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[2006] WASCA 177
Court of Appeal (WA)
2006-09-01
Smith JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : VELLA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 177
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Appeal - Criminal law and procedure - Leave to appeal against conviction for wilful murder - Selfrepresented appellant - 42 grounds of appeal - Conduct of trial by defence counsel - Whether miscarriage of justice - Prosecutor "stopping" evidence - Lies - Whether misdirection - Provocation - Whether misdirection - Whether evidence of "previous history of provocation" wrongly excluded - Anger - Relevance to provocation
Appeal - Criminal law and procedure - Leave to appeal against sentence - Sentence of strict security life imprisonment - Order that appellant serve 20 years before eligibility for parole - Whether manifestly excessive - Whether specific errors made in sentencing - 10 grounds of appeal
Criminal law and procedure - Appeal - Request by appellant that DPP produce copy of correspondence - Claim of legal professional privilege by DPP - Whether available
Evidence Act 1906 (WA), s 79C
Application for leave to appeal conviction granted in part
Appeal against sentence dismissed pursuant to r 43(2)(g)(i) Supreme Court (Court of Appeal) Rules 2005 (WA)
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Attorney-General's Reference (No 3 of 1979) (1979) 69 Cr App Rep 411
Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 79 ALJR 755
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Errey v The Queen [2001] WASCA 75
Griffin v The Queen [2001] WASCA 11
Hetherington v Brooks [1963] SASR 321
McSwan v The State of Western Australia [2005] WASCA 128
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
Paterson v The Queen (2004) 28 WAR 230
Penney v The Queen [1998] HCA 51; (1998) 72 ALJR 1316
Prestage & Shearing v The Queen [1976] Tas SR 16
R v Alexander [1975] VicRp 74; [1975] VR 741
R v Armstrong (1983) 35 SASR 356
R v Birks (1990) 19 NSWLR 677
R v Booth [1983] VicRp 4; [1983] 1 VR 39
R v Bryant & Dixon (1946) 31 Cr App Rep 146
R v Bunting [2002] SASC 412; (2002) 84 SASR 378
R v Harrison [1966] VicRp 12; [1966] VR 72
R v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11
R v Lucas [1981] QB 720
R v Olasiuk (1973) 6 SASR 255
Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647
Turner v The Queen [2004] WASCA 127
Vella v The State of Western Australia [2006] WASCA 129
Vella v The State of Western Australia [2006] WASCA 30
Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Allwood v The Queen (1975) 18 A Crim R 120
Beamish v The Queen [2005] WASCA 62
Broadhurst v The Queen [1964] AC 441
Bryer v The Queen (1994) 75 A Crim R 456
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Cushing v The Queen [1977] WAR 7
De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85
Director of Public Prosecutions v Camplin [1978] UKHL 2; [1978] AC 705
Easterday v The Queen [2003] WASCA 69; (2003) 143 A Crim R 154
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Hogue v The State of Western Australia [2005] WASCA 102
Johnson v The Queen [1976] HCA 44; (1976) 136 CLR 619
King v The Queen [1986] HCA 59; (1986) 161 CLR 423
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Masciantonio v The Queen [1995] HCA 67; (1995) 183 CLR 58
Maxwell v Director of Public Prosecutions [1935] AC 309
McCreed v The Queen [2003] WASCA 275; (2003) 27 WAR 554
Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131
Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Anderson [1972] 1 QB 304
R v Attfield (1961) 45 Cr App Rep 309
R v Baillie-Smith (1977) 64 Cr App Rep 76
R v Banks (1917) 12 Cr App Rep 74
R v Bathgate (1946) 46 SR (NSW) 281
R v Bliss (1987) 84 Cr App Rep 1
R v Bradbury [1969] 2 QB 471
R v Brown [1994] 1 WLR 1599
R v Burns (1973) 58 Cr App Rep 364
R v Ching (1976) 63 Cr App Rep 7
R v Curr (1967) 51 Cr App Rep 113
R v Davies [1975] 2 WLR 586
R v Dolan (1969) 53 Cr App Rep 556
R v Dolan (1976) 62 Cr App Rep 36
R v Edwards (1983) 77 Cr App Rep 5
R v Eidinow (1932) 23 Cr App Rep 145
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
R v Foley [2000] 1 Qd R 290
R v Gibson (1983) 77 Cr App Rep 151
R v Gray (1974) 58 Cr App Rep 177
R v Groom (1976) 62 Cr App Rep 242
R v Knightley (1971) 55 Cr App Rep 390
R v Krausz (1973) 57 Cr App Rep 466
R v Lamb (1874) 59 Cr App Rep 196
R v Lawrence [2001] QCA 441; [2002] 2 Qd R 400
R v LSS [2000] 1 Qd R 546
R v Lucas [1973] VicRp 68; [1973] VR 693
R v McFadden (1976) 62 Cr App Rep 187
R v Moghal (1977) 65 Cr App Rep 56
R v Phillips (1936) 26 Cr App Rep 17
R v Puddick [1865] EngR 61; (1865) 4 F & F 497
R v R(D) [1996] 2 SCR 291
R v Rees (1977) 64 Cr App Rep 155
R v Roberts [1936] 1 All ER 23
R v Singh [2003] SASC 344; (2003) 86 SASR 473
R v Smith [2000] UKHL 49
R v Stripp (1979) 69 Cr App Rep 318
R v Sugarman (1935) 25 Cr App Rep 109
R v Thorpe (1974) 59 Cr App Rep 295
R v Vickers [1972] Crim LR 101
R v Ward [1993] 2 All ER 577
R v Warner (1971) 55 Cr App Rep 93
R v Wilkins [1975] 2 All ER 734
R v Ye Zhang [2000] NSWSC 1099
Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312
Tahche v Abboud [2002] VSC 42
Thorpe (1974) 59 Cr App Rep 295
Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158
Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444
Wooding v The Queen (1979) 70 Cr App Rep 256
1 ROBERTS-SMITH JA: On 11 March 2005 the appellant was convicted of the wilful murder of his then estranged wife, Mrs Ruth Vella, on 29 December 2003.
2 On 30 March 2005 he filed a notice of appeal against conviction. That contained one ground which related to provocation.
3 On 22 April 2005 the appellant was sentenced for the wilful murder, a further offence of assault occasioning bodily harm and two offences of breaching a violence restraining order.
4 He filed an application for leave to appeal against sentence on 12 May 2005.
5 The Appellant's Case was filed on 17 November 2005. Since that time (as indeed prior to it), the appellant has made multiple prolix applications seeking production of many documents and other items, the production of witnesses to be interviewed and other matters. He also filed an application for leave to appeal (CACR 216 of 2005 in respect of the assault conviction). Each application was also attended by multiple ancillary applications of various sorts. On 25 January 2005 I refused the appellant leave to appeal against his conviction for assault occasioning bodily harm to his wife, and accordingly ordered that appeal be dismissed (Vella v The State of Western Australia [2006] WASCA 30). I also made a number of other orders on various outstanding applications. The appellant sought review of those orders. The review was dealt with by the Court of Appeal on 20 April 2006, and on 28 June 2006 the Court published its judgment dismissing the application for review (Vella v The State of Western Australia [2006] WASCA 129).
6 The appellant's extant applications for leave to appeal are accordingly CACR 36 of 2005, which is against his conviction for the wilful murder of his wife, and CACR 76 of 2005 which is against the sentence of life imprisonment imposed upon him.
7 On 1 December 2005 I reserved the question of leave to appeal in both matters for the time being, and ordered the respondent be required to file and serve the Respondent's Answer. The progress of these matters was then overtaken by further requests and applications made by the appellant.
8 The applications for leave to appeal and a number of other requests, applications and issues raised by the appellant were listed for hearing before me on 1 August 2006, on which occasion he continued to represent himself, and Ms Whitbread appeared for the respondent. On that date I dealt with all but one of the then outstanding matters. I heard submissions from the appellant and Ms Whitbread on the applications for leave to appeal, but reserved my decision. The other matter reserved concerned a request that the Director of Public Prosecutions provide to the appellant copies of correspondence. It is not entirely clear what particular items of correspondence are being referred to, but for present purposes I approach the matter on the basis there are two categories of correspondence, that the first is correspondence between Mr Bowden (the appellant's trial counsel) and the DPP and that the second is correspondence apparently contained in a file seized by police from Mrs Vella's residence and being between her and her then solicitor, Mr Chris Baker.
9 On 25 January 2006 Mr Mactaggart said (t/s 31 - 32) that the DPP did not have that file and he was uncertain whether or not the police had seized such a file, but if they had, Mr Baker ought to be given an opportunity to make submissions about it because "... it's his file, obviously". In the circumstances described, I would have thought the file was that of Mrs Vella, not Mr Baker, and her claim of privilege in respect of it would be maintainable by the representative of her estate. The content of the file apparently relates to proceedings in the Family Court between the appellant and his then estranged wife.
10 At a hearing on 25 January 2006, Mr Mactaggart, who then appeared for the respondent, said a claim for legal professional privilege was being maintained in respect of the correspondence. He relied on the authority of R v Bunting [2002] SASC 412; (2002) 84 SASR 378.
11 As Mr Mactaggart said the DPP did not have the file of Mrs Vella's correspondence with Mr Baker, I take it that claim is being made by the DPP in respect of correspondence between Mr Bowden as the appellant's then legal representative and the DPP. It may be shortly disposed of. That correspondence was either to or from the appellant's legal representative, acting on his behalf. The DPP has no claim of privilege in it as against the appellant, although he may have such a claim against other persons. Likewise, the appellant would no doubt be entitled to maintain a claim of legal professional privilege in that correspondence as against third parties, but not against the Director. If correspondence of this description is being sought by the appellant, he would presumably be able to get it from Mr Bowden. Alternatively, if that were not possible for some reason and he were to seek it from the DPP, production of it could not properly be refused on the basis of any claim for legal professional privilege. Bunting has no application to this category of correspondence.
12 As to correspondence in the second category, I note that at the hearing before me on 1 August 2006, Mr Vella said he was not pursuing that. It is accordingly not necessary for me to deal with it further.
13 I turn to the Appellant's Case in relation to the application for leave to appeal against conviction.
14 The appellant has set out 42 grounds in CACR 36 of 2005. They consist of general assertions, expressed vaguely, lacking specificity and giving no or inadequate particulars. In some instances it is possible to gain some idea from Mr Vella's written submissions what it is he seeks to complain about. In other instances his submissions do not allow of any appreciation of that. Some better understanding is possible from the appellant's oral elaboration of his ground and submissions made on 1 August 2006.
15 The grounds of appeal as set out by the appellant are:
"1. There was a miscarriage of Justice in that New\Fresh evidence was not presented and adduced diligently by defence council. Error of fact
2. There was a miscarriage of Justice in that defence council [sic] did not cross examine diligently on inconsistent statements and perjury: Error of fact and law
3. There was a miscarriage of Justice by the defence council [sic] in not calling certain witnesses I asked him to call. Lawyers not asking a question unless they know the answer is not always the best alternative. Error of fact
4. There was a miscarriage of Justice by defence council [sic] in not gathering evidence, presenting further evidence and getting certain evidence which I had asked for. New Fresh evidence. Error of fact.
5. There was a miscarriage of Justice by defence council [sic] asking the wrong questions. of the wrong witnesses. Lack of preparation. Error of fact
6. The learned Judge erred in allowing a juror to be sworn who knew one of the witnesses. Error of law.
7. The learned Judge erred in allowing the improper questioning by the prosecutor on lies: Error on Rules, Fact and Law
8. The learned Judge erred in stopping evidence being given. (Rebecca Berrys [sic] letter) Error of law
9. The learned judge erred in allowing hearsay evidence. Error of law.
10. The learned Judge erred and was biased in his decision to allow the state [sic] (Karen Margolius give her evidence and admit all the documents) and deny the defence the same with R Berry's letter to which she swore that it was true. Error of fact and law
11. The learned Judge erred in allowing evidence whose prejudiced value far outweighed it's probative value. Error of law and fact
12. The learned Judge erred in misdirecting on facts and circumstantial evidence. Error of fact and law.
13. The learned Judge erred in misdirecting on lies. Error of fact.
14. The learned Judge erred in directing properly on the onus of proof. Error of fact and law.
15. The learned Judge erred in properly directing the Jury to events occurring in the public gallery Error of fact and rules.
16. The learned Judge erred in directing jury to ignore inferences and evidence favourable to defence. Error of law.
17. The learned Judge misdirected as to requisite intent. Error of fact and law
18. The learned Judge misdirected on provocation Error of fact and law.
19. The learned Judge did not direct properly on provocation Error of fact and law
20. The learned Judge misdirected on previous acts of provocation by not directing on them Error of fact
21. The learned Judge erred by wrongfully excluding evidence. Error of Law.
22. The learned Judge erred by allowing the admission of Margolius' charts of the back and front with bruises not proven to be by accused. Error of fact Prejudice and bias.
23. The learned Judge erred in allowing perjury to occur and did not direct on it Error of law and fact.
24. The learned Judge misdirected on the 'ordinary man' Error of fact and law.
25. The learned Judge erred in not directing on previous history of provocation Error of fact
26. The learned judge [sic] erred in directing on provocation and confusing the issue by bringing the son in the bedroom. Error of law and fact.
27. The learned Judge erred in properly directing on provocation. Error of law
28. The learned Judge misdirected the jury re the CD. Error of fact
29. The learned Judge failed to direct on the accused's motive. To gather evidence to take children away from what I deemed to be a unhealthy environment for children to be raised in. Get custody of children. (Error of Fact)
30. The learned Judge erred in not directing on anger Error of law.
31. The learned Judge erred in directing on demeanour Error of fact.
32. The learned Judge erred in failing to refer to previous acts of provocation Error of fact.
33. There was a miscarriage of Justice by the Prosecutor in stopping and trying to stop evidence favourable to accused to be heard thus depriving the jury of an insight into the deceased's unsuitability as parent to the children. Error of law and fact.
34. There was a miscarriage of Justice by the prosecutor in breaking the Prosecutor Code of conduct for a fair trial. Struggling to stop any evidence favourable to accused re character and behaviour of deceased, his cross examination was 60% fact finding and 40% character assassination contravenes international human rights. Error of law and fact.
35. There was a miscarriage of Justice by the prosecutor in making allegations which he did not prove. Error of law and fact
36. There was a miscarriage of Justice by the prosecutor in 'coaching' witness. Error of law and fact.
37. There was a miscarriage of Justice by the police in not gathering evidence properly Camera photos. Error of fact. Camera was at 5 Gwedue Court and I had taken 4 photos. Vince Nippierd remembers packing it. Error of law
38. There was a miscarriage of justice by the way the prosecution cross examined the accused. Error of law.
39. There was a miscarriage of Justice by the prosecutor in stopping evidence about the background to all this. Error of law and fact.
40. There was a miscarriage of Justice by the police by giving away evidence which was helpful to the accused. Brian's letters Error of fact and law.
41. There was a miscarriage of Justice in that the primary court's decision is against the weight of evidence and cannot be supported having regard to the evidence. Error of fact
42. There was a miscarriage of Justice in that the learned Judge did not direct on the fact that at the time I had no recollection of what I was doing. Error of law."
16 At the hearing on 1 August 2006 the appellant agreed that his 42 grounds of appeal could be subsumed under the following eight generic grounds:
1. The appellant's counsel at trial conducted his case so inadequately as to lead to a miscarriage of justice (grounds 1, 2, 3, 4 and 5).
