Appellant v Respondent

PRECEDENT - stare decisis - 1862 decision of Full Court of Supreme Court sitting in Banc - precedential authority - whether binding on single judge - history of courts sitting in Banc or in Banco.

1 Michael Engebretson was involved in a pub-fight with Robert Toms. He "glassed" Mr Toms, leaving him facially scarred for life, and was charged with a number of criminal offences, including recklessly causing serious injury. The charges were heard by the Magistrates' Court of Victoria at Sunshine. To be sure, the accused had caused serious injury to Mr Toms. The question was, did Mr Engebretson act in self-defence?

2 The two men gave conflicting evidence about who started the fight. Mr Toms swore the accused was the aggressor. Mr Engebretson swore Mr Toms threw the first punch to which, in a split second, he made an unfortunate reaction.

3 The Magistrate convicted the accused of the charge I specified and dismissed the others. Her Honour sentenced him to imprisonment for six months. This appeal from that conviction arises from a ruling made by the Magistrate. The accused wanted to lead evidence from Troy Holt that Mr Toms had admitted throwing the first punch. The Magistrate rejected the evidence; it was not considered.

4 The accused concedes the evidence was not admissible on the basis put forward to the Magistrate. But, he submits, it was plainly admissible as a prior inconsistent statement going to Mr Toms' credit as a witness, which means it was an error of law to reject it.

5 The prosecution agrees the evidence was admissible on this alternative basis. But, it submits, it is too late for the accused to rely on it now. That is the question of law in this appeal, and it throws up an interesting side-issue about the precedential authority of very old decisions of this Court.

6 The prosecution also submits it does not matter that the evidence was rejected. The accused was clearly convicted on the other evidence and, therefore, the conviction should stand. The accused says that, without the rejected evidence, I cannot decide he was clearly convicted and, therefore, the conviction must be quashed and he retried.

CAN REJECTION OF EVIDENCE ALTERNATIVELY ADMISSIBLE BE AN ERROR OF LAW?

7 Section 92(1) of the Magistrates' Court Act 1989 permits an appeal to this Court from a final order of a Magistrate on a question of law and only on a question of law. The question of law specified in the notice of appeal is this: "Did the Magistrate err in ruling that the evidence of Troy Holt was inadmissible?"

8 Whether a ruling to admit or reject evidence is correct raises a question of law. Generally speaking, if inadmissible evidence is admitted[1] or admissible evidence is rejected[2] in a criminal trial, the ruling will constitute an error of law. As we shall see, the question may then arise whether it can be concluded, clearly, that the ruling made no difference to the result.

9 The special problem that arises in this appeal is that the accused sought to have the evidence admitted on an untenable basis. For reasons to which I will come, I think the Magistrate was plainly right to reject the evidence tendered on that basis. In this appeal, Mr Engebretson submits the Magistrate should have admitted the evidence because it was legally admissible on an alternative basis, the one now put forward. I will consider the merits of that submission presently. The immediate question is whether it is open to the accused to bring an appeal on such a ground.

10 The prosecution submits it is not an error of law correctly to reject evidence on one basis when it was legally admissible on another.

11 This submission is based mainly on the decision of Madden CJ in Honeybone v Glass.[3] That case concerned the prosecution of a ratepayer for improper conduct at a local council meeting. When it came on for hearing before the Bendigo justices, the defence sought to lead evidence to show the accused's conduct was justified by the Mayor's prior criticism of him. The justices asked whether the evidence was put forward on the issue of mitigation of penalty, which would have made it admissible. The defence said no. The evidence was then rejected on the issue of justification, which was not a defence to the charge brought.

12 Madden CJ held it was not an error of law for the justices to have rejected the evidence. He cited English authorities to support his conclusion and criticised the judgment of a'Beckett J in Sanderson v Nicholson[4] which, on this question, was to the contrary. Let me first deal with the English authorities.

13 The first is R v Grant,[5] which was a criminal libel prosecution. There was a rule that, in such a prosecution, evidence was not admissible on the truth or falsehood of the libel. The alleged libel concerned certain past business transactions and the defence sought to cross-examine witnesses about them. The Court refused to allow the questions on the ground that they were an attempt to go into the truth or falsehood of the libel. The accused were convicted.

14 On appeal, the defence moved for a retrial on the ground that the questions should have been allowed as they concerned the relevant subject of whether the libel related to the transactions as alleged by the prosecution. Denman CJ (Littledale, Taunton and Patteson JJ concurring) held the questions were admissible on that subject. But the appeal failed because "it was taken for granted, at the trial, that the alleged transactions had taken place and had reference to the libel", so the object of the questions had to be "to convince the jury of the truth of the libel."[6]

15 In Honeybone v Glass Madden CJ cited R v Grant for this proposition, which is stated in the headnote of Neville and Manning's Report not in the judgment of Denman CJ:

Where evidence is rejected, which is tendered for one purpose, and it is inadmissible for that purpose, but is admissible in another view of the case, the Court will not grant a new trial.[7]

With respect, that proposition goes beyond the actual judgment in R v Grant. The headnote in the English Reports is more accurate and does not go that far.[8]

16 Denman CJ said: "A judge has a right to know the purpose for which evidence is tendered."[9] Nobody could disagree with that statement. But the critical consideration in the case was that, on appeal, the defence was trying to justify the questions as being relevant to a factual issue - that the libel related to the transactions - which was not in dispute at the trial. I think the decision has little to say about a case where the alternative basis of admissibility relates to a subject that was in issue at the trial.

17 Madden CJ also relied on Doe d. Kinglake v Beviss.[10] This was a landlord and tenant case. In an action for ejectment, the defendants claimed they had an ancient right to use the land concerned. A document was offered in evidence as an account of the lord's steward (his "reeve"). It was submitted the account charged the lord himself, which was rejected. After the trial, it was discovered some of the accounts contained the lord's own discharge (his "quietus"), which meant the accounts might be evidence of the lord's own admissions. It was said on appeal that the evidence of the accounts was wrongly excluded because the discharges discovered later showed the accounts were admissible against the lord.

18 The Court approached the matter on the commonsense basis that the appellants were trying to have fresh evidence admitted on the appeal. Coltman J said such a course was not permissible because:

If it had been contended at the trial that this was an admission by the lord, the case might have proceeded in a different manner, and the opposite party might have gone into evidence to shew that it was not to be taken as such an admission.[11]

It would be unfair to grant a new trial on that ground, as for a miscarriage of the Judge, when the evidence tendered was treated as being that which the party offering it wished it to be considered.[12]

But he added an important qualification - such evidence might be admissible "if it was clear that injustice would be done; but nothing of the kind appears in this case."[13] Cresswell J stated the fresh evidence principle in terms for which this case is well known: such evidence will not be admitted unless it is material and could not by due diligence be obtained before the trial.[14] The appeal failed because the appellants had the accounts with the lord's discharge at all material times.

19 Again, with respect, I cannot get from Doe d. Kinglake v Beviss, which turned on the admissibility of fresh evidence, a principle that it cannot be an error of law to reject evidence put on an untenable basis when it was admissible on an alternative one.

20 Finally, Madden CJ[15] relied on a passage from Taylor on Evidence[16] which dealt with the fresh-evidence principle expounded in Doe d. Kinglake v Beviss. I do not think the passage takes the matter further. Once it is appreciated that the passage, following that decision, was dealing with a case involving an attempt to bring in fresh evidence, its relevance to a case such as the present falls away. I put the other cases mentioned by Madden CJ into the same category.[17]

21 The appeal in Honeybone v Glass failed because Madden CJ held the accused could not on appeal rely on the evidence in mitigation. He gave two reasons: the evidence was attainable by reasonable efforts (remember, the accused had the evidence) and the accused had told the justices it was not tendered in relation to that subject. With respect, while I do not disagree with the actual result, I cannot accept aspects of his Honour's reasoning.

22 For example, Madden CJ stated: "At the trial a person is bound to bring forward all the evidence he knows, and he is bound to put it forward in the aspect in which he thinks it is admissible."[18] Again, nobody would disagree with that proposition. However, the question is, what if a party fails to do so?

23 To answer that question as the prosecution contends would produce unacceptable consequences: no matter how important was the evidence to the defence or prosecution, how excusable was the reliance on the untenable basis and how clearly was the evidence admissible on the alternative one, if the Magistrate rules correctly on the basis put forward, that is the end of it, even if the evidence raises or removes a reasonable doubt about the guilt of the accused. I think the correct answer to the question is that it can be an error of law to reject evidence put on an untenable basis when it is admissible on an alternative basis. In a criminal trial, that conclusion must follow from the fundamental requirement that the trial be fair, one that does not involve a miscarriage of justice. The conclusion is also consistent with, indeed demanded by, decisions of high authority to which I will now turn.

24 It is only right to begin with the decision of a'Beckett J in Sanderson v Nicholson,[19] for this was the one criticised by Madden CJ in Honeybone v Glass.

25 Sanderson v Nicholson was a prosecution under the Thistle Act 1890. Under the Act, the prosecution had to tender the notice in writing served on the accused. Without first requiring the accused to produce the original, the prosecution tendered a copy. The court rejected the copy as secondary evidence and dismissed the charge.

26 On appeal, the prosecution supported the admissibility of the copy notice on a basis not put at first instance: the notice was not secondary evidence, but a duplicate original of the notice served. It was held by a'Beckett J that the rule requiring an original to be called for before a copy could be tendered did not apply where the instrument to be proved was itself a notice.[20] On that ground - which also was not put at first instance - the evidence should not have been rejected. He ordered a retrial, but without costs, because the Magistrate excluded the evidence after the prosecution assigned a wrong reason for admitting it.[21]

27 I think Sanderson v Nicholson stands for the proposition that it can be an error of law to reject evidence on an issue in a criminal trial when the evidence is admissible on one legal basis even if it was put on another untenable one. This conclusion was reached by a'Beckett J without resort to authority. In Honeybone v Glass[22] Madden CJ declined to follow a'Beckett J because his conclusion was contrary to the authorities discussed by Madden CJ. I have already given my reasons for thinking those authorities do not support the conclusion reached by Madden CJ. As it happens, there is another authority of importance, although not considered by either Madden CJ or a'Beckett J, and it strongly supports the conclusion of the latter. The authority is from the earliest days of this Court. For the reasons I give below, I consider this decision to be as authoritative as a decision of the Full Court or the Court of Appeal.

28 Beedle v Thomas and Crispin[23] was decided in 1862. It concerned a trial before a civil jury in which the plaintiff sued the defendants to recover money due for services supplied under an agreement. At the trial the plaintiff sought to lead evidence that one of the defendants had orally admitted the debt. He said it was relevant to explain an ambiguity in the contract. The Court held there was no ambiguity and rejected the evidence, a conclusion that was plainly correct.

