Jakich v Parish
[2015] WASCA 58
•20 MARCH 2015
JAKICH -v- PARISH [2015] WASCA 58
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 58 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:127/2014 | 18 NOVEMBER 2014 | |
| Coram: | BUSS JA MAZZA JA HALL J | 20/03/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | DION PETER JAKICH LEON JOHN PARISH |
Catchwords: | Criminal law Appeal against conviction Appellant convicted after trial of doing an indecent act in the sight of a person who was in a public place Whether verdict unreasonable or cannot be supported having regard to the evidence Whether magistrate made a material error of fact Whether a miscarriage of justice occurred at the trial |
Legislation: | Criminal Appeals Act 2004 (WA), s 9 Criminal Code (WA), s 203(1)(a) |
Case References: | DPJB v The State of Western Australia [2010] WASCA 12 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Mack v The State of Western Australia [2014] WASCA 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JAKICH -v- PARISH [2015] WASCA 58 CORAM : BUSS JA
- MAZZA JA
HALL J
- Appellant
AND
LEON JOHN PARISH
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : EDELMAN J
Citation : JAKICH -v- PARISH [2014] WASC 205
File No : SJA 1117 of 2013
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of doing an indecent act in the sight of a person who was in a public place - Whether verdict unreasonable or cannot be supported having regard to the evidence - Whether magistrate made a material error of fact - Whether a miscarriage of justice occurred at the trial
Legislation:
Criminal Appeals Act 2004 (WA), s 9
Criminal Code (WA), s 203(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
DPJB v The State of Western Australia [2010] WASCA 12
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Mack v The State of Western Australia [2014] WASCA 207
1 BUSS JA: On 5 August 2013, the appellant was convicted, after a trial on 6 May 2013 in the Magistrates Court before Magistrate Hamilton, on one charge in a prosecution notice of doing an indecent act in the sight of a person who was in a public place, contrary to s 203(1)(a) of the Criminal Code (WA) (the Code).
2 The magistrate sentenced the appellant to a 6-month community based order with 80 hours of community service.
3 The appellant applied for leave to appeal to the Supreme Court against his conviction. The appeal was governed by div 2 of pt 2 of the Criminal Appeals Act 2004 (WA).
4 On 9 June 2014, Edelman J refused leave and dismissed the appeal.
5 On 30 June 2014, the appellant filed an appeal notice in which he sought leave to appeal to this court against Edelman J's decision.
Overview of the prosecution's case
6 The prosecution case was that on 27 October 2012 the appellant was staying at Unit 1/13 Station Road, Margaret River. The first complainant, Ms Hudson, was visiting the second complainant, Ms Weiss, who resided at another unit in the block at 13 Station Road. At about 9.30 pm Ms Hudson arranged for a taxi to collect her from 13 Station Road. She and Ms Weiss walked from Ms Weiss' unit to the front of the block and waited near the letterboxes for the taxi to arrive. As they waited, Ms Weiss noticed the appellant staring at them. She challenged him. The appellant did not reply and continued to stare. Ms Weiss and Ms Hudson moved from the letterboxes towards the block of units and out of the appellant's sight. The prosecution alleged that, after the women moved out of his sight, the appellant positioned himself, naked, at a front window of Unit 1, and masturbated. Ms Weiss and Ms Hudson had a clear and unobstructed view of the appellant masturbating. Shortly after, when Ms Hudson got into her taxi, she saw the appellant standing, naked, at an upstairs window. The following morning, Ms Hudson noticed the appellant in town, outside the Margaret River IGA store, and confronted him about his conduct on the previous night.
The appellant's concessions
7 At the trial the appellant was represented by a lawyer.
8 The appellant's lawyer informed the magistrate that:
(a) the conversation alleged by the prosecution to have taken place between the appellant and Ms Weiss, before the happening of the alleged indecent act, had occurred;
(b) the appellant admitted having been in the vicinity when the alleged indecent act was committed;
(c) however, the appellant denied having committed the alleged indecent act;
(d) the appellant accepted that on the following day he had a conversation with Ms Hudson in town outside the Margaret River IGA store; and
(e) it was not in contest that masturbating in the sight of a person who is in a public place is an indecent act for the purposes of s 203(1)(a) of the Code (ts 2 - 5).
