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[2011] WASC 78
Supreme Court of WA
2011-03-23
Mr P, Martin J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : VELLA -v- MICHAEL JOHN BOWDEN OF CANNON BOWDEN & CO [2011] WASC 78
Practice and procedure - Defendant's strike out application against indorsements on writ - Abuse of process - Hunter principle invoked - Collateral attack alleged against verdict of jury - Wilful murder conviction after trial - Bare allegation of fraud - No relevantly fresh evidence
Majority of indorsement to writ struck out as an abuse of process - Balance of matter stayed
Arthur J S Hall and Co (a firm) v Simons [2000] UKHL 38; [2002] 1 AC 615
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
Birch v Birch [1902] P 130
Donnellan v Public Trustee [2007] WASC 213
D'Orta-Ekenaika v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Flower v Lloyd (1879) 10 Ch D 327
Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543
Hunter v Chief Constable of the West Midlands [1981] UKHL 13; [1982] AC 529
Lancee v Willert [2008] WASCA 120
Livesay v Bar Association of New South Wales (1983) 157 CLR 288
McIlkenny v Chief Constable of the West Midlands [1980] 1 QB 283
Re the State of Western Australia; Ex parte Vella [2010] WASC 213
Reg v Humphrys [1977] AC 1
Rogers v The Queen (1994) 181 CLR 251
Secretary of State for Trade and Industry v Bairstow [2004] Ch 1
Vella and Mactaggart [2011] WASAT 28
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] WASCA 59
Walpole v Partridge and Wilson (a firm) [1994] QB 106
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
1 KENNETH MARTIN J: The defendant's application to strike out the substantive components of the indorsement to the plaintiff's writ was heard before me at a special appointment on 21 February 2011. The plaintiff participated in that hearing in person via video link to Casuarina Prison. At the conclusion of arguments, I pronounced orders, indicating that I would publish detailed reasons for decision in due course. The orders I made were:
2 What follows are my reasons for making these orders.
3 The defendant's strike out application brought under his chamber summons of 24 September 2010 must succeed. The impugned components of the indorsement within the writ commencing these proceedings by Mr Vella in person on 11 May 2010 must be excised, essentially, on the basis of the following four considerations:
4 Those considerations underlie my orders of 21 February 2011, essentially acceding to the defendant's application to strike out the substantive components to the indorsement to Mr Vella's writ.
5 I elaborate upon these considerations in overall context, below.
6 The plaintiff (Mr Vella) commenced this action by his writ of 11 May 2010. At the time he was (and remains) incarcerated at Casuarina Prison having been convicted by a jury on 11 March 2005 of the crime of wilful murder. The jury found Mr Vella guilty of the wilful murder of his estranged wife, Ruth Vella, that crime being committed in the early hours of 29 December 2003.
7 Mr Vella is presently serving a custodial sentence of strict security life imprisonment, with a minimum term to be served of 20 years imprisonment (with eligibility for parole) in respect of his wilful murder conviction.
8 Under this civil action, Mr Vella would seek to raise numerous grievances in a new context against the defendant, who was the solicitor and advocate that represented Mr Vella at his murder trial during March 2005 and then, at Mr Vella's subsequent sentencing in April 2005. At that sentencing hearing, Mr Vella was also dealt with on his guilty pleas in respect of three other assault-related offences against his wife - all committed prior to her murder on 29 December 2003.
9 Pursuant to s 32 of the Sentencing Act 1995 (WA), Mr Vella was sentenced on pleas of guilty in respect of the charge of unlawful assault occasioning bodily harm against his estranged wife committed on 12 November 2003 at Kallaroo. For that offence Mr Vella received a sentence of 18 months imprisonment. In respect of breaches of a violence restraining order (VRO) taken out against Mr Vella by his late wife, he received a sentence of 11 months imprisonment. These further terms (18 months and 11 months respectively) were ordered by the sentencing judge to be served by Mr Vella concurrently with his head sentence imposed for wilful murder.
10 By Mr Vella's writ of 11 May 2010 (filed and received by the court without payment of filing fee under reg 7(1d)(c) of the Supreme Court Fees and Regulations 2002, on the basis that Mr Vella is a prisoner), he commenced these proceedings against the defendant. Regulation 7(1d) provides for a mandatory waiver of the usual filing fee ($768.20) that otherwise would have been payable by any individual seeking to commence proceedings in the Supreme Court of Western Australia at that time.
