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 Knutsford Street, Fremantle. The appellant lived in the adjoining flat. After a period of ill will between the occupants of the adjoining flats the complainant and her son obtained violence restraining orders against the appellant which were served upon him on 18 May 1998, and were still current on 4 August 1998. The appellant was required by the orders not to communicate with the persons protected or to commit or attempt to commit any violent personal offence against them, or to behave in an intimidatory or offensive manner towards them.
The complainant and her son gave evidence through an interpreter. The complainant said that on 4 August 1998 she came home at about 1.00 pm after an appointment with her doctor. As she was unlocking her security door she looked to the side and noticed that her neighbour's door was opening a fraction. The appellant's hand came out with a spray and he sprayed the left side of her face. She quickly dashed into her own premises to wash off the spray. Fortunately, she had glasses on and the spray did not get into her eyes, but it trickled down her cheek. She waited until her son came home at about 4.00 pm and then reported the matter to the police. She was treated by her doctor for the injury to her cheek on the following day.
The complainant's evidence was supported by the evidence of the doctor who treated her on the following day, and a police officer who had enquired into the matter. The evidence showed that the court orders in question had been personally served upon the appellant and remained in force.
The appellant represented himself at the hearing before the learned Magistrate. He denied the allegations made by the complainant, and thus denied that he was in breach of the court order or guilty of any assault. He said that he was born in Poland and came to Australia in 1984. He worked in Northam initially but came to Perth in due course. He said that he was not at the Knutsford Street block of flats at midday on 4 August 1998 as alleged. He was able to account for his movements in this way. On 3 August he was working at premises in Osborne Park and three days later on 6 August he attended a funeral in Northam. These dates helped him to establish that on 4 August he went with his neighbour, Mr Vlajic, to work on some locks in Minilya Avenue, Hilton being a job that was not completed until late in the afternoon. His evidence was supported by Mr Vlajic.
In the course of his summing up, the learned Magistrate noted that there was no independent eye‑witness to the alleged assault. However, he took account of the fact that a report was made to the police on 4 August by the female complainant and she did attend a doctor the next day. These pieces of evidence did not strictly corroborate the complainant's account but they were consistent with the evidence she gave and removed any possibility of a late invention on her part. The learned Magistrate did not regard the appellant as a reliable witness and discounted the evidence of Mr Vlajic having regard to an indication in the course of cross‑examination that Mr Vlajic did not have an independent recollection of changing the locks on 4 August 1998.
The learned Magistrate went on to say that he was satisfied as a fact that the appellant was at home when the female complainant returned at about 1.00 pm and that he did intentionally open his screen door and point a can of aerosol spray in her direction with the result that she was sprayed just below the eye. It followed that, in his view, the charges of breaching the violence restraining order and assault had been proved.
On 31 December 1998, the appellant was sentenced to concurrent terms of 4 months' imprisonment with respect to each of the three offences referred to above. It follows from my earlier description of the matters in issue before the learned Magistrate that the complainant's case was that the events which constituted the offences the subject of this appeal occurred on 4 August 1998. The appellant sought to refute the case by relying upon evidence that he was at another address when the events the subject of the complaint were said to have occurred.
Three years later, on 27 February 2002, the appellant was ordered to pay criminal injuries compensation in the sum of $3,000 to the complainant, Ms Milanka Gospavic, in respect of the offences for which the appellant was convicted.
The appellant said in an affidavit sworn 17 January 2003 in support of his application for leave to appeal that he and his witness were at a disadvantage at the hearing because they did not have interpreters and this inhibited the understanding of his main witness, Mr Vlajic. He affirmed that in his belief he had a good defence of alibi but could not present his defence adequately owing to his lack of legal representation and inadequate legal skills. He stated that subsequent to his conviction the complainant was awarded a sum of $3,000 by the Criminal Injuries Compensation Board for a ten cent "spot" injury on her face. He said that he had appealed this decision on the ground that the damages awarded were excessive and upon the basis that he was not guilty of the offences giving rise to the claim. He then referred to the obtaining of new evidence bearing upon the matters in issue and provided an explanation for his delay in proceeding with an appeal.
The order granting an extension of time for leave to appeal and leave to appeal dated 6 March 2003 establishes that leave to appeal against the conviction on complaints FR98/7594 and FR98/7595 was granted on the grounds that fresh evidence had become available since the conviction which would have led to the acquittal of the appellant.
It is against this background that the issue concerning fresh evidence falls to be considered.

