Jakich v Parish
[2014] WASC 205
•9/06/14
JAKICH -v- PARISH [2014] WASC 205
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 205 | |
| Case No: | SJA:1117/2013 | 28 MARCH & 6 JUNE 2014 | |
| Coram: | EDELMAN J | 9/06/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused and appeal dismissed | ||
| B | |||
| PDF Version |
| 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
- 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. Mr Jakich, through his counsel, admitted that he was the person who spoke with the two witnesses in the vicinity of the units immediately before the alleged offence.2
3 Mr Jakich's counsel also appeared to concede at the start of trial that Mr Jakich had a conversation the next day with one of the witnesses, Ms Hudson, and he appeared to accept the alleged content of the conversation.3 Ms Hudson said that the content of that conversation was that she told Mr Jakich that he was disgusting and referred to him being naked. She said that Mr Jakich denied this, asked Ms Hudson if she saw his penis, and said that he had his shorts on. The cross-examination of Ms Hudson about that conversation proceeded on the basis that the conversation had occurred in similar terms to those she described. Counsel for Mr Jakich in closing did not dispute the evidence about the conversation on the day after the alleged offence.
4 The learned Magistrate accepted the evidence of the two witnesses that the offence occurred. And her Honour found that Mr Jakich was the man who had committed the offence.
5 Mr Jakich appeals against his conviction. Most of his grounds of appeal are concerned with an attack on the evidence of the two witnesses for the prosecution.
6 This appeal was listed for hearing on 28 March 2014. At the hearing of the appeal, it was apparent that Mr Jakich had confused the written submissions from counsel for the respondent with the learned Magistrate's decision. He said that he had not been provided with a copy of the learned Magistrate's reasons for decision and that he had not been listening when the decision was delivered orally.4 He said that he had purchased the transcript from the Magistrates Court but had not been given a copy of the transcribed reasons for decision.5 Counsel for the prosecution quite properly did not object to the grant of an adjournment to allow Mr Jakich to consider a copy of the transcript of the learned Magistrate's decision. The matter was adjourned to allow him (i) to consider the learned Magistrate's reasons for decision, and (ii) to provide an affidavit deposing to new matters of evidence to which he referred on 28 March 2014 and explaining why that evidence was not provided at the trial.6
7 The principal focus of Mr Jakich's submissions and evidence on this appeal involved an assertion that a miscarriage of justice had occurred because the evidence of Ms Hudson and Ms Weiss was lacking in honesty or reliability. That assertion, and each of the grounds of appeal, must be rejected. Leave to appeal is refused and the appeal is dismissed.
The offence
8 Section 203(1)(a) of the Criminal Code provides that 'a person who does an indecent act in a public place or in the sight of any person who is in a public place' is guilty of a crime. The summary conviction penalty is 9 months' imprisonment and a fine of $9,000.
9 A public place is defined in s 1 of the Criminal Code as follows:
The term public place includes -
(a) a place to which the public, or any section of the public, has or is permitted to have access, whether on payment or otherwise; and
(b) a privately owned place to which the public has access with the express or implied approval of, or without interference from, the owner, occupier or person who has the control or management of the place; and
(c) a school, university or other place of education, other than a part of it to which neither students nor the public usually have access.
10 There was no dispute at trial7 that if the act occurred it would be an indecent act,8 and that the act was done in the sight of a person in a public place.9
11 The issue at trial was whether the alleged act occurred and whether Mr Jakich was the person who committed it.
The admissions and evidence at trial
12 Only two witnesses gave evidence at trial for the prosecution. Mr Jakich did not give evidence nor did he call any witnesses. The prosecution witnesses were Ms Hudson and Ms Weiss.
The admissions at the start and the conclusion of trial
13 At the commencement of the trial, counsel for Mr Jakich made various concessions, the first of which included a positive admission.
(i) Mr Jakich was present in the vicinity of the units at the time the alleged incident occurred.10 Mr Jakich had a conversation with the two prosecution witnesses at the units where the alleged incident occurred.
