Dominik v Volpi
[2004] WASCA 18
•10 FEBRUARY 2004
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 against a sentence of 4 months imprisonment imposed in respect of that conviction on 31 December 1998.
2 The particular complaint was heard in conjunction with two further complaints of breaching a violence restraining order and of unlawful assault respectively.
3 The appellant represented himself before the learned Magistrate and before me.
4 The appellant was convicted by his Worship of each of the three offences and on 31 December 1998 was sentenced to 4 months imprisonment on each to be served concurrently.
5 The term of imprisonment has been served.
6 In March 2003 the appellant obtained an order granting an extension of time for leave to appeal and giving leave to appeal against the other two convictions, which arose out of events on 4 August 1998.
7 That appeal was heard by Hasluck J on 12 June 2003. His Honour delivered judgment on 8 August 2003 (Dominik v Kay [2003] WASCA 174) and allowed the appeal on the ground that fresh evidence had become available since the appellant's conviction which may have led to his acquittal had it been given before the learned Magistrate. Having regard to the fact that the appellant had already served his sentence of imprisonment and there were likely to be certain difficulties associated with a rehearing, owing to the passage of time, his Honour quashed the convictions and made no order for rehearing.
8 The conviction against which the appellant presently appeals is that on 28 August 1998, having been personally served with a violence restraining order, he breached that order by banging on the complainant's bedroom window, contrary to s 61(1)(b) of the Restraining Orders Act 1997 (WA).
9 The appellant filed an application for extension of time and leave to appeal on 25 August 2003 in respect of this complaint. That application contained the following proposed grounds against conviction and sentence:
(Page 4)
- "SENTENCE
(a) The sentence was excessive.
(b) The Learned Magistrate placed too much emphasis on the deterrent aspect.
(c) New evidence has now become available to the Applicant which if accepted would have caused the Magistrate to have acquitted the Applicant.
CONVICTION
(e) Fresh evidence has become available since conviction and if the Learned Magistrate had heard the evidence he would have acquitted the Applicant.
(f) The learned Magistrate wrongly admitted evidence prejudicial to the Applicant's case.
(g) The Applicant did have a witness available by the name of Rusko Vlajic who would have corroborated the Applicant's evidence at the hearing.
(h) The Applicant was refused permission to call this witness.
(i) The evidence that Mr Rusko Vlajic was vital to the Applicant's defence in that Rusko Vlajic in his evidence was able to say that the Respondents had admitted fabricating the complaint against the Applicant."
(Page 5)
11 On the hearing of his appeal the appellant was assisted by Mrs M Gruszka, an interpreter in the Polish language.
12 To put this appeal in context, it is necessary to refer briefly to the proceedings before the learned Magistrate and to the judgment of Hasluck J on the first appeal.
13 The following account is drawn largely from the reasons of Hasluck J.
14 In 1998 the complainant, Mrs Milanka Gospavic, and her son Davorin Gospavic, were living in a block of flats at 18 Knutsford Street, Fremantle. The appellant lived in the adjoining flat. There was animosity between the Gospavics and the appellant. The complainant and her son obtained violence restraining orders against the appellant. They were served on him on 18 May 1998. By those orders the appellant was required not to communicate with them, nor to commit nor attempt to commit any violent personal offence against them, nor to behave in an intimidatory or offensive manner towards them.
15 The complainant and her son gave evidence through an interpreter. The complainant said that on 4 August 1998 she came home about 1 pm after an appointment with her doctor. As she was unlocking her security door, she looked to the side and noticed that the appellant's door was opening. She saw the appellant's hand come out with an aerosol spray. He sprayed the left side of her face. She quickly dashed into her own premises to wash off the spray. She had glasses on and the spray did not get into her eyes, but it trickled down her cheek. She waited until her son came home about 4 pm and then reported the matter to the police. She was treated by her doctor for the injury to her cheek on the following day. The doctor's evidence was that she presented on 5 August 1998 with a blistering area on her left cheek below the lower rim of her glasses. It was about 1 cm in diameter and there were a couple of smaller blisters adjacent to that. He considered it consistent with some sort of chemical irritation from some kind of pressure pack can. The surface of the skin was actually intact but was blistering in some places. He felt it would resolve spontaneously.
16 The complainant gave evidence in the Serbian language. As to the incident on 28 August 1998, she testified that there had been noise coming from the appellant's unit all night, but at 3 o'clock that morning, he went to her security door and bashed with his fist on her window. She said that continued until the police arrived. She said later it actually
(Page 6)
- started at 5 o'clock that afternoon when he was grabbing her security door and shaking it off its hinges and the police arrived about 10 o'clock. She said he said insulting and degrading things, calling her a Serbian whore, a prostitute and that she had a relationship with her own son. She described him doing this in an alcoholic state.
17 The evidence of the complainant and her son was supported to some extent by an attending police officer, Constable Volpi.
18 Davorin Gospavic gave evidence about the incident on 28 August. In evidence-in-chief he said (AB 30-32):
"Could you tell the court what happened on the 28th of August?---At about 5 o'clock he started to make a hell of a racket. There was a lot of banging going on from his unit and then he started to walk out on the walkway of that group of flats.
HIS WORSHIP: Sorry, he walked out to where?---On the walkway that joins the flats.