11 The indorsement of claim upon Mr Vella's writ comprises 18 paragraphs. It reads more like a (very badly drafted) statement of claim. The prolix content of the indorsement violates O 6 r 1(1) of the Rules of the Supreme Court 1971 (WA) - which requires there be a 'concise' statement of the nature of the claim brought by a plaintiff. However, Mr Vella is manifestly self-represented. It looks most doubtful whether he received any competent legal assistance in the preparation of his writ and the content of its indorsement as regards this defendant. The defendant does not challenge the indorsement upon the writ on the basis of prolixity. The attack is more substantive, raising the alleged abuse of the process of the court.
12 It is apparent from the content of the indorsement that Mr Vella does not seek merely to raise allegations of incompetent or negligent professional legal representation. Rather, more serious accusations are sought to be pursued. The indorsement looks to be an attempt to set down some sort of edifice to ventilate allegations of misconduct and fraud against the defendant - on a basis he is essentially alleged to have 'conspired' in the preparation and conduct of the plaintiff's defence in order to see Mr Vella wrongly convicted of the wilful murder of his wife. Mr Vella has also made (unsuccessfully) a like complaint against the prosecutor at his trial; see Vella and Mactaggart [2011] WASAT 28.
13 In verbal submissions on 21 February 2011, Mr Vella sought to contend that the defendant's 'fraud', as he characterised it, had to be gradually gleaned across a variety of different incidents - and which viewed alone may not be determinative, but assessed in aggregate, he said were capable of providing an arguable basis for his contentions of fraud. As I will explain, this advocated forensic approach by Mr Vella requires a leap of faith that, in the circumstances I relate, I am not prepared to countenance. As became apparent, numerous diverse incidents and arguments which Mr Vella sought to lump together in order to sustain a basis to make a platform for arguments about fraud, effectively sought only to revisit well traversed (unsuccessful) arguments all previously ventilated by Mr Vella (in person) at his different appeal hearings in the context of challenging his criminal convictions. All matters have previously been evaluated, but rejected, within the framework of the criminal justice system. Mr Vella's indorsement, in effect, seeks to resuscitate terminally impaired prior arguments under the fresh cloak of civil proceedings - now targeted against his former solicitor and advocate.
14 The majority of the matters now sought to be raised by Mr Vella within components in the indorsement to his writ, are challenged by the defendant under O 20 r 19(1)(d) of the Rules of the Supreme Court (and in the court's inherent jurisdiction), on the basis that the offending paragraphs must be struck out as an abuse of process. The general flavour of Mr Vella's indorsement's content may be discerned by the following brief reference.
15 At par 2 of his indorsement Mr Vella contends that the defendant caused him to be 'unfairly imprisoned' and (at par 3), to suffer 'false imprisonment'. Paragraph 8 of the indorsement contends that the defendant's conduct and preparation of the defence of Mr Vella at the wilful murder trial was carried out in a fashion 'detrimental and fatal to his defence of provocation', in aspects which are then identified at length under pars 9 and 10 of the indorsement.
16 The indorsement goes on to allege, in some 14 identified alleged respects (par 13 of the indorsement), that the manner in which the defendant conducted the plaintiff's trial 'assisted the prosecutor to deny me a fair trial'. Paragraph 14 contends that a failure of the defendant to provide an affidavit to the Attorney General in respect of certain questions asked in the plaintiff's letter to him of October 2009 is a basis to sustain an inference that 'the conduct of the defendant was a deliberate attempt to deny the plaintiff a fair trial'.
17 At par 18 of the indorsement the plaintiff seeks to raise an issue over the confiscation of his computer by prison authorities as a matter supposedly relevant to the proceedings. In CIV 2609 of 2010 Joseph B Vella v The State of Western Australia and CIV 2079 of 2010 Joseph B Vella v Michael John Bowden, McKechnie J, on 21 October 2010 and 11 August 2010 respectively, dealt with and rejected that issue in separate proceedings, also commenced by Mr Vella in person from prison.
18 It may now be appreciated that the indorsement to Mr Vella's writ in this action repeatedly challenges the correctness of the convictions against him, more particularly his conviction for wilful murder, in a fresh context of multiple civil grievances, now sought to be pursued against this defendant.
19 In Lancee v Willert [2008] WASCA 120, Murray J observed upon the distinction between a potential application of the Hunter principle in a scenario of acquittal, as against a scenario of conviction.
In a criminal case, it is easy enough to understand when something happens which controverts a conviction, but it is less clear when there has been a detraction from the full benefit of an acquittal.
