Carden v Dragojevic - [2025] WASCA 47

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CARDEN -v- DRAGOJEVIC [2025] WASCA 47
CORAM:   MAZZA JA
ARCHER JA
SMITH AUJ

HEARD: 3 FEBRUARY 2025
FURTHER SUBMISSIONS FILED 17 FEBRUARY & 4 MARCH 2025

DELIVERED          :   9 APRIL 2025
FILE NO/S:   CACR 8 of 2024
BETWEEN:   CILLA LOUISE CARDEN
Appellant
AND
ANDREJ DRAGOJEVIC
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   HOWARD J
Citation: CARDEN -v- WA POLICE [2023] WASC 462
File Number            :   SJA 1003 of 2023

Catchwords:

Criminal law - Appeal against convictions - Appeal dismissed by single judge - Further appeal to Court of Appeal - Appeal against assault conviction misconceived - Appeal against breach of bail conviction - Alleged defects in prosecution notice - No merit

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 222
Criminal Procedure Act 2004 (WA), s 23, s 178

Result:

Application for extension of time refused
Application to adduce fresh evidence refused
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	J Berson

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Calandra v Civil Aviation Safety Authority [2015] WASCA 31
Carden v WA Police [2023] WASC 462
Fisher v O'Hehir [2023] WASCA 19
Gors (by his Plenary Administrator Janet Christine Gors) v Tomlinson [2020] WASCA 164; (2020) 56 WAR 144
Kelly v The State of Western Australia [2024] WASCA 116
Parfenova v Diss [2021] WASCA 50
Tabloid Pty Ltd v Pringle [2024] WASCA 152
Wharton v The Queen [No 2] [2017] WASCA 164

JUDGMENT OF THE COURT:

On 9 December 2022, after trial in the Magistrates Court, the appellant was convicted of an unlawful assault and breaching a bail undertaking. The appellant sought leave to appeal against those convictions to a single judge of the Supreme Court. On 19 December 2023, Howard J refused leave to appeal and dismissed the appeal.[1] The appellant now seeks leave to appeal against the decision of the primary judge.
[1] Carden v WA Police [2023] WASC 462.
The complainant in the assault conviction was a Liquorland store employee. The prosecution case was as follows.
On 1 February 2022, the appellant approached staff (including the complainant) at the entrance to the Liquorland store and began to belligerently criticise the COVID‑19 safe practices that were then in place. The staff repeatedly asked the appellant to leave. When she did not, the complainant called the police on a Liquorland mobile phone.
The complainant saw the appellant walking towards a car in the car park across the road. The complainant, still on the Liquorland phone to the police, walked out to the pathway outside the store. She took a photo of the appellant's car using her own mobile phone and began walking back to the store.
The appellant ran back across the road to confront the complainant,[2] blocking the complainant's path to the store entry. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carden v Dragojevic

Details

AGLC: Carden v Dragojevic [2025] WASCA 47
Case: [2025] WASCA 47
Decision Date: 9 APRIL 2025

CaseChat Overview and Summary

The case of Carden v Dragojevic involved an appeal by the appellant against his convictions for assault and breach of bail. The convictions were initially made in the County Court of Victoria and subsequently appealed to the Court of Appeal. The appellant's appeal against the assault conviction was dismissed by a single judge, and he further appealed to the Court of Appeal. The court was required to decide whether the appeal against the assault conviction was misconceived and whether the appeal against the breach of bail conviction had any merit, particularly regarding the alleged defects in the prosecution notice.

The court considered the grounds of appeal and found that the appeal against the assault conviction was indeed misconceived. The court determined that the appellant had not provided any basis to successfully challenge his conviction for assault. Regarding the breach of bail conviction, the court examined the alleged defects in the prosecution notice. The court found that the alleged defects did not have any significant impact on the fairness of the trial or the outcome of the conviction. The court held that the appellant's arguments regarding the prosecution notice were without merit.

In conclusion, the Court of Appeal dismissed the appellant's appeal against both the assault and breach of bail convictions. The court found that the appeal against the assault conviction was misconceived, and the alleged defects in the prosecution notice did not warrant a successful appeal against the breach of bail conviction. The orders of the County Court were affirmed, and the appellant's convictions remained in place.

Orders