29 On appeal, the plaintiff put forward an alternative basis of admissibility. He said the evidence was relevant to rebut the defendants' pleaded allegation that the debt had been fully paid. This submission was accepted by the majority (Stawell CJ and Williams J, Molesworth J dissenting) for whom the Chief Justice spoke:

We think such evidence ought to have been received, not to explain the meaning of the agreement, but as some proof of the true state of the accounts between the parties; and to assist the jury in finding on the issue of payment, and in distinguishing between what had been paid, and received by the Plaintiff as payment, and what had been merely repaid. The case was not so put at the trial, but we think that the omission ought not to prejudice the Plaintiff to such an extent as to allow the nonsuit to stand.[24]

30 I think this case stands for a wider proposition than the one expounded in Sanderson v Nicholson, which concerned evidence going to a single issue but justified on alternative bases, one bad and the other good. Beedle v Thomas and Crispin concerned evidence going to two issues, one irrelevant and the other relevant. It was held that in such a case also the Court could find it was an error of law to reject the evidence. With respect, I think the conclusion of the majority was correct, both on principle and in result.

31 In Butcher v Longwarry & District Dairymen's Co-operative Association Ltd[25] Lowe J applied Beedle v Thomas and Crispin to uphold the appeal before him. He held that the Magistrate had wrongly rejected evidence tendered on one basis when it was admissible on another. We need to look at the circumstances more closely.

32 Butcher was a prosecution of a milk depot owner for failing to lodge returns of milk forwarded to the metropolis. The prosecution sought to rely on the admissions of a witness who was a director of the owner-company. The evidence was rejected because nothing suggested the director could, in that capacity, speak for the company. Lowe J upheld that ruling. But the evidence established that the witness was also the manager of the company, which supplied the missing authority to speak. He held the Magistrate erred in rejecting evidence so admissible, even though this was not the ground proffered at first instance. Following a'Beckett J in Sanderson v Nicholson, he ordered a retrial.

33 In doing so, Lowe J said:

Evidence tendered on an issue upon which it was admissible, but supported by a reason which could not be sustained, might be supported by other reasons when the matter came before the Court of appeal.[26]

He thought there was "a distinction between tendering evidence upon an issue upon which it is not admissible and tendering it upon an issue upon which it is admissible and supporting it by an incorrect reason."[27]

34 I can see this distinction, although I think it will be elusive or even irrelevant in many cases, including, as we shall see, this one. Further, if Lowe J was meaning to say that the distinction must shut out an appeal where the evidence is sought to be justified by reference to a different issue, I respectfully cannot agree with him, for that is precisely what happened in Beedle v Thomas and Crispin, which, as Lowe J said, "binds me", and which, I have said, was correct both on principle and in result.

35 In R v Tonkin and Montgomery[28] the Queensland Court of Criminal Appeal upheld an appeal where evidence was tendered untenably on one basis but was admissible on another. Dunn J expressly approved Butcher.[29]

36 In summary, for reasons I will soon give, I think Beedle v Thomas and Crispin[30] has the status of a judgment of the Full Court. I am bound to follow it. With respect, I agree with the judgment of the majority. The decisions of a'Beckett J in Sanderson v Nicholson[31] and Lowe J in Butcher[32] are consistent with Beedle v Thomas and Crispin and should be followed. The judgment of Madden CJ in Honeybone v Glass[33] is clearly wrong and, with respect, should not be followed.

37 I think the law is that where evidence is put on an untenable basis and rejected, an appeal may be brought if the evidence is admissible on an alternative basis.[34] Excluding evidence in such circumstances can be an error of law within the scope of s 92(1) of the Magistrates' Court Act 1989. One example of that principle is the case of evidence going to an issue being put on one basis when it is only admissible on another.[35] I would hold, because I am bound to do so, and because I think it is right, that the principle can include cases where evidence is tendered as going to one issue when it is only admissible on another.[36] In many cases, including, perhaps, this one, the outcome of the appeal will then turn on whether it is possible clearly to say that the wrongful exclusion of the evidence made no difference to the result (see below).

38 That being the general position, I must turn to the case at hand. Before doing so, I will give my reasons for thinking that old decisions given by a Full Court sitting in Banc bind single judges.

THE PRECEDENTIAL AUTHORITY OF DECISIONS OF THE FULL COURT OF THE SUPREME COURT SITTING IN BANC

39 In Beedle v Thomas and Crispin[37] the decision was given by the Full Court sitting in Banc. What is the authority of a decision given by the Court in Banc? If it has the status of a decision given by a Full Court, it would plainly bind me as a trial judge sitting alone. A trial judge sits below the Full Court or the Court of Appeal in the judicial hierarchy of this Court; a decision of the latter therefore binds the former. But the prosecution says in the present case that the decision of the Full Court in Banc is not the same as a decision of an appellant Full Court.

40 The prosecutor's submission is not without significance. From 1852 to 1883, this Court made many, if not most, of its important decisions as a Full Court sitting in Banc. If correct, the submission would relegate their precedential authority to that of a trial judge sitting alone, for the prosecution submission is that I am not bound by such decisions.

41 What does it mean that Stawell CJ, Williams and Molesworth JJ sat in Banc? The sitting of the Supreme Court "in Banc" or "in Banco" in its earliest days reflects the history of the English courts. The two expressions do not appear to have any relevant difference of meaning so I will only refer to the sitting of a court "in Banc" from now on.

42 Originally the common law courts of King's Bench, Common Pleas and Exchequer functioned as courts only during term times, which were short. The judges did, however, sit alone under various commissions or in nisi prius. The judicial power of the courts was exercised not by single judges but by the court sitting collectively in Banc. This is how Lord Parker CJ explained it in Re Hastings (No. 2):

In considering the early history of the matter it is relevant to bear in mind that the common law courts of King's Bench, Common Pleas and Exchequer functioned as courts only in term time, and that each of the four legal terms was of brief duration. Consequently, the greater part of the year fell during the legal vacations, although the judges of the courts might be sitting under commissions of assize, oyer and terminer and general gaol delivery or hearing cases in Middlesex at nisi prius. Furthermore, each of the common law courts sat in banc and no individual judge of the court had any general power to act for the court. Even a decision at nisi prius only became a judgment of the court upon motion to the court upon the fourth day of the term next following the verdict at nisi prius.[38]

43 In consequence, in England, special procedures were followed for confirming and questioning the verdicts of civil juries. These have been fully described in several Australian cases,[39] including one of this Court,[40] and I need not go into that subject here. Similar procedures were adopted in relation to criminal juries. In the criminal context, sitting in Banc was a way of describing the meeting of all judges of the Court for Crown Cases Reserved that occurred at Westminster in the 19th century. As there were no formal means for conducting criminal appeals, the trial judges would meet together to advise judges on important questions.[41] So the term "in Banc" referred to the practice of a number of judges sitting collectively to determine judicial questions.

44 When the Australian colonies became states, these traditions affected how their superior courts were constituted. From time to time it has become necessary to refer to this in cases concerning aspects of the authority of the courts. For example, in Kotsis v Kotsis[42] the High Court had to decide whether a registrar of the Supreme Court of New South Wales could make an order in a Commonwealth matrimonial cause. In that connection Windeyer J said:

According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge.[43]

45 Just one other example is Re Jarman; ex parte Cook[44] where the High Court had to decide whether a judge of the former Industrial Relations Court of Australia was an officer under a certain statute. In that connection, Dawson J explained why court statutes usually specifically allowed single judges to exercise judicial power:

The reason for the express provision ... that the jurisdiction of each of the courts might be exercised by a single judge is the notion which lies deep in history that a superior court of record comprises all its judges who must act collectively in order to constitute the court. Thus at common law all trials by jury were originally held before the court in banc. When trials at nisi prius before a single judge were introduced, the judge took the verdict but could not enter judgment. He returned the verdict to the court and the court in banc gave judgment accordingly. [45]

46 In those early days, the term "in Banc" or "in Banco" were often used interchangeably with the term "Full Court", for a Full Court was a sitting of the whole court, or so many of the judges who were available and brought together for the purpose, and the court so constituted and sitting was the Full Court in Banc. We see this very clearly in both the general and specialist dictionaries. The Oxford English Dictionary defines "banco" to mean "on the bench: applied to sittings of a Superior Court of Common Law as a full court, as distinguished from the sittings of the judges at Nisi Prius, or on circuit." Jowitt's Dictionary of English Law[46] explains that the words "Banc" and "Banco" were from the Latin word "bancus" meaning "a seat or bench of justice", and referred to "the sittings of a supreme court of common law as a full court as distinguished from the sittings of the judges at Nisi Prius or on circuit." The Oxford Companion to Law[47] defines "in Banco" or "in Banc" to mean "sittings of one of the pre-1875 courts of common law (Queen's Bench, Common Pleas or Exchequer) as a full court as distinct from the sittings of single judges ..." The Butterworths Concise Australian Legal Dictionary[48] defines "in Banco" to mean "a court sitting as a full bench".

47 When the Supreme Court of Victoria was established in 1852,[49] the enabling statute did not use the term "in Banc." The statute created a court consisting of three judges[50] one of whom was to be the Chief Justice.[51] In those early days there was no statutory Full Court, for one was not formally established until 1883. In that year, a statute was passed which created a Full Court of all of the judges of the Court or any three of them.[52] The statute gave the Full Court an appellate and several other kinds of jurisdiction[53] and gave single judges sitting alone the Court's remaining jurisdiction.[54] Prior to that - which includes 1862 when Beedle v Thomas and Crispin was decided - the organisation of the Court reflected the English tradition. This was explained by Starke J in Kahn v Board of Examiners (Vic),[55] a case about the validity of our legal education rules:

The Supreme Court of Victoria was established in 1852 (15 Vict. No.10). Sittings at nisi prius, as they were called, were held before single judges with or without juries for the trial of issues of fact and inquiries of damage. Otherwise the court sat in banc in term, and it was authorized to so sit in vacation: See Common Law Procedure Statute 1865, secs.77-79. But the Judicature Act of 1883 (No.761) reorganized the sittings and distribution of business of the court. Any single judge sitting in court might, subject to appeal, hear and determine all causes, matters and proceedings not required to be heard by the Full Court. The Full Court, which meant all the judges or not less than three of them or where expressly so provided any two of them, in each case sitting as a court, was required to hear and determine, inter alia, motions for new trial and appeals from a single judge whether sitting in court or in chambers.[56]

48 In those early years, the practice developed of referring to a sitting of the judges in Banc as a sitting of the judges as a Full Court. The Wyatt & Webb Reports from this period are replete with interchangeable references to the term "in Banc" or "in Banco" and the term "Full Court". Taking the volume which contained Beedle v Thomas and Crispin as an example, this footnote gives a sample of such references.[57]

49 A new court - the historic building still standing today - was built in 1883, the same year in which the Full Court was formally established under the Judicature Act 1883. Our first court bears the traditional name "Banco." That name and that court symbolically connect the Court as it was originally constituted to the way it is now, for the Banco court is the place where, after the new court was built and the Judicature Act was passed, the Full Court sat to exercise the greatest authority of which the Court was capable, whereas, right back to when the Court was established in 1852, the Full Court sitting in Banc exercised that authority.

50 It cannot be doubted that, from the creation of the Full Court as a formal court of appeal in 1883, its decisions on point have bound single judges. The same principle applies now to decisions of the Court of Appeal. Obviously the name itself is not important. Decisions of the Full Court in 1883 and of the Court of Appeal now have binding authority because a number of judges sitting together have collectively heard the arguments and finally determined the appeal or matter, unanimously or by a majority. The Court so constituted sits at the top of our hierarchy and exercises the greatest authority of which the Court is capable.

