NSWLR 522
Re The State of Western Australia; Ex parte Vella [No 2] [2012] WASCA 272
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tang v The Queen [2024] WASCA 110
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
The State of Western Australia v Rayney [No 3] [2012] WASC 404
The State of Western Australia v Watson [1990] WAR 248
Vella v Bowden [2011] WASCA 158
Vella v Bowden [No 2] [2012] WASCA 271
Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78
Vella v Michael John Bowden of Cannon Bowden & Co [No 3] [2014] WASC 98
Vella v The State of Western Australia [2006] WASCA 129
Vella v The State of Western Australia [2006] WASCA 177
Vella v The State of Western Australia [2006] WASCA 30
Vella v The State of Western Australia [2007] HCATrans 167
Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411
Vella v The State of Western Australia [2008] HCASL 552
Vella v The State of Western Australia [2012] HCASL 81
Vella v The State of Western Australia [2024] WASCA 48
Wharton v The Queen [No 2] [2017] WASCA 164
Wilhelm v The State of Western Australia [2013] WASCA 188
Wimbridge v The State of Western Australia [2009] WASCA 196
Zhong v The King [2023] VSCA 35
Table of Contents
Mazza & Mitchell JJA
Introduction
The present proceedings
The recusal application
The trial
The State case
The defence case
The appellant's first appeals against conviction
The wilful murder offence
The AOBH offence
The appellant's purported second appeals under pt 3A of the CAA
The statutory framework of pt 3A of the CAA
Were the appeals in CACR 97 of 2023 and CACR 98 of 2023 validly commenced?
The ground of appeal in CACR 97 of 2023 and CACR 98 of 2023
The ground of appeal in CACR 97 of 2023 and CACR 98 of 2023 is defective
The alleged fresh and compelling, or new and compelling, evidence
The correspondence between the appellant and Mr Bowden between 2004 and 2006
Extracts from the 2014 proceedings
The appellant's submissions in CACR 97 of 2023 and CACR 98 of 2023
Disposition - CACR 97 of 2023
Disposition - CACR 98 of 2023
Disposition - CACR 99 of 2023
Other applications brought by the appellant
Conclusion
Orders
CACR 97 of 2023
CACR 98 of 2023
CACR 99 of 2023
Vandongen JA
Recusal application
Adjournment application
Applications for bail
Part 3A of the Criminal Appeals Act
CACR 97 of 2023: Second or subsequent appeal against conviction for wilful murder
CACR 98 of 2023: Second or subsequent appeal against conviction for AOBH
CACR 99 of 2023: Leave to appeal against conviction for breach of VRO
MAZZA & MITCHELL JJA:
Introduction
On 11 March 2005, after a four‑day trial in the Supreme Court before Simmonds J and a jury, the appellant was convicted of the wilful murder of his wife, Ruth Vella, contrary to s 278 (repealed) and s 282 (repealed) of the Criminal Code (WA) (the Code).
On 22 April 2005, the appellant was sentenced for the wilful murder offence. Pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), the appellant's counsel requested that he also be sentenced in respect of two summary offences, commenced by complaint, which had been before the Joondalup Court of Petty Sessions. The first of these was one count of assault occasioning bodily harm, contrary to s 317(1) of the Code (the AOBH offence). The second was one count of breaching a violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the breach of VRO offence). In each case, Mrs Vella was the alleged victim. The appellant pleaded guilty to both of these offences.
Simmonds J imposed the following sentences:
Wilful murder: Strict security life imprisonment, with a non‑parole period of 20 years' imprisonment
AOBH offence: 18 months' imprisonment
Breach of VRO offence: 11 months' imprisonment
His Honour ordered that the sentences for the summary offences be served concurrently with the sentence for the wilful murder offence.
The appellant appealed against his convictions for the offences of wilful murder and assault occasioning bodily harm pursuant to pt 3 of the Criminal Appeals Act 2004 (WA) (the CAA).[1] Those appeals were dismissed (the appellant's first appeals): see Vella v The State of Western Australia [2006] WASCA 177; Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411; Vella v The State of Western Australia [2006] WASCA 30; Vella v The State of Western Australia [2006] WASCA 129.
[1] The appellant also appealed against his sentence in respect of the wilful murder offence. Ultimately, that appeal was dismissed: see Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411 [84] ‑ [93] (Wheeler JA), [100] ‑ [102] (Buss JA). It is of no relevance to the present proceedings.
The appellant applied to the High Court of Australia for special leave to appeal in respect of each of his appeals against conviction. These applications, and a later application to reopen the respective applications for special leave, were also dismissed.[2]
[2] Vella v The State of Western Australia [2007] HCATrans 167; Vella v The State of Western Australia [2008] HCASL 552; Vella v The State of Western Australia [2012] HCASL 81.
In addition to the criminal proceedings referred to above, the appellant has brought, or sought to bring, two civil actions; each, in effect, aimed at undermining the convictions. It is only necessary to refer to one of these actions. The appellant commenced civil proceedings against his counsel in the criminal proceedings, Mr M J Bowden (now his Honour Bowden DCJ.[3] In these reasons, we will refer to him as Mr Bowden or defence counsel). A substantial portion of these claims were struck out as an abuse of process, essentially on the basis that they involved a collateral attack on the appellant's convictions and the decisions of this court in the associated criminal appeals: see Vella v Michael John Bowden of Cannon Bowden & Co,[4] and Vella v Bowden [No 2].[5] On 1 April 2014, the balance of the claims against Mr Bowden were dismissed after trial by Kenneth Martin J: Vella v Michael John Bowden of Cannon Bowden & Co [No 3] (the 2014 proceedings).[6]
[3] His Honour was appointed to the District Court of Western Australia on 6 March 2007.
[4] Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78.
[5] Vella v Bowden [No 2] [2012] WASCA 271.
[6] Vella v Michael John Bowden of Cannon Bowden & Co [No 3] [2014] WASC 98.
Up until 1 January 2023, an offender had only one appeal (with leave) against conviction of an offence on indictment. An offender was not entitled to commence multiple appeals against the same conviction.[7]
[7] Tang v The Queen [2024] WASCA 110 [15], citing JS v The State of Western Australia [2014] WASCA 177 [4] ‑ [5].
However, on 1 January 2023, pt 3A of the CAA commenced operation; with retrospective effect.[8] Part 3A confers a second or subsequent right of appeal against conviction of an offence on indictment (with leave), but only in circumstances confined to there being fresh and compelling evidence, or new and compelling evidence, relating to the offence.[9] This brings us to the present proceedings.
[8] See CAA, s 35B.
[9] CAA, s 35E(1).
The present proceedings
On 23 August 2023, the appellant filed appeal notices, purportedly pursuant to pt 3A of the CAA, in respect of his convictions for wilful murder (CACR 97 of 2023) and the AOBH offence (CACR 98 of 2023).
Also on 23 August 2023, the appellant filed an appeal notice in which he sought leave to commence, 18 years out of time, an appeal against conviction for the breach of VRO offence (CACR 99 of 2023). To be clear, this is not a second or subsequent appeal under pt 3A of the CAA. Rather, it is an appeal pursuant to pt 3 of the CAA. Leave to appeal is required in a pt 3 appeal,[10] although, as will be seen, the test for a grant of leave to appeal in a pt 3 appeal is much less demanding than that which applies in a pt 3A appeal.
[10] CAA, s 27(1).
The principal issue to be decided in these proceedings is whether the appellant should be granted leave to appeal in respect of the appeals referred to at [9] and [10] above.
For the reasons that follow, in each matter, leave to appeal should be refused and each appeal is therefore taken to be dismissed.
The recusal application
At the outset of the hearing before this court on 13 August 2024, the appellant sought that all members of the coram recuse themselves from hearing and determining his applications for leave to appeal, on the basis that a fair‑minded lay observer might reasonably apprehend that each member of the coram might not bring an impartial and unprejudiced mind to the resolution of the proceedings before the court.[11] The appellant contended that no judge of the Supreme Court of Western Australia could properly sit in these proceedings. He submitted that only a coram of interstate judges should sit. The appellant raised similar arguments at an earlier directions hearing before this court: see Vella v The State of Western Australia.[12]
[11] Appeal ts 41 - 42.
[12] Vella v The State of Western Australia [2024] WASCA 48. See also, Vella v Bowden [2011] WASCA 158.
As the appellant's reasons for seeking the recusal of the coram applied to each member, the parties' submissions were made in the presence of the coram as a whole. At the conclusion of oral argument, and after a short adjournment, the court announced that each member of the coram was independently, and collectively, satisfied that no reasonable apprehension of bias existed in respect of any individual member of the coram, nor the coram as a whole. Accordingly, in each appeal, the application for recusal was dismissed. The court said that its reasons for those conclusions would be published at a later date. These are our reasons.
The test to be applied in respect of an allegation of apprehended bias is well settled and need not be repeated. It was recently described by Gordon J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[13]
[13] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 [67] ‑ [71], citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.
The appellant submitted that a fair‑minded lay observer might reasonably apprehend that each member of the coram might not bring an impartial and unprejudiced mind to the resolution of the present proceedings because of the following combination of factors:
(a)in the appellant's previous conviction appeals, Wheeler JA allegedly exhibited actual bias against him;
(b)Wheeler and Buss JJA allegedly misinterpreted the law of provocation in the first wilful murder conviction appeal to 'protect' Mr Bowden;
(c)Buss JA (now Buss P) remains a serving member of the Court of Appeal;
(d)Mr Peter Quinlan SC (now Quinlan CJ) was counsel for Mr Bowden in the 2014 proceedings;
(e)the close professional and physical proximity of the judiciary of the Supreme Court of Western Australia to other judges (including judges in its own and other courts, such as the District Court); and
(f)this court's reasons for dismissing the appellant's previous applications for recusal in Vella v The State of Western Australia [2024] WASCA 48, by which it became 'blatantly obvious the coram was neither interested in the facts or the truth'.
In our opinion, there is no merit in these submissions.
