VELLA -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 48 (1 May 2024)

1. As stated, there were two applications before the court filed on 23 August 2023. These applications were filed in respect of each of the three appeals referred to at [24]. Each application was supported by affidavits sworn by the appellant. Prior to the oral hearing of the applications, the parties filed written submissions in relation to them.
2. The two applications, in effect, sought orders that:

(a) the three appeals be heard together;

(b) the appeals be heard by a coram of interstate judges;

(c) Bowden DCJ provide an affidavit in response to questions, put to him by the appellant, in a letter addressed to his Honour dated 5 September 2022;

(d) Bowden DCJ be summoned to give sworn testimony before the Court of Appeal, at a date and time to be notified; and

(e) the hearing of the appeals be listed for three days.

1. The respondent did not object to the making of an order that the three appeals be heard together.[3] Accordingly, the court made order (1) as set out in [1] above. The respondent opposed the making of the other orders sought by the appellant.

The application that the appeals be heard by interstate judges The appellant's submissions

1. In essence, the appellant submitted that a fair‑minded lay observer might reasonably apprehend that any judge of the Court of Appeal or the General Division of the Supreme Court of Western Australia might not bring an impartial and unprejudiced mind to the resolution of his appeals.
2. The appellant contended that an apprehension of bias arises, first, because any judge of the Court of Appeal or General Division would be sitting on a matter involving allegations of improper conduct by trial counsel, made against a 'fellow judge'.[4] In oral submissions, the appellant asserted that 'WA judges prioritise protecting their own lawyers and prosecutors above delivering justice'.[5] Secondly, as the Court of Appeal previously decided the appellant's first set of appeals adversely to him, there is a reasonable apprehension that despite any new, or fresh, compelling evidence, this court may prejudge his second appeals. Thirdly, the appellant also pointed to comments made in the earlier appeals by Wheeler and Buss JJA, which he claimed gave rise to an apprehension of bias held by their Honours, against him. He submitted that, their Honours having already sat on his appeal against the assault occasioning bodily harm conviction, Wheeler and Buss JJA may have prejudged matters that were also live issues in the wilful murder appeal.[6] Accordingly, the appellant submitted that '[p]rudent judges would have recused themselves'.[7] The appellant seems unaware that Wheeler JA has retired, although Buss JA (as Buss P then was) is still a serving member of this court. He also claimed that their Honours 'chose to ignore legal precedent and principles' in his earlier appeals. Finally, the appellant alleged that '[g]eographically, Perth has most of the State's lawyers and judges in about a square kilometer [sic]'. The appellant continued, 'This obviously breeds familiarity which might, or could, influence the conscious or subconscious minds of judges'.[8] We gather that, by this claim, the appellant submits that a reasonable apprehension of bias arises, because of the claimed geographical association of the legal profession and judges in the Perth CBD, in favour of his former defence counsel and against him.
3. In a sworn affidavit made in support of the present application, the appellant listed the names of the various judges who have previously made decisions relating to the appellant's criminal or civil proceedings in the Supreme Court of Western Australia. The appellant asserted that, because each matter involved allegations made against Bowden DCJ, those judges who had previously sat on those matters may prejudge issues raised in the appellant's second and subsequent appeals, which are also based upon allegations of misconduct made against Bowden DCJ.[9] It bears noting, however, that all of those judges have now retired, apart from Buss P and Hall JA. The appellant also noted that, in his civil proceedings against Bowden DCJ, his Honour was represented by Peter Quinlan SC, who is now the Chief Justice of this court.[10]
4. In support of his submissions, the appellant pointed to examples where interstate judges had previously been appointed to this court to deal with particular matters. One such example was the case of Mr Lloyd Rayney, a legal practitioner who was charged with the wilful murder of his wife, who was, at the time of her death, a registrar of the Supreme Court.
5. In oral argument, the appellant was asked to assist the court by explaining how it has the power to make an order that the three appeals be heard by a coram of interstate judges. The appellant was unable to point to any source of power.[11]

