Court of Appeal (WA)|2006-01-25|Before: Smith JA

Vella v The State of Western Australia [2006] WASCA 30 (25 January 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : VELLA -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 30

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Appeal - Application for leave to appeal against conviction - Selfrepresented litigant - Whether miscarriage of justice resulted from guilty plea - New or fresh evidence on appeal - Whether reasonable prospect of succeeding - Turns on own facts

Appeal dismissed pursuant to r 43(2)(g)(i) Supreme Court (Court of Appeal) Rules 2005 (WA)

Borsa v The Queen [2003] WASCA 254

Hogue v The State of Western Australia [2005] WASCA 102

1 ROBERTS-SMITH JA: On 11 March 2005, following trial before Simmonds J and a jury, the applicant was convicted of the wilful murder of his wife on 29 December 2003. At the sentencing hearing on 22 April 2005 the applicant pleaded guilty to three charges by way of a s 32 notice under the Sentencing Act 1995 (WA).

2 Charge number 9780 of 2003 alleged that on 12 November 2003 at Kallaroo, he unlawfully assaulted his wife and thereby did her bodily harm. Charge number 2440 of 2004 alleged that on 28 November 2003 and 29 December 2003 at Kallaroo, having been personally served with a violence restraining order, he breached that order by entering 14 St Ives Loop, Kallaroo, and behaved in a manner that breached the peace.

3 The facts of the offences were outlined to the trial Judge and the applicant's counsel acknowledged that he had pleaded guilty in the Court of Petty Sessions to those charges at an earlier stage.

4 In the event, the applicant was sentenced to 18 months' imprisonment on the assault occasioning bodily harm count to be served concurrently with the sentence of strict security life imprisonment his Honour imposed in respect of the wilful murder.

5 By notice filed on 27 July 2005 the applicant applied for leave to appeal against conviction of the offence of assault occasioning bodily harm. The sole ground of appeal was set out on the appeal notice as "New/Fresh Evidence, Code Sec 22, 23, 248, 249, 250".

6 The application was supported by an affidavit also filed 27 July 2005 in which the applicant, in effect, sought an extension of time. The Appellant's Case was filed on 27 November 2005 in which he set out four grounds of appeal. They are:

"1. There was a miscarriage of justice in that police gave 'legal' advice to a guilty plea. Error of fact

2. There was a miscarriage of justice in that legal aid lawyer did not advice [sic] on defence options. Error of Law and Fact.

3. There was a miscarriage of justice in that my barrister did not give me proper legal advice after my guilty plea and led me to believe that as I pleaded 'Guilty' I could not change my plea. Error of Law and Fact

4. New/Fresh evidence became available after my plea and after sentencing. Error of Fact."

7 The applicant's submissions recite matters of fact which are not the subject of evidence. They are largely a factual narrative of his and other people's activities and things he has been told or what other people have said. Some idea of how the applicant seeks to approach the matter may be discerned from what appears under the headings "Orders wanted". There he states:

"1. The conviction be quashed and complete acquittal to Assault Occasioning Bodily Harm

2. As per the Criminals Appeals Act 2004, s 40(1)(b) interview the following witnesses to adduce Fresh/New evidence, cross examine on prior inconsistent statements which my lawyer did not do in court, due to negligence."

9 The facts as outlined to the Court in relation to this matter by counsel for the State, Mr Mactaggart, were (and I refer to t/s 351 of 22 April 2005) that on Wednesday, 12 November 2003 the deceased, Mrs Vella, and the applicant went on a river cruise with a relative visiting from England. (I interpose here to observe that counsel for the applicant later pointed out that the applicant himself had not gone on that cruise).

10 In any event, Mrs Vella arrived home about 7 pm. According to the State prosecutor the applicant wanted to talk with her about dinner and why she was late getting home. An argument developed and Mrs Vella went to the back of the house. The applicant followed her to the back and used his left hand to grab her on her face and made her nose bleed and her head hit the back of the wall behind her.