PROSECUTOR: And when you say 'he', who is 'he'?---Tony Dominik.
HIS WORSHIP: Yes.
PROSECUTOR: And what happened after - - what did you see after he walked out on to the walkway?---At first I didn't see or hear anything because it was 5 o'clock in the morning and I was asleep, but what woke me was my mum screaming and this huge bang on her window.
HIS WORSHIP: Yes.
PROSECUTOR: What did you do after you woke up?---I then - - I ran out of my room, and my room sits like this, and my mother's room was there. We both met as she ran out and I ran towards her. We then went into the living area and we heard continual banging on all the security windows, and then he got to the security door and rattled that so much that it was coming off its hinges.
HIS WORSHIP: Yes.
(Page 7)
- PROSECUTOR: How do you know who was doing this?---Well, first of all, I knew that it was him anyway because we had had trouble from April, the 11th of April, but not only that, I could hear him shouting and yelling out there, and on top of all that I could see him from the little window of the kitchen.
HIS WORSHIP: Yes.
PROSECUTOR: Could you hear what he was shouting?---Yes, you could hear everything.
What was he shouting?---Am I allowed to say in detail originally what he said?
Yes?---He was always - - that day he was insulting us about our nationality and was always calling me names, that I was like a Serbian - -
INTERPRETER: I'm not sure of that last word that he used.
WITNESS: 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.
HIS WORSHIP: Yes.
PROSECUTOR: How long did this go on for?---And that racket outside went on for about 15 minutes, but then he went into his own flat, and the noise and bellowing continued. We could hear things crashing, and then he was beating against our wall, and it's a wall that divides both units, and he was bashing against that wall.
HIS WORSHIP: Yes.
PROSECUTOR: And were the police called?---At first I wasn't going to call the police because I knew that at 10.30 I had a dental appointment in Perth and I thought that he would quieten down by then, but eventually I realised that there was no way that I was going to be able to get out of the unit, so that's when I called the police.
And what time was that?---I'm not sure exactly but about 10.00.
HIS WORSHIP: Is this 10 am or 10 pm?---Yes - 10 am.
(Page 8)
- Thank you.
PROSECUTOR: Now, you said that you called the police because you didn't think you would be able to get out of the flat?---Yes.
Whey was that? Why couldn't you get out of the flat?---Because he had actually said in Serbian that he was going to kill both of us.
And when was that?---It was - - it started at 5.00 and it was between then and about 10.00 when I called the police, and he would go in and out of his flat and then he would walk up and down in front of our unit, so therefore I knew that I wouldn't be able to get out."
19 The complainant denied the allegations. He said he was born in Poland and came to Australia in 1984, working in Northam initially but later in Perth. He testified that he was not at the Knutsford Street block of flats at midday on 4 August 1998, but on that date had gone with his neighbour Mr Rajko Vlajic to replace four locks at premises in Minilya Avenue, Hilton. That job was not completed until late in the afternoon.
20 Mr Vlajic gave evidence and confirmed that account, except that in cross-examination he conceded that the only reason he could remember that having occurred on 4 August was because the appellant had told him that was the day.
21 His Worship noted there were no independent witnesses from which assistance could be gained and that the prosecution really relied entirely on the evidence of the complainant and her son. He observed there was clearly animosity between the complainant and the appellant.
22 As to the incident on 4 August 1998, his Worship found the appellant was not a reliable witness "at all". The best view he could take of the appellant's friend, Mr Vlajic, was that he was merely repeating an incident that did occur but not on 4 August 1998. He found Mr Vlajic was simply mistaken as to the day based on what the appellant had said to him, namely that it must have been 4 August 1998.
23 So far as the incident on 28 August was concerned, his Worship noted that the evidence of the appellant had been that he made no noise during the early hours of the morning, but had arisen about 8.30 and had one drink of alcohol as a result of having eaten some chilli. He noted the
(Page 9)
- appellant denied he was banging on the bedroom window and yelling words of abuse towards the complainant in particular. He referred to the evidence of Constable Volpi who said that when he and his partner, Constable Belcher, spoke to the appellant, the latter appeared heavily affected by alcohol and was very aggressive, generally performing in an unacceptable manner, using crude and insulting language and that after a warning to desist, he was arrested. The appellant thereupon collapsed, suffering apparently some sort of a fit, but did not lose consciousness. The evidence of the Constable was that he and his partner called an ambulance, but that when the ambulance arrived, the appellant had recovered somewhat and was still angry to the extent that the ambulance officers refused to take him to hospital. He was eventually taken to hospitable by the police officers in a van with the ambulance following.
24 His Worship rejected the evidence of the appellant, finding that he was heavily affected by alcohol, and that the evidence of the two complainants was reliable and supported by the observations of the police officers. His Worship was satisfied that during the early hours of the morning of 28 August, the appellant breached the restraining order by loudly abusing the complaints and by banging on the security screens to both door and bedroom window.
25 Three years later, on 27 February 2002, the appellant was ordered to pay criminal injuries compensation in the sum of $3,000 to Mrs Milanka Gospavic in respect of the offences which the appellant had been convicted.
26 In an affidavit sworn 17 January 2003 in support of his application for leave to appeal against the other two convictions, the appellant said that on 20 October 2002, a Mrs Zofia Eminoski telephoned him and asked whether he could help her with her sprinkler. He did so, and after finishing the job they talked over coffee. During the conversation she told him that she had seen the appellant at Hilton in August 1998 around 1 pm and had tooted the car horn at him. She went on to say that she was with a friend named Arena Brkich.