(ii) The next day, Mr Jakich had a conversation with one of the witnesses, the broad substance of which was admitted.11
14 Based on counsel's remarks about (i) and (ii), and an interchange with the learned Magistrate, the prosecutor chose not to play the video record of Mr Jakich's interview with police.
Ms Hudson's evidence
15 Ms Hudson was 51 years old at the time of the trial.12
16 At 2.00 pm on Saturday, 27 October 2012, Ms Hudson was visiting a friend at a block of units in Station Road in Margaret River.13 There were 16 units in the block with eight on each side and a driveway in the middle. Ms Hudson's friend's unit was down the end. An exhibit at trial was a photograph of the units. That exhibit is annexed to these reasons.
17 The friend who Ms Hudson was visiting was Ms Weiss.14 Ms Hudson spent some time with Ms Weiss. Then, at around 9.30 pm, Ms Hudson ordered a taxi.15
18 Ms Hudson went to the exit of the units on Station Road to wait for the taxi. She was with Ms Weiss. She saw a man leaning16 with part of his body out of the door which was nearest the corner of the front of the house.17 She did not see much of the man's body.18 The man made her feel uneasy. She suggested to Ms Weiss that they should go back to Ms Weiss' unit to wait for the taxi. As they turned to go back to the unit she saw a man in the second window along.19
19 The man she saw in the window had his left hand up against the window area. He was naked and masturbating with his right hand.20 The lights were on and the blinds were up.21 Ms Hudson said that the man was the same person she saw in the doorway.22 She saw the man from above the knees upwards.23 She observed him for less than a minute.24 She said that she saw blinds which she thought might have been up and lights on in the background.25
20 It was common ground on this appeal that the window where Ms Hudson described seeing the man masturbating was the second window along the bottom of the photograph annexed to these reasons, between the two doorways.26
21 Ms Hudson and her friend went back towards the unit as the taxi arrived. Ms Hudson got into the taxi. As the taxi reversed out on to Station Road, Ms Hudson saw the man again, but in an upstairs window. Her evidence concerning the window where she saw the man is considered later in these reasons. It suffices to say at this point that she said that she could see 'just about all of' the man's body and then explained:27
Like, his body. Like, just – his legs – like, the bottom of his legs up. I can't tell you that I saw his feet – his feet. I can't remember his feet. I just remember him being like this.
22 The following day, Ms Hudson went to get her Sunday paper and she saw the man she had seen the previous night.28 He was sitting at a taxi rank. Ms Hudson told him that he had been disgusting the previous night. Her evidence about this conversation was not challenged in cross-examination. She said that the man responded as follows:29
He basically said 'Fuck off'. Did you see my 'dong' or 'dang' or whatever the word was. And then pointed to his shorts and he went, 'Nah, I had these on'. And then he told me to fuck off and go and do my shopping, got on his pushbike and went away.
23 Ms Hudson was thoroughly cross-examined by counsel for Mr Jakich.
24 In relation to the conversation on the day after the alleged offence, counsel for Mr Jakich suggested, and Ms Hudson accepted, that she had said to Mr Jakich 'Mate, you're disgusting. What are you doing being naked?'30 Counsel then asked Ms Hudson, and she accepted, that the response was 'Fuck off. I have my shorts on' and that Mr Jakich pointed to his shorts.31
25 It is possible that this cross-examination might have involved an attempt to raise the suggestion that the effect of Ms Hudson's remarks in the conversation might have been understood by Mr Jakich as a suggestion that he was currently naked, rather than naked at the time of the offence the previous evening (to which he replied that he was wearing shorts). But such a construction of the conversation was never put expressly. It would amount to a suggestion that Ms Hudson walked up to a man she had seen the previous night, who was wearing shorts, and suggested that he was naked. In closing submissions at trial, counsel for Mr Jakich did not make any submission to this effect and the learned Magistrate, with respect, rightly did not entertain the possibility. Nor was any such submission made in this appeal.
26 Other matters about which counsel for Mr Jakich questioned Ms Hudson included the following.
(i) The reason why she did not mention Ms Weiss in her witness statement to the police32 or mention in her witness statement the phone call she made to Ms Weiss after the incident.33 Ms Hudson said this was because she did not want to involve her friend.