21 The present controversy is not concerned with an acquittal scenario. It raises the clearer scenario of Mr Vella's conviction by a jury in the criminal context, a conviction then upheld by the dismissal of Mr Vella's appeals to the Court of Appeal and refusals of special leave to Mr Vella to appeal further, to the High Court of Australia.
22 The issue for determination arises here, as in Hunter, by reference to Mr Vella's foreshadowed attempts to reventilate issues already considered and determined finally against him, within the criminal justice system, by these civil proceedings directed against the defendant.
23 In Hunter, the House of Lords concluded that it was an abuse of process to seek to raise allegations of assault against public officers in a civil context, in circumstances where, in earlier criminal proceedings, the very same underlying assault circumstances were (unsuccessfully) raised as a part of endeavours to have the plaintiff's confession assessed as involuntarily obtained and therefore, inadmissible - first at a voir dire before the judge, then subsequently within the context of the criminal trial, at which ultimately, the jury had convicted the plaintiff of murder. There had been an appeal against the conviction. However, the grounds of the Hunter appeal had not raised a challenge against the trial judge's ruling upon the admissibility of the confession.
24 The defendant's chamber summons attacks components found in pars 2 and 3 of the indorsement and then, the full content of pars 8 to 17 inclusive, in the indorsement. The defendant's abuse of process challenge is succinctly expressed in the written submissions filed in support of the chamber summons on 18 October 2010. At pars 20, 21 and 22, the defendant contends, invoking the Hunter principle, that:
25 Reference above to proceedings CIV 1832 of 2010 needs some elaboration. There, in Re the State of Western Australia; Ex parte Vella [2010] WASC 213, a Registrar of the Supreme Court had refused to allow Mr Vella to issue another writ he had proposed to file, as CIV 1832 of 2010. Mr Vella then sought leave, in accordance with O 67 r 5 of the Rules of the Supreme Court from Hall J, to issue those proposed proceedings. Hall J declined leave to permit Mr Vella to issue another writ against a diverse number of defendants (but which did not include the defendant to these proceedings, who appears to have been reserved by Mr Vella for individual treatment).
26 At [8] to [12], Hall J explained why to allow those proposed proceedings would have infringed the Hunter principle. His Honour said:
27 Under the writ Mr Vella was ultimately inhibited from filing as CIV 1832 of 2010, he was seeking to commence proceedings against multiple defendants including, the State of Western Australia, the Attorney General, the Minister of Corrective Services, the trial judge at his wilful murder trial, the former President of the Court of Appeal, former Justices of Appeal Roberts-Smith and Wheeler JJA, current Justices of Appeal Buss and Pullin JJA, the former Director of Public Prosecutions, a senior State prosecutor who acted as prosecuting counsel at Mr Vella's wilful murder trial, the current Police Commissioner and three other police officers. Mr Vella's proposed indorsement of claim there comprised 81 paragraphs, concluding on a basis of his seeking damages of $30 million, costs and interest.
28 The attempt by Mr Vella under CIV 1832 of 2010 to commence proceedings against multiple proposed defendants to that writ (again issued from prison without filing fee) was detected by the registry of the Supreme Court and ultimately referred to Hall J, who as I have noted ultimately declined to grant leave for the writ to be filed, under O 67 r 5 of the Rules of the Supreme Court.
29 However, the writ commencing the present action was accepted by this Court's Registry for filing. It was then served. It seemingly escaped the protective mechanism of O 67 of the Rules of the Supreme Court.
30 Before cataloguing the various evidentiary materials and submissions relied upon in this application, it is necessary for me to say a little more concerning the Hunter principle.
31 The principle was conveniently explained by Newnes J (as he then was) in Donnellan v Public Trustee [2007] WASC 213, where his Honour canvassed it in some detail, in reasons for decision, at between [27] to [55]. His Honour's examination scrutinised the leading case authorities, in particular the observations by Vice-Chancellor Morritt in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 and in the Court of Appeal of England and Wales in Arthur J S Hall and Co (a firm) v Simons [2000] UKHL 38; [2002] 1 AC 615. The Hall decision subsequently was taken further on appeal to the House of Lords. But the observations made regarding Hunter, as referred to by Newnes J, were not affected by the subsequent appeal.
32 Newnes J discussed another decision of the Court of Appeal of England and Wales - which is relied upon in the written submissions of Mr Vella, namely Walpole v Partridge and Wilson (a firm) [1994] QB 106. Mr Vella referred to a 'Walpole principle'. But it is clear that the decision in Walpole is simply an illustration of the Hunter principle's application (more correctly, on the facts of that appeal, its non-application) in one particular factual context. Walpole does not set down any new or different principles.