Fresh evidence

The appellant said in his affidavit sworn 17 January 2003 in support of the application for leave to appeal that on 20 October 2002 Mrs Zofia Eminoski contacted him on the phone and asked whether he could help her with her sprinkler. After finishing the job, they talked over coffee. During the conversation she told him that she had seen the appellant at Hilton in August 1998 around 1.00 pm and had tooted her car horn at him. The appellant confessed to being surprised as he did not notice her. Ms Eminoski went on to say that she was with a friend named Irena Brkich.
The appellant then asked Ms Eminoski whether she would make a statutory declaration referring to these events and she agreed to do so. As a consequence of those exchanges statutory declarations by Ms Eminoski and Ms Brkich were brought into existence.
The appellant's sole ground of appeal relates to fresh evidence which it is said has become available since the appellant's conviction and which would have led to his acquittal. The evidence in question consists of the two statutory declarations I have just described.
By notice of motion dated 6 May 2003, the appellant was granted leave pursuant to O 65A(3) of the Rules of the Supreme Court for Ms Zofia Eminoski and Ms Irena Brkich to give oral evidence on the hearing of the appeal in this matter.
Before turning to the contents of the statutory declarations and the cross‑examination concerning the same that occurred at the hearing, it will be useful to look briefly at the relevant statutory provisions and principles bearing upon the grounds of appeal in the present case.

Legal principles

I begin by noting that by s 196 of the Justices Act 1902 the Court shall determine the appeal on the material before the Court below. There is power to receive further evidence as the Court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put before the court below in regard to a sentencing issue: Rowlands v Caporn [2001] WASCA 66.
By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing. The Court is not required to set aside or quash if the facts or evidence in substance support the decision. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal, notwithstanding that a point raised in the appeal has been decided in favour of the appellant.
A Magistrate must set out the facts and findings and the reasons for his or her decision. The finding of guilt is not to be reached simply by rejecting the case put forward by the accused. The court has to positively believe beyond reasonable doubt the evidence presented by the prosecution: Harling v Hall (1997) 94 A Crim R 437.
If the appellant court, having made its own independent assessment of both the sufficiency and quality of the evidence, is left with a reasonable doubt, then that is a doubt which the primary court ought to have had and the conviction should be quashed: M v The Queen (1994) 181 CLR 487.
However, where an appeal is made against findings of fact which depend upon a view taken as to the credibility of witnesses, an appellant court will refrain from interfering with those findings of fact unless it appears that the judicial officer has failed to use, or palpably misused, the advantage of hearing and seeing the witnesses or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
If an inference is drawn from primary facts and said to be wrong, it is for the court of appeal by way of rehearing to analyse the evidence and objective facts in order to determine the issues afresh: Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 448.
It seems, however, that unless the Court is persuaded that, properly informed, the Magistrate would have inevitably reached the same verdict, the Court on appeal should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility: Glennon v The Queen (1994) 179 CLR 1.
As I have indicated, the relief may take the form of quashing the decision in question or remitting back to the court below. The task is to balance the public interest in the conviction of a wrongdoer, the interests of an accused person, and the pragmatic considerations of cost and efficiency in the administration of justice. Where the error is fundamental, the interests of justice may be best served by quashing the conviction and sentence, and substituting a verdict of acquittal: Verhoeven v Ninyette (1998) 101 A Crim R 24.
The general rule as to fresh evidence is that no miscarriage of justice will result from a failure to lead evidence if the evidence was available or could with reasonable diligence have been available at the time the trial took place: Mickelberg v The Queen (1989) 167 CLR 259 per Toohey and Gaudron JJ at 301.
Of fundamental importance is whether there has been a miscarriage of justice. Thus in determining whether the evidence is fresh, considerable latitude is afforded to the accused: Gallagher v The Queen (1986) 160 CLR 392 per Gibbs J.
When the Court is satisfied that the evidence is fresh, it must decide if the trier of fact, acting reasonably, might have acquitted the accused had the fresh evidence been before it at the trial: Bourne v Elliss [2001] WASCA 290 per Miller J at 23.
The relevance, cogency and plausibility of the fresh evidence in all of the circumstances must be considered along with the evidence given at trial: Ratten v The Queen (1974) 131 CLR 510.
Should the appeal be allowed, the Court will give consideration to whether in the exercise of its discretion, it is in the interests of justice for the complaints to be remitted to the Court of Petty Sessions for rehearing.