The cross-examination of Ms Hudson
9 During cross-examination, the following exchange occurred between defence counsel and Ms Hudson in relation to her conversation with the appellant, outside the Margaret River IGA store, on the morning after the alleged offending:
And you walked up to him, this man, and you said, 'Mate, you're disgusting. What are you doing being naked?'?---That's true.
Right. And he, I will suggest to you, replied, 'What, did you see my wanger?'?---See my dang or dong.
Dong. Well, I will suggest the word he said was wanger, but in any event, it was a slang word for penis; would that be fair to say?---That's true.
Right. And he said it in the same way that I just said it: 'What, did you see my wanger?'?---Very casually (ts21).
The central issue at the trial
10 The central issue at the trial was whether the man first seen by Ms Weiss and Ms Hudson, while they were waiting near the letterboxes for the taxi to arrive, was the man they allegedly saw masturbating at the front window of Unit 1. In other words, the fundamental question was the identity of the man who allegedly committed the indecent act.
The witnesses at the trial
11 At the trial the prosecutor called Ms Hudson and Ms Weiss as witnesses.
12 Defence counsel did not call the appellant or any other witnesses.
The magistrate's findings of fact, reasoning and decision
13 The magistrate made the following findings of fact:
(a) Ms Weiss lived at one end of the block of 16 units. The block comprised eight units on each side of a central driveway which ran from the street to the rear of the property.
(b) On the material date Ms Hudson visited Ms Weiss at the property for a significant period before she called for a taxi, at about 9.30 pm, to take her home.
(c) The appellant was standing in the doorway of Unit 1 (which was at the front of the property) and had a brief conversation with the women as they waited for the taxi.
(d) The conversation made the women uneasy and consequently they returned to Ms Weiss' unit to await the arrival of the taxi.
(e) As they passed the window of the unit in which they had first seen the appellant standing in the doorway, Ms Hudson and Ms Weiss saw a man standing inside the unit, with his left hand raised, who was masturbating with his right hand.
(f) The fact that Ms Hudson's evidence, to the effect that she saw the same man, naked, through the first window of the unit, was inconsistent with Ms Weiss' evidence to the effect that she saw the same man through the second window, did not detract from the probative force of their evidence.
(g) Each of the witnesses was 'very, very clear' as to what it was they observed the man doing (reasons: ts 5).
(h) There was no independent evidence as to the internal design or layout of the unit in question.
(i) As Ms Hudson's taxi was leaving the property, she again saw the same man, naked, standing in an upstairs window above the carport of the unit in question.
(j) The following day Ms Hudson saw the appellant in town and confronted him about his behaviour.
14 The magistrate dealt in her reasons with the defence case at the trial:
Both women gave evidence as to what they saw as they passed the window of the unit and both could not be shaken in rigorous cross-examination that they saw a man standing with his left arm up, masturbating with his right hand inside the unit number 1 behind a window. Much was made in cross-examination of these witnesses that the person they saw was standing at a kitchen window and that [the] window was above a kitchen bench, and this being the case, they would not have been able to see what they said they did by virtue of the height of the bench. However, counsel's questions in cross-examination are not evidence.
The witness Weiss in her evidence actually said she saw lights lit up at the kitchen window and pointed to the first window to the right of what appears to be an entranceway to the unit. Hudson indicated the second window. So there was an inconsistency between the two prosecution witnesses' evidence in that regard, but I found them to be honest witnesses and sometimes honest witnesses can be mistaken in their recall. But both were very, very clear on what it was that they observed the male inside the unit was doing behind the window.
While Ms Weiss conceded in cross-examination that the units were all of a similar design and that the kitchen sink was located in the kitchen bench, she was a little equivocal as to the width and height of the benches, answering 'I suppose' to questions about that. She was not asked whether she had been in that particular unit and there is no other evidence, that is from any independent witness or from the accused, as to the design or layout of the unit in question.
