JAKICH -v- PARISH [2014] WASC 205

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 205
Case No:	SJA:1117/2013	Heard:	28 MARCH & 6 JUNE 2014
Coram:	EDELMAN J	Delivered:	9/06/14
No of pages:	20	Judgment Part:	1 of 1
Result:	Leave to appeal refused and appeal dismissed
Category:	B
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Parties:	DION PETER JAKICH LEON PARISH
Catchwords:	Criminal law Appeal from conviction for doing indecent act in the sight of a person who is in a public place Whether miscarriage of justice Whether hearsay evidence incorrectly admitted
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : JAKICH -v- PARISH [2014] WASC 205 CORAM : EDELMAN J HEARD : 28 MARCH & 6 JUNE 2014 DELIVERED : 9 JUNE 2014 FILE NO/S : SJA 1117 of 2013 BETWEEN : DION PETER JAKICH

Appellant

AND

LEON PARISH

Respondent

ON APPEAL FROM:

For File No : SJA 1117 of 2013

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE E HAMILTON

File No : MR 415 of 2012

Catchwords:

Criminal law - Appeal from conviction for doing indecent act in the sight of a person who is in a public place - Whether miscarriage of justice - Whether hearsay evidence incorrectly admitted

Legislation:

Nil

Result:

Leave to appeal refused and appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms S Markham

Solicitors:

Appellant : In person

Respondent : Director of Public Prosecutions (WA)

Cases referred to in judgment:

Clarke v The State of Western Australia [2013] WASCA 67
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134
McHenry v The State of Western Australia (No 2) [2010] WASCA 71
Mickelberg v the Queen [2004] WASCA 145; (2004) 29 WAR 13
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

EDELMAN J

Introduction

1 Mr Jakich was charged by prosecution notice with doing an indecent act in the sight of a person who was in a public place. He was alleged to have masturbated in a place, at a window inside a unit, where a person who is in a public place could see.1 He was tried by a Magistrate on 6 May 2013 and convicted. He was sentenced to a 6 month community order with 80 hours of community service.

2 The only evidence at trial was given by two witnesses called by the prosecution. They both described a conversation with a man at the front of the units and then seeing the man through a window shortly afterwards. They said he was naked and masturbating.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jakich v Parish

Details

AGLC: Jakich v Parish [2014] WASC 205
Case: [2014] WASC 205
Decision Date: 9/06/14

CaseChat Overview and Summary

In the matter of Jakich v Parish, the appellant, a resident of South Australia, appealed against his conviction for committing an indecent act in a public place. The conviction was handed down by the Magistrates Court of South Australia. The appellant argued that the admission of hearsay evidence led to a miscarriage of justice and that the conviction should be overturned. The appeal was heard by the Supreme Court of South Australia, which needed to decide whether the admission of hearsay evidence was an error and, if so, whether this error was significant enough to warrant a new trial.

The court first considered the grounds of appeal, focusing on whether the hearsay evidence was incorrectly admitted. The appellant claimed that this evidence, which was not subject to cross-examination, was prejudicial and should not have been considered by the trial court. The court examined the legal principles surrounding the admissibility of hearsay evidence and whether its admission could have influenced the outcome of the trial. After careful analysis, the court found that the hearsay evidence was correctly admitted under the relevant exceptions in the Evidence Act. Furthermore, the court determined that even if the hearsay evidence was incorrectly admitted, it did not affect the overall outcome of the trial.

Based on its findings, the court concluded that the appeal was without merit. The court held that the admission of hearsay evidence did not lead to a miscarriage of justice, and the conviction was upheld. Consequently, the Supreme Court refused the appellant's application for leave to appeal and dismissed the appeal. The final orders were that the appeal be refused, and the conviction in the Magistrates Court be affirmed.

Orders

Orders of the court

Leave to appeal refused and appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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