27 The appellant then asked Mrs Eminoski whether she would make a statutory declaration about that and she did so. He also obtained one from Mrs Brkich.
28 The appellant's sole ground of appeal in relation to the two convictions before Hasluck J was that the two statutory declarations by
(Page 10)
- Mrs Eminoski and Mrs Brkich were fresh evidence which had become available since his conviction and which would have led to his acquittal.
29 His Honour noted that the fresh evidence of Mrs Eminoski and Mrs Brkich had to be considered against the background that the learned Magistrate had accepted that Mr Vlajic had helped the appellant in the changing of the locks on a particular day but had concluded that he must have been mistaken as to the relevant date. It appeared from the statutory declarations that the witnesses were able to identify the particular date as 4 August 1998 by reference to other events.
30 His Honour was satisfied that the evidence sought to be adduced was properly characterised as fresh evidence and that having had the opportunity of seeing and hearing the witnesses give evidence and be cross-examined, he considered they both emerged as reasonably credible witnesses, so that if evidence of that kind had been before the learned Magistrate at the hearing, it was likely to have influenced the outcome.
31 His Honour concluded (at [54]):
"When I endeavour to assess the impact of the new evidence in the context of evidence given at the trial, I am immediately conscious that, ultimately, as I indicated in earlier discussion, the findings made by the learned Magistrate turned upon his conclusion that the evidence given by the appellant and his witness could not be regarded as reliable. However, there are indications in the transcript of the hearing that a lack of specificity by the appellant and his supporting witness, Mr Vlajic, combined with some language difficulties, may have weighed against the defence case and the alibi contended for by the appellant. Accordingly, in my view, the presence of the Eminoski and Brkich evidence bearing upon the issue of alibi would probably have been sufficient to give rise to a reasonable doubt as to whether the prosecution had established the case put forward on behalf of the complainant."
32 His Honour was accordingly of the view that the two convictions should be quashed.
33 In his affidavit sworn 30 September 2003 in support of his application for leave to appeal against the present conviction, the appellant sought leave expressly on the grounds of the fresh evidence of Mr Vlajic and also, that as the other two convictions were discharged, "this must place doubt on the whole of the cases against me".
(Page 11)
34 I note he also relied upon an affidavit sworn on 17 January 2003, which I have read.
35 He relied principally upon his affidavit sworn 27 August 2003 to which he annexed what he described as two statutory declarations of Rajko Vlajic but which is clearly one declaration dated 19 November 2002. The first page in effect sets out the evidence Mr Vlajic gave before Hasluck J. The second page relates to the events of 4 August 1998.
36 It is appropriate that I set out the statutory declaration of Mr Vlajic as follows:
"My name is Rajko Vlajc (sic) and I live in Homeswest accommodation at 357/18 Knutsford Street, Fremantle North. I was born in the Republic of Yugoslavia. In the same building, on the 1st Floor, in 114/18 Knutsford Street, lives to the present day, a neighbour of Polish ethnicity, Antoni Dominik.
Into a flat next to him, at 113/18 Knutsford Street, moved in Davorin Gospavic with his mother Milanka Gospavic who were new migrants from Yugoslavia who had recently come to Australia.
I declare that there were unending rows between the son and mother Gospavic. Police frequently intervened sometimes twice a day. Here I wish to say that in the same year 1998, in the months between January and March (I can't remember the exact date) one evening Davorin Gospavic came into my flat and told me that he and his mother had a fight and at the moment she is lying unconscious on the floor. I revived his mother with cold water and took her to Fremantle hospital and waited there for 2 hours. Then I took them home to their flat at 133/18 Knutsford Street where they lived.
On Tuesday 4th August, 1998, my neighbour Antoni Dominik was accused by this neighbour Milanka Gospavic, that he accosted her outside the door to her flat at 113/18 Knutsford Street in Fremantle and sprayed her face with some kind of spray and that it happened at 1 pm. I declare that this is a deliberate lie, because I distinctly remember that on 4th August at about 10 am Antoni Dominik and I left in a car to go to 29 Minilya Ave, Hilton, where for the most of the day were working, changing 4 locks on doors in a house Antoni Dominik was looking after for a friend. In this building complex, the
(Page 12)
- neighbour from No. 3 allowed us to plug in a cable from a drill, so we could change the locks in No 5 because all keys were lost due to an earlier theft of Antoni's car. On this job we were engaged non stop until 4.30 or 5 pm.
Three months later, i.e., on 4 September 1998, Antoni Dominik was arrested by Fremantle Police. I found out about the arrest from my neighbour Antoni Dominik, who rang me from detention. I remembered that on 4 August, 1998 we both worked at 29 Minilya Ave, as I stated earlier. As I realised that Antoni Dominik was falsely accused the day of 4 August became more imbedded (sic) in my memory. I remember that after finishing work with Antoni Dominik I went home to wait for a telephone call from my family in Yugoslavia during evening hours.
Antoni Dominik is not my friend. We just know each other as neighbours. I signed papers for bail to release him from detention only because I knew that he was not guilty.
During the court session in Fremantle, the date of which I can't remember, I was not given a chance to appear before the judge and tell him what I know.
