VELLA -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2025] WASCA 70 (9 May 2025)

Practice and procedure - Interim applications - Application for recusal - Application for proceedings to be heard by coram of interstate judges - Whether association between members of the legal profession and judiciary in this State creates reasonable apprehension of bias - Applications for bail pending appeal - Application for adjournment so appellant may seek writ of mandamus from High Court

Criminal Appeals Act 2004 (WA), s 23, s 27, s 35B, s 35D, s 35E, s 35F, s 35G

Criminal Code (WA), s 278 (repealed), s 281 (repealed), s 282 (repealed), s 317

Sentencing Act 1995 (WA), s 31, s 32, s 33

Supreme Court (Court of Appeal) Rules 2005 (WA), r 28A

1. On 11 March 2005, after a four‑day trial in the Supreme Court before Simmonds J and a jury, the appellant was convicted of the wilful murder of his wife, Ruth Vella, contrary to s 278 (repealed) and s 282 (repealed) of the Criminal Code (WA) (the Code).
2. On 22 April 2005, the appellant was sentenced for the wilful murder offence. Pursuant to a notice under s 32 of the Sentencing Act 1995 (WA), the appellant's counsel requested that he also be sentenced in respect of two summary offences, commenced by complaint, which had been before the Joondalup Court of Petty Sessions. The first of these was one count of assault occasioning bodily harm, contrary to s 317(1) of the Code (the AOBH offence). The second was one count of breaching a violence restraining order, contrary to s 61(1) of the Restraining Orders Act 1997 (WA) (the breach of VRO offence). In each case, Mrs Vella was the alleged victim. The appellant pleaded guilty to both of these offences.
3. Simmonds J imposed the following sentences:

Wilful murder: Strict security life imprisonment, with a non‑parole period of 20 years' imprisonment

His Honour ordered that the sentences for the summary offences be served concurrently with the sentence for the wilful murder offence.

1. The appellant appealed against his convictions for the offences of wilful murder and assault occasioning bodily harm pursuant to pt 3 of the Criminal Appeals Act 2004 (WA) (the CAA).[1] Those appeals were dismissed (the appellant's first appeals): see Vella v The State of Western Australia [2006] WASCA 177; Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411; Vella v The State of Western Australia [2006] WASCA 30; Vella v The State of Western Australia [2006] WASCA 129.
2. The appellant applied to the High Court of Australia for special leave to appeal in respect of each of his appeals against conviction. These applications, and a later application to reopen the respective applications for special leave, were also dismissed.[2]
3. In addition to the criminal proceedings referred to above, the appellant has brought, or sought to bring, two civil actions; each, in effect, aimed at undermining the convictions. It is only necessary to refer to one of these actions. The appellant commenced civil proceedings against his counsel in the criminal proceedings, Mr M J Bowden (now his Honour Bowden DCJ.[3] In these reasons, we will refer to him as Mr Bowden or defence counsel). A substantial portion of these claims were struck out as an abuse of process, essentially on the basis that they involved a collateral attack on the appellant's convictions and the decisions of this court in the associated criminal appeals: see Vella v Michael John Bowden of Cannon Bowden & Co,[4] and Vella v Bowden [No 2].[5] On 1 April 2014, the balance of the claims against Mr Bowden were dismissed after trial by Kenneth Martin J: Vella v Michael John Bowden of Cannon Bowden & Co [No 3] (the 2014 proceedings).[6]
4. Up until 1 January 2023, an offender had only one appeal (with leave) against conviction of an offence on indictment. An offender was not entitled to commence multiple appeals against the same conviction.[7]
5. However, on 1 January 2023, pt 3A of the CAA commenced operation; with retrospective effect.[8] Part 3A confers a second or subsequent right of appeal against conviction of an offence on indictment (with leave), but only in circumstances confined to there being fresh and compelling evidence, or new and compelling evidence, relating to the offence.[9] This brings us to the present proceedings.

1. On 23 August 2023, the appellant filed appeal notices, purportedly pursuant to pt 3A of the CAA, in respect of his convictions for wilful murder (CACR 97 of 2023) and the AOBH offence (CACR 98 of 2023).
2. Also on 23 August 2023, the appellant filed an appeal notice in which he sought leave to commence, 18 years out of time, an appeal against conviction for the breach of VRO offence (CACR 99 of 2023). To be clear, this is not a second or subsequent appeal under pt 3A of the CAA. Rather, it is an appeal pursuant to pt 3 of the CAA. Leave to appeal is required in a pt 3 appeal,[10] although, as will be seen, the test for a grant of leave to appeal in a pt 3 appeal is much less demanding than that which applies in a pt 3A appeal.
3. The principal issue to be decided in these proceedings is whether the appellant should be granted leave to appeal in respect of the appeals referred to at [9] and [10] above.
4. For the reasons that follow, in each matter, leave to appeal should be refused and each appeal is therefore taken to be dismissed.

1. At the outset of the hearing before this court on 13 August 2024, the appellant sought that all members of the coram recuse themselves from hearing and determining his applications for leave to appeal, on the basis that a fair‑minded lay observer might reasonably apprehend that each member of the coram might not bring an impartial and unprejudiced mind to the resolution of the proceedings before the court.[11] The appellant contended that no judge of the Supreme Court of Western Australia could properly sit in these proceedings. He submitted that only a coram of interstate judges should sit. The appellant raised similar arguments at an earlier directions hearing before this court: see Vella v The State of Western Australia.[12]
2. As the appellant's reasons for seeking the recusal of the coram applied to each member, the parties' submissions were made in the presence of the coram as a whole. At the conclusion of oral argument, and after a short adjournment, the court announced that each member of the coram was independently, and collectively, satisfied that no reasonable apprehension of bias existed in respect of any individual member of the coram, nor the coram as a whole. Accordingly, in each appeal, the application for recusal was dismissed. The court said that its reasons for those conclusions would be published at a later date. These are our reasons.
3. The test to be applied in respect of an allegation of apprehended bias is well settled and need not be repeated. It was recently described by Gordon J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[13]
4. The appellant submitted that a fair‑minded lay observer might reasonably apprehend that each member of the coram might not bring an impartial and unprejudiced mind to the resolution of the present proceedings because of the following combination of factors:

(a) in the appellant's previous conviction appeals, Wheeler JA allegedly exhibited actual bias against him;

(b) Wheeler and Buss JJA allegedly misinterpreted the law of provocation in the first wilful murder conviction appeal to 'protect' Mr Bowden;

(c) Buss JA (now Buss P) remains a serving member of the Court of Appeal;

(d) Mr Peter Quinlan SC (now Quinlan CJ) was counsel for Mr Bowden in the 2014 proceedings;

(e) the close professional and physical proximity of the judiciary of the Supreme Court of Western Australia to other judges (including judges in its own and other courts, such as the District Court); and

(f) this court's reasons for dismissing the appellant's previous applications for recusal in Vella v The State of Western Australia [2024] WASCA 48, by which it became 'blatantly obvious the coram was neither interested in the facts or the truth'.

1. In our opinion, there is no merit in these submissions.
2. The allegation in par (a), that Wheeler JA acted with actual bias against the appellant, is without foundation. So, too, is the proposition in par (b), that Wheeler and Buss JJA misinterpreted the law of provocation as it then applied to the crime of wilful murder.[14] In Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411, Wheeler and Buss JJA held that the appellant's complaints about provocation (grounds 18, 19 and 20), as dealt with by Roberts‑Smith JA in Vella v The State of Western Australia [2006] WASCA 177, lacked substance. This conclusion is plainly correct. As to the propositions in par (c) and par (d), neither Buss P nor Quinlan CJ are, or have ever been, part of the coram in the present proceedings. Their current positions within the Supreme Court of Western Australia do not give rise to a reasonable apprehension of bias by any member of the current coram.
3. As explained in Vella v The State of Western Australia [2024] WASCA 48 [40], the notion that a judge of the Supreme Court who is appointed to sit on these proceedings might fail to bring an impartial mind to the resolution of the appellant's appeals merely because Mr Bowden was a member of the legal profession, or is now 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, whether under pt 2, pt 3, or pt 3A of the CAA; 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'. It is anathema to a judge to decide a case in a particular way in order to preserve the sensitivity, status or reputation of the judge whose decision is under appeal. We repeat the observation of Kirby P in Rajski v Powell:[15]

[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. This court, on a daily basis, is required to decide appeals brought against the decisions of a 'fellow judge'. As the thousands of decisions of this court reveal, this is simply what appellate judges do every day.[16] The appellant's case is no different.
2. As to par (e), also, as this court observed in Vella v The State of Western Australia [2024] WASCA 48 [41], a fair‑minded lay observer would not consider that justice cannot be given to the appellant simply because members of the legal profession and judges work predominantly within the Perth CBD, and therefore within close physical proximity to each other.
3. The appellant drew this court's attention to the case of Mr Lloyd Rayney, in which an interstate judge was appointed to conduct his judge‑alone trial for the charge of wilful murder,[17] and a coram of three interstate judges was later appointed to hear the State's appeal against Mr Rayney's acquittal.[18] The appellant also referred the court to the recent case in which a then‑serving judge of the Supreme Court of Tasmania, Geason J, was charged summarily with two criminal offences. In that case, all serving Tasmanian magistrates recused themselves,[19] and a magistrate from interstate was appointed to preside over his trial and sentencing.[20] The appellant regards these cases as analogous to his case.
4. In truth, there is no analogy. Both of the cases referred to by the appellant are, factually, very different from the present case. In the case of Mr Rayney, an interstate judge (and, on the State appeal, a coram of interstate judges) was appointed in circumstances where the deceased was, at the time of her death, a registrar of the Supreme Court; that is, the very court that would be required to try Mr Rayney and hear any appeal. In the case of Geason J, he was a serving Supreme Court judge charged with criminal offences before a magistrate, who occupies a lower position in the same judicial hierarchy.
5. Nothing raised by the appellant would give rise to a reasonable apprehension, in a fair‑minded lay observer, that any member of this coram might not bring an impartial or unprejudiced mind to the questions to be decided in these proceedings. For these reasons, we were each independently, and collectively, satisfied that there was no impediment to any member of this coram sitting on the applications for leave to appeal.

1. The State case in respect of the offences was as follows.[21]
2. The appellant and Mrs Vella lived with their four children at their home in the suburb of Kallaroo.
3. On 12 November 2003, Mrs Vella and a relative, who was visiting from England, had gone on a river cruise. At about 7.00 pm, Mrs Vella returned to the home, following which an argument developed. In the course of the argument, the appellant grabbed Mrs Vella's face with his left hand with enough force to cause her nose to bleed, and the back of her head hit the brick wall behind her. A tussle between the two ensued. Mrs Vella then went into the laundry. The appellant followed her. There, the altercation continued and the appellant pushed Mrs Vella, causing her to fall backwards down a flight of stairs. She hit her ribcage on the stairs and lost consciousness for a short period of time. When she regained consciousness, she told the appellant to call the hospital because she could not breathe. In response, the appellant went around the house and pulled all of the telephones out of their sockets. Eventually, Mrs Vella was taken to hospital. There, she was found to have sustained three fractured ribs, a collapsed lung, bruising to her ribs, swelling and tenderness to her right jaw, and swelling to the back of her head.
4. On 13 November 2003, the Court of Petty Sessions at Joondalup made an interim violence restraining order against the appellant, arising out of the incident the day before. The violence restraining order prohibited the appellant from entering upon the home, or being within 100 m of the nearest external boundary of the premises. It also prohibited the appellant from behaving in an intimidatory or offensive manner towards Mrs Vella, and from behaving in a manner likely to lead to a breach of the peace. The order also required the appellant to leave the family home. On 20 November 2003, the appellant was served with the interim violence restraining order.
5. On 17 November 2003, the appellant was charged by complaint (JO 9780 of 2003) in the Joondalup Court of Petty Sessions that on 12 November 2003 at Kallaroo, he unlawfully assaulted Mrs Vella and thereby did her bodily harm, contrary to s 317(1) of the Code. On 18 November 2003, the appellant, after receiving legal advice from a Legal Aid lawyer, pleaded guilty to the charge.
6. At various times late in the evening of 28 December 2003 and in the early hours of 29 December 2003, in breach of the violence restraining order, the appellant attended the family home. He saw Mrs Vella with another man, Mr S. Eventually, he watched the man leave the home. After the man left, the appellant forcibly entered the home and then the bedroom occupied by Mrs Vella. He was armed with a knife he had recently purchased and subsequently sharpened. He was also armed with a baseball bat. At the time, the appellant's youngest child, then aged about 5 years, was present in the room. While Mrs Vella lay in her bed, and still in the presence of the appellant's 5‑year‑old son, the appellant struck four heavy blows to Mrs Vella's head using the baseball bat; inflicting injuries that would have alone been sufficient to cause her death. She also suffered substantial injuries to her left wrist and elbow as she attempted to fend off at least some of these blows. The appellant then used the knife to inflict a catastrophic wound to her neck. On its own, this injury would also have been sufficient to cause her death, and Mrs Vella died almost immediately.
7. The State's case was that the appellant went to the home armed with the baseball bat and the sharpened knife. He then forcibly entered the home and Mrs Vella's bedroom, where he killed her by bashing her with the baseball bat and cutting her throat. Having regard to all the circumstances, it was plain that the appellant intended to kill his wife. Any notion that the appellant did not intend to kill his wife or that, if he did form such an intention, he did so under provocation, was fanciful.

