Justices - Appeals from and control over justices - Tasmania - Motion to review - Justices findings of facts may be reviewed where alleged to be unsafe and unsatisfactory. Morris v R [1987] HCA 50; (1987) 163 CLR 454, applied. Justices Act, Pt XI.

Evidence - Voice identification - Whether admissible without evidence of familiarity or distinctive features. R v Hentschel [1988] VicRp 46; (1988) VR 362, followed. R v Brownlowe (1987) 24 A Crim R 377, not followed. Accused - Failure to give evidence contradicting purported identification. Weissensteiner v R [1993] HCA 65; (1994) 68 ALJR 23, referred to.

Solicitors for respondent: Australian Government Solicitor

COX J The applicant was convicted in a Court of Petty Sessions of "interfering with radiocommunications likely to endanger the safety of another person" (sic) contrary to the Radiocommunications Act 1983 (Cth), s65(6). The amended particulars in the complaint were that on 8 June 1990 the applicant did an act substantially to interfere with radio communications between one Hearn and one Clarke on 27.335 MHz lower side band by transmitting at the same time and entered the frequency thereby preventing Hearn from being able to continue the radiocommunications with Clarke which interference was likely to endanger the safety of Hearn and/or his wife. The applicant was sentenced to perform 70 hours of community service and a radio set found by the learned magistrate to have been used in the commission of the offence was declared forfeited to the Crown.

2. The case against him in substance was that on 8 June 1990 Mr and Mrs Hearn were camped at a remote site 90 kilometres from the El Dunda Station in the general vicinity of Alice Springs. He was shooting rabbits and bringing them in to that town for sale. Of his two vehicles, one had broken down and the second had been illegally taken by some youths he had engaged to assist him. They appeared to have decamped with it about three days earlier and showed no signs of returning. During the afternoon his wife became ill and he sought assistance over the radio in his possession. He tried unsuccessfully to make contact with Alice Springs calling "urgent, require assistance" and was eventually answered by Mr Clarke, a courier operator with a CB radio in Point Vernon in Queensland. While Mr Hearn was giving him details of his predicament, a third operator came on the air and overrode the transmission. According to Mr Clarke his discussions with Mr Hearn were continually interrupted by the third person. During the course of the interruptions a radio inspector had requested the third person to clear the frequency and an Emergency Service Team operator in Darwin also requested him to do so. The third person refused and kept interjecting. Mr Clarke had two conversations with Mr Hearn both of which he said were interrupted by this third person. It was not seriously disputed and certainly not challenged on this appeal that the interruptions constituted an interference with radiocommunications likely to endanger the safety of Mrs Hearn. The crucial issue was whether the interfering third person was the applicant.

3. The prosecutor called a number of witnesses who gave evidence of hearing a person transmitting on CB radio under the pseudonym or call-sign of "Bruce the Goose". This person had a quite distinctive manner of speaking which included exaggerated braying sounds described by some as baying and others as baahing like a sheep and ending with a laugh. Who ever Bruce the Goose was, his vocabulary included offensive language (dick-head being a frequent expression of abuse by him), he spoke quickly and loquaciously and the subject matter of his monologues was by and large unintelligent if not inane. The prosecutor sought to establish that Bruce the Goose was the offending party interrupting the transmission between Mr Hearn and Mr Clarke in June 1990 and that the applicant was Bruce the Goose. He called a Mr Norton who said he had heard Bruce the Goose several times on his radio between January and April 1991, that on hearing the same voice on 9 April 1991 on the radio in his car, he had telephoned his wife and asked her to tape record it from the two-way radio which they had at home. Mrs Norton confirmed that she had done so and the tape was put in evidence as exhibit P10. It was played to both the Nortons in court and they confirmed that was the voice heard on 9 April 1990. The recording lacks clarity and is hard to decipher but a distinct braying or baahing sound can be heard. More than one voice can be heard on the tape.

