Kolusovski v Police (No 2)

[2013] SASCFC 136

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

KOLUSOVSKI v POLICE (No 2)

[2013] SASCFC 136

Reasons for Decision of The Full Court

(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Stanley)

18 December 2013

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES

Applicant applied for permission to appeal against a decision of a single judge of this Court - permission refused.

KOLUSOVSKI v POLICE (No 2)
[2013] SASCFC 136

Full Court:      Vanstone, Anderson and Stanley JJ

1. THE COURT:      Mr Kolusovski has applied for permission to appeal against a decision of a judge of this Court.  The judge dismissed an appeal against a decision of Magistrate Fisher convicting and sentencing the applicant for assault:  Kolusovski v Police [2013] SASC 78.

2. The applicant has at all times represented himself.  His grounds of appeal are very general, but it is plain that his proposed appeal turns on questions of fact which come down to whether it was open to the magistrate to convict.

3. The assault was allegedly committed upon the applicant’s neighbour.  It was witnessed by the complainant’s wife.  The magistrate found both to be impressive witnesses.  On the other hand he found that the applicant’s evidence was not impressive.  The applicant called his mother to speak of an interaction earlier in the day, but the magistrate did not find that evidence to be reliable.

4. Before the judge the applicant pointed to what he said were inconsistencies in the prosecution evidence. The same arguments had been put to the magistrate. The judge found that there was “no material inconsistency” in the evidence of the complainant and his wife: [24]. The contention that the police had fabricated evidence was also rejected: [22].

5. The only criticism made of the judge’s reasons is that he came to the wrong decision.  In essence the applicant wishes to run the same case before the Full Court as he ran before the judge.  And indeed that argument was a rehearsal of his arguments to the magistrate.

6. In summary, Mr Kolusovski has not put forward a reasonably arguable ground for concluding that the judge erred in his decision.  Nor, in all the circumstances is it in the interests of justice that permission to appeal should be granted.  There is nothing in the matter to suggest that it raises any issue of principle.

7. For these reasons the Court refuses permission to appeal.