1. On arraignment at his trial, the appellant pleaded guilty to manslaughter. This plea was not accepted by the State in satisfaction of the indictment. The appellant admitted, pursuant to s 32 of the Evidence Act 1906 (WA), that he had unlawfully killed Mrs Vella. The only live issues at the trial related to the appellant's intention at the time that he killed Mrs Vella and whether he had done so under provocation pursuant to s 281 (repealed) of the Code.
2. The appellant testified in his defence. He was the only defence witness.[22]
3. The appellant testified that his wife travelled to England in around March or April 2003. Prior to doing so, their relationship was 'normal'. However, upon her return, he reportedly noticed changes in her appearance and in her demeanour.
4. The appellant testified that, after her return from England, his wife obtained employment at the Glengarry Tavern. She then purchased a mobile telephone after receiving her first pay and began texting 'left, right and centre', and 'going out a lot more'.[23]
5. The appellant further testified that, in late October 2003, a relative of Mrs Vella's known as 'Uncle Brian' arrived from the United Kingdom. The appellant noticed that Mrs Vella spent a lot of time with him. He also noticed that, when she was working, Mrs Vella often stayed behind for 'after drinks' and would come home at about 1.00 am or 2.00 am. It also came to the appellant's attention that his wife was going out with Uncle Brian and another person (Mr S). On one occasion in early November 2003, the appellant said that he saw Mrs Vella give this person 'a quick kiss'.[24]
6. The appellant said that, at about this time, Mrs Vella told him that she had been 'sacked' from the Glengarry Tavern.
7. The appellant testified about the events of 12 November 2003. He said that Mrs Vella and Uncle Brian spent the day on a river cruise. Mrs Vella and Uncle Brian did not return home in time for Mrs Vella to cook dinner for their children, as the appellant had expected. When they did return, the appellant attempted to speak to his wife about how, in his opinion, she had been neglecting their family. As he did so, Mrs Vella took two steps towards him and said, 'I don't want to talk to you'. This took him by surprise. The appellant reacted by pushing her backwards, into a wall. After this, events 'sort of ... settled'. However, according to the appellant, Mrs Vella suddenly came from behind and punched him in the ear. The appellant then lost his temper. He grabbed Mrs Vella by her hair and took her into the kitchen, where she started 'flailing and everything'. One of their sons then 'got involved'. The appellant kept pushing Mrs Vella backwards. Mrs Vella took two steps and fell backwards up, not down, the stairs, sustaining serious injuries.
8. The appellant agreed, in his evidence, that he was charged with the AOBH offence and that he pleaded guilty to it.[25]
9. The appellant also agreed that he was served with a violence restraining order, as a result of which he left the family home.
10. The appellant testified to the effect that, initially, he thought he and his wife might get back together, but, after he found out that Mrs Vella had started a relationship with another person, he was 'not very keen' and began to prepare for Family Court proceedings, including proceedings in respect of the custody of their children.
11. The appellant admitted that, on 27 December 2003, he purchased a knife and an item of clothing referred to interchangeably at trial as either a black beanie or a woollen cap. He said that he purchased the knife to slash the tyres of a vehicle that, apparently, belonged to Mr S, a man who he believed Mrs Vella was dating. He purchased the beanie to hide his identity. On 28 December 2003, he purchased a sharpening stone. He used the sharpening stone to sharpen the knife. The appellant said that he did this because he did not believe the knife was sharp enough to cut the tyres.
12. In the early hours of 29 December 2003, the appellant drove to the family home. He did so to find out if Mr S was there. Upon the appellant's arrival at the home, he saw a vehicle that he did not recognise. He said that he thought Mrs Vella 'was cheating on [Mr S]'.[26]
13. The appellant testified that he looked through one of the lounge room windows and saw Mrs Vella and the back of a man. He noticed that Mrs Vella was smoking a cigar. The appellant rang 000 and reported that people in the house were smoking marijuana. Altogether, he made three telephone calls to the police to this effect, within the space of one hour.
14. The appellant said that, ultimately, he returned to the family home. He went there with the sharpened knife and a baseball bat. After parking his car nearby at the country club, he walked to the home carrying the knife and the baseball bat. As he got closer, he was able to see Mrs Vella and a man through the window. A short time later, the man came out of the house, got into a vehicle and 'took off'.[27]
15. The appellant said that he then knocked on the front door of the home. At this point, the knife was in his pocket and he was carrying the baseball bat. The appellant said that it never entered his mind not to carry these items with him to the front door.
16. The appellant testified that when he got to the front door, he was 'calm, very calm'.[28]
17. When he got to the door, the appellant said that he heard Mrs Vella say, 'You will never see the kids again. I'm going to make sure you never see those kids again'. He described her manner of speaking as 'spitting ... venom'.
18. According to the appellant, Mrs Vella continued, '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'. Her tone of voice was 'very angry, venomous'.[29]
19. The appellant said that he swore at Mrs Vella and kicked the front door until it opened. He heard Mrs Vella scream from the other side of the door, 'The kids hate you, the kids hate you', 'You'll never see the kids again', and 'The kids hate you'.[30]
20. The appellant said that he ran to Mrs Vella's bedroom door and kicked that in too. The next thing he could recall was standing next to her bed, with the knife in his hand and a 'river of blood coming out of her neck'.[31] The appellant said that he did not recall using either the knife or the baseball bat.[32] He then ran from the home.
21. The appellant denied that he attended the home intending to kill Mrs Vella, or even to become involved in a physical confrontation with her.[33] He said that when Mrs Vella spoke to him through the front door, he reacted with 'disbelief'. After his wife made the statements alleged at [48] ‑ [50] above to him, he could not recall his actions; but he maintained that he had no intention of killing or injuring her, nor of becoming involved in a physical c[34]frontation with her.34
22. Under cross‑examination, the appellant:

(a) admitted that, at the time he attended the family home on 29 December 2003, he was aware that he was subject to a violence restraining order and that he was violating the order by being at the family home; and he chose to ignore its effect;[35]

(b) described his actions on the morning of 29 December 2003 as the conduct 'of a desperate father';[36]

(c) said that, at the time he kicked Mrs Vella's bedroom door in, he had 'lost it';[37]

(d) confirmed that he had no recollection of striking Mrs Vella with the baseball bat or slashing her throat with the knife; and

(e) denied intending to kill her.[38]

1. The defence case was clearly put to the jury by Mr Bowden in his closing address.[39] Mr Bowden began his closing address by acknowledging the horrendous nature of Mrs Vella's death, and that the appellant had accepted that he was guilty of manslaughter. He urged the jury to put aside any emotion or prejudice, and to examine the case having regard only to the evidence.
2. The thrust of the defence case was that, by 29 December 2003, the appellant had accepted that the marriage was over. He was focussed on questions of custody of, or access to, his children; and he was gathering evidence in support of his case in the Family Court proceedings.
3. Mr Bowden submitted, based on the appellant's testimony, that he purchased and sharpened the knife, not with an intention of harming Mrs Vella but, rather, to slash the tyres of the vehicle belonging to his wife's possible new partner.
4. Mr Bowden also submitted that the appellant went to the family home on the night in question without any intention to kill or even harm Mrs Vella. He submitted that the appellant's acts of repeatedly calling 000 to report his wife to the police earlier that same morning were inconsistent with the existence of an intention to kill her.
5. Mr Bowden put to the jury that, when the appellant spoke to his wife through the front door and she uttered the words referred to at [48] ‑ [50] above, he flew into such a sudden rage that he was unable to form, and did not in fact form, an intention to kill.
6. Mr Bowden submitted that, even if the jury were satisfied beyond reasonable doubt that the appellant intended to kill his wife, he did so under provocation, such that what would otherwise have been an act of wilful murder was reduced to manslaughter.
7. Towards the end of his closing address, Mr Bowden put the appellant's defence of lack of intention and provocation in this way:[40]

In this sort of case I say to you that the appropriate verdict is that of guilty of manslaughter. You could not be satisfied beyond reasonable doubt that he had formed an intention to kill, it's just inconsistent. If you're going around there to kill somebody you hardly ring the police and the calls are asking the police to come to the scene. That's the whole point of making the calls. The evidence relating to his state that I have just read to you is inconsistent with a man having formed an intention to murder.

What happens when he knocks on the door and the remarks relating to the children - that it is his one constant that he's fixed to - he simply acts out of control and out of a fit of rage. I say to you quite unashamedly that you could not be satisfied beyond reasonable doubt that he's guilty of having an intent either to kill or to cause grievous bodily harm. If having seen him give his evidence, if you believe what he has to say then of course it would be guilty of manslaughter.

If you're not sure whether you believe him or not it would also be guilty of manslaughter because if you're not sure whether you believe him or not you couldn't be satisfied of guilt beyond reasonable doubt. All the evidence relating to the baseball bat, all the evidence relating to the sharpening of the knife, all the evidence relating to the woollen cap doesn't take the matter any further.

As his Honour will tell you in due course, if you conclude that he did form an intent to kill then you have to go on and consider the question in law of what is known as provocation. Now, I say of course that you don't even reach that stage because I say that you could not be satisfied beyond reasonable doubt that he had an intent to kill or caused [sic] grievous bodily harm and the appropriate verdict is simply that of guilty to manslaughter.

His Honour when he addresses you on the law will tell you that even if you conclude that he did have an intent to kill the law recognises that by what is known as provocation that wilful murder; that is, having an intent to kill, can be reduced to the offence of manslaughter if in fact the accused is provoked. Remember, [it is] not up to us to prove that he was provoked but up to the prosecution to prove beyond reasonable doubt that he was not in fact acting under provocation.

The test, his Honour will explain it to you and I won't trespass on his Honour's area but the test is did the provocation cause the accused to lose his power of self-control and then whether an ordinary person so provoked could have - not would have lost control but could an ordinary person have lost his self-control and acted as the accused did. It's important when you are dealing with provocation to realise that the test relates to what [an] ordinary person, not a reasonable person but an ordinary person - whether an ordinary person could - not would but could have lost his self-control.

His Honour will address you on the question of provocation, which only applies, only applies, if you are satisfied beyond reasonable doubt that he had an intention to kill, then when you consider the question of provocation unless you are satisfied beyond reasonable doubt that the prosecution have proven that he wasn't provoked then of course it is reduced to manslaughter.

We say that you don't even reach that stage because we say that the evidence all points in one direction, all points in one direction; that is, that you are dealing with a person who was acting in a rage, who was acting - as he said 'lost the plot' and the horrific injuries which are caused a [sic] simply evidence of how out of control he was at that stage and anger and rage do not equate with an intention to cause death.

Ask yourself if he had intended when he purchased that knife to kill a person as opposed to what he said, an intention to slash a tyre, why on Earth would you ring the police and invite them on three separate occasions to come over to the premises? It's just inconsistent with having an intention to kill and it is not - I stress to you - it's not a question of approving of his conducting [sic] in any shape or form.

We have admitted at the outset that we are guilty of the offence of manslaughter. We accept that we have unlawfully killed or slaughtered a person. We have never tried to move away from that but what we do say is that when you consider all the facts and circumstances that the appropriate verdict is simply that of manslaughter.

The appellant's first appeals against conviction The wilful murder offence

1. On 30 March 2005, the appellant filed a notice of appeal against conviction for the offence of wilful murder (CACR 36 of 2005). The appellant relied on 42 grounds of appeal, including grounds 1 to 5, which each alleged a miscarriage of justice by reason of the conduct of Mr Bowden. These grounds alleged that Mr Bowden did not call certain witnesses; failed to gather evidence the appellant wished to adduce; asked the wrong questions of the wrong witnesses; failed to properly prepare for the trial; and failed to cross‑examine diligently on inconsistent statements and perjury.
2. Roberts‑Smith JA refused leave to appeal on all but one of the 42 grounds (namely, ground 10), including all five grounds that alleged a miscarriage of justice by reason of Mr Bowden's conduct as defence counsel.[41] Roberts‑Smith JA comprehensively dealt with the five incompetence of counsel grounds.[42] His Honour noted, and dealt with, a submission by the appellant that Mr Bowden failed to gather evidence in relation to Mrs Vella's behaviour at the Glengarry Tavern, and that he failed to cross‑examine certain witnesses about that behaviour. His Honour observed that even if Mr Bowden had sought to adduce such evidence at the appellant's trial, there would be a very real question as to whether the behaviour the appellant ascribed to his wife was even capable of constituting provocation for the purposes of s 281 (repealed) of the Code. Moreover, unless he was present at the tavern (or anywhere else it was said she behaved 'promiscuously'), evidence from other people of what her actual behaviour was like would have been irrelevant and inadmissible.
3. The appellant then sought a review of Roberts‑Smith JA's decision. On 15 March 2007, this court (Wheeler, Pullin & Buss JJA) refused the application for review, save for one ground (ground 6), which Wheeler and Buss JJA considered ought to have been granted leave. This court then unanimously dismissed the appeal against conviction in respect of the two grounds (ground 6 and ground 10) that had been granted leave.[43]
4. In her reasons, Wheeler JA dealt with the five incompetence of counsel grounds in some detail.[44] Her Honour agreed with Roberts‑Smith JA's analysis, and made some additional observations concerning Mr Bowden's alleged incompetence. Although lengthy, it is worthwhile quoting those observations in full:

When analysing counsel's conduct in this particular trial, it is necessary to bear in mind a number of matters. The appellant had, but a short time before her death, assaulted [Mrs Vella], causing significant injuries. He had relatively recently separated from her, and had made it plain to a number of witnesses that he was unhappy and angry about the circumstances of their separation, and about her behaviour. On the evening on which he killed his wife, he was seen by [Mr S] in the bedroom where [Mrs Vella] lay seriously injured. He was the only adult person to have had access to that room during the period in which those injuries were inflicted. It is probable that the infliction of those injuries had been witnessed by his own young son. He had been seen, in the period leading up to the fatal attack, to purchase a knife and a beanie. Even without his admissions at trial, it was abundantly clear that he was the person who had killed [Mrs Vella].

Further, against the background of a somewhat acrimonious separation, he had inflicted on [Mrs Vella] devastating injuries, a number of which would have been fatal on their own. Any counsel would face a very difficult task in convincing a jury that there was any doubt whatever as to whether the appellant had intended the inevitable consequences of his actions, or as to whether [Mrs Vella] might have said or done something which provoked the appellant to carry out his attack. Obviously, much would depend upon the jury's assessment of the appellant himself as he gave evidence and was cross‑examined.

The raising of a doubt would also be assisted by some evidence which might demonstrate that [Mrs Vella] herself was a person who, by reason of bad temper, or impulsivity and thoughtlessness, or perhaps some settled dislike of the appellant, might have behaved in a provocative way towards him. That latter task - of demonstrating that [Mrs Vella] may have been prone to provocative behaviour - could have been performed in one of two ways. The first, and the course apparently adopted by counsel, was a fairly 'broad brush' cross‑examination designed to allude to some aspects of [Mrs Vella's] behaviour which attracted disapproval from those who knew her, and which might have attracted the disapproval of the jury. The second might have been (subject to questions of remoteness and relevance) a more detailed examination of [Mrs Vella's] behaviour, by reference to some or all of the incidents about which the appellant complained before us.

There were considerable dangers for the appellant attendant upon the second possible course. One danger was that many of the incidents and behaviours spoken about by the appellant were not things of which he had any direct personal knowledge, but rested upon hearsay and inference. Cross‑examination of witnesses directed to establishing those matters might therefore have failed to achieve its end, and the appearance might then be given to the jury that the appellant was prepared to instruct his counsel to blacken the character of [Mrs Vella] with untrue allegations.

That course also presented the danger that, even if the various allegations against [Mrs Vella] were supported by evidence, a jury might consider that many of them were no more than the sort of unfortunate, but not uncommon, behaviour which can occur in a marriage which is unhappy. Assuming that the jury understood that questions about those matters were put to witnesses on the instructions of the appellant, there was a real risk that they would then form a view that he was a person prone to dwelling obsessively on marital offences and magnifying [Mrs Vella's] faults out of their proper proportion. One can well understand, in that context, why this defence counsel, who had long experience in criminal trials, did not explore at trial every avenue which the appellant now says should have been explored.

There were two matters relating to counsel's conduct which were particularly referred to by the appellant before us, which do not appear to feature in the reasons of Roberts‑Smith JA; it is therefore desirable to mention them briefly.

A considerable proportion of the appellant's argument before us was devoted to the proposition that counsel's cross‑examination of [Mr S] was inadequate. A particular aspect of that inadequacy emphasised by the appellant, was his failure to cross‑examine [Mr S] in relation to [Mr S's] evidence that he had seen a person who appeared to be the appellant looking in at the window of the house at Kallaroo. The appellant asserted that, when one looked at one of the photographs which was put in evidence, it was not possible to see out of the window in that photograph, which was taken in daylight. He said that it followed that at night, with no lighting, it would have been impossible for [Mr S] to have seen him, let alone to have recognised him. He further said there were inconsistencies in [Mr S's] evidence about the direction in which he had seen the person he had allegedly observed running away from the house.

It is difficult to imagine a less profitable line of cross‑examination. As I mentioned to the appellant during the course of argument, examination of the photograph suggests that it probably is possible to see out of the window in daylight. As to the position at night, there was simply no evidence about the nature of the lighting in and around the house, or in the street, or about the degree of ambient light generally. Most importantly, it is undeniable that something caused [Mr S] to leave the house suddenly. It is undeniable that [Mr S] returned after a very brief time. It is conceded by the appellant that he was in fact in the garden near the window. In those circumstances, [Mr S's] evidence was both internally coherent and consistent with the known facts. Cross‑examination on this issue would be more likely to bolster [Mr S's] credibility than to weaken it.

