R v Portelli [2001] VSCA 183

5. The offences with which the applicant was charged arose out of the purchase of a house property in Avondale Heights. The house was for sale through the Moonee Valley Real Estate Agency, the manager of which was Privitelli. On 16 March 1997 the applicant and his wife, together with their daughter, inspected the property which was listed for sale at $168,000. Afterwards the applicant made an offer to purchase the property for $150,000 and that offer was accepted by the vendor. The contract of sale was drawn up and was signed by all parties, including the applicant, on 18 March and a deposit of $15,000 was duly paid by the applicant to the real estate agent.

8. Subsequently, the applicant spoke with another agent in Avondale Heights who claimed to have valued the property at something between $130,000 and $150,000. This was the start of what followed; for the applicant then re-attended at the property just purchased, measured the size of the garage and realised for the first time that the garage was no larger than his own. This was contrary to his original belief, based upon his own observations. The applicant decided that he no longer wished to purchase the property, but this was after payment of the deposit and after the three-day cooling off period. Nothing daunted, the applicant approached Privitelli and said that he wanted the sale not to proceed. Privitelli explained that it was a legally binding contract, that the vendor would be expecting his money and that he should see a solicitor. The applicant said that he did not want to do that and that somehow Privitelli should solve the problem. In fact Privitelli did contact the vendor, but he insisted that the sale should proceed as agreed.

11. The applicant made a number of approaches to Privitelli in March 1997 including one approach to Privitelli at his home during the Easter break on Saturday 29 March. He rang Privitelli and stated that "his wife is having a fucked Easter, that he was having a fucked Easter and that Privitelli was also going to have a fucked Easter". On Sunday 30 March the applicant attended at St Martin's Catholic Church in Avondale Heights and enquired about the whereabouts of Privitelli, who was a parishioner and a member of the church choir. The applicant was told by a priest that Privitelli was not at church at the time. The priest described the applicant as "quite irrational, extremely angry and full of hatred and vengeance". The applicant said of Privitelli: "Well, he won't be singing in any choir when I have finished with him".

14. On the next day, Monday 31 March, the applicant again attended at the church and spoke with a priest. This time he said, with regard to Privitelli: "Sam is a thief and he won't be singing in your choir once I've got hold of him". He went on to describe how he believed that he had been "ripped off" by Privitelli in regard to the purchase of a house, claiming that Privitelli owed him $15,000. The priest said that the applicant was very agitated and upset.

17. At about 10 a.m. on Tuesday 1 April, the applicant and his wife attended at the real estate agency where he spoke to the manager, Privitelli. Again the applicant asked to be excused from the agreement and again it was explained to him that the sale was binding. The applicant became enraged and physically assaulted Privitelli, swearing as he did so. He also threatened to throw a chair through a glass partition into the office where Traci Beck was working. It was only the intervention of Privitelli that stopped this from happening. The applicant verbally abused a number of other staff members present. He took hold of Mezzalira, another staff member, in a threatening manner and abused him. During this encounter, Mezzalira said, the applicant stated: "I'm going to shoot someone; I'm going to fix you". Eventually he calmed down and left the office.

20. Privitelli later attended at the Avondale Heights police station and then at the Broadmeadows Magistrates' Court where an interim intervention order was granted against the applicant. A condition of that order was that the applicant not visit the Moonee Valley Real Estate Agency or attend within 200 metres.

23. On Wednesday 2 April 1997, at approximately 9 a.m., Privitelli arrived at the agency. Beck was already present and was talking to the applicant, who was with his wife. Again the applicant was requesting the return of his $15,000 deposit, and, upon Privitelli approaching the reception area, Beck said to Privitelli: "Sam, I have spoken to Mr and Mrs Portelli and told them that if they don't leave the office I will be calling the police". The applicant refused to leave the agency and became abusive. The police were called by Privitelli and Constable Jones and Constable Buck attended. Constable Jones explained to the applicant that the dispute was a civil matter and that he should speak to a solicitor. A copy of the interim intervention order was served upon the applicant by the police and the conditions of that order were explained to him. He was then ushered from the premises by the police. During this time, however, the applicant became aggressive towards the female police officer, Constable Buck, accusing her of laughing at him. Constable Jones calmed the situation down and eventually convinced the applicant to leave the agency and to comply with the order.

26. The applicant then went shopping with his wife at the Highpoint Shopping Centre and returned home. A little later he went into one of the bedrooms and took a 12-gauge semi-automatic shotgun from a hidden compartment in one of the cupboards. The shotgun was unregistered. He also took a quantity of shotgun cartridges (at least eight). He left home driving his Ford station wagon and parked the car outside a hairdresser's shop, a short distance away from the Moonee Valley Real Estate Agency. He walked from the car into the agency with the shotgun concealed in a blanket. Inside the agency, the blanket was dropped on the floor of the reception area. A number of customers were there; in all there were eight people in the agency when the applicant arrived.