2. The trial Judge erred in law by allowing a jury to be sworn who knew one of the witnesses (ground 6).
3. The trial Judge made errors of law in either wrongfully allowing or wrongfully excluding evidence (grounds 7, 8, 9, 10, 11, 21 and 22).
4. The trial Judge erred in law by giving erroneous directions to the jury, or failing to give directions which were required (grounds 12 - 20 inclusive, grounds 23 - 27 inclusive, grounds 29 - 32 inclusive and ground 42).
5. The trial Judge erred in fact by misdirecting the jury about the evidence (ground 28).
6. The conduct of the prosecution resulted in a miscarriage of justice (grounds 33 - 36 inclusive and grounds 38 and 39).
7. Failure by the police to obtain or retain relevant evidence resulted in a miscarriage of justice (grounds 37 and 40).
8. The verdict should be set aside because it is unreasonable or cannot be supported having regard to the evidence (ground 41).
17 I shall return to these below, but in the meantime need to consider each of the appellant's grounds as he has framed them, as explained or supplemented by his written or oral submissions.
18 The first five grounds go to a complaint by the appellant that the way in which his counsel conducted his case resulted in a miscarriage of justice. The appellant's proposition was and is that he was not guilty of wilful murder or murder of his wife because she provoked him. He gave evidence at the trial. He said then that although he stabbed his wife to death, he had no intention to kill and could recall nothing of what happened after an acrimonious exchange between him and his wife.
19 The issues of intent and provocation were the critical issues in the appellant's trial.
20 Expressed in very summary form, the appellant says he was upset with, and concerned about, his wife's behaviour with other men and the witness Mr Susta in particular. He says she was unfaithful to him and was having an affair with Mr Susta. He says her activities made her an unfit mother for their children, and as a result of them she neglected her responsibilities as wife and mother. He says she was planning on leaving him and that he later found out from someone else that she had told that person she was trying to provoke him into assaulting her, so she would have an excuse to leave. There is much more to what he says, but that is the gist.
Ground 1- Evidence not presented and adduced diligently
21 As I understand the appellant's written and oral submissions (see eg [1](a) and (b) of his written submissions) the evidence which he would seek to rely upon on appeal which he says his trial counsel failed to investigate and then adduce or use at trial, is evidence from a number of witnesses who he says would testify that the appellant's wife behaved flirtatiously or licentiously at the Glengarry Tavern, where she was employed as a bar waitress. He says he had been concerned about her behaviour as going to her suitability to "parent morally".
22 I note these witnesses were the Manager, Mr C R Morris, Mrs Joan Forlonge, Mrs Diane Talbot, Mr Michael Cornell, Mrs Kirsten Marie, Mr Vince Nippierd and Mrs Rebecca Berry. All these witnesses were in fact called at trial. The point then is that the appellant's counsel did not ask them about these matters - or at least not to the appellant's satisfaction.
23 There are two limbs to this ground. The first is that his counsel "did not gather evidence diligently in relation to Mrs Vella's behaviour" at the tavern. The second is that counsel did not cross-examine certain witnesses about his wife's behaviour at the tavern. This also includes what the appellant says would be observations by them indicating that she was having an affair or was in a relationship with Mr Susta (the witness who was with her the night she was killed).
24 There would be, of course, a very real question whether the behaviour the appellant ascribes to his wife, was capable of constituting provocation for the purposes of s 281 of the Criminal Code, but that question aside, unless he was present at the tavern (or anywhere else where he says she behaved promiscuously) evidence from other people of what her actual behaviour was, was simply irrelevant. For the purposes of s 281, provocation must be something done to, or (at the very least) in the presence of the accused. Being irrelevant, the evidence would have been inadmissible at the appellant's trial. Furthermore, I am unable to see any forensic purpose or any way in which that information could have been used for the purposes of cross-examination at the trial. These things being so, it could not properly be said the fact the appellant's trial counsel did not "gather [the] evidence diligently" nor ask questions about it, resulted in a miscarriage of justice. The appellant's ground 1 has no reasonable prospect of succeeding on appeal. I would accordingly refuse leave to appeal on that ground.
Ground 2 - Failure to cross-examine diligently
25 Again, this is really one aspect, or a particular, of the appellant's complaint about Mr Bowden's conduct of the trial. The transcript and other references given in support of it are not capable of demonstrating what the appellant asserts. Most of what he asserts to be conflicts or lies or perjury, are not necessarily conflicts at all. For example he refers to the evidence of the forensic pathologist, Dr Karin Margolius. He contends there were contradictions in her evidence. He draws attention to her cross-examination at t/s 158:
"All right. Then as far as the mark shown at the top of the skull, it's your evidence, as I understand it, that that is consistent with a separate blow?---Just going back to that, there are four blows to the head.
Yes?---There are four blows. I can see at least three. Maybe that one is a fourth.
So as far as the blows to the head or the skull region is concerned your evidence, as I understand it, is that it's three, possibly four. Is that correct?---There's definitely four separate externally.
Yes?---Looking at the bony ones, I could say that there's at least, one, two and three, possibly four.
And as far as those injuries to the skull is concerned, as I understand your evidence, they are potentially fatal injuries by themselves?---Correct.
You then have gone on to describe the wound across the throat?---That's correct.
And again you've described that as obviously a potentially fatal injury?---In itself, yes.
Are you able to say, or is it impossible to say whether or not the blows to the skull in fact killed the deceased? Are you able to say that or not?---What I can say is that, ignoring the neck wound, they were potentially fatal and, untreated, she would have died from them; so at the very least she was obtunded in a way and starting to die.
All right. But are you able to say whether or not those blows to the skull in fact killed her?---Without - - -
Without being also - - -?---If she never had that?
Yes?---She would have died from those."
26 The appellant specifically complains about the questions and answers underlined and says the answers are conflicting. They clearly are not. There is simply no point to be made about those questions and answers in support of a claim defence counsel's conduct caused a miscarriage of justice.
27 The appellant also draws attention to the cross-examination at t/s 159:
"Yes, all right, but are you able to say whether she was alive or dead at the time that the throat was cut?---No - yes, she - as I say, she was still alive but going downhill.
And as far as the injuries - and again I'm referring to the diagram of injuries to the front of the body. You have described a number of bruises to the right and to the left of the legs?---That's right.
And are you able to say whether or not they also were caused by the instrument that we have seen, or are you simply not able to tell us?---All I - there is no pattern to them. So if something impacted on it, I can't tell you what it is.
Because, as I understand, what you're saying is that a blow struck with this particular implement would show quite a distinct patterned mark?---It doesn't have to. The way it comes down on the body, depending on whether it's a bony prominence, whether the skin's taught or lax, it will just. give you an impact site, but in an area where it actually gives you a patterned one - a patterned bruise, it gives me an idea as to the instrument.
So as far as those bruises to the right and to the left legs are concerned, you're not able to say in fact how they were caused?---No. I could just say it's some blunt instrument.
And bruising, as I understand it, is difficult to age?---That's correct.
As far as the yellow bruise that you've described, that indicates that is an older injury. Is that correct?---That's the one and - yes.
As far as the remaining bruises are concerned, you're not able to say anything more definitive than they are recent injuries?---That's correct.
And when you refer to recent, what do we describe as a recent injury? Are we looking at six hours, 12 hours, 24 hours?---I'm working on six hours.
Within six hours? ---Yes."
28 The appellant says the second underlined answer contradicts the third. It does not. The point may be one for comment to the jury, but it is not a contradiction. In any event, those questions and answers likewise do not afford any basis for complaint about counsel conduct of the cross-examination causing or contributing to a miscarriage of justice.
29 The remaining propositions put by the appellant at [2](b) - (g) inclusive are merely arguments that the jury should have taken a particular view of the evidence.
30 As ground 2 has been "particularised" in the appellant's submissions, it does not have a reasonable prospect of success on appeal. I would refuse leave to appeal in respect of it.
Ground 3 - Defence counsel failing to call certain witnesses
31 As explained by the appellant, this is a repetition of his ground 2, except there were other witnesses he would also have wished to call to testify about his wife's conduct. He named only two, Mr Barry O'Shea and Mrs Debra Gould, but says no more about the evidence they would have been able to give other than that they "would have explained" his wife's behaviour. As elaborated, this ground has no reasonable prospect of succeeding on appeal and I would refuse leave to appeal on it.
32 This ground is repetitive of the previous two grounds. I would refuse leave to appeal for the same reasons.
Ground 5 - Defence counsel asking wrong questions of wrong witnesses - lack of preparation
33 In his submissions the appellant makes various assertions such as his counsel did not prepare himself, that his handling of the case was "very substandard" because the appellant asked him for certain evidence and witnesses and he never bothered, that the appellant had many further questions he wanted asked of witnesses than counsel put to them, and that when the prosecutor was cross-examining the appellant "and breaking each rule and law he could" his lawyer did not object. There were other complaints, but these are illustrative.
34 The notion of miscarriage of justice flowing from the conduct, omissions or incompetence of an accused's counsel at trial has been the subject of consideration by the High Court in recent times, notably in TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 79 ALJR 755 and Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 (and see also R v Armstrong (1983) 35 SASR 356 and McSwan v The State of Western Australia [2005] WASCA 128).
35 What must be shown is that counsel's failure led to a miscarriage of justice. That may be because the evidence before the Appeal Court shows the appellant to be innocent, or at least instils in the court such a doubt about his guilt that the verdict of guilty should not be allowed to stand. Alternatively, it may be demonstrated that as a result of the default the appellant has not had a fair trial. There the outcome may turn on whether the prosecution case was so strong there can be no doubt of the appellant's guilt - however that will not be so if the default deprives the appellate court of the capacity justly to assess the strength of the case against the appellant (Nudd (supra) per Gleeson CJ at [6] - [7]).
36 The authorities make it clear counsel has a wide discretion in the conduct of their client's case, and the client will ordinarily be bound by that. "Second guessing" counsel's forensic decisions or conduct once the trial is over is not uncommon by disappointed accused persons. That different strategies may have been employed or other decisions made are not considerations which of themselves give rise to a proper ground of appeal (R v Birks (1990) 19 NSWLR 677 per Gleeson CJ at 684; D'Orta-Ekenaike v Victorian Legal Aid (supra) at [196]).
37 What the appellant has advanced before me in support of his first five grounds does not reveal any more to his concerns than that. I would refuse leave in respect of ground 5.
Ground 6 - Juror who knew one of the witnesses
38 The practice in this State is that the empanelment of the jurors is not transcribed. When this ground was first advanced by the appellant I ordered a transcript from the tapes. That was subsequently made and a confidential transcript provided. Having read it, on 25 January 2006 I ordered the transcript be released to the file and a copy sent to the appellant and the respondent.
39 The empanelment of the jury in the appellant's trial took place on 8 March 2005. The statutory procedure is for the jurors to be referred to by number not by name.
40 In this instance, juror no 440 was the fifth juror called. After 12 jurors had been called, the Clerk of Arraigns commenced to swear them. When it came to the turn of juror 440, the following occurred (Conf t/s 4):
"THE CLERK OF ARRAIGNS: Please take the - - -
JUROR 440: Your Honour, it's been brought to my attention that I'm actually an acquaintance of one of the witnesses. I wasn't aware of it at the time.
SIMMONDS J: Would you then wish to be excused, applying the test I suggested a short while ago?
JUROR 440: 1 don't believe it will hinder my judgment - - -
SIMMONDS J: And you have thought about it both ways, both in terms of how you would react but also how someone else would might react who knew all of the circumstances, sort of an independent third person? If you have any doubt on that account, you would need to excuse yourself but if you have no doubt - - -
JUROR 440: I have no doubt. It's been quite a while since we've had any contact but I have known him for a few years now.
SIMMONDS J: Very well.
THE CLERK OF ARRAIGNS: Please take the Bible in your right hand and read the oath out aloud.
JUROR 440: I swear by Almighty God to give a true verdict according to the evidence upon the issues to be tried by me."
41 The "test" which his Honour referred to had been included in prefatory directions he made to the jury panel after the State prosecutor had read out the names of the prosecution witnesses. His Honour then said (t/s 13):
"SIMMONDS J: Very well. That was for the purpose of enabling all of you to hear whether there are any names of persons known to you. That is because it is most important that as members of the jury you be in a position to decide impartially in this matter, so that if there were any names familiar to you that would cause you to doubt whether you might be able to hear their testimony in an impartial way or - and this is another way in which you can test it and should test it - whether if anyone else, any other reasonable person were aware of your connection with that witness, they might doubt your capacity to impartially evaluate that evidence, then you should indicate that at the time, if it is the case that your number is called because, as I said, it is most important to the administration to justice that you be in a position to evaluate and that others see that you are in a position to evaluate the evidence to be given in this trial in an impartial way. Thank you very much. We now proceed to the empanelment process."
42 That direction was in accordance with authority. The test for determining whether or not some irregularity with the jury requires the jury (or juror) to be discharged, or whether (on an appeal) it demonstrates a miscarriage of justice, was propounded by Mason CJ and McHugh J in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 53:
"It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror, or in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially."
43 The question is whether a fair-minded and informed member of the public might think there is a reasonable possibility that the juror was, or may have been, infected with bias and that he or she was not indifferent between the State and the appellant and had a determination to bring in a verdict against the appellant no matter what the evidence (R v Booth [1983] VicRp 4; [1983] 1 VR 39; (1982) A Crim R 4; see also R v Kaddour [2005] NSWCCA 303; (2005) 156 A Crim R 11).
44 Clearly the juror felt there was no impediment to him or her returning a verdict in accordance with their oath. The appellant does not advance anything to show that there was a miscarriage of justice on this account. This ground has no reasonable prospect of succeeding on appeal and I would refuse leave to appeal in respect of it.
Ground 7 - Improper questions by prosecutor
45 The appellant asserts the Judge should have "admonished" the State prosecutor because he was constantly and repeatedly discrediting the appellant without proving anything relevant. In his oral submissions on 1 August 2006 the appellant argued that the Judge erred in allowing improper questioning by the prosecutor on lies. He said (t/s 122):
"Mr Mactaggart opened on lies and accused me of telling lies when I wasn't even lying and made a lot of allegations about lies."
46 It is a perfectly legitimate and normal forensic approach for a prosecutor to seek to discredit an accused's evidence where that evidence is in conflict with or seeks to refute the prosecution case. Indeed, in those circumstances, such an approach is both necessary and inevitable. Likewise, where the prosecution is contending that an accused ought not to be believed on his oath because he has told lies in evidence or on some other occasion, it is legitimate to put the matter in that way. In this case, however, the prosecution alleged certain lies as part of the circumstances of the offence. So it was that in opening the prosecution case at trial, the State prosecutor, Mr Mactaggart, said (t/s 43):
"What the accused did before attacking his wife speaks wonders and gives you an insight into the measure and extent of the ill feeling that he had developed for his estranged wife. Shortly at about, on the prosecution's case, 10 to 1 in the morning he, the accused, rang the triple zero emergency line that we have probably all heard about, and that's accessed, you will hear and which you would know as a matter of commonsense, in matters of extraordinary emergency.
But the accused thought he would ring it for this reason: he rang up and advised the police officer or officer who was manning at least one of the lines that he had heard a lot of screaming from 14 St Ives Loop and he added for good measure he thought they, the people in the house, which could only have been referring to his late wife and her companion, were smoking marijuana, clearly intending to give the operator the idea that something of a sinister overtone was happening in the house. None of that was true, and on the prosecution's case the accused was lying through his teeth.