Finally, the appellant was particularly concerned that cross‑examination had not been pursued, and evidence had not been led, which would have tended to show that he was 'set up'. It was never made clear quite what this 'set up' consisted of, since he plainly did kill [Mrs Vella], so that it was not being suggested that he was, for example, being 'framed' for an act which he did not perform. Nor did I understand him to be saying that [Mrs Vella] and/or [Mr S] had deliberately embarked on a campaign which would cause him to kill [Mrs Vella], although his submissions at times went close to that proposition. Rather, as I understood the appellant's affidavits and oral submissions, the 'set up' consisted of the following elements. I comment in brackets on some aspects of them:

1. [Mrs Vella] wished to obtain 80% of the matrimonial assets in a divorce settlement. (A proposal of 70 ‑ 80% was put to the appellant in a letter from her solicitors.)
2. In order to obtain 80% of the assets, [Mrs Vella] had to keep secret her relationship with [Mr S]. (However, [Mrs Vella] had obtained legal advice about the issue of property settlement. Any legal advisor would have told her that her relationship with another man would have had no bearing on the amount of a property settlement.)
3. Further, in order to obtain a favourable property settlement, it was necessary for [Mrs Vella] to have the appellant 'labelled' as violent. (It is not clear why this was 'necessary' - perhaps so that the children would reside with her and she would therefore have greater financial needs.)
4. Therefore, it was necessary for her to provoke the appellant to strike her. (This is the context in which he explains the earlier assault occasioning bodily harm.)
5. For some reason, never clearly articulated by the appellant, the earlier assault was not sufficient, and it was necessary for [Mrs Vella] also to 'provoke' the appellant to breach the violence restraining order. (He did this by going to the Kallaroo house. It is not clear why it was also 'necessary' for her to then further provoke him by saying that the children hated him).
6. Pursuing that plan to further provoke the appellant, [Mrs Vella] uttered the provocative words to which he referred in his evidence at trial.

In addition to the various problems with the 'set up scenario' which I have referred to in the bracketed comments above, there are two further problems with a complaint that this 'set up' should have been raised. A fundamental difficulty is that it seems improbable that a woman who had already been assaulted by the appellant, resulting in her ribs being broken, would, in pursuit of some unspecified degree of financial advantage, shortly thereafter deliberately set out to provoke him again. A jury might well label this proposition, and by association with it the appellant's entire defence, as preposterous. The other difficulty is that it adds little or nothing to the case made at trial in any event. A jury would have no difficulty in understanding that partners to a marriage are likely to know how to wound and enrage each other and, once that marriage has broken down, may sometimes be willing to do so. The 'set up' scenario does little or nothing to increase the likelihood, as the jury would see it, of [Mrs Vella] having uttered some provocative words.

1. Despite the fact that the appellant pleaded guilty to the AOBH offence, a fact he acknowledged in his testimony at trial, the appellant applied for leave to appeal against conviction for this offence on 27 July 2005 (CACR 216 of 2005). The appellant relied on four grounds of appeal. Relevantly, one of those grounds (ground 3) alleged:

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.

1. Roberts‑Smith JA refused leave to appeal in relation to all grounds, including ground 3.[45]
2. The appellant then sought a review of Roberts‑Smith JA's decision. On 28 June 2006, this court (Steytler P, Wheeler & Buss JJA) dismissed the appellant's application for review.[46] Steytler P (with whom Wheeler & Buss JJA agreed) dealt with ground 3.[47] His Honour concluded that there was insufficient evidence to suggest that the appellant's plea of guilty was made in circumstances giving rise to a miscarriage of justice.

The appellant's purported second appeals under pt 3A of the CAA

1. The appeals in CACR 97 of 2023 and CACR 98 of 2023 are, as we have already said, second or subsequent appeals against conviction, which must be determined according to pt 3A of the CAA.

The statutory framework of pt 3A of the CAA

1. Appeals are a creature of statute. This court has no further authority to set aside a conviction upon indictment than the relevant statute confers.[48] As mentioned, prior to the commencement of pt 3A, there was but one right of appeal (with leave) against a conviction of an offence on indictment under pt 3 of the CAA. Once the right of appeal under pt 3 was exhausted, an offender was not entitled to commence any further appeal against the same conviction; even where evidence later emerged that could potentially exonerate the offender. Prior to the commencement of pt 3A, the only recourse for an offender in such a circumstance was to lodge a petition to the exercise of the Royal Prerogative of Mercy or to petition the Attorney General to refer the case to the Court of Appeal under s 140 of the Sentencing Act.
2. Part 3A creates a pathway for a second or subsequent appeal against a conviction of an offence on indictment directly to the Court of Appeal where previously, after an appeal was exhausted, a convicted person had no further right of appeal. However, the offender's right of appeal under pt 3A is not at large. A second or subsequent appeal against conviction may be brought if, and only if, there is either fresh and compelling, or new and compelling, evidence relating to the offence.
3. Part 3A of the CAA comprises s 35B to s 35J.
4. By s 35B, an offender may bring a second or subsequent appeal under pt 3A even if the offender was convicted of the offence to which the appeal relates before pt 3A commenced operation on 1 January 2023.
5. The terms 'fresh', 'new', and 'compelling' are defined in s 35D of the CAA as follows:

(1) For the purposes of this Part, evidence relating to an offence of which an offender was convicted is fresh -

(a) if, despite the exercise of reasonable diligence, the evidence was not and could not have been tendered at the trial of the offence or any previous appeal; or

(b) if -

(i) the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal; and

(ii) the failure to tender the evidence was due to the incompetence or negligence of a lawyer representing the offender.

(2) For the purposes of this Part, evidence relating to an offence of which an offender was convicted is new if the evidence was not tendered at the trial of the offence or any previous appeal but, with the exercise of reasonable diligence, could have been tendered at the trial of the offence or any previous appeal.

(3) Despite subsection (2), evidence is not new evidence if it is fresh evidence under subsection (1)(b).

(4) For the purposes of this Part, evidence relating to an offence of which an offender was convicted is compelling if it is highly probative in the context of the issues in dispute at the trial of the offence.

1. The statutory requirements for commencing and deciding appeals under pt 3A are set out in s 35F to s 35H of the CAA:

(1) Leave of the Court of Appeal is required for each ground of appeal in an appeal brought under this Part.

(2) Except as provided in subsection (3), the Court of Appeal must decide whether to give leave to appeal on a ground of the appeal before the hearing of the appeal.

(3) If the Court of Appeal considers it necessary or desirable, it may give leave to appeal at the hearing of, or when giving judgment on, the appeal.

(4) After an appeal has commenced, the Court of Appeal must not give leave to appeal on a ground of appeal unless it is satisfied -

(a) the ground identifies fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal; and

(b) the ground has a reasonable prospect of succeeding.

(5) Unless the Court of Appeal gives leave to appeal on at least 1 ground of appeal, the appeal is taken to have been dismissed.

(1) An appeal under this Part must be commenced and conducted in accordance with this Part and rules of court.

(2) An appeal under this Part must be commenced by lodging with the Court of Appeal an application for leave to appeal that sets out the grounds for appeal.

(3) On commencing an appeal, the appellant must serve a copy of the application for leave to appeal on the other party or parties to the proceedings before the trial court.

(4) The Court of Appeal may at any time order the appellant to serve a copy of the application for leave to appeal on any other person that the court thinks fit.

(1) Unless, under subsection (2) or (4), the Court of Appeal allows an appeal, it must dismiss the appeal.

(2) The Court of Appeal must allow an appeal based on fresh and compelling evidence if it is satisfied there was a miscarriage of justice.

(3) Despite subsection (2), even if 1 or more grounds might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

(4) The Court of Appeal must allow an appeal based on new and compelling evidence if it is satisfied on the balance of probabilities that, in light of all the evidence, the evidence establishes that the offender is innocent.

(5) If the Court of Appeal allows the appeal, it must set aside the conviction of the offence and must -

(a) order a new trial; or

(b) enter a judgment, and deal with the offender in a manner, referred to in section 30(5)(b) to (e).

(6) If the Court of Appeal orders a new trial under subsection (5)(a), section 34 applies, with any necessary modifications, as if the appeal had been brought under Part 3.

(7) If the Court of Appeal enters a judgment under subsection (5)(b), section 30(6) applies, with any necessary modifications, as if the appeal had been brought under Part 3.

1. The rules of court referred to in s 35G(1) are defined in s 4(2) of the CAA to mean rules of court made by the Supreme Court. This definition includes the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules). Rule 28A of the Rules states how an appeal under pt 3A of the CAA is to be commenced and the documents that must be filed to validly commence it. Rule 28A provides:

28A. Commencing appeal under Criminal Appeals Act 2004 Part 3A

(1) To commence an appeal under the Criminal Appeals Act 2004 Part 3A the appellant must file -

(a) a Form 1A; and

(b) an affidavit containing the information set out in subrule (2); and

(c) the 'Appellant's case' in accordance with rule 32.

(2) For the purposes of subrule (1)(b), the information is as follows -

(a) details of all previous appeals against the conviction;

(b) a statement of the issues in dispute at the trial, with reference to that part of the trial transcript which shows those issues to be in dispute;

(c) the alleged evidence relating to the offence the subject of the conviction that is to be relied on in the appeal;

(d) whether the evidence set out in accordance with paragraph (c) is alleged to be fresh and compelling, or new and compelling;

(e) an explanation as to why the alleged evidence that is to be relied on in the appeal was not tendered during the trial or during any previous appeal;

(f) when the appellant, and any legal practitioner representing the appellant, became aware of the alleged evidence that is to be relied on in the appeal;

(g) if the evidence is alleged to be fresh and compelling - details, if any, of alleged negligence or incompetence of the legal practitioner representing the appellant at the trial;

(h) a statement of information or belief as to whether, with the exercise of reasonable diligence, the alleged evidence could have been tendered at the trial.

(3) A Form 1A may be filed together with an application, made in accordance with rule 44, for an interim order.

(4) For the purposes of the Criminal Appeals Act 2004 section 35G(2), a Form 1A filed in accordance with this rule is taken to be an application for leave to appeal.

1. In Luo v The King,[49] this court made seven observations about the statutory provisions in pt 3A of the CAA and r 28A of the Rules.[50] We incorporate those observations into these reasons without repeating them.
2. Part 3A of the CAA is a limited exception to the principle of finality. It is not to be taken by offenders, who have been unsuccessful in their first appeal against conviction under pt 3, as simply another opportunity to mount a further appeal against conviction. Given the limited nature of pt 3A, leave to appeal is tightly restricted.[51] This court may only grant leave to appeal if it is satisfied that is the ground identifies existing fresh and compelling, or new and compelling, evidence in relation to the offence that should, in the interests of justice, be considered on an appeal; and that the ground has a reasonable prospect of succeeding. In contrast, the test for leave to appeal on a ground of appeal in a pt 3 appeal requires only that the ground has a reasonable prospect of succeeding.[52]

Were the appeals in CACR 97 of 2023 and CACR 98 of 2023 validly commenced?

1. There is a significant difference between the way in which appeals under pt 3 and appeals under pt 3A of the CAA must be commenced:
   1. Under s 28 of the CAA read with r 28 of the Rules, an appeal under pt 3 instituted within time is commenced simply by filing a Form 1.
   2. Under s 35G of the CAA read with r 28A of the Rules, an appeal under pt 3A is commenced by filing a Form 1A, an affidavit containing the information set out in r 28A(2) and an appellant's case in accordance with r 32 of the Rules.
2. The filing of an appeal notice in Form 1A, by itself, is not sufficient to validly commence a second or subsequent appeal under pt 3A of the CAA. An appeal under pt 3A is not validly commenced unless the appeal notice is accompanied by an affidavit containing the information set out in r 28A(2) and an appellant's case that complies with r 32 of the Rules. This reflects a legislative policy that a further appeal against conviction is not an opportunity for an offender to investigate whether there may be grounds for a second or subsequent appeal. The grounds of appeal, the appellant's argument and the fresh and compelling, or new and compelling, evidence relied on for the grant of leave to appeal must be filed on commencement of the appeal.
3. In the present case, as in Luo, we have considered the applications for leave to appeal on their substantive merits even though the appeals were not commenced in the manner required by s 35G of the CAA read with r 28A of the Rules. As each application should be dismissed on its substantive merits, it is unnecessary to consider the consequences of the appeals not having been commenced in accordance with those provisions.
4. However, it would have been open for a registrar to have refused to accept the papers lodged in CACR 97 of 2023 and CACR 98 of 2023 for filing on the basis that they did not comply with the Rules. It would also have been open to the court to have struck out the appeal notices in each of those matters under r 43(2)(fa)(i) of the Rules, on the ground that the appeals had not been validly commenced. The fact that the appeals in CACR 97 of 2023 and CACR 98 of 2023 have not been validly commenced might also provide a sufficient basis for dismissing the appeals.
5. The appellant in the present case, like the appellants in Luo, was self-represented and the court had not yet considered the operation of pt 3A of the CAA and associated rules when the appeal notices and other papers were lodged. In those circumstances, there was nothing inappropriate in the papers lodged in CACR 97 of 2023 and CACR 98 of 2023 being accepted for filing. In those circumstances, we have also considered it appropriate to deal with the applications for leave to appeal in CACR 97 of 2023 and CACR 98 of 2023 on their substantive merits. However, in the future, offenders seeking to institute a second or subsequent appeal under pt 3A of the CAA should anticipate that the appeal notice will not be accepted for filing, or may be struck out, if the Form 1A is not accompanied by an affidavit containing all of the information set out in r 28A(2) and an appellant's case that complies with r 32 of the Rules.

The ground of appeal in CACR 97 of 2023 and CACR 98 of 2023

1. The appellant relies upon a single ground of appeal in CACR 97 of 2023, which reads:

Defence counsel Michael John Bowden, as he then was, Judge Bowden of the District Court, as he is now, used coercion, improper inducement, and, unfair prejudicial tactics in the preparation and conduct of my trial for wilful murder. His conduct was calculated to ensure that no jury would find me guilty of manslaughter due to provocation. As a consequence he denied me a fair trial and a miscarriage of justice has occured [sic].

1. The sole ground of appeal relied upon by the appellant in CACR 98 of 2023 is couched in somewhat different terms. It reads:

Defence counsel at trial, Michael John Bowden as he then was, Judge Bowden of the District Court as he is now, used coercion, improper inducement and prejudicial tactics to deny me the opportunity to change my guilty plea and take the matter to trial. As a consequence the assault occasioning bodily harm (aobh) charge was put before the jury in a highly prejudicial manner which was prejudicial to my wilful murder trial. It also denied me to [sic] opportunity to overturn the conviction for the aobh.

1. It will be noted that both of the above grounds allege that Mr Bowden used coercion, etc. In the case of the wilful murder offence, it is said that Mr Bowden did so, in effect, to sabotage the appellant's provocation defence. In the case of the AOBH offence, Mr Bowden's conduct was allegedly designed to ensure that the appellant did not apply to change his plea of guilty to a plea of not guilty.

