Dominik v Volpi
[2005] WASCA 146
•12 AUGUST 2005
DOMINIK -v- VOLPI [2005] WASCA 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 146 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:93/2004 | 22 JULY 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA MILLER AJA | 12/08/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ANTONI ARTHUR DOMINIK FREDERIC VOLPI |
Catchwords: | Practice and procedure Leave to appeal Appeal from decision of single Judge refusing leave Fresh evidence |
Legislation: | Nil |
Case References: | Dominik v Kay [2003] WASCA 174 Dominik v Volpi [2004] WASCA 18 Mickelberg v The Queen (1989) 167 CLR 259 Ratten v The Queen (1974) 131 CLR 510 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DOMINIK -v- VOLPI [2005] WASCA 146 CORAM : WHEELER JA
- ROBERTS-SMITH JA
MILLER AJA
- Appellant
AND
FREDERIC VOLPI
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JOHNSON J
File No : SJA 1025 of 2004
Catchwords:
Practice and procedure - Leave to appeal - Appeal from decision of single Judge refusing leave - Fresh evidence
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr B P King
Solicitors:
Appellant : In person
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Dominik v Kay [2003] WASCA 174
Dominik v Volpi [2004] WASCA 18
Mickelberg v The Queen (1989) 167 CLR 259
Ratten v The Queen (1974) 131 CLR 510
Case(s) also cited:
Nil
(Page 3)
1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Miller AJA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: I agree with the reasons to be published by Miller AJA and have nothing to add.
3 MILLER AJA: The appellant was convicted in the Court of Petty Sessions, Fremantle, on 10 December 1998 of breaching a violence restraining order on 28 August 1998 by banging on the bedroom window of Milanka Gospavic, contrary to the provisions of s 61(1)(b) of the Restraining Orders Act 1997 (WA).
4 The matter was the subject of a trial before Mr Brown SM. There were other complaints of a similar nature heard on the same day, but they relate to events on 4 August 1998.
5 It appears that two violence restraining orders were made in the Court of Petty Sessions, Fremantle, on 7 May 1998 in favour of Milanka Gospavic and her son Davorin Gospavic. Only the order relating to Milanka Gospavic is relevant to these proceedings. The order was served on the appellant on 18 May 1998 and was current on 28 August 1998; it was not varied or revoked at any time. The violence restraining order precluded the appellant from communicating, or attempting to communicate by any means whatever, with Mrs Gospavic. He was not to enter upon the premises where she lived or worked and was not to cause or attempt to cause damage to her property. There was a further provision: he was not to behave in an intimidatory or offensive manner towards Mrs Gospavic or to behave in a manner likely to lead to a breach of the peace.
6 The learned Magistrate found that Mrs Gospavic had arrived in Australia as a refugee from Bosnia in mid-1996 and she lived very close to a flat in which the appellant lived. There were only 30 centimetres between the doors of the two flats. They were in Knutsford Street, Fremantle.
7 The learned Magistrate found that Mrs Gospavic was a pensioner in her 50s. There was clearly a history of animosity between her and the appellant. The appellant was born in Poland and had been in Australia since about 1984. He was a man in his 50s.
(Page 4)
8 The learned Magistrate found that, on 28 August 1998, during the early hours of the morning, the appellant breached the violence restraining order which had been made against him by loudly abusing Mrs Gospavic and by banging on the security screens to both her door and bedroom window.
9 The evidence given by Mrs Gospavic to support that finding was that, on the morning in question, the appellant had grabbed the front security door and attempted to shake it off its hinges and had rattled the security window of her bedroom and insulted her by calling her "A Serbian whore. A prostitute", and alleging that she had a relationship with her own son.
10 There was also evidence in support of Mrs Gospavic's testimony from her son. He testified that on the morning of 28 August there was continual banging on the security windows and the security door was rattled. He could hear the appellant shouting and yelling and could see him from a small window in the kitchen. His evidence was that the appellant was insulting his mother and himself about their nationality and "calling him names":
"Like a bastard, like a Serbian bastard, and he was always calling - - he was calling my mother a Serbian whore that goes and sells herself for $1 down in Fremantle."
11 There was also evidence from the respondent, a police officer stationed at Fremantle police station. He testified that he arrived at unit 113, 18 Knutsford Street, Fremantle on the morning of 28 August 1998 at about 9.48 am. He then went to unit 114 where a colleague spoke with the appellant. The respondent described the appellant as "heavily affected by alcohol … He was very agitated and very aggressive … He kept insulting us and swearing at us and he actually at one stage lunged at Senior Constable Belcher".
12 The learned Magistrate accepted the evidence of Mrs Gospavic as truthful and reliable and also accepted the evidence of Mrs Gospavic's son. He found the appellant to be an unreliable witness and a witness called by the appellant to have been mistaken about his evidence. The offence of breach of the violence restraining order relating to Mrs Gospavic was thus proven.