He was told to get off the triple zero line but not to hang up, but he did so but rang up about 20 minutes later and again said, 'I just passed in front of the house and they're in there smoking cannabis or marijuana.' One of the officers said, 'What, can you smell it, can you?' and the accused said, 'And heaps,' or something like that, and he said it was really strong.
The accused made yet another in this series of phone calls, Mr Foreperson and ladies and gentlemen of the jury, and by this stage somebody had cottoned on, given the nature of the resources the police have to determine who it is using a mobile phone, or whatever, and one of the officers said, 'That's not Mr Vella, is it?' and he said, 'No,' it wasn't even though it was, but reiterated that he could still smell the strong smell of marijuana coming out of the house.
So on the prosecution's case, ladies and gentlemen, the accused man's ill feeling towards his estranged wife had developed to such an extent that he was prepared on the prosecution case to tell what was really a string of pathetic lies to those officers monitoring the triple zero line early that morning, and on the prosecution's case these were the actions of a rational man well and truly in control of his actions."
47 These alleged lies were factual matters going to the commission of the offence as part of it, and as tending to prove the appellant's state of mind and that his actions were the deliberate actions of a rational (but obsessed) man. For him to object to reference to them in opening, and to being cross-examined on them, because he maintained they were not lies, does not raise a proper point for appeal.
48 In Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at 12 [33] - [34], Gleeson CJ and Hayne J held that:
[33] The facts of the case are quite different from those of Zoneff, where the prosecutor, in cross-examination of the accused, had attributed lies to him, but had not addressed the jury. The trial judge himself, in his summing-up, had raised the question of lies and consciousness of guilt, evidently considering that there was a risk that the jury would consider that it was part of the prosecution case that the suggested lies were evidence of consciousness of guilt (Zoneff v The Queen (2000) 200 CLR 234 at 244 [16]-[17]).
[34] It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction (Zoneff v The Queen (2000) 200 CLR 234 at 244 [16]; R v Burge [1996] 1 Cr App R 163 at 173). Zoneff was said to be an unusual case (Zoneff v The Queen (2000) 200 CLR 234 at 245 [23]), and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."
49 Those remarks are applicable to this case. In the context of a case where the issues raised were essentially those of intention and provocation, it was not necessary for the trial Judge to give any further direction specifically on the use to be made of lies.
50 This ground has no reasonable prospect of success on appeal. Leave to appeal in respect of it is refused.
Ground 8 - Letter from Rebecca Berry to the appellant's wife
51 This is the same letter that was discussed by Steytler P in Vella v The State of Western Australia [2006] WASCA 129 at [11], [19] - [20] and [49]. His Honour (with whom Wheeler and Buss JJA agreed) said at [49]:
"... It seems to me that, regardless of whether or not the letter might otherwise have been admissible at a trial (he relies, in this respect, upon Rumping v Director of Public Prosecutions [1964] AC 814, a case which is distinguishable upon the basis that the letter there under consideration constituted an admission made by the accused himself), it is irrelevant to any defence to the charge of assault. Ms Berry's conclusion that Mrs Vella had purposely provoked the applicant into pushing her away is undoubtedly inadmissible. It amounts to no more than an opinion from someone who did not observe the incident in question and was consequently in no position to form any conclusion in respect of it. While she does refer to scratch marks and bruises sustained by the applicant, she was in no position to know in what circumstances those injuries were inflicted. Other comments made by her, including comments with respect to the fact that Mrs Vella had been having an affair, are irrelevant to the assault charge."
52 The killing occurred on 29 December 2003. The letter was written by Mrs Berry to Ruth Vella. In it, she wrote mostly about particular conflicts and events between the two of them. Mrs Berry complained at length about Mrs Vella's conduct, both to her and to others. In that context she also made comments about the relationship between the appellant and Mrs Vella. I have read the letter. It is not necessary to set out the content here.
53 The letter from Rebecca Berry was in fact tendered at trial as exhibit 7 by the appellant's counsel in the course of the appellant's evidence-in-chief (t/s 260 - 261). Mrs Berry was Mrs Vella's sister. She had earlier been cross-examined about that letter by Mr Bowden (t/s 116 - 123). There she testified that the letter had been discussed between a group of adults (including the appellant) at a birthday gathering sometime before 29 December 2003. She said (t/s 122) that she gave the appellant a copy of it. In his evidence he confirmed having received a copy by mail a few days after the gathering.
54 The appellant's counsel elicited from the appellant that he wanted a copy of the letter because of what it said about his relationship with his wife and his wife's activities, but that was the extent of his cross-examination about it.
55 The letter was admitted on the wilful murder trial, not as evidence of the truth of the content of it, but only to prove the fact that the appellant had been made aware of the content of it. The trial Judge recognised that, as did the State prosecutor. That was the basis of the letter's admission into evidence. Importantly, it was not admitted as proof of the facts asserted in it - and it could not have been. However, that seems to be how the appellant wanted (and still wants) to rely upon it. He asserts, for example, that the Judge "stopped" this evidence and that it was evidence that, at the time it was typed, showed how even the deceased's sister was concerned about the children and the effect the behaviour of the deceased was having on them. By "stopping it" the Judge deprived the jury of an insight which would have shown the true concern the appellant had about his children's well-being, which was shared at the time by her own sister and brother-in-law.
56 As I have said, the letter was not admissible for that purpose.
57 There is another point the appellant makes about it. That is that by "stopping that evidence" the Judge "... allowed Rebecca Berry to lie and make inconstant [sic inconsistent] statements and commit perjury".
58 There is no substance to this point. The evidence of the letter was not "stopped", it was admitted. In any event, the contention is no more than an argument.
59 In his oral submissions, the appellant said that when the letter was put to him in evidence, Mr Bowden was then "supposed to see what impact it had" on him, but that was not asked of him at all. He conceded the letter was given to the jury.
60 It is not possible to say what view counsel took as to the best way forensically to deal with that letter and the appellant's reaction to it, or the part it may have played in what the appellant did on 29 December 2003. Presumably much would turn on what counsel's instructions were and his forensic approach to the case generally. The material before me does not raise anything specifically which could show that the fact his counsel did not ask the appellant his reaction to the letter resulted in a miscarriage of justice.
61 Ground 8 has no reasonable prospect of success on appeal. I would refuse leave to appeal in respect of it.
62 The contention of the appellant is that Mr Susta's evidence regarding his son T being in the bedroom was "all based on hearsay evidence".
63 The questions and answers of which the appellant complains are, first, in the evidence-in-chief of Mr Susta (t/s 181) when he was referred to a plan of the dwelling and was asked about the bedroom in which he found Mrs Vella's body:
"And there's an indication of where the bed was. Is that right?---That's it there.
And had [T] been asleep in that bedroom that night, had he?---I never went in the bedroom - - -
You never went into - - -?--- - - - and actually saw [T] sleeping in there.
You just saw [T] sleeping - - -?---But Ruth told me he always sleep - slept in the bed with her.
He told you he slept there?---So I would assume that he was asleep in there."
64 Mr Bowden asked Mr Susta about it at the beginning of his cross-examination (t/s 184):
"Mr Susta, as I understand your evidence, and please correct me if I'm wrong, the first time that you saw young [T] on the evening in question was when you went into that, what has been described as bedroom 1?---Correct.
So you hadn't seen him earlier in the evening?---No, I hadn't.
And you don't know, in fact, where he was asleep. You're simply relying on what somebody else told you?---Ruth told me he was asleep in the bed - - -
I understand that's what Ruth told you but you didn't see that yourself?---No, not with my own eyes; no."
65 Those answers have to be looked at in context. Earlier in his evidence-in-chief Mr Susta had described how he had arrived at Mrs Vella's residence sometime between 10 and 10.30 pm on 28 December 2003. He said that besides Mrs Vella, there were two children at the house, both asleep. He said he spent the evening at the house in Mrs Vella's company in the front lounge room and was still there in the early hours of the morning. About 4 or 4.30 am he saw a bald-headed figure trying to look through the window. He told Mrs Vella he thought there was someone out there. She thought it was probably just the trees, but he was doubtful. They waited a little while and then he got up and walked across the room. As he did so he saw a figure running across the road. He told Mrs Vella that he thought it was a burglar and to call the police. He said he would go out and have a look. He did go outside and drove around trying to see if there was anyone there. After a short while he saw the appellant's car parked by the corner at the car park of the Northshore Country Club. He immediately did a u-turn and drove back to Mrs Vella's place. He had been away for about three minutes. When he got to the house he ran towards the door and found it open. He ran inside towards the bedroom where he could hear a male voice screaming and yelling. He was about three or four metres from the bedroom door when the appellant came out and started running towards him. The appellant put his hand in his pocket and started to pull a knife out. They wrestled. Mr Susta took the knife off the appellant and threw it away from him. As the appellant had run towards him he said "You're another problem. I'll kill you too". Mr Susta wrestled the appellant, grabbed him in a headlock, dragged him outside and threw him out the door. He then latched the door and went to the bedroom. When he went in he saw T standing on the corner of the bed looking at Mrs Vella who was lying on the bed bleeding to death.
66 It is clear that Mr Susta's evidence about the appellant's son being in the bedroom was not all based on hearsay evidence. Mr Susta's testimony was that T was in the bedroom with the deceased's body when Mr Susta returned. Nonetheless, it is correct to say that his evidence that T had been sleeping in the bedroom was hearsay. However, that was shown on his own evidence to have been an assumption on his part and the jury could have been under no apprehension about that. Viewed in that light, nothing turns on him initially asserting that T was sleeping in the bedroom. The fact that T had in fact been sleeping there may well have been open as a matter of inference from other evidence. Be that as it may, the hearsay character of what Mr Susta first said about that does not give rise to a viable ground of appeal. This ground has no reasonable prospect of success on appeal and I would refuse leave to appeal.
Ground 10 - Error and bias in allowing State evidence but refusing defence evidence
67 The way this is put by the appellant is that his Honour erred in allowing Dr Margolius' testimony "and all the documents" to be tendered and "stopping our evidence showed bias and unfairness to the defence". He asserts that Mrs Berry was the only other person with whom the deceased lived and as such could have provided a true insight to her and the jury were denied the significance of that information.
68 The notion that evidence should be admitted in favour of a party as some quid pro quo for evidence admitted in favour of another party, irrespective of its relevance or character, is misconceived. A trial Judge is required to make rulings on evidence having regard to the relevance and admissibility of the particular evidence concerned in each instance. That is what the trial Judge did here. I have already explained that although Mrs Berry's letter was admitted into evidence, it was not admitted for the purpose for which the appellant wished to use it - that is to establish the truth of its contents.
69 Dr Margolius gave evidence in the course of the prosecution case. At the conclusion of her cross-examination the State prosecutor sought to tender her post-mortem report. Mr Bowden objected (t/s 155). The objection was argued at the end of the doctor's cross-examination (t/s 160 - 167). Mr Bowden said his objection was that the doctor had given her evidence orally and had been taken to particular matters or aspects of the prosecution case. If the post-mortem report were tendered that would run the risk of distracting the jury from the witness' verbal evidence and furthermore put before the jury material which had not been contained in that evidence.
70 For this part, Mr Mactaggart submitted that in his experience, post-mortem reports were always tendered and with that expectation he had taken the doctor in her oral evidence only to some aspects of her findings. He referred to Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180, 190 and contended the principle to be found there is that a convenient summary [sic] of a witness' evidence may be produced to a court without the necessity of taking the witness through every word of it.
71 The trial Judge reserved his ruling pending further submissions from counsel. The matter was revisited at t/s 224 and his Honour gave his ruling at t/s 230. He referred to s 27A of the Evidence Act 1906 (WA), which he observed, had not been mentioned by either counsel. That section provides that evidence may be given in the form of a chart, summary or other explanatory document if it appears to the court that the document would be likely to aid comprehension of other evidence that has been or is to be given.
72 Section 27B of the Evidence Act provides that if a court is satisfied that particular evidence is so voluminous or complex that it would be difficult to assess or comprehend if adduced in narrative form, the court may direct the party to adduce it in another form including in that of a chart, summary or other explanatory document.
73 In this case, no direction under s 27B had been sought.
74 On its face, s 27A does not appear to allow the adducing of evidence in a document, which has not been the subject of oral testimony or evidence adduced in another admissible form. Butera is not at all pertinent to this point. That case concerned the admission into evidence of written translations by interpreters of recordings of intercepted telephone conversations in a mix of languages, including some English. The original recordings were admitted into evidence. The interpreters testified to their interpretations of the non-English language parts and verified their written translations which were admitted into evidence. Mason CJ, Brennan and Deane JJ confirmed that the evidence was what was on the actual recording. That might (aurally) exhibit deficiencies from which human testimony is usually free. The recording may need to be played many times before it could be understood. That has led courts to receive transcripts, not as evidence of the conversation or other sounds recorded, but as a means of understanding what is on the recording. Nonetheless, evidence is what is on the recording and the transcript cannot be used as a substitute for that.
75 That principle has nothing to do with the point raised here. The post-mortem report was simply an out of court record of Dr Margolius' observations and findings.
76 Neither counsel drew his Honour's attention to s 79C of the Evidence Act. That is a facilitative provision which allows evidence to be given by the production of documents in certain circumstances. There is, however, an important exclusion. It is contained in subs (4). That provides that, notwithstanding the general admissibility provisions in the preceding subsections, in any criminal proceedings a statement in a document made in the course of, or for the purpose of the investigation, the preparation of a defence to a charge or the preparation of the case for the prosecution in respect of any offence shall not be rendered admissible as evidence by that section.
77 The ordinary evidentiary rule is that a witness must give their evidence orally and from memory and without reference to a written statement of notes or other aid (R v Harrison [1966] VicRp 12; [1966] VR 72; Prestage & Shearing v The Queen [1976] Tas SR 16; Hetherington v Brooks [1963] SASR 321). There are exceptions to this rule. The most common is that a witness who cannot accurately recall the events being spoken of, may be given leave to refer to contemporaneous notes (Attorney-General's Reference (No 3 of 1979) (1979) 69 Cr App Rep 411). Where a witness has no recollection whatsoever, but can swear he or she made notes while the matter was fresh in their mind and which are accurate, the witness may be allowed to read from those notes (R v Alexander [1975] VicRp 74; [1975] VR 741; R v Bryant & Dixon (1946) 31 Cr App Rep 146; Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647, 675, 686).
78 Ordinarily though, as I have said, absent some statutory provision, the evidence of a witness cannot be adduced in a criminal case merely by tendering a statement or report of the witness.
79 It seems to me there is a real question in this case whether the post-mortem report of Dr Margolius was properly admitted - especially those parts which had not been mentioned by her in her oral evidence. There is also a real question whether the report would have been admissible under s 79C of the Evidence Act, not least of all because it would seem to fall squarely within subs (4) of that section. The contention that the trial Judge erred in law in admitting that report has a reasonable prospect of success on appeal and I would accordingly grant leave to appeal in respect of it. I would, however, amend the ground to reflect the argument which might be put, so that it would read:
"The learned trial Judge erred in admitting into evidence the post-mortem report of Dr Margolius as it was not an admissible document."