The ground of appeal in CACR 97 of 2023 and CACR 98 of 2023 is defective

1. As explained below, the ground of appeal in each of the purported pt 3A appeals is defective.
2. Contrary to s 35F(4)(a) of the CAA, the ground of appeal relied upon by the appellant in each of CACR 97 of 2023 and CACR 98 of 2023 does not identify any fresh, or new, compelling evidence. Accordingly, this court cannot give leave to appeal on the ground relied upon by the appellant in either of CACR 97 of 2023 or CACR 98 of 2023.
3. Further, the issues raised by the grounds of appeal in CACR 97 of 2023 and CACR 98 of 2023 were, in substance, decided against the appellant in his first appeals against conviction. The allegations now made against Mr Bowden in CACR 97 of 2023 concern Mr Bowden's conduct as defence counsel in the appellant's trial. This conduct was the subject of five grounds of appeal in CACR 36 of 2005.[53] It will be recalled that leave to appeal was refused in relation to each of those grounds; a decision which was upheld on review by Wheeler, Pullin and Buss JJA: see [61] ‑ [64] above. The appellant's purported second appeal in respect of the wilful murder conviction, in substance, seeks to reformulate or reargue the same grounds that this court has already dealt with. So, too, does the ground of appeal in CACR 98 of 2023. The ground in this appeal is, in substance, the same as ground 3 in the appellant's first appeal against conviction for the AOBH offence, which was refused leave to appeal by Roberts‑Smith JA; a decision that Steytler P, Wheeler and Buss JJA later upheld: see [65] ‑ [67] above.
4. There is another defect that applies to CACR 98 of 2023 (but not CACR 97 of 2023). An appeal under pt 3A of the CAA can only be commenced by an offender in respect of a conviction for an offence 'on indictment'.[54] The appellant was charged with the AOBH offence by complaint; not by way of an indictment. The fact that the AOBH offence was put before Simmonds J on 22 April 2005 by a notice under s 32 of the Sentencing Act in connection with the indictable offence of wilful murder, does not 'convert' the AOBH offence to an offence on indictment. This is because the procedure under s 32 of the Sentencing Act brings a summary charge before a superior court 'without the need for committal proceedings or an indictment'.[55] Thus, this court has no jurisdiction under pt 3A to deal with CACR 98 of 2023.
5. Accordingly, for the reasons referred to at [87] ‑ [89] above, leave to appeal cannot be granted in respect of the ground of appeal relied upon in either CACR 97 of 2023 or CACR 98 of 2023.
6. However, despite the matters raised in [87] and [88], even if this court were to take the ground of appeal in each matter to allege that, as a result of fresh, or new, compelling evidence, the appellant suffered a miscarriage of justice because, in effect, defence counsel deliberately undermined his defence of provocation as it related to the charge of wilful murder, or, in the case of the AOBH offence (assuming the court had jurisdiction to deal with the appeal), defence counsel improperly coerced the appellant to plead guilty, leave to appeal would still not be granted. This is because, as we will now explain, none of the material relied upon by the appellant is fresh, or new, compelling evidence relating to the offence capable of establishing the allegations of impropriety on the part of defence counsel.

The alleged fresh and compelling, or new and compelling, evidence

1. The appellant's appeal notices in CACR 97 of 2023 and CACR 98 of 2023 were accompanied by two affidavits, both sworn by the appellant on 24 July 2023. These affidavits did not comply with the requirements of r 28A of the Rules.
2. At a directions hearing on 15 September 2023, an order was made in each appeal requiring the appellant to file and serve an affidavit which complied with the requirements of r 28A(1)(b), read with r 28A(2), of the Rules. The appellant was informed by the court that the affidavit was to be a 'standalone' affidavit; that is, the affidavit was to contain all the material the appellant wished to adduce in support of the ground in each appeal.
3. In purported compliance with that order, the appellant subsequently filed an affidavit sworn 20 September 2023. This affidavit referred to some of the exhibits in the two previous affidavits, which he designated 'A1' and 'A2'. The appellant stated, in his affidavit sworn 20 September 2023, that it was a replacement for the earlier A1, but he made no mention of it also being a replacement for A2.
4. The appellant later filed another affidavit, sworn 21 December 2023, in support of an application to amend the first paragraph of submissions in his appellant's case in respect of CACR 97 of 2023 only. That application was granted on the papers on 27 May 2024. For present purposes, this affidavit is irrelevant.
5. In the end, and to the advantage of the appellant, for present purposes, we have had regard to the affidavit sworn by the appellant on 24 July 2023 designated A2, and the affidavit sworn 20 September 2023.
6. Neither of the appellant's affidavits clearly, and in terms, identify the evidence alleged to be fresh, or new, compelling evidence relating to the offences of wilful murder or AOBH committed by the appellant. A great deal of what is contained in the affidavits is simply not evidence. Rather, it is a combination of mere argument, assertion, conjecture, and submission. The appellant has unnecessarily included irrelevant material, including extracts from reported cases, newspaper cuttings, affidavits used in previous appeals, and material tendered at his trial.
7. Included in the material that forms part of the appellant's affidavit sworn 20 September 2023 is correspondence between the appellant and Mr Bowden, of various dates between 2004 and 2006, largely concerning the issue of provocation in relation to the charge of wilful murder. Some of this correspondence is duplicated in A2, sworn 24 July 2023. In the affidavit sworn 20 September 2023, the appellant also annexed a portion of the transcript from the 2014 proceedings against Mr Bowden, being extracts from the respective cross‑examinations of the appellant and Mr Bowden on 21 January 2014. The appellant has underlined those parts of the transcript that he wishes to be emphasised.
8. In his affidavit designated A2, the appellant annexed a copy of a letter he wrote to the Attorney General on 29 October 2022 and a letter he wrote to Mr Bowden dated 5 September 2022. Nothing in either of those letters constitutes evidence. In the letter addressed to Mr Bowden, the appellant makes a number of allegations, to the effect that Mr Bowden mismanaged the appellant's defence at trial by 'wrongly' advising him that, as a matter of law, only the conversation at the door of Mrs Vella's home on 29 December 2003 would be relevant to any defence of provocation; he failed to call more evidence of alleged misconduct on the part of Mrs Vella, including alleged sexual misconduct before, and during, the marriage; he did not run, as part of the defence case, the alleged 'set up'; he did not cross‑examine prosecution witnesses adequately in order to adduce from them evidence of Mrs Vella's alleged misconduct; he did not call two witnesses, David Berry and Michael Dawson (Mr Dawson in fact gave evidence at the trial for the State); and he failed to obtain records relating to Mrs Vella's mobile telephone usage in the months prior to her death.
9. Given the vast array of material the appellant sought to put before this court in support of his applications for leave to appeal at the hearing on 13 August 2024, he was asked by the court to specifically identify the fresh, or new, evidence upon which he relied.[56]
10. During oral argument, the appellant said that he did not allege that the letter he wrote to Mr Bowden dated 5 September 2022 (or, for that matter, the letter he wrote to the Attorney General on 29 October 2022) was fresh, or new, compelling evidence.[57] Rather, as the appellant explained, this letter, and Mr Bowden's failure to reply to it, is 'what triggered this whole thing'.[58]
11. At the hearing, the appellant identified the material described at [98] above as the evidence upon which he relied in support of the accusation central to CACR 97 of 2023 that Mr Bowden, by use of coercion, etc, deliberately undermined his provocation defence under s 281 (repealed) o[59]the Code.59 In his oral submissions, the appellant accepted that the correspondence between the appellant and Mr Bowden between 2004 and 2006 was new, not fresh, evidence because the correspondence was available and could have been adduced in his first appeal against the wilful murder [60]nviction.60 The appellant regards the extracts from the transcript of the 2014 proceedings as fresh evidence because they could not have been available at the time of his trial or first appeal against conviction. How any of the material referred to at [98] above established the allegation of coercion, etc, central to the ground of appeal relied upon in CACR 97 of 2023 was not coherently explained.

The correspondence between the appellant and Mr Bowden between 2004 and 2006

1. The correspondence relied upon by the appellant as new and compelling evidence predominantly concerned the defence of provocation under s 281 (repealed) of the Code.[61] It is clear from this correspondence that, while the appellant was very much focussed upon Mrs Vella's alleged infidelity and other supposed misconduct (Mrs Vella's alleged misconduct), Mr Bowden was concerned that this strategy would be forensically damaging. In his letters to the appellant dated 15 April 2004 and 20 July 2004, Mr Bowden advised the appellant that:

(a) there was a very real doubt that any of Mrs Vella's alleged misconduct constituted a wrongful act or insult that would cause an ordinary person to lose self‑control and to retaliate in the manner the appellant did;

(b) if the appellant were to continue to focus on Mrs Vella's alleged misconduct, there would be a real risk that the trial judge would not leave to the jury a defence of provocation under s 281 (repealed) of the Code;

(c) if the appellant continued to emphasise that he was 'provoked' because of Mrs Vella's alleged misconduct, then there was a real risk that the State would be permitted to adduce, as propensity evidence, evidence relating to previous assaults the appellant had allegedly committed against Mrs Vella; and

(d) the more the appellant spoke about Mrs Vella's alleged misconduct in his evidence at trial, the more obsessed he would appear to the jury. The clear implication being that such evidence would substantially undermine his defence that he did not intend to kill Mrs Vella.

1. It is notable that, in his responses to Mr Bowden's letters, the appellant was polite, if not cordial, and not resistant to the advice. In a letter he wrote to Mr Bowden on 1 December 2004,[62] the appellant wrote that he would leave strategic decisions relating to his trial to Mr Bowden. He concluded the letter by writing, 'So as far as strategy etc I'll take your advice'.
2. After the trial and sentencing, on 25 April 2005, the appellant wrote to Mr Bowden. He began the letter:[63]

Thank you for the transcripts! I must confess you did a brilliant job at my trial and I can't help admire how focused and effective you were thanks a lot for that.

1. On either 9 February 2006 or 18 March 2006 (the date of the letter is unclear), the appellant appears to have written to Mr Bowden seeking answers to a number of questions, including a question as to why he did not explore the possibility that Mrs Vella 'might have probably been in an improper relationship with [a relative]'.

1. We have considered the extracts of the transcript from the 2014 civil trial. We have paid particular attention to those parts that have been underlined by the appellant.
2. There is nothing in Mr Quinlan SC's cross‑examination of the appellant that supports the ground of appeal in either CACR 97 of 2023 or CACR 98 of 2023.
3. In the course of the appellant's cross‑examination of Mr Bowden, Mr Bowden:

(a) agreed that he always acted in the appellant's best interests;

(b) said that the appellant treated him with courtesy and respect;

(c) accepted fully that the appellant relied on his professional judgement and experience;

(d) did not dispute that he had discussions with the appellant about an incident at the Glengarry Tavern involving Mrs Vella; about retaining a private investigator; and about obtaining Mrs Vella's mobile telephone records; and

(e) accepted 'without reservation that the trial could have been run differently'.

1. None of these responses support the appellant's grounds of appeal. If anything, they undermine the grounds because Mr Bowden's responses are inconsistent with the notion that he used coercion, etc, in the course of acting for the appellant.

The appellant's submissions in CACR 97 of 2023 and CACR 98 of 2023

1. The appellant's submissions are substantially the same for both of his purported second appeals. Essentially, they proceed in this way.
2. The appellant largely repeated the complaints that he made in his first appeal, about Mr Bowden's conduct of the wilful murder trial. Where, previously, he had thought Mr Bowden's conduct of the trial was 'merely' negligent, he now harbours the belief, triggered by Mr Bowden's failure to reply to his correspondence of 5 September 2022 (and his follow‑up letter dated 3 October 2022), that, as he puts it in the ground of appeal in CACR 97 of 2023:

[Mr Bowden's] conduct was calculated to ensure that no jury would find me guilty of manslaughter due to provocation.

1. The appellant's submissions were vague as to what actually constituted the alleged 'coercion, improper inducement, and unfair prejudicial tactics' on the part of Mr Bowden. As we understand the appellant's submissions in respect of CACR 97 of 2023, the 'coercion, improper inducement, and unfair prejudicial tactics' are all constituted by Mr Bowden's advice to the appellant to focus upon Mrs Vella's statements to the appellant at the house on 29 December 2003, to the effect that he would never see his children again and that his children hated him, and not upon her alleged misconduct.
2. The appellant's submissions in CACR 98 of 2023 merely assert the coercion, etc, was demonstrated by Mr Bowden's allegedly deliberate failure to advise the appellant that he could apply to set aside the plea of guilty to the AOBH offence, which he had previously entered in the Court of Petty Sessions on 18 November 2003.

1. The proposed ground of appeal in support of CACR 97 of 2023 is fatally flawed for the reasons set out at [87] ‑ [88] above.
2. However, even if the ground were read to be based on fresh, or new, compelling evidence, the ground is hopeless.
3. The evidence identified by the appellant in the course of his oral submissions, even taken together with all of the other so‑called 'evidence' referred to in his affidavits and the evidence adduced at trial, falls woefully short of demonstrating the allegation contained in the ground of appeal. There is nothing capable of demonstrating that Mr Bowden 'used coercion, improper inducement, and unfair prejudicial tactics in the preparation and conduct of [the appellant's] trial'.
4. To the contrary, the evidence identified by the appellant at the hearing on 13 August 2024, namely the correspondence and the extracts from the transcript of the 2014 proceedings, is consistent with Mr Bowden having prepared and conducted the appellant's defence properly and in accordance with the best interests of the appellant.
5. We respectfully endorse Wheeler JA's observations about the manner in which Mr Bowden conducted the appellant's defence at his trial, quoted at [64] above. Her Honour's analysis accords with ours. The State's case against the appellant for the offence of wilful murder was very strong, if not overwhelming. The appellant went to the front door of Mrs Vella's house in the early hours of 29 December 2003, carrying a baseball bat and a newly‑purchased and sharpened knife. The appellant's explanations for carrying these weapons at this time were likely to be viewed by a jury as fanciful. Upon confronting Mrs Vella in her bedroom, he repeatedly struck her in the head with the baseball bat, and inflicted a severe knife wound to her neck. The nature of the attack, and the injuries he inflicted upon her, pointed, almost irresistibly, to an intention on his part to kill Mrs Vella.
6. It is clear from the correspondence between Mr Bowden and the appellant, upon which the appellant now seeks to rely, that, apart from an argument that the appellant had no intention to kill Mrs Vella, the only other avenue of defence being pursued was a claim that he killed Mrs Vella under provocation, so as to enliven s 281 (repealed) of the Code.
7. It appears, from the correspondence, that the appellant gave Mr Bowden instructions to the effect that, during the marriage and after the separation, Mrs Vella had conducted herself in a way that the appellant did not approve of, and, in his opinion, she had been unfaithful to him. It appears that the appellant also instructed Mr Bowden that, immediately before he killed her, Mrs Vella had told the appellant that he would never see his children again and that they hated him; and it was a result of these words that the appellant lost self‑control and killed her.
8. Defence counsel might reasonably have viewed all of this evidence as providing only weak support for a defence of provocation. Further, the pursuit of a line of defence that emphasised Mrs Vella's alleged misconduct would come with the very real risk of showing the jury the high level of hostility the appellant felt towards Mrs Vella; which would, in turn, provide evidence of a motive to kill her. Accordingly, if a defence of provocation under s 281 (repealed) of the Code was to be pursued, it needed to be done with care, by emphasising the statements allegedly made by Mrs Vella about the appellant's loss of contact with their children and their supposed hatred of him.
9. Although other counsel may have taken a different course at trial (as Mr Bowden readily accepted in his evidence in the 2014 proceedings), it was plainly reasonable for Mr Bowden to run the appellant's defence of provocation by focussing on the insults the appellant says were made immediately before the killing. Such a focus was designed to obtain, or attempt to obtain, a number of clear forensic advantages. First, according to the appellant, the insults were extremely hurtful to him, and directly caused him to act as he did. Secondly, such a focus would allow Mr Bowden to cross‑examine the prosecution witnesses, who gave evidence about the events leading up to the offence and about the relationship between the appellant and Mrs Vella, in a 'broad brush' fashion; thus minimising certain aspects of the appellant's behaviour that a jury might well take as showing possessiveness and jealousy on his part, indicative of a motive to kill. Thirdly, such a strategy would, as Mr Bowden explained in his correspondence with the appellant, provide him with a stronger basis for objecting to the prosecution seeking to adduce evidence at trial of the AOBH offence on 12 November 2003 and, perhaps, the existence of the violence restraining order. Fourthly, it would reduce the well‑founded fear that, if the defence of provocation under s 281 (repealed) was based primarily upon Mrs Vella's alleged misconduct in the years and months prior to the murder, then the trial judge might not leave the defence to the jury at all.
10. Having regard to these matters, the forensic choices made by Mr Bowden as to how he cross‑examined prosecution witnesses, the evidence that was adduced (and not adduced) as part of the defence case, and the manner in which the appellant's defence was conducted, reflected reasonable forensic judgement. Indeed, in our opinion, given all the facts and circumstances, it was the preferable way for defence counsel to proceed.
11. The appellant's contention that the only explanation for the manner in which Mr Bowden conducted his defence was, in effect, a desire to sabotage it, is illogical and irrational. In truth, that claim is not supported by any cogent evidence. The appellant wrongly asserts that a provocation defence based on Mrs Vella's alleged misconduct would have been extremely strong, and that no counsel could have reasonably run this defence without emphasising this aspect of Mrs Vella's behaviour. The appellant appears to be blind to changes in contemporary attitudes of behaviour as to what might constitute provocative conduct for the purposes of s 281 (repealed) of the Code. His allegations of alleged misconduct by Mrs Vella overlook the fact that, at the time he killed her, he and his wife were separated and she was entitled to live her own life, which included forming relationships with whomever she chose.
12. Of the evidence identified by the appellant in his oral submissions, the correspondence is, as the appellant accepted in the hearing of the appeal, 'new' evidence. It is not 'compelling' because it is not highly probative in the context of the issues in dispute at the trial and, in particular, it is not highly probative in respect of the issue of provocation under s 281 (repealed) of the Code. Nor is it, in light of all the evidence, capable of satisfying us, on the balance of probabilities, that the appellant is innocent of the crime of wilful murder and guilty of only manslaughter.
13. As for the transcript excerpts from the 2014 proceedings, while they may be considered as 'fresh' evidence because they could not have been tendered at the trial or at the appellant's first appeal against conviction, they are not 'compelling' because they are not highly probative in the context of the issues in dispute at the trial, and do not give rise to a miscarriage of justice.
14. Leave to appeal in CACR 97 of 2023 must be refused.