51 The Court of Appeal - and only the Court of Appeal - can overrule its previous decisions.[58] Unless it exercises that right, if the same point comes up again, it would follow its previous decisions, which is one important reason why single judges are bound by decisions of appeal courts.[59]

52 Would the Court of Appeal treat a decision of the Full Court in Banc - Beedle v Thomas and Crispin, for example - as a decision that should be followed unless overruled? If and when the Court of Appeal decides that question, it will resolve the issue I am presently discussing. But that is entirely for the Court of Appeal. In the absence of such a decision, I have to decide myself what the authority of a decision of the Full Court in Banc is.

53 Before 1883 - including in 1862 - to refer to the Full Court sitting in Banc was to refer to the judges of the Court sitting together in contradistinction to a judge sitting alone. When the Court sat in Banc it was collectively exercising the entire jurisdiction of the Court in the relevant matter. It was not confined to the appellate and other specified kinds of jurisdiction that the statutory Full Court came to possess. In Beedle v Thomas and Crispin it was exercising the review jurisdiction of the Court, which is appellate in nature even if it is original in jurisdiction. When the Court sat in Banc to decide a matter, the judges sat collectively to hear the arguments and judicially to determine the matter, finally and conclusively, unanimously or by majority. The judges so sitting embodied the whole Court and exercised the greatest authority of which the Court was capable.

54 You might think it followed that a decision of the Supreme Court in Banc was at least the precedential equivalent of a decision of an appellant court. But the rules of precedent have been stated in terms that place emphasis on the capacity of the superior court to reverse the lower court's decision. Here is the explanation of the principle given by Barwick CJ in Favelle Mort Ltd v Murray: [60]

[W]ithin this body of precedent there are decisions or statements of principle which a court will be obliged to follow and apply. The ultimate foundation of precedent which thus binds a court is that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law.[61]

55 Similarly, in Businessworld Computers Pty Ltd v Australian Telecommunications Commission[62] Gummow J said: "Stare decisis involves courts being bound by appellate decisions of courts standing above them and in the same hierarchy."[63] That is the principle that makes a single judge of this Court bound by decision of the Full Court or the Court of Appeal.

56 What is immediately relevant is that the principle so expressed makes a judge in a lower court bound by a decision of a higher court if the latter can reverse the former. Hence, a single judge of the Federal Court,[64] a Full Court of that Court,[65] a court of intermediate court of appeal,[66] and, necessarily, a single judge of a state or territory Supreme Court, is not bound by a decision of a single judge of the High Court. For the same reason, the High Court[67] and, indeed, other Australian courts[68] are not bound to follow decisions of the Privy Council. Of course, unbinding as they may be, such decisions have a strong persuasive force and require very careful attention.

57 Applied hermetically, the logic of the rules of precedent, so expressed, can produce strange, perhaps unsatisfactory, results. One of them may be that a federal magistrate is not bound by a decision of a single judge of the Federal Court not given in an appeal.[69] Is another that decisions of the Full Court of the Supreme Court in Banc from 1852 to 1883 have less precedential authority than decisions of the Full Court after 1883 because the former was a unitary and not an appellate court? No. Let me explain why.

58 Our system of precedent is embodied in the Latin maxim stare decisis, which means: "keep to what has been decided previously."[70] The rules of precedent "are not immutable."[71] Their policy is consistency, certainty and predictability: "to keep the scale of justice steady"[72] and to ensure that "like cases [are] decided alike."[73]

59 Nowadays, within the hierarchy of authority of a state court, the courts of appeal finally determine legal questions. They are constituted by a full court of judges sitting together and can go by various names. These intermediate courts of appeal exercise their court's highest authority finally to determine such questions, subject only to the higher authority of the High Court.

60 Between 1852 and 1883, our Supreme Court did not have a statutory appellate court. As we saw, appeals went to the Privy Council. But there were internal appeals, and these were heard by a "Full Court",[74] which is the way that the Court sitting in Banc was described. As I have said, in those days the Court sitting in Banc was understood to be the Full Court.

61 When the Full Court sat in Banc to exercise the entire jurisdiction of the Court in the relevant matter, it exercised the Court's total authority finally to determine the relevant question, subject only to the higher authority of the Privy Council. I do not think the fact that, in a given case, the Full Court sat in Banc finally to determine legal questions in the exercise of a unitary, not appellate, jurisdiction in any way reduces the precedential authority of its decisions. That unitary jurisdiction embodied the same authority finally and conclusively to determine legal questions that our appellate court now possesses. The policy of the rules of precedent that I have identified is best fulfilled by treating such decisions as binding on single judges.

62 Now that is exactly the view instinctively expressed by Lowe J in Butcher v Longwarry & District Dairymen's Co-operative Association Ltd.[75] He simply described Beedle v Thomas and Crispin as a "decision of the Full Court ... which binds me".[76]

63 Another rule of precedent comes in here: a trial judge should follow a decision of another trial judge of this Court unless he or she is of the view that the decision was clearly wrong.[77] The precedential authority of a decision is a question of law to which this rule applies. I am not of view the decision of Lowe J on the precedential authority of Beedle v Thomas and Crispin was clearly wrong; indeed, with respect, I think it was correct.

64 Even though my relation with the Full Court sitting in Banc is not exactly that of a trial judge to a court of appeal, I would, for these reasons, treat a decision of that Court on a formal legal question as the precedential equivalent of a decision of an appellate full court.

65 We are done now with that issue. It is time to determine whether the Magistrate made an error of law.

WAS THE REJECTION OF MR HOLT'S EVIDENCE AN ERROR OF LAW?

66 You will recall that the accused was charged with a number of offences that arose out of the serious injury that he caused to Mr Toms. His defence was self-defence. That defence having legitimately been raised, the prosecution had to disprove beyond reasonable doubt that the accused believed he had to use the force that he did to defend himself, and that such force was reasonable.

67 On the admitted facts, the accused "glassed" Mr Toms, causing him serious facial injuries. The success or failure of the defence of self-defence was always going to turn on the Court's findings about what led the accused to cause that injury.

68 During the examination in chief of Mr Toms, he said that, some time before the incident, he had spoken abusively towards the accused. He said to the accused "You're fucked, you fucked with the wrong person", which was a reference to the accused allegedly throwing a coffee table at Mr Toms' girlfriend the night before. Thus, at least once, Mr Toms had made a verbal threat towards the accused. This plainly supported the accused's case of self-defence.

69 During the course of Mr Toms' cross-examination by counsel for the defence, it was put to him that he, Mr Toms, had thrown the first punch. This question raised against Mr Toms evidence to be given by the accused that he struck Mr Toms with the glass to defend himself against Mr Toms. Mr Toms denied throwing the first punch, or at least said he could not remember doing so.

70 Counsel for the accused then asked Mr Toms if he knew a person with the nickname Cuz. He said yes. Mr Toms was asked if he spoke with Cuz after the incident. A latter question made clear that counsel was suggesting Mr Toms had spoken to Cuz in these terms at the hotel some days after he had got out of hospital. Mr Toms said no. Then counsel for the accused asked this question, to which Mr Toms gave this reply:

No, so if I suggest to you that you'd told him that you'd thrown the first punch, you wouldn't be, you don't recall any conversation with him at all about that?

---No.

It may have been a diffident way for counsel to do it, but Mr Toms was plainly being asked to comment on evidence to be given that he had stated to Cuz that he had thrown the first punch. The prosecution did not object to this questioning. Nor was any objection to be expected.

71 In this criminal trial I would have thought that such questioning would be understood as laying the foundation for evidence to be given on behalf of the defence by Cuz in the substance put. Such evidence would have been admissible as a prior inconsistent statement going to Mr Toms' credit, especially on the question whether his evidence that he did not throw the first punch was to be accepted. This is not exactly how matters turned out.

72 The accused gave evidence in his own defence. Among other things, he said the accused threw the first punch, indeed the first two. He said he struck Mr Toms with the glass in a split second reaction to Mr Toms' attack upon him.

73 Counsel for the accused next led evidence from Troy Holt, who identified himself as Cuz. Mr Holt was about to give evidence concerning what Mr Toms had said to him at the hotel when the prosecution objected. He said it was hearsay, which it plainly was. The witness was ordered out of court while the matter was debated before the Magistrate.

74 Counsel for the accused told the Magistrate the evidence from Cuz would be -

of a conversation that he had with Mr Toms after the incident and he will, we would say that what he would say in that conversation he had with him is something along the lines that, "I shouldn't have thrown a punch, I shouldn't have thrown the first punch" or something along those lines, he, he will give that evidence in relation to that.

it's an admission against interests of Mr Toms, we say it's relevant because it's obviously a fact in issue, in relation to the question of self-defence, to whether that occurred, and it's put in exactly the same, it's put in the same category as gaol admissions or anything of that nature where somebody in prison makes an admission to a fellow prisoner, the Crown will often call those people to give evidence, it's the collateral evidence rule, there's a decision of the High Court of Australia in Nicholls v R, which I can refer you.

75 The prosecution submitted the evidence did not come within the common law exception to the hearsay rule which covered admissions against interest because Mr Toms was not the accused. The prosecution also submitted that it did come within the res gestae exception, although counsel for the accused had not raised that possibility.

76 The Magistrate asked counsel for the accused to respond to the submission that the admission was that of Mr Toms as a witness and not that of the accused as a party. This is what counsel said:

Well we say that, that Nicholls covers that situation your Honour because the evidence is relevant we say, it's admissible only when it is relevant and that is an attempt to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact and so relates to that fact that according to the ordinary course of events otherwise [inaudible] it proves or makes it probable that past present or future existence or no existence. ...

77 There was then a brief adjournment to allow time for the judgment in Nicholls v R[78] to be further consulted, after which the Magistrate received further submissions. During these submissions, it became clear that, unlike in Nicholls v R, counsel for the accused had put evidence of the prior inconsistent statement to the relevant witness.

78 At this point, I think counsel for the accused made clear to the Magistrate that he was beginning to doubt the basis on which he was putting Mr Holt's evidence forward. Whereas previously he was saying it was admissible as collateral evidence, he said here that "I'm not sure whether it is a collateral evidence rule, I mean ..." He went on to say this:

There is a [inaudible] we say it's a fact in issue, it's a relevant issue that's why, it's, the evidence is admissible rather than we're not attacking Mr Toms' credit as such, as may be the case with collateral evidence, I suppose it's intertwined in a sense because ...

79 The prosecution fell back on their main point - the admissions against interest exception to the rule against hearsay did not apply to admissions by mere witnesses. The Magistrate went off the bench and returned to rule on the issue in these terms:

Generally the rules of evidence provide that hearsay evidence is of course not admissible in court in cases other than where there is defined by Common Law certain exceptions to that rule. One such exception is where an admission is made against one's own interest generally, by an accused person in proceedings before the court, Mr Metcalfe has sought to convince me to allow here, hearsay evidence from a witness relating to a conversation between him and the victim in this case and Mr Toms. He cites as authority for that proposition that I ought to allow the material in, the case of The Queen and Nicholls, case which just has previously been cited in these proceedings, I have read that decision I'm familiar with that decision, the decision relates to amongst other things the collateral evidence rule which has also been discussed, but within the case itself there is discussion of admissibility or otherwise of certain admissions made by the appellant and in that instance and of course being a party to charges laid by the Crown. There is nothing that I can see unless I'm convinced otherwise Mr Metcalfe in that decision which supports the premise which you make to me and so at this point I am not allowing the evidence, thank you.

