Dominik v Volpi
[2004] WASCA 18 (S)
•10 FEBRUARY 2004
DOMINIK -v- VOLPI [2004] WASCA 18 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 18 (S) | |
| Case No: | SJA:1093/2003 | 3 FEBRUARY & 22 MARCH 2004 | |
| Coram: | ROBERTS-SMITH J | 10/02/04 | |
| 22/03/04 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | ANTONI ARTUR DOMINIK FREDERIC VOLPI |
Catchwords: | Practice and procedure Leave to appeal Decision of single Judge dismissing appeal against conviction in Court of Petty Sessions Fresh evidence |
Legislation: | Justices Act 1902 (WA), s 206A, s 187 |
Case References: | Dominik v Kay (2003) WASCA 174 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 22 MARCH 2004 FILE NO/S : SJA 1093 of 2003 BETWEEN : ANTONI ARTUR DOMINIK
- Appellant
AND
FREDERIC VOLPI
Respondent
Catchwords:
Practice and procedure - Leave to appeal - Decision of single Judge dismissing appeal against conviction in Court of Petty Sessions - Fresh evidence
Legislation:
Justices Act 1902 (WA), s 206A, s 187
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr M A G Jenkin
Solicitors:
Appellant : In person
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Dominik v Kay (2003) WASCA 174
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: On 3 February 2004 I heard an appeal by the applicant against his conviction and sentence recorded by Mr Brown SM in the Fremantle Court of Petty Sessions on 10 December 1998. The conviction was on one count of breaching a violence restraining order and the sentence was four months' imprisonment imposed on 31 December 1998. In October 2003 Pullin J extended time and granted the applicant leave to appeal against that conviction and sentence.
2 On 10 February this year I dismissed Mr Dominik's appeal. By an application dated 16 February 2004 Mr Dominik seeks leave to appeal to the Full Court against my decision dismissing his appeal. There is no affidavit filed in support. The only document before me is the application itself.
3 The proposed grounds of appeal are (a) that weight should have been placed upon Mr Vladich's declaration because five years has passed since the event; he may have had trouble recalling what happened but his declaration was made earlier and he did not have the benefit of an interpreter in giving his evidence and (b) if the evidence of Eminoski and Brkich cast doubt upon Mrs Gospavic's evidence on the assault charge, that must put doubt on her evidence in the other case. Those are directed to ground 2(e) of the appeal from the learned Magistrate. That ground was:
"Fresh evidence has become available since conviction and if the learned Magistrate had heard the evidence he would have acquitted the applicant."
4 The application is made under s 206A(1) and (3)(a) of the Justices Act 1902 (WA). I take the test for leave to appeal to the Full Court under s 206A to be the same as that for leave to appeal from a Court of Petty Sessions under s 187(1). So much follows from s 206A(4). Section 187(1) says:
"The judge shall grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case."
5 The section clearly indicates that leave to appeal shall be granted unless one or more of those features are shown. It is not necessary for there to be more than one of those features present for leave to be refused. That outcome would follow were the court to be satisfied of any one of them.
(Page 4)
6 I note from what Mr Dominik has told me from the bar table this morning that his concern is that the complainant and her son whom he describes as "these people" are still saying things about him which are not true and that they are now making different accusations.
7 He has, he says, a transcript of a court case, which I assume involves each of them or all of them, of a hearing on 8 March 2004. Mr Dominik tells me that the outcome of the first case, that is the first case before the Magistrate, turned on the basis of what he says were false accusations which the complainant has now changed and which he says can be shown by an examination of the transcript of 8 March.
8 When I pointed out that none of that had anything to do with the proposed grounds of appeal on his notice of application for leave to appeal, Mr Dominik said that he did not wish in fact to appeal against my decision of 10 February but rather he wanted to produce new evidence to show the decision of the Magistrate was wrong, that is the decision in December 1998.
9 He indicated that he therefore wished to withdraw the present application, but it seems to me inappropriate in the circumstances to simply allow him to withdraw it. I think it should be dealt with on its merits and so I turn to the applicant's proposed grounds of appeal on his application dated 16 February.
10 The argument that weight should have been placed on Mr Vladich's declaration because five years had passed since the event, he may have had trouble recalling what happened but his declaration was made earlier and he did not have the benefit of an interpreter when giving his evidence, is both frivolous and does not disclose an arguable case.
11 It is frivolous because it is of little or no weight, worth or importance - see the definition of "frivolous" in the "Macquarie Dictionary", second revised edition, p 708. The ground proceeds on the wrong assumption that Mr Vladich's written declaration would be admissible in evidence as opposed to his oral testimony before the court of trial. That is not so.
12 The document would not have been admissible for the applicant to prove the facts asserted in it. Mr Vladich was called on the appeal, as he would have to have been before the Court of Petty Sessions. His testimony did not come up to what was in his declaration. The proposed ground of appeal does not contest that conclusion but asserts his declaration should have been accepted in preference to his oral testimony. That argument could not succeed.
(Page 5)
13 The suggestion that Mr Vladich's declaration should be accepted because it is likely to be more reliable than his oral testimony because the declaration was made closer to the events and he did not have the benefit of an interpreter when giving his evidence cannot be accepted in any event. The declaration was translated into English from what the applicant wrote in Polish which the applicant says was what Mr Vladich told him in Serbian.
14 Having had the benefit of seeing and hearing Mr Vladich give evidence I was satisfied that although he had difficulty he nonetheless understood what he was being asked and was in the end able to adequately respond. It was clear that what was in Mr Vladich's English declaration was far more what the applicant thought or wanted him to say than what Mr Vladich actually did say, either then or in his testimony. This ground is frivolous and does not disclose an arguable case.
15 Nor does the second proposed ground disclose an arguable case. In his determination of the applicant's appeal against the two convictions relating to the incidents on 4 August 1998, Dominik v Kay (2003) WASCA 174 Hasluck J allowed the appeal because he concluded that the fresh evidence of Ms Eminoski and Ms Brkich which came to light after the applicant's conviction, had it been given before the learned Magistrate, then having regard to the content of that evidence and other particular features mentioned by his Honour, would probably have been sufficient to give rise to a reasonable doubt as to whether the prosecution had established its case in respect of those two charges.
16 It is essential to appreciate that Mrs Gospavic was the only witness who gave direct evidence in respect of those charges but, as pointed out at [66] of my reasons for decision of 10 February, by contrast, evidence of what happened on 28 August was given not only by Mrs Gospavic but by her son who was able to give a detailed account of the events and their evidence was supported by that of Constable Volpi who arrived in response to their call for assistance and by his observation of the applicant's condition and behaviour following his arrival.
17 The events of 28 August and 4 August 1998 were quite separate and distinct. The evidence in support of them was different. Although Hasluck J concluded the evidence of Ms Eminoski and Ms Brkich would probably have been sufficient to give rise to a reasonable doubt, all that means is that his Honour thought it would probably have led to a situation in which, despite Mrs Gospavic's evidence, which was unsupported by any other direct evidence, the learned Magistrate would probably have
(Page 6)
- been left in the situation that he could not be satisfied beyond reasonable doubt the assault had occurred as she had described it on that date, namely 4 August 1998.
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.
19 That argument is entirely met by the fact that there was other cogent evidence which it was open to the learned Magistrate to accept, which was accepted by him and which supported Mrs Gospavic's testimony on that occasion. This proposed ground of appeal is not arguable. The application for leave to appeal against my decision of 10 February 2004 will be refused.
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