4. A Mr Spikens gave evidence that he too had heard an operator calling himself Bruce the Goose on a number of occasions and could identify the voice because of the "howling and baahing." About a month earlier on 6 March 1991, he had gone to the Launceston General Hospital. En route, he had heard Bruce the Goose speaking on the radio. He said he could tell the transmitter was not far away from him and while in the Launceston General Hospital complex went looking for it. He said he had seen a white Toyota van registered number BE4002 (there was other evidence that such a van with that number was owned by the applicant) and a man sitting in the rear of it. He made a dock identification of the accused as the same man. Furthermore, he said that as he walked past the van on 6 March 1991 with a hand-held radio transceiver from which he had removed the antenna, he had clicked his transmitting button and had heard the radio in the van register the click thereby indicating that it was on the same frequency. The person in the van had alighted and approached towards him carrying a jack handle but no words were exchanged and Mr Spikens and he "had just looked at each other and that's when this other chap called me up to pick me up". The "other chap" was a friend of Mr Spikens. An attempt was made to link this "confrontation" with a reference made by Bruce the Goose and overheard by Mr Norton on 30 March 1991. On that day Mr Norton heard the person he called Bruce the Goose speaking to another unknown person. In examination-in-chief he was asked a leading question "During the course of the transmission on 30 March 1991 did you hear Bruce the Goose mention anything about a confrontation at the Launceston hospital car park?" He replied that he had said something like "I know all about you; last time I met you, you ran with shit running down your legs with your mate watching on" but significantly Mr Norton said that the location of that incident had not been identified.

5. At Easter-time 1991, Mr Alan Whelan had tape recorded a radio conversation between himself and a person whose voice he recognised as that of Bruce the Goose. Again, the latter had engaged in "swearing, baahing and using foul language". For unknown reasons, Mr Whelan had suspected that the speaker was the applicant and seeking to get an acknowledgment to that effect said "Your name is Mervyn Greaves and what you do, you know, (sic) like carry on with a jack handle". Bruce the Goose had responded "Well, if you know me you will know that I will use a jack handle". This tape was put in evidence as P11. Inasmuch as the speaker had impliedly acknowledged that he was Mervyn Greaves, the out-of-court admission of an unseen person could not prove that the speaker was indeed Mervyn Greaves (Ryan (1984) 14 A Crim R 97). The reference to being prepared to use a jack handle could not possibly be taken as an acknowledgment by the speaker of knowledge of the incident deposed to by Mr Spikens nor could Mr Norton's evidence of what the person whom he recognised as Bruce the Goose said on 30 March 1991 to an unidentified interlocutor about excrement running down his leg as his mate watched, possibly be taken as a reference to the incident Mr Spikens deposed to. Mr Spikens did not even give evidence that on 30 March 1991 he had been in radiocommunication with the person he knew as Bruce the Goose and claimed to identify as the applicant.

6. Constable Ling, the Fingal police officer, claimed to know the applicant quite well and to have spoken to him face to face not infrequently. The tape recorded by Mrs Norton on 9 April 1991 (P10) was played to him in court and he claimed to identify the voice as that of the applicant. He also gave evidence that he had heard on the police radio while driving through Rossarden in April 1991, a caller identifying himself as Bruce the Goose. A short time later he drove to the applicant's residence and upon entering saw him seated near his transmitting equipment. Constable Ling said jokingly "Bruce the Goose, I presume", to which the applicant replied "Well I'll be damned, you heard me did you Sarg?" In further conversation he had said that he used the Bruce the Goose call sign "just merely to have a bit of fun with the other listeners".

7. Mr Oakes, an officer in the Department of Transport and Communications had seen the applicant in 1986 in circumstances where he did not claim to have heard his voice and had visited him in Rossarden in 1989 on business relating to his transmissions. They had spoken together for three quarters of an hour. He had heard the tape P10 played in court on 12 July 1991. He was asked:

"Q Now since your meetings with Mr Greaves have you heard

anybody on or have you heard any radio transmissions that

appear to be emanating from Mr Greaves?

A Yes, I have.

Q Are you able to say how often you have heard those?

A At least 50, possibly more. More than likely more.

Q OK and again was that - were you listening to those

transmissions in the course of your employment as a field

investigator?

A Yes, I was.

Q Right and is there anything distinctive about Mr Greaves

language that you are able to identify with him?

A Some speech mannerisms and certain words he uses, yes.

Q Right, you were present in court as I recollect lately on

12 July of last year when some tapes were being played in

court?

A Did you say 12 July?

Q Yes, is that the first appearance date?

A November, I believe.