33 In Donnellan at [42], Newnes J conveniently summarised the Hunter principle as follows:
It is not, therefore, necessarily sufficient simply for the defendant to show that the proceedings are a collateral attack on an earlier final decision. It must also appear that it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or that to permit such relitigation would bring the administration of justice into disrepute.
34 The Hunter principle, as applied in Australia, must also, as Newnes J observed at [41], be understood in accordance with local principles concerning this nation's abiding recognition of advocate's immunity: see D'Orta-Ekenaika v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 and Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543. The position in England and Wales is different, following the House of Lords' decision in Arthur J S Hall and Co (a firm) v Simons.
35 In Lancee v Willert, Murray AJA at [41], [84] and [89] discussed the Hunter principle in a context of its consideration by the High Court of Australia in leading decisions concerning abuse of process, including Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256; D'Orta-Ekenaika; Rogers v The Queen (1994) 181 CLR 251; and R v Carroll (2002) 213 CLR 635.
36 Mr Vella contends that there is an exception to the Hunter principle, in a scenario of alleged fraud. He invokes observations in McIlkenny v Chief Constable of the West Midlands [1980] 1 QB 283, where Lord Denning MR said (319):
It has long been recognised that estoppel per rem judicatam or issue estoppel is not an absolute bar to the matter in dispute being tried again. The party concerned can avoid the effect of the previous decision if he can prove the same to have been obtained by fraud or collusion. That was the unanimous opinion of the judges in the Duchess of Kingston's Case [citation omitted]. To which we can add now that the party concerned can avoid the effect of the previous decision if he can show that a new fact has come to light (which he could not have ascertained before by reasonable diligence) which entirely changes the aspect of the case: see Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801, 814 per Earl Cairns LC. This is a much stricter test than we require when we admit fresh evidence on an appeal.
37 Mr Vella also refers to and relies upon, from McIlkenny, observations made by Lord Justice Reginald Goff (333C) by reference to Reg v Humphrys [1977] AC 1, where Viscount Dilhorne had said (21):
It is well established that in civil cases a decision which would found an estoppel and amount to res judicata can be impugned if it was obtained by fraud (Duchess of Kingston's Case, (1776) 2 Smith LC 644, 651; Abouloff v Oppenheimer & Co (1882) 10 QBD 295; Vadala v Lawes (1890) 25 QBD 310) and I think the law is correctly stated in Spencer Bower and Turner, Res Judicata, 2nd ed (1969), p323, as follows: 'The fraud necessary to destroy a prima facie case of estoppel by res judicata includes every variety of mala fides and mala praxis whereby one of the parties misleads and deceives the judicial tribunal.
38 McIlkenny was of course the Court of Appeal decision which was taken further on appeal by one of the unsuccessful appellants, Hunter, by further appeal to the House of Lords. The final appellate decision became Hunter v Chief Constable of the West Midlands [1981] UKHL 13; [1982] AC 529.
39 The House of Lords resolved the Hunter appeal on a basis going beyond the narrower principles of estoppel res judicatam, or issue estoppel - which had been the focus in the Court of Appeal in McIlkenny. That was explained by Lord Diplock, delivering the leading speech of the House, and with which Lords Russell of Killowen, Keith of Kinkel, Roskill and Brandon of Oakbrook, all agreed. At (540) Lord Diplock said:
Lord Denning MR and Sir George Baker were also in favour of extending the description 'issue estoppel' to cover the particular example of abuse of process of the court presented by the instant case; a question to which much of the judgment of Lord Denning is addressed. Goff LJ, on the other hand, expressed his own view, which had been shared by Cantley J, that such extension would involve a misuse of that expression. But if what Hunter is seeking to do in initiating this civil action is an abuse of the process of the court, as I understand all your Lordships are satisfied that it is, the question whether it also qualifies to bear the label 'issue estoppel' is a matter not of substance but of semantics. Counsel for the appellant was therefore invited to address the House first on the broader question of abuse of process and to deal in particular with the reasoning contained in the judgment of Goff LJ who dealt with the matter more closely than the other members of the court and based his decision solely on that ground.