1. The proposed ground of appeal in CACR 98 of 2023 is fatally flawed for the reasons set out at [87] ‑ [89] above.
2. Even if the ground were to be taken as a challenge to the conviction based on fresh, or new, compelling evidence (and assuming that the court had jurisdiction to deal with the appeal), it is, like CACR 97 of 2023, hopeless. As this court noted in the first appeal, the appellant faces the obvious problem that he pleaded guilty to the AOBH offence, after obtaining legal advice, in the Court of Petty Sessions on 18 November 2003. In his evidence at trial, he acknowledged the plea of guilty and did not suggest that he had entered that plea for any reason other than out of a realisation of guilt. Moreover, after the appellant was found guilty of the wilful murder of Mrs Vella, at the outset of the sentencing proceedings on 22 April 2005, the appellant again pleaded guilty to the AOBH offence.
3. We also note that, in the appellant's proof of evidence signed 10 March 2005, which is included in the appellant's affidavit of 20 September 2023, the appellant wrote:

This matter was reported to the police. I was charged and pleaded guilty. I accept that I lost control and I pleaded guilty to the charge. Not knowing she was drunk at the time and I thought I could save the marriage.

1. None of the fresh, or new, evidence relied upon by the appellant in the present application is capable of demonstrating any improper act on the part of Mr Bowden in respect of the appellant's conviction for the AOBH offence. Indeed, it is clear that from the time the appellant was charged with the AOBH offence until the time of his sentencing, he accepted his guilt. There was no need for Mr Bowden to coerce the appellant to plead guilty, nor was there any basis for the appellant to change his plea of guilty for the offence.
2. Leave to appeal in CACR 98 of 2023 must be refused.

1. It will be recalled that CACR 99 of 2023 is not an appeal under pt 3A of the CAA. The appellant seeks leave to appeal to this court against his conviction for breaching a violence restraining order; presumably, pursuant to pt 3 of the CAA and, in particular, s 23(2)(a).
2. The ground of appeal relied upon by the appellant is as follows:

Defence counsel Michael John Bowden as he then was, Judge Bowden of the District Court as he is now, used coercion, improper inducement and unfair, prejudicial tactics to disallow me to change my guilty plea to the assault occasioning bodily harm, and, to ensure no jury would find me guilty of manslaughter due to provocation on an indictment of wilful murder. As a consequence of not doing the required investigations, getting certain evidence, not calling certain witnesses, omissions, and cross‑examining diligently he denied me the opportunity to put before the jury, evidence supporting my beliefs that I had been 'set up'. This would have shown a reasonable doubt that the VRO was obtained by deceiving the court.

1. In support of this ground, the appellant submits that there were various documents contained in the materials filed in support of CACR 97 of 2023 and CACR 98 of 2023 that show he was the victim of a 'set up' by Mrs Vella. The 'set up' is something the appellant referred to in his first appeal against conviction in respect of the wilful murder conviction and was rejected by Wheeler JA in Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411 [34], as quoted at [64] above. In the present proceedings, the appellant does not specify exactly what the 'set up' entailed. In essence, the appellant argues that Mrs Vella used deception to obtain the violence restraining order and, accordingly, it was invalid. Accordingly, his actions on 29 December 2003 could not have been in breach of it.
2. None of the evidence now relied upon by the appellant establishes that Mrs Vella obtained the violence restraining order against him by 'deception'. The basis for the violence restraining order was the events of 12 November 2003. Even on the account he gave at his trial of the events of 12 November 2003, he, at least, without any justification, grabbed Mrs Vella by the head and hit her head against the wall, an action which well justified the making of the violence restraining order. Contrary to the submissions of the appellant, the violence restraining order was properly made. It was not obtained by deceit and it was legally valid.
3. By 29 December 2003, the appellant had been served with the order. He knew he was bound to comply with its terms. He was not permitted to enter upon, or be within 100 m of, the home. The evidence adduced at trial, including the appellant's own evidence, showed that, contrary to the terms of the violence restraining order, he was in the home on 29 December 2023 and thereby breached the order.
4. Further, it must not be overlooked that the appellant pleaded guilty to the offence of breaching the violence restraining order. It is well established that the circumstances in which a plea of guilty will be set aside on appeal are limited. It has repeatedly been said that it is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. There must be a strong case and exceptional circumstances. An appellant must show that there has been a miscarriage of justice. While acknowledging that the circumstances that may amount to a miscarriage of justice can never be exhaustively identified, there are three well‑accepted circumstances in which a plea of guilty may be set aside. First, where an appellant did not understand the nature of the charge or did not intend to admit guilt. Secondly, where, upon the admitted facts, an appellant could not, in law, have been guilty of the offence. Thirdly, where an appellant's guilty plea was obtained by improper inducement, fraud, or intimidation and the like.[64]
5. The appellant does not rely upon any allegation that he did not understand the nature of the charge or did not intend to admit guilt. Nor did he submit that, on the admitted facts, he could not, as a matter of law, have been found guilty.
6. Although the ground of appeal appears to invoke the third well‑recognised circumstance in which a plea of guilty will be set aside, there is no evidence to suggest that the guilty plea was, in fact, obtained by improper inducement, fraud, or intimidation and the like.
7. There is simply no basis upon which it could be said that the appellant has suffered a miscarriage of justice by reason of his plea of guilty to the offence of breaching a violence restraining order. The ground of appeal is hopeless. An extension of time would be futile and should not be granted.

1. On 21 May 2024, the appellant filed an application for bail pending appeal in respect of CACR 97 of 2023. On 29 May 2024, the appellant also filed applications for bail in respect of CACR 98 of 2023 and CACR 99 of 2023. Those applications were dismissed on 13 August 2024, with reasons to follow.
2. The appellant is presently serving only the sentence of strict security life imprisonment imposed for the wilful murder offence. The other sentences have expired. Accordingly, bail pending appeal is only applicable in respect of CACR 97 of 2023. Bail was refused because, contrary to the submissions of the appellant, we were not satisfied that the ground of appeal relied upon by the appellant had sufficient merit to justify the grant of bail. In any event, it would have been inappropriate to do so, having regard to the seriousness of the offence.
3. After each member of the coram refused to recuse himself from the hearing on 13 August 2024, the appellant made an oral application to adjourn the hearing so as to allow the appellant to 'take this to the High Court to get a writ of mandamus'.[65] The application for an adjournment of the hearing for this purpose was unanimously dismissed, with reasons to follow. Our reasons for refusing the adjournment can be shortly stated.
4. It was not in the interests of justice for the hearing to be adjourned to allow the appellant to pursue an application for a writ of mandamus in the High Court. The prospects of success for such an application are remote, to say the least. If, ultimately, this court has erred in its refusal to grant the appellant's recusal application, then that may be a matter which can be considered by the High Court in the event that the appellant chooses to apply for special leave to appeal the orders made by this court to dismiss the present appeals.

1. These applications for leave to appeal were made without any realistic prospect of success. They do no more than seek to call into question reasonable forensic choices made by defence counsel at trial via new and baseless accusations that he deliberately undermined the appellant's defence of provocation. The applications are so devoid of merit as to be tantamount to an abuse of process. Plainly, these proceedings should never have been commenced.

1. Leave to appeal is refused.
2. The appeal is dismissed.

1. Leave to appeal is refused.
2. The appeal is dismissed.

1. An extension of time in which to appeal is refused.
2. Leave to appeal is refused.
3. The appeal is dismissed.

1. I have had the considerable benefit of reading the joint reasons of Mazza and Mitchell JJA (joint reasons), in draft. My reasons adopt terms used in and assume familiarity with those reasons.
2. At the hearing of Mr Vella's application for leave to bring a second or subsequent appeal, I joined with their Honours in dismissing Mr Vella's application that each member of the coram recuse themselves on the ground of apprehended bias. In my view, it is appropriate that I express my own reasons for dismissing that application.
3. I also wish to express my own reasons for dismissing Mr Vella's applications for leave to bring a second or subsequent appeal against his conviction for the offence of wilful murder (CACR 97 of 2023) and against his conviction for the AOBH offence (CACR 98 of 2023) and for dismissing Mr Vella's application for an extension of time within which to appeal against his conviction for the breach of VRO offence (CACR 99 of 2023). In summary:

(a) In relation to Mr Vella's putative appeals against the convictions for wilful murder and AOBH, both are incompetent as Mr Vella does not have a right to bring those appeals. This is because there is no fresh and compelling, or new and compelling, evidence relating to either offence, as required by s 35E of the CAA.

(b) In relation to CACR 98 of 2023, the putative appeal is also incompetent because Mr Vella is not 'an offender convicted of an offence on indictment', as required by s 35E(1) of the CAA.

(c) Even if Mr Vella does have a right to bring second or subsequent appeals in both CACR 97 of 2023 and CACR 98 of 2023, and on the further assumption that those putative appeals have been properly commenced in accordance with s 35G of the CAA, leave to appeal cannot be given in respect of either matter because the grounds of appeal do not identify fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal, as required by s 35F(4)(a). As Mr Vella only relies on one ground of appeal in each matter, this means that each appeal is taken to be dismissed pursuant to s 35F(5) of the CAA.

(d) In relation to Mr Vella's application for an extension of time within which to appeal against a judgment of conviction entered in the Supreme Court of Western Australia on 22 April 2005, for the breach of VRO offence (CACR 99 of 2023), the application is incompetent. This is because Mr Vella does not have any right to appeal against that conviction under the CAA.

(e) Even if Mr Vella has the right to appeal against his conviction for the breach of VRO offence, he has failed to demonstrate that there are exceptional circumstances justifying the extension of time sought, or that there will be a substantial miscarriage of justice if such an extension is not granted.[66]

1. Following are my reasons for reaching those conclusions.

1. At the outset of the hearing of these matters, Mr Vella made an oral application that all members of the coram recuse themselves on the basis of apprehended bias.
2. The test that must be applied where an application for recusal based on apprehended bias is made is well established. In Charisteas v Charisteas,[67] the High Court said that the apprehension of bias principle is that 'a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'.[68]
3. However, in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[69] the members of the High Court expressed different views on the question of who should hear a recusal application when it concerns a judge sitting as part of an appellate bench. In that regard, Gordon J,[70] Edelman J[71] and Steward J[72] said that where objection is made to the jurisdiction of a multi‑member court because of apprehended bias, the preferable course is for the judge in question to first determine for themselves whether to recuse themselves. If the judge decides not to recuse themselves after providing notice of the material facts or circumstances to the other judges, and an application based on apprehended bias is maintained, or the other judges are concerned that there are matters that may give rise to a potential for apprehended bias, the coram must determine the issue.[73]
4. On the other hand, Kiefel CJ and Gageler J decided that the question of apprehended bias should be considered by all members of the court and not the judge the subject of the application alone,[74] and Jagot J concluded that an application for recusal should be determined by the judge alone.[75] Justice Gleeson did not express any view on this issue.[76]
5. In circumstances in which Mr Vella submitted that all members of the coram should recuse themselves on the basis of apprehended bias, I considered that there were no material facts or circumstances concerning the question of whether I should recuse myself because of a reasonable apprehension of bias over and above the factors on which Mr Vella sought to rely.[77]
6. In the absence of any other relevant material facts or circumstances concerning either Mazza JA or Mitchell JA, and where Mr Vella maintained his objection to the coram,[78] I also did not have any independent concerns that the factors relied on by Mr Vella gave rise to a reasonable apprehension of bias on the part of their Honours.
7. For the following reasons, I formed the view that neither I, nor any other member of the coram, should recuse themselves on the ground of apprehended bias.
8. Although Mr Vella did not clearly articulate the reason why he contended that the various factors upon which he relied gave rise to a reasonable apprehension of bias on the part of the members of the coram, those factors appeared to boil down to the following propositions:

A fair‑minded observer might reasonably apprehend that because the members of the coram form part of the Western Australian judiciary, and because they were also former members of the local legal profession, one or more of the coram might not bring an impartial mind to the resolution of the questions they are required to decide because:

(a) they might consciously or unconsciously be influenced to err against Mr Vella so as to 'protect' past and current members of this court who sat on Mr Vella's previous appeals, and/or to 'protect' Judge Bowden; and/or

(b) they might communicate with past and current members of this court who were members of the coram on Mr Vella's previous appeals, and/or with Judge Bowden, about the merits of Mr Vella's applications that are now before the court; and/or

(c) they might communicate with the Chief Justice about the merits of Mr Vella's applications, in circumstances in which the Chief Justice previously acted on behalf of Judge Bowden in civil proceedings and in connection with a complaint brought by Mr Vella to the Legal Practitioners Complaints Committee; and/or

(d) this court dismissed Mr Vella's previous applications for recusal in Vella v The State of Western Australia [2024] WASCA 48.

1. None of those propositions can be accepted.
2. In relation to the first proposition, it cannot be said that a fair‑minded lay observer might reasonably apprehend that any member of the coram might not bring an impartial mind to the resolution of any question they are required to decide in the context of Mr Vella's applications simply because they are a member of the Western Australian judiciary or because they were also a former member of the local legal profession. In that regard, I agree with what is said at [19] and [20] of the joint reasons.
3. Further, as McHugh, Kirby and Callinan JJ said in Bienstein v Bienstein:[79]

[A] reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corporation Pty Ltd, this court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise. Similarly, ordinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge. (emphasis added) (footnotes omitted)

1. The second and third propositions amount to nothing more than mere speculation. There was no evidence, or any material facts or circumstances, to suggest that any of the members of the coram have communicated, might have communicated, or might in the future communicate with past or current members of this court who sat on Mr Vella's previous appeals, with Judge Bowden, or with the Chief Justice, about the merits of Mr Vella's current applications. Further, the fair‑minded lay observer would be taken to know that it is the duty of judges who sit on the Court of Appeal not to discuss the merits of any matter they are determining with anyone who may have, or may be seen to have, a direct or indirect interest in the outcome of the matter, other than in open court and in the presence of the parties to the matter.
2. As to the fourth proposition, there is no logical connection between this court's previous dismissal of the applications for recusal in Vella v The State of Western Australia [2024] WASCA 48 and a feared deviation from determining the issues in this matter on their merits.