(ii) How Ms Hudson could have seen the man 'right up against the glass' when counsel asserted that there was a kitchen sink and a kitchen bench up against the glass.34
(iii) Whether Ms Hudson had changed her evidence from, on the one hand, saying in her police statement that on the second occasion that she saw the man it was in the front carport window to, on the other hand, saying in her evidence that she saw him 'above the carport'.35 Counsel put to Ms Hudson that she had changed this evidence because another window in the carport was a frosted window.36 She denied this.
Ms Weiss' evidence
27 Ms Weiss was 56 years old at the time of the incident.37
28 She gave evidence in similar terms to Ms Hudson concerning Ms Hudson's visit to her unit and them waiting at the front of the unit for the taxi.38 She described seeing the man at the door of the units leading into the carport.39 She described speaking with the man and then walking back with Ms Hudson towards Ms Weiss' unit.40
29 Ms Weiss said that when they were walking towards the unit she saw a guy standing at the kitchen window of a unit 'one arm up in the air and the other holding on his penis'.41 She said that he was 'pulling on his penis'.42 She said it was the same person who she saw at the door.43
30 Ms Weiss described what she saw in some detail. She said that the blinds were up. She said that the room was a kitchen because it had a sink and a kitchen bench which was some height below her waist (she is 5 foot 5 inches).44 She described the man she saw.45
31 In cross-examination, Ms Weiss said that the doorway that the man she saw standing in was a doorway to a storage room with only one way in and out.46 She also agreed that the bench in the kitchen window came up to about the waist line of counsel.47 She said that the man was standing far enough back from the bench so that she could see his penis.48
32 Like Ms Hudson, Ms Weiss was also cross-examined in detail. She was asked numerous questions about the location of the man she saw in relation to the bench and the window.49 She was asked to explain her delay in contacting the police.50 She was asked, and she denied, colluding with Ms Hudson in their preparation for the hearing.51
The learned Magistrate's decision
33 The learned Magistrate's decision was based upon her acceptance of the evidence of the two prosecution witnesses as well as the evidence of the two conversations to which Mr Jakich had been a party. Her Honour held that Mr Jakich had made admissions in each conversation.
34 The learned Magistrate accepted the evidence of the two witnesses, Ms Hudson and Ms Weiss. Her Honour said that the witnesses were 'very, very clear' about what they observed the man doing.52 She said that 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'.53
35 Having accepted the evidence of the witnesses, her Honour explained that the sole and critical issue was whether the offender was Mr Jakich. There was no evidence that either witness knew Mr Jakich. Nor did either witness identify Mr Jakich in court.54
36 The learned Magistrate's conclusion that Mr Jakich was the offender was based upon evidence of the two conversations.
37 As to the first conversation, Mr Jakich, through his counsel, admitted that he was the person who spoke with the two witnesses in the vicinity of the units immediately before the alleged offence.55
38 As to the second conversation, Mr Jakich's counsel also appeared to admit at the start of trial that Mr Jakich had a conversation the next day with one of the witnesses, Ms Hudson, and he appeared to accept the alleged content of the conversation.56 In any event, there was no cross-examination of Ms Hudson to suggest that her evidence should not be accepted about the conversation in which Ms Hudson said that she told Mr Jakich that he was disgusting and he made various admissions suggesting that he knew what she was alleging by her reference to him being disgusting. Counsel for Mr Jakich also did not make any submission in closing that Ms Hudson's evidence on this point was inaccurate or should not be accepted.
39 The concession by Mr Jakich that he had the first conversation with Ms Hudson involved an admission that he was present in the vicinity of the units immediately before the offence.57 The conversation on the day after the alleged offence was held by the learned Magistrate to amount to an admission by Mr Jakich that he knew the nature of the incident that Ms Hudson was talking about when Ms Hudson told him that he was disgusting the previous night.58
The grounds of appeal
40 The grounds of appeal, broadly as Mr Jakich has expressed them, are 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.