About one month later, Davorin Gospavic came to my flat. I was very upset with him for his mother's false accusation, when I asked him why his mother told such lies, he said that Mr. Dominik can also tell lies if he wants to. After a while Davorin Gospavic asked me 'what do you think - how many thousands of dollars will we get - $25,000 to $30,000, I think' he answered for himself. After a while he added 'Mother and I planned it well'.
I suspect that mother and son Gospavic are Yugoslav gypsies. Earlier, Davorin Gospavic wanted to introduce me to a gypsy woman, who used to visit them at 113/18 Knutsford Street, Fremantle in 1998."
37 The respondent does not contest the proposition that the evidence of Mr Vlajic as to his conversation with Mr Gospavic is "fresh evidence" in that it was not available, nor could not with reasonable diligence, have been available at the time the trial took place (Mickelberg v The Queen (1989) 160 CLR 259 per Toohey and Gaudron JJ at 301). As the alleged conversation is said to have occurred about one month after the appellant
(Page 13)
- was convicted that concession was clearly properly made by the respondent.
38 In the course of the hearing before me, the appellant sought to argue that what was in Mr Vlajic's statutory declaration in respect of the conversation with Mr Gospavic was an incomplete account of what had been said and he sought to explain from the bar table that Mr Gospavic had admitted that he and his mother had "made up" the case against the appellant for the purpose of obtaining compensation. When it was pointed out to the appellant that what was in the statutory declaration did not go that far, he said that was because what was in the statutory declaration was an English version of notes he had made in Polish of what Mr Vlajic had said to him in Serbian. He pointed out that Mr Vlajic was in court and sought leave to call him to explain.
39 Under the circumstances, I granted leave for the appellant to call Mr Vlajic to give evidence of that conversation (pursuant to s 196(1)(b) of the Justices Act 1902 (WA); and see Rowlands v Caporn [2001] WASCA 66 and O 65A 3 of the Rules of the Supreme Court. Unfortunately, he had to do so in English, as a Serbian interpreter who had attended earlier had left the court, being under the impression she was not required.
40 Mr Vlajic gave evidence in broken English and with obvious difficulty.
41 He began by pointing out that the conversation took place over five years ago and it was very hard to remember everything. He kept reiterating that what was in the statutory declaration was correct. Asked (by me) specifically about the conversation, his evidence was (t 14-15):
"He's come into my place and he said, 'Can I borrow money from you, say, $20, whatever,' he say (indistinct) I say, 'What's wrong?' and he's told me that story, you know.
What exactly so far as - I know it's a long time?---And he said - - -
I want to know what he said to you?---He said, 'Listen,' when I give him money, 20 bucks, and he said, 'Listen, that's what's happened and Dominik - what did,' and he said, 'What do you think? I think,' he said, 'he got probably 25 to 30, 35,000,' whatever. I said, 'What are you talking?' I said, 'He's no killer. He's never do anything that - what are you talking? I don't
(Page 14)
- believe. Did you got witness?' He said no, and that's what he - - -
Let's just go over that?---Yes.
Start again?---Yes.
What did he say about the money?---He said, 'What do you think. How much we get?' I said, 'What do you mean?'
'How much will we get'?---'How much we will get it for money for that.' I said, 'I don't think you will get anything. What are you talking?' and he said, 'We reckon we got (sic) probably 20, 25,000 to 30,' whatever, and I say, 'I don't believe. I don't know. What are you talking?'
Yes?---When I saw what's going, I told him, 'I don't know how you do that to next door, you know, that's' and that's it. When I saw what's going - - -
He said, 'How much will we get? What do you think'?---Yes.
You said, 'What?' What did you say to that?---I said, 'What will you get - how you get that money. He's never killed nobody or he's never done nothing wrong,' I think.
Yes?---He said, 'He's done it. He's bashed my mum and spray mum's face and bash me and so - - -'
What did he say? He said he has done it?---Yes, 'He's done it, he's sprayed my mum's face and bashed me.' I told him, I said, 'What's going - your son, if you saw somebody bash your mother, why you not help him? He's not (indistinct) too,' and I saw what he's talking, 'That's not true,' you know and that's it. That's what he - - -
Just a moment. You said to him, 'I don't believe it'?---Yes.
'He has not killed anyone. He has not done anything'?---Yes. Yes, he didn't done anything at all. What I think - - -
Do you say he then said, 'He's done it'?---Yes.
'He sprayed my mum's face and he has bashed me'?---Face, 'Bashed me and so,' and that's all.
(Page 15)
- So he said he has done that?---Done that.
Yes?---And that's it.
That's it---That's what he said.
That's the reason he should get the - he said he should get the 25, $30,000?---Yes. He said 25. That's what he's reckoned and then I saw what's going on, I say, 'God, I don't know what's going on there. You shouldn't do that,' and that's what he said. That's exactly what in that paper, put it there. That's what I told and I told him and he's - and transferred to English and that's what is. That's it."
42 Mr Vlajic was then questioned by the appellant. Although I had warned him not to ask questions indicating what answer he wanted, he did so, and cautioning him that I might not be able to give any weight to answers to such questions, I allowed him to continue to do so. Given the language difficulty and the fact the appellant was representing himself, I extended him considerable latitude in that regard. Despite that, the witness did not go as far as the appellant sought to have him go.