1. After his application for recusal was dismissed, Mr Vella made an application to adjourn the hearing. In submitting that the hearing should be adjourned, Mr Vella explained that he required time to make an application to the High Court in order to further ventilate his arguments in favour of recusal.
2. The court was unanimously of the view that the application for an adjournment should be refused. Mr Vella was advised that the court would give its reasons at a later date. These are my reasons for refusing the adjournment.
3. Mr Vella's request to be given time to make an application to the High Court seeking some form of relief in connection with his failed recusal application, part way through a hearing, fell well short of justifying an adjournment of the hearing. An adjournment for that purpose would unnecessarily fragment the proceedings before this court, in circumstances in which Mr Vella's right to apply to the High Court for special leave to appeal from the final decision of this court would not be jeopardised if an adjournment was not granted. In that regard, if Mr Vella is ultimately able to persuade the High Court that one or more members of the coram erred in refusing to recuse themselves on the ground of apprehended bias, it would follow that this court was deprived of jurisdiction to hear his applications.[80] In those circumstances, any final orders made by this court would inevitably be set aside.
4. As Mr Vella did not offer any other cogent reasons in favour of granting an adjournment of the hearing, I agreed that his application for an adjournment should be refused.

1. I agree with the reasons of Mazza and Mitchell JJA at [143] - [144] for dismissing Mr Vella's applications for bail.
2. Before turning to deal with each of Mr Vella's 'appeals', it is necessary to first say something about the legislative provisions that govern the bringing of second or subsequent appeals, which appear in pt 3A of the CAA.

Part 3A of the Criminal Appeals Act

1. I am indebted to Mazza and Mitchell JJA as they have reproduced almost all of the relevant provisions in pt 3A of the CAA. I would only add s 35E to those provisions. That section is in the following terms:

35E. Second or subsequent appeal against conviction

(1) Subject to this Part, an offender convicted of an offence on indictment may bring a 2nd or subsequent appeal to the Court of Appeal against conviction if -

(a) there is fresh and compelling evidence relating to the offence; or

(b) there is new and compelling evidence relating to the offence.

(2) Evidence is not precluded from being admissible on an appeal brought under this Part just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.

1. A right to bring an appeal against conviction, including a second or subsequent appeal under pt 3A of the CAA, is one that is conferred by statute. As Buss P and Mazza JA observed in Wharton v The Queen [No 2]:[81]

An appeal is entirely a creature of statute. If a right exists to a second (or subsequent) appeal against the same decision the subject of the first appeal, the right must be found in the governing legislation. The governing legislation in this case is the [Criminal Appeals Act], which covers the field in respect of appeals against statutory offences. (citations and footnotes omitted)

1. The right to bring a second or subsequent appeal against conviction is conferred by s 35E of the CAA.
2. In the context of Mr Vella's 'appeals' in CACR 97 of 2023 and CACR 98 of 2023, it is important to observe that the statutory conferral of a right to bring a second or subsequent appeal against conviction by s 35E(1) is made conditional upon, first, the offender having been convicted of an offence on indictment;[82] and, secondly, the existence of fresh and compelling, or new and compelling, evidence relating to the offence the subject of the relevant conviction at the time the appeal notice is filed.
3. This court recently made several observations about the statutory provisions that appear in pt 3A of the CAA in Luo v The King.[83] For the purposes of Mr Vella's efforts to commence second or subsequent appeals against conviction, those observations may be summarised as follows:

(a) A second or subsequent appeal may only be brought if there is fresh and compelling or new and compelling evidence (as those terms are defined in s 35D(1), (2) and (4) of the CAA).

(b) Under s 35E(1), a second or subsequent appeal may only be brought if there is fresh and compelling or new and compelling evidence. That is, fresh and compelling or new and compelling evidence must actually exist at the time the appeal is brought. Accordingly, an offender cannot bring a second or subsequent appeal without putting the fresh and compelling, or new and compelling, evidence before the court, when the appeal notice is filed.

(c) In the case of fresh and compelling evidence, a second or subsequent appeal must be allowed based on that evidence if the court is satisfied that a miscarriage of justice has occurred. In the case of new and compelling evidence, the court must allow such an appeal based on that evidence if the court is satisfied on the balance of probabilities that, in light of all the evidence, the evidence establishes that the offender is innocent.

(d) Under s 35G(1), an appeal under pt 3A of the CAA must be commenced and conducted in accordance with the provisions in pt 3A and the rules of the court. Rule 28A(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) provides that to commence an appeal under pt 3A, an appellant must file a Form 1A (a notice of appeal), an affidavit containing the information set out in r 28A(2), and an appellant's case. Among the information that must be included in the affidavit is the alleged evidence that is to be relied upon in the appeal and whether the evidence is said to be fresh and compelling or new and compelling.

(e) Under s 35F(2) and s 35F(3), this court must decide whether to give leave to appeal on a ground of appeal before the hearing of the appeal unless it considers it necessary or desirable to give leave to appeal at the hearing of, or when giving judgment on, the appeal.

(f) Under s 35F(4), leave to appeal on a ground of appeal cannot be given unless the court is satisfied of two separate things in respect of the fresh and compelling, or new and compelling, evidence the subject of the appeal. First, that the ground identifies fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal, and secondly, that the ground has a reasonable prospect of succeeding.

(g) The fresh and compelling, or new and compelling, evidence, along with the other information required by r 28A(2), is the material upon which this court must decide whether leave to appeal should be granted on any particular ground.

(h) It is not sufficient to prove the existence of fresh or new evidence. The evidence must also be 'compelling' in the sense that it is highly probative in the context of the issues in dispute at the trial of the offence.[84] To be 'highly probative', evidence must have the capacity to have a significant effect upon the resolution of a material issue at the trial.

1. To that summary I would also add that the overall scheme of pt 3A of the CAA suggests that it is only if an offender convicted of an offence on indictment has a right to bring a second or subsequent appeal that has been conferred by s 35E(1), that issues about whether such an appeal has been commenced in accordance with s 35G and the Supreme Court (Court of Appeal) Rules will become relevant. Further, and having regard to the introductory words used in s 35F(4), it is then only if there is a right to appeal, and if the appeal has been properly commenced, that the question of whether leave to appeal should be given will arise.
2. For the avoidance of doubt, I do not suggest that each of these matters must be determined at separate hearings or at separate stages.
3. Against that background, I will now give consideration to Mr Vella's efforts to bring second or subsequent appeals in relation to his convictions for the offences of wilful murder and AOBH. I will then consider Mr Vella's application for an extension of time within which to appeal against his conviction for the breach of VRO offence.

CACR 97 of 2023: Second or subsequent appeal against conviction for wilful murder

1. Mazza and Mitchell JJA have summarised the circumstances relating to Mr Vella's conviction for the offence of wilful murder, and the various applications and appeals that Mr Vella has brought in connection with that conviction. Their Honours have also relieved me of the need to record the procedural background to this matter.
2. In determining this 'appeal', I have had regard to the two affidavits Mr Vella swore on 24 July 2023, which were filed together with the notice of appeal in CACR 97 of 2023 on 23 August 2023, as well as Mr Vella's later affidavit sworn on 20 September 2023.
3. In my view, the putative appeal in CACR 97 of 2023 is incompetent because Mr Vella does not have a right to bring a second or subsequent appeal pursuant to s 35E(1) of the CAA. As was made clear in Luo, it is not enough to establish the existence of fresh or new evidence. The evidence must also be 'compelling'. That is, it must be 'highly probative in the context of the issues in dispute at the trial of the offence', in that it must have the capacity to have a significant effect upon the resolution of a material issue in dispute at the trial.[85] In my view, even on the questionable assumption that there is 'fresh' or 'new' evidence, for the purposes of s 35D(1) and (2), none of the evidence that is currently before the court is 'compelling' for the purposes of s 35D(4).
4. In order to explain why I have reached that conclusion, it is necessary to first say something about the issues that were in dispute at Mr Vella's trial for the offence of wilful murder. To identify those issues it is instructive to have regard to the case of Vella v The State of Western Australia.[86] In that case, Wheeler, Pullin and Buss JJA heard Mr Vella's application to review an earlier decision of Roberts‑Smith JA in Vella v The State of Western Australia,[87] refusing leave to appeal on all but one of the grounds of the proposed appeal. The court also considered one ground of appeal in respect of which Roberts‑Smith JA granted leave.
5. Wheeler JA, with whom Pullin and Buss JJA relevantly agreed, observed that the only live issues at Mr Vella's trial for the offence of wilful murder were intention and provocation.[88] Further, her Honour said that the evidence adduced at Mr Vella's trial was largely not in dispute.[89]
6. Both of those observations accord with my own review of the trial record. The critical questions for the jury to resolve were: (a) whether the State had proved to the requisite standard that Mr Vella intended to kill his wife and; if they were so satisfied, (b) whether the act that caused her death was done in circumstances of provocation for the purposes of the now repealed s 281 of the Criminal Code (WA) (Code).
7. It is against this background that the question of whether the evidence on which Mr Vella now seeks to rely is either fresh and compelling, or new and compelling, falls to be considered.
8. It is not easy to clearly identify the evidence that Mr Vella alleges is fresh or new evidence from the array of materials that are before the court, or why he says that any such evidence is 'compelling'. However, the ground of appeal on which he seeks to rely does provide some insight into his contentions:

Defence counsel Michael John Bowden, as he then was, Judge Bowden of the District Court, as he is now, used coercion, improper inducement, and, unfair prejudicial tactics in the preparation and conduct of my trial for wilful murder. His conduct was calculated to ensure that no jury would find me guilty of manslaughter due to provocation. As a consequence he denied me a fair trial and a miscarriage of justice has occured [sic].

1. As can be seen, the focus of the ground of appeal is on the alleged conduct of Mr Vella's trial counsel. That is entirely consistent with Mr Vella's overall approach to this matter, reflected in his affidavits, and in his written and oral submissions. By repeatedly using colourful phrases such as 'deliberate omissions', 'erroneous advice', 'coercion', and 'unfairly prejudicial tactics', Mr Vella vociferously complains that his trial counsel did not conduct his defence properly. In particular, Mr Vella contends that his trial counsel did not advance the partial defence of provocation, which was then provided for in the now repealed s 281 of the Code, to the fullest permissible extent. On that basis, Mr Vella says that the approach that was taken to this issue deprived him of a fair chance of an acquittal of wilful murder and a conviction of manslaughter.
2. Given the need to establish that there is fresh or new evidence, as defined in s 35D(1) and (2) of the CAA, respectively, it is perhaps understandable why Mr Vella has focused on what he alleges were inadequacies in the way in which his trial was conducted on his behalf. However, in the circumstances of this case, evidence of such alleged inadequacies cannot, of itself, amount to fresh and compelling, or new and compelling evidence. That is at least because evidence that Mr Vella's trial counsel had, in effect, been incompetent in his conduct of the trial would not, of itself, constitute evidence that is 'highly probative in the context of the issues in dispute at the trial of the offence' as required by s 35D(4), and as explained in Luo. Further, as the right to begin a second or subsequent appeal is conferred by s 35E(1) if there is fresh and compelling, or new and compelling, evidence 'relating to the offence', evidence that is merely concerned with the conduct of his trial counsel at the trial cannot assist Mr Vella.
3. In determining whether there is any compelling fresh or new evidence relating to the offence of wilful murder, the relevant focus must be on the evidence Mr Vella alleges was not adduced at his trial or at his first appeal against conviction,[90] which is relevant to a defence of provocation under s 281 of the Code, and not on the reasons why it may not have been adduced at trial.
4. It appears from all of the materials relied on by Mr Vella that his essential contention is that he has a right to bring a second or subsequent appeal against his conviction for wilful murder because there is fresh and compelling, or new and compelling, evidence relating to that offence, which was capable of supporting his defence of provocation under s 281 of the Code, which was not adduced at his trial (or at his appeal). Specifically, Mr Vella says that there is evidence that his deceased wife engaged in various acts of adultery and 'misconduct', and that this evidence is highly probative in the context of the issue of provocation that was in dispute at his trial. That this is the essence of Mr Vella's contentions is confirmed by the following exchange that took place at the hearing of this matter:[91]

MAZZA JA: So, really, what you're saying is at your trial, the alleged acts of adultery were not mentioned as part of - - -

VELLA, MR: No.

MAZZA JA: - - - your defence of provocation.

VELLA, MR: No.

MAZZA JA: That's because, you would say, Mr Bowden, as he then was, decided not to adduce that evidence as part of your defence.

VELLA, MR: You're on the money, your Honour.

1. Section 281 of the Code provided as follows:
   1. Killing on provocation

When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.

1. It might appear surprising to speak of a defence being available to an accused person who has intentionally killed their spouse, which operates so as to reduce the accused's criminal liability for that killing if, applying the words of s 281, they acted 'in the heat of passion caused by sudden provocation, and before there is time for his passion to cool', where the provocation relied on is some form of infidelity on the part of the spouse. The availability of such a defence was the subject of some criticism in the Law Reform Commission of Western Australia's 2007 report, A Review of the Law of Homicide.[92] Indeed, s 281 of the Code was repealed in 2008 as a direct consequence of recommendations made in that report.[93]
2. It can be seen from the text used in s 281 that the 'defence' of provocation operated on the assumption that the relevant accused had unlawfully killed a person in circumstances that would otherwise have constituted wilful murder or murder. Given the verdict in Mr Vella's trial, the jury must have been satisfied beyond reasonable doubt that Mr Vella intentionally killed his wife.
3. Where there was an evidentiary basis for the defence of provocation in s 281, the prosecution was required to prove, beyond reasonable doubt, that the accused had not been relevantly provoked. If the prosecution failed to disprove the defence, the accused would not be entitled to an outright acquittal. The only verdict open to a jury in those circumstances was a verdict of manslaughter.
4. The judge who presided over Mr Vella's trial decided that the defence of provocation under s 281 of the Code was available to Mr Vella at his trial, and the jury were directed to consider it. In that regard, the jury were directed that the 'sudden provocation' they were required to consider was a series of things that Mr Vella alleged in his evidence his wife had said to him shortly before he attacked and killed her. I will say more about Mr Vella's version of events that he gave at his trial later in these reasons.
5. Before identifying the evidence that Mr Vella now alleges is fresh and compelling, or new and compelling, it is first necessary to say something further about the legal framework that applied at the time of Mr Vella's trial. Specifically, it is necessary to say something about the circumstances in which provocation had been held to arise out of some form of 'sexual misconduct' by the spouse of an accused person.
6. This topic was comprehensively canvassed by Steytler J (with whom McLure and Pullin JJ relevantly agreed) in Hart v The Queen.[94] His Honour commenced his review of the relevant cases with the following observation:[95]

[t]hey are, in some respects, a curious collection, revealing conflicting attitudes which, over time, have shifted with the prevailing community standards.