I find that just as the women reached Ms Weiss's unit the taxi arrived and Ms Hudson ran to it. I accept her evidence that when she got in the taxi and it was reversing out, she again saw the same male, naked, standing in an upstairs window that was located above the carport. She was cross-examined extensively on this point as she had not used the word 'upstairs' in her statement …
It was put to her that she had only just discovered the bottom carport window was frosted and because she would not have been able to see what she said she saw, she used the word 'upstairs' and she denied this intention. In that regard, I accept her evidence. I found both of them, as I have said, honest witnesses and credible witnesses in their recall and memory.
The internal inconsistencies and the inconsistencies between their evidence was not such that it caused me to have any doubt on the critical part of their evidence, which is what they saw the male person doing as they walked past the unit, that is masturbating with his right hand. Nor do I have any concerns with the fact that Ms Hudson made no mention of Ms Weiss initially to police, and I accept her explanation for why she didn't. Again, this does not impact on her credibility. Ms Weiss's evidence was that she had Homeswest accommodation, that it was difficult to get, and that people don't want to get involved in something that might impact negatively on that accommodation.
It doesn't [appear] to be in issue that the following day Ms Hudson went to purchase a newspaper and saw that same person that she had seen the night before, that is the person in the window masturbating. Nor does it seem to be in issue that she had a conversation with that male person about what she said he had been doing the night before, and that he replied to the effect that she couldn't have seen his wanger/wang/ding-dang and it's not clear which word but it was clear that it was a word which was slang for penis, because he was wearing the same shorts as he had on that morning. And it's not in issue that he told her to fuck off and do her shopping. All of that was conceded by counsel for the [appellant], that it was his client who had that conversation with the witness, [Ms] Hudson (reasons: ts 5 - 6).
15 The magistrate also dealt with criticisms made by defence counsel in relation to the manner in which the police investigated the incident:
Counsel for the [appellant], as I have said at the beginning, was scathing of the way in which the matter was investigated. In particular, he took issue with the two prosecution witnesses being together at the scene with the investigating officer. He points to the risk of contamination of a witness's evidence and the risk of manufactured corroborative evidence.
While there may well be [cases] where that is so, I am satisfied in this matter that these two women gave their evidence from their independent recollections. The inconsistencies in their evidence did not detract from their overall credibility, and I accept that each saw what they gave evidence about, that is they both saw a man in the downstairs window and [Ms] Hudson saw the same male in the upstairs window masturbating (reasons: ts 6 - 7).
16 The magistrate then addressed the central issue, namely whether the appellant was the offender:
Identity is the sole and critical issue for the trial. Was the offender the [appellant]? There is no evidence to suggest that the women knew the [appellant]. They certainly did not identify him in court. So can his identity be inferred? Counsel for the [appellant] conceded from the outset of trial that his client was present outside the unit when Ms Hudson and Weiss were waiting initially for the taxi, that his client had a brief exchange by way of conversation, and then critically conceded that his client had a conversation with [Ms] Hudson the next morning.
That conversation, as I have found as fact and as conceded, was to the effect that [Ms] Hudson, on seeing the [appellant], approached him, asked him what he was doing the night before, and told him he was disgusting. There is no evidence either in examination-in-chief or in cross-examination that she actually put it to him, who at that point is for all intents and purposes a complete stranger, that he was masturbating the night before. As close as that gets is her telling him that he or what he was doing the night before is disgusting.
Now, commonsense suggests that if a person in the position of the [appellant] had not done what the witnesses say was done, then the reaction certainly would be different. As a generalisation, a person confronted in those circumstances might say, 'I have no idea who you are, I have got no idea what you are talking about, fuck off and do your shopping.' But the [appellant] doesn't. He responds in a way that can only suggest he knew what it was she was talking about or referring to as disgusting. He says words to the effect that she couldn't have seen his penis because he was wearing the same shorts as he had on that morning. His immediate response was to say some words with reference to something of a sexual nature.
