Court of Appeal (WA)|2012-08-31|Before: Newnes JA

RE THE STATE OF WESTERN AUSTRALIA; EX PARTE VELLA [2012] WASCA 179 (31 August 2012)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE THE STATE OF WESTERN AUSTRALIA; EX PARTE VELLA [2012] WASCA 179

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE THE STATE OF WESTERN AUSTRALIA; EX PARTE VELLA [2010] WASC 213

Practice and procedure - Interim application for interstate judges to hear appeal - Application dismissed

British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429

Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1981] 3 All ER 727

Re the State of Western Australia; Ex parte Vella [2010] WASC 213

Vella v Bowden [2011] WASCA 158

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

Vella v The State of Western Australia [2008] HCASL 552

Vella v The State of Western Australia [2012] HCASL 81

1 JUDGMENT OF THE COURT: On 21 August 2012, we dismissed an application by the appellant for certain interim orders in the appeal. We said we would give reasons for our decision in due course. These are the reasons.

2 Before turning to the substance of the application it is necessary to set it in context.

3 On 11 March 2005, the appellant was convicted of the wilful murder of his wife following a trial before a judge and jury. At the sentencing hearing, on 22 April 2005, the appellant pleaded guilty to three further charges by way of a notice under s 32 of the Sentencing Act 1995 (WA).

4 Since that time the appellant has brought appeals against both his conviction on the wilful murder charge and the other charges to which he pleaded guilty. Those proceedings include: Vella v The State of Western Australia [2006] WASCA 30; Vella v The State of Western Australia [2007] WASCA 59; Vella v The State of Western Australia [2006] WASCA 129 and Vella v The State of Western Australia [2006] WASCA 177. The appellant applied to the High Court for special leave to appeal against his conviction on one of the charges to which he had pleaded guilty. The application was refused: Vella v The State of Western Australia [2007] HCATrans 167. A subsequent application for special leave to appeal in respect of his conviction for wilful murder was also refused: Vella v The State of Western Australia [2008] HCASL 552, as was an application to reopen those applications: Vella v The State of Western Australia [2012] HCASL 81.

5 On or about 21 May 2010, the appellant wrote to the court enclosing two copies of a writ of summons which he sought to file. The proposed defendants included the State of Western Australia; a former Attorney-General; three former judges of the Supreme Court and three current judges, namely Justices Pullin, Buss and Simmonds; a former Director of Public Prosecutions and an officer of his department; and several police officers. All of the named parties had been involved in the earlier criminal proceedings. A registrar refused to file or issue the writ without leave of a judge having been first obtained pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA). The appellant accordingly applied for leave. On 12 August 2010, that application was dismissed by Hall J: Re the State of Western Australia; Ex parte Vella [2010] WASC 213.

6 In his reasons for decision, the primary judge noted that the proposed writ related to the previous criminal proceedings and that in the writ the appellant made various allegations of misconduct, leading to the assertion that he should not have been convicted of the offences. His Honour observed that the appellant had acknowledged that in the proposed civil proceedings he was seeking to raise matters which had been previously raised in the criminal proceedings. He told the primary judge he was seeking to do so because he had exhausted all avenues of appeal. That was confirmed in the appellant's affidavit in support of the application in which he said that he 'has exhausted all avenues open to him in pursuit of justice and that is the reason for the civil action'.

7 The primary judge found that the proposed proceedings would be an abuse of process as they would constitute a collateral attack on the appellant's conviction in the criminal proceedings. He therefore dismissed the application for leave.

8 The appellant filed an appeal notice on 20 July 2011. It was well out of time. His appellant's case was filed on 3 August 2011. The substance of the grounds of appeal contained in it can be shortly stated. The first is an allegation of a reasonable apprehension of bias on the part of Hall J, as his Honour sat as a member of the Legal Profession Complaints Committee which dismissed the appellant's complaint against the prosecutor at his criminal trial, Mr Mactaggart; the second is that the decision of the primary judge was unreasonable; and the third is that his Honour erred in applying the principles set out Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1981] 3 All ER 727.

9 In his interim application, the appellant seeks the following orders:

An order that this matter be heard by interstate judges;
An order for Justice Hall to appear before the Court of Appeal to respond to the following:

(a) Whether he did prosecute cases for or on behalf of the DPP?

(b) Whether he knew Senior State Prosecutor Mr James Mactaggart prior to 18 September 2009 and if so in what capacity?

(c) To answer questions about his unreasonable and biased judgment in Re the State of Western Australia; Ex parte Vella [2010] WASC 213.

An order for Justice Hall to submit my letter to his associate of the 25 July 2011, or, a copy of it, to the Court of Appeal.

10 The appellant requested an adjournment of the hearing of this application on the basis that he had again applied to the High Court to reopen his earlier applications to that court. We refused the adjournment. The application to the High Court does not provide a reason why this application should not be dealt with.

11 As we understand it, the appellant seeks the first order in the application on the basis that, as the appeal is against a refusal of leave to issue a writ against (among others) three judges of the Supreme Court, a reasonable apprehension of bias would arise in respect of any judge from this jurisdiction who might hear the appeal. That is, a fair-minded lay observer might reasonably apprehend that any judge from this jurisdiction might not bring an impartial and unprejudiced mind to the resolution of this appeal: see Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488, 492, 494; British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 273 ALR 429 [78] - [84], [132] and [139].

12 The order must be refused. It is unnecessary at this stage to comment on the substance of the appellant's contention. Suffice it to say that any application for disqualification on the ground of a reasonable apprehension of bias is, to say the least, premature. The appeal has not been set down for hearing. Its composition is a matter for the court. If on the hearing of the appeal the appellant contends that a reasonable apprehension of bias arises in respect of particular judges who are to hear the appeal, he can make an application at that time.

13 The second order sought is utterly misconceived, quite apart from the fact that the enquiries sought to be pursued are entirely irrelevant to the grounds of appeal. It must be refused.

14 The final order sought relates to a letter the appellant wrote to the associate to the primary judge asking whether his Honour had prosecuted on instructions from the DPP and what his association with Mr Mactaggart was. It is not apparent how that letter might be relevant to the determination of the appeal but if the appellant seeks to rely upon it the appropriate course is for him to file an application, supported by an affidavit to which the letter is attached, seeking leave to produce it as evidence on the hearing of the appeal.

15 There is one further matter. In the course of the hearing the appellant applied for Murphy JA to disqualify himself from hearing the interim application on the ground of a reasonable apprehension of bias. The appellant complained that in another appeal his Honour and Pullin JA had refused the appellants' application for interstate judges to hear that appeal and he also complained of the way he perceived that Murphy JA had looked at him during the hearing of that application. The application in question would appear to be Vella v Bowden [2011] WASCA 158.

16 There is no substance in the disqualification application. The fact that in another appeal Murphy JA had refused an application for judges from another jurisdiction to be appointed to hear that appeal is not capable of giving rise to a reasonable apprehension of bias in respect of the current application. The balance of the ground is too nebulous to provide a basis for disqualification. We therefore dismissed the application.

17 It was for those reasons we dismissed the interim application.

British American Tobacco Australia Services Ltd v Laurie

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RE THE STATE OF WESTERN AUSTRALIA; EX PARTE VELLA [2012] WASCA 179 (31 August 2012)

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