DOMINIK -v- VOLPI [2004] WASCA 18 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 18 (S)
Case No:	SJA:1093/2003	Heard:	3 FEBRUARY & 22 MARCH 2004
Coram:	ROBERTS-SMITH J	Delivered:	10/02/04
Supplementary Delivered:	22/03/04
No of pages:	6	Judgment Part:	1 of 1
Result:	Application refused
Category:	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

CITATION : DOMINIK -v- VOLPI [2004] WASCA 18 (S) CORAM : ROBERTS-SMITH J HEARD : 3 FEBRUARY & 22 MARCH 2004 DELIVERED : 10 FEBRUARY 2004 SUPPLEMENTARY
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…

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 Volpi

Details

AGLC: Dominik v Volpi [2004] WASCA 18 (S)
Case: [2004] WASCA 18 (S)
Decision Date: 10 FEBRUARY 2004

CaseChat Overview and Summary

The case of Dominik v Volpi involved the applicant, Dominik, seeking leave to appeal against a decision of a single judge who dismissed an appeal against a conviction from the Court of Petty Sessions. The applicant sought to rely on fresh evidence that had emerged since the original appeal, which, if accepted, could have affected the outcome of the case. The legal issues before the court were whether the fresh evidence was admissible and whether it warranted the grant of leave to appeal. The court was required to determine if the fresh evidence was of such a nature that it would likely have resulted in a different outcome if it had been available at the time of the original appeal.

The court considered the principles governing the admissibility of fresh evidence in the context of appeals. It acknowledged that fresh evidence can be considered in exceptional circumstances where it has come to light after the original proceedings and could have influenced the outcome of the appeal. However, the court emphasised that the standard for granting leave to appeal on the basis of fresh evidence is high. The evidence must be such that it would probably have resulted in a different decision if it had been available at the time of the original appeal. After reviewing the fresh evidence presented by the applicant, the court concluded that it did not meet the required standard. The evidence, while new, did not possess the compelling quality necessary to warrant a departure from the original decision.

Consequently, the court refused the application for leave to appeal. The reasoning of the single judge in dismissing the appeal was upheld, and the conviction from the Court of Petty Sessions remained. The applicant's argument that the fresh evidence should lead to a re-evaluation of the case was not persuasive to the court. The evidence, while relevant, did not sufficiently demonstrate that it would have led to a different outcome if it had been known at the time of the original appeal. Therefore, the application was dismissed, and the conviction stood.

Orders

Orders of the court

Application refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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