Magistrate No, the matter didn't proceed on 21 November but

the first date on which evidence was taken was 12 July as I

understand.

Prosecutor Yes, and that particular tape were you able to -

well were you able to identify Mr Greaves' voice on any part

of that tape (P10)?

A Yes, I was.

Q What was it about that particular tape that enabled you to

identify the voice on that tape with Mr Greaves?

A Some of the speech mannerisms and particularly a laugh.

Q Right, and perhaps dealing with the speech mannerisms, can

you just be a bit more specific about what particular speech

mannerisms you associate -

A Bruce the Goose, I am Bruce, Bruce the Goose. And I

reiterate the laugh. In particular the laugh."

8. In my opinion Mr Oakes' claim to be able to identify the voice on P10 as that of the applicant is completely untenable and that close reading of the exchange shows that he was merely identifying that voice as that of the person transmitting as Bruce the Goose.

9. So far, I pause to observe, we have a fairly tenuous thread of evidence tending to show that P10 recorded the voice of Bruce the Goose and that he was the accused. The strongest evidence in support of the last proposition was that of the admission to Constable Ling. Otherwise the evidence consisted of the aural identification of that officer comparing face-to-face dialogue with voice transmissions by radio, almost inevitably attended by some interference or distortion to a greater or lesser extent, and the aural identification of Mr Spikens who claims that the voice on P10 was the same as the voice on the radio he heard near the Launceston General Hospital in circumstances where he happened upon a man in the accused's van, whom he claimed in a dock identification to recognise as the accused and where the radio set in that van was operating on the same frequency as he and Bruce the Goose were using. The fragility of the dock identification is bolstered to some extent by the evidence that the number of the van was BE4002 but the evidence linking that with the accused was elicited by a leading question from the prosecutor to Sergeant Rook who had seized equipment from the applicant's home at Lee Street, Rossarden. "Were you present when a number of items were removed from a Toyota Hi Ace van, registered number BE4002 at the same address in Lee Street, Rossarden on 6 December 1990?", to which he replied "Yes, that is correct. I was there at that vehicle." He was not challenged in cross-examination but the applicant represented himself before the learned magistrate and cannot be expected to appreciate the normal rules of advocacy.

10. As to P11, while it was open to the learned magistrate to find the voices on it were those of Mr Whelan and Bruce the Goose or a person imitating him, there was no evidence to establish that it was the voice of the applicant. Those witnesses who heard P10 were not given the opportunity to hear P11 and to compare the voices, and Mr Whelan who had heard both tapes was not asked whether the voice on P10 was the same as that on P11. Although both tapes were before the Court of Petty Sessions and played before me, the quality of each varied significantly in my view, the exaggerated falsetto with which the voice "howled and baahed" is quite capable of imitation and I consider that a conclusion by the learned magistrate acting on his own aural perceptions that the two voices were identical, would be very difficult to sustain. It surely would be a matter susceptible of assessment by an expert in the field but no such evidence was called.

11. The crucial next link in the chain was to show that the maker of the interrupting transmission on 8 June 1990 who was not known to either of the operators in Central Australia and Queensland respectively, who were endeavouring to talk to each other, was the person whose voice was recorded on P10.

12. Mr Hearn who was the initiator of the distress call and who gave evidence on 6 January 1992 was asked to recall the words that had been said 19 months earlier. He gave this evidence:

"Q What can you recall that person said?

A The person said for me to 'f ...' off because he was using

this channel and a fair bit of abusive language and this

went on for a considerable time. The second time I tried as

I said about half an hour later. This kept going, this

abusive language and everything and I done my charlie a bit

I'm afraid and I said 'Look, why don't you f ... off, this

is an emergency call and as far as I know if this is an

emergency call, you must open the channel for somebody'.

Q Was there any response to the person who you were talking to in

that second conversation to that -

A Yes, I was told to f ... off meself

...

Q So, when you found you were unable to continue with your

conversation with the Queensland person on the third

occasion because of interference from another party or

another person, was that person who was interfering the same

person as the person who was making the interference on the

first call?

A Yes, definitely was.

Q Right, and how are you able to say definitely?

A By the language, by the tone of voice, that's all I had to

go on - the tone - the language and the tone of voice. I

could hear it in another 10 years' time, I could say look

that's that bloke that was on that radio that time, very

distinct."

