Michael Dojcinoski v The Queen

MICHAEL DOJCINOSKI v THE QUEEN
[2011] ACTCA 8 (3 May 2011)

APPEAL AND NEW TRIAL – accused appeal against conviction – whether verdict unsafe or unsatisfactory – appeal dismissed – no issue of principle

M v The Queen (1994) 181 CLR 487
Royall v The Queen (1990) 172 CLR 378

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 31 of 2010
No. SCC 215 of 2009

Judges:        Refshauge, Penfold and Lander JJ
Court of Appeal of the Australian Capital Territory
Date:           3 May 2011

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 of 2010
  )          No. SCC 215 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MICHAEL DOJCINOSKI

AND

THE QUEEN

ORDER

Judges:  Refshauge, Penfold and Lander JJ
Date:  3 May 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 of 2010
  )          No. SCC 215 of 2009
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MICHAEL DOJCINOSKI

AND

THE QUEEN

Judges:  Refshauge, Penfold & Lander JJ
Date:  3 May 2011
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

1. This appeal arises out of an incident which occurred in the early hours of 6 April 2008 when two groups of men came in contact in an area in Civic on Northbourne Avenue and a melee or altercation ensued.

2. Originally, there were three grounds of appeal, and the Notice of Appeal was amended to include two other grounds.  Those additional grounds and two of the earlier grounds addressed issues of the direction in the summing up that the learned trial judge had given to the jury.

3. There was also a ground as to an allegation that the verdict of the jury was unsafe and unsatisfactory.

1. After argument in the court, the appellant abandoned all other grounds other than the ground that the verdict was unsafe and unsatisfactory.  Accordingly, it is not necessary to address those other grounds.

2. The incident arose, as I said, when the two groups encountered each other in the early morning of 6 April 2008 in Civic.  The assault, which is the subject of the charge against the appellant and of which he was found guilty, was occasioned when the appellant was bumped by one of the members of the other group and a fight started.

3. In that fight, the victim of the assault was punched about the head and ultimately knocked to the ground and was unconscious when he was on the ground.

4. He said in his evidence that he had covered his face with his hands to prevent himself being punched in the face.  He said to police, however, in the statement that he gave shortly after the incident, that he had been punched in the face.