41 Apart from ground 4, each of the other grounds was broadly presented in submissions as an allegation that a miscarriage of justice occurred because the evidence of Ms Hudson or Ms Weiss, upon which the learned Magistrate based her decision, must have raised a reasonable doubt about Mr Jakich's guilt.
Ground 1: Evidence presented five minutes before the trial
42 Mr Jakich asserted that he was provided with disclosure only 5 minutes before his trial. This ground of appeal, as expressed, was not particularised. It was not supported by any evidence.
43 Mr Jakich was represented at trial by counsel. At no point in opening or closing submissions did Mr Jakich's counsel complain of any late disclosure.
44 In his oral submissions on 28 March 2014, Mr Jakich appeared to suggest that the late disclosure concerned Ms Hudson changing her evidence five minutes before the trial.59 That submission was developed to be an allegation that the prosecution case was that '[s]hortly after Ms Hudson got into her taxi she saw the appellant standing naked in a doorway'.60 He also said that five minutes before the trial Ms Hudson had said that he was standing at a skylight window.61 The submission was, apparently, that he could not have been seen in the skylight window because there was no floor upon which he could stand near that window.
45 The essence of submissions on this ground seems to be concerned with reasons why this Court should find that a miscarriage of justice occurred as a result of the learned Magistrate relying on the evidence of Ms Hudson. Those submissions are addressed separately below in relation to appeal grounds 2, 3, and 5. The allegation of late disclosure of information, which is the point made by this ground, must be dismissed for two reasons.
46 First, despite Mr Jakich being informed on 28 March 2014 that this Court could only act upon the evidence before it, or the transcript and exhibits before the learned Magistrate, he did not provide any evidence in support of any late disclosure or any prejudice to him arising from any alleged late disclosure.
47 Secondly, Ms Hudson was cross-examined in detail by counsel for Mr Jakich on matters related to the issue Mr Jakich now raises. She was asked about the statement that she gave to the police. She was asked whether she had changed her evidence from saying in her police statement that she saw the man in the front carport window to saying in her evidence that she saw him 'above the carport'. She denied that she had changed her evidence after discovering that another window in the carport was a frosted window.
48 Leave to appeal on ground 1 is refused.
Grounds 2, 3 and 5: Whether the evidence of the witnesses was capable of acceptance
49 Under s 8(1)(b) of the Criminal Appeals Act 2004 (WA), an appeal can be brought from a conviction where there has been a miscarriage of justice.
50 The essential legal question raised by these grounds is whether 'it was open to the [Magistrate] to be satisfied of guilt beyond reasonable doubt, which is to say whether the [Magistrate] must, as distinct from might, have entertained a doubt about the appellant's guilt'.62
51 The numerous legal authorities in relation to appeals concerning miscarriages of justice based upon the alleged unreasonableness of a conviction are discussed and explained by Buss JA in Clarke v The State of Western Australia.63 As his Honour explained,the Court must decide this factual question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding there might be evidence upon which conviction might be recorded, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.64
52 On this appeal, Mr Jakich pointed to a number of inconsistencies in the evidence of Ms Hudson and Ms Weiss. These were as follows.
(i) Ms Hudson said that she saw a person in the kitchen window from his knees up but Ms Weiss said that she saw the person from below the waist.
(ii) Ms Hudson did not see a sink but said that the man was close up against the glass but Ms Weiss said that the room she saw the man standing in was a kitchen because she saw a sink and a bench into which it was set.
(iii) Ms Hudson accepted that she told the police that the man appeared to be right up against the glass. But Ms Weiss agreed that the bench in the room where she saw the man was 88cm high which brought it up to a point on counsel's waist (which the learned Magistrate later described as the belt line). She said that the man was standing back far enough from the window so that she could see his penis.
53 Mr Jakich also pointed to the evidence of Ms Weiss that she saw the naked man in the second top window, which revealed just about all of his body. But Mr Jakich submitted that the photos show that the window is a skylight without a floor so it is impossible for a person to see someone standing in that window. There was no evidence of this at trial. The only exhibit tendered at trial is annexed to these reasons. New evidence on this point was tendered on this appeal and is discussed below.