29. The first person inside the agency to see the applicant was the receptionist: she became terrified and started crying when she saw the applicant armed with a shotgun. He said to her something to the effect that he was not interested in her, suggesting that he was not going to hurt her and that he was after Privitelli. Asking where he was, the applicant then proceeded directly to Privitelli's office. Privitelli was in his office with a customer and both became terrified as the applicant entered. Privitelli was seated behind the desk and the applicant attempted to shoot Privitelli by pulling the trigger. Fortunately the gun did not discharge. Privitelli got under his desk in order to hide from the applicant, who was working on the action of the gun. It must be said that this was the version of events given by Privitelli and it formed the basis of the charge of attempted murder. At trial the defence contested this version of events and, in the result, the applicant was acquitted.

32. Meanwhile, in another office, Beck too was with a customer. Becoming alert to the applicant's presence, she told the customer to get down on the floor and she got down on the floor beside her desk to hide from the applicant. The customer shut the door of the office. The applicant, who was then standing in the corridor outside this office, held the shotgun up to his shoulder and discharged a single shot towards the rear of the agency. This hit the window in the kitchen area at the back of the agency. According to Mezzalira, the applicant called: "Where are you, you bastards?" Soon after, Privitelli got to his feet and ran from the office to a nearby shop.

35. At about this stage the applicant gave the customers present (four of them) and the receptionist permission to leave the agency. This left Beck and Mezzalira. Mezzalira was under his desk when he heard a loud bang on a door. The applicant, it seems, struck the door to Beck's office with the barrel of the shotgun, punching a hole in it. He then walked into Beck's office. She had moved from the floor to her seat. He fired a single shot at Beck, which hit her on the left side of her chest, and her body absorbed the full blast. Mezzalira said that he then heard the applicant say in a loud voice: "Are you happy now?" Beck died soon after.

38. The applicant walked out of the real estate agency and used the barrel of the shotgun to smash the front windows. He struck the windows at least five times. Police had been called to the scene and they arrived as the applicant was doing this. Constables Jones and Buck were the first at the scene. They were confronted by the applicant, who was carrying his loaded shotgun: they drew their own weapons and instructed the applicant to put down his gun. He refused and advanced on them, forcing them to fall back. Again the applicant focussed his aggression on Constable Buck. He said: "You're not laughing at me now. Why are you not laughing?" After further exchanges, Constable Jones actually advanced upon the applicant, whereupon the applicant took hold of the barrel of the shotgun with both hands, lifted it up over his head and smashed the wooden butt stock of the gun on the concrete footpath. He did this a number of times and on the last the gun discharged. The applicant was then taken into custody by Constable Jones. It should be added that the firearm carried by the applicant had the capacity to discharge three shots before it had to be reloaded. Constable Jones is to be commended for his bravery.

41. Having been arrested, the applicant was seen to be suffering from some health problems and as a result was taken to hospital before being further interviewed by medical practitioners and police. He was then returned to the Homicide Squad offices in St Kilda Road. He was interviewed shortly after 9 p.m. that day and later charged with murder. In the course of the interview he described how he had attended at the real estate agency to ask for his $15,000 back: he thought he had made a mistake in buying the house for $150,000 and wanted to get out of the contract. He confirmed that he had gone into the estate agency, fired shots, walked outside, walked some 60 metres or so and smashed the shotgun on the ground before his arrest. He told how he had repeatedly requested Privitelli to give him the deposit back, but could not get satisfaction: he considered the agent to be "a pushy bugger". Further he said that Privitelli knew that he was angry. He also said: "I hate the way she is, this girl", meaning Beck. The applicant described how he got the shotgun from home and filled his pockets with cartridges, telling the police that he intended to go back to the real estate agency with the gun and scare Privitelli. He confirmed that he took the shotgun into the real estate agency and that the first shot he fired went down the corridor. After that, he said: "I went like an animal". He said that he did not know what he did then. He said he could not recall how many shots he fired inside, but he had then gone outside and smashed the window. He could not remember what he had done because he was (as he put it) "out of my head ... with anger". He said he did not want to hurt Privitelli, he just wanted to frighten him. So far as Beck was concerned, he did not want to hit the girl, he claimed, saying: "Believe me I don't know and I still don't believe I did it". He was unable to give a detailed account of how the shooting took place because, he said, "Honest to God I didn't know, I didn't see her. I was that mad I was an animal. At that minute I saw nothing. I think me I saw nothing". In essence, the applicant said that he went into the office and, after firing the shot down the corridor, lost control completely.