13. A portion of P10 was then played to Mr Hearn. He said:

"A I can remember that the words of that piece there 'Why

don't you tell people out there who you really are?' - that

wasn't me but that was somebody else coming back to this

other bloke. I can distinctly remember those words 'Why

don't you tell somebody else who you really are?' or

'somebody who you really are'. I can remember that very

distinctly.

Q Are you able to identify any voices on -

A Not so far Sir, no it's fairly distorted but I can

remember there should be somewhere along this tape not long

after my call and during the - the words should appear on

this tape, apparently if this is the right tape where he

said 'Hang on a minute mate, I'm going to get another beer'.

That should come in to this tape somewhere I think from

memory, those words should be on this tape you know. I

remember that. I can remember those words. I can remember

somebody asking him why he doesn't tell somebody who he

really is and those other words were in the conversation as

well.

Q But so far you have not been able to identify -

A No Sir, its fairly distorted - Mr Greaves is correct in

saying because I know when you changed the squelch on the

radio that the voices all do change. And that would make it

very very hard but the running of the thing here at the

moment, I could not honestly say I can recognise the actual

voice."

14. He had clearly fallen in to the kind of unconscious error referred to by Gibbs CJ when dealing with visual identification in Alexander v The Queen [1981] HCA 17; (1980-1981) 145 CLR 395 at 399 where his Honour said:

"Evidence given by a witness identifying an accused as the

person whom he saw at the scene of the crime or in

circumstances connected with the crime will generally be of

very little value if the witness has not seen the accused

since the events in question and is asked to identify him

for the first time in the dock, at least when the witness

has not, by reason of previous knowledge or association,

become familiar with the appearance of the accused. The

reasons for this were explained in Davies and Cody v The

King [1937] HCA 27; (1937) 57 CLR 170 at 181-182. In particular there is

the danger that the witness will too readily come to

believe, without any true recollection, that the man charged

is the man whom he had previously seen, particularly if his

own memory has become dim and there is some resemblance

between the two men. The courts in England and Australia

have long recognized the danger of acting upon evidence of

identification made in those circumstances."

15. It is clear that Mr Hearn believed that P10 was a recording of the offending transmission. He purported to recognise parts of it and was expecting to hear other parts such as "Hang on a minute mate, I'm going to get another beer". It seems that hearing on the tape some words or phrases he recalled having been used in the original transmission he became convinced it was a tape of it. Though there was no reason to doubt the sincerity of his conviction the fact that he could reach such a state of belief on the basis of hearing a few similar phrases, demonstrates how susceptible to suggestion the memory can be. Nevertheless, he did not go the further step of identifying the voice because, as he said, the tape was distorted. The prosecution thereupon had P11 played to him, a tape which is much clearer in quality. Having heard it, he then said:

"A That first conversation and that piece just then was

definitely the same as the person that was on that radio.

There's no two ways. I waited - I heard the first one and I

waited for that same one to come on again. That's

definitely the same person. That first part was something

about chucking out the window or something like that. That

was definitely the person and that one just then was

definitely the person.

Q So that voice there was the same voice that came across

the first -

A That definitely is, yes. That must be coded a little bit

different because the first one I couldn't quite follow it,

but that is definitely the same person speaking,

definitely."

16. Mr Clarke was then called to give evidence. He talked in general terms of the interruptions to his conversations with Mr Hearn without going into details of them and without offering any verbal description of the qualities, characteristics or mannerisms of the interrupting voice. He then listened to P10 (but not P11) and said:

"A That's the voice.

Q The voice, can you just explain for the purpose of the

tape what it is

What the voice is?

A Well -

Q That you are talking about?

A I have been listening to that voice for nearly two years

on the radio. I have my radio going in the courier van all

day, six days a week. That is the same voice that I have

heard on many, many occasions.

Q Alright, that's that same voice you have heard on many,

many occasions. Is that the same voice that was

interfering, cutting across the transmissions that you were

having with Penguin Base (Hearn) on 8 June 1990?

A Yes, it is."

17. In cross-examination by the applicant, these exchanges occurred:

"Q You have been listening to that particular voice for the

last two years?

