Michael Dojcinoski v The Queen

[2011] ACTCA 8

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.

5. He resiled from this in his evidence, although in cross-examination he did accept that he had originally said to the police that he had been hit in the face.  In re-examination, he suggested that that hit in the face was as a result of hits to his arm covering his face and his arm then hitting his face.

6. He was felled to the ground and one of the witnesses gave evidence that he had hit the victim on the back of the head.  Whether that hit felled him to the ground or caused him to lose consciousness is unclear, and is not a matter on which either the jury or this Court needs to decide.

7. There was clear evidence, however, and the jury accepted, that the victim had been kicked and that it was the appellant that had kicked the victim.  The evidence of one of the witnesses was clear that the kick was to the area of the victim’s face.

8. It was in this context that the remaining appeal ground of whether the verdict was unsafe and unsatisfactory had to be considered.  In M v The Queen (1994)181 LR 487 at 493, the majority, Mason CJ, Deane, Dawson and Toohey JJ set out the following statement of principle in relation to the proposition that a verdict is unsafe or unsatisfactory:

   ... the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  (citations omitted)

9. Mr B Collaery, for the appellant, submitted that the jury could not be satisfied that the injury to the victim’s eye, which was the only significant injury to his face, was caused by the kick and not by any punch to the face which might have been suffered in the earlier melee.

10. There were, however, matters which made this not as clear as it would otherwise have seemed.  In particular, as I have indicated, there were no other injuries of any significance to the face of the victim and therefore an inference could be drawn that the kick had caused the injury that there was to the face, and that was clear on the photographs that were tendered in the proceedings.

11. Further, as there were no other significant injuries to the face, the only other inference that the jury would have to have drawn was that the kick had caused no injuries to the face at all.

12. That was an inference which the jury, in my view, were entitled to reject, particularly in light of the other matter, which was that the kick was, on the evidence, hard enough to move the head of the victim who was unconscious at the time and therefore a kick of some severity.

1. The learned trial judge put the issue of causation clearly to the jury and he indicated to the jury that they had to be satisfied beyond reasonable doubt that the kick had caused the injury which was particularised by the Crown, namely the injury to the eye.

2. We were referred, on the issue of causation, to what Mason CJ said in Royall v The Queen (1990) 172 CLR 378 at 387 where his Honour said:

   The issue of causation was left to the jury to decide as one of fact.  In this respect I agree with the statement made by Burt CJ in Campbell v The Queen [1981] WAR 286 at page 290. That it is “enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter”.

3. In my view, it was open to the jury to find, having regard to the fact that they saw and heard the witnesses and the evidence that I have identified, that the kick, which they clearly found had been delivered by the appellant, caused the injuries to the eye of the victim which included a fracture to the orbit, and an abrasion above the eye.

4. In my view, the appeal should be dismissed.

   I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of His Honour Justice Refshauge.
   Associate:

   Date:     14 July 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

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

REASONS FOR JUDGMENT

PENFOLD J: 

1. I agree with Refshauge J.

   I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of Her Honour Justice Penfold.

   Associate:

   Date:  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

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

REASONS FOR JUDGMENT

LANDER J: 

1. I also agree.

   I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of His Honour Justice Lander.

   Associate:

   Date:  2011

Counsel for the Appellant:  Mr B Collaery
Solicitor for the Appellant:  Collaery Lawyers
Counsel for the Respondent:  Mr J Lawton
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  3 May 2011
Date of judgment:  3 May 2011