The Eminoski statutory declaration

The statutory declaration of Zofia Eminoski dated 20 November 2002 was to this effect:
"I, named above, certify that I know Antoni Dominik from Northam, over 10 years. Antoni Dominik now lives in Fremantle, 114/18 Knutsford street. I also left Northam and now live at the address given above. Antoni Dominik used to help me with garden work and in the back yard where I now live. I used to bring him to my place and took him back home after work to Fremantle where he lives. Nine or ten years have passed since that time and I lost contact with him. I remember as if it was yesterday. It was year 1998, at the beginning of August, on a Tuesday, 4th August, because I checked my paperwork. On this day I decided to go to Fremantle, where in South Street there are two butcher's shops which cold meats made in European style. My friend, Irena Brkjch, who lives at 15b Skiddaw Place, Balga came with me. I left Balga at about 12 noon because this is lunch time for working people and there is not much traffic on the road. At about 1 pm I usually return home with my shopping. On that day, when we were ready to come home, Decided to show my friend where I used to live in Samson Street. I turned into Minilya Avenue which is about 100 meters from the butcher's shop. It might have been about 1.05 pm. I noticed two men standing by the letter boxes of a block of units. One of them was Antoni Dominik, whom I recognised straight away. Both men were busy repairing something. I noticed some tools nearby. I did not know the other man. He was of slim build and was bald. I tooted my car horn, but I did not know if Antoni Dominik recognised who I was. I told my friend that I was surprised to see Antoni there as he used to live in a flat in Fremantle and now he must be living in a unit. We did not talk about Antoni any more. When we got home at about 20m I found out that my favourite cat was killed by a car on the road. My friend and I buried it in the garden. This was a tragic day for me as I treated that little animal like a member of my family.
About a month ago I contacted Mr. Dominik again and asked him to connect some sprinklers. During our conversation Mr Dominik told me about the fact that he was accused falsely by his woman neighbour in the flats where he lives, that he sprayed her face with some kind of spray. He was sentenced to four months in jail. He was innocent because during the time he was accused, he and another man were in Hilton changing locks on a friend's letter box. This is when I told him that I saw him on that day he mentioned when my friend and I were returning from shopping.
Mr Dominik said that he did not recognise me at the time and did not know it was me tooting the car horn. He asked me if I would be willing to testify that I saw him on that day at 1 pm. It was very important to him. Therefore, I am telling the truth that my friend and I saw him on that day and we are willing to testify by signing this document."
At the hearing before me Ms Eminoski affirmed that the contents of the statutory declaration were true. She was then cross‑examined by counsel for the Crown. In the course of that cross‑examination the following points emerged.
She said that she was friends with the appellant not in a personal but in a family way. He helped her with locks and with her garden. She was questioned about that part of her evidence‑in‑chief in which she referred to having first met the appellant in Northam when they both lived there and to attending a funeral of a mutual friend at Northam, Michael Kozitski, on 6 August 1998. She said that she had seen the appellant at the funeral. She agreed, under cross‑examination, that her statutory declaration did not contain any mention of being contacted by the appellant about the funeral or about going to the funeral. She agreed that he spoke to her some years later about having a problem with a neighbour and having been in prison.
Ms Eminoski was also cross‑examined closely about her movements on the day referred to in her statutory declaration, being the day she identified as 4 August 1998. According to her, she often went to Fremantle to buy cold meat on pension days and sometimes took her friend Ms Brkich. It was her friend, Ms Brkich, who noticed the two men with their tools and Ms Brkich who observed that one of them looked like Ms Eminoski's friend, this being a reference to the appellant. She did not stop to speak to the appellant because she did not have time, although it was on the following day that he rang up to speak to her about the funeral in Northam. She did not concede that the relevant date or any other significant detail in her statutory declaration was in error.