54 Mr Jakich also pointed to the evidence of Ms Weiss in cross-examination that before Ms Weiss gave her police statement, the police officer had met her and Ms Hudson together for a conversation at the unit where the incident occurred.65 As counsel for Mr Jakich put it at trial, in an understated way, this was 'extremely unfortunate policing'.66
55 One obstacle faced by each of these submissions, and each of these grounds of appeal, is that these matters all relate to whether the evidence of Ms Hudson and Ms Weiss could have been accepted beyond reasonable doubt. But this is a matter in relation to which the learned Magistrate had a considerable advantage over an appellate court.
56 As I have explained, both Ms Hudson and Ms Weiss were cross-examined in considerable detail. The learned Magistrate took account of the inconsistencies but concluded that the67
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.
57 Her Honour was also satisfied that their evidence was given from their own independent recollections and the inconsistencies in their evidence did not detract from their overall credibility that each saw a man in the downstairs window, and that Ms Hudson saw a man in the upstairs window masturbating.68
58 Her Honour was not required to attempt to resolve all factual inconsistencies or evidentiary disputes.69 And the significant advantage enjoyed by her Honour is ultimately fatal to these grounds of appeal to the extent to which they seek to rehearse matters that were raised at trial. The traditional position was set out by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission70
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge `has failed to use or has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the evidence' or which was `glaringly improbable'. (footnotes omitted)
59 The effect of this is that although this Court is required to 'give the judgment which in its opinion ought to have been given in the first instance', as Gleeson CJ, Gummow and Kirby JJ have observed, I am also required to observe the71
"natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
60 When all of the evidence at trial is considered, and evaluated in light of the natural limitations of this court, I cannot be satisfied that it would be dangerous in the circumstances to allow the verdict to stand.
61 Before this Court, Mr Jakich sought to tender a statutory declaration dated 31 March 2014, and supplementary submissions of an unknown date but received by the Court on 1 May 2014. The purpose of the statutory declaration and supplementary submissions was to attack the honesty and credibility of Ms Hudson and Ms Weiss based on apparently new material.
62 The statutory declaration included three annotated photographs purporting to show the outside and inside views of the lower and upper windows of the carport as well as the view of the kitchen from the outside of the units.
63 There may have been issues concerning the admissibility of these photographs. They might not be admissible if they were matters which could, with reasonable due diligence, have been obtained and used at trial.72 But it is sufficient to proceed on the basis that these photographs are admissible in circumstances in which the respondent did not object to the tender of the additional evidence and because, as I explain below, the photographs do not cause me to reach the conclusion that any miscarriage of justice has occurred.
64 The photograph (numbered 1) relied upon by Mr Jakich does not support his appeal. Rather, it detracts from it. That photograph depicts Mr Jakich naked from the waist up, in the window of a unit described by Mr Jakich 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'.73 The photograph produced by Mr Jakich shows his navel and what appears to be the upper part of his trousers with him standing behind the sink and bench.
65 In relation to the photographs (numbered 2 and 2B) depicting the lower windows in the carport, those photographs show the frosted glass on those windows and they purport to show a small toilet that Mr Jakich has described as the inside of the room with the frosted windows. These photographs also do not advance Mr Jakich's appeal. Mr Jakich submitted that there was reasonable doubt raised by the possibility that the witnesses saw him at a window in a position 'as you do when you urinate in the toilet'.74 But Ms Hudson's evidence was that on the second occasion she saw Mr Jakich it was in the upper window, not the lower (frosted) carport windows. She was cross-examined about that. And Ms Weiss did not give any evidence about seeing Mr Jakich in any of the carport windows.
66 In relation to the photograph (numbered 3) depicting the upper carport window, it appears to show that there is no floor in the area immediately below the skylight window. Mr Jakich relied on this photo for a submission, effectively, that there was a miscarriage of justice because Ms Hudson could not have seen him through this skylight window as the taxi in which she was a passenger drove away from the units.