There is no direct evidence, as I said earlier, from the two prosecution witnesses that identify the [appellant] in court but the only inference that can possibly be drawn from what evidence we do have is that the [appellant] is the offender. The only logical and reasonable inference to be drawn as to identity flows from the very direct and generous concessions made by counsel for the [appellant], and without those, that is presence immediately before the commission of the act and the conversation the next morning, both admitting to having it with [Ms] Hudson and to its content, there would be no identity of the [appellant]. And in those circumstances the case is made out against him beyond reasonable doubt (reasons: ts 7 - 8).
The appeal before Edelman J
17 In the appeal before Edelman J the appellant made an application for leave to adduce new evidence.
18 The new evidence comprised a statutory declaration made by the appellant which annexed numerous photographs of parts of the exterior and interior of Unit 1, 13 Station Road. The annexures include photographs, taken from the exterior of the premises, of the appellant standing, behind the kitchen sink, in front of a downstairs window.
19 Edelman J summarised the grounds of appeal as follows:
1. Evidence was presented five minutes before the trial.
2. The evidence was manufactured and corrupt.
3. The witnesses lied.
4. The conviction was based on hearsay not the facts of the act.
5. The witnesses gave inconsistent evidence [40].
20 As to ground 1, Edelman J dismissed the allegation of late disclosure of information and refused leave to appeal for two reasons. First, the ground was not particularised or supported by any evidence either of any late disclosure or of any prejudice to the appellant arising from the alleged late disclosure [42], [46]. Secondly, defence counsel cross-examined Ms Hudson in detail on matters relating to the issue of late disclosure relied on by the appellant at the hearing before Edelman J [47].
21 As to grounds 2, 3 and 5, the appellant's case in reliance on those grounds was based on the numerous photographs annexed to his statutory declaration. Edelman J held in substance that it was not reasonably arguable that the new evidence, together with the evidence given at the trial, established that the appellant was innocent or raised such a doubt that the court was satisfied he should not have been convicted. His Honour gave five reasons for refusing leave to appeal on these grounds [68] - [75]. It is unnecessary to repeat them.
22 As to the photograph (numbered 1), which depicts the appellant standing, behind the kitchen sink, in front of a downstairs window, Edelman J said:
The photograph (numbered 1) relied upon by [the appellant] does not support his appeal. Rather, it detracts from it. That photograph depicts [the appellant] naked from the waist up, in the window of a unit described by [the appellant] as 'the kitchen window of unit 1' holding the blinds up above that window. As I have discussed, Ms Weiss was cross-examined about the location of the man who she saw. It was put to her that 'if a person was standing close up to that bench you [would not] have been able to see his penis' (ts 31 (6 May 2013)). The photograph produced by [the appellant] shows his navel and what appears to be the upper part of his trousers with him standing behind the sink and bench [64].
23 As to ground 4, the appellant did not provide any particulars of the alleged hearsay. It became apparent, however, at the hearing before Edelman J that the ground related to conversations between the appellant and Ms Hudson. As his Honour rightly noted, these conversations were admissible under an exception to the common law rule against hearsay in that they were admissions against interest. His Honour therefore refused leave to appeal on ground 4.
24 The appeal before Edelman J was taken to have been dismissed because leave to appeal was refused on all of the grounds. See s 9 of the Criminal Appeals Act.
The proposed grounds of the application for leave to appeal to this court
25 The proposed grounds of the application for leave to appeal to this court are not proper grounds of appeal. A number of them are incoherent. None of the grounds alleges that Edelman J made an error of law or an error of fact in dismissing the appeal from the magistrate. My examination of the grounds, in the context of the appellant's written and oral submissions, indicates that the appellant alleges, in substance, that:
(a) the verdict of guilty is unreasonable or cannot be supported having regard to the evidence;
(b) the magistrate made an error of fact in accepting the evidence of Ms Weiss and Ms Hudson; and
(c) a miscarriage of justice occurred at the trial.
Proposed ground: verdict of guilty unreasonable or cannot be supported
26 Recently, in Mack v The State of Western Australia [2014] WASCA 207, I summarised (Martin CJ & Mazza JA agreeing) the principles to be applied by an appellate court in determining whether a verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported [141] - [147]. It is unnecessary to repeat the relevant principles.