40 Passages from McIlkenny, now invoked by Mr Vella to emphasise his asserted significance of 'fraud' as an exception to the Hunter principle, need to be understood in their proper context - given somewhat different and narrower arguments run in the Court of Appeal, based upon principles of estoppel per rem judicatam. The passage I have cited from Lord Diplock's speech above, renders it clear that the House of Lords dealt with the 'broader question' - concerning abuse of process. Passages Mr Vella invokes from McIlkenny were directed at narrower issues. Strictly speaking, those passages are irrelevant to (wider) abuse of process considerations that present upon an asserted application of the Hunter principle.
41 However, for the purposes of applying the Hunter principle as explained by Newnes J at [33] above, it would be difficult to envisage a collateral attack against an earlier final decision, being assessed by a court as bringing the administration of justice into disrepute - if there really has emerged some arguable platform to suggest that an earlier decision had been fraudulently obtained. However, to blandly render a bare assertion of 'fraud', without also revealing some underlying foundation should not, in my view, interrupt a scenario that otherwise calls for an application of the Hunter principle.
42 Some further observations made by Goff LJ in McIlkenny at between (333) and (334) are, in my view, of assistance upon the asserted fraud issue. The learned Lord Justice said (333E):
In my judgment, however, where the issue at the first trial was which of two parties or their witnesses was committing perjury, it is not sufficient merely to aver that the judgment was obtained by perjury since that is no more than to say the decision ought to have gone the other way. There must be sufficient fresh evidence to support the allegation.
43 Referring to Flower v Lloyd (1879) 10 Ch D 327, Birch v Birch [1902] P 130 and Boswell v Coaks (1894) 6 R 167, Goff LJ then invoked some observations by Lord Selborne in these terms:
[I]t is not sufficient for the plaintiff to allege fraud. It is the duty of the court to receive such evidence, pro and con, as is material to the question whether there really has been, since the former judgment, a new discovery of something material to disturb the former judgment; and AL Smith LJ states that the plaintiff must shew a reasonable possibility of the alleged fraud being established.
44 Goff LJ then referred (334) to Reg v Humphrys for the observations of Lord Hailsham of St Marylebone, in terms:
No doubt, as was decided in Birch v Birch [1902] P 62; [1902] P 130, and as Diplock LJ indicated in Mills v Cooper [1967] 2 QB 459, 468-469, where the party seeking to impugn the earlier judgment has no significant new evidence to introduce in support of his claim, he will not be able to avail himself of the exception.
45 Goff LJ summarised the overall position concerning a bare assertion of fraud - in terms pertinent to my resolution of the present application. He said (334G):
So the fraud and fresh evidence points merge into one, and that is probably why [counsel] did not rely on the fraud point on behalf of the plaintiffs he represents; and the questions are whether the plaintiffs are entitled to adduce the additional evidence on which they seek to rely and whether that evidence is sufficient.
46 It is insufficient then, on my analysis, for indorsements found upon Mr Vella's writ making a bare assertion of fraud against this defendant, to interrupt of itself, a potential application of the Hunter principle. Something more is required.
47 Observations by Lord Diplock in the House of Lords in Hunter concerning the standard for a reception of fresh evidence in terms of assessing the potential causative impacts of fresh evidence, are also a relevant consideration in most cases. Here, however, no relevantly fresh evidence has been identified by Mr Vella - so the further stage requiring a causative evaluation of the 'fresh' evidence as against convictions, has not even been reached: see [1981] UKHL 13; [1982] AC 529, 545.
48 The defendant relies on two affidavits sworn by Caroline Elizabeth Moss, a solicitor. These affidavits put before the court as attachments the various outcomes and reasons in the appeal court decisions of the Western Australian Court of Appeal, in ultimately rejecting numerous grounds of challenge raised by Mr Vella against his wilful murder and assault convictions and against the sentences which he received in respect of those offences, see Vella v The State of Western Australia [2006] WASCA 30; Vella v The State of Western Australia [2006] WASCA 129; Vella v The State of Western Australia [2006] WASCA 177 and Vella v The State of Western Australia [2007] WASCA 59.
49 Ms Moss' affidavit attached the already mentioned reasons of Hall J, refusing leave to Mr Vella to allow the issue of a writ in CIV 1832 of 2010, and a transcript of that unsuccessful application.
50 Mr Vella also made two unsuccessful applications for leave to appeal to the High Court - rejected respectively on 27 April 2007 by Gummow and Heydon JJ and on 17 October 2008 by Gummow and Kiefel JJ (see second affidavit of Caroline Elizabeth Moss sworn 25 October 2010, attachment CEM6).