The allegation in par (a), that Wheeler JA acted with actual bias against the appellant, is without foundation. So, too, is the proposition in par (b), that Wheeler and Buss JJA misinterpreted the law of provocation as it then applied to the crime of wilful murder.[14] In Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411, Wheeler and Buss JJA held that the appellant's complaints about provocation (grounds 18, 19 and 20), as dealt with by Roberts‑Smith JA in Vella v The State of Western Australia [2006] WASCA 177, lacked substance. This conclusion is plainly correct. As to the propositions in par (c) and par (d), neither Buss P nor Quinlan CJ are, or have ever been, part of the coram in the present proceedings. Their current positions within the Supreme Court of Western Australia do not give rise to a reasonable apprehension of bias by any member of the current coram.
[14] As to which, see s 281 (repealed) of the Code and the detailed analysis set out in Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 [37] ‑ [104] (Steytler J).
As explained in Vella v The State of Western Australia [2024] WASCA 48 [40], the notion that a judge of the Supreme Court who is appointed to sit on these proceedings might fail to bring an impartial mind to the resolution of the appellant's appeals merely because Mr Bowden was a member of the legal profession, or is now a 'fellow judge', cannot be accepted. A fair‑minded lay observer would understand that it is the duty of any judge who sits in this court to decide criminal appeals brought to it, whether under pt 2, pt 3, or pt 3A of the CAA; and to do so fairly, fearlessly and independently, without regard to the fact that performing that duty may require the judge to scrutinise the conduct of a 'fellow judge'. It is anathema to a judge to decide a case in a particular way in order to preserve the sensitivity, status or reputation of the judge whose decision is under appeal. We repeat the observation of Kirby P in Rajski v Powell:[15]
[T]he aspiration of the neutral application of the law and the achievement of justice according to law, requires of judges that, when dealing with a claim brought against a judicial colleague, they should be vigilant to uphold the lawful rights of litigants. This approach must regularly be taken, particularly in appellate courts, which are not unaccustomed to hearing allegations of error of fact and law, excess of jurisdiction and even bias on the part of judicial officers.
[15] Rajski v Powell (1987) 11 NSWLR 522, 532, cited with approval in Re The State of Western Australia; Ex parte Vella [No 2] [2012] WASCA 272 [15].
This court, on a daily basis, is required to decide appeals brought against the decisions of a 'fellow judge'. As the thousands of decisions of this court reveal, this is simply what appellate judges do every day.[16] The appellant's case is no different.
[16] See also, The State of Western Australia v Watson [1990] WAR 248, 264.
As to par (e), also, as this court observed in Vella v The State of Western Australia [2024] WASCA 48 [41], a fair‑minded lay observer would not consider that justice cannot be given to the appellant simply because members of the legal profession and judges work predominantly within the Perth CBD, and therefore within close physical proximity to each other.
The appellant drew this court's attention to the case of Mr Lloyd Rayney, in which an interstate judge was appointed to conduct his judge‑alone trial for the charge of wilful murder,[17] and a coram of three interstate judges was later appointed to hear the State's appeal against Mr Rayney's acquittal.[18] The appellant also referred the court to the recent case in which a then‑serving judge of the Supreme Court of Tasmania, Geason J, was charged summarily with two criminal offences. In that case, all serving Tasmanian magistrates recused themselves,[19] and a magistrate from interstate was appointed to preside over his trial and sentencing.[20] The appellant regards these cases as analogous to his case.
[17] The State of Western Australia v Rayney [No 3] [2012] WASC 404.
[18] The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1.
[19] See Ding v De Wit [2024] TASSC 6 [3].
[20] Orr v Geason [2024] TASMC 11.
In truth, there is no analogy. Both of the cases referred to by the appellant are, factually, very different from the present case. In the case of Mr Rayney, an interstate judge (and, on the State appeal, a coram of interstate judges) was appointed in circumstances where the deceased was, at the time of her death, a registrar of the Supreme Court; that is, the very court that would be required to try Mr Rayney and hear any appeal. In the case of Geason J, he was a serving Supreme Court judge charged with criminal offences before a magistrate, who occupies a lower position in the same judicial hierarchy.
Nothing raised by the appellant would give rise to a reasonable apprehension, in a fair‑minded lay observer, that any member of this coram might not bring an impartial or unprejudiced mind to the questions to be decided in these proceedings. For these reasons, we were each independently, and collectively, satisfied that there was no impediment to any member of this coram sitting on the applications for leave to appeal.
The trial
The State case
The State case in respect of the offences was as follows.[21]
[21] This summary is taken mostly from the transcript of the trial and from the judgments in Vella v The State of Western Australia [2006] WASCA 129 and Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411.
The appellant and Mrs Vella lived with their four children at their home in the suburb of Kallaroo.
On 12 November 2003, Mrs Vella and a relative, who was visiting from England, had gone on a river cruise. At about 7.00 pm, Mrs Vella returned to the home, following which an argument developed. In the course of the argument, the appellant grabbed Mrs Vella's face with his left hand with enough force to cause her nose to bleed, and the back of her head hit the brick wall behind her. A tussle between the two ensued. Mrs Vella then went into the laundry. The appellant followed her. There, the altercation continued and the appellant pushed Mrs Vella, causing her to fall backwards down a flight of stairs. She hit her ribcage on the stairs and lost consciousness for a short period of time. When she regained consciousness, she told the appellant to call the hospital because she could not breathe. In response, the appellant went around the house and pulled all of the telephones out of their sockets. Eventually, Mrs Vella was taken 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.
On 13 November 2003, the Court of Petty Sessions at Joondalup made an interim violence restraining order against the appellant, arising out of the incident the day before. The violence restraining order prohibited the appellant from entering upon the home, or being within 100 m of the nearest external boundary of the premises. It also prohibited the appellant from behaving in an intimidatory or offensive manner towards Mrs Vella, and from behaving in a manner likely to lead to a breach of the peace. The order also required the appellant to leave the family home. On 20 November 2003, the appellant was served with the interim violence restraining order.
On 17 November 2003, the appellant was charged by complaint (JO 9780 of 2003) in the Joondalup Court of Petty Sessions that on 12 November 2003 at Kallaroo, he unlawfully assaulted Mrs Vella and thereby did her bodily harm, contrary to s 317(1) of the Code. On 18 November 2003, the appellant, after receiving legal advice from a Legal Aid lawyer, pleaded guilty to the charge.
At various times late in the evening of 28 December 2003 and in the early hours of 29 December 2003, in breach of the violence restraining order, the appellant attended the family home. He saw Mrs Vella with another man, Mr S. Eventually, he watched the man leave the home. After the man left, the appellant forcibly entered the home and then the bedroom occupied by Mrs Vella. He was armed with a knife he had recently purchased and subsequently sharpened. He was also armed with a baseball bat. At the time, the appellant's youngest child, then aged about 5 years, was present in the room. While Mrs Vella lay in her bed, and still in the presence of the appellant's 5‑year‑old son, the appellant struck four heavy blows to Mrs Vella's head using the baseball bat; inflicting injuries that would have alone been sufficient to cause her death. She also suffered substantial injuries to her left wrist and elbow as she attempted to fend off at least some of these blows. The appellant then used the knife to inflict a catastrophic wound to her neck. On its own, this injury would also have been sufficient to cause her death, and Mrs Vella died almost immediately.
The State's case was that the appellant went to the home armed with the baseball bat and the sharpened knife. He then forcibly entered the home and Mrs Vella's bedroom, where he killed her by bashing her with the baseball bat and cutting her throat. Having regard to all the circumstances, it was plain that the appellant intended to kill his wife. Any notion that the appellant did not intend to kill his wife or that, if he did form such an intention, he did so under provocation, was fanciful.
The defence case
On arraignment at his trial, the appellant pleaded guilty to manslaughter. This plea was not accepted by the State in satisfaction of the indictment. The appellant admitted, pursuant to s 32 of the Evidence Act 1906 (WA), that he had unlawfully killed Mrs Vella. The only live issues at the trial related to the appellant's intention at the time that he killed Mrs Vella and whether he had done so under provocation pursuant to s 281 (repealed) of the Code.
The appellant testified in his defence. He was the only defence witness.[22]
[22] ts 242.
The appellant testified that his wife travelled to England in around March or April 2003. Prior to doing so, their relationship was 'normal'. However, upon her return, he reportedly noticed changes in her appearance and in her demeanour.
The appellant testified that, after her return from England, his wife obtained employment at the Glengarry Tavern. She then purchased a mobile telephone after receiving her first pay and began texting 'left, right and centre', and 'going out a lot more'.[23]
[23] ts 246.
The appellant further testified that, in late October 2003, a relative of Mrs Vella's known as 'Uncle Brian' arrived from the United Kingdom. The appellant noticed that Mrs Vella spent a lot of time with him. He also noticed that, when she was working, Mrs Vella often stayed behind for 'after drinks' and would come home at about 1.00 am or 2.00 am. It also came to the appellant's attention that his wife was going out with Uncle Brian and another person (Mr S). On one occasion in early November 2003, the appellant said that he saw Mrs Vella give this person 'a quick kiss'.[24]
[24] ts 248.
The appellant said that, at about this time, Mrs Vella told him that she had been 'sacked' from the Glengarry Tavern.
The appellant testified about the events of 12 November 2003. He said that Mrs Vella and Uncle Brian spent the day on a river cruise. Mrs Vella and Uncle Brian did not return home in time for Mrs Vella to cook dinner for their children, as the appellant had expected. When they did return, the appellant attempted to speak to his wife about how, in his opinion, she had been neglecting their family. As he did so, Mrs Vella took two steps towards him and said, 'I don't want to talk to you'. This took him by surprise. The appellant reacted by pushing her backwards, into a wall. After this, events 'sort of … settled'. However, according to the appellant, Mrs Vella suddenly came from behind and punched him in the ear. The appellant then lost his temper. He grabbed Mrs Vella by her hair and took her into the kitchen, where she started 'flailing and everything'. One of their sons then 'got involved'. The appellant kept pushing Mrs Vella backwards. Mrs Vella took two steps and fell backwards up, not down, the stairs, sustaining serious injuries.