44. I have taken some time to describe the tragic events of 2 April 1997 and the subsequent police interview because of the grounds now taken by the applicant in his application for leave to appeal against conviction. Grounds 1 and 2 complain of a miscarriage of justice arising from the conduct of the trial by the applicant's own counsel. In substance, two complaints are made: first, that counsel failed to cross-examine witnesses or otherwise explore the defence of accident and, secondly, that counsel failed to call the applicant to give evidence. The genesis of these complaints is a claim made by the applicant in an affidavit sworn on 16 August 2000 which we received into evidence subject to objection. In that affidavit the applicant recounts the events of 2 April and claims that he went to the estate agency simply to "fire a couple of shots in the air in order to frighten people so they would leave the shop allowing me to smash the shop up". He says also, in paragraph 8 of that affidavit:

"THAT when I entered the real estate office with the firearm the receptionist, as best I recall, started to cry and immediately left, however, I think I said to her, `I am not going to hurt you or anyone'. I saw Sammy Privitelli in the office and he went past me and I let him go. I even spoke Maltese. I walked towards the back and saw some other persons and told them to go home as I would not hurt them. I recall I walked into an office near the rear of the premises and as I pulled my handkerchief from my pocket my medication fell on the ground. Whilst I was picking my medication up I had the firearm in my right hand. I recall that Mr Mezzalira came towards me and I pushed him in the lower stomach area with my left hand. He then grabbed my right hand which was holding gun and as a result the gun discharged accidentally. I then followed him to the yard at the back. I did not realise that somebody had been shot or hurt when the gun had discharged. My purpose in going to the back of the premises was to damage the windscreens of any cars parked there. I changed my mind and went back to the office still holding the gun and then proceeded outside to smash windows at the front of the real estate agency. I recall police arriving and soon after being placed under arrest. I was later taken to Royal Melbourne Hospital."

Thus he claims that Mr Mezzalira grabbed his right hand which was holding the gun and that the gun discharged accidentally in the result. That was the shot which (I suppose the applicant would claim) killed Ms Beck.

49. The affidavit which I have mentioned not only describes the events of 2 April as I have set out, it also describes how, in March 1999, prior to the commencement of the trial, the applicant told his barrister, in the presence of his solicitor, "that the gun discharged when Mr Mezzalira grabbed my hand". He describes, too, how he was persuaded, he says, not to go into the witness box despite his wish to do so. There is nothing, however, which gives credence to what is recounted in the affidavit of 16 August. On the other hand, there is much to the contrary.

52. First, there is the other material which we admitted subject to objection. There is an affidavit of Mr McMonnies, the applicant's present solicitor, sworn 25 August 2000 and further affidavits of his sworn on 11 October 2000 and 2 April 2001. According to the first of these, that sworn on 25 August, when found guilty upon his trial, the applicant protested his innocence, saying something to the effect: "I didn't kill Traci. He took the gun from me, he killed Traci". This is quite different from what the applicant now says in the affidavit of 16 August 2000.

55. Further, the trial that was held in March 1999, at which the applicant was convicted, was not his first trial. The first trial was held in September-October 1998 and the jury was discharged on 6 October when they were unable to reach a verdict. The solicitor's affidavit of 25 August 2000 discloses that at a conference with his counsel in April 1998 as a preliminary to that trial, the applicant said this, according to a transcript which was taken at the time:

"I was in the corridor or where I was, I don't remember where I was. So I felt a hit on my hand. On your upper arm you are pointing to? This is it, I've still got the mark. I don't know whether I knocked it on the wall or anything. I think the gun went that time. But you're not sure? I'm not sure. I didn't pull the trigger, I'm sure I didn't pull the trigger to anybody. Because when the police said, 'You killed that girl' I said, "No, I didn't shoot anybody'."

Nothing here about Mr Mezzalira grabbing the applicant's right hand which was holding the shotgun and causing the gun to discharge. Mr Wendler sought to argue that the two versions were both of accident and to that extent consistent, but the one scarcely gives credence to the other. I note in passing that counsel put in evidence before us, again subject to objection, the full transcript of that conference between applicant and counsel for the sake only of giving context to what I have just set out. (As it happens, the exchange that is recorded on the very next page appears to confirm what he told police, that he did not recall what occurred.)