The Brkich statutory declaration

The statutory declaration of Irena Brkich made 20 November 2002 is to this effect:
"One day I was returning from shopping with my friend Zofia Estella Eminoski, who lives at 64A Princess Road, Balga 6061. We went to South Street, Hilton, where we buy our cold meats and other European products. On that day, at about 1 pm or a few minutes after, when we were coming back from shopping Zofia suggested that we drive past the house where she once lived in Samson Street. This street is about 200 or 300 meters from the butcher's shop. My friend first turned into Minilya Avenue and that is when I saw two men standing by the letter box, near the drive. Zofia tooted the car horn and I asked her why she did that. She answered that one of the men, the fatter one, was Antoni Dominik, Polish by birth, who once worked for her, doing the garden and working in the back yard.
About a month ago I was introduced to Antoni Dominik, who asked me if I would testify that I saw him in Hilton, together with another man, who I don't know personally. Therefore, in truth, I certify that in 1998, on Tuesday 4th August at about 1 or 1.06 pm I saw Antoni Dominik, together with another man. We left the butcher's shop at 1 pm. I remember that day, month and year, because that day my friend was very upset, because her can was run over on the street and we both buried it in the garden. If it is necessary, I can testify this fact in court, both me and my friend."

At the hearing before me Ms Brkich affirmed that the contents of the statutory declaration were true. She was then cross‑examined about the declaration. In the course of the cross‑examination the following points emerged.
Ms Brkich said that she had met the appellant previously on some occasions at Ms Eminoski's place. When she (Ms Brkich) was asked whether she would say that she had seen him in the street no mention was made of him having to pay compensation to the complainant. She said that she was a good friend of Ms Eminoski and had been with her to Fremantle on three or four occasions. She said that when she saw the appellant in the street her friend Ms Eminoski tooted but they did not have time to stop. They had to get back to Balga to pick up children. Under cross‑examination, she said that she knew the incident occurred early in August and she believed it was 4 August 1998.

The respective submissions

The appellant referred to the fact that at the hearing before the learned Magistrate he relied on the defence of alibi and in particular that he was working on a friend's unit fixing new locks at the time of the alleged offence, namely, on 4 August 1998. His evidence was supported by his witness Vlajic who was said to be assisting him.
It is said the learned Magistrate accepted that Vlajic helped the appellant in the changing of the locks on a particular day but concluded that he must have been mistaken as to the relevant date. It is against this background that the fresh evidence of Mrs Eminoski and Mrs Brkich becomes important. It appears from the statutory declarations that these witnesses recall the date in question as the occasion when they travelled to Hilton and observed the applicant and another working at the front of a block of units in Minilya Avenue, Hilton. They identify the date as the same occasion that Eminoski's cat was killed and buried.
The appellant submits that there is no suggestion that the appellant and Vlajic worked on changing the locks at the premises in question on any other date. It is said the dismissal of Vlajic's evidence was unfair as he needed only have corroborated the occasion. The date was fixed by the appellant who could recall it by reference to the day he worked in Osborne Park and the fact that he attended a funeral in Northam two days later on 6 August 1998. The appellant refers to the evidence of Mrs Eminoski as corroboration that he did attend a funeral at Northam on the date just mentioned.
It is therefore said that the fresh evidence in various respects corroborates the appellant's alibi. In view of the evidence of the two further witnesses the conviction must be considered as unsafe.
Counsel for the respondent submitted that the task of the Court was to consider, first, whether the new evidence was credible and, second, subject to that assessment, what effect would the evidence have had on the outcome if it had been placed before the learned Magistrate at the hearing. Counsel submitted that the evidence reflected in the statutory declarations could not be characterised as credible because there was a degree of vagueness in the accounts provided and it was significant that details concerning the funeral at Northam had been omitted. Counsel said further that the new evidence had to be considered in the context of evidence given at the original hearing. In circumstances in which there were no independent eye‑witnesses to the alleged assault and the Magistrate had characterised the appellant as an unreliable witness, the appeal court could not safely conclude that the outcome would have been affected by further evidence bearing upon the supposed alibi.