The appellant agreed, in his evidence, that he was charged with the AOBH offence and that he pleaded guilty to it.[25]
[25] ts 252.
The appellant also agreed that he was served with a violence restraining order, as a result of which he left the family home.
The appellant testified to the effect that, initially, he thought he and his wife might get back together, but, after he found out that Mrs Vella had started a relationship with another person, he was 'not very keen' and began to prepare for Family Court proceedings, including proceedings in respect of the custody of their children.
The appellant admitted that, on 27 December 2003, he purchased a knife and an item of clothing referred to interchangeably at trial as either a black beanie or a woollen cap. He said that he purchased the knife to slash the tyres of a vehicle that, apparently, belonged to Mr S, a man who he believed Mrs Vella was dating. He purchased the beanie to hide his identity. On 28 December 2003, he purchased a sharpening stone. He used the sharpening stone to sharpen the knife. The appellant said that he did this because he did not believe the knife was sharp enough to cut the tyres.
In the early hours of 29 December 2003, the appellant drove to the family home. He did so to find out if Mr S was there. Upon the appellant's arrival at the home, he saw a vehicle that he did not recognise. He said that he thought Mrs Vella 'was cheating on [Mr S]'.[26]
[26] ts 267.
The appellant testified that he looked through one of the lounge room windows and saw Mrs Vella and the back of a man. He noticed that Mrs Vella was smoking a cigar. The appellant rang 000 and reported that people in the house were smoking marijuana. Altogether, he made three telephone calls to the police to this effect, within the space of one hour.
The appellant said that, ultimately, he returned to the family home. He went there with the sharpened knife and a baseball bat. After parking his car nearby at the country club, he walked to the home carrying the knife and the baseball bat. As he got closer, he was able to see Mrs Vella and a man through the window. A short time later, the man came out of the house, got into a vehicle and 'took off'.[27]
[27] ts 271.
The appellant said that he then knocked on the front door of the home. At this point, the knife was in his pocket and he was carrying the baseball bat. The appellant said that it never entered his mind not to carry these items with him to the front door.
The appellant testified that when he got to the front door, he was 'calm, very calm'.[28]
[28] ts 271.
When he got to the door, the appellant said that he heard Mrs Vella say, 'You will never see the kids again. I'm going to make sure you never see those kids again'. He described her manner of speaking as 'spitting … venom'.
According to the appellant, Mrs Vella continued, 'Because I kicked you out of the fucking house, I will stop you seeing the children and I will destroy you. You'll never see those kids again'. Her tone of voice was 'very angry, venomous'.[29]
[29] ts 272.
The appellant said that he swore at Mrs Vella and kicked the front door until it opened. He heard Mrs Vella scream from the other side of the door, 'The kids hate you, the kids hate you', 'You'll never see the kids again', and 'The kids hate you'.[30]
[30] ts 272 - 273.
The appellant said that he ran to Mrs Vella's bedroom door and kicked that in too. The next thing he could recall was standing next to her bed, with the knife in his hand and a 'river of blood coming out of her neck'.[31] The appellant said that he did not recall using either the knife or the baseball bat.[32] He then ran from the home.
[31] ts 273.
[32] ts 273.
The appellant denied that he attended the home intending to kill Mrs Vella, or even to become involved in a physical confrontation with her.[33] He said that when Mrs Vella spoke to him through the front door, he reacted with 'disbelief'. After his wife made the statements alleged at [48] ‑ [50] above to him, he could not recall his actions; but he maintained that he had no intention of killing or injuring her, nor of becoming involved in a physical confrontation with her.[34]
[33] ts 274.
[34] ts 275.
Under cross‑examination, the appellant:
(a)admitted that, at the time he attended the family home on 29 December 2003, he was aware that he was subject to a violence restraining order and that he was violating the order by being at the family home; and he chose to ignore its effect;[35]
(b)described his actions on the morning of 29 December 2003 as the conduct 'of a desperate father';[36]
(c)said that, at the time he kicked Mrs Vella's bedroom door in, he had 'lost it';[37]
(d)confirmed that he had no recollection of striking Mrs Vella with the baseball bat or slashing her throat with the knife; and
(e)denied intending to kill her.[38]
[35] ts 284 - 285.
[36] ts 295.
[37] ts 296.
[38] ts 303.
The defence case was clearly put to the jury by Mr Bowden in his closing address.[39] Mr Bowden began his closing address by acknowledging the horrendous nature of Mrs Vella's death, and that the appellant had accepted that he was guilty of manslaughter. He urged the jury to put aside any emotion or prejudice, and to examine the case having regard only to the evidence.
[39] Mr Bowden's closing address, ts 2 - 15.
The thrust of the defence case was that, by 29 December 2003, the appellant had accepted that the marriage was over. He was focussed on questions of custody of, or access to, his children; and he was gathering evidence in support of his case in the Family Court proceedings.
Mr Bowden submitted, based on the appellant's testimony, that he purchased and sharpened the knife, not with an intention of harming Mrs Vella but, rather, to slash the tyres of the vehicle belonging to his wife's possible new partner.
Mr Bowden also submitted that the appellant went to the family home on the night in question without any intention to kill or even harm Mrs Vella. He submitted that the appellant's acts of repeatedly calling 000 to report his wife to the police earlier that same morning were inconsistent with the existence of an intention to kill her.
Mr Bowden put to the jury that, when the appellant spoke to his wife through the front door and she uttered the words referred to at [48] ‑ [50] above, he flew into such a sudden rage that he was unable to form, and did not in fact form, an intention to kill.
Mr Bowden submitted that, even if the jury were satisfied beyond reasonable doubt that the appellant intended to kill his wife, he did so under provocation, such that what would otherwise have been an act of wilful murder was reduced to manslaughter.
Towards the end of his closing address, Mr Bowden put the appellant's defence of lack of intention and provocation in this way:[40]
[40] Mr Bowden's closing address, ts 13 - 15.
In this sort of case I say to you that the appropriate verdict is that of guilty of manslaughter. You could not be satisfied beyond reasonable doubt that he had formed an intention to kill, it's just inconsistent. If you're going around there to kill somebody you hardly ring the police and the calls are asking the police to come to the scene. That's the whole point of making the calls. The evidence relating to his state that I have just read to you is inconsistent with a man having formed an intention to murder.
What happens when he knocks on the door and the remarks relating to the children - that it is his one constant that he's fixed to - he simply acts out of control and out of a fit of rage. I say to you quite unashamedly that you could not be satisfied beyond reasonable doubt that he's guilty of having an intent either to kill or to cause grievous bodily harm. If having seen him give his evidence, if you believe what he has to say then of course it would be guilty of manslaughter.
If you're not sure whether you believe him or not it would also be guilty of manslaughter because if you're not sure whether you believe him or not you couldn't be satisfied of guilt beyond reasonable doubt. All the evidence relating to the baseball bat, all the evidence relating to the sharpening of the knife, all the evidence relating to the woollen cap doesn't take the matter any further.
As his Honour will tell you in due course, if you conclude that he did form an intent to kill then you have to go on and consider the question in law of what is known as provocation. Now, I say of course that you don't even reach that stage because I say that you could not be satisfied beyond reasonable doubt that he had an intent to kill or caused [sic] grievous bodily harm and the appropriate verdict is simply that of guilty to manslaughter.
His Honour when he addresses you on the law will tell you that even if you conclude that he did have an intent to kill the law recognises that by what is known as provocation that wilful murder; that is, having an intent to kill, can be reduced to the offence of manslaughter if in fact the accused is provoked. Remember, [it is] not up to us to prove that he was provoked but up to the prosecution to prove beyond reasonable doubt that he was not in fact acting under provocation.
The test, his Honour will explain it to you and I won't trespass on his Honour's area but the test is did the provocation cause the accused to lose his power of self-control and then whether an ordinary person so provoked could have - not would have lost control but could an ordinary person have lost his self-control and acted as the accused did. It's important when you are dealing with provocation to realise that the test relates to what [an] ordinary person, not a reasonable person but an ordinary person - whether an ordinary person could - not would but could have lost his self-control.
His Honour will address you on the question of provocation, which only applies, only applies, if you are satisfied beyond reasonable doubt that he had an intention to kill, then when you consider the question of provocation unless you are satisfied beyond reasonable doubt that the prosecution have proven that he wasn't provoked then of course it is reduced to manslaughter.
We say that you don't even reach that stage because we say that the evidence all points in one direction, all points in one direction; that is, that you are dealing with a person who was acting in a rage, who was acting - as he said 'lost the plot' and the horrific injuries which are caused a [sic] simply evidence of how out of control he was at that stage and anger and rage do not equate with an intention to cause death.
Ask yourself if he had intended when he purchased that knife to kill a person as opposed to what he said, an intention to slash a tyre, why on Earth would you ring the police and invite them on three separate occasions to come over to the premises? It's just inconsistent with having an intention to kill and it is not - I stress to you - it's not a question of approving of his conducting [sic] in any shape or form.
We have admitted at the outset that we are guilty of the offence of manslaughter. We accept that we have unlawfully killed or slaughtered a person. We have never tried to move away from that but what we do say is that when you consider all the facts and circumstances that the appropriate verdict is simply that of manslaughter.
The appellant's first appeals against conviction
The wilful murder offence
On 30 March 2005, the appellant filed a notice of appeal against conviction for the offence of wilful murder (CACR 36 of 2005). The appellant relied on 42 grounds of appeal, including grounds 1 to 5, which each alleged a miscarriage of justice by reason of the conduct of Mr Bowden. These grounds alleged that Mr Bowden did not call certain witnesses; failed to gather evidence the appellant wished to adduce; asked the wrong questions of the wrong witnesses; failed to properly prepare for the trial; and failed to cross‑examine diligently on inconsistent statements and perjury.