80 That ruling was plainly correct as regards the reliance by counsel for the accused on Nicholls v R in relation to the rule against collateral evidence. Mr Holt's proposed evidence went to what Mr Toms said to him at the hotel, not to who threw the first punch, and therefore concerned a collateral matter. The evidence did not come within any of the exceptions to the collateral evidence rule stated in Nicholls v R.

81 However, the judgments in Nicholls v R dealt extensively with the related subject of proof of prior inconsistent statements. For example, McHugh J made this statement of the common law principle in relation to that subject:

At common law, if a witness does not admit the making of a prior statement, the cross-examiner must identify that statement to the witness. Only if the witness still refuses to admit making the statement may the opposing party prove the oral statement.[79]

His Honour then referred to s 21 of the Evidence Act 1906 (WA), which is in similar terms to s 35 of the Evidence Act 1958 (Vic). He said this in reference to s 21 (which may equally be said of s 35):

Section 21 is essentially declaratory of the common law. It does not abrogate the common law principles. Proof or admission that the prior inconsistent statement does not constitute evidence of the facts stated unless the witness is a party (in which case the statement may amount to an admission). Section 21 prescribes the requirement that must be met before proof of a previous inconsistent statement may be tendered. That requirement is that the circumstances of the statement must be identified to the witness sufficient to designate the particular occasion. In other words, the circumstances in which the prior inconsistent statement was allegedly made must be identified to the witness in sufficient detail so that the witness has the opportunity to admit or fail to "distinctly admit" that he or she made the statement. Only if the witness fails to "distinctly admit" that he or she made the statement can evidence be led of the making of the inconsistent statement.[80]

82 In the present case, Mr Holt's evidence of Mr Toms' prior inconsistent statement could only be relevant to Mr Toms' credit as a witness. If the prior inconsistent statement was proved, the Magistrate would have been required to take it into account when deciding whether to accept Mr Toms' evidence that he did not throw the first punch. When objection is raised to a question about a prior inconsistent statement in a case like the present, counsel would normally say that the evidence went to the credit of the witness who made the inconsistent statement. Such evidence would of course be admissible as an exception to the hearsay rule, but only as to the issue of that witness's credit. In the present case, there was no other issue as to which Mr Holt's evidence could be relevant.

83 If counsel for the accused had taken Mr Toms' credit out of the issues in the case, this would have given rise to difficulty, or at least different considerations. Some of the language used by that counsel suggests that this is what he did. However much counsel's submissions leave to be desired, I cannot read them fairly as having done so.

84 I refer particularly to the submissions made by counsel for the accused that he was not sure that this was a case of collateral evidence, that he was not attacking Mr Toms' credit "as such" and that he supposed that the issue of credit was "intertwined in a sense". When I connect those submissions with the foundation laid in the questions asked of Mr Toms, the evidence proposed to be elicited from Mr Holt and the discussion in Nicholls v R of both the collateral evidence and the prior inconsistent statement rules, I think counsel for the accused left the question of Mr Toms' credit open. If there was any doubt about this issue, I would give the benefit of that doubt to the accused.

85 While counsel left the issue of Mr Toms' credit open, he did not submit the evidence was admissible as a prior inconsistent statement going to that issue. He wrongly submitted it was admissible as an admission against interest that was itself relevant to a fact in issue. If he had submitted the former, the Magistrate would have been bound to admit the evidence.

86 The subject of the proposed evidence was Mr Toms' prior inconsistent statement to Mr Holt. This was evidence of relevance to an issue in the trial (Mr Toms' credit) and, if it came within an exception of the rule against hearsay, it would have been admissible. Counsel put an untenable basis for admitting the evidence - that it came within the admission against interest exception to the rule. There was a tenable basis available - the prior inconsistent statement exception. With respect, the Magistrate made an error of law by excluding the evidence on the untenable basis when the tenable basis was available. She was led into it by counsel for the accused and not led away from it by the prosecution, but it was an error of law nonetheless.

87 I have said the submissions of counsel for the accused left much to be desired. He should have put Mr Holt's evidence on the tenable basis. However, I cannot see that his failure to do so was a deliberate tactical decision that bound the accused whatever the consequences.[81] Nor is this the kind of case in which the conduct of the trial by counsel should otherwise bind the accused, again, whatever the consequences.[82]

88 I do not think I can determine whether the rejection of the evidence was an error of law by reference to the distinction drawn by Lowe J in Butcher.[83] Indeed, the present case is a good example of the inherent limitations in the distinction.

89 To remind you, the distinction is the one between "tendering evidence upon an issue upon which it is not admissible and tendering it upon an issue upon which it is admissible and supporting it by an incorrect reason."[84] In the present case counsel for the accused tendered Mr Holt's evidence of Mr Toms' statement on the issue whether Mr Toms threw the first punch. Counsel for the accused submitted Mr Holt's evidence was admissible collateral evidence going to that issue, although, I have noted, I think he put the matter more broadly at the end. The evidence was not admissible on this basis.

90 On appeal, counsel for the accused has submitted that the evidence was admissible on the issue of Mr Toms' credit, which it plainly was. The ultimate issue for the Magistrate to determine was whether the accused had acted in self defence, on the basis that he reacted to Mr Toms punching him. The accused was seeking to lead from Mr Holt evidence of a statement that Mr Toms had indeed thrown that first punch. To decide whether an error of law was involved in the rejection of this evidence, I do not think it assists to draw a distinction between the issue of whether Mr Toms threw the first punch and the issue of Mr Toms' credit as regards his denial of having done so. It is enough to know that the evidence was admissible on the credit of a witness who was giving evidence about a fundamental and well-understood issue of fact.

91 Consistently with the Magistrate's obligation to ensure that the accused received a fair trial, there were several instances where she intervened on her own initiative in the course of questioning or argument to clarify certain matters. In case there is any doubt about it, if the Magistrate appreciated that Mr Holt's evidence was admissible as a prior inconsistent statement of Mr Toms', there was likewise nothing to prevent her from bringing this to the attention of counsel for the accused in an appropriate way, indeed it would have been prudent to do so.

92 The prosecution submits I should exercise my discretion to decline to set aside the conviction and order a retrial. This submission raises two issues: the scope of the discretion and whether it should be exercised in this case.

THE SCOPE OF THE DISCRETION TO DECLINE TO SET ASIDE A CONVICTION OR ORDER A RETRIAL

93 Here is s 92(7) of the Magistrates' Court Act 1989:

After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.

In a case where the Court determines that a magistrate has made an error of law, the legislation thereby leaves it to the Court to determine whether it is appropriate to make any and what order. The language of s 92(7) shows, and the authorities confirm, that the Court may consider it to be appropriate to refuse to make an order where the Court can clearly say the error of law did not affect the result.

94 The earliest case I have found is Knox v Bible.[85] It establishes the principle and explains it in terms that are still relevant today.

95 The defendant was convicted of gaming offences by a Court of Petty Sessions. Oral evidence concerning the contents of certain documents was improperly admitted. The evidence was comparatively unimportant as there was other evidence of the involvement of the defendant in the illegal conduct of the gaming house.

96 Cussen J held that the wrongful admission of the evidence did not necessarily invalidate the conviction. According to his Honour, the rule in R v Gibson[86] (that an appeal must be upheld if any bit of inadmissible evidence was received) did not apply to orders to review under the predecessor to s 92 of the Magistrates' Court Act.

97 Cussen J explained his reasons for not applying the rule in R v Gibson. He said the rule applied to appeals to the Court of Crown Cases Reserved from convictions based on verdicts of juries who were the "constitutional tribunal for the decision of questions of fact".[87] By contrast, under the statute then prevailing, the Court's order to review jurisdiction was much wider - it concerned questions of fact and law, enabled the reception of further evidence and the amendment of convictions and orders. Therefore, his Honour held that -

on the return of an order to review, even in a criminal matter, the Court is not bound to set aside a conviction or remit the case because some written or oral statement, possibly having some effect on the justices' decision, has been wrongly admitted as evidence, if, in the opinion of the Court, on the evidence properly admitted the defendant clearly should have been convicted.[88]

There is a lot of law in this tight little passage which, in the present case, it will be well to unpack. I will leave that until later. For now, I ask you to note his Honour said the Court could decline to set aside or remit "if" it was "clearly" of the opinion that the defendant should have been convicted.

98 Knox v Bible has been followed by three Full Courts and the Court of Appeal.

99 The first Full Court decision is MacManamny v R.[89] This was another illegal gaming prosecution. The appellant sought to have his conviction quashed by way of an order to review. The evidence given against him was lengthy. Numerous objections were taken, some of which were relied on in the appeal. Approving Knox v Bible, the Full Court dismissed the appeal and discharged the order nisi:

It may be that, in the mass of evidence taken, some comparatively unimportant statements or documents were improperly admitted. We have not dealt with each objection in detail, because we think that, in any event, the defendant clearly should have been convicted ...[90]

The consideration by the Court of the evidence in the case showed that it considered for itself whether, on the evidence properly admitted, the defendant had clearly been convicted of the charges concerned.[91] The nature of the case permitted it to do so.

100 The second is Olham v Eagles.[92] In this case the accused had been charged with loitering with intent in terms that included an allegation that he was a "reputed thief". The justices allowed that allegation to be removed by amendment. Evidence was still given that he was a reputed thief. The accused appealed against his conviction.

101 The Full Court held the evidence about the accused being a reputed thief was not wrongly admitted because it was admissible on other bases. It held that, in any event, on an order to review the Court was not "bound to quash a conviction because some evidence has been wrongly admitted ..."[93]

102 The appeal otherwise involved the question whether the evidence justified the justices in concluding that the accused had been loitering with intent. The Full Court carefully examined the evidence and decided for itself that it did. Again, the nature of the case permitted it to do so.

103 The third is Chappell v A Ross & Sons Pty Ltd.[94] The accused transport company had been convicted of trucking offences on the basis of admissions made by a witness who said he was its managing director. On appeal, the Full Court held the Magistrate erred in admitting the evidence because the witness was not proved to be connected with the company's premises or the conduct of its affairs. The appeal was upheld because there was no other evidence to support the conviction.

104 Gowans J held that the previous decisions of the Court in Knox v Bible, MacManamny v R and Olham v Eagles decided that -

where evidence is wrongly admitted, the court is not bound to quash a conviction if the defendant should clearly have been convicted. But that is not this case, nor is the evidence of that character. The evidence which was wrongly admitted was vital to the case against the defendant. Its admission cannot, therefore, be ignored.[95]

Likewise, Winneke CJ and Smith J held there "was no other evidence ... to justify [the company's] conviction."[96]

105 It can be seen that all members of the Court approached the fate of the appeal upon the basis that the Court had to look at the evidence itself to decide whether the admissible evidence clearly justified the company's conviction. The evidence in the case did not permit that conclusion to be reached.

