Dominik v Volpi

Case [2004] WASCA 18


DOMINIK -v- VOLPI [2004] WASCA 18



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASCA 18
Case No:SJA:1093/20033 FEBRUARY 2004
Coram:ROBERTS-SMITH J10/02/04
28Judgment 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
CITATION : DOMINIK -v- VOLPI [2004] WASCA 18 CORAM : ROBERTS-SMITH J HEARD : 3 FEBRUARY 2004 DELIVERED : 10 FEBRUARY 2004 FILE NO/S : SJA 1093 of 2003 BETWEEN : ANTONI ARTUR DOMINIK
    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
Case
[2004] WASCA 18
Decision Date

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.

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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