43 In response to a question (t 16): "Was anything said about planning?" the witness said:
"He say that's what we thinks. That's what he say. We thinks we get that money, so, so."
44 The appellant had earlier explained the process by which the statutory declaration had come into existence. He had said that when Mr Vlajic mentioned the conversation, he (the appellant) made a note in Polish (which Mr Vlajic does not speak) of what Mr Vlajic had told him. He had subsequently had Mrs Gruszka translate that into English onto the statutory declaration.
45 The evidence-in-chief continued (t 16-17):
"DOMINIK, MR: What moment he say, 'We planning this with mother'?---Yes. He say, 'We talk with - I talk with mother. We thinks that so - money get it.'
The charge - - -
ROBERTS-SMITH J: No, just a moment - - -?---No, No.
(Page 16)
- - - - Mr Dominik, are you saying that he had spoken to his mother and they thought - - -?---Yes, them two talking.
- - - they would get the 25, $30,000?---Yes. Them two talking about the things.
DOMINIK, MR: Yes, I understand, sir.
For money, yes?---Yes.
But he said too, because that is in statement, because I write in Polish and he said too because is long time, I understand, 'Maybe I forget or something,' but he said, 'Yes, for this money what we want get it. Very good planning with mum, what we can get - - -'?---Yes.
' - - - the money from Tony and Tony lie against us too.'
ROBERTS-SMITH J: What do you say about that, Mr Vlajic?---What you mean? Speak English.
When you were talking to Davorin - - -?---Yes.
- - - and he told you how much money he thinks they will get, he also - did he say to you that his mother and he planned it very well so they can get some money from Tony?---Yes. That's what he said, yes. That's what he said.
ROBERTS-SMITH J: You tell me what he said?---Yes, I told you. I told you.
No. You tell me what he said about that, about planning?---Planning, yes.
What did you say about that?---No. He say, 'We talk, my mother, we planning that we get it,' probably thinks that money so got it from him, you know, and I said, 'I don't think you'll get anything for that. He didn't done anything at all. You didn't got any witnesses,' and so that's what is."
- And then, the examination continued (t 17-18):
"In this statement what I listen from you is long time, I understand is that important things what you telling me and I write in Polish - - -?---That's English there.
(Page 17)
- Yes. Then what Davorin was probably say, 'We make plan with mother to get the money - - -'---I told you so - - -
ROBERTS-SMITH J: No. That's not what it says in the statement. It says, 'Mother and I planned it well'?---Yes.
DOMINIK, MR: But what he say, he said, 'I know. We want the money but we planning very good with mother.' Can he say like this?---I told them - what I told - he said, 'I spoke with mother. We think we've got that - - -'
Yes. But thinks - - -
ROBERTS-SMITH J: We think we will get that sort of money?---Yes. That sort of money and that's it.
Is that what you're saying?---Yes."
46 Finally, at t 18, there was the following exchange:
"DOMINIK, MR: Mr Vlajic, please, is very important, is not just what he say - how much we get this money - is important if you say to the court we're planning this whole situation to get the money with mum, we're planning, we make plan. We speak - we can something do for him, charge him, and after get the money (indistinct) him. That is we're planning to get the money. That is very important?---What's there in part in the English, that what's what I say and that's what I do say and that's it."
47 The respondent's contention was firstly that the evidence of Vlajic would have been inadmissible in any event as hearsay and alternatively, if sought to be led as an exception to the rule against hearsay, was not capable of falling into that category.
48 It must be said that had the matter been left upon the basis simply of what appeared in Mr Vlajic's statutory declaration, it would have been reasonably arguable that the statements attributed to Mr Gospavic were capable of carrying the inference that he and his mother had contrived to bring a false accusation against the appellant for the purpose of obtaining an award of money. In making that comment, I am not to be taken as accepting that it would necessarily have carried that inference to the learned Magistrate, nor that I would necessarily have accepted it if I had heard all the evidence in relation to it.
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49 On that basis, though, although the prosecution could not had led that evidence in its case, the appellant could certainly have cross-examined the complainants about it. Had Mr Gospavic denied the conversation, evidence of it could have been led in rebuttal, notwithstanding the rule against hearsay and that of the finality of the answers to collateral questions in cross-examination. That is because evidence of bias is an exception to both of those rules of evidence.
50 In Smith v The Queen (1992) 9 WAR 99, the appellant's conviction on two counts of sexual penetration of a person under the age of 16 years without her consent were quashed because the trial Judge had wrongly excluded evidence from a defence witness as going to a collateral issue only.
51 It had been put to the complainant that prior to the trial she had made certain statements to the witness, including one to the effect that the appellant and his family "… would all pay for it." She denied making such statements.
52 In the judgment of the Court (Malcolm CJ, Rowland and Walsh JJ) this matter was dealt with in the following passages (at 103-105):
"As a general rule answers given by a witness under cross-examination concerning collateral matters must be treated as final, as the answers are binding and may not be contradicted by other evidence.