51 Attachments to Ms Moss' affidavit demonstrate (as indeed Hall J observed) that absent a petition to the Attorney General for review, Mr Vella has finally reached the 'end of the road' within the criminal justice system, in respect of further challenges against his convictions and sentences.
52 For the purposes of resisting this strike out application by the defendant, Mr Vella swore two affidavits on 16 November 2010 and 25 January 2011, respectively. He then addressed these materials in his written submissions of 19 October 2010, further written submissions of 15 December 2010 and finally, in a third tranche of written submissions of 25 January 2011, attaching also a list of authorities, comprising some 36 cases, articles or references.
53 The defendant's strike out application was then listed for hearing before me at a special appointment on Monday 21 February 2011 at 10.00 am. Due to some technical difficulties associated with establishing an audible video link between Court 9 at the Supreme Court and Mr Vella at Casuarina Prison, it was not possible to effectively commence hearing this matter until around 11.00 am that day (from another court). From then, however, the argument then traversed across the day until approximately 5.00 pm.
54 Even allowing for the fact that Mr Vella was self-represented, it is an understatement to say that his verbal submissions lacked coherency and were, at times, difficult to follow. One cornerstone emerged as manifest, however, across all Mr Vella's verbal and written submissions. His many foreshadowed grievances now directed against the defendant, as his former solicitor and trial advocate, invariably seek at the root, to challenge the correctness of the jury's verdict of 11 March 2005, convicting him of the wilful murder of his wife.
55 Across the course of his oral submissions, Mr Vella foreshadowed numerous criticisms, not merely of the defendant, but in other quarters as well. As but one example, Mr Vella contended that there had been a conflict of interest by reason of Wheeler and Buss JJA sitting as common members of Courts of Appeal in [2006] WASCA 129 and [2007] WASCA 59, by reason of considerations against bias. In this regard Mr Vella invoked Livesay v Bar Association of New South Wales (1983) 157 CLR 288. This was a misconceived and meritless submission, but also wholly irrelevant to any potential civil grievance against the defendant.
56 Another recurrent component in Mr Vella's written and verbal submissions was the contention of a conspiracy against him, and that he was (somehow) 'set up' by his late wife and others, an issue Mr Vella contends should have been pressed harder, better explored or better exposed by the defendant during pretrial preparations and then by his questioning as counsel at Mr Vella's trial. Mr Vella repeatedly contended he had been prejudiced by the defendant's failure to press or make more of the limited (and ultimately unsuccessful, on the jury's verdict) provocation defence. He also made a submission that a defence of self-defence, in complete exculpation of his crime of wilful murder, should have been run.
57 Towards provocation and self-defence, it seemed to be Mr Vella's argument that the defendant, as his solicitor and trial counsel, deliberately conspired to deprive Mr Vella of the benefit of self-defence, or the lesser ameliorative benefit of provocation - by the defendant's active participation in a form of conspiracy engaged in, in conjunction with prosecuting counsel, at the murder trial - to see Mr Vella ultimately convicted of wilful murder. This alleged conspiratorial conduct, constituted 'fraud' by the defendant, so Mr Vella contended. But the 'fraud' was only capable of being discerned by a minute examination of an aggregation of many discrete matters or incidents, which, when factored all together, were said to support the grave allegation. This 'sum of the components being greater than the individual parts' submission from Mr Vella, lacked any degree of rational coherency, in my assessment. When the particular incidents raised by Mr Vella were evaluated closely, the invariable position was that the same matters or events had already been raised (unsuccessfully) by him, within the context of many grounds and arguments previously ventilated during his (in person) appeals to the Court of Appeal (in each instance, without success).
58 As to the alleged conspiratorial deprivation of a benefit of a potential defence of self-defence at his murder trial, there is also no rational relevance to be found in this contention, in circumstances where, on the jury's verdict against him, Mr Vella, on 29 December 2003, had forcibly entered the premises of his estranged wife at around 4.00 am in the morning and there battered her with a baseball bat before finally cutting her throat with a knife; all in circumstances where Mr Vella alleged at his trial that he lacked a memory as to carrying out such acts of extreme violence.
59 In addition, Mr Vella recurrently submitted that he had been denied a fair trial. By written submissions of 19 October 2010 at par 20, Mr Vella said:
The above and my allegations bear a strikingly similar trait that the defendant cannot claim to have been an oversight. They more or less fall under a deliberate attempt to deny me a fair trial. The same way that the above people were denied a fair trial due to (the defendant's management of their trial).