11 There was a tussle between them in which Mrs Vella fought the applicant off and walked into the house and into the laundry where she was followed by him. The altercation between them, such as it was, according to Mr Mactaggart, continued with Mrs Vella standing on a set of stairs and the applicant then pushing her backwards, causing her to fall down the stairs, causing the injuries the subject of the charge.

12 She hit her right hand ribcage on the stairs, fracturing three ribs, puncturing her right lung (as had been alluded to in the course of evidence at the trial) and striking the back of her head on the stairs causing her to lose consciousness for a short period. She told the Judge that when she woke up she told the applicant she could not breathe and to call the hospital. However, he refused to let anyone call for help and pulled all of the house phones out of their sockets.

13 He eventually allowed one of the children of the marriage to call one of her friends (and again, evidence of that had been given at the wilful murder trial). That friend arrived shortly afterwards and took Mrs Vella to hospital where she was found to have sustained fractured ribs, a collapsed lung, bruising to her ribs, swelling and tenderness to her right jaw and swelling to the back of her head.

14 It is important to appreciate that the applicant actually gave evidence on oath at his trial about these matters, as did other witnesses. The trial to which I refer is of course that of his trial for wilful murder. At t/s 249 the account given by the applicant was broadly in the following terms; on that day his wife had booked to go on a river cruise with her uncle. Prior to her leaving, the two of them had discussed what they were going to have for dinner because the day before he had pulled a pin out of his crushed thumb and his thumb had swollen up so he could not do anything. They were discussing whether they were going to have pizza or a tuna salad, with him assuming that she was going to be there for the evening meal. He said she went off about 8 o'clock from home on the bus to go on the cruise but at 6 o'clock had not returned.

15 He was getting concerned because that was normally when the children ate. He said that, to cut a long story short, he got in the car and went and purchased a pizza for each of them. When they returned they had the pizza. He then phoned his wife twice on her mobile but got no reply. When he rang a third time he got a reply with her telling him that she was just on her way. She was coming and was on the train.

16 Eventually, he said, she got home about 7.00 pm. He said to her that this had got to stop and that he had to have a chat with her. When she did arrive home she was with her uncle. The applicant said that he wanted to talk to her, that it had to stop because she was neglecting everybody. He said he noticed that the uncle, Brian, was very drunk at the time and again asked whether he could have a word with his wife.

17 Further on in evidence-in-chief, the applicant said that when the man described as Brian moved aside his wife took two steps, came up to his face and said she did not want to talk to him. That caught him by surprise. He said, "What do you mean you don't want to talk to me?" and he said he pushed her against the wall. The transcript records that he was demonstrating a motion of grabbing his wife with an open hand, the palm of his hand around her chin and pushing her.

18 He said, "What do you mean you don't want to talk to me?" and he said he pushed her back and she came into contact with the wall. Then they started shouting. He told her that she was supposed to be there for the evening meal because she knew he could not cook. According to him she said no, they were going to have pizza. Then she told him that she went for a job: a verbal argument between the two of them followed.

19 He then said that sort of settled and they were walking downstairs when she came from behind and punched him on the ear. In his evidence he said that he lost his temper when she punched him from behind and he grabbed her by her hair and took her to the laundry door. At the door, he said, "Don't you ever hit me from behind," and then she started flailing at everything.

20 He said their son got involved. He came in between them and at that stage he, the applicant, was more concerned about his wife hitting the child than him, and just kept on pushing her back and back. He said she took two steps and fell backwards up the stairs, not down them. She did sustain injuries because when she fell she said she could not get up. He said he thought she was making it up but then realised that she could not breathe.

21 So, he said, the first thing he then did was to pick her up and put her on a chair, which in hindsight he thought might have caused the punctured lung. When she had calmed down she kept saying she could not breathe. He said, "I had first pulled the plugs out of the wall so that my son doesn't [sic] call because I thought she was making it up, but when I realised it was true I told him to call Dianne." That was a reference to Dianne Talbot, who came over straightaway and took his wife to the hospital.