Roberts‑Smith JA refused leave to appeal on all but one of the 42 grounds (namely, ground 10), including all five grounds that alleged a miscarriage of justice by reason of Mr Bowden's conduct as defence counsel.[41] Roberts‑Smith JA comprehensively dealt with the five incompetence of counsel grounds.[42] His Honour noted, and dealt with, a submission by the appellant that Mr Bowden failed to gather evidence in relation to Mrs Vella's behaviour at the Glengarry Tavern, and that he failed to cross‑examine certain witnesses about that behaviour. His Honour observed that even if Mr Bowden had sought to adduce such evidence at the appellant's trial, there would be a very real question as to whether the behaviour the appellant ascribed to his wife was even capable of constituting provocation for the purposes of s 281 (repealed) of the Code. Moreover, unless he was present at the tavern (or anywhere else it was said she behaved 'promiscuously'), evidence from other people of what her actual behaviour was like would have been irrelevant and inadmissible.
[41] Vella v The State of Western Australia [2006] WASCA 177 [209].
[42] Vella v The State of Western Australia [2006] WASCA 177 [21] ‑ [37].
The appellant then sought a review of Roberts‑Smith JA's decision. On 15 March 2007, this court (Wheeler, Pullin & Buss JJA) refused the application for review, save for one ground (ground 6), which Wheeler and Buss JJA considered ought to have been granted leave. This court then unanimously dismissed the appeal against conviction in respect of the two grounds (ground 6 and ground 10) that had been granted leave.[43]
[43] Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411.
In her reasons, Wheeler JA dealt with the five incompetence of counsel grounds in some detail.[44] Her Honour agreed with Roberts‑Smith JA's analysis, and made some additional observations concerning Mr Bowden's alleged incompetence. Although lengthy, it is worthwhile quoting those observations in full:
[44] Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411 [24] ‑ [35].
When analysing counsel's conduct in this particular trial, it is necessary to bear in mind a number of matters. The appellant had, but a short time before her death, assaulted [Mrs Vella], causing significant injuries. He had relatively recently separated from her, and had made it plain to a number of witnesses that he was unhappy and angry about the circumstances of their separation, and about her behaviour. On the evening on which he killed his wife, he was seen by [Mr S] in the bedroom where [Mrs Vella] lay seriously injured. He was the only adult person to have had access to that room during the period in which those injuries were inflicted. It is probable that the infliction of those injuries had been witnessed by his own young son. He had been seen, in the period leading up to the fatal attack, to purchase a knife and a beanie. Even without his admissions at trial, it was abundantly clear that he was the person who had killed [Mrs Vella].
Further, against the background of a somewhat acrimonious separation, he had inflicted on [Mrs Vella] devastating injuries, a number of which would have been fatal on their own. Any counsel would face a very difficult task in convincing a jury that there was any doubt whatever as to whether the appellant had intended the inevitable consequences of his actions, or as to whether [Mrs Vella] might have said or done something which provoked the appellant to carry out his attack. Obviously, much would depend upon the jury's assessment of the appellant himself as he gave evidence and was cross‑examined.
The raising of a doubt would also be assisted by some evidence which might demonstrate that [Mrs Vella] herself was a person who, by reason of bad temper, or impulsivity and thoughtlessness, or perhaps some settled dislike of the appellant, might have behaved in a provocative way towards him. That latter task - of demonstrating that [Mrs Vella] may have been prone to provocative behaviour - could have been performed in one of two ways. The first, and the course apparently adopted by counsel, was a fairly 'broad brush' cross‑examination designed to allude to some aspects of [Mrs Vella's] behaviour which attracted disapproval from those who knew her, and which might have attracted the disapproval of the jury. The second might have been (subject to questions of remoteness and relevance) a more detailed examination of [Mrs Vella's] behaviour, by reference to some or all of the incidents about which the appellant complained before us.
There were considerable dangers for the appellant attendant upon the second possible course. One danger was that many of the incidents and behaviours spoken about by the appellant were not things of which he had any direct personal knowledge, but rested upon hearsay and inference. Cross‑examination of witnesses directed to establishing those matters might therefore have failed to achieve its end, and the appearance might then be given to the jury that the appellant was prepared to instruct his counsel to blacken the character of [Mrs Vella] with untrue allegations.
That course also presented the danger that, even if the various allegations against [Mrs Vella] were supported by evidence, a jury might consider that many of them were no more than the sort of unfortunate, but not uncommon, behaviour which can occur in a marriage which is unhappy. Assuming that the jury understood that questions about those matters were put to witnesses on the instructions of the appellant, there was a real risk that they would then form a view that he was a person prone to dwelling obsessively on marital offences and magnifying [Mrs Vella's] faults out of their proper proportion. One can well understand, in that context, why this defence counsel, who had long experience in criminal trials, did not explore at trial every avenue which the appellant now says should have been explored.
There were two matters relating to counsel's conduct which were particularly referred to by the appellant before us, which do not appear to feature in the reasons of Roberts‑Smith JA; it is therefore desirable to mention them briefly.
A considerable proportion of the appellant's argument before us was devoted to the proposition that counsel's cross‑examination of [Mr S] was inadequate. A particular aspect of that inadequacy emphasised by the appellant, was his failure to cross‑examine [Mr S] in relation to [Mr S's] evidence that he had seen a person who appeared to be the appellant looking in at the window of the house at Kallaroo. The appellant asserted that, when one looked at one of the photographs which was put in evidence, it was not possible to see out of the window in that photograph, which was taken in daylight. He said that it followed that at night, with no lighting, it would have been impossible for [Mr S] to have seen him, let alone to have recognised him. He further said there were inconsistencies in [Mr S's] evidence about the direction in which he had seen the person he had allegedly observed running away from the house.
It is difficult to imagine a less profitable line of cross‑examination. As I mentioned to the appellant during the course of argument, examination of the photograph suggests that it probably is possible to see out of the window in daylight. As to the position at night, there was simply no evidence about the nature of the lighting in and around the house, or in the street, or about the degree of ambient light generally. Most importantly, it is undeniable that something caused [Mr S] to leave the house suddenly. It is undeniable that [Mr S] returned after a very brief time. It is conceded by the appellant that he was in fact in the garden near the window. In those circumstances, [Mr S's] evidence was both internally coherent and consistent with the known facts. Cross‑examination on this issue would be more likely to bolster [Mr S's] credibility than to weaken it.
Finally, the appellant was particularly concerned that cross‑examination had not been pursued, and evidence had not been led, which would have tended to show that he was 'set up'. It was never made clear quite what this 'set up' consisted of, since he plainly did kill [Mrs Vella], so that it was not being suggested that he was, for example, being 'framed' for an act which he did not perform. Nor did I understand him to be saying that [Mrs Vella] and/or [Mr S] had deliberately embarked on a campaign which would cause him to kill [Mrs Vella], although his submissions at times went close to that proposition. Rather, as I understood the appellant's affidavits and oral submissions, the 'set up' consisted of the following elements. I comment in brackets on some aspects of them:
1.[Mrs Vella] wished to obtain 80% of the matrimonial assets in a divorce settlement. (A proposal of 70 ‑ 80% was put to the appellant in a letter from her solicitors.)
2.In order to obtain 80% of the assets, [Mrs Vella] had to keep secret her relationship with [Mr S]. (However, [Mrs Vella] had obtained legal advice about the issue of property settlement. Any legal advisor would have told her that her relationship with another man would have had no bearing on the amount of a property settlement.)
3.Further, in order to obtain a favourable property settlement, it was necessary for [Mrs Vella] to have the appellant 'labelled' as violent. (It is not clear why this was 'necessary' - perhaps so that the children would reside with her and she would therefore have greater financial needs.)
4.Therefore, it was necessary for her to provoke the appellant to strike her. (This is the context in which he explains the earlier assault occasioning bodily harm.)
5.For some reason, never clearly articulated by the appellant, the earlier assault was not sufficient, and it was necessary for [Mrs Vella] also to 'provoke' the appellant to breach the violence restraining order. (He did this by going to the Kallaroo house. It is not clear why it was also 'necessary' for her to then further provoke him by saying that the children hated him).
6.Pursuing that plan to further provoke the appellant, [Mrs Vella] uttered the provocative words to which he referred in his evidence at trial.
In addition to the various problems with the 'set up scenario' which I have referred to in the bracketed comments above, there are two further problems with a complaint that this 'set up' should have been raised. A fundamental difficulty is that it seems improbable that a woman who had already been assaulted by the appellant, resulting in her ribs being broken, would, in pursuit of some unspecified degree of financial advantage, shortly thereafter deliberately set out to provoke him again. A jury might well label this proposition, and by association with it the appellant's entire defence, as preposterous. The other difficulty is that it adds little or nothing to the case made at trial in any event. A jury would have no difficulty in understanding that partners to a marriage are likely to know how to wound and enrage each other and, once that marriage has broken down, may sometimes be willing to do so. The 'set up' scenario does little or nothing to increase the likelihood, as the jury would see it, of [Mrs Vella] having uttered some provocative words.
The AOBH offence
Despite the fact that the appellant pleaded guilty to the AOBH offence, a fact he acknowledged in his testimony at trial, the appellant applied for leave to appeal against conviction for this offence on 27 July 2005 (CACR 216 of 2005). The appellant relied on four grounds of appeal. Relevantly, one of those grounds (ground 3) alleged:
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.
Roberts‑Smith JA refused leave to appeal in relation to all grounds, including ground 3.[45]
[45] Vella v The State of Western Australia [2006] WASCA 30.
The appellant then sought a review of Roberts‑Smith JA's decision. On 28 June 2006, this court (Steytler P, Wheeler & Buss JJA) dismissed the appellant's application for review.[46] Steytler P (with whom Wheeler & Buss JJA agreed) dealt with ground 3.[47] His Honour concluded that there was insufficient evidence to suggest that the appellant's plea of guilty was made in circumstances giving rise to a miscarriage of justice.
[46] Vella v The State of Western Australia [2006] WASCA 129.
[47] Vella v The State of Western Australia [2006] WASCA 129 [35] ‑ [39].