1. Justice Steytler noted, by reference to a series of cases from Code states as well as cases from the United Kingdom, that over time there had been a 'willingness to leave open the defence of provocation in a case in which a person (usually the husband) finds his or her spouse in an act of adultery'.[96] His Honour also said that there was a suggestion in the cases that it was not necessary that the accused's spouse be caught in the act of adultery, and that it is enough if the spouse is found in circumstances from which an immediately recent act of adultery can safely be inferred.[97]
2. His Honour also referred to cases that suggested that:

(a) there is a distinction between infidelity (or even proposed infidelity) in marriage, when compared to that in a de facto relationship;[98]

(b) mere suspicion of adultery will not be enough to give rise to the availability of the defence of provocation;[99] and

(c) confessions of adultery are 'more problematical', and that there is no real consistency in the cases, with much depending upon the individual circumstances of each case.[100]

1. It is against this background that it is then necessary to refer to the evidence Mr Vella gave at his trial.
2. Mr Vella's evidence has been comprehensively summarised in the joint reasons. Relevantly, Mr Vella gave sworn testimony before the jury of the following:

(a) After the incident that resulted in him being charged with the offence of AOBH, and after he was served with the VRO, he left the matrimonial home.

(b) When he then found out that his wife was in a relationship with another man, he was 'not very keen' to get back together with her, and that before the night he killed his wife he had 'definitely' accepted that they were 'going to go [their] separate ways'.

(c) On 27 December 2003, he bought a knife and a black beanie so that he could slash the tyres of the car owned by his wife's new partner; not because they were in a relationship, but because of the effect Mr Vella believed the partner was having on his son.

(d) He drove to his wife's home in the early hours of the morning of 29 December 2003, in possession of the knife, where he saw a man who he thought was not his wife's new partner. He said that he was concerned that his wife was cheating on her new partner.

(e) He went back to his wife's house later that morning intent upon slashing the tyres on the car that was in the driveway. He said that he did not know whose vehicle it was.

(f) When he came back to his wife's house, and looked through a window, he saw his wife and another person 'get up' (from sitting down), before he then saw a man come out of the house, get into a car and drive off.

(g) He then went up to his wife's house and knocked on the door. He had a knife and a baseball bat in his possession. Importantly, he said that he was '[c]alm, very calm' at this stage.

(h) When he spoke to his wife at the front door, she told him, in effect, that she was going to stop him from ever seeing his children again.

1. Mr Vella gave the following evidence-in-chief in which he described how he came to violently and fatally assault his wife:[101]

What did she say?---'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.'

Are you able to tell me the tone of voice that those remarks were made to you?---Very angry, venomous, you know.

Are you able to tell me what you can recall going through your mind and what happened next?---She can't do this, I can't - I can't not see the children. I'll never see the children. I had spent five weeks complying with her every wish, and suddenly I'm in a situation where I'm never going to see the kids again - just disbelief.

Can you recall if after she said to you, 'I kicked you out of the fucking house, I'll stop you seeing the kids, I'll destroy you, you'll never see the kids again,' you said anything?---Yeah, I did.

What did you do and what did you say?---I said, 'You bitch,' and I kicked the door.

Can you recall kicking the door?---I do.

Can you recall the door in fact opening?---After a while I do, yeah.

Tell us in your own words - - -?---While I was kicking the door she's screaming from the other side, 'The kids hate you, the kids hate you,' and I just - you know, and when the door opened I could still hear her, 'You'll never see the kids again,' but I couldn't see her, and, 'The kids hate you.'

Tell me what happened?---Then I thought I heard the bedroom door slam. I'm not sure about this. I don't recall seeing her going in the bedroom, but the bedroom door slammed and then I ran to the bedroom door and kicked that in.

Tell me what you can - can you recall as you ran to the bedroom door - - -?---Just her words, 'The kids hate you, the kids hate you.'

Do you recall doing anything physically?---To her?

No, no, you tell me. You have run through, you have told us what you -- -?---Yeah, then I kicked the bedroom door.

Yes?---Then the next thing I recall - my mind just went blank there. The next thing I recall is I'm next to the bed with the knife in my hand and the river of blood coming out of her neck.

Do you - - -?---That - that's - that's all I recall.

Do you recall using the baseball bat in any shape or form?---No.

Do you recall using the knife in any shape or form?---No.

Through your plea of guilty to the offence of manslaughter on Tuesday morning you have accepted responsibility for what took place. Do you recall using the bat at all?---No, no.

Do you recall anything other than what you have told us as you ran through the house?---No.

1. As can be seen from Mr Vella's own evidence at his trial, his case was not that he killed his wife 'in the heat of passion caused by sudden provocation, and before there [was] time for his passion to cool' because he found her in an act of adultery, or because he inferred that there had been an immediately recent act of adultery, or because she had confessed to him that she had engaged in adulterous conduct. On Mr Vella's version, his reason for bursting uninvited into his wife's home, while holding a knife and a baseball bat, and then killing her, had nothing to do with any adulterous conduct on her part. In fact, the overall effect of his evidence was that he accepted that his wife had moved on from their relationship. Mr Vella actually said that he was more concerned that his wife had been unfaithful to her then current partner.
2. On Mr Vella's version of events, he was provoked by his wife's threats that he would never see his children again, that his children hated him and that she would 'destroy' him. Mr Vella's evidence was that it was what his wife said to him at the front door of her home that made him change from being 'calm, very calm' to someone who kicked in two doors and then, as Wheeler JA said at Mr Vella's first appeal against conviction, 'battered the deceased about the head with the baseball bat and cut her throat with the knife'.[102]
3. I have carefully read all three of Mr Vella's affidavits that he relies on in support of his contention that he can bring a second or subsequent appeal against his conviction for wilful murder. It appears to me that Mr Vella is operating under the misapprehension that any evidence that his wife engaged or may have engaged in adulterous conduct while she was married to him is evidence that is probative in the context of the issue of provocation, which was in dispute at his trial.
4. At the hearing of his applications for leave to appeal, Mr Vella was asked to identify the fresh and compelling, or the new and compelling, evidence he relied on in support of his purported right to bring a second or subsequent appeal in CACR 97 of 2023. In response, Mr Vella referred to correspondence that passed between himself and his trial counsel, Mr Bowden, between 2004 and 2006, before, during and after his trial.[103] Mr Vella also said that he relied on an extract of some transcript of evidence that both he and Mr Bowden gave in proceedings he commenced against Mr Bowden in the Supreme Court in which he made three money claims based on alleged overcharging, a failure to invest certain moneys and a claim for interest.[104] Each of those claims were dismissed.[105]
5. Mr Vella also appeared to rely on a proof of evidence signed by him on 10 March 2005, which was the date he gave evidence at the trial.[106] He also referred to affidavits that he said had been sworn by a Mabel Smith, a Hubert Smith, a Josephine Sacco (Mr Vella's sister) and a Michael Dawson (a lawyer who apparently represented Mr Vella in connection with the VRO that is the subject of CACR 99 of 2023).[107]
6. I will proceed on the assumption that is favourable to Mr Vella, that the three affidavits and the various attachments to those affidavits are in admissible form, and that the evidence is otherwise admissible. On the basis of that highly questionable assumption, I am of the view that there is no evidence that is probative, let alone evidence that is 'highly probative', of the issue of whether Mr Vella was provoked when he killed his wife. More specifically, Mr Vella's affidavits do not contain any evidence that is highly probative of the proposition that he was provoked into killing his wife because she had engaged in any adulterous conduct, far less anything that even remotely suggests that he was provoked after finding her engaged in an act of adultery, or because he inferred that there had been an immediately recent act of adultery, or because she had confessed to him that she had engaged in adulterous conduct.
7. The fact that there is no such evidence is consistent with the evidence Mr Vella gave at the trial, and the general approach that was taken by his trial counsel to the issue of provocation. The version of events in Mr Vella's own evidence is completely inconsistent with the notion that he killed his wife 'in the heat of passion caused by sudden provocation, and before there [was] time for his passion to cool', brought on as a result of any adulterous conduct on her part. Even if Mr Vella held suspicions about his wife's conduct at the relevant time and, contrary to his evidence, that is what provoked him to fatally wound his wife, that would not be probative of a defence of provocation.[108]
8. It follows that, even if the evidence Mr Vella relies on is 'fresh' or 'new' for the purposes of s 35D of the CAA, none of that evidence is 'compelling' for the purposes of s 35D(4). The evidence relied on is not highly probative in the context of the issue in dispute at Mr Vella's trial of whether the State had proved that he had not killed his wife under provocation for the purposes of s 281 of the Code.
9. It is necessary to briefly deal with a suggestion made by Mr Vella that the evidence he relies on establishes that he was the victim of a 'set up' that his wife perpetrated on him, which is fresh and compelling, or new and compelling.[109]
10. In an affidavit he swore on 1 June 2006, apparently in connection with his first appeal, Mr Vella set out the particulars of this alleged 'set up'.[110] Although Mr Vella describes the 'set up' in great detail, it is difficult to understand its logic. As best as I can discern, Mr Vella appears to suggest that his wife engaged in a scheme over a period of time in order to secure a substantial proportion of the assets of the marriage in a divorce. This scheme involved her getting Mr Vella out of the home they shared together, inciting him to assault her, keeping her relationship with another man secret from him, setting their children against him, and inciting him to breach the VRO so that he would be imprisoned. However, as Mr Vella himself said in his affidavit, '[a] lot of this is hearsay'.
11. On the highly questionable assumption that this evidence is fresh or new, for the purposes of s 35D(1) and (2) of the CAA, I am of the view that it most certainly is not compelling for the purposes of s 35D(4). This is because it has no logical bearing on the issues that were in dispute at the trial of the offence of wilful murder, namely whether the State had proved that Mr Vella intended to kill his wife and whether it had proved that he had not been provoked.
12. It follows that Mr Vella does not have a right to bring a second or subsequent appeal against his conviction of wilful murder under s 35E(1) of the CAA, with the result that the 'appeal' in CACR 97 of 2023 is incompetent.
13. If, contrary to the views I have just expressed, Mr Vella does have the right under s 35E(1) to bring a second or subsequent appeal against his conviction for wilful murder, and on a further assumption, favourable to Mr Vella, that the appeal has been properly commenced under s 35G, I agree with Mazza and Mitchell JJA that the ground of appeal in CACR 97 of 2023 does not identify any fresh and compelling, or any new and compelling, evidence relating to the offence of wilful murder as required by s 35F(4)(a) of the CAA. In those circumstances, and in accordance with s 35F(4), it is not open to this court to give leave to appeal. As there is only one ground of appeal on which Mr Vella wishes to rely, this means that the appeal would be taken to have been dismissed pursuant to s 35F(5) of the CAA.

CACR 98 of 2023: Second or subsequent appeal against conviction for AOBH

1. As has been explained in the joint reasons, Mr Vella was convicted of an offence of AOBH after he pleaded guilty to that offence on two separate occasions. The first occasion on which Mr Vella pleaded guilty was when he first appeared in the Court of Petty Sessions, shortly after he received advice from a lawyer on 17 November 2003.[111] The second occasion was when he pleaded guilty in the Supreme Court on 22 April 2005.
2. The charge of AOBH was made in a complaint made under the now repealed Justices Act 1902 (WA) that was before the Supreme Court as a result of a notice that had been prepared and served under s 32 and s 33 of the Sentencing Act. I will explain the procedure provided for in those provisions in more detail when I deal with Mr Vella's application for an extension of time within which to appeal in CACR 99 of 2023.
3. The ground of appeal sought to be relied on by Mr Vella in CACR 98 of 2023 is in the following terms:

Defence counsel at trial, Michael John Bowden as he then was, Judge Bowden of the District Court as he is now, used coercion, improper inducement and prejudicial tactics to deny me the opportunity to change my guilty plea and take the matter to trial. As a consequence the assault occasioning bodily harm (aobh) charge was put before the jury in a highly prejudicial manner which was prejudicial to my wilful murder trial. It also denied me to [sic] opportunity to overturn the conviction for the aobh. (emphasis added)

1. Having regard to the terms of s 35E, which I have set out earlier in these reasons, there are two reasons why I am of the view that Mr Vella's putative second or subsequent appeal in CACR 98 of 2023 is incompetent.
2. First, as s 35E makes clear, the right to bring a second or subsequent appeal is conferred on 'an offender convicted of an offence on indictment'. However, Mr Vella was not convicted of the AOBH offence 'on indictment'. Instead, he was convicted of that offence on a complaint.
3. The procedure that was adopted pursuant to s 32 and s 33 of the Sentencing Act, under which Mr Vella was ultimately sentenced in the Supreme Court for the offence of AOBH as a 'pending charge' (as defined in s 31 of that Act) does not affect that conclusion. While s 33(3) of the Sentencing Act provides that '[a] sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment', there is no analogous provision that deems that a conviction entered in a superior court for a pending charge is to be taken as a conviction on indictment for the purpose of a second or subsequent appeal against conviction.
4. The fact that Mr Vella was not convicted of the AOBH offence on indictment is fatal to his attempt to bring a second or subsequent appeal against that conviction.
5. Secondly, I am not satisfied that there is fresh and compelling evidence, or new and compelling evidence, relating to the offence of AOBH, as required by s 35E(1)(a) and (b) of the CAA, respectively.
6. Consistently with the approach taken by Mazza and Mitchell JJA, I will proceed on the basis, favourably to Mr Vella, that the alleged fresh and compelling, or new and compelling, evidence sought to be relied on is the evidence contained in the two affidavits he swore on 24 July 2023, and in the further affidavit he swore on 20 September 2023. I will also proceed on the assumption, and without deciding, that those affidavits contain or at least refer to 'fresh' or 'new' evidence (as defined in s 35D(1) and (2) of the CAA, respectively) that relates to the offence of AOBH (as required by s 35E).
7. However, as I have already noted in the context of CACR 97 of 2023, s 35D(4) of the CAA provides that evidence relating to an offence of which an offender was convicted is 'compelling' if it is highly probative in the context of the issues in dispute at the trial of the offence. As Mr Vella pleaded guilty to the offence of AOBH, there were no 'issues in dispute at the trial of the offence'. In those circumstances, there is no basis on which this court could conclude that the evidence Mr Vella relies on is 'compelling'.
8. In any event, even if I am wrong in concluding that Mr Vella's attempt to bring a second or subsequent appeal in CACR 98 of 2023 is incompetent, it would not be open to give leave to appeal on the solitary ground of appeal on which he seeks to rely. This is because, as was the case in respect of the ground of appeal in CACR 97 of 2023, the ground of appeal on which Mr Vella wishes to rely does not identify any 'fresh and compelling evidence or new and compelling evidence that should, in the interests of justice, be considered on an appeal', as is required by s 35F(4)(a) of the CAA. In those circumstances, this court 'must not' give leave to appeal on that ground, with the result that it must be taken to be dismissed pursuant to s 35F(5).