22 He then confirmed that he had been charged with an offence arising out of that and he had pleaded guilty to it.

23 The facts upon which the applicant was sentenced by the Judge were stated by his Honour at t/s 379. There, his Honour said:

"On 12 November 2003 you were at the house at Kallaroo with your four sons when your wife returned from a river cruise with a relative visiting from England. You ushered her outside to discuss dinner and why she was late home. An argument ensued and your wife went back inside. You followed her in and you took hold of her face with enough force to make her nose bleed and the back of her head hit the brick wall behind her. She fought you off. You followed her into another room.

Another fight broke out, to which she may have contributed and you pushed her backwards causing her to fall. As a result of the fall she suffered fracturing of three ribs and also as a result of the fall or perhaps of you picking her up afterwards her right lung was punctured. She sustained a blow to the back of her head and lost consciousness for a short time. After some initial resistance by you that did not last long, but was marked, your wife was taken to hospital for treatment."

24 I come now to ground 1, that police "gave legal advice to a guilty plea". To succeed on an appeal against conviction where an applicant has pleaded guilty is no easy thing; the applicant would have to show there was a miscarriage of justice (Borsa v The Queen [2003] WASCA 254 per Steytler J at [20]; Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496). Any circumstance which demonstrates that there has been a miscarriage of justice will suffice: the categories are not closed.

25 However, as Wheeler JA pointed out in Hogue v The State of Western Australia [2005] WASCA 102 at [22], three of the well-recognised circumstances are where the applicant did not understand the nature of the charge or did not intend to admit guilt, that is, the plea was equivocal, where upon admitted facts the applicant could not be guilty and where the plea is obtained by improper inducement, fraud or intimidation. Ground 1 seems to be directed to improper inducement.

26 The applicant says in his submissions that when he was interviewed by the police at Joondalup and following the interview, a police sergeant told him "off the record" that if he pleaded guilty, he might not get a criminal record as it was his first offence and that the going rate with the Magistrate at the time was that he might have to do an anger management course and the conviction would be on his police record but not show if he applied for jobs "et cetera". He said that matter was discussed with the Legal Aid lawyer in Perth.

27 There is no evidence of what the applicant asserts in his submissions, but even if there were it would not go to the integrity of his plea of guilty to the charge by way of a notice under s 32 of the Sentencing Act, on the advice of his trial counsel. In my view, this ground has no reasonable prospect of success and leave to appeal in respect of it is refused.

28 Ground 2: In his submissions the applicant says that when he went to see a Legal Aid lawyer in Perth and told her what happened, he discussed whether the deceased could withdraw charges as he still felt it was a misunderstanding and that the Legal Aid lawyer advised him that the police had enough medical evidence to prosecute. He said that the defence options were not discussed, and he refers to various provisions of the Criminal Code including s 22, s 23, s 245, s 246 and others.

29 This ground suffers the same deficiency: there is no evidence to support it and for the applicant to simply assert "defence options not discussed" and refer to various sections of the Criminal Code is quite insufficient. The applicant has not advanced anything to satisfy me this ground would have a reasonable prospect of succeeding. Leave to appeal in relation to this ground is refused.

30 Ground 3: Again in his submissions, the applicant recites a number of issues, beginning with the engagement of a lawyer, Mr Dawson, to represent him in family matters and that he started gathering evidence about the deceased to see what, as he put it, was really going on in early December 2003. He soon discovered, he said, that things were not right. He gave Mr Dawson a copy of Rebecca Berry's letter to his wife, which became Exhibit 7 in the trial, and a written note by him giving, as the applicant puts it, "evidence that he was set up" and photographic evidence that his wife was in a relationship.

31 The applicant expands on this somewhat - in his oral submissions to me today - by indicating that the way in which he was set up was that his wife is said to have told Ms Berry, and indeed others, that she would give him an opportunity to strike her, so as to make it easier for him to leave. The applicant goes on in his submissions to say that a photograph of the deceased's car next to a Mr Susta's car, at the latter's house, was taken at 5 am. The photograph, he says, was in his briefcase or cupboard at 5 Gwedue Court, Mullaloo. That is an item which was the subject of his application this morning for, as he described it, full disclosure by police or the prosecution.