67 This new evidence cannot be sufficient to establish a miscarriage of justice for five reasons in combination.
68 First, the photograph does not show the area further behind the window. Nor is there any evidence concerning the area behind the skylight that might have been visible from the road. Apart from this photograph, no evidence was given on this appeal of the internal layout of the inside area of the room below the skylight. Nor were either of Ms Hudson or Ms Weiss cross-examined about the layout of the inside area of the room below the skylight.
69 Secondly, it was, in any event, an issue at trial whether Ms Hudson's evidence at trial was inconsistent in relation to the window in which she saw the man as her taxi departed. In examination in chief she initially agreed with a leading question that as she left to get in a taxi she saw the man at the window above the carport.75 She then said that this was 'in his top window' and 'in the second top window'.76 This cannot be a reference to the carport skylight window. As Mr Jackich accepted on this appeal,77 and as the photograph exhibited at trial and annexed to these reasons shows, the carport skylight window is a single stand alone window.
70 In cross-examination, Ms Hudson was asked about telling the police in her statement that the man she saw from the taxi was naked in the front carport window. She agreed but clarified 'the upstairs window'.78 It was put to her that her police statement had described 'the front carport window'. She clarified 'Well, above the carport'.79 This appears to be a reference to the carport skylight window. She was cross-examined about whether she had changed her reference to the window because she had become aware that the bottom windows in the carport are frosted glass.
71 Coupled with these possible inconsistencies is Mr Jakich's assertion on this appeal that the prosecution case, prior to trial, had been that when the taxi drove off Ms Hudson had seen the man naked 'in a doorway' not in a window.80
72 For these reasons, even if the evidence concerning the dimensions or layout of the room below the skylight were not matters that were explored with Ms Hudson at trial, the issue concerning whether she had identified the correct window (or door) in which she saw the naked man when the taxi drove off were canvassed at trial.
73 Thirdly, the accuracy of Ms Hudson's evidence on this point was not a matter relied upon by the learned Magistrate for her decision. The crucial finding by her Honour was that both witnesses were 'very, very clear on what it was that they observed the male inside the unit' doing.81 The learned Magistrate considered that the inconsistencies in the witnesses' evidence did not cause her Honour to have any doubt on the critical part of their evidence.82
74 Fourthly, Ms Hudson's evidence on this point was not an element of the offence which concerned with whether Mr Jakich was seen naked and masturbating at the kitchen window. Any attack on Ms Hudson's evidence that she saw Mr Jakich naked in another window as her taxi drove off raises questions of credibility only and the issue of credibility on this point is, at best, peripheral to the central issues in the case.
75 Fifthly, the learned Magistrate separately accepted the evidence of both Ms Hudson and Ms Weiss. Even if Ms Hudson had been further cross-examined about whether she could have seen the man in the carport skylight window, this would not affect reliability of Ms Weiss' evidence, accepted by the learned Magistrate, that a man was seen masturbating in the kitchen window of an upstairs unit.
76 For these reasons, leave to appeal on grounds 2,3 and 4 is refused.
Ground 4: Hearsay
77 Mr Jakich did not provide any particulars of this hearsay ground of appeal. It appeared from his oral submissions on this appeal that this submission was concerned with the oral conversations Mr Jakich had with Ms Hudson and which were relied upon by the prosecution.83
78 The oral conversations between Mr Jakich and Ms Hudson, which I have described above, were relied upon by the learned Magistrate as admissions. They are not inadmissible hearsay.
79 It is important to note that counsel for Mr Jakich conceded at trial that the initial conversation took place with him.84 The first oral conversation, and the concession that Mr Jakich had that conversation with Ms Hudson, was not relied upon by her Honour for its content. It was relied upon as an admission that Mr Jakich was present at the place of the alleged offence immediately before the alleged offence. In any event, counsel for Mr Jakich expressly admitted that Mr Jakich was in the vicinity of the units and was the man with whom the conversation took place.85
80 The second conversation, the day after the offence, was relied upon by her Honour for the admission that Mr Jakich knew what Ms Hudson was talking about when Ms Hudson told him that he was disgusting, and was naked, the previous night.