The appellant's purported second appeals under pt 3A of the CAA
The appeals in CACR 97 of 2023 and CACR 98 of 2023 are, as we have already said, second or subsequent appeals against conviction, which must be determined according to pt 3A of the CAA.
The statutory framework of pt 3A of the CAA
Appeals are a creature of statute. This court has no further authority to set aside a conviction upon indictment than the relevant statute confers.[48] As mentioned, prior to the commencement of pt 3A, there was but one right of appeal (with leave) against a conviction of an offence on indictment under pt 3 of the CAA. Once the right of appeal under pt 3 was exhausted, an offender was not entitled to commence any further appeal against the same conviction; even where evidence later emerged that could potentially exonerate the offender. Prior to the commencement of pt 3A, the only recourse for an offender in such a circumstance was to lodge a petition to the exercise of the Royal Prerogative of Mercy or to petition the Attorney General to refer the case to the Court of Appeal under s 140 of the Sentencing Act.
[48] Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 435 ‑ 436 (Dixon J).
Part 3A creates a pathway for a second or subsequent appeal against a conviction of an offence on indictment directly to the Court of Appeal where previously, after an appeal was exhausted, a convicted person had no further right of appeal. However, the offender's right of appeal under pt 3A is not at large. A second or subsequent appeal against conviction may be brought if, and only if, there is either fresh and compelling, or new and compelling, evidence relating to the offence.
Part 3A of the CAA comprises s 35B to s 35J.
By s 35B, an offender may bring a second or subsequent appeal under pt 3A even if the offender was convicted of the offence to which the appeal relates before pt 3A commenced operation on 1 January 2023.
The terms 'fresh', 'new', and 'compelling' are defined in s 35D of the CAA as follows:
35D.Fresh, new and compelling evidence
(1)For the purposes of this Part, evidence relating to an offence of which an offender was convicted is fresh -
(a)if, despite the exercise of reasonable diligence, the evidence was not and could not have been tendered at the trial of the offence or any previous appeal; or
(b)if -
(i)the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal; and
(ii)the failure to tender the evidence was due to the incompetence or negligence of a lawyer representing the offender.
(2)For the purposes of this Part, evidence relating to an offence of which an offender was convicted is new if the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal.
(3)Despite subsection (2), evidence is not new evidence if it is fresh evidence under subsection (1)(b).
(4)For the purposes of this Part, evidence relating to an offence of which an offender was convicted is compelling if it is highly probative in the context of the issues in dispute at the trial of the offence.
The statutory requirements for commencing and deciding appeals under pt 3A are set out in s 35F to s 35H of the CAA:
35F.Leave to appeal required in all cases
(1)Leave of the Court of Appeal is required for each ground of appeal in an appeal brought under this Part.
(2)Except as provided in subsection (3), the Court of Appeal must decide whether to give leave to appeal on a ground of the appeal before the hearing of the appeal.
(3)If the Court of Appeal considers it necessary or desirable, it may give leave to appeal at the hearing of, or when giving judgment on, the appeal.
(4)After an appeal has commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied -
(a)the ground identifies fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal; and
(b)the ground has a reasonable prospect of succeeding.
(5)Unless the Court of Appeal gives leave to appeal on at least 1 ground of appeal, the appeal is taken to have been dismissed.
35G.Commencing appeal
(1)An appeal under this Part must be commenced and conducted in accordance with this Part and rules of court.
(2)An appeal under this Part must be commenced by lodging with the Court of Appeal an application for leave to appeal that sets out the grounds for appeal.
(3)On commencing an appeal, the appellant must serve a copy of the application for leave to appeal on the other party or parties to the proceedings before the trial court.
(4)The Court of Appeal may at any time order the appellant to serve a copy of the application for leave to appeal on any other person that the court thinks fit.
35H.Decision on appeal
(1)Unless, under subsection (2) or (4), the Court of Appeal allows an appeal, it must dismiss the appeal.
(2)The Court of Appeal must allow an appeal based on fresh and compelling evidence if it is satisfied there was a miscarriage of justice.
(3)Despite subsection (2), even if 1 or more grounds might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
(4)The Court of Appeal must allow an appeal based on new and compelling evidence if it is satisfied on the balance of probabilities that, in light of all the evidence, the evidence establishes that the offender is innocent.
(5)If the Court of Appeal allows the appeal, it must set aside the conviction of the offence and must -
(a)order a new trial; or
(b)enter a judgment, and deal with the offender in a manner, referred to in section 30(5)(b) to (e).
(6)If the Court of Appeal orders a new trial under subsection (5)(a), section 34 applies, with any necessary modifications, as if the appeal had been brought under Part 3.
(7)If the Court of Appeal enters a judgment under subsection (5)(b), section 30(6) applies, with any necessary modifications, as if the appeal had been brought under Part 3.
The rules of court referred to in s 35G(1) are defined in s 4(2) of the CAA to mean rules of court made by the Supreme Court. This definition includes the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). Rule 28A of the Rules states how an appeal under pt 3A of the CAA is to be commenced and the documents that must be filed to validly commence it. Rule 28A provides:
28A.Commencing appeal under Criminal Appeals Act 2004 Part 3A
(1)To commence an appeal under the Criminal Appeals Act 2004 Part 3A the appellant must file -
(a)a Form 1A; and
(b)an affidavit containing the information set out in subrule (2); and
(c)the 'Appellant's case' in accordance with rule 32.
(2)For the purposes of subrule (1)(b), the information is as follows -
(a)details of all previous appeals against the conviction;
(b)a statement of the issues in dispute at the trial, with reference to that part of the trial transcript which shows those issues to be in dispute;
(c)the alleged evidence relating to the offence the subject of the conviction that is to be relied on in the appeal;
(d)whether the evidence set out in accordance with paragraph (c) is alleged to be fresh and compelling, or new and compelling;
(e)an explanation as to why the alleged evidence that is to be relied on in the appeal was not tendered during the trial or during any previous appeal;
(f)when the appellant, and any legal practitioner representing the appellant, became aware of the alleged evidence that is to be relied on in the appeal;
(g)if the evidence is alleged to be fresh and compelling - details, if any, of alleged negligence or incompetence of the legal practitioner representing the appellant at the trial;
(h)a statement of information or belief as to whether, with the exercise of reasonable diligence, the alleged evidence could have been tendered at the trial.
(3)A Form 1A may be filed together with an application, made in accordance with rule 44, for an interim order.
(4)For the purposes of the Criminal Appeals Act 2004 section 35G(2), a Form 1A filed in accordance with this rule is taken to be an application for leave to appeal.
In Luo v The King,[49] this court made seven observations about the statutory provisions in pt 3A of the CAA and r 28A of the Rules.[50] We incorporate those observations into these reasons without repeating them.
[49] Luo v The King [2025] WASCA 36.
[50] Luo [47] - [53].
Part 3A of the CAA is a limited exception to the principle of finality. It is not to be taken by offenders, who have been unsuccessful in their first appeal against conviction under pt 3, as simply another opportunity to mount a further appeal against conviction. Given the limited nature of pt 3A, leave to appeal is tightly restricted.[51] This court may only grant leave to appeal if it is satisfied that is the ground identifies existing fresh and compelling, or new and compelling, evidence in relation to the offence that should, in the interests of justice, be considered on an appeal; and that the ground has a reasonable prospect of succeeding. In contrast, the test for leave to appeal on a ground of appeal in a pt 3 appeal requires only that the ground has a reasonable prospect of succeeding.[52]
Were the appeals in CACR 97 of 2023 and CACR 98 of 2023 validly commenced?
[51] See Zhong v The King [2023] VSCA 35 [13] (Kyrou, McLeish & Kennedy JJA). Although decided in the context of a somewhat different statutory scheme for second or subsequent appeals, the principle applies equally to pt 3A of the CAA.
[52] CAA, s 27(2). See also Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
There is a significant difference between the way in which appeals under pt 3 and appeals under pt 3A of the CAA must be commenced:
1.Under s 28 of the CAA read with r 28 of the Rules, an appeal under pt 3 instituted within time is commenced simply by filing a Form 1.
2.Under s 35G of the CAA read with r 28A of the Rules, an appeal under pt 3A is commenced by filing a Form 1A, an affidavit containing the information set out in r 28A(2) and an appellant's case in accordance with r 32 of the Rules.
The filing of an appeal notice in Form 1A, by itself, is not sufficient to validly commence a second or subsequent appeal under pt 3A of the CAA. An appeal under pt 3A is not validly commenced unless the appeal notice is accompanied by an affidavit containing the information set out in r 28A(2) and an appellant's case that complies with r 32 of the Rules. This reflects a legislative policy that a further appeal against conviction is not an opportunity for an offender to investigate whether there may be grounds for a second or subsequent appeal. The grounds of appeal, the appellant's argument and the fresh and compelling, or new and compelling, evidence relied on for the grant of leave to appeal must be filed on commencement of the appeal.
In the present case, as in Luo, we have considered the applications for leave to appeal on their substantive merits even though the appeals were not commenced in the manner required by s 35G of the CAA read with r 28A of the Rules. As each application should be dismissed on its substantive merits, it is unnecessary to consider the consequences of the appeals not having been commenced in accordance with those provisions.
However, it would have been open for a registrar to have refused to accept the papers lodged in CACR 97 of 2023 and CACR 98 of 2023 for filing on the basis that they did not comply with the Rules. It would also have been open to the court to have struck out the appeal notices in each of those matters under r 43(2)(fa)(i) of the Rules, on the ground that the appeals had not been validly commenced. The fact that the appeals in CACR 97 of 2023 and CACR 98 of 2023 have not been validly commenced might also provide a sufficient basis for dismissing the appeals.