60 By further written submissions of 15 December 2010, he contended:
It is to be noted that the defendant's modus operandi is not just in my case only. Kevin Ibbs, Mickelbergs and Fazari, who was subjected to two very lengthy trials and had their convictions quashed as unsafe in Martinez [2007] WASCA 143 are some of the cases I am aware of that in hindsight could have been acquitted had their defence been properly presented to the jury. However, there is more money to be made from a person being found unfairly guilty to one which is acquitted.
61 The strained endeavour by Mr Vella to challenge, yet again, the correctness of his convictions, now within a framework of civil proceedings against the defendant, is manifest. Civil damage is said to have been sustained by Mr Vella, as a result of his being 'set up' and the defendant's alleged misconduct as a solicitor and counsel in deliberately seeking to secure that Mr Vella be convicted of wilful murder.
62 Mr Vella's contentions as to a 'set up', have all been run before. They have been repeatedly rejected within the framework of the plaintiff's unsuccessful appeals to the Court of Appeal of this State (where Mr Vella represented himself). In Vella v The State of Western Australia [2006] WASCA 129, Steytler P observed at [24] that:
He also provided the Court with typed notes prepared by a police officer in relation to an interview that was conducted with a Ms Margot Bennett which, he contends, support his proposition that he was 'set up' by Mrs Vella. He since provided a body of additional material to the Court, including a lengthy affidavit sworn by him on 5 June 2006, other affidavits sworn by him on 26 April, 14 May and 23 May 2006 and an affidavit sworn by Mr Bowden on 2 May 2006.
Nor does it seem to me that any of the other materials made available by the applicant to [the defendant] (or which, he says, [the defendant] should have obtained), including the letter from Ms Berry, the evidence of Mr and Mrs Smith and other evidence which tended to show that Mrs Vella had been having an affair and had wished to 'set him up', is of any assistance to the applicant.
None of this raises any arguable defence to the assault charge. The applicant did not suggest that he was provoked into assaulting Mrs Vella as a consequence of her deceit or dishonesty or as a consequence of the fact that she was having an affair (which was not then known to him). He was, at the time, himself able to evaluate the extent to which she was affected by alcohol. Moreover, as I have said, alcohol played no part in the injuries which arose out of the initial assault, being the nose bleeding and the injuries which resulted from Mrs Vella's head being banged against the wall. Nor, as I have said, does the evidence relied upon by the applicant support a defence of provocation, self defence or accident, in that respect.
63 Likewise, Wheeler JA in the other criminal appeal by Mr Vella, [2007] WASCA 59, (with whom Buss and Pullin JJA, essentially agreed) comprehensively rejected 'set up' contentions, as advanced by Mr Vella. She said [34]:
Finally, the appellant was particularly concerned that cross-examination had not been pursued, and evidence had not been led, which would have tended to show that he was 'set up'. It was never made clear quite what this 'set up' consisted of, since he plainly did kill the deceased, so that it was not being suggested that he was, for example, being 'framed' for an act which he did not perform. Nor did I understand him to be saying that the deceased and/or Susta had deliberately embarked on a campaign which would cause him to kill the deceased, although his submissions at times went close to that proposition.
64 Having identified the aspects of what was the argued set up, Wheeler JA concluded her observations in terms also most apposite in my view, to a disposal of the present arguments in a civil context. At [35] she said:
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 the deceased having uttered some provocative words.
65 Mr Vella's many foreshadowed criticisms of the defendant's alleged failures as trial counsel to press State witnesses harder, adduce additional evidence, or indeed to press the 'set up' contentions by Mr Vella more strongly, are not new. These same criticisms against his counsel's tactical conduct of the murder trial have been ventilated, and then rejected within the context of unsuccessful in person appeal arguments, conducted in the criminal justice system. Thus, for instance, criticisms by Mr Vella about a failure to challenge more strongly the sister of his late wife (Rebecca Berry) in cross-examination - regarding assertions that she had 'stolen' property, or to adduce evidence of prior incidents - all designed to blacken his late wife's character, seeking to paint her as a woman who would engage in licentious behaviour - were comprehensively addressed and demolished by Wheeler JA's analysis of fundamentally the same criticisms (unsuccessfully) run by Mr Vella before the Court of Appeal. I refer to Wheeler JA's observations at [24], [27], [29], [30] and [33] in [2007] WASCA 59 (reported in [2007] WASCA 59; 33 WAR 411). In particular, at [30] Wheeler JA stated:
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 the deceased's faults out of their proper proportion. One can well understand, in that context, why this defence counsel, who had long experience in criminal trials, did not explore at trial every avenue which the appellant now says should have been explored.