Ground 11 - Trial Judge allowed evidence the prejudicial value which far outweighed its probative value
80 The appellant raises various matters in support of this ground. I will not repeat them all. The following are indicative. He contends that Mr Susta's testimony was "hostile, biased and disrespectful". He showed no respect for either the oath or the court by "lying through his teeth". He says that even though defence counsel did not cross-examine, the Judge should have known from the prosecution brief that aspects of his evidence were inconsistent with his previous statement. The Judge should have questioned Mr Susta himself. The appellant refers to the short time in which the events of which he spoke, took place.
81 These are matters of mere assertion and are no more than argumentative. They seek to urge that a particular view should have been taken of Mr Susta's evidence. Alternatively, they postulate that the trial Judge should have taken an active part in the questioning of witnesses to draw out inconsistencies. That is not the function of a trial Judge in our adversarial system. There is nothing in these matters which could found a proper ground of appeal. I would refuse leave to appeal on this ground.
Ground 12 - Misdirection on facts and circumstantial evidence
82 The proposition advanced here is that the trial Judge directed that in this case they did not have to exclude every reasonable hypothesis consistent with innocence.
"Put differently, where a person charged with a crime can be found guilty of the crime on circumstantial evidence, before that can occur the facts or circumstances as understood established to your satisfaction must exclude every reasonable hypothesis consistent with innocence. Here, of course, in relation to intention and certain other matters the accused testified, and I will say some more later about the position of an accused and the testimony an accused may give."
84 That direction was given in the course of a correct direction about circumstantial evidence and specifically the drawing of inferences with respect to an intent to kill or cause grievous bodily harm. Immediately prior to the direction set out above, his Honour had explained to the jury that inferences are part of the ordinary processes of reasoning, but that in the present context where the circumstances or inferences were being relied upon to prove guilt in relation to a criminal offence, they had to be established to the satisfaction of the jury (which his Honour had earlier indicated meant satisfaction beyond reasonable doubt). He said they must not only be such as are consistent with guilt, but must also be inconsistent with any other reasonable conclusion, remembering the burden and the standard of proof.
85 What the appellant complains about in this direction simply cannot be read into it. The direction clearly was that the jury did have to exclude every reasonable hypothesis consistent with innocence.
86 This ground has no prospect of success on appeal. Leave to appeal must be refused.
87 The appellant refers to a statement in his Honour's directions drawing the jury's attention to the State prosecutor's address concerning what the appellant had said in certain 000 telephone calls earlier in the evening of the killing, and to him admitting that a number of things that were said in those phone calls were lies. The appellant says the lie he admitted to was that he did not recall he said "screaming" and that is "hardly the kind of lie trying to cover guilt". He argues that for lies to be corroboration or confirmatory they must satisfy the four requirements identified in R v Lucas [1981] QB 720, 724. The appellant acknowledges that Mr Mactaggart pointed out to the trial Judge that he did open on lies and did cross-examine the appellant on lies but wished to make it clear he was using lies in the Zheng credibility sense and not in any other sense. The appellant argues that by misdirecting the jury in this way, his Honour effectively directed them not to believe him.
88 In fact, the cross-examination of the appellant on this went as follows (t/s 282 - 283):
"... in any event, Mr Vella, you rang up, as you've admitted, the 000 line on a number of occasions, didn't you?---That's correct.
Four, in fact?---That's correct.
Is that so?---Yes.
The emergency line, and you were told it's for emergencies, weren't you?---I was.
Yes, and one of the officers said in one of the first phone calls, 'What is your life-threatening emergency, sir?' or something like that, didn't they? I beg your pardon?---Could be.
Yes, could be. We listened to the calls. And you said words to the effect, 'There's a lot of screaming coming out of 14 St Ives Loop and they're smoking cannabis - or marijuana,' didn't you?---That's - something to that effect, yes.
But that, I suggest to you, Mr Vella, was a pack of absolute lies?---The screaming was, yes.
The screaming was a lie?---Yes.
There was in fact no screaming coming out of there at all, was there---No.
No. Why did you tell the 000 operator that there was screaming?---I don't know. I didn't recall I told the screaming until I read the transcript.
But you did tell the 000 operator that, didn't you?---I did."
89 The lies told to police in the telephone calls to the 000 number were relied upon in two ways by the prosecution. First, as part of the circumstances leading up to the offence and secondly, as going to the appellant's credibility. The direction in Lucas which the appellant says should have been given, is a direction required when a lie is relied upon as proof of guilt (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193). That was not the situation here. The State prosecutor made that quite clear. It would have been a misdirection for his Honour to have directed the jury in the way contended for by the appellant. I refer to, without repeating, what I have said about this in relation to ground 7. This ground has no reasonable prospect of success. Leave to appeal must be refused in respect of it.
Ground 14 - Error in directing on onus of proof
90 The appellant complains the trial Judge erred in directing "properly" [sic improperly] on the onus of proof. He refers to the following portion of the trial Judge's directions at t/s 318:
"The state [sic] also referred you to what, on the evidence of Mr Alan Susta, was the short time within which the words that the accused said were uttered could have been uttered and the acts that follows those words he said were uttered took place."
91 The appellant contends in relation to that, that the State alleged there was no time but did not prove it. In that way, he says, the onus of proof was shifted onto the defence. He says the State never cross-examined on how long it took and it was not evidence properly tried and tested.
92 In the impugned portion of his directions, the trial Judge was referring to the arguments which were being advanced to the jury by both the prosecution and the defence. What his Honour says there has nothing to do with the onus or burden of proof. The reference was to the evidence of Mr Susta about the time over which the events occurred. The observation was entirely legitimate. If the jury accepted Mr Susta's evidence in that respect, then the State would have proved the point. There is nothing in this ground. Leave to appeal is refused.
Ground 15 - Direction concerning events in the public gallery
93 At the hearing on 1 August 2006, the appellant dispensed with this ground.
Ground 16 - Direction to ignore inferences and evidence favourable to defence
94 The appellant complains about the Judge saying to the jury (t/s 328):
"I must warn you against proceeding directly in this way, and in particularly doing so in this case."
95 At that point the trial Judge was talking again about inferences and the intention of the appellant. He had just told the jury they had to weigh the appellant's evidence and statements along with whatever inference as to his intentions could be drawn from his conduct and from other relevant facts. He then said:
"You may have heard it said that a person intends the ordinary, likely or probable consequences of his or her acts."
96 Then immediately followed the passage now complained of.
97 This direction was in no way urging the jury to ignore inferences or evidence favourable to the defence - to the contrary, it was an entirely correct direction as a matter of law warning the jury against drawing the inference of an intent to kill on the basis of the likely or probable consequences of the appellant's acts (Parker v The Queen [1964] UKPCHCA 1; (1964) 111 CLR 665; R v Olasiuk (1973) 6 SASR 255).
98 This simply does not mean what the appellant takes it to mean. There is nothing in this ground. Leave to appeal is refused.
99 The appellant contends the Judge misdirected as to intent and provocation. He argues that at t/s 328 the Judge is saying the appellant would be guilty of manslaughter if he had no requisite intent and subsequently on the same page is saying there can be no provocation unless there is intent.
100 This argument reflects a misunderstanding of the law. That is not surprising. The law is complex and difficult to understand in this area.
101 Nonetheless, the directions given by his Honour in this regard were correct. His Honour pointed out that provocation is not a complete defence to a charge of wilful murder, in that it would not result in a total acquittal. The consequence would be to reduce what would otherwise be a verdict of guilty of wilful murder to one of manslaughter. He explained that provocation would only arise in the event of the jury being satisfied beyond reasonable doubt that the appellant unlawfully killed the deceased with the intent to do so or to cause her grievous bodily harm and that unless they reached that point, they did not get to provocation at all. He pointed out the other way in which they may arrive at a verdict of guilty of manslaughter, however, was to find there was no intention of the requisite sort at all.
102 Those directions were correct. This ground has no reasonable prospect of success and I would refuse leave to appeal.
103 On this ground the appellant refers to the following paragraph from the Judge's directions to the jury (t/s 329):
"In this case you are concerned with words that the accused said were uttered to him shortly before the fatal blows. I can tell you that words like those the accused said the deceased uttered, uttered in the way he said the accused uttered them, could - and I underline 'could' - amount to provocation, depending - and I underline 'depending' - upon all the facts of the case. The words do not necessarily amount to provocation. It's entirely for you to judge that question."
104 The appellant says in this paragraph the Judge puts the onus on whether the jury believed the accused and not on the prosecutor having to prove beyond reasonable doubt that there was no provocation.
105 The direction must be read in context. It was a direction about what provocation is at law. The Judge had told the jury that words may amount to provocation. This was to the appellant's benefit. Then he went on to direct them in terms of the above paragraph. His Honour's directions on provocation were quite lengthy.
106 The paragraph referred to does not have the effect argued for by the appellant. Furthermore, his Honour did give an entirely correct direction with respect to onus in this regard.
"The onus is on the crown [sic], if it wishes to sustain a verdict of wilful murder or murder, to prove beyond reasonable doubt that the fatal acts by the accused were not as a result of provocation. It is not for the accused to satisfy you that he was provoked. If at the end of the day you have a reasonable doubt as to the matter, then the crown [sic] has not proved that the unlawful killing was unprovoked."
108 There is no substance to this ground. Leave to appeal will be refused.
Ground 19 - No proper direction on provocation
109 The reference here is to the Judge saying (at t/s 330) that it is not necessary that the attack in which the accused engaged and which brought about the death should be proportionate in any sense to the provocation offered.
110 The appellant says that "[t]he severity of the attack in relation to the provocation is not an acceptable argument any more. If a person 'loses control', how can he control the degree of the attack?"
111 Again, the appellant has misunderstood what the Judge is there saying. The Judge is in fact saying exactly what it is the appellant contends he ought to have said.
112 There is nothing in this ground. Leave to appeal in respect of it is refused.
Ground 20 - No directions on "previous history of provocation"
113 There are various grounds relating to the trial Judge's directions on provocation. They go to different aspects of the directions or of the case. Because they raise specific and different complaints by the appellant, it is not possible to deal with them globally. Some of them also relate to matters the subject of other grounds, such as the lack of diligent inquiry by defence counsel. Thus, for example, in his submissions in respect of ground 20, the appellant claims he was denied the opportunity to explore the background for the jury (Rebecca Berry's letter) and other evidence that could have been adduced by a diligent defence counsel, and the little that there was, was not mentioned. It did not show how previous taunting and frustration caused by the deceased could have affected the appellant. He refers to t/s 331 specifically:
"So as to whether the words were provocation, the first question then is this: was the conduct of the deceased - the words the accused said were uttered in the way he said she uttered them - such as to be capable when done to an ordinary man of depriving him of his power of self-control, and did it deprive the accused of his power of self-control not merely to some form of retaliation but so as to do the acts of the kind done by the accused to cause the death of the deceased with the intention of which you are satisfied?
Remember, what might appear to be circumstances of relatively less gravity on an isolated occasion may well prove to be of extremely serious significance when viewed in relation to prior events. Final words might themselves not be enough on their own but, when taken with what has gone before, may be the last straw in a cumulative series of incidents which finally broke down the accused's self-control and caused him to act in the heat of passion. Matters leading up to a culminating act of provocation may therefore properly be taken into account. However, earlier acts in themselves are not sufficient but they may throw considerable light on the culminating events."
In order for provocation to reduce the offence to manslaughter, certain other conditions set out in the section of the Criminal Code, which I have read from, must be present. There must of course have been the provocative conduct you are satisfied of. You must be satisfied that there was in fact the provocative conduct testified to - here, the words the accused said were uttered to him at the time they were uttered to him. The provocative conduct, the words, must be sudden. Further, it's necessary that the fatal acts be done when the accused has lost his power of self-control or, as the law says, in the heat of passion and critically before there is time to cool down."
114 It is the paragraph in italics above to which the appellant specifically refers.
115 All that can be said about that is that in the context of the much more extensive direction the trial Judge gave about provocation (of which the quoted passages are only part) the direction is in accordance with the law.
116 Insofar as the appellant claims the jury was denied the opportunity to consider the content of Rebecca Berry's letter, as evidence of the truth of what she asserted in it, the claim has no substance for the reason I have already explained. Ground 20 appears to be predicated on the trial Judge not directing the jury to take account of what was in Rebecca Berry's letter in that way. His Honour could not have directed the jury to take cognisance of the contents of that letter in that way. To the extent that is the basis for this ground, it has no substance.
117 The reference to "other evidence that could have been adduced by a diligent defence counsel" appears to be repetitive of grounds 1 to 5, with which I have already dealt. Otherwise, in the context of this ground, which asserts misdirection by the trial Judge in not directing on certain things which had not been adduced by defence counsel, it necessarily must mean the trial Judge did not tell the jury about matters which were not in evidence. Clearly his Honour could not have done so. There was no substance in this aspect of the submissions advanced in support of this ground.
118 Finally, the appellant's complaint is that "... the little that there was, was not mentioned. It did not show how previous taunting and frustration caused by deceased [sic] could have effected [sic] the accused".
119 In the passages quoted above, his Honour does in fact, appropriately include reference to the effect of things upon the appellant himself, and in particular, refers to the cumulative impact or effect of circumstances over time.
120 His Honour had earlier reminded the jury of what had been put to them by both counsel. In the course of that, he referred to the defence drawing their attention to evidence as to the appellant's concerns for the custody and wellbeing of his children as part of the backdrop to the appellant's testimony about the words uttered by his wife and the way they were uttered by her, which he said, provoked him into attacking her. He referred (t/s 320) to the violence restraining order and the incident which had given rise to it for the purpose of providing evidence of the relationship between the parties. He referred to evidence as to what was said to the appellant about things which had occurred involving other persons including the deceased. He explained to them that the truth of those reports was not in issue, rather the material was before them for what they might be able to conclude the accused, because of it, may have believed and where that belief may have led him.
121 It is a question of judgment in each instance as to how much a trial Judge should comment on the evidence in the course of his or her summing-up. On the face of it, the directions given by the Judge were such as to remind the jury of the relevant evidence and put that in the context of the applicable law and the issues they had to decide. I would not grant leave to appeal on this ground.
122 As set out in the appellant's submissions, this ground complains that the trial Judge wrongfully excluded evidence of Rebecca Berry's letter. I have already dealt with that in relation to ground 8.
Ground 22 - Wrongful admission of Dr Margolius' charts of bruises
123 The short submission advanced in support of this is that his Honour erred by allowing the admission of Dr Margolius' charts of the back and front of the deceased "with bruises not proven to be by accused. These bruises could have prejudiced the jury".
124 The diagrams were aids used by the doctor to illustrate her oral testimony. They were properly admitted for that purpose. The assertion that they showed bruises which were "not proven to be by" the appellant is simply argument. There is no substance in this. Leave to appeal will be refused.
Ground 23 - Trial Judge erred in allowing perjury to occur and did not direct on it
125 There is no elaboration on this ground in the appellant's submissions. It presumably repeats his claims about the evidence of Mr Susta and other witnesses with whose testimony he disagrees. This is mere argument. It is not a proper ground of appeal. Leave to appeal is refused.
126 In support of this ground the appellant states that he had four children under 11 at the time and had a sense of responsibility towards them which he took very seriously. He says he was very concerned in case they were molested. He asserts that that concern was not shared by the deceased "for reasons that defence council [sic] didn't adduce".
127 Apart from factual assertions, the substance of the submission in support of this ground appears to be that the trial Judge ought not to have made reference to the "ordinary man" (t/s 330). However, that is a requirement of the law and his Honour's directions in respect of that were correct. It is simply not sufficient for the appellant to disagree with reference to the "ordinary man" because he considers his actions should be judged exclusively by reference to his own reaction. That is not the law. There is no substance to this ground. Leave to appeal is refused.