CACR 99 of 2023: Leave to appeal against conviction for breach of VRO

1. On 22 April 2005, Mr Vella was convicted of an offence of breaching a VRO contrary to s 61(1) of the Restraining Orders Act 1997 (WA), after he pleaded guilty to that offence in the Supreme Court on the same day he was sentenced for the offences of wilful murder and AOBH. Notwithstanding his plea of guilty, and despite a delay of more than 18 years in filing a notice of appeal, Mr Vella now applies for an extension of time within which to appeal against that conviction.
2. The sole ground of appeal that Mr Vella wishes to rely on has been reproduced in the joint reasons. When read with his written and oral submissions, Mr Vella's essential contention appears to be that the VRO he admitted breaching so many years ago was 'issued by a court which had been deceived'.[112] The 'deceit' is said by Mr Vella to have been some form of 'set up' perpetrated by his now deceased wife.
3. I note that Mr Vella's contention that the VRO was obtained by deceit appears to be somewhat at odds with evidence that appears in one of his affidavits he swore on 24 July 2023. In that regard, at page 68 of the affidavit there is a letter from a lawyer who apparently appeared for Mr Vella at the Joondalup Court of Petty Sessions on 23 December 2003. In that letter, the lawyer wrote that '[on 23 December 2003] you were consenting to the VRO with an amendment to assist with facilitation of contact of the children'.
4. However, it is unnecessary to resolve this apparent conflict in the evidence. This is because Mr Vella's application for an extension of time within which to appeal must be refused in any event. In my view, Mr Vella has no right to appeal to this court against the conviction for breaching the VRO. Further, and in any event, I would not be prepared to grant an extension of time within which to appeal, having particular regard to the extraordinary period of time that elapsed before the appeal notice was filed.
5. To explain why I have reached the view that Mr Vella does not have any right to appeal against his conviction for breaching the VRO, it is first necessary to say something about how that offence came to be dealt with by the Supreme Court on 22 April 2005.
6. At the relevant time, an offence of breaching a VRO contrary to s 61(1) of the Restraining Orders Act was a simple offence.[113] Section 32(1) and (2) of the Sentencing Act 1995 (WA) provided then, as it does now, that an offender who is to be sentenced by a superior court for an offence can request such a court to also deal with any 'pending charges' against him or her, by preparing and serving a list of such charges. A 'pending charge' is 'a charge, in a court of summary jurisdiction of an offence (whether indictable or simple) for which no sentence has been imposed'.[114] For the purposes of s 32, a superior court is to be taken to have jurisdiction to deal with simple offences.[115]
7. When a list of pending charges is prepared and served, the relevant superior court is then required to take a plea from the offender for any of those charges the offender has not been previously convicted of, and to ask the offender if they also want the court to pass sentence for each pending charge for which they have been convicted.[116] Then, if the State consents and the court considers that it is just to do so, in addition to sentencing the offender for the original offence,[117] the court can also sentence the offender for each pending charge.[118]
8. In Mr Vella's case, a list of pending charges was prepared and served on the State. That list included the charge of breaching a VRO. It is apparent from the complaint in which the charge of breaching the VRO was preferred, that it had been lodged in the Court of Petty Sessions. Further, the transcript of the proceedings before the Supreme Court on 22 April 2005, when Mr Vella was sentenced for that offence, reveals that his plea of guilty to that charge was entered for the first time in the Supreme Court.
9. It was after the plea was entered that a judgment of conviction was then entered by the Supreme Court, and a sentence of 11 months' imprisonment was later imposed.
10. Pursuant to s 33(3) of the Sentencing Act, where an offender is sentenced by the Supreme Court for a pending charge, that sentence is taken to be a sentence imposed following conviction on indictment, but only 'for the purposes of an appeal against sentence'. As Mr Vella is seeking an extension of time within which to appeal against his conviction for the offence of breaching a VRO, that provision has no application. As I have already noted, there is no other similar provision in the Sentencing Act that provides that a conviction of a pending charge is to be taken as a conviction on indictment for the purposes of an appeal against conviction.
11. Against that background, it is then necessary to note that the rights of an offender to appeal from a judgment of conviction entered by a superior court are provided for in s 23 of the CAA:
    1. Rights of appeal of offender

(1) An offender convicted of an offence on indictment may appeal to the Court of Appeal against any or all of the following decisions -

(a) the conviction;

(b) the sentence imposed on the offender or any order made as a result of the conviction;

(c) a refusal to make an order that might be made as a result of the conviction.

(2) An offender convicted by a court of summary jurisdiction and sentenced by a superior court may appeal to the Court of Appeal against any or all of the following decisions -

(a) the conviction;

(b) the sentence imposed on the person or any order made as a result of the conviction;

(c) a refusal to make an order that might be made as a result of the conviction.

1. In relation to his application for an extension of time within which to appeal in CACR 99 of 2023, Mr Vella is plainly not an 'offender convicted of an offence on indictment', for the purposes of s 23(1) of the CAA. The only relevant offence that was 'on indictment' was the offence of wilful murder. The simple offence of breaching a VRO was charged on complaint. Section 33(3) of the Sentencing Act does not affect that conclusion because, as I have said, that provision only applies for the purposes of an appeal against sentence, which CACR 99 of 2023 is not.
2. Further, it is clear that Mr Vella was also not '[a]n offender convicted by a court of summary jurisdiction', for the purposes of s 23(2) of the CAA. Based on the endorsements on the complaint, and on the transcript of the sentencing proceedings in the Supreme Court, Mr Vella was not convicted of the offence of breaching a VRO in a court of summary jurisdiction but in the Supreme Court.
3. It follows that Mr Vella does not have a right to appeal to this court against the conviction for the offence of breaching the VRO. As a result, his application for an extension of time within which to appeal is incompetent.
4. Even if, contrary to the views I have expressed on this point, Mr Vella does have a right to appeal to this court, and this court does have jurisdiction to entertain Mr Vella's application for an extension of time within which to appeal against his conviction for breaching a VRO, I would not be prepared to grant him that extension of time in any event.
5. Section 28(3) of the CAA provides that an appeal against a decision or judgment, under pt 3, cannot be commenced later than 21 days after the date of the decision or judgment unless this court orders otherwise. This provision reflects the principle of finality, while at the same time conferring a discretion on the court to extend the time limit provided for.[119] As the plurality in Kentwell v The Queen said, albeit in a different statutory context:[120]

The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re‑opening a concluded criminal proceeding ... Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted.

1. It has been said by this court on many occasions that where there has been a lengthy delay in filing an application for leave to appeal, the court will require exceptional circumstances to be established before an extension of time within which to appeal will be granted, unless it can be shown that there will be a substantial miscarriage of justice if the extension is not granted.[121]
2. In Wimbridge v The State of Western Australia,[122] Wheeler JA said that this test may in some cases give rise to two questions: what will constitute 'exceptional circumstances', and what does it mean to say that it has been shown that there will be a 'miscarriage of justice' if an extension is not granted.[123] In that regard, her Honour noted that a compelling explanation for a delay will generally constitute 'exceptional circumstances', but that the category of 'exceptional circumstances' is not closed. However, Wheeler JA also observed that if all that were required to demonstrate a miscarriage of justice were that there was a ground which would have succeeded in a regularly instituted appeal, it raises questions about the purpose of the statutory time limit and the existence of the discretion to extend time. In that regard, her Honour said that both principle and authority suggest that the court may require more to be demonstrated than that an appeal ground will be successful, before time is extended.
3. The need for an extension of time in a case such as the present is no mere formality. An extension of time for such an inordinately lengthy delay must be justified by evidence that properly addresses the length of, and reasons for, the delay.[124]
4. The question of whether the discretion in s 28(3) of the CAA should be exercised will ultimately depend on the weighing of relevant factors. Those factors may include the length of the delay in seeking to commence an appeal, the reasons for that delay, whether the offender who is seeking to appeal is serving a term of imprisonment or whether they have suffered other serious consequences as a result of the conviction, whether there would be any prejudice to the State occasioned by the delay, the effect on any victim and the strength of the case that is sought to be argued on appeal. This, of course, is not an exhaustive list.
5. Mr Vella filed his application for an extension of time over 18 years after he pleaded guilty to and was convicted of the offence of breaching a VRO. It has now been over 21 years since he committed that offence. The delay in seeking to commence an appeal is extraordinary. However, notwithstanding the delay, Mr Vella has not provided any cogent explanation for why an appeal against conviction was not commenced at a much earlier point in time. Further, the materials before this court on which he relies fall well short of establishing that there are exceptional circumstances justifying an extension of time.
6. It is also important to appreciate that the State would be severely prejudiced if an extension of time were granted. After such a long delay, it would be almost impossible for the State to properly deal with Mr Vella's contention that his conviction should be set aside because the VRO itself was obtained as a result of a 'set up' perpetrated by the woman who he killed.
7. The plurality in Kentwell said that the prospect of success is a relevant consideration to be taken into account in deciding whether to grant an extension of time within which to appeal.[125] In that regard, I agree with Mazza and Mitchell JJA's conclusion about the merits of Mr Vella's proposed ground of appeal.
8. Mr Vella pleaded guilty. However, Mr Vella does not suggest in his proposed ground of appeal, or in his submissions or affidavits, that he did not understand the nature of the charge or that he did not intend to admit guilt, or that upon the admitted facts he could not, in law, have been guilty of the offence; or that his guilty plea was obtained by improper inducement, fraud, intimidation or the like.[126] His sole contention is that the VRO itself was obtained by deceit perpetrated by his deceased victim.
9. However, by voluntarily pleading guilty, Mr Vella formally admitted all of the elements of the offence of breaching the VRO proscribed by s 61,[127] including the element that he was 'bound' by the VRO. Accordingly, even if Mr Vella could establish that the VRO had been obtained by some deceitful conduct, it would by no means follow that there had been a miscarriage of justice such that the conviction for breaching that VRO would be set aside.
10. I agree with Mazza and Mitchell JJA that Mr Vella's proposed ground of appeal is properly described as 'hopeless'. In those circumstances, I would refuse to grant the extension of time within which to appeal in CACR 99 of 2023 in any event, even if the 'appeal' was not incompetent.

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

[1] The appellant also appealed against his sentence in respect of the wilful murder offence. Ultimately, that appeal was dismissed: see Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411 [84] ‑ [93] (Wheeler JA), [100] ‑ [102] (Buss JA). It is of no relevance to the present proceedings.

[2] Vella v The State of Western Australia [2007] HCATrans 167; Vella v The State of Western Australia [2008] HCASL 552; Vella v The State of Western Australia [2012] HCASL 81.

[3] His Honour was appointed to the District Court of Western Australia on 6 March 2007.

[4] Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78.

[5] Vella v Bowden [No 2] [2012] WASCA 271.

[6] Vella v Michael John Bowden of Cannon Bowden & Co [No 3] [2014] WASC 98.

[7] Tang v The Queen [2024] WASCA 110 [15], citing JS v The State of Western Australia [2014] WASCA 177 [4] ‑ [5].

[10] CAA, s 27(1).

[12] Vella v The State of Western Australia [2024] WASCA 48. See also, Vella v Bowden [2011] WASCA 158.

[13] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148 [67] ‑ [71], citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

[14] As to which, see s 281 (repealed) of the Code and the detailed analysis set out in Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441 [37] ‑ [104] (Steytler J).

[15] 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].

[16] See also, The State of Western Australia v Watson [1990] WAR 248, 264.

[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] See Ding v De Wit [2024] TASSC 6 [3].

[20] Orr v Geason [2024] TASMC 11.

[21] This summary is taken mostly from the transcript of the trial and from the judgments in Vella v The State of Western Australia [2006] WASCA 129 and Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411.

[39] Mr Bowden's closing address, ts 2 - 15.

[40] Mr Bowden's closing address, ts 13 - 15.

[41] Vella v The State of Western Australia [2006] WASCA 177 [209].

[42] Vella v The State of Western Australia [2006] WASCA 177 [21] ‑ [37].

[43] Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411.

[44] Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411 [24] ‑ [35].

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

[46] Vella v The State of Western Australia [2006] WASCA 129.

[47] Vella v The State of Western Australia [2006] WASCA 129 [35] ‑ [39].

[48] Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 435 ‑ 436 (Dixon J).

[49] Luo v The King [2025] WASCA 36.

[51] See Zhong v The King [2023] VSCA 35 [13] (Kyrou, McLeish & Kennedy JJA). Although decided in the context of a somewhat different statutory scheme for second or subsequent appeals, the principle applies equally to pt 3A of the CAA.

[52] CAA, s 27(2). See also Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

[53] Vella v The State of Western Australia [2006] WASCA 177 [15] ‑ [16].

[55] Adams v The State of Western Australia [2014] WASCA 191; (2014) 290 FLR 165 [167].

[61] The partial defence to murder was repealed on 1 August 2008. At the time of the appellant's offending on 29 December 2003, s 281 (repealed) of the Code provided that:

When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute wilful murder or murder, does the act in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.

[62] Affidavit of 20 September 2023, 20.

[63] Affidavit of 20 September 2023, 46.

[64] See Borsa v The Queen [2003] WASCA 254 [20] ‑ [21] (Steytler J; Murray ACJ & Hasluck J agreeing). See also Wilhelm v The State of Western Australia [2013] WASCA 188 [51] ‑ [52] (Mazza JA; McLure P & Buss JA agreeing).

[66] See, for example, Rahimi v The State of Western Australia [2024] WASCA 13 [25] ‑ [26].

[67] Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289.

[68] Charisteas [11] citing Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6] and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 [110].

[69] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 279 CLR 148.

[71] QYFM [108], [131] ‑ [135] (Edelman J).

[73] QYFM [101] - [104] (Gordon J), [109] (Edelman J).

[74] QYFM [26] - [34] (Kiefel CJ & Gageler J).

[77] Those factors are referred to in the joint reasons at [16].

[79] Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 [33].

[80] QYFM [57] (Kiefel CJ & Gageler J), [65] (Gordon J), [188] (Edelman J).

[81] Wharton v The Queen [No 2] [2017] WASCA 164 [35] (Buss P & Mazza JA).

[82] By analogy, see Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 [87] ‑ [89] (Buss JA).

[83] Luo v The King [2025] WASCA 36 [46] ‑ [53].

[84] See Criminal Appeals Act, s 35D(4), s 35E(1)(a), (b), s 35F(4).

[86] Vella v The State of Western Australia [2007] WASCA 59; (2007) 33 WAR 411.

[87] Vella v The State of Western Australia [2006] WASCA 177.

[88] Vella [2007] WASCA 59; (2007) 33 WAR 411 [18] (Wheeler JA, Pullin & Buss JJA agreeing).

[89] Vella [2007] WASCA 59; (2007) 33 WAR 411 [22] (Wheeler JA, Pullin & Buss JJA agreeing).

[90] Vella [2007] WASCA 59; (2007) 33 WAR 411. See also Vella [2006] WASCA 177.

[93] Criminal Law Amendment (Homicide) Act 2008 (WA), s 12.

[94] Hart v The Queen [2003] WASCA 213; (2003) 27 WAR 441.

[102] Vella [2007] WASCA 59; (2007) 33 WAR 411 [22].

[103] Appeal ts 77 - 78. The correspondence is annexed across all three of Mr Vella's affidavits.

[105] Vella v Michael John Bowden of Cannon Bowden & Co [No 3] [2014] WASC 98.

[106] The proof of evidence is annexed to one of Mr Vella's affidavits sworn 24 July 2023 and to his affidavit of 20 September 2023.

[107] Appeals ts 81. Copies of the affidavits are annexed across all three of Mr Vella's affidavits.

[109] Affidavit of Joseph Bernard Vella sworn 20 September 2023, 4.

[110] Affidavit of Joseph Bernard Vella sworn 1 June 2006, which begins at page 71 of one of two affidavits sworn by Mr Vella on 24 July 2023.

[111] Vella v The State of Western Australia [2006] WASCA 129 [27] ‑ [28].

[112] Mr Vella's written submissions dated 24 July 2023, pars 3 and 4.

[113] Interpretation Act 1984 (WA), s 67(1), (1a), (2), (3).

[114] Sentencing Act 1995 (WA), s 31.

[115] Sentencing Act, s 32(4).

[116] Sentencing Act, s 33(1).

[117] The 'original offence' is the offence the offender is to be sentenced for by the superior court: Sentencing Act, s 32(1).

[118] Sentencing Act, s 32(2).

[119] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 [32].

[121] See, for example, Rahimi [25] - [26].

[122] Wimbridge v The State of Western Australia [2009] WASCA 196.

[127] Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J).