66 Wheeler JA's observations upon paramount forensic governance considerations underlying a defence barrister's tactical decisions taken in a criminal trial, echo earlier observations (albeit in a slightly different context) by Sir Anthony Mason in Giannarelli (556 - 557) where his Honour explained:
[A] barrister's duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party's case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.
67 Mr Vella's many foreshadowed criticisms towards the defendant as his trial counsel, plainly fail to acknowledge, perhaps even to comprehend, these important principles governing decisions made by a defence counsel at a trial. For instance, Mr Vella repeatedly asserted that the defendant had failed to follow his instructions about the questioning of witnesses. However, as Sir Anthony Mason so clearly explained in the passage from Giannarelli, above, Mr Vella was never the exclusive arbiter upon such tactical decisions.
68 The observations by Steytler P and Wheeler JA, to which I have referred, made in Mr Vella's unsuccessful appeals, fully address all the newly foreshadowed criticisms which Mr Vella now makes to me, in the context of this civil action against the defendant, about such matters including an alleged inadequate cross-examination of Rebecca Berry, his deceased wife's sister (see trial transcript, 123 included within Mr Vella's affidavit of 25 January 2011, as part of attachment 19), alleged failures by the defendant as counsel to make more out of a two sided document entitled 'Strategy No 1 and Strategy No 2' which eventually became exhibit 9 at the murder trial (see attachment 2 to Mr Vella's affidavit of 25 January 2011) and another document of December 2003, apparently prepared by Rebecca Berry, entitled 'Dear Ruth' (a copy of which was said to have been given to Mr Vella at a point prior to the wilful murder of his wife on 28 December 2003).
69 Yet another criticism foreshadowed by Mr Vella against the defendant, constituting part of a fraud pastiche, was that there had been a failure to follow up or enquire about an apparent cessation in the passing of SMS (text) communications, as between his late wife and the State's witness, Mr Susta, in a period after 12 November 2003 (in contrast to what Mr Vella asserted had been a large number of text SMS communications passing between them in the earlier period between 19 September and 2 October 2003). But the alleged failure to make more of this asserted incongruity arising out of the cessation in SMS communications in the period after Mr Vella had assaulted and injured his wife on 12 November 2003, is simply another illustration of the barren character in the ingredients Mr Vella would seek to mix together before another court - this time in the civil context, to somehow conjure his end conclusion of fraud by the defendant. These foreshadowed machinations do not protect the impugned indorsements in his writ being cut down, as an impermissible collateral attack against the finality of his convictions, in application of the Hunter principle.
70 It is demonstrable, on my assessment, that the (impugned) matters now foreshadowed by Mr Vella against the defendant, in a context of this civil action have substantively been raised, considered but then finally rejected previously, within the framework of the criminal justice system.
71 In my view, to allow the as foreshadowed civil proceedings by Mr Vella (in their impugned respects) to continue, would bring the administration of justice into disrepute. Controversies finally quelled within the framework of the criminal justice system (against Mr Vella) should not be allowed to be re-opened yet again, in the civil justice system, especially on what looks to be a conceptually misconceived basis. The generality of repetitive, but bare assertions of fraud against a defendant, is no counter. It is clear that the matters sought to be raised again, but now in a civil context, have already been thoroughly ventilated and rejected within the framework of the criminal justice system.
72 The foreshadowed matters, now seen within the impugned components of the indorsement to Mr Vella's writ, do not constitute arguable fresh evidence. And even were there to be seen some truly fresh potential evidence, to which Mr Vella might point, so as to sustain his fraud arguments, he has wholly failed in any relevantly causative way to make out an argument as to a potential favourable impact that such identified new evidence, might deliver him - in terms of it having an important (positive) influence towards a different outcome at his trial (see Lord Diplock in Hunter at (545)).
73 For these reasons, at the conclusion of the hearing on 21 February 2011, I made the orders, essentially as sought on the defendant's chamber summons - striking out the impugned components and paragraphs within the plaintiff's indorsement, as an abuse of process - in application of the Hunter principle.
Arthur J S Hall and Co (a firm)
Simons
(2006) 226 CLR 256
(2005) 223 CLR 1
(1988) 165 CLR 543
(1983) 157 CLR 288
(2002) 213 CLR 635
(1994) 181 CLR 251
(1993) 177 CLR 378
(1992) 174 CLR 509