Ground 25 - Error in not directing on previous history of provocation
128 The appellant's submission on this ground is very brief and refers simply to a statement in the prosecution brief and specifically, that Rebecca Berry's letter showed his wife intended to provoke him. I have already dealt with that letter.
129 The appellant refers to evidence given by Dianne Talbot (t/s 214) and specifically:
"I recall Ruth saying to me that she wished Mr Vella would hit her so she could - make it easier for her to leave."
130 The complaint asserted in this ground is that the Judge erred in not specifically referring to that.
131 As I have already observed, the extent to, and way in which a trial Judge should be expected to make comment on the evidence or refer to it, is largely a matter for the Judge. Given what his Honour did say about the evidence concerning things Mr Vella had been told prior to the killing, I am unable to see that a failure to refer specifically to this answer could have led to a miscarriage of justice.
132 Leave to appeal on this ground will be refused.
Ground 26 - Erroneous direction on provocation and confusing the issue by bringing the son in the bedroom
133 All that is said about this in the appellant's submissions is a reference to t/s 320 and "based on hearsay evidence".
134 The passage to which the appellant refers is part of his Honour's explanation of what had been advanced to the jury by defence counsel about the backdrop to the appellant's testimony as to the words uttered by his wife that were likely to be of a sort that would precipitate a sudden response in him without the formation of a specific intent and:
"... ignoring everything else including, it was said, evidence of the presence of the son - of one son - in the room where the attack occurred."
135 Here the Judge was repeating what the defence had put to the jury. I have already explained why the "hearsay" point about Mr Susta's evidence on this does not give rise to an appeal ground, and in any event, as I understand it, in his own testimony the appellant conceded the young son was in the bedroom but maintained he was so blinded by provoked rage that he did not realise the son was there.
136 There is nothing in this ground. Leave to appeal is refused.
Ground 27 - Trial Judge erred in misdirecting on provocation
137 There are no submissions advanced in support of this ground. There are only references to the trial Judge's direction at t/s 329, 330 and 332. I have already dealt with these. For the reasons already expressed, there is no appeal point raised. Leave to appeal is refused.
Ground 28 - Judge misdirected in relation to the CD
138 The CD referred to was a recording of the telephone calls he made to the police. His only submission is that a person calling the police is not one intending to commit a crime. All it did was to remind the jury and emphasise the "lie" and prejudice them.
139 The transcript reference of which the appellant complains in this regard is at t/s 334. All the trial Judge says there is to refer to the compact disc and tell the jury that they will have it as an exhibit to play in the jury room if they wish. He then gives certain instructions to them not to play the radio which is part of the CD player.
140 The compact disc was an exhibit. It was a recording of telephone calls he made immediately prior to the offence. Those calls were related directly to it. There is no question about the admissibility of that evidence. There is no point to this ground. Leave to appeal is refused.
Ground 29 - Trial Judge failed to direct on accused's motive
"To gather evidence to take children away from what I deemed to be an unhealthy and unsafe environment for children to be raised in. Get custody of children. More importantly, did he try to figure out the deceased's motive?? ..."
142 The trial Judge did direct on provocation. He did refer to the evidence in respect of that. It was not for his Honour to "try to figure out the deceased's motive". His Honour had no role to try to advance the case for either party; nor did he have any responsibility for finding the facts - that was the responsibility of the jury. There is nothing in this ground. Leave to appeal is refused.
Ground 30 - Judge erred in not directing on anger
143 The appellant asserts in his submissions on this ground that, at the time, he had been subjected to a campaign of taunting and provocation which had started as of the return of the deceased from the UK in April/May 2003. He refers to t/s 335.
144 At that point the trial Judge had concluded his directions to the jury and they had retired to consider their verdict. Mr Bowden submitted to his Honour that the jury ought to have been given a direction in accordance with [19] of Wheeler J's judgment in Turner v The Queen [2004] WASCA 127 (16 June 2004). That was put on the basis that the defence case was that the appellant was acting under anger and rage to such an extent that he had lost the capacity to reason or form an intent. His Honour declined to give any further direction on the issue of intent.
145 In Turner, the appellant had been convicted of the wilful murder of his wife. Their relationship had been on foot for 20 years or so. They had been in Laverton together just before Christmas 2001, when the deceased left. The appellant had been told she was seeing another man and he believed that. He left Laverton and made his way to Kalgoorlie, where he met someone who told him where the deceased could be found. He encountered her in a laneway and began to talk to her. The two of them walked to a park. This was about 4 pm on a Sunday in January 2002. On their arrival at the park the appellant took a large pocket-knife from his back pocket. He unfolded the blade from the handle and attacked the deceased with it. He inflicted some 65 wounds to a number of parts of her body and a number of which were potentially fatal. He stopped stabbing the deceased only when struck in the head by a milk crate wielded by her brother, who had seen his sister being attacked and had run to intervene. The appellant turned on the deceased's brother, but then police arrived and he folded the knife and threw it down. He was arrested and taken to the lockup where it was noted that he was "alcohol affected". A number of eyewitnesses described the appellant's attack on the deceased as "frenzied". It appears he paid no attention to people who beeped their car horns at him or shouted at him to stop.
146 The appellant suffered from diabetes. He had been prescribed oral hypoglycaemics for that condition. The forensic pathologist, Dr Margolius, confirmed that, as may have been the case with the appellant, a person with that condition being on an alcohol binge and not eating properly, could suffer from hypoglycaemia. That state could result in emotional disturbances such as increased feelings of anger and aggression, and could interfere with the capacity for sound judgment. The alcohol consumption could result in "disinhibition" and serious behavioural changes including over-reacting to a perceived slight or insult, responding in inappropriate ways to circumstances around them, and decreased capacity to form rational decisions.
147 The appellant said that, when he met his wife in Kalgoorlie, he was feeling angry towards her because of the other man and they were arguing. After he left Laverton for Kalgoorlie he had been drinking throughout the trip, had very little to eat and had not taken his medication for diabetes. Asked how he was feeling at the time he stabbed his wife, he said "angry and my mind went blank". He said he did not wish to kill her or hurt her really badly.
148 In that case there were a number of grounds of appeal, but the one which succeeded concerned a specific direction given by the trial Judge in these terms:
"... in this case you can take it as a matter of law that anger of itself, whatever may have been its cause, is no defence to wilful murder. Anger does not affect the issue of guilt which is what you are concerned with, although it may affect the question of punishment which is my concern, not yours."
149 Wheeler J (with whom Murray and Templeman JJ agreed) said of this, that the Judge's characterisation of the evidence of the doctor appeared to her to have been factually correct. The problem arose with his Honour's direction that anger does not affect the issue of guilt. Her Honour said that direction would, in her view, have been understood by a jury as requiring them to set aside the issue of the appellant's anger when considering what inference they should draw as to his state of mind at the relevant time. Her Honour said (at [18] - [20]):
"18 The interaction of the emotion of anger with an accused person's formation of an intent is not an easy one to articulate. It was submitted to us by the appellant's counsel that, in the words of the headnote to Cutter v The Queen [1997] HCA 7; (1997) 143 ALR 498 in this case, as in that: 'The circumstances ... could not exclude the possibility that [the deceased] was stabbed in anger and with aggression but not with an intent to take his life'. The submission, at times, appeared to verge on the proposition that anger and aggression were emotions which precluded the formation of an intention to kill. That obviously is not the case. Anger and aggression may well be emotions which lead to the formation of such an intention.
19 The process of forming an intention is a mental process involving the capacity to reason and to understand what the consequences of an action may be. Anger is an emotion, a state of feeling rather than a state of mind. Indeed, Wylde's Dictionary (Wylde Universal Dictionary of the English Language, London) defines emotion in one of its uses as 'any of the feelings, contrasted with the mental processes of reasoning' (emphasis supplied).
20 However, it is common experience that there may on occasion be an interaction between states of emotion or feeling, and the ability to reason or the process of reasoning, particularly when emotions are very heightened. In this case, for example, it would have been open to the jury to consider the possibility that the appellant was in such a state of anger at the time that he stabbed the deceased, that although he lashed out at her intending to harm her, he did not stop to contemplate with any degree of precision what harm would or might flow from the attack which he launched. In that sense, the appellant's anger would have been a matter which the jury could consider, and it was wrong for his Honour to direct them as he did that, as a matter of law, it did not affect the issue of guilt."
150 Notwithstanding the error, her Honour had some difficulty arriving at the conclusion that the application for an extension of time should be allowed and the appeal granted. The particularly difficult aspect of the question was whether, notwithstanding the misdirection, that was a case in which there had been no miscarriage of justice because the conclusion as to the appellant's specific intent was the only one reasonably open on the evidence. Her Honour continued (at [22] - [23]):
"22 As Windeyer J explained in Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 at 649, the acts actually performed by an accused person may well provide the most cogent evidence of his intention, so that: 'If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports the intention to produce the consequence. Thus, to suppose that a sane man who wilfully cuts another man's throat does not intend to do him harm would be absurd.' In this case, as I have noted, there were some 65 wounds, a number of which were potentially fatal. It is very difficult to accept the conclusion that a person who stabs another repeatedly in the chest with considerable force, can have intended anything other than the death which inevitably resulted.
23 However, what the jury had to consider in this case was a complex series of factors potentially bearing upon the appellant's intention. Those factors included his anger, his intoxication, and his hypoglycaemia. While it seems to me unlikely that the result would have been different, I cannot exclude the possibility that a reasonable jury, considering all of these factors together, might have been left in some doubt as to the appellant's intention to cause death rather than some other outcome. I would therefore allow the appeal."
151 As can be seen from the foregoing, there were particular features of that case which determined the outcome on appeal. I note the catchwords state the case "turns on own facts". The critical feature was that the direction given by the trial Judge would have been understood by the jury as requiring them to set aside the issue of the appellant's anger when considering what inference they should draw as to his state of mind at the relevant time. No such direction was given in the present case. Another significant feature in that case was that the appellant's anger was only one of a complex series of factors, including his intoxication and his hypoglycaemia, potentially bearing upon his intention. There was no suggestion the appellant in this case was suffering from any relevant medical condition, or was intoxicated, or was affected by anything other than anger or rage. The directions given here must be looked at in that light and against the background of the evidence given by the appellant himself.
152 It was the appellant's evidence that he and his wife had been married for 11 years when she travelled to the United Kingdom about March or April 2003. When she returned, he noticed certain differences in her. She had less time for, and interest in him and their four young sons. She looked for employment. She got a job at the Glengarry Tavern. She bought herself a mobile phone on which she was constantly sending SMS messages. She began to go out more by herself. In about October 2003, her Uncle Brian came from the UK to stay with them. She spent a lot of time either working or being out with her uncle. She would not get home until 1 or 2 am. On one occasion the appellant saw her kiss another person who was in a car with them when she and her uncle returned home early in the morning. That was in early November 2003.
153 One night sometime later, when she arrived home about 1 am, she told him she had been sacked from the Glengarry Tavern. When he asked her why, she told him it was none of his business.
154 The assault occasioning bodily harm offence occurred on 12 or 13 November 2003. The circumstances of that are set out in the judgment of Steytler P in Vella v The State of Western Australia [2006] WASCA 129 at [5] - [9] and I need not repeat them. The appellant was subsequently served with a violence restraining order and was required to leave the house immediately. He went to stay with Bruce and Joan Forlonge. The children remained in the house with their mother.
155 The appellant described his emotional condition at this time as devastated, upset, distressed and disbelieving.
156 Letters from lawyers were exchanged about their matrimonial affairs, concerning custody of, and access to the children and property settlement.
157 Sometimes the appellant would have two of the children for sleepovers and on occasion he would have the four. The latter situation was very difficult, given he was living with the Forlonges.
158 The appellant remained at the Forlonges for about three weeks and then went to stay with Mr and Mrs Nippierd at Mullaloo. He was there for two weeks. The same situation continued with the children.
159 Just prior to 28 December 2003, the appellant had arranged to take two of his children to the movies. His wife then telephoned him and told him he would have to take all four or he could not take any. He took it the arrangement was cancelled.
160 On the Sunday morning he went to church. He then drove to Mr Susta's residence, because he "wanted to see where he drinks". He then went to Bunnings and purchased a sharpening stone. He had earlier bought a hunting knife and a beanie. He said his intention was to slash the tyres on Mr Susta's car.
161 The appellant later collected two of the boys and took them to the Nippierd's house. Sometime in the middle of the night he left there and drove to his wife's house. He saw a white Mercedes car parked there. He did not know it was Mr Susta's. He sneaked up to the window and looked in. He saw his wife and a man. The man was smoking a cigar. He could not see who the man was because he had his back to the appellant. He returned to his car and rang 000. He said he did that because if his wife got into trouble with the police for smoking marijuana, that would have helped his case for custody. After the first call he returned home. Later, he thought he would check if the police had attended, so he drove back to his wife's house. The car was still there, so he returned to the Nippierd's and called the police emergency number twice more. After that, he again drove back to his wife's place. His intention at that stage, he said, was to slash the tyres on the Mercedes, although he still did not know it was Mr Susta's. When he returned on this occasion the appellant also took a baseball bat because he was "very frightened and nervous and shaking".
162 The appellant parked his car some distance away and walked to the house. He saw his wife and the man inside. Then the man came out, got into his car and drove off.
163 In his evidence the appellant said he just thought "Oh, stuff it. I'll let her have New Year's Eve". That was because his wife wanted him to have the children on New Year's Eve but he had wanted to go out. He was thinking that if he agreed to that, she might agree to him taking the children.
164 He said he knocked on the door and she called out "Who's there?" He said it was him. He asked "Why are you stuffing me and the children around? ... If you want to go out New Year's Eve I'll have the four kids".
165 He said that at that time he had the baseball bat and the knife was still in his pocket. Asked why he had taken them with him to the front door, he said it never entered his mind not to take them. He said at that point he was calm. However, then she said "You will never see the kids again. I'm going to make sure you never see those kids again". He said she spoke with venom. He said his response was "You can't do that". He said she then said "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". He said what went through his mind was that she could not do this and he could not go on without seeing the children. He was thinking he would never see the children again. He had spent five weeks complying with her every wish and suddenly was in a situation where he was never going to see the children again. He was just in a state of disbelief. His immediate reaction was to call out "You bitch" and kick the door open. He said while he was kicking the door she was screaming from the other side "The kids hate you, the kids hate you".
166 He said he thought he heard the bedroom door slam, although he did not recall seeing her going into the bedroom. He ran to the bedroom door and kicked that in. He could still hear her saying "The kids hate you, the kids hate you". He then kicked the bedroom door and his mind just went blank at that point. The next thing he recalled was standing next to the bed with the knife in his hand and "the river of blood coming out of her neck". He did not recall using the baseball bat nor the knife. Blood was coming out of her neck and she was trying to get up. He said he remembered panicking. The first thing he said was "Oh, my God, what have I done?" and then he ran out and ran straight into Mr Susta and "... there was a little bit of a scuffle".
167 That evidence of the appellant, briefly summarised, was the foundation of his claim that he acted under provocation such as to have had no specific intent to kill or cause grievous bodily harm, or alternatively, to have made his offence one of manslaughter rather than wilful murder or murder.