27 The critical issue at the trial concerned the identity of the man who Ms Weiss and Ms Hudson allegedly saw masturbating at the front window of Unit 1; in particular, whether the appellant was the man who they allegedly saw committing that indecent act.
28 I am satisfied, after examining the trial record and weighing the evidence, that it was reasonably open to the magistrate to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt.
29 A tribunal of fact, acting reasonably:
(a) was not precluded by the state of the evidence at trial from convicting the appellant;
(b) was entitled to accept the evidence of Ms Weiss and Ms Hudson that they saw a man masturbating at a window of Unit 1;
(c) was entitled to accept Ms Hudson's evidence as to the conversation she had with the appellant the following morning in town, outside the Margaret River IGA store;
(d) was entitled to conclude that the only reasonable inference open on the evidence was that the appellant was the man who Ms Weiss and Ms Hudson saw masturbating; and
(e) was entitled to be satisfied beyond reasonable doubt, upon the combined force of the whole of the evidence relied on by the prosecution, that the appellant had committed the offence in question.
30 The trial record does not require the conclusion that the magistrate must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty was not unreasonable. It was supported by evidence her Honour was entitled to accept and by inferences she was entitled to draw. After paying full regard to the consideration that the magistrate was entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that her Honour had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on the charge in question or as to the correctness of his conviction.
31 The appellant's case on the proposed ground is not advanced by the new evidence that was before Edelman J.
32 Where an accused has been convicted, an appellate court will not allow an appeal, on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted. See Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12 [66] (Owen JA, McLure P relevantly agreeing).
33 I am satisfied, after evaluating and weighing the new evidence in combination with the evidence adduced at the trial, that, generally for the reasons given by Edelman J, it is not reasonably arguable that the new evidence, together with the evidence given at the trial, establishes that the appellant is innocent or raises such a doubt that an appellate court should be satisfied that he should not have been convicted.
34 In particular, two independent points may be made about the photograph (numbered 1) which depicts the appellant standing, behind the kitchen sink, in front of a downstairs window. First, as Edelman J noted, the photograph shows the appellant's umbilicus and what appears to be the upper part of his trousers while he is standing behind the kitchen sink. The image depicted in the photograph is not inconsistent with persons in the position of Ms Weiss and Ms Hudson being able to see the appellant masturbating. Secondly, in any event, there is nothing in the new evidence which negates the reasonable possibility that at the material time the appellant was standing on an object with a view to making his penis more visible to the complainants.
35 The ground does not have a reasonable prospect of success.
Proposed ground: did the magistrate make an error of fact in accepting the evidence of Ms Weiss and Ms Hudson?
36 In my opinion, generally for the reasons I have given in the course of considering whether the verdict of guilty was unreasonable or cannot be supported, the magistrate did not make an error of fact in accepting the evidence of Ms Weiss and Ms Hudson.
37 The ground does not have a reasonable prospect of success.
Proposed ground: did a miscarriage of justice occur at the trial?
38 I am satisfied that Edelman J was correct, generally for the reasons he gave, in deciding that none of the grounds of appeal relied on by the appellant before his Honour had any merit.
39 The submissions in the appellant's case principally allege that Ms Weiss, Ms Hudson and the investigating police officer, Leon Parish, fabricated evidence; Ms Weiss and Ms Hudson told lies; and the evidence at the trial was corrupted by an incompetent police investigation. The evidence is not capable of supporting a reasonably arguable case in relation to any of those allegations.
40 The submissions in the appellant's case before this court rely, in essence, on the grounds before Edelman J and have no reasonable prospect of success.
41 I have no doubt, on my appraisal of the trial record and the new evidence, that the appellant received a fair trial and no miscarriage of justice occurred.
Conclusion
42 Each of the grounds of appeal is without merit. The submissions in the appellant's case are also without merit. Leave to appeal should be refused and the appeal dismissed.
43 MAZZA JA: I agree with Buss JA.
44 HALL J: I agree with Buss JA.
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