13 The conviction was the subject of an appeal which came before Roberts-Smith J: Dominik v Volpi [2004] WASCA 18. The appeal was dismissed.
(Page 5)
14 There was then an application for leave to appeal the decision of Roberts-Smith J on the ground of fresh evidence. This was based upon the fact that Hasluck J in Dominik v Kay [2003] WASCA 174 had allowed an appeal against convictions of the appellant in relation to the events of 4 August 1998 by reason of fresh evidence in the form of alibi evidence from an acquaintance of the appellant and her friend. Hasluck J concluded that, had that evidence been before the learned Magistrate, it would probably have been sufficient to give rise to a reasonable doubt.
15 Roberts-Smith J dismissed the application for leave to appeal his decision on the ground of fresh evidence by reason of the fact that the events which occurred on 4 and 28 August 1998 respectively were quite separate and distinct and the evidence in support of them was different. His Honour said, at [18]:
"The statements of Ms Eminoski and Ms Brkich say nothing whatsoever about the events of 28 August 1998. The applicant's argument at its highest is that if Mrs Gospavic's evidence would not have been sufficient upon which to convict the applicant of offences of 4 August 1998 it could not have been sufficient to convict him of the offences of 28 August 1998."
16 On 8 March 2004, there was an application by the appellant before Mr Wheeler SM in the Court of Petty Sessions at Fremantle for a restraining order against Mrs Gospavic's son. In the course of that hearing, Mrs Gospavic gave evidence. She was asked: "Why I come to the gaol" and she responded by saying:
"Are you - - are you forgetting what you have been just doing to me? You have grabbed my throat, trying to choke me. You have scratched my face. You have caused me disability to my vision, 50%. You should be in gaol longer than that. If you were in my country you'd be at least 4 years in gaol. I am a refugee in this country. Shame on you to behave towards me in the manner in which you have. I am not just ordinary immigrant to this country. I had to leave my country because of the occupation."
- The appellant asked:
"Well, I'd like to know why you are saying now that I have done all these things, like grab you by the throat. You didn't say tat in the first court case, which was in 1998. And now you are making up new accusations."
(Page 6)
- Mrs Gospavic said:
"He has asked me a question why he went to gaol and I have given him answer to that."
18 The application for leave to appeal and an application for an extension of time within which to appeal were heard before Johnson J on 8 April 2004. Both applications were refused. Johnson J gave short reasons in which she said that the evidence before her did not constitute fresh evidence relevant to the matter for which the appellant had been convicted on 10 December 1998. Her Honour took the view that the transcription of Mrs Gospavic's evidence on 8 March 2004, even taking it out of its greater context, did not relate to the matter for which the appellant had been convicted on 10 December 1998 and, thus, did not amount to fresh evidence which in any way called into question his conviction.
19 The appellant has appealed to this Court contending that Johnson J erred in the conclusion she reached.
20 In my opinion, the decision of Johnson J was entirely correct. The appellant's contention that Mrs Gospavic's evidence on 8 March 2004 was inconsistent with her evidence on 10 December 1998 cannot be upheld. Mrs Gospavic was clearly answering a question as to why the appellant was in prison, not as to what he had done to her on the day of 28 August 1998. Her answers are clearly capable of being interpreted as events that had occurred over a period of two years because earlier she made it clear that there had been a long sequence of events involving the appellant and herself. The relevant question and answer are as follows:
"MR DOMINIK: Why you no come to police station with your son when that happened? What you say, I come behind your son? Why you no talking to police?
INTERPRETER: The reason that I didn't go to the police to report this, is that I have had quite enough. I have suffered for quite long time from Mr Dominik. For 2 years Mr Dominik has been beating me and my son. Calling names like a slut, a whore, a gipsy. Names. It was an absolute torment. My doctor
(Page 7)
- has all the evidence, and my doctor has advised to keep away from Mr Dominik as much as I can. I do - - if that - - If I would go to the police and report every time, then I would be here every 2 months, reporting Mr Dominik's behaviour towards me.
21 It does not seem that the answer given by Mrs Gospavic on 8 March 2004 was an assertion as to what the appellant had done on any specific day.
22 In my opinion, the appeal from the decision of Johnson J to this Court should be refused on the basis that the evidence sought to be relied upon does not constitute fresh evidence. There is no significant possibility that the Magistrate acting reasonably would have acquitted the appellant had the fresh evidence been before him at trial on 10 December 1998: Mickelberg v The Queen (1989) 167 CLR 259 per Mason CJ at 273. The fresh evidence did not go to the credibility of the evidence of Mrs Gospavic in relation to the events of 28 August 1998. It was not relevant evidence: Ratten v The Queen (1974) 131 CLR 510.
23 The appeal from the decision of Johnson J to refuse the extension of time and leave to appeal should therefore be dismissed.
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