106 The Court of Appeal decision is Walford v McKinney.[97] Whereas the three decisions of the Full Court were orders to review under the statutory ancestors of s 92 of the Magistrates' Court Act, the decision by the Court of Appeal was made under that section.

107 The accused was convicted of a street offence following the admission of a disputed confession. The appeal was dismissed by the trial judge because, on the evidence, the conviction of the accused was inevitable. The Court of Appeal rejected the appeal. It was held that the views expressed in Knox v Bible and the three decisions of the Full Court applied equally to appeals brought under s 92 of the Magistrates' Court Act. Therefore, in appeals under that section -

the court should not regard itself as bound to quash a conviction, just because evidence is wrongly admitted for the prosecution, if of opinion that the defendant, on the evidence properly admitted, clearly should have been convicted.[98]

108 The Court examined the admissible evidence and found the accused's conviction to be clearly justified.[99] That, too, was a case where the nature of the case permitted it to do so.

109 It is now time to return to Knox v Bible[100] and do that unpacking. According to the principle stated by Cussen J, "if" the judge conducting the order to review is "clearly" satisfied - beyond reasonable doubt, of course - that the accused should have been convicted, then he or she might decline to set aside or remit, even where an error of law is established. So, the judge must be personally satisfied and clearly so.

110 This principle implicitly recognises that in some cases the Court will not be in a position to clearly form this state of satisfaction. A judge conducts an order to review on the paper record and therefore operates with the same "natural limitations" of a judge of appeal. As acknowledged in the application of the proviso in s 568(1) of the Crimes Act 1958 relating to appeals from the verdicts of juries:

There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. [101]

111 Even where the Court decides the Magistrate made an error of law and is of the clear opinion the accused's conviction was correct, s 92 does not require it to decline to set aside or remit, for the order, if any, that may be appropriate is left, by that section, to the Court to decide. This is also consistent with cases concerning the criminal proviso. In such cases it is acknowledged that, for example, a significant denial of procedural fairness may require the retrial of an accused even though their guilt is clear on the admissible evidence.[102] Given the terms of the discretion conferred by s 92(7), I think the same has to be said of the Court's powers in an order to review, as was so under the former provisions.[103]

112 I think I have to be particularly careful in this case, for it involves the wrongful exclusion of admissible evidence going to a critical issue, the credit of the principal prosecution witness. It has been said that an error affecting issues of credibility may prevent an appeal court from determining what the primary facts were.[104] The failure to allow the proper examination of the credit of the principal prosecution witness can have a similar consequence - that of preventing a court of review from being clearly satisfied about what the evidence of the witness, so examined, would have been.

113 So much for the scope of the discretion in s 92(7). Let me now decide whether I can be clearly satisfied that the Magistrate's error made no difference to the result.

WAS THE ACCUSED CLEARLY CONVICTED ON THE ADMISSIBLE EVIDENCE?

114 To decide whether the accused was clearly convicted on the admissible evidence, I think I must consider the entire record of the proceedings before the Magistrate. This is the approach adopted in cases decided under the criminal proviso.[105] The exercise of the discretion conferred by s 92(7) of the Magistrates' Court Act, in a case like the present, seems to me to require consideration of similar materials, remembering that the trial was conducted before a magistrate not a jury.

115 The proceedings before the Magistrate in this case were tape-recorded. I think the record of the proceedings consists of:

• the transcript of the evidence

• the submissions of the prosecution and the defence

• the findings of the Magistrate and the reasons given for those findings

• the exhibits, including the photographic evidence of the injuries inflicted on Mr Toms and the accused's record of interview the police

116 To recall, the accused was charged with committing offences against Mr Toms at the Spotswood Hotel on 23 September 2005. The charges were recklessly causing serious injury, intentionally causing injury, recklessly causing injury and assault with a weapon, namely a beer glass.

117 When the charges came on before the Magistrate on 3 April 2006, the accused pleaded not guilty to all charges. He did not deny causing serious injury to Mr Toms but said he acted in self-defence. The Magistrate did not accept that defence. On 6 April 2006 she convicted him on the charge of recklessly causing serious injury. On 10 May 2006 she sentenced him to imprisonment for a period of six months.

118 These are the witnesses who gave evidence on behalf of the prosecution:

• Robert Toms (the complainant)

• Kylie Vance (the complainant's girlfriend)

• David Volkov (the accused's girlfriend's brother)

• Sarah Volkov (the accused's girlfriend)

• Adam Davies (the bouncer)

• Helen Buszko (the barmaid)

• Themi Badalis (the publican)

• Paul Bartlett (the informant)

119 Here are the witnesses who gave evidence on behalf of the defence:

• Michael Engebretson (the accused)

• Troy Holt ("Cuz")

120 I will summarise the evidence of these witnesses in turn.

Robert Toms (the complainant)

121 Mr Toms gave evidence that soon after his arrival at the hotel he and the accused began exchanging insults over something that happened the night before. He alleged that the accused had pushed a coffee table towards Mr Toms' girlfriend, Kylie Vance, cutting her foot in a manner that required eight stitches. The accused and Ms Vance were, until that night, housemates.

122 Mr Toms said that soon after his arrival he said to the accused: "you're fucked for what you did to Kylie". He said the accused replied: "No you're fucked, you've fucked the wrong person."

123 Mr Toms said he had little to do with the accused for about three hours, but recalls being badgered by him. Mr Toms said: "He was just approaching me ... nudging, to start a riff, you know to get somebody going." The nudging was towards his chin. He was saying: "Yeah come on you weak cunt and things to that effect." Mr Toms said he was trying to ignore the whole thing.

124 His evidence was that the next thing to happen was him copping a "biffing in the nose", but he did not remember being hit. He remembered his nose bleeding but he did not know he had "a glass smashed in me face". He woke up in hospital, where he received over 200 stitches to his face and stayed for three days. The photographic evidence tendered by the prosecution revealed that he suffered extensive facial lacerations in the incident.

125 Under cross-examination, Mr Toms said he frequently went to the hotel. He agreed he knew the witnesses who were about to give evidence, some of whom were his friends. He said he did not tell the police about a witness who was near the incident, named Tony.

126 Mr Toms confirmed his police statement to be true. He agreed it made no mention of the accused nudging him towards his chin. Nor did it say the accused had said "come on you weak cunt."

127 Mr Toms said he made the abusive remark to the accused when he entered the hotel because he was upset over what the accused had done the night before. This occurred at about 4.00pm. He said that the accused said words to him such as "I was a dead man walking and all that kind of stuff." He could not explain why this was not in his statement.

128 Mr Toms said he had no conversation with the accused just prior to the incident. He denied the accused said to him something along the lines "Rob you've got the advantage because I'm not going to do anything because it's going to cost Sarah her job." Sarah Volkov was the accused's girlfriend who worked at the hotel, which Mr Toms said he knew. He denied getting up after the accused said those words to him and throwing a punch at him. On who threw the first punch, Mr Toms said "I don't remember no throwing a punch" and "I didn't throw no punches." He denied stumbling and being pushed back by his girlfriend towards the accused and trying to throw another punch.

129 He was asked if he got into a scuffle with the accused, whether there was "some grabbing, some shoving, pushing or anything of that nature?" His answer was: "I'm pushing my way like just bugger off me, forget it, and then after that I don't remember nothing."

130 He was then asked if he knew Mr Holt. He said he did not. He agreed knowing someone called "Cuz", but not very well, as he had met him on only a few occasions over 10 months or so.

131 Counsel for the accused asked him if he had spoken to Cuz a few days after getting out of hospital. You will recall a later question made it clear that the conversation was alleged to have happened at the hotel. I have already mentioned the evidence put to Mr Toms in this regard, and his reply.

132 Mr Toms agreed that he had popped into the hotel a little after getting out of hospital to say thanks to everybody but he did not remember Cuz being there.

Kylie Vance (the complainant's girlfriend)

133 Ms Vance told the Magistrate she was a bartender at the hotel on the day concerned. She was waiting for her boyfriend, Mr Toms, to arrive at about 2.45pm. He arrived about 15 minutes after that.

134 Her evidence was that Mr Toms said something to the accused about what had gone on the night before between her and the accused. She did not hear what was said. She told the Magistrate she and the accused had had an altercation "and things got thrown around the house and what-not". Relations had got strained because she had asked the accused to move out of the house.

135 She said one-two hours later she saw the accused having words with Mr Toms but could not hear what was being said. She was talking to a friend called Anthony. She saw the accused approach Mr Toms and they talked for about five minutes.

136 She described seeing Mr Toms standing up and throwing his hands up in the air, then the two had a fair bit of a scuffle across the bar. She said: "They pushed and shoved each other a little bit, I turned around when they got probably half way between the bar and I heard a bang noise." She said they both pushed and shoved. That was the extent of the contact at that stage, she said.

137 She then deposed that she "turned around and they kept on scuffling until Robbie was on the floor, on the other bar and Mick was on top of him and Dave went over and pulled them apart and that's when I noticed Robbie's face was bleeding". She said she turned around when she heard a "cracking, pop sort of noise". She did not see how Mr Toms got injured. She then left to call for help. When she looked at Mr Toms, he had "half his face ... fallen off".

138 In cross-examination Ms Vance agreed that there was obvious tension between the two men. She saw Mr Toms arrive and he told her he had told the accused that "he was fucked" or words to that effect. They were both saying things to each other that were not very nice. "They were both quite aggressive towards each other", she said.

139 Her evidence was, when the incident happened, she could see the pushing and shoving in the mirror from her seated position. She heard the smashing glass and that was when she turned around. She did not see Mr Toms throw a punch - all she saw was pushing and shoving.

140 She said she saw no slapping take place - just pushing and shoving, harder and harder until they got half way through the bar. She was watching them in the mirror when she heard the glass smash. She did not see how this happened and she saw no punch thrown, to or by Mr Toms.

141 She said that she did know Mr Holt.

142 In re-examination she was asked to describe the pushing and shoving again. She said "There wasn't a hell of a lot of it, there was just like a push, and then a push back and then another push and then another push back and then a big pull." She said it was the accused that was moving in a forward direction.

David Volkov (the accused's girlfriend's brother)

143 Mr Volkov's evidence in chief was that he had gone to the hotel after knocking off work at about 5pm. He did not talk to Mr Toms or the accused, probably because he knew there was tension between them. The accused seemed upset with Mr Toms, who was ignoring him. When the accused said anything to Mr Toms, he would turn away and ignore him.

144 A little later he saw an altercation consisting of a few words, which he ignored.

145 Then he saw something out of the corner of his eye - someone smashing a pot at the end of the bar. He said it showered glass like a rainbow across the bar, in an arch. The shower of glass went all over the bar. A little after that there was a scuffle between the two men.

146 Mr Volkov said he saw the accused slap Mr Toms in the face twice, then he was pretty sure Mr Toms got up and slapped the accused back, but his back was to him at the time. He said the order of events was the glass getting smashed before the altercation, then he saw the slapping. It was very weak, more like antagonism than an actual attempt to hurt.