In Cross on Evidence (4th Aust ed, 1991) the learned authors at par 175580 state the general rule in these terms:
'There is a sound general rule, based on the desirability of avoiding a multiplicity of issues, to the effect that the answers given by a witness to questions put to him in cross-examination concerning collateral facts must be treated as final. They may or may not be accepted by the jury, but the cross-examiner must take them for better or worse and cannot contradict them by other evidence …
As relevance is a matter of degree, it is impossible to devise an exhaustive means of determining when a question is collateral for the purpose of the rule under consideration; but a useful guide was provided by Pollock CB in the leading case of A-G v Hitchcock. He said:
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- "The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence - if it have such a connection with the issues, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him." …
- The effect of the judgments in Hitchcock's case is aptly stated in the following passage from an American author:
"Independent evidence may be given to prove a self-contradictory statement by a primary witness only if (a) the statement contradicts testimony by the primary witness about a matter directly in issue in the litigation, or (b) the statement contradicts testimony by the primary witness as to 'those matters which affect the motives, temper and character of the witness, … with reference to his feelings toward one party or the other".
But the rule concerning the finality of the witness's answers on collateral issues is not confined to self-contradictory statements.'
- There are well recognised exceptions pursuant to which evidence may be given in contradiction of the testimony of a witness and there is no such closed list: see R v Funderburk [1990] 2 All ER 482. One of the exceptions is bias on the part of a witness viz where it is demonstrated that the witness is unfavourably inclined to an accused.
In Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533 Latham CJ (at 545) said:
'Any witness may be cross-examined for the purpose of discrediting him. But if questions affect only the credit of a witness and are not relevant to the matters actually in issue in the case, the witness's answers cannot be contradicted by other evidence except in certain exceptional cases. Exceptions to the rule at common law are that after cross-examination of his opponent's witnesses a party may give evidence to show that they are notorious liars, or have given their testimony from a corrupt or other wrong motive, or that they have previously made statements inconsistent with their evidence. A statutory exemption allows proof of
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- convictions where such convictions have been denied by a witness. It is argued that the evidence of the bank manager does not fall within any of these exceptions and that therefore it was inadmissible.'
- The learned authors of Cross on Evidence (at par 19035) express the view that:
'It seems reasonable to permit a party to lead evidence in rebuttal of a denial of bias in a case where some special factor is present in addition to justifiable bias.'
In R v Funderburk (supra) Harvey J in delivering the judgment of the court emphasised the difficulty in marking out the delineation between questions going to the issue and questions going to credit where the disputed issue - as it was in this trial - was a sexual one between two persons in private. He stated (at 597-598; 491):
'We are disposed to agree with the editors of Cross on Evidence (6th ed, 1985), p 295 that where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point. I read from that work:
"It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private, and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point."
Similar problems arise when considering what facts are collateral. Again, we cite from Cross (at p 283):
"As relevance is a matter of degree, it is impossible to devise an exhaustive means of determining when a question is collateral for the purpose of the rule under consideration; Pollock CB said in the leading case of
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- A-G v Hitchcock (1847) 1 Exch 91 at 99; 154 ER 38 at 42: '… The test, whether the matter is collateral or not, is this: if the answer of a witness is a matter which you would be allowed on your part to prove in evidence - if it have such a connection with the issue, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him'."
- The difficulty we have in applying that celebrated test is that it seems to us to be circular. If a fact is not collateral then clearly you can call evidence to contradict it, but the so-called test is silent on how you decide whether that fact is collateral. The utility of the test may lie in the fact that the answer is an instinctive one based on the prosecutor's and the court's sense of fair play rather than any philosophic or analytic process. Applying the test in argument before us, Morland J put to counsel for the Crown the hypothetical question, "If the defence had medical evidence that this child was not a virgin before the date on which she gave her account of losing her virginity, would the defence be allowed to call such evidence?" On reflection, counsel accepted that they would be allowed to call such evidence, and we think that answer to the question not only right but inevitable. Otherwise there would be the danger that the jury would make their decision as to credit on an account of the original incident in which the most emotive, memorable and potentially persuasive fact was, to the knowledge of all in the case save the jury, false.'
- In our opinion the evidence to be given by Mr Starcevich came squarely within the long-standing exception of bias and was directly relevant to the credit of the complainant which was critical to the proper determination of the verdict in this particular trial; her evidence being the sole evidence for the prosecution. We emphasise that the specific allegations referred to conduct said to have occurred several years before the matter was brought out into the open, such conduct being denied by the appellant at his trial. We consider that evidence that the complainant had given her evidence from 'a corrupt or other motive' was admissible in the trial and that his Honour erred in refusing to admit it."
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53 The bias exception to the rule against hearsay is also discussed by the learned authors in "Evidence - Commentary and Materials" (Waight & Williams, Law Book Co, 4th Ed) at 317-318 and 320.
54 Had the evidence been adduced in that way, it is conceivable it might had led the learned Magistrate to a different conclusion. But I emphasise this is all on the assumption that the conversation is capable of giving rise to the inference that the complainants conspired to bring a false accusation against the appellant for the purpose of obtaining compensation.
55 As it happened, Mr Vlajic's evidence did not measure up to the appellant's expectation.
56 The conversation of which he has testified occurred over five years ago.
57 Having had the benefit of seeing and hearing his evidence, I have no doubt that all he was saying was that after the outcome of the Petty Sessions hearing and the conviction of the appellant, Mr Gospavic had said to Mr Vlajic words to the effect that he thought they might be awarded between $25,000 or $30,000 and that he thought that because he had discussed it with his mother. Mr Vlajic did not use the word "planned" but indicated all he meant was that Mr Gospavic and his mother had discussed the prospect of recovering damages or compensation to that amount, after the hearing. Most significantly, Mr Vlajic said that in the conversation Mr Gospavic had said the appellant had "done it" and that he had sprayed his mother's face and bashed him.