81 The short reason why this ground of appeal fails is that evidence of an admission is an exception to the common law rule against hearsay.86 An admission is 'any statement, express or implied, oral or written, which is adverse to a party's case'.87 It was relied upon by the learned Magistrate for what it revealed about the state of mind, and knowledge, of Mr Jakich of the circumstances of the offence.
82 Leave to appeal on ground 5 is refused.
Conclusion
83 Although there were some inconsistencies in the evidence of the two witnesses, when the evidence as I have described it is considered as a whole, including in light of the natural limitations of an appellate court, the learned Magistrate's decision and reasons for convicting Mr Jakich do not involve a miscarriage of justice.
84 I would refuse leave to appeal on all grounds and dismiss the appeal.
Annexure (trial exhibit LJP3): photograph of the front of the units from the footpath
85
1 ts 2 (6 May 2013).
2 ts 2 (6 May 2013). See also ts 38 (6 May 2013).
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40 ts 26 (6 May 2013).
41 ts 27 (6 May 2013).
42 ts 36 (6 May 2013).
43 ts 27 (6 May 2013).
44 ts 28 (6 May 2013).
45 ts 29 (6 May 2013).
46 ts 30 (6 May 2013).
47 ts 31 (6 May 2013).
48 ts 31 (6 May 2013).
49 ts 31-32 (6 May 2013).
50 ts 33-34 (6 May 2013).
51 ts 33 (6 May 2013).
52 Reasons, ts 5 (5 August 2013).
53 Reasons, ts 6 (5 August 2013).
54 Reasons, ts 7 (5 August 2013).
55 ts 2 (6 May 2013). See also ts 38 (6 May 2013).
56 ts 4 (6 May 2013).
57 Reasons, ts 7 (5 August 2013).
58 Reasons, ts 7 (5 August 2013).
59 Appeal ts 3 – 4 (28 March 2014).
60 Appeal ts 6 (28 March 2014).
61 Appeal ts 19 (28 March 2014).
62Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, 596 - 597 [113] (Heydon J); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
63Clarke v The State of Western Australia [2013] WASCA 67 [105] - [109].
64Clarke v The State of Western Australia [2013] WASCA 67 [108]. See SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, 406 [14] (French CJ, Gummow & Kiefel JJ).
65 ts 36 (6 May 2013).
66 ts 38 (6 May 2013).
67 Reasons, ts 6 (5 August 2013).
68 Reasons, ts 7 (5 August 2013).
69 See Magistrates Court Act 2004 (WA) ss 31(1)(a), 31(1)(c).
70Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472, 479.
71Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-126 [23].
72McHenry v The State of Western Australia (No 2)[2010] WASCA 71, [31] (Owen JA; McLure P & Jenkins J agreeing). See also Mickelberg v the Queen [2004] WASCA 145; (2004) 29 WAR 13, 129 - 130 [411] - [413] (Steytler J; Malcolm CJ agreeing).
73 ts 31 (6 May 2013).
74 Mr Jakich's supplementary written submissions, 1 May 2014, second paragraph.
75 ts 14 (6 May 2013).
76 ts 14 (6 May 2013).
77 Appeal ts 43 - 44 (6 June 2014).
78 ts 19 (6 May 2013).
79 ts 19 (6 May 2013).
80 Appeal ts 6 (28 March 2014); appeal ts 37 (6 June 2014).
81 Reasons, ts 5 (5 August 2013).
82 Reasons, ts 6 (5 August 2013).
83 Appeal ts 37 (6 June 2014).
84 ts 3 (6 May 2013).
85 ts 2 (6 May 2013). See also ts 38 (6 May 2013).
86Lustre Hosiery Ltd v York[1935] HCA 71; (1935) 54 CLR 134, 143 - 144 (Rich, Dixon, Evatt and McTiernan JJ); Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317, 341 [71] (Gummow J).
87 Heydon, J D Cross on Evidence (8th ed, 2010) 1181 [33455].
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