The appellant in the present case, like the appellants in Luo, was self-represented and the court had not yet considered the operation of pt 3A of the CAA and associated rules when the appeal notices and other papers were lodged. In those circumstances, there was nothing inappropriate in the papers lodged in CACR 97 of 2023 and CACR 98 of 2023 being accepted for filing. In those circumstances, we have also considered it appropriate to deal with the applications for leave to appeal in CACR 97 of 2023 and CACR 98 of 2023 on their substantive merits. However, in the future, offenders seeking to institute a second or subsequent appeal under pt 3A of the CAA should anticipate that the appeal notice will not be accepted for filing, or may be struck out, if the Form 1A is not accompanied by an affidavit containing all of the information set out in r 28A(2) and an appellant's case that complies with r 32 of the Rules.
The ground of appeal in CACR 97 of 2023 and CACR 98 of 2023
The appellant relies upon a single ground of appeal in CACR 97 of 2023, which reads:
Defence counsel Michael John Bowden, as he then was, Judge Bowden of the District Court, as he is now, used coercion, improper inducement, and, unfair prejudicial tactics in the preparation and conduct of my trial for wilful murder. His conduct was calculated to ensure that no jury would find me guilty of manslaughter due to provocation. As a consequence he denied me a fair trial and a miscarriage of justice has occured [sic].
The sole ground of appeal relied upon by the appellant in CACR 98 of 2023 is couched in somewhat different terms. It reads:
Defence counsel at trial, Michael John Bowden as he then was, Judge Bowden of the District Court as he is now, used coercion, improper inducement and prejudicial tactics to deny me the opportunity to change my guilty plea and take the matter to trial. As a consequence the assault occasioning bodily harm (aobh) charge was put before the jury in a highly prejudicial manner which was prejudicial to my wilful murder trial. It also denied me to [sic] opportunity to overturn the conviction for the aobh.
It will be noted that both of the above grounds allege that Mr Bowden used coercion, etc. In the case of the wilful murder offence, it is said that Mr Bowden did so, in effect, to sabotage the appellant's provocation defence. In the case of the AOBH offence, Mr Bowden's conduct was allegedly designed to ensure that the appellant did not apply to change his plea of guilty to a plea of not guilty.
The ground of appeal in CACR 97 of 2023 and CACR 98 of 2023 is defective
As explained below, the ground of appeal in each of the purported pt 3A appeals is defective.
Contrary to s 35F(4)(a) of the CAA, the ground of appeal relied upon by the appellant in each of CACR 97 of 2023 and CACR 98 of 2023 does not identify any fresh, or new, compelling evidence. Accordingly, this court cannot give leave to appeal on the ground relied upon by the appellant in either of CACR 97 of 2023 or CACR 98 of 2023.
Further, the issues raised by the grounds of appeal in CACR 97 of 2023 and CACR 98 of 2023 were, in substance, decided against the appellant in his first appeals against conviction. The allegations now made against Mr Bowden in CACR 97 of 2023 concern Mr Bowden's conduct as defence counsel in the appellant's trial. This conduct was the subject of five grounds of appeal in CACR 36 of 2005.[53] It will be recalled that leave to appeal was refused in relation to each of those grounds; a decision which was upheld on review by Wheeler, Pullin and Buss JJA: see [61] ‑ [64] above. The appellant's purported second appeal in respect of the wilful murder conviction, in substance, seeks to reformulate or reargue the same grounds that this court has already dealt with. So, too, does the ground of appeal in CACR 98 of 2023. The ground in this appeal is, in substance, the same as ground 3 in the appellant's first appeal against conviction for the AOBH offence, which was refused leave to appeal by Roberts‑Smith JA; a decision that Steytler P, Wheeler and Buss JJA later upheld: see [65] ‑ [67] above.
[53] Vella v The State of Western Australia [2006] WASCA 177 [15] ‑ [16].
There is another defect that applies to CACR 98 of 2023 (but not CACR 97 of 2023). An appeal under pt 3A of the CAA can only be commenced by an offender in respect of a conviction for an offence 'on indictment'.[54] The appellant was charged with the AOBH offence by complaint; not by way of an indictment. The fact that the AOBH offence was put before Simmonds J on 22 April 2005 by a notice under s 32 of the Sentencing Act in connection with the indictable offence of wilful murder, does not 'convert' the AOBH offence to an offence on indictment. This is because the procedure under s 32 of the Sentencing Act brings a summary charge before a superior court 'without the need for committal proceedings or an indictment'.[55] Thus, this court has no jurisdiction under pt 3A to deal with CACR 98 of 2023.
[54] CAA, s 35E(1).
[55] Adams v The State of Western Australia [2014] WASCA 191; (2014) 290 FLR 165 [167].
Accordingly, for the reasons referred to at [87] ‑ [89] above, leave to appeal cannot be granted in respect of the ground of appeal relied upon in either CACR 97 of 2023 or CACR 98 of 2023.
However, despite the matters raised in [87] and [88], even if this court were to take the ground of appeal in each matter to allege that, as a result of fresh, or new, compelling evidence, the appellant suffered a miscarriage of justice because, in effect, defence counsel deliberately undermined his defence of provocation as it related to the charge of wilful murder, or, in the case of the AOBH offence (assuming the court had jurisdiction to deal with the appeal), defence counsel improperly coerced the appellant to plead guilty, leave to appeal would still not be granted. This is because, as we will now explain, none of the material relied upon by the appellant is fresh, or new, compelling evidence relating to the offence capable of establishing the allegations of impropriety on the part of defence counsel.
The alleged fresh and compelling, or new and compelling, evidence
The appellant's appeal notices in CACR 97 of 2023 and CACR 98 of 2023 were accompanied by two affidavits, both sworn by the appellant on 24 July 2023. These affidavits did not comply with the requirements of r 28A of the Rules.
At a directions hearing on 15 September 2023, an order was made in each appeal requiring the appellant to file and serve an affidavit which complied with the requirements of r 28A(1)(b), read with r 28A(2), of the Rules. The appellant was informed by the court that the affidavit was to be a 'standalone' affidavit; that is, the affidavit was to contain all the material the appellant wished to adduce in support of the ground in each appeal.
In purported compliance with that order, the appellant subsequently filed an affidavit sworn 20 September 2023. This affidavit referred to some of the exhibits in the two previous affidavits, which he designated 'A1' and 'A2'. The appellant stated, in his affidavit sworn 20 September 2023, that it was a replacement for the earlier A1, but he made no mention of it also being a replacement for A2.
The appellant later filed another affidavit, sworn 21 December 2023, in support of an application to amend the first paragraph of submissions in his appellant's case in respect of CACR 97 of 2023 only. That application was granted on the papers on 27 May 2024. For present purposes, this affidavit is irrelevant.
In the end, and to the advantage of the appellant, for present purposes, we have had regard to the affidavit sworn by the appellant on 24 July 2023 designated A2, and the affidavit sworn 20 September 2023.
Neither of the appellant's affidavits clearly, and in terms, identify the evidence alleged to be fresh, or new, compelling evidence relating to the offences of wilful murder or AOBH committed by the appellant. A great deal of what is contained in the affidavits is simply not evidence. Rather, it is a combination of mere argument, assertion, conjecture, and submission. The appellant has unnecessarily included irrelevant material, including extracts from reported cases, newspaper cuttings, affidavits used in previous appeals, and material tendered at his trial.
Included in the material that forms part of the appellant's affidavit sworn 20 September 2023 is correspondence between the appellant and Mr Bowden, of various dates between 2004 and 2006, largely concerning the issue of provocation in relation to the charge of wilful murder. Some of this correspondence is duplicated in A2, sworn 24 July 2023. In the affidavit sworn 20 September 2023, the appellant also annexed a portion of the transcript from the 2014 proceedings against Mr Bowden, being extracts from the respective cross‑examinations of the appellant and Mr Bowden on 21 January 2014. The appellant has underlined those parts of the transcript that he wishes to be emphasised.
In his affidavit designated A2, the appellant annexed a copy of a letter he wrote to the Attorney General on 29 October 2022 and a letter he wrote to Mr Bowden dated 5 September 2022. Nothing in either of those letters constitutes evidence. In the letter addressed to Mr Bowden, the appellant makes a number of allegations, to the effect that Mr Bowden mismanaged the appellant's defence at trial by 'wrongly' advising him that, as a matter of law, only the conversation at the door of Mrs Vella's home on 29 December 2003 would be relevant to any defence of provocation; he failed to call more evidence of alleged misconduct on the part of Mrs Vella, including alleged sexual misconduct before, and during, the marriage; he did not run, as part of the defence case, the alleged 'set up'; he did not cross‑examine prosecution witnesses adequately in order to adduce from them evidence of Mrs Vella's alleged misconduct; he did not call two witnesses, David Berry and Michael Dawson (Mr Dawson in fact gave evidence at the trial for the State); and he failed to obtain records relating to Mrs Vella's mobile telephone usage in the months prior to her death.
Given the vast array of material the appellant sought to put before this court in support of his applications for leave to appeal at the hearing on 13 August 2024, he was asked by the court to specifically identify the fresh, or new, evidence upon which he relied.[56]
[56] Appeal ts 77.
During oral argument, the appellant said that he did not allege that the letter he wrote to Mr Bowden dated 5 September 2022 (or, for that matter, the letter he wrote to the Attorney General on 29 October 2022) was fresh, or new, compelling evidence.[57] Rather, as the appellant explained, this letter, and Mr Bowden's failure to reply to it, is 'what triggered this whole thing'.[58]
[57] Appeal ts 77.
[58] Appeal ts 77.
At the hearing, the appellant identified the material described at [98] above as the evidence upon which he relied in support of the accusation central to CACR 97 of 2023 that Mr Bowden, by use of coercion, etc, deliberately undermined his provocation defence under s 281 (repealed) of the Code.[59] In his oral submissions, the appellant accepted that the correspondence between the appellant and Mr Bowden between 2004 and 2006 was new, not fresh, evidence because the correspondence was available and could have been adduced in his first appeal against the wilful murder conviction.[60] The appellant regards the extracts from the transcript of the 2014 proceedings as fresh evidence because they could not have been available at the time of his trial or first appeal against conviction. How any of the material referred to at [98] above established the allegation of coercion, etc, central to the ground of appeal relied upon in CACR 97 of 2023 was not coherently explained.