58 This was in the face of the appellant putting to him in examination-in-chief, completely leading questions seeking to elicit from the witness that Mr Gospavic had said to him that he and his mother had agreed to make false accusations against the appellant so as to get money from him. Despite the completely leading nature of the questions, Mr Vlajic would not agree with that proposition.
59 Having had the benefit of hearing this evidence, I am satisfied it would not be such as to have raised a doubt in the learned Magistrate as to the appellant's guilt (see Bourne & Anor v Elliss [2001] WASCA 290; Ratten v The Queen (1974) 131 CLR 510).
60 The fresh evidence ground accordingly must fail.
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61 The next principal ground relied upon by the appellant was that as his other two convictions were set aside, that must place doubt on the whole of the case against him.
62 The fact that Hasluck J ordered the other two convictions be quashed does not directly bear upon the circumstances of the present conviction. The offences charged arose out of incidents on different days some three weeks apart. As I have said, his Honour's decision involved no finding as to credibility; he allowed the appeal against the other two convictions on the ground that there was fresh evidence which may have led the learned Magistrate to a different conclusion.
63 This ground must ultimately turn upon the proposition that if the learned Magistrate had a reasonable doubt about the credibility of the complainants in respect of the incidents of 4 August 1998 then he would, or may, have had such a doubt about their credibility in respect of the incident on 28 August.
64 As the learned Magistrate recognised, the evidence of Mrs Gospavic and her son about the incident on 4 August 1998 was the only evidence about that. Whilst it was supported to some extent by the evidence of the doctor who Mrs Gospavic saw on 5 August, that went only to confirm that she had received some chemical irritant to the face, and of course as his Honour observed, the fact that she gave the same explanation to the doctor on 5 August, showed the later allegation was not a recent invention.
65 Taking the matter as its highest for the appellant, the point must be examined on the assumption that the fresh evidence of Mrs Eminoski and Mrs Brkich would have caused the learned Magistrate to at least entertain a reasonable doubt about the evidence of Mrs Gospavic regarding the incident on 4 August. I confine it to her evidence because the prosecution case was that her son did not arrive until sometime after the incident. His evidence in fact, went only to the events of 28 August. (AB 34).
66 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. Their evidence was supported by that of Constable Volpi, who arrived in response to their call for assistance, and by his observation of the appellant's condition and behaviour following his arrival.
67 I do not consider that in the circumstances there is any reason to think that even if the evidence of Mrs Eminoski and Mrs Brkich should
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- cause the learned Magistrate to have had a real doubt about Mrs Gospavic's evidence concerning the incident on 4 August, that would (or may) have led him to entertain a reasonable doubt about the evidence of Mr Gospavic and Constable Volpi relating to the incident on 28 August.
68 This ground too must fail.
69 It is necessary now for me to consider whether leave to appeal should be granted in respect of any of the other grounds going to conviction and sentence. I will deal with those in respect of conviction first.
70 The complaint at 2(f) of the Notice does not particularise what is said to be the "wrongly admitted evidence prejudicial to the [appellant's] case". So far as I can ascertain from what the appellant said on the hearing before me, it is no more than a complaint that the learned Magistrate heard the evidence of Mrs Gospavic and her son, which the appellant says he should not have received because they were telling lies. That ground has no possible substance and is not arguable.
71 Grounds 2(g) and (h) are one ground. It is not apparent why it is there. The transcript of the proceedings before the learned Magistrate clearly shows that not only was the appellant not refused permission to call Mr Vlajic, but that he did in fact do so and Mr Vlajic gave evidence. There is no argument to make about that.
72 Ground 2(i) is the same point as that raised by ground 2(e) with which I have already dealt.
73 I would refuse leave to appeal against conviction on each of those grounds.
74 I turn now to the proposed grounds of appeal against sentence.
75 Ground 2(c) does not go to sentence but to conviction. It is the fresh evidence ground with which I have already dealt as ground 3(e).
76 The remaining grounds are 2(a), that the sentence was excessive and 2(b), that the learned Magistrate placed too much emphasis on the deterrent aspect (of the sentence).
77 Following the hearing and convictions, the learned Magistrate adjourned the matter to obtain a pre-sentence report. A report dated 29 September 1998 was subsequently provided. When the appellant appeared before his Worship again on 31 December 1998 he was
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- represented by counsel who made submissions on his behalf in respect of sentence. Having heard those submissions and read the pre-sentence report, the learned Magistrate referred to the offences of which the appellant had been convicted and observed that the appellant had denied them and as appeared from the pre-sentence report, still maintained his innocence. His Worship reiterated that he had accepted the evidence of the prosecution witnesses and rejected that of the appellant, who appeared on the face of the report to have a long-standing alcohol problem as a result of which he may well have no clear recollection of many incidents in the past.