168 It is apposite to note at this point that when he was arraigned at the commencement of the trial on 8 March 2005, the appellant pleaded guilty to manslaughter. In addition, immediately preceding the State prosecutor's opening to the jury, the appellant made a number of formal admissions pursuant to s 32 of the Evidence Act 1906 (WA). Those included that on 27 December 2003 he purchased a Winchester knife and a black beanie and that on 29 December 2003 he forcibly entered the premises at which his wife was living and unlawfully killed her. The live issues at trial were therefore intention and provocation.
169 The trial Judge gave extensive directions on intention and provocation, as I have observed. He described the question whether the appellant had an intent to kill or cause grievous bodily harm as "the central issue" (t/s 316) and "critical to the case" (t/s 327). He referred to the defence contention against the history given in evidence, including the change in the deceased since her return from the UK earlier in the year and (t/s 320):
"... to what the accused testified to as to the words uttered by the deceased and the way they were uttered by the deceased concerning on those words the denial of any access to the sons, words that represented, you were invited to conclude, a sharp change in the position and one likely to be of a sort that would precipitate a sudden response without the formation of an intention of the requisite sort and ignoring everything else including, it was said, evidence of the presence of the son - of one son - in the room where the attack occurred. This is, as I said, put forward by the defence as part of the background, as part of the total circumstances in which you are being asked to deliberate.
It is important to note again, because we are at that point in my review of the evidence, my earlier comments about the violence restraining order and the incident said to have given rise to it. You will recall what I said about the admission as to the violence restraining order, but also to the need to pay particular attention to the incident, the details of the incident which gave rise to it, as part of or for the purpose of providing evidence of the relationship between the parties by way of background to the events in question. It is to enable you to put those events with other background information in their true light, but the focus must always be on the events in question, on the matter the subject of the charge, so if you are not satisfied of the relevant intent you cannot use details of the incident or the VRO to find it.
Here I come back to aspects of the evidence about the relationship between the accused and the deceased to which I have earlier made reference. It is also important to note the need for care in evaluating other evidence of background, including evidence as to what was said to the accused about things that occurred involving other persons including the deceased. The truth of those reports is not in issue, whether they were accurate or otherwise, rather, that material is before you for what you may be able to conclude the accused, because of its supply to him, may have believed and where that belief may have led him.
There was, however, other evidence from witnesses including the accused himself but others as well, of the behaviour of the deceased in their presence. This evidence, as I have indicated, is evidence which may or may not assist you to understand the background to what occurred that night, including the words that the accused said the deceased uttered that led to, the accused said, what he did next."
170 His Honour had earlier reminded the jury (t/s 318) of the appellant's evidence that he did not have any intent to kill and that he said he was affected by what his wife had said to him.
171 His Honour gave lengthy directions on provocation. He explained (t/s 328) the jury would not get to that question however, unless they were satisfied of an intent to kill or cause grievous bodily harm. He read out the provisions of s 281 of the Criminal Code. He then said (t/s 329):
"You must appreciate that the law does not provide that a person can say simply because he became angry and therefore killed another he can rely upon this provision. The law relating to provocation has much more to it than that. What then is provocation? It is conduct, including words - and here it is words that arise - of such a nature as, first, to be capable, secondly, when done to an ordinary person, thirdly, to deprive him of the power of self-control, fourthly, to induce him to do the act which caused the death. Words, as I have said, may amount to provocation.
In this case you are concerned with words that the accused said were uttered to him shortly before the fatal blows. I can tell you that words like those the accused said the deceased uttered, uttered in the way he said the accused uttered them, could - and I underline 'could' - amount to provocation, depending - and I underline 'depending' - upon how you see those words, depending and again I underline 'depending' - upon all the facts of the case. The words do not necessarily amount to provocation. It's entirely for you to judge that question."
172 His Honour went on to direct the jury on the notion of the "ordinary man" in relation to a defence of provocation (t/s 330).
173 The submission by counsel for the appellant at trial was that his Honour should have given the jury a direction the effect that while anger may cause a person to form an intent they would otherwise not have had, it may also reach a stage "where no specific intent has been formed".
174 The court in Turner was clearly not intending to articulate any proposition of general application. What Wheeler J said in that case was referable specifically to the direction given by the trial Judge, which was effectively that the appellant's anger had to be ignored. Nothing like that was said by the trial Judge here. It is clear that his Honour was directing the jury that they did have to take the appellant's state of mind and emotion, including his anger, into account when considering both the issues of specific intent and provocation. That being so, this ground has no reasonable prospect of success and I would refuse leave to appeal on it.
Ground 31 - Judge erred in directing on demeanour
175 The submission advanced here is that anyone can be made to "look" guilty by making allegations against them; proving it is another matter. It is submitted that the Judge put a lot of weight on demeanour by his closing remarks at sentencing and that his opinion was portrayed to the jury. It is submitted that again this shifts the burden of proof onto the defence.
176 The first point to be made is that what is said by a Judge at sentencing has nothing to do with the verdict of the jury. Given the way the submission is expressed, I will deal with it as a complaint that the Judge had formed a view adverse to the appellant which he communicated to the jury. The transcript references given by the appellant do not support that. Indeed, his Honour was careful to point out to the jury that the evaluation of the evidence of witnesses and any findings of fact were matters entirely for them.
177 When sentencing, Judges might well (and ordinarily will) express sentiments adverse to the accused. That is a logical consequence of the conviction following upon the return of a guilty verdict by the jury.
178 The appellant has not demonstrated here any misdirection of the jury or any direction evidencing judicial bias leading to a miscarriage of justice. I would refuse leave to appeal on this ground.
Ground 32 - Trial Judge's failure to refer to previous acts of provocation
179 Again the appellant relies on Rebecca Berry's letter and certain statements that are in the prosecution brief. I have dealt with those matters.
180 The appellant is here essentially complaining that the trial Judge did not specifically remind the jury of every act, observation, statement or event which the appellant says went to the "provocation" of him by his wife.
181 The trial Judge was under no obligation to refer specifically to each of those matters. His Honour made it quite clear to the jury that it was the accumulation of events and his concerns both for himself and more particularly the children, which the appellant said drove him to react as he did when, according to him, his wife told him he would never see the children again. The directions given by his Honour, together with his observations on the case being advanced on behalf of the defence, made it quite clear to the jury what evidence was relevant to the issues of intention and provocation. This ground has no reasonable prospect of success on appeal. I would refuse leave to appeal in respect of it.
Ground 33 - Miscarriage of justice by prosecutor stopping evidence favourable to the accused
182 In support of this ground the appellant makes no submissions. He simply gives transcript references to the evidence of a number of witnesses. I have looked at those references:
(a) t/s 80 - Mr Brian Forlonge was being asked by Mr Bowden whether he heard Rebecca Berry say something to the appellant about the letter she had written to the deceased. Mr Mactaggart objected, on the ground Mrs Berry was to be called and the question could be put to her. Mr Bowden said he had no difficulty with that, he just did not want it to be said later that he had not put it to the witness. There is no substance to this complaint.
(b) t/s 83 - 86 - Mr Bowden asked Mr Forlonge whether one of the appellant's sons ran away from home on one occasion. Mr Mactaggart objected. In the absence of the jury, Mr Bowden explained he wished to ask whether the deceased had told Mr Forlonge that, if the son did it again, she would put him in a foster home, and whether he later passed that on to the appellant. The trial Judge ruled that only the last question could be put. That ruling was correct. The relevant evidence was what the appellant had been told about it, not whether or not it was true. When the witness returned, Mr Bowden asked him whether he had ever told the appellant that, and he said no. When the question was repeated he said he could not recall it. There is no substance in this point.
(c) t/s 116 - 122 - This is a reference to Rebecca Berry's cross-examination about the letter. Mr Bowden put part of the content of the letter to Mrs Berry. Mr Mactaggart objected to that as evidence of the truth. Mr Bowden said he was not proposing to lead it for that purpose, but only as going to what the appellant had been told. Mr Mactaggart said he had no objection to that. The questioning continued. Mrs Berry said she did not remember saying in that letter what was being put to her. Mr Bowden showed it to the witness. His purpose, he said, was to ask whether she wrote it and whether she gave a copy to the appellant. The trial Judge permitted that course and it was done. Mr Bowden then started to read aloud certain passages of narrative. Mr Mactaggart again objected on the basis it was apparently being presented as evidence of the truth. The objection was subsequently left and dealt with later in the way I have already explained above.
The letter was tendered in evidence. The content which counsel had sought to adduce could not have been led as evidence of the truth. The matters written about were hearsay or were matters of which the witness had no first-hand knowledge. There is nothing in this.
(d) t/s 204 - 207 - Mr Morris was the Manager of the Glengarry Tavern. He was named as a witness on the back of the indictment. Mr Mactaggart called him and made him available for cross-examination at the request of the defence. Mr Bowden sought to ask the reasons for the termination of Mrs Vella's employment some two months before her death. Mr Mactaggart objected on grounds of relevance. The trial Judge said he could see a potential relevance depending upon how the course of evidence ran. Mr Mactaggart conceded that, and the cross-examination then continued (t/s 209 - 210):
"Mr Morris, you had indicated that on 2 September you had employed Ruth Vella as a bar person?---Correct.
And I had also asked you whether or not you had terminated her services on 3 November - 3 November 2003?---That's correct.
Is it the position that you terminated her services because of difficulties with her general behaviour at work?---Yes, that's correct.
Was it the position that she, for example, was drinking to excess?---I wouldn't say that, no.
I'm just reading from your statement. Did you say this: 'I observed Ruth when she came into the tavern on her days off drinking to excess and acting far too familiar with patrons for my liking'?---Yeah, I'd say more - more than the drinking too excess she was too familiar with customers.
Were in fact there complaints about that?---There were from two ladies, yes.
Did you prior to terminating her services speak to her or counsel her about that?---Yes, I did.
Did that result in any change in behaviour?---To some extent, yes.
Did the fraternisation and the unacceptable conduct continue?---Yes, it did.
And it reached a stage where on 3 November 2003 her services were in fact terminated?---Correct.
Do you know, Mr Morris, a person by the name of Alan Susta?---Yes, I did.
At that stage that I'm dealing with, that is, early September of 2003, was he in fact a regular patron of the Glengarry?---Yes, he was.
Did it ever reach the situation where he in fact was barred from the Glengarry?---Not exactly barred; I - I asked Alan if he'd mind drinking elsewhere.
All right. Do you recall some time after 3 November - and you have told Mr Foreman and ladies and gentlemen of the jury that Mrs Vella's services were terminated on 3 November - - -?---I'm sorry, would you mind repeating?
Yes. Do you remember after 3 November - and 3 November is the date that Mrs Vella's services were terminated - some time after that you in fact spoke to a person who referred to himself as Joe?---He identified himself as Joseph Vella, Ruth's husband.
Okay, and you spoke to him on the phone. Is that correct?---That's correct.
Are you able to tell me whether or not you told him that the person who you thought that Ruth Vella was involved in in fact drove a Commodore?---Yes, I did.
Did you in fact say to him that the person's name was Alan?---No, I didn't.
I have no further questions, thank you, sir."
The evidence of Mr Morris was clearly not "stopped" by the prosecutor.
(e) t/s 260 - This relates to Mr Mactaggart's objection to the tender of the Rebecca Berry letter. Once it was established the letter was shown to the appellant, it was tendered (t/s 261). The evidence was not "stopped".
(f) t/s 276 - This is a reference to what was said by a child "H". I deal with it in relation to ground 39.
(g) t/s 347 -This is a reference to something said by Mr Mactaggart in his submissions to the trial Judge on sentence following the jury returning a verdict of guilty of wilful murder. It has no bearing on the Judge's directions nor the verdict. There is nothing in this point.
None of the parts of the transcript referred to in support of this ground raise any point of appeal. Leave to appeal in respect of it is refused.
Ground 34 - Miscarriage of justice by prosecutor breaking the prosecutor code of conduct
183 No submissions are advanced in support of this ground. Transcript references are to pages previously nominated in support of other grounds. This ground is no more than a complaint that the appellant did not like the way the State prosecutor conducted the prosecution. It raises no proper point for appeal. Leave to appeal is refused.
Ground 35 - Miscarriage of justice by prosecutor making allegations not proven
184 The submission in support of this refers to a quote from the prosecution closing address to the jury - "there was no time for provocation in the three minutes". The closing addresses of counsel were not transcribed. On 25 January 2006 I ordered they be transcribed. That was subsequently done and a copy was provided to the parties.
185 In his address, Mr Mactaggart described the three minutes mentioned by Mr Susta in his evidence as affording the appellant a "small window of opportunity" (t/s 20, 10/3/05). Later, he argued (t/s 24 - 25, 10/3/05) that given the timing Mr Susta described:
"There simply wasn't time in those three minutes for the accused to have at the same time a conversation with this lady about not seeing the children or for her to utter those words and for the accused to then enter the bedroom, replete with baseball or sporting bat and knife and commit the catalogue of acts that he did, because make no mistake about it, ladies and gentlemen, that catalogue or series of violent acts would have taken some little time, albeit not much, to commit. The accused had to go in, inflict two sorts of injuries amongst others, excluding the bruising and the fracture of the lady's arm, and then was greeted by Mr Susta as he entered the premises.
There simply wasn't time for that particular conversation to take place, but even if you accept the evidence of the accused on that - and when I say 'accept,' I don't intend to convey any other impression that the onus of proof in this matter is on the prosecution to prove the elements of all these offences, but even if you find that that conversation did take place, as his Honour will tell you, there's a little bit more to the notion of provocation than just saying, 'This was said to me and therefore I really lost it. I became enraged, I lost control and I did this.'"
186 This was an argument legitimately open on the evidence. The appellant's assertion the timing was not proven implies Mr Susta's evidence had to be rejected. It did not. His Honour certainly accepted it. I will return to that shortly.
187 The bulk of the submission in support of this ground refers to what the prosecutor said to the trial Judge in his submissions on sentencing at t/s 345, when he conceded that there was no evidence whether or not the son who had been in the bedroom was aware of the act, but nevertheless the appellant had acknowledged in cross-examination that he had killed his wife in the presence of their son. The appellant refers to his evidence that he knew that subsequently, but at the time did not realise it. I cannot discern any point to be drawn from this.
188 Leave to appeal will be refused in respect of this ground..
189 This ground is entirely speculative. The appellant has advanced no evidentiary material in support of it. His references to various aspects of the evidence of Mr Susta and his statement in the prosecution brief, and the contents of a letter from the DPP to the appellant's then solicitor and to Ruth Berry visiting the appellant in prison on 5 February 2004, are incongruent, speculative and no more than argument. There is nothing to suggest the State prosecutor "coached" Mr Susta nor any other witness. The submission really amounts to no more than an assertion that certain (minor) differences between what Mr Susta said in his statement to police and his evidence at trial were the result of "coaching". There is no substance to this. Leave to appeal is refused.
Ground 37 - Miscarriage of justice by police not gathering evidence properly
190 The appellant says that he had taken four photographs which were in his camera at 5 Gwedue Court and that in his statement of the prosecution brief, Vince Nippierd said he remembered packing it.
191 The appellant says one of the photographs shows his wife's car and her boyfriend's car at 5 o'clock in the morning. He says he has one of those and has submitted one to the court. The other photo was the one he took in the morning of the Mercedes car. He has sought to obtain a copy of that from the DPP and the police. I understand they say they do not have such a photo. Whatever the situation may be about that, a ground that says only that police "did not gather evidence properly" is not a proper ground of appeal.
