DOMINIK -v- VOLPI [2004] WASCA 18
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 18 | |
| Case No: | SJA:1093/2003 | 3 FEBRUARY 2004 | |
| Coram: | ROBERTS-SMITH J | 10/02/04 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | ANTONI ARTUR DOMINIK FREDERIC VOLPI |
Catchwords: | Criminal law Appeal Appellant convicted of breach of restraining order Four months imprisonment Fresh evidence Evidence of witness of conversation with complainant subsequent to trial Whether admissible Rule against hearsay Bias exception Whether fresh evidence sufficient to raise reasonable doubt Effect of earlier successful appeal against convictions imposed at same time Criminal law Sentence Breach of violence restraining order Four months immediate imprisonment Whether excessive Whether too much emphasis on deterrence |
Legislation: | Justices Act 1902 (WA), s 196(1)(b) Rules of the Supreme Court, O 65A r 3 |
Case References: | Bourne & Anor v Elliss [2001] WASCA 290 Dominik v Kay [2003] WASCA 174 Mickelberg v The Queen (1989) 160 CLR 259 Ratten v The Queen (1974) 131 CLR 510 Rowlands v Caporn [2001] WASCA 66 Smith v The Queen (1992) 9 WAR 99 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 Gallagher v The Queen (1986) 160 CLR 392 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
FREDERIC VOLPI
Respondent
Catchwords:
Criminal law - Appeal - Appellant convicted of breach of restraining order - Four months imprisonment - Fresh evidence - Evidence of witness of conversation with complainant subsequent to trial - Whether admissible - Rule against hearsay - Bias exception - Whether fresh evidence sufficient to raise reasonable doubt - Effect of earlier successful appeal against convictions imposed at same time
Criminal law - Sentence - Breach of violence restraining order - Four months immediate imprisonment - Whether excessive - Whether too much emphasis on deterrence
Legislation:
Justices Act 1902 (WA), s 196(1)(b)
Rules of the Supreme Court, O 65A r 3
(Page 2)
Result:
Appeal dismissed
Category: A
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):
Bourne & Anor v Elliss [2001] WASCA 290
Dominik v Kay [2003] WASCA 174
Mickelberg v The Queen (1989) 160 CLR 259
Ratten v The Queen (1974) 131 CLR 510
Rowlands v Caporn [2001] WASCA 66
Smith v The Queen (1992) 9 WAR 99
Case(s) also cited:
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Gallagher v The Queen (1986) 160 CLR 392
(Page 3)
1 ROBERTS-SMITH J: This is an appeal against conviction recorded by his Worship Mr Brown SM in the Fremantle Court of Petty Sessions on 10 December 1998 on Complaint FR98/7376 on one count of breaching a violence restraining order and…
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- Dominik v Volpi [2004] WASCA 18
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- [2004] WASCA 18
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CaseChat Overview and Summary
In the case of Dominik v Volpi, the appellant appealed against his conviction for breaching a restraining order, for which he was sentenced to four months' imprisonment. The dispute centred on the admissibility of fresh evidence provided by a witness who claimed to have had a conversation with the complainant after the trial, and the appropriateness of the sentence imposed. The appeal was heard by the Court of Appeal.
The court was required to decide whether the fresh evidence was admissible under the bias exception to the hearsay rule, and whether it was sufficient to raise a reasonable doubt about the conviction. The court also needed to determine if the sentence was excessive, particularly whether it placed too much emphasis on deterrence rather than other sentencing considerations.
The court found that the fresh evidence was inadmissible because it did not fall within the bias exception to the hearsay rule. The court held that the evidence did not meet the criteria for admissibility under that exception. In relation to the sentence, the court held that while the sentence was on the higher end of the spectrum, it was not excessive given the nature of the offence and the need for deterrence. The court also noted that the appellant had previously successfully appealed against convictions imposed at the same time, which suggested that the original sentence was not inappropriate.
As a result, the appeal was dismissed. The conviction and sentence were upheld, and the appellant remained liable for the four months' imprisonment imposed.
The court was required to decide whether the fresh evidence was admissible under the bias exception to the hearsay rule, and whether it was sufficient to raise a reasonable doubt about the conviction. The court also needed to determine if the sentence was excessive, particularly whether it placed too much emphasis on deterrence rather than other sentencing considerations.
The court found that the fresh evidence was inadmissible because it did not fall within the bias exception to the hearsay rule. The court held that the evidence did not meet the criteria for admissibility under that exception. In relation to the sentence, the court held that while the sentence was on the higher end of the spectrum, it was not excessive given the nature of the offence and the need for deterrence. The court also noted that the appellant had previously successfully appealed against convictions imposed at the same time, which suggested that the original sentence was not inappropriate.
As a result, the appeal was dismissed. The conviction and sentence were upheld, and the appellant remained liable for the four months' imprisonment imposed.
Orders
Orders of the court
Appeal dismissed
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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