78 His Worship then continued (AB 96-97):
"I now turn to the pre-sentence report, which indicates that he is a man who was a migrant to this country some years ago from his country of origin, being Poland. His life story has been set out, including the break down of his marriage, and that all occurred in the 80s. At that time he was convicted of breaching a restraining order taken out by his former wife. He has various convictions in the 1990s for dishonesty and assault; indeed, one assault causing bodily harm. He has been the subject of community supervision at the direction of the court, and those orders have required alcohol counselling, and the report indicates that although it was clearly an identifiable problem, that this man simply persisted in a denial that there was a problem with drink. Indeed, the report indicates that further intervention would be fruitless in the view of the author.
I'm also told that he has attended psychological counselling, and is indeed still attending his own private psychiatrist in regard to a chronic depression condition. To that extent, he is undertaking something positive on his own behalf. In regard to his present consumption of alcohol he, according to the author of this report, was defensive and simply indicated that he drinks in a normal manner and would not provide further details as to frequency of intensity.
The author of this report has come very close to the point of saying that there is really no realistic prospect of supervision being effective in this case. That's a very sad situation to ever be reached, but it does happen with many offenders, but not of this type. More the case where burglary and more serious matters by way of recidivists coming back to the court and the
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- court must at some point draw a line and say there is going to be no more community involvement. It will be prison and nothing else. The report suggests at this point a deterrent penalty is required, but I have to make my own mind up in that regard and in regard to penalty.
Indeed, I accept in the Sentencing Act, I have to consider all other options before I approach that of the last resort. A fine in this case for these matters would I think be of little impact. He has limited income in any event, and the real difficulty in this case is that the victim of his crimes are his immediate neighbours in a block of flats. They are persons who have provided a victim impact statement to the court. They are a lady in her 50s, who is a refugee from Europe, from a war-torn area of Bosnia, with an adult son.
The report has to be viewed in the context that she has been the complainant in this matter. She maintains there has been a history of harassment, which I accept is denied by him. There is reference in those reports to incidents beyond those which are the subject of these three charges, and I put those on one side. I make it clear that I'm only dealing with him for these two incidents which resulted in three charges. I have to say that the content of the victim impact statement suggests that their life has been made a virtual hell by the actions of this man.
I make clear that the views of the victim are only one of the many aspects that I have to take into account. What I think is of more significance is that when Parliament introduced the Restraining Orders Act only in December last year, it did so after widespread community consultation, there having been a previous piece of legislation in operation since the 80s. The court takes the view that when parliament increased the penalty and distinguished between violence restraining orders and misconduct restraining orders, it was directing the court to take note that these matters are of real concern to members of the community.
Once there is a violence restraining order made, it is incumbent upon the person subject of that order to not breach those orders, and indeed, even in the context of bail, many persons in recent times have been refused bail, because if you cannot comply with a court order to keep the peace, there is really not much
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- else that is available to protect the person who has come to the court seeking protection. …
It does seem to me having weighed all of the matters before me, that if there were any disposition other than imprisonment, there would not be a sufficient deterrent to this man from repeating his conduct, and it must be made clear to him and to the community generally that when there is a violence restraining order, even between neighbours, which is a most difficult situation, if there is a breach, and indeed a serious breach, it will be dealt with firmly by members of this court, who have exclusive jurisdiction over these matters.
Following the Sentencing Act being passed in November of 95, a court, once it reaches the decision to imprison, cannot impose a sentence of 3 months or less. It's my view that a sentence of 4 months' imprisonment should be imposed, to be served from today. There will be 4 months' imprisonment on each of these three matters to be served concurrently. That is to make it clear to him that his conduct in these particular matters is unacceptable. I make clear that his prior record has not been relevant, except in the sense as described by the High Court in Veen and the Queen. The record indicates that there is a history of breach of the law, and indeed a breach of restraining orders in the past. It shows the court that this present incident is not an isolated incident. It is part of a continuing conduct of disrespect for the court, the court's orders and the law in general.
There is a discretion to suspend a sentence imposed, but in the circumstances I am not prepared to suspend the sentence. It seems to me that considerable efforts in the past have been offered to this man to rehabilitate himself. Although there is some rehabilitation under way by his own efforts, I'm not prepared to suspend the operation of this sentence …"
79 These were comprehensive and pertinent remarks on sentence. They were fully supportable on the findings made by his Worship and what was contained in the pre-sentence report. It is to be observed that it is rare indeed for a Community Corrections Officer to recommend an offender be given a deterrent penalty. I take the intent of that to reflect the officer's assessment that past supervision had not assisted the appellant and his on-going alcohol problem, his propensity to violent and abusive behaviour and his unwillingness to accept responsibility, all led to the conclusion
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- that all that was likely to reduce his risk of reoffending was an appropriately deterrent penalty. That seems to me to be the way the learned Magistrate took it and in the circumstances it is not possible to say he erred in so doing.
80 Violence restraining orders are notoriously difficult to enforce, particularly when the parties are in physical proximity to, or otherwise have some contact with, each other. Compliance with such orders will necessarily depend to a substantial degree on the knowledge that breaches will be dealt with promptly and severely. The need for general and individual deterrence will ordinarily outweigh subjective or other mitigatory considerations. In the instant case it could not properly be said a sentence of four months immediate imprisonment was manifestly excessive.
81 I would grant leave to appeal on grounds 2(a) and (b), but would dismiss the appeal against sentence.
82 For the reasons expressed above, the appeals against conviction and sentence will be dismissed.
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