32 He talks in his submissions about having shared his belief with Joan Forlonge and Dianne Talbot. I take it this is also a reference to some evidence - or material - relating to these matters which he sought to obtain from the police, but originating from the deceased's former solicitor. He says he also asked Mr Bowden, his solicitor at the time, if he could change his plea, to which he replied words to the effect that the applicant had already pleaded. This was a reference to the fact that he had pleaded guilty in the Court of Petty Sessions, but that matter was then deferred pending the wilful murder trial.

33 The applicant then refers to a video of his police interview in relation to the assault occasioning bodily harm, and that his lawyer did obtain that video, although the applicant says that when he retrieved it from his lawyer it turned out to be a video of another person. The substance of these assertions and complaints seems directed more to the wilful murder conviction. The video to which Mr Vella refers was produced to me at a directions hearing on 10 November 2005. It was not necessary for me to watch it at the time because the short point the applicant wished to make about it was that it was not him being interviewed by the police.

34 I did subsequently view the video to see whether that was so and can confirm it was not him on that video, MN161613, of 15 April 2003, made at the Wembley detectives office. It was another person who gave the same name and who was being interviewed about something completely different. That tape was quite irrelevant to any charge against the applicant. On the basis of that it must logically be accepted that the applicant's trial counsel had not viewed the tape.

35 The question is, what does this mean to the applicant's conviction of assault occasioning bodily harm? It cannot be a matter of counsel's advice to the applicant having been based upon admissions made on a tape wrongly attributed to him. The tape cannot have influenced counsel's advice either way. The applicant does not suggest, and there is certainly no evidence, that what was on the "true" tape would have entirely exculpated him for any extraneous reason. Indeed, it must be observed that, had what was on the tape been purely exculpatory, it would have been inadmissible in any event.

36 As I have noted, the applicant in fact gave evidence about this particular incident at his wilful murder trial, at the conclusion of which he was sentenced for both wilful murder and the assault occasioning bodily harm offence. The applicant tells me today that there was no significant variation between the account he gave the police and the account he gave in evidence before the Judge and jury at his wilful murder trial.

37 That being so, it seems to me the video issue is, in effect, a non-issue for the purposes of this application.

38 The letter from Rebecca Berry to the applicant's wife could not give rise to any defence which might have availed the applicant. It was not from his deceased wife and it was not to the applicant.

39 Likewise, it is not shown how the other matters referred to give rise to any doubt about the integrity of the applicant's plea to the charge of assault occasioning bodily harm. This ground has no reasonable prospect of success. Leave to appeal is refused.

40 Ground 4 appears to turn on an account given by the applicant in his submissions that, following his incarceration, friends of his deceased wife and himself visited him: apparently a Mr and Mrs Smith. During the conversation he says it came out that they had visited his deceased wife a few days prior to Christmas and she had admitted that she was drunk when the assault took place. He says he knew she had had a few drinks but did not know she was drunk. Further, he says this explains why, when he pushed her backwards, she took a few steps and lost her balance so easily, which resulted in her falling on the stairs.

41 He then makes some comments about the deceased making a phone call ostensibly to a Dr Brockhoff but apparently to Mr Susta, which he indicates he is now in a position to prove. What the applicant says he was told by Mr and Mrs Smith when they visited him in prison is not admissible. Nor is it at all specific. It is vague in the extreme and the conclusions he seeks to draw from it are completely speculative.

42 Neither that nor the other matters to which he adverts here, including the phone records concerning the telephone call by his wife after he had assaulted her, raise any issue demonstrating a miscarriage of justice flowing from his plea of guilty to this charge. This ground has no reasonable prospect of succeeding. Leave to appeal is refused.

43 As leave to appeal is refused in respect of each ground, the appeal is dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA).

Court (Court of Appeal) Rules 2005

Criminals Appeals Act 2004

Vella v The State of Western Australia [2006] WASCA 30

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Vella v The State of Western Australia [2006] WASCA 30 (25 January 2006)

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