147 He said he turned his back on the incident and talked to his friend as he thought the two men were having an argument that they would sort out.

148 Shortly after that the two men were having a scuffle at the end of the bar. Holding on to each other, they shot across behind him at fairly high speed and crashed to the floor. Mr Volkov said he and someone else grabbed the accused off Mr Toms. When they picked Mr Toms up, he saw blood all over his face. A flap of skin was hanging down and he could see Mr Toms' teeth through his cheek. He kept tea towels on his face until the ambulance arrived.

149 In cross-examination, Mr Volkov said he did not see either the accused or Mr Toms throw any punches.

Sarah Volkov (the accused's girlfriend)

150 Ms Volkov told the Magistrate that she was working at the hotel as a barmaid. The accused was her then boyfriend and popped in regularly to see her.

151 Her evidence was that she saw Mr Toms speaking with the accused when he entered the hotel. The accused was "brewing" from what had happened the night before. She said when he saw Mr Toms walk in, he said "straight out ... 'you're 'f'd' but it's not gonna happen here". She heard him say this from a distance of about one metre - she was behind the bar and the two men were in the front. She told the Magistrate that Mr Toms scoffed this off, which only aggravated the accused.

152 Ms Volkov said she clocked off at about 7pm. The accused told her he respected her workplace. He said he "had a score to settle, but it's not gonna happen here". She then went to the toilet for about two minutes and came back to find Mr Toms on the floor.

153 She said that the night before she had gone with the accused back to his place where his bedroom had been trashed. His most valued possession - an antique sword - had been bent.

Adam Davies (the bouncer)

154 Mr Davies' evidence was that he was the crowd controller at the hotel and started work at about 4.30pm. He found Mr Toms and the accused to be agitated. Mr Davies said the accused was acting in a way that he had never seen him act before - fidgety, walking backwards and forwards, pacing and eyeballing Mr Toms.

155 He saw contact between the two men on three occasions. They were engaged in agitated discussion at an early stage. He then saw the accused leave the hotel and return a little later. The second contact was when he heard the accused saying to Mr Toms something like, "you're gone, I'm gonna get you." Mr Toms' response was just to go away. Then there was the incident itself.

156 About five minutes before the incident he heard the accused say to his girlfriend "I have backup it's gonna happen tonight."

157 Mr Davies told the Magistrate that he was walking towards the pool tables and saw the accused and Mr Toms holding on to each other, standing toe to toe. He said he started walking over to them, then saw the accused's hand coming down. He next saw glass everywhere. His evidence was that he saw the accused on top of Mr Toms. He saw the accused's hand do a kind of right hook - he did not know if he had anything in it. When the glass hit Mr Toms' head, he heard it smash and saw glass go everywhere.

158 When the two men were on the ground, they were punching each other.

159 In cross-examination, Mr Davies said he did not see Mr Toms slap the accused. Nor did he see the two men pushing and shoving each other throughout the bar. He was not watching the whole time.

160 He was taken to his police statement in which he agreed he had told the police that the hotel manager had told him to keep an eye on the accused and Mr Toms because Mr Toms would probably have a go at the accused due to an incident some time before. He agreed that this was true.

161 He said at one point he saw Mr Toms and his girlfriend sitting together. Mr Toms was agitated so he asked him to calm down and to forget about the matter as it was not worth it.

162 His attention was later brought to the two men by loud words being spoken. The two of them were in the middle of the hotel about to punch each other. They had a hold of each other. He said he saw Ms Vance try to separate them but she couldn't and fell back.

163 In re-examination, he agreed that he had also told the accused to calm down.

Helen Buszko (the barmaid)

164 Ms Buszko said she was a bar attendant at the hotel when the incident happened.

165 She saw the accused being agitated towards Mr Toms, but she thought it was all "hot air" at the time. She said she did not know these people very well, although she had been to Ms Vance's place once.

166 Her evidence was that the accused was very agitated, going backwards and forwards from one end of the bar to the other, needling Mr Toms, trying to egg him on. She said it was an on-off sort of thing.

167 At one point she asked the accused to settle down as he was shouting obscenities towards Mr Toms. She repeated this a few times.

168 Her account of the incident was that she was standing behind the till so it happened right in front of her. She described seeing Mr Toms throw his arms up in the air, then the two men getting into a scuffle. She thought it was the accused who made the first contact - she did not know if it was a push or a shove. There was a bit of scuffle and then she saw the accused swing around with the glass in his hand. She said she actually saw the glass. The glass seemed to disappear into Mr Toms' face.

169 Her evidence was the accused had the glass in his right hand and swung it into Mr Toms' face, very powerfully. She said the accused had a "very, very, very angry, very angry look."

170 She said she had an unobstructed view of the incident because it happened more or less in front of her eyes.

171 In cross-examination, she said she did not see Mr Toms trying to throw a punch. Later, during the scuffle, there were things exchanged - slaps, punches - she did not know what - from each party - but she did not see who was first and who was second. She did see Mr Toms get up from the bar stool to a standing position and then throw his own hands into the air.

172 Her evidence was that she did not see Mr Toms try to throw a punch or something like that. She doubted very much whether she could have missed that happening because she was in "very very close range with Robbie at that stage".

173 She said there was a scuffle between the two men in which there could have been a punch or a slap from either party. The scuffle occurred prior to the glass being smashed into Mr Toms' face.

174 The accused's action in bringing his arm around was a deliberate one. He did not smash the glass first on the bar on anything else. He smashed the glass straight into Mr Toms' face.

175 She said she did not see who was first and who was second in the pushing and shoving. She was sure punches were thrown in that scuffle, but she does not know by whom. After that the glass came around.

Themi Badalis (the publican)

176 Mr Badalis said he was the publican of the hotel. He did not see the incident but gave evidence about its aftermath.

Paul Bartlett (the informant)

177 Detective Bartlett said he was the informant and gave evidence about the record of interview and the police investigation of the incident.

178 He said the police had contacted the witness called Tony but he was not interested in assisting.

179 The accused's record of interview was admitted into evidence through Mr Bartlett. I have read that document. It gives an account that is consistent with the evidence that the accused later gave to the Magistrate.

Michael Engebretson (the accused)

180 The accused told the Magistrate he was a painter and decorator by trade. He confirmed the truth of the record of interview.

181 His evidence was that he went to the hotel at about 4pm to pick up his girlfriend, then left because she was working back, then returned at about 5.30pm.

182 He told the Magistrate he saw Mr Toms at the hotel. At one point, he was sitting near the entrance and Mr Toms walked past him and said something like "you're fucked." The accused said he said back to Mr Toms, "you're the one who trashed my things, don't tell me I'm fucked."

183 His evidence was that he had told Mr Toms to stop laughing at him and he had also told his girlfriend not to worry because nothing would happen that would jeopardise her job.

184 It was just prior to the incident that the accused told Mr Toms to stop laughing at him. He said Mr Toms' response was to get up and throw a punch at him. The accused said he retaliated in a split-second reaction. He did not realise he had a glass in his hand. He was just getting hit so he hit back.

185 He was asked to describe how Mr Toms threw that punch. This was his evidence:

Um he got up, he turned around and swung, swung ahead of me I think he sort of stumbled back onto Kylie and she pushed him back up and I, I had a bit of giggle actually because he fell over um and then he went to hit again, I realised it was serious and I grabbed his hand and hit back.

186 He said after he hit him with the glass, he did not realise what he had done, and there was a scuffle. It was not until they fell down to the floor and he saw blood that he realised what had happened.

187 The accused was extensively cross-examined. He said when he arrived at the hotel at about 4pm, he was a bit concerned for his own welfare. He thought he was going to get jumped. After leaving, he still returned to the hotel to collect his girlfriend because he did not think he should be chased out of the hotel where he went regularly.

188 He agreed that he had called a friend in case he got jumped by a few people. It was not to help him if he started a fight.

189 He agreed he was quite agitated that night but that was because Mr Toms had trashed his room the night before, and had walked in and said to him "I was fucked." Also, people were staring at him from behind.

190 He said he lived within walking distance of the hotel and could have easily picked Sarah up after she had finished work if he had wanted to.

191 He agreed a barmaid had asked him to calm down. But he said he was not stalking Mr Toms and Mr Toms was not trying to ignore him. In fact Mr Toms was trying to make him more upset by laughing at him.

192 His evidence was that, just before the incident, his girlfriend had knocked off and they were buying a drink together. She had gone to the toilet and he went to buy another drink when it happened. They were going to have a drink and then go out to dinner together.

193 He was asked why, if he was concerned for his own welfare, he went back to buy yet another drink. He said that his girlfriend had knocked off and they had not done what she wanted to do yet.

194 He agreed the bar in the hotel was big. He said he went to buy a beer near where Mr Toms was sitting because it was the closest point for him to do so. It was not his intention to assault Mr Toms.

195 He said when Mr Toms threw the first punch, he fell over and the accused had a bit of a giggle. The first punch was "a bit of a funny one". But Mr Toms stood back up and threw another one which also did not connect because the accused stopped it. It was then that he retaliated. His beer glass was not empty at the time.

196 His evidence was that he did have the opportunity to drop the beer glass between the first and second punches.

197 When he hit Mr Toms with the glass, he was intending to throw a punch but did not realise that he had a glass in his hand. He could not explain how, if a punch was intended, the glass made direct contact with Mr Toms' face, not his fist.

198 He was asked about the degree of force that he used. This was his evidence:

You would, you would agree that the amount of force that you used was not or the type of force you used was not the same type of force that Mr Toms used would you?---I don't know because I stopped it I, I believe if someone was going to hit someone they're gonna to put all the force they can if they want to hit someone I, I can't tell you what force he used, I believe when you want to hit someone you do use a fair amount of force, you're not going to hit someone and give them a fairy tap are ya, cause what's the point you know.

But you've used a weapon and he used his bare hands didn't he?---That's true, I didn't realise I was using a weapon, I just reacted.

And the force that he used, the force was coming from a person who you had laughed at a few minutes, a few seconds earlier---I didn't laugh. I, I had a bit of a giggle and smirked a bit.

So that, so you weren't really that concerned by his uh his ability were you?---I, I just didn't think it was, that actually looked pretty funny, he stumbled back, I had a bit of a giggle and didn't think he would keep going and he did.

Wasn't that funny another fifteen, twenty seconds later though was it?---No, no it wasn't it was quite scary actually.

199 The accused told the Magistrate that he knew he had made a big mistake, and was not there at court to say he was not guilty for what he did. He realised he had caused serious injury to Mr Toms, and did hit him with the glass, but he did not do it intentionally, and did not go to the hotel with that intention.

Troy Holt ("Cuz")

200 Mr Holt told the Magistrate that he was a plasterer and knew both the accused and Mr Toms. He said he had known Mr Toms for about a year because their respective girlfriends were friendly.

201 He said he had been told about what happened at the hotel and contacted Mr Toms to make sure he was alright. They were talking and Mr Toms turned around and said "Cuz".

202 Following the objection of the prosecution, Mr Holt was prevented from giving his evidence. Mr Holt gave no further evidence.