The correspondence between the appellant and Mr Bowden between 2004 and 2006
[59] Appeal ts 77 - 82.
[60] Appeal ts 87 - 92.
The correspondence relied upon by the appellant as new and compelling evidence predominantly concerned the defence of provocation under s 281 (repealed) of the Code.[61] It is clear from this correspondence that, while the appellant was very much focussed upon Mrs Vella's alleged infidelity and other supposed misconduct (Mrs Vella's alleged misconduct), Mr Bowden was concerned that this strategy would be forensically damaging. In his letters to the appellant dated 15 April 2004 and 20 July 2004, Mr Bowden advised the appellant that:
(a)there was a very real doubt that any of Mrs Vella's alleged misconduct constituted a wrongful act or insult that would cause an ordinary person to lose self‑control and to retaliate in the manner the appellant did;
(b)if the appellant were to continue to focus on Mrs Vella's alleged misconduct, there would be a real risk that the trial judge would not leave to the jury a defence of provocation under s 281 (repealed) of the Code;
(c)if the appellant continued to emphasise that he was 'provoked' because of Mrs Vella's alleged misconduct, then there was a real risk that the State would be permitted to adduce, as propensity evidence, evidence relating to previous assaults the appellant had allegedly committed against Mrs Vella; and
(d)the more the appellant spoke about Mrs Vella's alleged misconduct in his evidence at trial, the more obsessed he would appear to the jury. The clear implication being that such evidence would substantially undermine his defence that he did not intend to kill Mrs Vella.
[61] The partial defence to murder was repealed on 1 August 2008. At the time of the appellant's offending on 29 December 2003, s 281 (repealed) of the Code provided that:
When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.
It is notable that, in his responses to Mr Bowden's letters, the appellant was polite, if not cordial, and not resistant to the advice. In a letter he wrote to Mr Bowden on 1 December 2004,[62] the appellant wrote that he would leave strategic decisions relating to his trial to Mr Bowden. He concluded the letter by writing, 'So as far as strategy etc I'll take your advice'.
[62] Affidavit of 20 September 2023, 20.
After the trial and sentencing, on 25 April 2005, the appellant wrote to Mr Bowden. He began the letter:[63]
Thank you for the transcripts! I must confess you did a brilliant job at my trial and I can't help admire how focused and effective you were thanks a lot for that.
[63] Affidavit of 20 September 2023, 46.
On either 9 February 2006 or 18 March 2006 (the date of the letter is unclear), the appellant appears to have written to Mr Bowden seeking answers to a number of questions, including a question as to why he did not explore the possibility that Mrs Vella 'might have probably been in an improper relationship with [a relative]'.
Extracts from the 2014 proceedings
We have considered the extracts of the transcript from the 2014 civil trial. We have paid particular attention to those parts that have been underlined by the appellant.
There is nothing in Mr Quinlan SC's cross‑examination of the appellant that supports the ground of appeal in either CACR 97 of 2023 or CACR 98 of 2023.
In the course of the appellant's cross‑examination of Mr Bowden, Mr Bowden:
(a)agreed that he always acted in the appellant's best interests;
(b)said that the appellant treated him with courtesy and respect;
(c)accepted fully that the appellant relied on his professional judgement and experience;
(d)did not dispute that he had discussions with the appellant about an incident at the Glengarry Tavern involving Mrs Vella; about retaining a private investigator; and about obtaining Mrs Vella's mobile telephone records; and
(e)accepted 'without reservation that the trial could have been run differently'.
None of these responses support the appellant's grounds of appeal. If anything, they undermine the grounds because Mr Bowden's responses are inconsistent with the notion that he used coercion, etc, in the course of acting for the appellant.
On the highly questionable assumption that this evidence is fresh or new, for the purposes of s 35D(1) and (2) of the CAA, I am of the view that it most certainly is not compelling for the purposes of s 35D(4). This is because it has no logical bearing on the issues that were in dispute at the trial of the offence of wilful murder, namely whether the State had proved that Mr Vella intended to kill his wife and whether it had proved that he had not been provoked.
It follows that Mr Vella does not have a right to bring a second or subsequent appeal against his conviction of wilful murder under s 35E(1) of the CAA, with the result that the 'appeal' in CACR 97 of 2023 is incompetent.
If, contrary to the views I have just expressed, Mr Vella does have the right under s 35E(1) to bring a second or subsequent appeal against his conviction for wilful murder, and on a further assumption, favourable to Mr Vella, that the appeal has been properly commenced under s 35G, I agree with Mazza and Mitchell JJA that the ground of appeal in CACR 97 of 2023 does not identify any fresh and compelling, or any new and compelling, evidence relating to the offence of wilful murder as required by s 35F(4)(a) of the CAA. In those circumstances, and in accordance with s 35F(4), it is not open to this court to give leave to appeal. As there is only one ground of appeal on which Mr Vella wishes to rely, this means that the appeal would be taken to have been dismissed pursuant to s 35F(5) of the CAA.
CACR 98 of 2023: Second or subsequent appeal against conviction for AOBH
As has been explained in the joint reasons, Mr Vella was convicted of an offence of AOBH after he pleaded guilty to that offence on two separate occasions. The first occasion on which Mr Vella pleaded guilty was when he first appeared in the Court of Petty Sessions, shortly after he received advice from a lawyer on 17 November 2003.[111] The second occasion was when he pleaded guilty in the Supreme Court on 22 April 2005.
[111] Vella v The State of Western Australia [2006] WASCA 129 [27] ‑ [28].
The charge of AOBH was made in a complaint made under the now repealed Justices Act 1902 (WA) that was before the Supreme Court as a result of a notice that had been prepared and served under s 32 and s 33 of the Sentencing Act. I will explain the procedure provided for in those provisions in more detail when I deal with Mr Vella's application for an extension of time within which to appeal in CACR 99 of 2023.
The ground of appeal sought to be relied on by Mr Vella in CACR 98 of 2023 is in the following terms:
Defence counsel at trial, Michael John Bowden as he then was, Judge Bowden of the District Court as he is now, used coercion, improper inducement and prejudicial tactics to deny me the opportunity to change my guilty plea and take the matter to trial. As a consequence the assault occasioning bodily harm (aobh) charge was put before the jury in a highly prejudicial manner which was prejudicial to my wilful murder trial. It also denied me to [sic] opportunity to overturn the conviction for the aobh.(emphasis added)
Having regard to the terms of s 35E, which I have set out earlier in these reasons, there are two reasons why I am of the view that Mr Vella's putative second or subsequent appeal in CACR 98 of 2023 is incompetent.
First, as s 35E makes clear, the right to bring a second or subsequent appeal is conferred on 'an offender convicted of an offence on indictment'. However, Mr Vella was not convicted of the AOBH offence 'on indictment'. Instead, he was convicted of that offence on a complaint.
The procedure that was adopted pursuant to s 32 and s 33 of the Sentencing Act, under which Mr Vella was ultimately sentenced in the Supreme Court for the offence of AOBH as a 'pending charge' (as defined in s 31 of that Act) does not affect that conclusion. While s 33(3) of the Sentencing Act provides that '[a] sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment', there is no analogous provision that deems that a conviction entered in a superior court for a pending charge is to be taken as a conviction on indictment for the purpose of a second or subsequent appeal against conviction.
The fact that Mr Vella was not convicted of the AOBH offence on indictment is fatal to his attempt to bring a second or subsequent appeal against that conviction.
Secondly, I am not satisfied that there is fresh and compelling evidence, or new and compelling evidence, relating to the offence of AOBH, as required by s 35E(1)(a) and (b) of the CAA, respectively.
Consistently with the approach taken by Mazza and Mitchell JJA, I will proceed on the basis, favourably to Mr Vella, that the alleged fresh and compelling, or new and compelling, evidence sought to be relied on is the evidence contained in the two affidavits he swore on 24 July 2023, and in the further affidavit he swore on 20 September 2023. I will also proceed on the assumption, and without deciding, that those affidavits contain or at least refer to 'fresh' or 'new' evidence (as defined in s 35D(1) and (2) of the CAA, respectively) that relates to the offence of AOBH (as required by s 35E).
However, as I have already noted in the context of CACR 97 of 2023, s 35D(4) of the CAA provides that evidence relating to an offence of which an offender was convicted is 'compelling' if it is highly probative in the context of the issues in dispute at the trial of the offence. As Mr Vella pleaded guilty to the offence of AOBH, there were no 'issues in dispute at the trial of the offence'. In those circumstances, there is no basis on which this court could conclude that the evidence Mr Vella relies on is 'compelling'.
In any event, even if I am wrong in concluding that Mr Vella's attempt to bring a second or subsequent appeal in CACR 98 of 2023 is incompetent, it would not be open to give leave to appeal on the solitary ground of appeal on which he seeks to rely. This is because, as was the case in respect of the ground of appeal in CACR 97 of 2023, the ground of appeal on which Mr Vella wishes to rely does not identify any 'fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal', as is required by s 35F(4)(a) of the CAA. In those circumstances, this court 'must not' give leave to appeal on that ground, with the result that it must be taken to be dismissed pursuant to s 35F(5).
CACR 99 of 2023: Leave to appeal against conviction for breach of VRO
On 22 April 2005, Mr Vella was convicted of an offence of breaching a VRO contrary to s 61(1) of the Restraining Orders Act 1997 (WA), after he pleaded guilty to that offence in the Supreme Court on the same day he was sentenced for the offences of wilful murder and AOBH. Notwithstanding his plea of guilty, and despite a delay of more than 18 years in filing a notice of appeal, Mr Vella now applies for an extension of time within which to appeal against that conviction.
The sole ground of appeal that Mr Vella wishes to rely on has been reproduced in the joint reasons. When read with his written and oral submissions, Mr Vella's essential contention appears to be that the VRO he admitted breaching so many years ago was 'issued by a court which had been deceived'.[112] The 'deceit' is said by Mr Vella to have been some form of 'set up' perpetrated by his now deceased wife.