Conclusion

I begin by noting that it is necessary to keep under notice from the outset the nature of the relief that can be afforded to the appellant if the appeal is allowed.
If the appeal is allowed the Court will give consideration to whether, in the exercise of its discretion, it is in the interests of justice for the complaints to be remitted to the Court of Petty Sessions for rehearing.
Factors in favour of remitting the complaints to a retrial include the fact that the offences the subject of the complaints cannot be described as trivial. Further, it is significant in cases of this kind that the evidence led on behalf of the complainant was sufficiently cogent to justify a conviction: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630.
Factors which might suggest that it is not in the interests of justice to remit the complaints include the fact that whatever the reason for the delay in bringing the appeal, the events which are the subject of the complaints are alleged to have occurred in August 1998 and recollections of relevant witnesses may have faded. In addition, it has to be kept in mind that the appellant has already served a term of imprisonment, with respect to the offence of breach of violence restraining order, which was imposed at the same time as the offences which are the subject of this appeal. Accordingly, if the appeal is allowed and the matter is remitted back to the Magistrate, with the result that a further hearing is held, it is questionable, in the event of the appellant being convicted again, that any further sentence is likely to be imposed.
Let me now turn to the evidentiary matters in issue, having regard to the statutory provisions and legal principles mentioned in earlier discussion.
I am satisfied that the evidence sought to be adduced by the appellant should be characterised as fresh evidence and brought to account on appeal. I am satisfied that the evidence could not with reasonable diligence have been obtained by the appellant at the time of the hearing before the learned Magistrate. It emerges from the statutory declarations, and the subsequent cross‑examination concerning the same, that the appellant was not aware that he had been observed in the street by Ms Eminoski and Ms Brkich. I am prepared to accept that it came to him by chance some years after the event that they might have evidence bearing upon his defence of alibi. The nature of the evidence was clearly relevant to the matters in issue and had a bearing upon the strength of the defence case. Accordingly, I consider that the evidence should be brought to account in weighing up and determining the matters brought into issue by the appeal.
It emerges from my review of the decided cases that the relevance, cogency and plausibility of the fresh evidence in all of the circumstances must be considered along with the evidence given at trial. Ms Eminoski and Ms Brkich were both cross‑examined at some length but did not resile from the version of events reflected in their statutory declarations. They did not appear to be flustered by the questions put to them in cross‑examination and I am of the view that they both emerged as reasonably credible witnesses. Accordingly, if evidence of this kind had been before the learned Magistrate at the hearing it is likely to have influenced the outcome.
When I endeavour to assess the impact of the new evidence in the context of evidence given at the trial, I am immediately conscious that, ultimately, as I indicated in earlier discussion, the findings made by the learned Magistrate turned upon his conclusion that the evidence given by the appellant and his witness could not be regarded as reliable. However, there are indications in the transcript of the hearing that a lack of specificity by the appellant and his supporting witness, Mr Vlajic, combined with some language difficulties, may have weighed against the defence case and the alibi contended for by the appellant. Accordingly, in my view, the presence of the Eminoski and Brkich evidence bearing upon the issue of alibi would probably have been sufficient to give rise to a reasonable doubt as to whether the prosecution had established the case put forward on behalf of the complainant.
The decided cases indicate that unless the Court is persuaded, properly informed, the Magistrate would have inevitably reached the same verdict, the Court on appeal should provide relief, especially where a finding as to an element of an offence necessarily depends on credibility: Glennon v The Queen (supra). Accordingly, I am of the view that the two convictions in issue should be quashed.
I must now address the further question of whether the matter should be remitted back for a further hearing. The respondent did not press for such a course of action having regard to the fact that the sentence previously imposed had been served and there are likely to be certain difficulties associated with a rehearing owing to the passage of time. I have taken account of these views and consider that in the circumstances of the present case the appropriate form of relief is to make an order quashing the two convictions. I will hear from counsel as to whether any further orders or directions are required.