The submissions

203 The submissions made by the defence focused on the obligation of the prosecution to prove beyond reasonable doubt that the accused had not acted in self-defence.

204 Counsel asked the Magistrate to take into account the crowded circumstances of the hotel and the fact that these circumstances did not allow the accused any opportunity calmly to weigh the degree of force required to defend himself. It was submitted that the prosecution had to establish that the response of the accused was out of all proportion to the attack made upon him. The proportionality of the attack was only one of the considerations that went to the reasonableness of the accused's actions.

205 The defence submitted the evidence established that there was a scuffle with pushing and shoving before the use of the glass.

206 As to recklessness, counsel submitted the prosecution had to establish the accused was aware of the risks that his behaviour involved but consciously decided to go ahead anyway.

207 Counsel did not submit that the Magistrate should find that Mr Toms threw the first punch, even though this was the thrust of the accused's evidence. He did not submit Mr Toms was not a witness of credit. He did not address the conflict in the evidence between Mr Toms and the accused about who threw the first punch. I think he treated these issues as having been effectively removed from contention by the Magistrate's ruling on Mr Holt's evidence.

Prosecution

208 The prosecution submitted that the accused had ample opportunity to retreat on several occasions yet did not do so. It was submitted that the accused could have stayed away from Mr Toms at the hotel but did not do so.

209 The prosecution relied on the objective element of the test of self-defence. He said a reasonable person would not have acted in the manner that the accused did in all of the circumstances. The use of the beer glass was in no way whatsoever proportionate to the force allegedly used by Mr Toms (which the evidence did not confirm anyway).

210 It was submitted that the evidence easily established the offence of recklessly causing serious injury.

The findings

211 The Magistrate found the charge of recklessly causing serious injury proven. These are her reasons as recorded in the transcript:

HER HONOUR: In this matter the facts which are common between the parties are that on the 23rd of September 2005 the victim Robert Toms and the defendant Michael Engebretson were involved in an altercation, the result of which was a serious injury it is conceded to Mr Toms, cuts to his face resulting in some two hundred stitches being applied and a result in hospital stay for three days.

It is conceded by the defendant those injuries resulted in a blow which was struck by him when he held a glass in his hand and struck the defendant to the face. The issue for the court to determine in this case is whether the defendant's blow was an act of self defence as he claims or as is claimed by the victim himself in evidence before the court was an unprovoked attack.

I've heard from various witnesses about the events leading up to the incident, much of it I must say I did not find to be relevant, however in particular, I found matters concerning the state in which the defendant has been described as relevant. He has been described in various terms as agitated and on his own concession as agitated and by others as aggressive. I've considered all of the evidence before me and I have listened to the taped record of interview. I find from all of the evidence that the defendant and the victim were involved in a scuffle of sorts immediately prior to the injury occurring. I find that they were slapping and pushing between them. I find that the injuries described earlier resulted in a blow which landed considerable force by the defendant, who at the time carried in their hand a pot with a small amount of beer in it.

Applying the tests outlined in the decision in the decision of the Director of Public Prosecutions v Zecevic a case found at volume 162 of the Commonwealth Law Reports page 645, I'm unable to find that the defendant acted in self-defence. I accept the prosecutor's submission that the striking of the victim with the glass was deliberate and forceful and out of proportion to any force which may have been used by the victim who I accept and I've said I accept was involved in pushing or indeed slapping the defendant. I find the first charge proved. Each of the other charges is to be marked struck out...

Why the accused was not clearly convicted

212 There was strong support in the evidence I have summarised for the prosecution case against the accused.

213 Thus, on the prosecution side, there was evidence that:

• The accused was angry with Mr Toms over what happened the night before.

• He came to the hotel, left and came back again with a friend.

• As he lived close to the hotel, he easily could have come later to pick up his girlfriend, if that was his true intention.

• He intended to do something to Mr Toms, but, on his account, not at the hotel.

• He was seeking Mr Toms out at the hotel and trying to provoke him.

• He was behaving in a loud and aggressive manner towards Mr Toms, who was trying to avoid a confrontation.

• He approached the bar near where Mr Toms was sitting to buy a drink when he could easily have approached another part of the bar.

• On Mr Toms' account, which was broadly supported by the other evidence, the accused's attack was not provoked by a punch or punches from Mr Toms.

• On the accused's account, which was not exactly contradicted by the other evidence except that of Mr Toms, he struck Mr Toms with the glass after Mr Toms threw two ineffectual punches at the accused.

• He used a glass as a weapon, which he bashed into Mr Toms' face, when the latter had no weapon.

214 On the other hand, despite the injuries inflicted by the accused, it could not be said his defence of self-defence was hopeless. The prosecution and the Magistrate rightly accepted self-defence was properly raised, and they evaluated the evidence in that respect.

215 This, in summary, was the evidence of self-defence:

• There was mutual antagonism between the two men.

• When Mr Toms entered the hotel, he approached the accused and made a threatening and abusive remark towards him.

• On the accused's account, he brought somebody back to the hotel for self-protection.

• Mr Toms was agitated and asked by a bouncer to calm down.

• The fight was, in any event, one-on-one.

• The accused approached the bar to buy a drink at a point where a till was located.

• When the incident happened, the accused's glass was nearly but not quite empty, suggesting that he had reason to be at the bar, was not intending to bash Mr Toms and reacted spontaneously when he did so.

• On the accused's account, he reacted to Mr Toms' punching him twice, not realising he would seriously hurt him, but in self-defence.

• There was definite evidence of a scuffle between the two men, involving slapping at the least, and, according to at least one witness, punching.

216 Self-defence having been so raised, the prosecution had to disprove beyond reasonable doubt that the accused believed it was necessary to do what he did, and that it was objectively reasonable to do so, in self-defence. As he alone had a weapon, and used it to cause serious injury, the critical question was whether the degree of force used was out of all proportion to any perceived threat.

217 The accused did not use a gun or a knife. He used a glass that he had at the time, one that was not quite empty. The two men were in close proximity in a crowded hotel, and were mutually antagonistic. The accused's case, supported by his own evidence, was that he reacted spontaneously to Mr Toms throwing the first punch, indeed the first two. If Mr Toms did throw the first punch, that potentially placed the accused's reaction in a more favourable light than if he were the initial aggressor. I do not suggest for a moment that the accused's defence had to succeed on this basis, but it does affect the evaluation of the defence case, and in a possibly significant manner.

218 The question whether the force used by the accused was out of all proportion to the threat posed could only be decided by making a proper finding about what the degree of that threat was. In a case such as the present, that could be done in two ways.

219 First, the matter could be approached by putting the threat against the accused at its highest. You might say in this case that it did not matter if Mr Toms punched the accused first because thrusting a glass into someone's face could never be a reasonable response to a punch. The Magistrate did not approach the matter in this way. Her Honour found Mr Toms got into a scuffle with the accused, one involving pushing and slapping. She did not find it did not matter if Mr Toms threw the first punch.

220 Should I do so? That depends entirely on the circumstances. Especially as this case involves a pub-fight in which the accused has given evidence, I would not be prepared to decide his conviction was clearly correct on this basis. That course may be open to a magistrate who has seen and heard the evidence, but I do not think it is open to me as a judge of appeal.

221 Second, you could consider the defence case on its merits. This involves accepting, as reasonably possible, the difference between reacting in a split-second to punches being thrown and reacting to a scuffle involving no more than pushing and slapping. Depending on your view of the circumstances, the former may be more threatening than the latter. This approach requires a finding to be made, beyond reasonable doubt, about what happened. Not having adopted the first approach, the Magistrate was bound to adopt the second.

222 If the Magistrate failed to decide whether the prosecution had excluded the reasonable possibility that Mr Toms threw the first punch, she would have made an error of law. However, I think her Honour did resolve that question, and against the accused. The finding that Mr Toms was involved in a scuffle with pushing and slapping contains an implicit finding that Mr Toms did not throw the first punch. I will proceed on this basis.

223 It is here, I think, that the trial miscarried. Mr Toms and the accused were oath-against-oath on the question of who threw the first punch. The other evidence tended to support the prosecution case but it was not conclusive on that question. Mr Holt's evidence of Mr Toms' prior inconsistent statement was relevant to the strength of Mr Tom's evidence in this regard. It was impossible to decide who threw the first punch without dealing with Mr Holt's evidence that, contrary to Mr Toms' testimony, he previously had admitted throwing the first punch.

224 The exclusion of Mr Holt's evidence meant that the accused's defence of self-defence never received full and proper consideration. I cannot on appeal give the defence that consideration. I do not know how persuasive Mr Holt's evidence would have been because he did not give it. I cannot assess how much weight to give Mr Toms' evidence on this question because I do not have the excluded evidence going to his credit. In the absence of that excluded evidence, I am not prepared to decide that the accused was clearly convicted. He will have to be retried.

CONCLUSION

225 Michael Engebretson was tried before a magistrate on charges of causing serious injury to Robert Toms. His defence was self-defence. For that defence to succeed, he had to establish - or at least raise a reasonable doubt - that it was not he, but Mr Toms, who was the initial aggressor.

226 The accused had a witness, Troy Holt, who was apparently independent, and would say under oath that Mr Toms had previously said he threw the first punch in the fight between him and the accused. Mr Toms was the principal witness for the prosecution. His evidence was that the accused started the fight, not him. When he was being cross-examined by counsel for the accused, the evidence of Mr Holt was put to him. Mr Toms said he could not remember saying that to Mr Holt, but he did not expressly deny it.

227 The fight occurred in a crowded hotel and there were many witnesses, most of whom gave evidence. However, the critical events happened quickly and, for the witnesses at least, unexpectedly. While the evidence of these witnesses tended to support the prosecution case against the accused, it did not wholly foreclose the defence of self-defence.

228 When it came time for Mr Holt to give his evidence about Mr Toms' statement, the prosecution objected on the grounds of hearsay. That the evidence was hearsay is beyond dispute. But it was admissible as a prior inconsistent statement going to Mr Toms' credit. Instead of relying on that exception to the hearsay rule, counsel for the accused submitted the evidence was admissible as collateral evidence on the substantive issue of who threw the first punch. That submission was untenable and correctly rejected.

229 The Magistrate convicted the accused and sentenced him to be imprisoned for six months. Mr Holt's evidence was not considered.

230 The accused has now appealed to this Court under s 92(1) of the Magistrates' Court Act 1989 on a question of law. He has contended the Magistrate erred in law in rejecting the evidence of Mr Holt. The question is whether it is an error of law to reject evidence put on an untenable basis when it was admissible on an alternative one not put.

231 I have answered that question in the affirmative. With respect, the Magistrate made an error of law in rejecting Mr Holt's evidence as it was admissible as a prior inconsistent statement going to Mr Toms' credit. Her Honour was led into that error by counsel for the accused and not led away from it by the prosecution.

232 There is a conflict of authority on this question. But the weight of authority and my own independent analysis support the answer I have given. One authority that supports the affirmative answer is a decision of this Court given in 1862 by the Full Court sitting in Banc. After examining the history and nature of decisions of the Full Court sitting in Banc, I have come to the view that such decisions have the precedential authority of decisions of a statutory Full Court or the Court of Appeal and therefore bind a judge sitting alone.