1. Before dealing with the merits of the appellant's application for the appointment of a coram of interstate judges to hear the appeals, it is necessary to address the preliminary question of whether this court has the power to make such appointments. The short answer is that it does not have the power.
2. The appointment of a coram of interstate judges, indeed, of any judge, to the Supreme Court is not within the power of the judicial arm of government. It is exclusively a matter for the Governor to decide.[12] A judge of the Supreme Court of another State or Territory is certainly eligible to be appointed as an acting judge of this court,[13] but such qualified persons must also be appointed by the Governor of Western Australia.[14] Section 11 of the Supreme Court Act 1935 (WA) makes no attempt to prescribe the procedures to be followed or the criteria to be applied in making such appointments, except insofar as s 11(2) requires the Governor to be satisfied that, for any reason, the conduct of the Supreme Court requires the appointment of an acting judge, and that appointment must be made by commission under the Public Seal of the State.[15] In all other respects, s 11 leaves it open to the Governor, and those responsible for advising him or her, to adopt such procedures as may be considered appropriate. This is a consequence of the different constitutional roles performed by the Judiciary and the Executive, in accordance with the doctrine of the separation of powers, at least to the extent to which the doctrine applies in this State.[16]
3. There have been times when an interstate judge has been appointed as an acting judge of the Supreme Court of Western Australia to hear and determine particular proceedings, both at first instance and on appeal. As the appellant noted, an interstate judge was appointed to conduct the judge‑alone trial of Mr Rayney,[17] and a coram of interstate judges was appointed to hear and determine the State appeal against Mr Rayney's acquittal: see The State of Western Australia v Rayney.[18] Those appointments were made by the Governor on advice from Executive Council, presumably because the victim of the alleged offence was a serving registrar of the Supreme Court. By contrast, in this matter, it may immediately be noted that Bowden DCJ is not, and has never been, a serving judicial officer of the Supreme Court.[19]
4. It may fairly be assumed that the Governor appointed the interstate judges in Rayney with cooperation from, and perhaps even at the request of, the then Chief Justice of the Supreme Court of Western Australia. In fact, s 10B(2)(a) of the Supreme Court Act provides that the Chief Justice and the President must agree that an individual appointed as a judge or acting judge of the Supreme Court should act as a judge of appeal in a particular proceeding. Such agreement must be reached before the Chief Justice may, in writing, authorise the judge or acting judge to sit on an appeal. But the appointments in Rayney were not, and could not have been, made by the Supreme Court itself. Nor could this court make any binding direction to the Executive government regarding how its members may advise the Governor. Insofar as the appellant's application may be taken to contend that this court has the power to order the appointment of a coram of interstate judges, or to direct members of the Executive government to make such appointments, the application must be dismissed.

1. Insofar as the appellant seeks this court, constituted by three judges of appeal, to disqualify all judges of this court on the basis of an apprehension of institutional bias,[20] the application cannot succeed. The appellant's assertion of apprehended bias on the part of one or more members of the court ultimately raises a question about the jurisdiction of the Court of Appeal to hear and determine these appeals.[21] However, it is the court constituted by not less than three judges of appeal that will have the institutional duty and jurisdiction to hear and determine the appeals, not other judges of appeal or the judges who form part of the General Division of the Supreme Court,[22] and the identities of the judges who are to constitute the Court of Appeal are yet to be determined.
2. In any event, when an application for recusal is made on the basis of an appearance of bias, the test to be applied is the 'double might' test. As explained in such cases as Johnson v Johnson,[23] the 'double might' test asks whether a fair‑minded lay observer might reasonably apprehend that the judge (or the court as a whole) might not bring an impartial and unprejudiced mind to the resolution of the question that is required to be determined.[24] The double 'might' serves to emphasise that the test is concerned with possibility, not probability. The test involves the notion of there being a reasonable apprehension of bias, which requires more than fanciful or speculative possibilities.[25]
3. The notion that every member of the Supreme Court might fail to bring an impartial mind to the resolution of the appellant's appeals because Bowden DCJ is a 'fellow judge' cannot be accepted. A fair‑minded lay observer would understand that it is the duty of any judge who sits in this court to decide criminal appeals brought to it under pt 2, pt 3 and pt 3A of the Act and to do so fairly, fearlessly and independently, without regard to the fact that performing that duty may require the judge to scrutinise the conduct of 'a fellow judge'. If it were otherwise, the administration of justice by this court would be rendered impossible. As Kirby P observed in Rajski v Powell:[26]

[T]he aspiration of the neutral application of the law and the achievement of justice according to law, requires of judges that, when dealing with a claim brought against a judicial colleague, they should be vigilant to uphold the lawful rights of litigants. This approach must regularly be taken, particularly in appellate courts, which are not unaccustomed to hearing allegations of error of fact and law, excess of jurisdiction and even bias on the part of judicial officers.