192 As Callinan J pointed out in Penney v The Queen [1998] HCA 51; (1998) 72 ALJR 1316 at [18]:
"... there is no general proposition of Australian law that a complete and unexceptional investigation of an alleged crime is a necessary element of the trial process, or indeed of a fair trial."
This ground has no reasonable prospect of success. Leave to appeal is refused.
Ground 38 - Miscarriage of justice by way the prosecution cross-examined the appellant
193 No proper submissions are advanced in support of this ground. The appellant gave certain transcript references which he characterised in various ways. By way of illustration, he gave the following characterisations: "leading questions", "repeating same thing", "sarcastic", "misleading allegations", "confusing", "forgot my name", and others.
194 In his oral submissions, the appellant claimed the cross-examination by the State prosecutor was a "vicious attack, vocally, lengthwise, totally". He said it was obvious if one listened to the tape.
195 At the appellant's request I have obtained the original tape-recordings and I have listened to portions of the tape-recording of his cross-examination by Mr Mactaggart. I have, of course, also read the cross-examination.
196 The cross-examination was obviously done in a way to suggest or imply what the appellant was saying was untrue, unbelievable and in parts a fabrication. At times the State prosecutor was sarcastic, even caustic and critical of the explanations given by the appellant. I gained no sense however (with one exception) that there was anything inappropriate, much less improper or unfair, which should have been stopped or commented upon by the trial Judge. The exception to which I refer is at t/s 289. This was cross-examination about the baseball bat:
"Where did that baseball bat that was found at 14 St Ives Loop in the bedroom where your late wife was found where did that come from?---My car. I kept it underneath my seat.
I beg your pardon? I kept it underneath my front seat.
Who put it underneath your front seat?---I've had it there for a while. Me.
Right. Whose bat is it?---Me and the children's.
'Me and the children's'?---The children's.
A sporting bat?---Yeah.
Normally used for what?---T-ball, we used to play with.
T-ball you used to play with?---That's correct.
Hitting the daylights out of the T-ball. Is that right?---Hitting the daylights out of a ball, yes.
197 On the tape, one can hear that the words "hitting the daylights out of the T-ball" said with considerable emphasis heavily laced with sarcasm. It was more of a comment than a question. The question was unfair, in that the appellant's previous answer had not said anything about "hitting the daylights" out of anything and also because it was a logical nonsense. It was irrelevant and highly emotive in the circumstances. The question was quite inappropriate and improper. However, standing alone, or even in combination with other instances of sarcasm in the prosecutor's cross-examination (for example at t/s 294), that question was not such that it could have directed the jury from proper consideration of their task.
198 That one question aside, the other matters complained of under this ground simply do not put this cross-examination in the category of impropriety or unfairness capable of giving rise to a miscarriage of justice. Paterson v The Queen (2004) 28 WAR 230, upon which the appellant relies, is in an entirely different category (see the judgment of Malcolm CJ at [91] - [177]).
199 I have looked at the specific transcript references given by the appellant in this regard. They do not necessarily reveal the faults he claims to see in them. In some instances they are mere nitpicking and the mistake or point to which he draws attention is inconsequential. Nothing is identified which has any forensic significance reflecting on the integrity or fairness of the trial or suggests a miscarriage of justice. I have come to the conclusion that this ground has no reasonable prospect of success on appeal and I would refuse leave to appeal.
Ground 39 - Miscarriage of justice - prosecutor stopping evidence of background
200 The appellant gives a number of transcript references:
(a) t/s 307 - This was in the course of an exchange between the trial Judge and counsel in the absence of the jury. Mr Bowden had told his Honour that he proposed to address the jury on both specific intent and also provocation. He raised that in case the prosecutor intended to argue provocation was not a live issue. Mr Mactaggart's response was that he accepted that provocation would have to be left to the jury, but he did intend to argue that certain statements the appellant claimed had been made to him had in fact not been made, and that even if there was provocation, it was not such as to cause an ordinary man to lose his self-control.
The trial Judge said he would be leaving provocation to the jury.
(b) t/s 331 - This is a reference to part of the trial Judge's summing-up to the jury explaining the legal aspects of provocation. The direction was correct. It has nothing to do with the prosecutor "stopping" anything.
(c) t/s 255 - 256 - this was in the appellant's evidence-in-chief. He was being asked about having access to his children after his wife had obtained a violence restraining order against him. He was asked whether he had noticed changes in the children. He began to answer by relating what another child (H) had said which caused him to have concerns. The State prosecutor objected on the ground that would be hearsay. A ruling on that was deferred. It was revisited at t/s 276. The Judge pointed out that he understood the evidence was sought to be led by Mr Bowden only to show what the appellant had been told, not that what he had been told was true. The prosecutor then withdrew the objection. The appellant was then asked the question and answered it (t/s 277). There is nothing in this.
(d) t/s 256 - A further objection was taken to the appellant being allowed to say what one of his sons had told him (presumably about the deceased). The objection was not merely that it would be hearsay, but on the basis the prosecutor said he had specifically raised with the defence the question whether any of the children would be required to give evidence. (I assumed they were named on the back of the indictment and he had been informed that they would not). Mr Bowden said he conceded the force of that objection and did not press the question.
This was patently an area in which counsel was necessarily required to make careful forensic decisions. Those would ordinarily be binding on an accused. See TKWJ v The Queen (supra); Ali v The Queen (supra).
It is readily understandable why counsel could rationally decide it would be tactically unwise to have the appellant's young children called as prosecution witnesses and cross-examined, in a trial of their father for savagely killing their mother. That decision apparently having been made and agreed with the prosecution, the particular questions could not have been put without the real prospect that leave would have to be given to the State to call the child (or children) in rebuttal - which would likely have been even more to the appellant's disadvantage. There is no appeal merit in this point.
(e) t/s 260 - 263 - This refers to the admission of the letter from Rebecca Berry. I have already dealt with it.
There is nothing in ground 39. Leave to appeal is refused.
Ground 40 - Miscarriage of justice: police giving away evidence
201 The appellant says about this only that the police gave away evidence helpful to the accused. He refers to the deceased's Uncle Brian's letters in the prosecution brief.
202 I assume the letters were not sought to be tendered at trial. If not tendered, it would presumably be usual for the DPP or police practice to return items to their owners or proper custodians after the trial. There is nothing advanced here which would indicate any error of law or miscarriage of justice. Leave to appeal will be refused.
Ground 41 - Miscarriage of justice: primary court's decision against the weight of evidence and cannot be supported having regard to the evidence
203 No particulars of this ground are given. Numerous references are made to particular items of evidence. The appellant then argues that those parts of the evidence should not be taken as indicative of his guilt, or that alternatively, they show his lack of intent. By way of illustration only, I refer to part of what the appellant says here about buying the beanie:
"(41.7)The request for a balaclava and purchase of a beanie point to somebody who doesn't want to get caught. The receipt in the glove box points to someone who doesn't think he'll be caught. With a VRO on me do you think I thought I would get away with the murder of my wife?? Furthermore, if I intended to kill my wife, why purchase a knife? After living in the house for 11 years I knew there were plenty of knives in the house and where they were. Why sharpen a knife that was very sharp T Pg 199 prg 8 Paton G B 'It's a very sharp knife.'"
204 None of the specific matters raised by the appellant are capable of giving rise to a view in an appeal court that there was an insufficiency in either the extent or quality of the evidence to lead to satisfaction of his guilty beyond reasonable doubt (Morris v The Queen (supra)).
205 As presented, this ground has no reasonable prospect of success on appeal. Leave to appeal will be refused.
Ground 42 - Miscarriage of justice : judge did not direct on the appellant's lack of recollection of what he was doing
206 No submission is advanced in support of this ground. The single transcript reference given is to t/s 273. That is where the appellant gave evidence-in-chief that he remembers nothing between the time he kicked in the bedroom door and shortly afterwards when he found himself standing over his wife who was bleeding profusely. I have referred to this above.
207 The appellant does not explain what he means by saying the Judge "did not direct on the fact". I assume he means here the Judge should have told the jury that had been in the appellant's evidence. However, his Honour did advert to that. He said (t/s 318):
"The accused said he did not have any intent to kill - that at the relevant time he can recall nothing, and he can recall nothing, so far as he is able to understand it, because of how he says he was affected by an exchange and particularly by one side of the exchange which he said took place between himself and his wife on that fateful night."
208 If by this ground the appellant means the trial Judge should have told the jury that if they accepted the appellant had no recollection as he claimed then they could not find he had the requisite intent (which I apprehend may be his intended contention), then that would have been an incorrect direction as a matter of law. A person may do something with a specific intention and later have no memory of it. In addition, it was probably to the appellant's advantage that the trial Judge did not give a fuller direction to the jury particularly about the appellant's claim that he had no recollection of the killing, for had he given one (in the absence of expert evidence) it would have had to have been balanced with a comment to the effect that the jury might well have concluded the claim was simply a convenient one by the appellant to avoid being asked questions he could not answer without incriminating himself.
209 This ground has no reasonable prospect of success. I would refuse leave to appeal in respect of this.
210 Leave to appeal against conviction is refused on all grounds except ground 10. Leave to appeal is granted in respect of that ground as I have reformulated it at [79].
211 On 22 April 2005 the appellant was sentenced for the wilful murder to strict security life imprisonment with an order that he serve a minimum of 20 years before eligibility for parole.
"1. The sentence is inadequate because the prosecutor did not allow the defence the opportunity to develop the true background of the deceased and her unsuitability as a parent. See Rebecca Berry and her husband's letters to the deceased. Exhibits 7 & 9 Error of Law and Fact.
2. The sentence is excessive because the learned Judge did not take into account that when I 'came to' and saw the blood I stopped, as soon as I regained control, I stopped. (Fact)
3. The learned Judge failed to take into account that though my son 'might' T p184 pg2,3,4 (based on hearsay evidence) have witnessed the death, I did not have any recollection of him being there!! Error of Law
4. The sentence is excessive because the learned Judge failed to take into account previous acts of provocation by the deceased. T p 265 pg9,12 Prosecution brief p106,prg52,53, p107prg56 (R.Berry's Letter Exhibit 7, D.) Error of Fact
5. The sentence is excessive because the learned Judge got his facts wrong. T Pg 359 prg 2,8 Error of Fact
6. The sentence is excessive because the learned Judge put weight on evidence whose prejudicial value outweighed it's probative value T Pg364, prg 14,15, T Pg 365 prg 1,3,5,7. T Pg366, prg 2. T Pg 373 prg 4 Error of Fact
7. The sentence is excessive when compared to other acts of wilful murder which got 15-19 years, and 20-30years. Error of Fact
8. The sentence is excessive because even the learned Judge acknowledged that there was no intent when I was walking up to the house. T Pg 373 prg 6 Error of Fact
9. The learned judge erred by comparing the person at trial with the person on the 29-12-2003. That night I was very concerned that my children were in danger with the deceased and even her sister was concerned! At the time I was a 'desperate father.' T Pg 373 prg 6. Error of Fact
10. The sentence is excessive because even the learned Judge acknowledged that the risk of me committing any acts of violence is absent, my previously clean record and my age. T Pg 378 prg 1 Error of Fact"
213 The reference in ground 1 to the sentence being "inadequate" is obviously an error. The appellant clearly means "excessive".
214 The Respondent's Answer was filed on 4 January 2006. It does not respond specifically to the appellant's grounds of appeal.
216 This ground again concerns Rebecca Berry's and her husband's letters to the deceased. As I have explained in respect of the appeal against conviction, those documents were in fact in evidence as exhibits 7 and 9. They were therefore before the sentencing Judge. Whatever their relevance or otherwise on the trial proper, they were before the Judge in the sentencing proceedings for the appellant and his counsel to rely on for whatever appropriate purpose they wished. It is not a question of the prosecutor "not allowing" anything. It was for the trial Judge to allow or not allow counsel or the appellant to do what they might have sought to do. This ground does not complain that the Judge did not allow the defence the opportunity "to develop a true background of the deceased and her unsuitability as a parent". In fact Mr Bowden had made it quite clear at the trial that the appellant was claiming to have acted out of concerns of that kind. He maintained that position in his plea in mitigation. He was not prevented by the Judge from putting any submission or material before the court. Indeed, there were before his Honour several reports (a pre-sentence report, a psychological report and a psychiatric report) in which the appellant's account of the offence and his view of the history of the matrimonial relationship and his concerns, were set out in some detail.
217 There is no substance in this ground. Leave to appeal is refused.
218 This ground presupposes the Judge had to accept the appellant's account of what happened. Clearly his Honour did not (as nor did the jury). As his Honour rightly pointed out (t/s 368), he was required to form his own view of the circumstances of the offence within the ambit of the jury's verdict. His Honour did so. He acknowledged the appellant had testified that he had no memory of the actual killing. He referred to the appellant's testimony that immediately after the attack he became aware of being in the bedroom and seeing the blood coming from his wife's neck (t/s 371, 373). However, his Honour found that although the appellant was deeply distressed by the breakdown of his relationship with his wife and the life he considered she was leading and its impact on the children, and had "very considerable anger" (t/s 373), there was nothing in the nature of sudden or unexpected provocation to which he was responding (t/s 375). His Honour found the appellant's feelings and anger about his wife, which had been present at least in some form for some months, caused him to do what he did (t/s 375). Pertinently too, the Judge found (t/s 371) that the appellant dealt his wife four heavy blows to the head as she was lying on the bed. These alone were severe enough to have caused her death. She also suffered substantial defence injuries to her left wrist and elbow. While she was lying still and beginning to die from the blows to her head, the appellant used the Winchester hunting knife to cut her throat from ear to ear. This produced a 15cm wound which severed her trachea and jugular vein. This would have been sufficient on its own to cause death, and produced a massive outflow of blood.
219 It is implicit in his Honour's findings that he did not accept the appellant did not know what he was doing at the time and only "came too" when he saw the blood, nor that the appellant had "lost control" and stopped when he regained it.
220 This ground does not reveal any error on the part of the Judge. It is no more than a claim that his Honour should have accepted the appellant's evidence on the point and given him credit for it as in some way being mitigating. His Honour was not obliged to accept the appellant's account and clearly did not do so. This ground has no reasonable prospect of success on appeal and leave to appeal is refused.
221 The Judge expressly referred to the appellant's testimony that he had no memory of the attack or of seeing his son in the room while he committed it (t/s 371). By the end of the trial, there was no question that the son "might" have been in the room. Mr Susta's evidence was that he was there. That was not hearsay evidence. Indeed, the appellant himself conceded the son had been there - although he continued to maintain that he had not seen him. There is nothing in this ground. Leave to appeal is refused.
222 It is not correct to say that the Judge failed to take into account what the appellant had claimed were "previous acts of provocation" by the deceased. The characterisation of the acts or conduct of the deceased as "provocation" to the appellant was very much an issue at trial.
223 I have already mentioned some of the references the Judge made to the state of mind and feelings of the appellant relating to his wife. His Honour expressly stated (t/s 375) that the offence was committed in the context of a severe breakdown of matrimonial relations. His Honour had before him, not only the evidence given at trial, but also the material from the appellant contained in the reports to which I have referred.
224 References to the prosecution brief are irrelevant. His Honour was required to sentence on the basis of the evidence and other material before him. What was in the prosecution brief was not evidence before the court and was not before his Honour for sentencing purposes.
