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A man wins after being convicted of indecent acts in public: "It has not been proven that he can be seen from the street"

The Haifa District Court overturned the conviction of a 70-year-old man who was accused of committing indecent acts on several occasions on the balcony of his house, in front of his neighbor. The judges argued that although the acts were "inappropriate",

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• Indecent assault

• Hadera Magistrate's Court

• Haifa District Court

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Yoav Itiel

Sunday, 06 September 2020, 20:50

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The Haifa District Court last week acquitted a 70-year-old man, who was accused of committing indecent acts on the balcony, in front of a woman living in a nearby building.

In doing so, the district reversed the Hadera Magistrate's Court decision that convicted the man of committing indecent acts in public.

The district court panel criticized the indictment, saying it was not alleged that the indecent acts could have been watched from a public place.

"Not only did the prosecution not prove that the indecent act could have been seen from a public place, but it did not even claim it in the indictment, and therefore cannot claim it now," the decision said.

According to the indictment filed in 2018, the man committed indecent acts in public on several occasions, between 2016-2014.

The charges show that the 70-year-old committed them while standing on the porch of his ex-wife's apartment on the fifth floor of the building, near a transparent railing.

This, in front of a neighbor who was staying at the time on the balcony of her apartment, on the third floor of the apartment building opposite.

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The 70-year-old was convicted of indecent acts in front of his neighbor and acquitted.

Haifa District Court

Adv. Amikam Shochat (Photo: Yoav Itiel)

The woman called the police, and complained that the man does it regularly and in the eyes of all.

A police officer who arrived at the scene testified that he met the 70-year-old at his home, and that the latter apologized for the acts and said he would not repeat it.

In addition, police sent a forensic investigator to the street documenting the scene.

During his interrogation by the police, the man confessed to the acts attributed to him, and even confirmed that he noticed the neighbor at the time.

Advocate Amikam Shochat, who represented the man on behalf of the Public Defender's Office, argued that "no charge should be returned." This is because the indictment does not disclose an offense of indecent act "in public." Was done in a public place, and the second - because it was done in a non-public place, but can be seen from a public place. According to Adv. Shochat, the 70-year-old was in a non-public place, and so was the neighbor - so the defendant did not break the law.

Convicted the man of committing indecent acts in public.

Judge Pnina Argaman (Photo: Judge of the Judiciary)

Hadera Magistrate's Court Judge Pnina Argaman accepted Adv. Shochat's claim, but ruled that the evidence showed that the 70-year-old could still be seen from a public place, claiming that people and vehicles were moving between the buildings. Last April, the judge Crimson convicted the 70-year-old of committing indecent acts in public.

She said there was a picture clearly indicating that the balcony where the man had committed the acts could be seen from the street. She added that both simple logic and life experience supported it, 20. She held that the court could convict him of not being charged in the indictment, as it arose from the evidence, and the defendant was given an opportunity to argue otherwise.

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To the full article

Despite the conviction, the Haifa District Court acquitted the man.

The panel of judges Ron Shapira, Batina Tauber and Adi Chen-Barak, unanimously accepted the appeal of the conviction.

The president of the court, Justice Shapira, accepted the defense's arguments that the language of the law is "doing an indecent act in public in front of another person."

He held that it was not necessary for that "other person" to actually notice the commission of the indecent act.

According to him, proof is required that in the arena that constitutes a "public place" as defined in the law, a person was present who could have seen the act being carried out without his consent.

Judge Shapira added that it was not alleged that the woman, who saw the acts from the balcony of her private home and complained, was in a "public" place as defined in the law.

Despite the forgery's work, he noted that "there is no evidence that there is a line from the street at all from which the center of his body can be seen."

The district court also implicitly criticized the Hadera Magistrate's Court. "A factual determination based on evidence, but a kind of declaration of judicial knowledge," Judge Shapira ruled.

Criticize the Magistrates' Court.

Judge Shapira (Photo: Yoav Itiel)

"A conviction cannot be based on this determination because no evidence has been presented regarding the possibility of seeing the act from the street, as opposed to the ability to identify a person standing on the porch near the glass railing," Judge Shapira argued.

In addition, the judge expressed bewilderment at the very filing of the indictment, noting that the necessity of the criminal proceedings should have been considered.

This, he said, is because he is a person with a clear psychiatric background, who has been defined as mentally debilitated, and his ability to stand trial is borderline.

In his decision, he wondered whether it would not have been right to exhaust the treatment of symptoms, "which is indisputably unworthy", in the exercise of the administrative powers of the psychiatric system, by virtue of the provisions of the law, "without the need for criminal proceedings".

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