Dominik v Kay - [2003] WASCA 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DOMINIK -v- KAY [2003] WASCA 174

CORAM: HASLUCK J

HEARD: 12 JUNE 2003

DELIVERED : 8 AUGUST 2003

FILE NO/S: SJA 1004 of 2003

MATTER :Justices Act 1902

BETWEEN: ANTONI ARTHUR DOMINIK
Appellant
AND
PAUL KAY
Respondent

Catchwords:

Criminal law - Justices Act - Appellant convicted of assault and breach of violence restraining order - Defence of alibi before Court of Petty Sessions - No independent witnesses to alleged assault - Further defence concerning alibi obtained after conviction - Whether further evidence should be received on appeal - Principles bearing upon reception of further evidence on appeal - Further evidence received and treated as sufficient to raise reasonable doubt - Turns on own facts

Legislation:

Justices Act 1902, s 196, s 199

Rules of the Supreme Court 1971, O 65A(3)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr A W Kaminickas
Respondent: Mr M A G Jenkin

Solicitors:

Appellant: Scott & Kaminickas
Respondent: State Crown Solicitor

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

Bourne v Elliss [2001] WASCA 290
Devries v Australian National Railways Commission (1993) 177 CLR 472
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Gallagher v The Queen (1986) 160 CLR 392
Glennon v The Queen (1994) 179 CLR 1
Harling v Hall (1997) 94 A Crim R 437
M v The Queen (1994) 181 CLR 487
Mickelberg v The Queen (1989) 167 CLR 259
Ratten v The Queen (1974) 131 CLR 510
Rowlands v Caporn [2001] WASCA 66
Verhoeven v Ninyette (1998) 101 A Crim R 24
Vrisakis v Australian Securities Commission (1993) 9 WAR 395

Case(s) also cited:

Nil

HASLUCK J: The appellant, Antoni Dominik, appeals against his conviction on certain complaints in the Court of Petty Sessions at Fremantle on 31 December 1998 on the grounds that fresh evidence has become available since the conviction which would have led to the acquittal of the appellant.
On 6 March 2003 he obtained an order granting an extension of time for leave to appeal and leave to appeal against the convictions. Subsequently, on 19 May 2003, orders were made pursuant to O 65A(3) of the Rules of the Supreme Court for two witnesses, Zofia Eminoski and Irena Brkich, to give evidence on the hearing of the appeal. I will turn to the evidence given by these witnesses in due course.

Background

On 10 December 1998, the appellant was convicted of the offence of breaching a violence restraining order pursuant to complaint number FR98/7594 and the offence of unlawful assault pursuant to complaint number FR98/7595.
On the same day, the appellant was also convicted of a further offence of breaching a violence restraining order pursuant to complaint number FR98/7376 which is not a subject of the appeal.
The case against the appellant was to this effect.
The complainant, Milanka Gospavic, said in evidence that in 1998 she and her son, Davorin Gospavic, were living in a block of flats at 18…

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 Dominik v Kay

Details

AGLC: Dominik v Kay [2003] WASCA 174
Case: [2003] WASCA 174
Decision Date: 8 AUGUST 2003

CaseChat Overview and Summary

In the case of Dominik v Kay, the appellant, Dominik, was convicted by the Court of Petty Sessions of assault and breach of a violence restraining order. The case came before the Court of Appeal where the primary issue was whether the Court should admit and consider further evidence obtained by the appellant after his conviction. The appellant had initially claimed an alibi defence during the trial, but no independent witnesses were called to support this defence. Subsequently, after his conviction, the appellant obtained evidence that would have substantiated his alibi claim.

The court was required to determine whether it was appropriate to consider the new evidence presented by the appellant. This involved examining the principles that govern the reception of new evidence on appeal, particularly in cases where the evidence was not available at the time of the original trial. The court had to balance the need to ensure a fair trial against the importance of finality in legal proceedings. It considered the circumstances under which new evidence might be admitted, including whether the evidence was credible and whether it was reasonably available at the time of the original trial.

The Court of Appeal decided that the new evidence presented by the appellant was credible and that it was reasonably available only after the conviction. The court found that the evidence was sufficient to raise a reasonable doubt about the appellant's guilt. As a result, the court quashed the conviction and ordered a retrial. This decision hinged on the specific facts of the case, where the new evidence provided a plausible explanation for the appellant's innocence that was not available at the time of the original trial.

Orders