A Approximately that time. I've heard that voice on

numerous occasions. ...

Q And you have never heard prior to 6 June which was when

you were talking to Mr Hearn, you have never heard that

voice before that?

A I had heard that voice on many occasions before that but I

hadn't spoken to that voice on that occasion - before that

occasion."

18. Although therefore he claimed in effect to have heard the voice recorded on P10 on many occasions before and after the incident on 8 June 1990, he did not specifically claim that on that date he had recognised it as the voice he had previously heard. Had he done so before hearing P10 for the first time in court, his identification might be thought to have been a little stronger. The playing of the tape to him prior to his having given any description of the voice or any evidence of familiarity with it before or since the incident, had all the characteristics and all the vices of a leading question. It should be noted also that neither Mr Hearn nor Mr Clarke claimed that the person interfering on 8 June 1990 had purported to be Bruce the Goose or had uttered the characteristic "howling or baahing" sounds which the other witnesses claiming to be able to identify Bruce the Goose had referred to.

19. There was technical evidence tending to prove that the equipment in the possession of the applicant was capable of transmitting to Alice Springs and Point Vernon at the relevant time. The applicant gave no evidence. He was, as I say, unrepresented at the trial but when giving his decision the learned magistrate recorded "The defendant chose not to exercise his entitlement to give evidence or to call evidence, the existence of which I had explained to him carefully. I was, and remained, satisfied that the defendant understood his rights and that he appeared to make considered decisions in respect of them." A transcript of that part of the trial is no longer extant but there was no suggestion from the applicant's present counsel that the learned magistrate's summary was inaccurate.

20. The learned magistrate said of the evidence he had heard:

"At the outset I indicate that I accept the evidence of the

complainant's witnesses. In my view that evidence was

honestly given. Further, in my assessment it is reliable".

(He then mentioned the conscious decision of the defendant

to give no evidence). "During the course of the hearing the

defendant tested the prosecution evidence by way of

cross-examination and he made submissions both orally and in

writing. The evidence withstood that test. However, by

virtue of the defendant's decision not to give evidence the

evidence remains uncontradictory (sic) by evidence. In

particular I accept the evidence of Mr Hearn and of Mr

Clarke in its totality. Both impressed me as honest and

reliable witnesses." ... "I am satisfied beyond reasonable

doubt that the defendant originated the interfering radio

transmission. I have given careful consideration to the

matter of identification. In particular I have considered

the defendant's oral and written submissions as to the

weight that I should give to the voice identification

evidence of Mr Hearn and Mr Clarke. I am mindful of factors

such as the duration of the opportunity to hear the voice

and the jamming transmissions, distortions created by the

medium of communication itself, the delay between the

incident and the hearing and the circumstances of adducing

the evidence as to voice identification. Of course, on the

other hand, Mr Hearn had poignant reason to remember the

voice whose interference had dramatically worsened the

plight which he and his wife were experiencing and which he

was seeking to overcome. Further, the evidence of both Mr

Hearn and Mr Clarke remains undenied on oath."

21. The principal grounds of appeal were that the learned magistrate erred in law in admitting the evidence of voice identification by Hearn and Clarke. It was claimed that in the circumstances it was not admissible at all. Alternatively, if admissible, it ought to have been excluded by the magistrate in the exercise of his discretion.

22. In Domican v The Queen [1992] HCA 13; (1991-1992) 173 CLR 555 six justices of the High Court in a joint judgment referred to the fact that "the seductive effect of identification evidence has so frequently led to prove miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue." The court in that case was dealing with visual identification but the principles apply as well to voice identification. Indeed, in my view they apply a fortiori to voice identification, for I think it is true to say that a visual image is more likely to impress itself upon the mind of the average person than an aural image and the average person's capacity to orally describe the visual appearance of another is far greater than the capacity to describe the qualities of a voice.

23. Nowhere in Domican or in Alexander (supra) was it suggested that identification evidence, though in the circumstances weak, was inadmissible, although in Alexander, Gibbs CJ reaffirmed the existence of a discretion to "exclude any evidence if the strict rules of admissibility operate unfairly against the accused". His Honour went on "it would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight that was likely to be gravely prejudicial to the accused" (at 402-3).