233 The prosecution submitted the Magistrate's error was not material to the result. It submitted I should exercise the discretion conferred by s 92(7) of the Magistrates' Court Act to decline to set aside the conviction and order a retrial.

234 That I possess a discretion of this kind is undoubted. The discretion can be exercised in cases where the judge on review is clearly satisfied, after considering the whole of the record of the proceedings before the Magistrate, that the accused was clearly convicted on the admissible evidence. I have examined the transcript of the evidence, the submissions of the defence and the prosecution, the Magistrate's findings, as well as the exhibits, which include photographs of the injuries inflicted on Mr Toms and the accused's record of interview with the police. I am not so satisfied.

235 The problem in this case is that, even though the prosecution case against the accused seems strong, important evidence has been excluded. It is impossible to know, clearly, what the result may have been had the evidence been admitted. I do not know how persuasive Mr Holt's evidence of Mr Toms' prior inconsistent statement would have been, or how adversely, if at all, it would have affected Mr Toms' credit, because Mr Holt was not allowed to give that evidence. I think the accused's defence of self-defence was not done justice in the hearing which I can neither correct nor overlook on appeal.

236 The conviction of the accused for recklessly causing serious injury to Mr Toms must be set aside and the matter remitting to the Magistrates' Court for rehearing.

[1] Walsh v R (1976) 50 ALJR 533.

[2] R v McCready [1967] VicRp 36; [1967] VR 325, 327-328.

[3] [1908] VicLawRp 68; [1908] VLR 466.

[4] [1906] VicLawRp 60; [1906] VLR 371.

[5] [1834] EngR 492; (1834) 110 ER 1092; also reported at [1834] 3 N & M 106.

[6] [1834] 3 N & M 106, 108.

[7] Honeybone v Glass [1908] VicLawRp 68; [1908] VLR 466, 476-477 citing the headnote in R v Grant [1834] 3 N & M 106.

[8] See [1834] EngR 492; (1834) 110 ER 1092.

[9] [1834] 3 N & M 106, 108.

[10] [1849] EngR 13; [1849] 18 LJCP 128.

[11] Ibid 133.

[12] Ibid 134.

[13] Ibid.

[14] Ibid 135.

[15] [1908] VicLawRp 68; [1908] VLR 466, 477-478.

[16] John Pitt Taylor, A treatise on the law of evidence as administered in England and Ireland with illustrations from Scotch, Indian, American and other legal systems (10th ed, 1906).

[17] The cases are Ward v Hearn [1884] 10 VLR 163 and Shedden v Patrick and The Attorney General [1869] LR HL 1 SC&D 470 and mentioned at [1908] VicLawRp 68; [1908] VLR 466, 478.

[18] [1908] VicLawRp 68; [1908] VLR 466, 477.

[19] [1906] VicLawRp 60; [1906] VLR 371.

[20] Ibid 374.

[21] Ibid.

[22] [1908] VicLawRp 68; [1908] VLR 466.

[23] [1862] 2 W&W (L) 89.

[24] Ibid 95.

[25] [1939] VicLawRp 39; [1939] VLR 263, 271.

[26] Ibid 271-272.

[27] Ibid 272; see also Sanderson v Nicholson [1906] VicLawRp 60; [1906] VLR 371, 374.

[28] [1975] Qd R 1.

[29] Ibid 40.

[30] [1862] 2 W&W (L) 89.

[31] [1906] VicLawRp 60; [1906] VLR 371.

[32] [1939] VicLawRp 39; [1939] VLR 263.

[33] [1908] VicLawRp 68; [1908] VLR 466.

[34] Beedle v Thomas and Crispin [1862] 2 W&W (L) 89, 95; Sanderson v Nicholson [1906] VicLawRp 60; [1906] VLR 371, 374-375; Butcher v Longwarry & District Dairymen's Co-operative Association Ltd [1939] VicLawRp 39; [1939] VLR 263, 271-273; see also R v Tonkin and Montgomery [1975] Qd R 1, 40; but see Honeybone v Glass [1908] VicLawRp 68; [1908] VLR 466, 476-478.

[35] Sanderson v Nicholson [1906] VicLawRp 60; [1906] VLR 371, 374-375; Butcher v Longwarry & District Dairymen's Co-operative Association Ltd [1939] VicLawRp 39; [1939] VLR 263, 271-273; see also R v Tonkin and Montgomery [1975] Qd R 1, 40; see Honeybone v Glass [1908] VicLawRp 68; [1908] VLR 466, 476-478.

[36] Beedle v Thomas and Crispin [1862] 2 W&W (L) 89, 95.

[37] [1862] 2 W&W (L) 89.

[38] [1959] 1 QB 358, 367.

[39] See, eg, Jones v Dunkel (1958 - [1959] HCA 8; 1959) 101 CLR 298, 313; Phillips v Ellinson Bros Pty Ltd [1941] HCA 35; (1941) 65 CLR 221, 228.

[40] Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VicRp 42; [1981] VR 421, 425-6.

[41] Conway v R (2002) 209 CLR 203, 210; Janet Hope, "The Federal Court of Australia as a Court of Criminal Appeal for the Australian Capital Territory (I)" (2003) 13 Journal of Judicial Administration 8, 9-10.

[42] [1970] HCA 61; (1968) 122 CLR 69.

[43] Ibid 91.

[44] (1996-1997) 188 CLR 595.

[45] Ibid 609-610 (footnote omitted).

[46] John Burke (ed), Jowitt's Dictionary of English Law (2nd ed, 1977) vol 1, 179.

[47] David Walker, Oxford Companion to Law (1980) 110.

[48] Peter Butt (ed), Butterworths Concise Australian Legal Dictionary (3rd ed, 2004) 212.

[49] An Act to make provision for a better Administration of Justice in the Colony of Victoria 1852 (15 Vic No 10).

[50] Ibid s 3.

[51] Ibid s 4.

[52] Judicature Act 1883 (Vic), s 3.

[53] Ibid s 10.

[54] Ibid s 11.

[55] [1939] HCA 26; (1939) 62 CLR 422.

[56] Ibid 436-437.

[57] [1862] 2 W&W (L) 89 ("in Banc"), 117 ("the full Court"), 136 ("in Banco"), 203 ("the full Court").

[58] Avco Financial Services Ltd v Abschinski [1974] 2 VR 659.

[59] Viro v R [1978] HCA 9; (1976-1978) 141 CLR 88,121; Hawkins v Clayton (1986) 5 NSWLR 109, 136, 137.

[60] [1976] HCA 13; (1976) 133 CLR 580.

[61] Ibid 591; see also Viro v R [1978] HCA 9; (1976-1978) 141 CLR 88, 93.

[62] (1988) 82 ALR 499.

[63] Ibid 504.

[64] Businessworld Computers v Australian Telecommunications Commission (1988) 82 ALR 499, 500; Fieldhouse v Commissioner of Taxation [1989] FCA 397; (1989) 25 FCR 187, 224; NAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 136; (2002) 196 ALR 376, 382; Minister for Immigration and Multicultural and Indigenous Affairs v Szans [2005] FCAFC 41, [35]-[37].

[65] Fieldhouse v Commissioner of Taxation [1989] FCA 397; (1989) 25 FCR 187, 224.

[66] Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651, 654, 664; Chief Executive Officer of Customs v Tony Largo Pty Ltd [2001] NSWCA 147; (2001) 52 NSWLR 458, 471-472.

[67] Viro v R [1978] HCA 9; (1976-1978) 141 CLR 88, 120.

[68] Alamdo Holdings Pty Ltd v Bankstown City Council [2003] NSWSC 1074, [48]; Hawkins v Clayton (1986) 5 NSWLR 109, 136-137; R v Judge Bland; ex parte Director of Public Prosecutions [1987] VicRp 17; [1987] VR 225, 230-233; Shelmerdine v Ringen Pty Ltd (1990) V ConvR 54-375; Stanhill Pty Ltd v Jackson [2005] VSC 169, [18].

[69] NAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 136; (2002) 196 ALR 376, 382; cf Minister for Immigration and Multicultural and Indigenous Affairs v Szans [2005] FCAFC 41, [35]-[37].

[70] Rupert Cross and J W Harris, Precedent in English Law (4th ed, 1991) 3; Herbert Broom, Broom's Legal Maxims (10th ed, 1939) 90-93.

[71] R v Viro [1978] HCA 9; (1976-1978) 141 CLR 88, 120.

[72] Herbert Broom, Broom's Legal Maxims (10th ed, 1939), 90.

[73] Rupert Cross and J W Harris, Precedent in English Law (4th ed, 1991) 3.

[74] See, eg, Waddell v Patterson [1861] W & W 45 (appeal from judgment of Molesworth J upheld by Stawell CJ and Barry and Molesworth JJ); Australian Trust Company v Webster [1862] 2 W & W 99 (judgment of Molesworth J upheld by the Full Court for whom Stawell CJ spoke).

[75] [1939] VicLawRp 39; [1939] VLR 263.

[76] Ibid 271.

[77] Shaw v Yarranova [2006] VSC 45, [66]-[69].

[78] [2005] HCA 1; (2004) 219 CLR 196.

[79] Ibid 232 (footnotes omitted).

[80] Ibid 232-233 (footnotes omitted).

[81] See R v Wakim [1998] 2 VR 46, 53; R v Brown [2002] VSCA 207, [41].

[82] See R v Scott (1996) 137 ALR 347, 362; TKWJ v R [2002] HCA 46; (2002) 193 ALR 7 and R v Portelli [2001] VSCA 183, [21].

[83] [1939] VicLawRp 39; [1939] VLR 263, 272.

[84] Ibid.

[85] [1907] VicLawRp 87; [1907] VLR 485.

[86] (1887) 18 QBD 537.

[87] [1907] VicLawRp 87; [1907] VLR 485, 496.

[88] Ibid 496-497.

[89] [1907] VicLawRp 93; [1907] VLR 535.

[90] Ibid 543 per Cussen J, a'Beckett and Hood JJ concurring.

[91] Ibid 542.

[92] [1914] VicLawRp 50; [1914] VLR 379.

[93] Ibid, 385 per Cussen J, a'Beckett ACJ and Hodges J concurring.

[94] [1969] VicRp 48; [1969] VR 376.

[95] Ibid 394.

[96] Ibid 387.

[97] [1997] 2 VR 353.

[98] Ibid 356 per Tadgell JA, Callaway JA concurring.

[99] Ibid.

[100] [1907] VicLawRp 87; [1907] VLR 485.

[101] Weiss v R [2005] HCA 81; (2005) 224 CLR 300, 316.

[102] Ibid 317.

[103] See, eg, Duncan v Pilcher [1895] VicLawRp 87; (1895) 21 VLR 412, 413-415; approved in Mansfield v Hrysikos [2000] VSC 474, [19].

[104] Festa v R [2001] HCA 72; (2001) 208 CLR 593, 632.

[105] See, eg, Weiss v R [2005] HCA 81; (2005) 224 CLR 300, 317; R v Weiss (No 2) [2006] VSCA 161; (2006) 164 A Crim R 454, 475.