[112] Mr Vella's written submissions dated 24 July 2023, pars 3 and 4.
I note that Mr Vella's contention that the VRO was obtained by deceit appears to be somewhat at odds with evidence that appears in one of his affidavits he swore on 24 July 2023. In that regard, at page 68 of the affidavit there is a letter from a lawyer who apparently appeared for Mr Vella at the Joondalup Court of Petty Sessions on 23 December 2003. In that letter, the lawyer wrote that '[on 23 December 2003] you were consenting to the VRO with an amendment to assist with facilitation of contact of the children'.
However, it is unnecessary to resolve this apparent conflict in the evidence. This is because Mr Vella's application for an extension of time within which to appeal must be refused in any event. In my view, Mr Vella has no right to appeal to this court against the conviction for breaching the VRO. Further, and in any event, I would not be prepared to grant an extension of time within which to appeal, having particular regard to the extraordinary period of time that elapsed before the appeal notice was filed.
To explain why I have reached the view that Mr Vella does not have any right to appeal against his conviction for breaching the VRO, it is first necessary to say something about how that offence came to be dealt with by the Supreme Court on 22 April 2005.
At the relevant time, an offence of breaching a VRO contrary to s 61(1) of the Restraining Orders Act was a simple offence.[113] Section 32(1) and (2) of the Sentencing Act 1995 (WA) provided then, as it does now, that an offender who is to be sentenced by a superior court for an offence can request such a court to also deal with any 'pending charges' against him or her, by preparing and serving a list of such charges. A 'pending charge' is 'a charge, in a court of summary jurisdiction of an offence (whether indictable or simple) for which no sentence has been imposed'.[114] For the purposes of s 32, a superior court is to be taken to have jurisdiction to deal with simple offences.[115]
[113] Interpretation Act 1984 (WA), s 67(1), (1a), (2), (3).
[114] Sentencing Act 1995 (WA), s 31.
[115] Sentencing Act, s 32(4).
When a list of pending charges is prepared and served, the relevant superior court is then required to take a plea from the offender for any of those charges the offender has not been previously convicted of, and to ask the offender if they also want the court to pass sentence for each pending charge for which they have been convicted.[116] Then, if the State consents and the court considers that it is just to do so, in addition to sentencing the offender for the original offence,[117] the court can also sentence the offender for each pending charge.[118]
[116] Sentencing Act, s 33(1).
[117] The 'original offence' is the offence the offender is to be sentenced for by the superior court: Sentencing Act, s 32(1).
[118] Sentencing Act, s 32(2).
In Mr Vella's case, a list of pending charges was prepared and served on the State. That list included the charge of breaching a VRO. It is apparent from the complaint in which the charge of breaching the VRO was preferred, that it had been lodged in the Court of Petty Sessions. Further, the transcript of the proceedings before the Supreme Court on 22 April 2005, when Mr Vella was sentenced for that offence, reveals that his plea of guilty to that charge was entered for the first time in the Supreme Court.
It was after the plea was entered that a judgment of conviction was then entered by the Supreme Court, and a sentence of 11 months' imprisonment was later imposed.
Pursuant to s 33(3) of the Sentencing Act, where an offender is sentenced by the Supreme Court for a pending charge, that sentence is taken to be a sentence imposed following conviction on indictment, but only 'for the purposes of an appeal against sentence'. As Mr Vella is seeking an extension of time within which to appeal against his conviction for the offence of breaching a VRO, that provision has no application. As I have already noted, there is no other similar provision in the Sentencing Act that provides that a conviction of a pending charge is to be taken as a conviction on indictment for the purposes of an appeal against conviction.
Against that background, it is then necessary to note that the rights of an offender to appeal from a judgment of conviction entered by a superior court are provided for in s 23 of the CAA:
23.Rights of appeal of offender
(1)An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -
(a)the conviction;
(b)the sentence imposed on the offender or any order made as a result of the conviction;
(c)a refusal to make an order that might be made as a result of the conviction.
(2)An offender convicted by a court of summary jurisdiction and sentenced by a superior court may appeal to the Court of Appeal against any or all of the following decisions -
(a)the conviction;
(b)the sentence imposed on the person or any order made as a result of the conviction;
(c)a refusal to make an order that might be made as a result of the conviction.
In relation to his application for an extension of time within which to appeal in CACR 99 of 2023, Mr Vella is plainly not an 'offender convicted of an offence on indictment', for the purposes of s 23(1) of the CAA. The only relevant offence that was 'on indictment' was the offence of wilful murder. The simple offence of breaching a VRO was charged on complaint. Section 33(3) of the Sentencing Act does not affect that conclusion because, as I have said, that provision only applies for the purposes of an appeal against sentence, which CACR 99 of 2023 is not.
Further, it is clear that Mr Vella was also not '[a]n offender convicted by a court of summary jurisdiction', for the purposes of s 23(2) of the CAA. Based on the endorsements on the complaint, and on the transcript of the sentencing proceedings in the Supreme Court, Mr Vella was not convicted of the offence of breaching a VRO in a court of summary jurisdiction but in the Supreme Court.
It follows that Mr Vella does not have a right to appeal to this court against the conviction for the offence of breaching the VRO. As a result, his application for an extension of time within which to appeal is incompetent.
Even if, contrary to the views I have expressed on this point, Mr Vella does have a right to appeal to this court, and this court does have jurisdiction to entertain Mr Vella's application for an extension of time within which to appeal against his conviction for breaching a VRO, I would not be prepared to grant him that extension of time in any event.
Section 28(3) of the CAA provides that an appeal against a decision or judgment, under pt 3, cannot be commenced later than 21 days after the date of the decision or judgment unless this court orders otherwise. This provision reflects the principle of finality, while at the same time conferring a discretion on the court to extend the time limit provided for.[119] As the plurality in Kentwell v The Queen said, albeit in a different statutory context:[120]
The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re‑opening a concluded criminal proceeding … Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted.
[119] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [32].
[120] Kentwell [32] - [33].
It has been said by this court on many occasions that where there has been a lengthy delay in filing an application for leave to appeal, the court will require exceptional circumstances to be established before an extension of time within which to appeal will be granted, unless it can be shown that there will be a substantial miscarriage of justice if the extension is not granted.[121]
[121] See, for example, Rahimi [25] - [26].
In Wimbridge v The State of Western Australia,[122] Wheeler JA said that this test may in some cases give rise to two questions: what will constitute 'exceptional circumstances', and what does it mean to say that it has been shown that there will be a 'miscarriage of justice' if an extension is not granted.[123] In that regard, her Honour noted that a compelling explanation for a delay will generally constitute 'exceptional circumstances', but that the category of 'exceptional circumstances' is not closed. However, Wheeler JA also observed that if all that were required to demonstrate a miscarriage of justice were that there was a ground which would have succeeded in a regularly instituted appeal, it raises questions about the purpose of the statutory time limit and the existence of the discretion to extend time. In that regard, her Honour said that both principle and authority suggest that the court may require more to be demonstrated than that an appeal ground will be successful, before time is extended.
[122] Wimbridge v The State of Western Australia [2009] WASCA 196.
[123] Wimbridge [20] - [21].
The need for an extension of time in a case such as the present is no mere formality. An extension of time for such an inordinately lengthy delay must be justified by evidence that properly addresses the length of, and reasons for, the delay.[124]
[124] Rahimi [26].
The question of whether the discretion in s 28(3) of the CAA should be exercised will ultimately depend on the weighing of relevant factors. Those factors may include the length of the delay in seeking to commence an appeal, the reasons for that delay, whether the offender who is seeking to appeal is serving a term of imprisonment or whether they have suffered other serious consequences as a result of the conviction, whether there would be any prejudice to the State occasioned by the delay, the effect on any victim and the strength of the case that is sought to be argued on appeal. This, of course, is not an exhaustive list.
Mr Vella filed his application for an extension of time over 18 years after he pleaded guilty to and was convicted of the offence of breaching a VRO. It has now been over 21 years since he committed that offence. The delay in seeking to commence an appeal is extraordinary. However, notwithstanding the delay, Mr Vella has not provided any cogent explanation for why an appeal against conviction was not commenced at a much earlier point in time. Further, the materials before this court on which he relies fall well short of establishing that there are exceptional circumstances justifying an extension of time.
It is also important to appreciate that the State would be severely prejudiced if an extension of time were granted. After such a long delay, it would be almost impossible for the State to properly deal with Mr Vella's contention that his conviction should be set aside because the VRO itself was obtained as a result of a 'set up' perpetrated by the woman who he killed.
The plurality in Kentwell said that the prospect of success is a relevant consideration to be taken into account in deciding whether to grant an extension of time within which to appeal.[125] In that regard, I agree with Mazza and Mitchell JJA's conclusion about the merits of Mr Vella's proposed ground of appeal.
[125] Kentwell [33].
Mr Vella pleaded guilty. However, Mr Vella does not suggest in his proposed ground of appeal, or in his submissions or affidavits, that he did not understand the nature of the charge or that he did not intend to admit guilt, or that upon the admitted facts he could not, in law, have been guilty of the offence; or that his guilty plea was obtained by improper inducement, fraud, intimidation or the like.[126] His sole contention is that the VRO itself was obtained by deceit perpetrated by his deceased victim.
[126] Rahimi [29].
However, by voluntarily pleading guilty, Mr Vella formally admitted all of the elements of the offence of breaching the VRO proscribed by s 61,[127] including the element that he was 'bound' by the VRO. Accordingly, even if Mr Vella could establish that the VRO had been obtained by some deceitful conduct, it would by no means follow that there had been a miscarriage of justice such that the conviction for breaching that VRO would be set aside.
[127] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J).
I agree with Mazza and Mitchell JJA that Mr Vella's proposed ground of appeal is properly described as 'hopeless'. In those circumstances, I would refuse to grant the extension of time within which to appeal in CACR 99 of 2023 in any event, even if the 'appeal' was not incompetent.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ST
Associate to the Honourable Justice Mazza
9 MAY 2025
29
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