2. The "error of fact" which the learned magistrate regarding as providing him with the jurisdiction to make an order under s.76A of the Justices Act 1959 was his lack of awareness of the fact that at the time when he imposed the sentences of imprisonment the applicant was liable to serve another sentence of imprisonment which had been imposed earlier that day. I turn to consider whether that was an error of fact within the meaning of s.76A.

3. A court may only make findings of fact which are based upon the materials which have been lawfully received by it. Therefore prima facie an error of fact means a finding of fact which is not supported by, or is in conflict with the materials before the court. In my view to characterise a finding of fact which was properly arrived at and which was supported by the materials before the court as an error of fact because it is subsequently shown by reference to other materials which were not before the court that the fact was otherwise than as found, would be an inappropriate use of language. The foregoing propositions derive support from the following cases in which it was held that statutory provisions which confer a right of appeal upon the ground that a court has made an error of fact do not extend to findings which can only be impugned by reference to materials or evidence which were not before the court originally: The Shamrock Brewing and Malting Coy v. Schomann 16 ALT 5; Stuart v. Phillips 17 ALT 61; Peek v. Peek (1948) P 46 (Affirmed on Appeal (1948) 2 All ER 297); Fursman v. Blackman 1953 St R Qd 33, 35; Catling v. Catling (1956) 58 WALR 75, 77; Hallahan v. Campbell (1964) Qd R 337, 355; Cleaver v. Powell (1979) Tas R 134, 138; Wallington v. Devries (1979) Tas R (NC) 11.

4. A different conclusion was reached in Bick v. Morelli (1969) Qd R 94 and Kimmorley v. Atherton (1971) Qd R 117 in which it was held that what was described as an "unwitting error" on the part of a magistrate was capable of being regarded as an error of fact. However those decisions seem to be in conflict with the two earlier Queensland decisions I have cited and they were not unanimous decisions: see Hanger SPJ's vigorous and well reasoned dissent in Kimmorley v. Atherton (supra) and his statement at p 127 that the scope of the section containing the phrase "is very much in issue as the cases stand at present". See also Lucas J's lukewarm assent to the majority view in Bick v. Morelli (supra) at p 99. In addition, in each case it appears that the court was influenced more by its view of the desirability of adopting a construction which would enable it to remedy an injustice, rather than by its view of the meaning of the phrase "error of fact": see the statement of Hoare J in Kimmorley v. Atherton (supra) at p 142 that "every miscarriage of justice involves an error or mistake" and the observation by Hart J in Bick v. Morelli (supra) at p 99 that "it would be wrong if this court could not intervene". Considerations of that kind have no relevance in the present case because the scope and operation of s.76A have no effect upon the scope of this court's powers to review magistrate's decisions. Insofar as they are relevant I prefer to be guided by the other authorities which I have cited.

5. To construe s.76A as empowering a magistrate to amend an order solely on the basis of additional materials subsequently presented to the court would introduce an undesirable lack of finality in proceedings before magistrates, and would also crate the anomalous situation that a magistrate would have a wider power to amend orders on the basis of fresh evidence than would this court on the hearing of an appeal against such an order because, inter alia the magistrate would not be subject to the requirement that it must be shown that the fresh evidence was not available at the original hearing. We should lean against a construction having such consequences.

6. The sentences of imprisonment which the learned magistrate imposed were not based upon any findings of fact which were not supported by, or which were in conflict with the materials before him. For the reasons which I have given I hold that the magistrate's lack of awareness of the fact that another sentence of imprisonment had been imposed upon the applicant was not an error of fact within the meaning of s.76A and that therefore it could not be said that the orders which he made and amended were orders "based upon an error of fact" as required by the section.

7. The motion to review should be allowed and the orders made on the 29 January in respect of the sentences of imprisonment imposed on 20 January, should be quashed.

COSGROVE J This is a Motion to Review an order made by a magistrate whereby he purported to amend sentences of imprisonment totalling 4 months by ordering that execution of the sentence be postponed till after the expiration of a sentence of 6 months imposed by another magistrate. The circumstances which gave rise to the Motion were these.

2. On 20 January, 1988 Mr Dockray sentenced the appellant to imprisonment for 6 months. The appellant was then taken by police officers to Mr Wilson's Court. He pleaded guilty to the charges being heard in that court and was sentenced to 4 months' imprisonment. Mr Wilson was not informed of the sentence imposed by Mr Dockray and he made no order delaying the commencement of his sentence. Accordingly by operation of law the two sets of sentences commenced on the one day and were concurrent. Subsequently Mr Wilson became aware of what had happened, and on 29 January 1988, called the appellant back before him. I do not known what procedural steps he took but they are unimportant. After hearing argument from counsel, Mr Wilson referred to s.76A of the Justices Act and said:

"It appears to me it is intended that section 76A(1)(c)

should refer both to orders made upon complaint of a

breach of duty and orders following conviction upon

complaint of a simple offence. I do not therefore give

the term limited meaning ascribed to it in the

definition section and I rule that I do have jurisdiction

in relation to this matter pursuant to those provisions

just referred to. The error of fact involved, as there

must be if that jurisdiction is to be maintained, was that

I believed I was sending a man to prison who was otherwise

but for my orders due an existing liberty thereby denying

to him that liberty. In that I was in error as he had

only shortly before on that self same day been sentenced

to a term of imprisonment of greater length than the term

which I imposed, that sentence being imposed by Mr Dockray

for wholly different offences. In the result and pursuant

to the provisions of Section 75 of the Justices Act, upon

signing of the warrants on that day, both by myself and

Mr Dockray, both terms of imprisonment commenced on the

same day with the obvious effect of depriving this court's

sentence of imprisonment of any practical impact or

personal deterrent effect of any significance. That

effect is so fundamental as to emasculate that sentence,

and if the situation were permitted to continue so would

the principles upon which I based the sentence fail to

emerge as deserving the recognition which I believe they

should. In short, this man deserving of punishment has

escaped it and can presently be seen as having done so.

In that regard, counsel even described the result as a

windfall for him. In consequence and following the

earlier ruling, I now propose to correct that error of

fact which led to the result I have referred to.

I order that the first of the sentences which I imposed

on the 20th of January of this year, commence

immediately upon the expiration of such term or terms

of imprisonment as was imposed by Mr Dockray on that

same day upon the defendant. The second such sentence

as I previously ordered and I imposed to be served

cumulative to the first term which I imposed. I do say

as those sentences will have the effect that was intended

for him."

3. His Worship clearly relied on s.76A(1)(c). The assigned foundation for the amended sentence was the "error of fact" as to the sentences to which the appellant was subject.

4. The motion for review came on for hearing before me and, for convenience, I referred it to the Full Court. It came on there immediately following Smith v. Brooks.

5. S.76A as it was on 29 January, 1988 is as follows:

"76A-(1) Where the justices who convict a defendant -

(a) impose a penalty that is contrary to the law;

(b) fail to impose a penalty that is in conformity with

the law; or

(c) make an order that is based on, or contains, an error

of fact,

they may, of their own motion within the period of 14

days after the order is made on the complaint or on the

application made within that period by a party to the

complaint, and after giving the parties an opportunity

of being heard, amend the order made on the complaint and

impose a penalty in accordance with the law or alter the

order to conform with the facts, as the case may require.

(2) In this section, 'penalty' includes a forfeiture,

disqualification, and loss or suspension of a licence or

privilege.

(3) Nothing in this section affects the operation of

Part XI."

6. The question for decision is whether Mr Wilson's ignorance of Mr Dockray's sentence was "an error of fact" of the kind which authorised amendment of the original sentence. It may possibly be said to have helped to create an error of fact in the sense that it assisted Mr Wilson to believe that, at the time when he imposed sentence, the appellant was not subject to any other sentence. But, even in that sense, it was not the sole cause of the mistaken belief, which in reality had no foundation in fact at all because Mr Wilson had made no enquiry.

7. In the absence of enquiry, 3 possibilities seem to me to be open.

A. His Worship inferred from the list of prior convictions and/or the silence of the prosecutor that the appellant was not subject to a sentence of imprisonment.

C. His Worship did not address his mind at all to the question of delaying execution.

8. A and B could conceivably be "errors of fact". C could not be. Assuming that A was the case, could it be said that the order was "based on" that error? I do not think it could. That error, if it existed, could be the foundation for an omission from the order, not for the order itself. The order is not erroneous in the sense that it incorrectly states or omits consideration of an agreed or proved fact, or demonstrates a misunderstanding of material presented to him. It accords with the facts presented to his Worship. It is different from the order that his Worship might have made if he had been given further information, but that is, in my opinion, beside the point.

9. It seems to me that the meaning of the words is best ascertained by a consideration of the whole phrase "an order based on an error of fact". (I leave out "or contains" as plainly irrelevant in this context). An order can be based only on the evidence or other materials properly presented to the court. If it is based on extraneous material, it is wrong and will ordinarily be set aside on appeal. It is also appealable if it is based on a misunderstanding of materials or is so expressed as to be insupportable by the materials. But it is not appealable if it is simply a different order from that which the tribunal would have made if other evidence was presented to it. The existence of such evidence may be a ground for a new trial, but it does not show error (cf Peek v. Peek (1947-48) P at p 46).

10. The nature of s.76A is now such that it is clearly not intended to provide a remedy where no appeal would lie. Therefore erroneous opinions of the sort which the learned magistrate may have held (even if they are truly "errors of fact") do not invoke the jurisdiction conferred by the section.

11. Mr Kable for the appellant also submitted the word "order" should be construed to mean "order made upon complaint of a breach of duty". (See s.3 of the Justices Act 1959). I do not think it should. I think "order" means any order consequent on conviction. But perhaps it is unnecessary to express a concluded view on this point.

UNDERWOOD J I agree with the reasons for judgment of Cosgrove J and have nothing to add.