1. The appellant's contention that Western Australian judges prioritise protecting the interests of the lawyers who practise before them above their duty to deliver justice is without factual foundation. A fair‑minded lay observer would not consider the cordial professional relationship between the court and the local members of the legal profession as a basis to doubt the impartiality of this court as an institution.[27] So, too, is the notion that justice cannot be delivered to the appellant because members of the legal profession and judges work predominantly in the Perth CBD, and therefore within close physical proximity to each other.
2. The fact that this court and judges of the General Division have delivered decisions in the past against the appellant, and that he expects that the court will make further decisions adverse to him in these appeals, provides no proper basis to justify the recusal of all judges. As Mason J said in Re JRL; Ex parte CJL:[28]

It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.

1. While the appellant's application to disqualify all judges must fail, this does not mean that the appellant cannot bring an application for recusal directed to a particular judge or judges who constitute the Court of Appeal that is to hear and determine his appeals. At present, the appellant's appeals have not been set down for hearing. If, at the hearing of the appeals, the appellant wishes to apply for one or more of the judges sitting to recuse themselves, he should do so at that time. This is consistent with the approach taken by Newnes and Murphy JJA in Re The State of Western Australia; Ex parte Vella,[29] in which the appellant sought an interim order for those proceedings to be heard by interstate judges.

The application that the hearing of the appeals be listed for at least three days

1. The appeals have not yet been listed for hearing. It is solely a matter for the court to decide when the appeals will be heard and what time will be allocated to that hearing.
2. At the present time, the respondent has not filed an answer to the appellant's case in CACR 97 of 2023 and CACR 98 of 2023. The appeals are not yet ready for hearing. Accordingly, it is premature to estimate the length of the hearing of the appeals. Once the appeals are ready to be heard, the court will allocate hearing dates. The court may have regard to any estimate given to it by the parties as to the length of the hearing, but it will not be bound by those estimates in any way.

The application requiring Bowden DCJ to provide an affidavit and seeking leave to issue a witness summons to him

1. These matters may be dealt with together.
2. Amongst the materials filed by the appellant in his appeals was a handwritten letter from the appellant, addressed to Bowden DCJ and dated 5 September 2022. The letter was five pages in length and included various criticisms as to the manner in which his Honour conducted the wilful murder trial, particularly in connection with the partial defence of provocation. For example, the appellant criticised a decision, apparently made by his Honour, to not call a witness, David Berry. The appellant also criticised his Honour's failure to draw from witnesses the full extent of what he alleged to be Mrs Vella's provocative behaviour. In his letter, the appellant asked Bowden DCJ why his Honour omitted to amend the appellant's witness statement, per his instructions, to include evidence of Mrs Vella's alleged adultery. The appellant asserted that, taken together, these allegations amounted to a 'mismanagement' of his defence, which deprived him of his right to a fair trial according to law. The appellant concluded the letter as follows:
   1. I would like to know what you plan to do to correct this wrong you caused me. I'm not after revenge and am fully sensitive to your position but I want to know what you plan to do about this.
   2. Our justice system is an adversarial system for a reason. Evidence is properly tested by both sides. Do you believe in it? Do you believe in the jury system? At my trial I had two prosecutors!! Can you please explain.
3. According to the appellant, he received no reply to his letter. On 3 October 2022, the appellant sent a further handwritten letter to Bowden DCJ, requesting that his Honour reply to the previous letter by no later than 15 October 2022.[30] Again, the appellant says he has not received a response.
4. The appellant submitted, in effect, that this court should compel Bowden DCJ to provide an affidavit in response to the allegations made in the letter. The appellant further submitted that, if his Honour were to concede the allegations in the letter, which the appellant contended amount to 'coercion, improper inducement and unfair prejudicial tactics in the preparation and conduct of [his] trial', then his convictions must be quashed. Alternatively, if Bowden DCJ were to challenge the allegations in any way, then his Honour should be summoned to appear before this court, 'where his veracity will be put to the test'.
5. In his written reply to the respondent's submissions, the appellant stated more plainly that Bowden DCJ ought to be summoned 'to explain his "forensic decisions" which according to his sworn testimony ... where [sic] in my best interests'.[31]
6. We will assume for present purposes that this court does have the power to order Bowden DCJ to provide an affidavit. Even so, we would not order his Honour to provide an affidavit responding to the allegations posed in the letter dated 5 September 2022. The letter is largely assertive and argumentative, and does not require a response. Additionally, any response designed to explain why particular forensic choices were made at trial would be irrelevant to the resolution of the appeals. The criticisms made in the letter of 5 September 2022 and in the appellant's supporting affidavits essentially concern forensic choices made by his Honour as defence counsel for the appellant. In effect, the appellant seeks to review the wisdom or prudence of the manner in which the defence case was conducted at trial. However, it is well established that, in an appeal that alleges a miscarriage of justice by reason of the conduct of defence counsel, the inquiry is an objective one. The focus of inquiry must be upon the consequences of the alleged incompetence of counsel and the extent to which it caused or contributed to a miscarriage of justice, rather than upon the cause or nature of the incompetence alleged. In this regard, the subjective views or reasoning of counsel for an incompetent act or omission are irrelevant. If the court concludes that a forensic choice taken by trial counsel could reasonably be explained on the basis that it was taken for the purpose for obtaining a forensic advantage, then that is the end of the inquiry.[32] An apparently rational decision by trial counsel does not give rise to a miscarriage of justice simply because an appellate court thinks it worked to the probable disadvantage of the appellant.
7. There is therefore no practical utility in requiring Bowden DCJ to provide an affidavit, nor is there any practical utility in summoning his Honour to give evidence at the hearing of the appeals.
8. For these reasons, save for the application to have all three appeals heard together, the applications of 23 August 2023 were dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[4] Appellant's submissions, filed 15 November 2023, pars 1 ‑ 2.