225 This ground has no reasonable prospect of success on appeal. Leave to appeal in respect of it is refused.
226 The transcript references given by the appellant are to the following italicised passages (t/s 358 - 359):
"SIMMONDS J: As I understand the materials that were sent up to me, there was a process of counselling or other management to which he was exposed during that period and, at its highest, a rather guarded assessment of how he had responded. Now, it is true, and I immediately wish to make this point because I suspect you will, that the author of the report said things might well be different as soon as the sentencing process had completed. There's a difference between undergoing the counselling prior to sentencing and undergoing counselling after it.
I simply say that because there is also in the materials references to prior counselling episodes, two in number I believe or two in grouping, one arising out of a prior domestic violence incident in 1994, I believe, and the other shortly before these events involving a couple of sessions, I believe, with Relationships Australia arising out of a violence restraining order incident. Am I right?
BOWDEN, MR: Yes. The last lot of counselling, if you like, was so interwoven with the circumstances that he was involved in at the time which have led to this.
...
BOWDEN, MR: First of all, there has been the welfare of the children. As you have observed from the pre-sentence report, sir, and I think my preceding remarks, arrangements have been made for the children to go to a relative in the eastern states but that all had to be taken care of.
SIMMONDS J: Yes, a relative of the partner in the eastern states, I understood.
BOWDEN, MR: That's correct, sir, yes. ..."
227 These exchanges occurred in the course of Mr Bowden's plea in mitigation. They are not part of the Judge's sentencing remarks. The information to which his Honour was referring was contained in the reports which had been provided to him. In any event, as is apparent from the transcript itself, his Honour set out his understanding of that information and asked whether or not that understanding was correct. Mr Bowden on each occasion said it was.
228 There is nothing in this ground. Leave to appeal is refused.
229 The transcript references given here all concern the prosecution submission that on the evidence of Mr Susta, that he was away from the house for only about three minutes, there would not have been sufficient time for the conversation at the front door, the kicking down of that door and the rest of the events to have occurred in the way the appellant claimed. Mr Bowden put a contrary argument on behalf of the appellant. All but one of the transcript references given relate to exchanges during the course of submissions. The last reference is to his Honour's finding on the point at t/s 373:
"There was evidence from that man, which was not challenged, that the time that elapsed between the man's departure from the house and his return into it was likely to have been in the order of three minutes. This would on your account have left what I consider would have been a very short length of time indeed for the deteriorating conversation to have taken place that you testified to as the deceased's sudden or unexpected provocation of you, to be followed by the kicking in of two doors in succession and the committing of the attack I have described."
230 Subsequently his Honour found (t/s 375) that there was no sudden or unexpected provocation of the appellant by the deceased.
231 On the evidence, the Judge was perfectly entitled to make these findings of fact. The evidence to which the appellant refers here was only prejudicial because it showed the matter in a way adverse to him. There was nothing unfairly prejudicial about it. This ground cannot succeed on appeal. Leave to appeal is refused.
232 The sentence was life imprisonment. The appellant complains that his Honour imposed strict security life imprisonment and fixed a period of 20 years before the appellant could be eligible for parole. 20 years was the lowest period which his Honour could have set within the range available on a sentence of strict security life imprisonment.
233 By s 282 of the Criminal Code, a person who commits the crime of wilful murder is liable to a mandatory punishment of either strict security life imprisonment or life imprisonment. By s 90(2) of the Sentencing Act 1995 (WA), a court sentencing an offender to life imprisonment for wilful murder must set a minimum period of at least 15, and not more than 19 years, that the offender must serve before being eligible for release on parole. By s 91(1) of that Act, a court sentencing an offender to strict security life imprisonment must, unless it makes an order that the offender be imprisoned for the whole of the offender's life, set a minimum period of at least 20, and not more than 30 years, that the offender must serve before being eligible for release on parole.
234 The appellant refers to three cases which he says are comparable. The first is Griffin v The Queen [2001] WASCA 11. The applicant there had been sentenced to life imprisonment for the wilful murder of his former de facto, with an order that he serve 18 years and 6 months before eligibility for parole.
235 By reason of s 90(2) of the Sentencing Act, the sentencing Judge had to fix a non-parole period between 15 and 19 years, once a sentence of life imprisonment was imposed. The application for leave to appeal against sentence was on the ground that 18 years was excessive.
236 Briefly, the facts of that case were that in October 1998 the applicant deliberately stabbed his former de facto whilst she was in bed. He had gained entry to her house and threatened her male friend. The applicant knelt over his former de facto who was lying on a bed in a defensive position trying to protect herself. He stabbed her no less than three or four times in the chest with a knife. He also caused wounds to her left arm and the right side of her chest.
237 Significantly in that case, the Crown prosecutor conceded that the circumstances of the case were not such as to warrant strict security life imprisonment. The sentencing Judge accepted that concession. No such concession was made in the present case.
238 Malcolm CJ (with whom Owen and Parker JJ agreed) said (at [44] - [45]):
"44 A conviction for wilful murder attracts a mandatory penalty of life imprisonment. In sentencing the offender, the only options open to a sentencing judge are to impose strict security life imprisonment or life imprisonment: Criminal Code, s 282; Offenders Community Corrections Act 1973 (WA), s 40(2)(c), and s 40(2)(d); and Sentencing Act 1995 (WA), s 90(2) and 91(1). There is no statutory guidance regarding the principles to be applied in making the choice between these options, but matters which are relevant are the particular circumstances of the crime and what appears to be an invidious necessity of ranking it in terms of gravity or seriousness within a class of offence which is the most serious offence under the Criminal Code. This involves a consideration of the particular circumstances of the crime together with other considerations including the antecedents of the offender and the need to protect the community: see Mitchell v The Queen [1996] HCA 45; (1995) 184 CLR 333; Khoo v The Queen, unreported; CCA SCt of WA; Library No 960184; 2 April 1996; O'Connor v The Queen, unreported; CCA SCt of WA; Library No 940525; 22 September 1994; Monaghan v The Queen (1990) 3 WAR 466; and Jackson v The Queen [1990] WAR 105. The factor which has primacy over other factors is the gravity of the crime which, as I have indicated, involves placing the homicide somewhere in the scale of other crimes of wilful murder: Jackson v The Queen, supra; King v The Queen, unreported; CCA SCt of WA; Library No 6607; 26 February 1987; Hoare v The Queen, unreported; CCA SCt of WA; Library No 6138; 13 December 1985 and Hoare v The Queen (No 2), unreported; CCA SCt of WA; Library No 6240; 10 April 1986.
45 The principles to be applied were summarised by Owen J (with whom Kennedy and Pidgeon JJ agreed) in Williams v The Queen (1996) 17 WAR 17 at 26 as follows:
'In relation to the choice to be made under s 282(a), I think that the principles which emerge from the authorities can be summarised in the way set out below.
1. On a conviction for wilful murder the imposition of a custodial sentence for life is mandatory.
2. The sentencing judge is required to choose between life imprisonment and strict security life imprisonment. The discretion to choose between the options is at large but must be exercised judicially.
3. The factors to be taken into account in making that choice are:
(a) the circumstances of the offence and the gravity of the crime so as to place it somewhere in the scale of other crimes of wilful murder;
(b) the antecedents of the offender, with the phrase 'antecedents' being given a broad meaning to include matters such as character, previous criminal history, upbringing and personal circumstances; and
(c) the risk to the community posed by the likelihood of the person committing serious offences of violence in the future.
4. The antecedents of the offender are relevant both in considering what, if any, mitigating factors exist and in considering the need to protect the community in terms of the likelihood of the applicant committing further offences.
5. No one factor has primacy over the other factors. So it is, for example, that in an individual case the sentencing judge may be persuaded by the horrific nature of the crime or by the need to protect the community (whether shown by the offender's antecedents or other material) or by a combination of all of these factors, to impose a sentence of strict security life imprisonment'."
239 Notwithstanding the Crown's concession, the sentencing Judge took the view the wilful murder the applicant had committed was one of the worst that could have been committed. The concession made by the Crown was that although the Crown would not ask for a sentence of strict security life, nonetheless the sentence should attract a substantial minimum term within the range available on the imposition of life imprisonment. It is apparent the primary consideration leading to that concession was the comparative youth of the offender (he was 38-years-old at the time of sentence), and his antecedents.
240 The appellant here did not have the benefit of comparative youth. Furthermore, as bad as the circumstances of the offence were in Griffin, those which were involved in this case were objectively much worse.
241 In Errey v The Queen [2001] WASCA 75, a sentence of life imprisonment with a minimum term of 19 years before eligibility for parole was upheld on appeal. The applicant was 32 years old. He had met the deceased some six months earlier in response to an advertisement the applicant put in a newspaper, adverting that he was available as a male prostitute. In the intervening months, he and the deceased had been together three or four times and the applicant had visited the deceased's unit more than once. The applicant had been living in Kununurra but returned to Perth, where he lived largely from handouts and slept wherever he could find a bed. He went to the deceased's unit unexpected and uninvited, wanting to be allowed to stay the night. The deceased did not answer. The applicant took a fire extinguisher which had been hanging on the wall in the public passageway and used it to bash the inner door of the hatch of a servery until it gave way. He managed to make entry, overcoming the deceased's clearly expressed reluctance to let him in. There was a loud exchange at the front door. After a little time a fight developed between the two in the lounge room. The sentencing Judge accepted in the applicant's favour that the deceased picked up a small kitchen knife because he was no physical or emotional match for the applicant's aggressiveness and was trying to get the applicant to leave the unit. The applicant was able to knock the knife from the deceased's hand and threw the deceased onto a lounge chair. Thereafter, on and off, the applicant throttled the deceased, mostly with both hands grasped around the lower neck, and at times he punched the deceased to the head, and continued to do this for a prolonged period. He forced the deceased to the floor where he knelt over him, throttling him and punching him. The Judge was satisfied that he was so angered by the deceased's natural reluctance to have him stay and his picking up of the knife, that he attacked initially in self-centred anger, but realised quickly that if the deceased lived to tell the story, the applicant would likely be reported to the police and so the applicant decided he must kill the deceased to be sure that did not happen.
242 Once again there were important features of that case which were not present here. Once again, there was the comparative youth of the offender (32 years of age). There was even less premeditation in that case than in this, and again, the circumstances of the present offence were far more horrific. Even so, it is noteworthy that the period which the appellant will have to serve before eligibility for parole is only 12 months more than that set in Errey.
243 The last case referred to by the appellant is that of Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381. There the applicant had been sentenced to strict security life imprisonment with a non-parole period of 20 years.
244 The applicant had been sitting on a river bank at Caversham with the deceased whom he had met there. The applicant did not know the deceased prior to that. They were talking casually. The sentencing Judge accepted that the deceased said something to the applicant or made some gesture which enraged him, probably a homosexual approach of some sort. The applicant then took a folding knife from a pouch in his jeans and attacked the deceased with it. The deceased tried to defend himself by raising his arm, which received a number of slashing wounds from the knife. The deceased retreated from the applicant, but as he did so the applicant pursued him and stabbed him many times. The deceased left a trail of blood over a distance of some 30 paces. In total the applicant inflicted more than 100 stab wounds. Some were so savage as to almost sever the deceased's head from his body. The wounds were all over his body, including his back. The applicant left the scene.
245 The sentencing Judge accepted there was no premeditation in the sense of pre-planning. The applicant had not intended to go and kill anyone and the attack, although savage and persistent, was over a relatively short period of time. The absence of premeditation and of a prolonged attack meant, in her Honour's view, that was not the most serious offence of its kind. However, the ferocity, the persistence, the fact the deceased was entirely unarmed and defenceless and many years the applicant's senior, put it in the upper, rather than the lower range of wilful murders. In the absence of any particular factors of significance, she considered it should attract a sentence of strict security life imprisonment.
246 Comparisons of cases of wilful murder are inevitably invidious. They will always be different. In my view, all Roberts shows is that a case of a "frenzied" attack (which is a term I would have thought apt to describe the appellant's offence here) might properly attract a sentence of strict security life imprisonment with a minimum term of 20 years. I do not see how this case assists the appellant at all.
247 His Honour here described the offence as "horrific". Although he was not convinced beyond reasonable doubt the appellant bought, or sharpened, the knife and carried it and the baseball bat to the house with the intention from the outset of using them to attack his wife, the Judge was so satisfied that, once Mr Susta left, the appellant took them with him to the door with the intention of doing his wife harm. His Honour found that although the offence was "not at the most severe imaginable end of wilful murder cases ..." it was nonetheless "in the upper end of wilful murder cases". A particularly significant factor was the presence of the youngest son in the bedroom at the time. His Honour took the appellant's personal antecedents and circumstances into account. He referred to them at some length. He found the mitigating features were outweighed by the circumstances of the crime and the gravity of the offending.
248 The conclusion that a sentence of nothing less than strict security life imprisonment was appropriate was well open to his Honour. The cases referred to by the appellant do not show otherwise. This ground has no reasonable prospect of success on appeal. Leave to appeal is refused.
249 I have already mentioned that the Judge was unable to be satisfied beyond reasonable doubt the appellant had a specific intent when he was walking up to the house. The Judge took that fact into account. That fact does not make the sentence imposed manifestly excessive. This ground has no reasonable prospect of success on appeal and leave to appeal is refused.
250 The passage complained of here is the following (t/s 373):
"The impression I gained at trial of you was of a man with a capacity for careful calculation and also very considerable anger and it was anger which had arisen out of the state which you believed your marriage had reached which I find was driving you as you approached that door after the man had left ..."
251 The comment made by his Honour is not to be understood as having been based only on his personal observation of the appellant during the course of the trial (although no doubt it included that). Impressions of the sort described there by his Honour are formed from a consideration of the evidence given in the course of the trial. There was abundant evidence before his Honour which would have allowed him to make that assessment of the appellant. There is no substance in this point. Leave to appeal is refused.
252 As the appellant himself notes in this ground, the Judge actually did make those findings. He took them into account. But as I have explained above, he concluded the circumstances and gravity of the offence outweighed them. It was well open to his Honour to take that view. This ground has no reasonable prospect of success on appeal. Leave to appeal is refused.
253 Leave to appeal is refused in respect of each ground.
254 Accordingly, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appeal against sentence is dismissed.
Vella
The State of Western Australia [2006] WASCA 177
(2005) 79 ALJR 662
(1987) 164 CLR 180
(2003) 217 CLR 1
(2005) 79 ALJR 755
(1993) 178 CLR 193
(2006) 80 ALJR 614
(2004) 28 WAR 230
(1998) 72 ALJR 1316
(1983) 35 SASR 356
(1990) 19 NSWLR 677
(2002) 84 SASR 378
(1973) 6 SASR 255
(2003) 28 WAR 381
(2002) 212 CLR 124
(1984) 56 ALR 647
(1994) 181 CLR 41
(2002) 211 CLR 85
(1986) 160 CLR 392
(1976) 136 CLR 619
(1986) 161 CLR 423
(2003) 28 WAR 1
(1936) 55 CLR 367
(1995) 183 CLR 58
(2003) 27 WAR 554
(1989) 167 CLR 259
(2002) 211 CLR 193
(2005) 219 CLR 196
(1963) 111 CLR 610
(1963) 110 CLR 234
(1990) 171 CLR 30
(2003) 86 SASR 473
(1990) 171 CLR 312
(1986) 161 CLR 158
(2005) 80 ALJR 444
(2000) 200 CLR 234
(1964) 111 CLR 665
(1997) 143 ALR 498
(1995) 184 CLR 333
(1990) 3 WAR 466
(1996) 17 WAR 17