60. Then there was the police record of interview in which the applicant claimed repeatedly that he had no memory of how he came to shoot the deceased. In contrast, he now claims a memory specific enough to include Mezzalira's grabbing his right hand which was holding the shotgun. At no stage during the trial was that put by counsel representing the applicant to Mezzalira, or in fact to any witness. Mezzalira was not cross-examined about anything. The unchallenged evidence he gave was that after seeing the applicant with the shotgun he hid under his desk. He was not in the passageway. Moreover, if he was in the passageway, grabbing at the applicant's right hand, that scarcely explains how Beck came to be shot by the firing of the gun from within her office, which was the thrust of the forensic evidence.

63. There was in this matter a contested committal hearing in December 1997 and, as I have said, the first trial was in September-October 1998 and the second in March 1999. On all three occasions - the committal, the first trial and the second trial - the applicant was represented by counsel, albeit by different counsel. On none of these occasions was there any attempt to explore the defence of accident. Nor, so far as can be seen now, was there any intervention on the part of the instructing solicitor to that end or any complaint made by the applicant after the event - that is, until many months after the conviction on this occasion. In those circumstances the version now given by the applicant lacks cogency. It is difficult, and I think impossible, to accept what is now asserted in the applicant's affidavit of 16 August 2000. The whole concourse of events leading up to the murder of Beck tells strongly against mere accident.

66. The authorities establish that courts are "extremely cautious" in approaching such complaint as is now made about the misconduct of the trial by the applicant's own counsel. Essentially, the question is, as with all appeals, whether there has been a miscarriage of justice, and this is not established merely upon proof of incompetence or action contrary to instructions. Reference may be made to cases such as R. v. Birks[1], R. v. Miletic[2] and Re Knowles[3]. But I do not pursue what must be established, for in this instance, as I have said, I am simply not satisfied that there is anything in this latest version of events, and therefore I am not satisfied that there is any basis for the complaint which is now sought to be agitated. In my opinion it is impossible to act upon the claim now made that the gun discharged when Mezzalira grabbed the applicant's hand. Even if we admitted the affidavits into evidence, I am not satisfied that there was any defence of accident, and no basis is established, in my opinion, for the complaint now made that the trial miscarried for failure to explore that defence.

69. Much the same can be said about the failure to call the applicant to give evidence. No doubt it was a forensic decision made by counsel at the time and nothing has been said this morning to persuade me that this Court should intervene upon the basis that the failure to call the applicant led to a miscarriage. If, as the applicant now asserts, he wanted to give evidence and was persuaded not to do so, no doubt that was because counsel had formed the professional opinion that it might do more harm than good. Certainly I am not persuaded that the applicant's will was overborne as regards the decision whether or not he should give evidence.

72. On this application for leave to appeal against conviction there is another ground taken: that the judge failed to instruct the jury on the issue of lies in accordance with the majority opinion of the High Court in Edwards v. The Queen[4]. The short answer to this is that lies were not relied upon in this instance as consciousness of guilt: they were referred to only on the matter of credit. The case of Nguyen[5] upon which Mr Wendler relied was a very different case. Moreover, the judge said very plainly to counsel that he was not going to charge on consciousness of guilt and applicant's counsel agreed in that course. Consistently with that view, no exception was taken to the judge's charge as to lies. Nor was any further direction sought. There was simply no miscarriage of justice in this respect.

75. It is for these reasons that I would dismiss this application. For myself, I would receive the affidavits into evidence for what they are worth. Indeed, the later affidavits of Mr McMonnies - that is, the affidavits of 11 October 2000 and 2 April

2001 - deposed to the notification of counsel of what was now alleged by the applicant, and such is entirely appropriate. It was said in these affidavits that thus far there had been no response from counsel at the committal or counsel at the first trial and we were told from the Bar table that counsel at the second trial had communicated orally the fact that he would be making no response. Obviously, where there is a ground of appeal impugning the conduct of previous trial counsel or previously instructed solicitors, notice of the relevant ground of appeal should be given, in writing, to the former practitioner as soon as the ground is taken and he or she should be provided with a copy of any affidavit in support. Secondly, the former practitioner should be invited to respond on affidavit, if he or she wishes to do so, and to that end, at least as a general rule, legal professional privilege should be expressly waived. An affidavit should then be filed to establish that those steps were taken and with what result. In this instance it should not have been left in part to counsel to inform the Court by statement from the Bar table.

79. In my opinion, the application should be dismissed.

83. I agree that the application should be dismissed, for reasons given by Phillips, J.A.

[1] (1990) 19 N.S.W.L.R. 677 at 684.

[2] [1997] 1 V.R. 593 at 598.

[3] [1984] VicRp 67; [1984] V.R. 751 at 760-1 and 766-8.

[4] [1993] HCA 63; (1993) 178 C.L.R. 193.

[5] [2001] VSCA 1; (2001) 118 A.Crim.R. 479.