Joseph Bernard Vella v The State of Western Australia

[2008] HCASL 552

JOSEPH BERNARD VELLA
v
THE STATE OF WESTERN AUSTRALIA
[2008] HCASL 552
P10/2007

1. The applicant was convicted of wilful murder after a trial by jury before Simmonds J in the Supreme Court of Western Australia.  He admitted at the trial to killing his wife, but denied the requisite intent for murder and contended that his actions were attributable to provocation.  The trial judge imposed a sentence of life imprisonment with a non-parole period of 20 years.

2. Applications to the Court of Appeal for leave to appeal against conviction and leave to appeal against sentence were heard together by Roberts-Smith JA on 1 August 2006.  After consideration of each of the 42 proposed grounds of appeal against conviction, his Honour granted leave to appeal in respect of one ground only.  This concerned the alleged error of the trial judge in admitting a post‑mortem report into evidence.  Leave to appeal against the sentence was refused.

3. The appeal against conviction was heard by Wheeler, Pullin and Buss JJA together with three further applications.  The first was an application to set aside the refusal of Roberts-Smith JA to grant leave to appeal against conviction on additional grounds[1].  Secondly, there was an application to set aside the refusal of Roberts-Smith JA to grant leave to appeal against sentence.  The third application sought to put before the Court of Appeal fresh evidence in support of a proposed new ground of appeal.  In the result, the appeal against conviction and the second and third applications were dismissed.  The first application was granted in part.

   [1]Section 61(3) of the Supreme Court Act 1935 (WA) relevantly provides that a person dissatisfied with a decision or order made by a single judge of appeal may apply to the Court of Appeal to set aside or vary the decision or order.

4. The reasons for dismissal of the appeal against conviction were given by Wheeler JA.  Her Honour explained that the post‑mortem report was neither relevant nor adverse to the applicant.  Accordingly, no substantial miscarriage of justice followed its admission into evidence and this did not provide a basis to allow the appeal.  On this point, Pullin JA and Buss JA agreed.

5. The partial grant of the first application reflected the decision of Wheeler JA and of Buss JA that leave to appeal against conviction should have been granted in respect of a second ground.  This concerned the empanelment of a juror who before being sworn told the Court that he was an acquaintance of one of the witnesses but did not believe this would hinder his judgment; the juror said it was "quite a while since we've had any contact", did not seek to be excused, and was sworn without objection by counsel for the accused.  In the Court of Appeal, their Honours held that this second ground did not provide a basis to allow the appeal.  The first application was otherwise dismissed.  The sole point of difference in the reasons of Pullin JA was that his Honour would not, in any event, have granted leave to appeal on this ground.

6. The dismissal of the second application followed the unanimous conclusion of the Court of Appeal that Roberts-Smith JA was correct to refuse leave to appeal against the sentence.  As Buss JA explained, the trial judge had imposed a sentence within the appropriate range.  There was no reasonable basis for contending the sentence was manifestly excessive or should be set aside.

7. By the third application, the applicant sought to put before the Court of Appeal the report of a psychiatrist that was not tendered at trial.  However, Wheeler JA explained that this evidence added nothing to the applicant's case.  Pullin and Buss JJA agreed and the third application was dismissed accordingly. 

8. The application for special leave to appeal to this Court is accompanied by a summons issued on 23 October 2007. By that summons the applicant seeks to file an amended summary of argument and to file material additional to that permitted by the High Court Rules 2004. Much of the additional material does not appear to have been before the courts below. All of the additional material appears to be of little, if any, relevance to the application to this Court.

9. The Court directed that the applicant's written case be served on the respondent and has had the benefit of written submissions from both parties.  The Court has also read the amended summary of argument and reviewed the additional material referred to in the summons.  We conclude that, even if orders were made in the form proposed in the summons, the proposed appeal would enjoy insufficient prospects of success to warrant a grant of special leave.  It follows that special leave to appeal must be refused.

10. The application is a criminal matter and the respondent does not seek costs.  Accordingly, pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave to appeal with no order as to costs.

W.M.C. Gummow
17 October 2008 S.M. Kiefel