[6] Appellant's submissions, filed 15 November 2023, par 3.

[7] Appellant's affidavit, sworn 24 July 2023, par 17.

[8] Appellant's submissions, filed 15 November 2023, par 3.

[9] Appellant's affidavit, sworn 24 July 2023, pars 1 - 13.

[10] Appellant's affidavit, sworn 24 July 2023, pars 6 - 8.

[12] Supreme Court Act 1935 (WA), s 7A(1) and s 7A(3). See also s 7A(11).

[13] Supreme Court Act, s 8(2)(a).

[14] Supreme Court Act, s 11(2).

[15] See Attorney‑General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 16 - 17 (Mason CJ).

[16] See Attorney‑General (NSW) v Quin (18 ‑ 19) (Mason CJ), (33 ‑ 34) (Brennan J).

[17] The State of Western Australia v Rayney [No 3] [2012] WASC 404.

[18] The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1.

[19] Accordingly, this case can be distinguished from others such as Heydon v NRMA Ltd [2000] NSWCA 374; (2000) 51 NSWLR 1, which was heard by a coram of interstate judges because the subject matter of the appeal involved allegations of professional negligence that were brought against a judicial officer of that same court.

[20] See Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 [15].

[21] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 [26] (Kiefel CJ & Gageler J), [65], [92] (Gordon J), [121] (Edelman J), [304], [309] (Jagot J).

[22] Supreme Court Act 1935 (WA), s 57(1), s 57(2)(b).

[23] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].

[24] See also QYFM [37] (Kiefel CJ & Gageler J), [274] (Jagot J); Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136 [17].

[25] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, 553. See also Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275 [102].

[26] Rajski v Powell (1987) 11 NSWLR 522, 532, cited with approval in Re The State of Western Australia; Ex parte Vella [No 2] [2012] WASCA 272 [15].

[27] Legal Practitioner v Law Society of the Australian Capital Territory [2018] ACTSC 351 [47].

[28] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, 352. See also Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78, 86 (Brennan, Gaudron & McHugh JJ).

[29] Re The State of Western Australia; Ex parte Vella [2012] WASCA 179.

[30] Appellant's affidavit, sworn 24 July 2023, par 2.

[31] Appellant's reply, filed 15 December 2023, par 10.

[32] See Huggins v The State of Western Australia [2018] WASCA 61 [375] ‑ [382], [400], cited with approval in RMM v The State of Western Australia [2018] WASCA 183 [123] and Jeffery v The State of Western Australia [2018] WASCA 219 [172].