24. In New South Wales the view has been expressed that evidence of voice identification is not admissible unless it is first shown that either the person making the identification was familiar with the voice of the alleged offender or that the voice was so distinctive when first heard by the witness that the fact finding tribunal could accept that an indelible mental impression of it had been left on the witness's mind (Brownlowe (1987) 24 A Crim R 377, a decision of the Court of Criminal Appeal following Smith (1984) 12 A Crim R 439 and on appeal Smith 23 A Crim R 266). In Victoria the Full Court in R v Hentschel [1988] VicRp 46; (1988) VR 362 declined to follow Brownlowe and Smith and held that the evidence of voice identification was admissible even if such condition were not met. The court recognised the discretion to exclude it and the risk that if it stood alone it might be unsafe to convict upon. In my respectful opinion that is the correct way to approach such evidence and there is no rigid rule of law, that absent familiarity with the voice or distinctive features as referred to in Brownlowe, the evidence is inadmissible.

25. As to the discretion, save in respect of one matter to which I will come in due course, I am not persuaded that the learned magistrate erred in failing to exclude the evidence. In a criminal trial where the facts are found by a jury there is more occasion to exclude such evidence in the exercise of the trial judge's discretion than in a case presided over by a magistrate who must find the ultimate facts himself. If the test is that fairness requires its exclusion because the probative weight of the evidence is exceeded by its prejudicial effect, the application of the same criterion in the circumstances of this case, where voice identification was crucial to a finding of guilt, would have required the learned magistrate to dismiss the charge because the probative weight could not sustain it. As he found it proved he obviously thought the evidence had probative weight and would not have excluded it in the exercise of his discretion.

26. My reservation relates to the fact that the applicant raised a specific objection to the witness Hearn being permitted to attempt a voice identification with the tape P10. He submitted that as that tape had "been recorded from a UHF radio using the frequency modulated signal call FM, it's an entirely different mode of transmission altogether. There can be no similarities at all between the voice that is on the tape there now and anything that comes across CB radio." He thereupon launched into something of a technical dissertation as to why there could be no proper comparison made between the voices recorded on different means of transmission. The learned magistrate's ruling is not properly recorded but he seems to have expressed the view that the matters the applicant was raising went only to the weight of the evidence and that he could cross-examine witnesses about that. He concluded "And you will have a chance later - (inaudible)". I suspect that he said the applicant could give or call evidence himself on that point. I think in the circumstances, although essentially it was a question of weight, the learned magistrate should have recognised the objection as an appeal to the exercise of his discretion to exclude the evidence at that stage. The applicant, it was common ground, was a CB operator and his conduct of the case revealed that he professed to have not inconsiderable technical expertise. He may have wished to give evidence himself on that issue without exposing himself to cross-examination on the ultimate issue before the court namely, whether he was the person broadcasting on 8 June 1990. He was entitled to do that (Wong Kam - Wing v The Queen (1980) AC 247) and the record shows that in due course he exercised the right not give evidence when the prosecution case closed. It is no answer to say that he suffered no adverse consequences because he could have given that evidence at a later stage but chose not to do so. In MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 it was held that where a confession was sought by the defence to be excluded whether because involuntary and therefore inadmissible or because procured by unfairness and therefore warranting discretionary exclusion, a voire dire should be held and the accused if unrepresented informed of his rights in respect of the voire dire (per Gibbs CJ and Wilson J at 534). If the applicant had been given such information he may have chosen to give evidence which might have persuaded the learned magistrate that the voice identification by reference to P10 was so unreliable it should not be admitted in the exercise of his discretion. That opportunity was lost by the learned magistrate treating the objection as merely going to the weight of the evidence. I think for that reason alone this conviction should not be allowed to stand, but there is a further ground which although not pressed upon me in the light of some recent observations of my brother Underwood J in the so far unreported case of Kelly v O'Sullivan 58/1994 (available on SCALE) I believe has been made out.

27. By ground 10 the applicant claims that "the learned magistrate erred in law and in fact in that on the whole of the evidence the conviction of the defendant was unsafe and unsatisfactory". This ground of appeal, as my brother said, has become a well entrenched feature of the criminal appellate jurisdiction, and as any form of appeal is a creature of statute, some statutory base must be found for it before an appellate court may intervene on that ground. In Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454 and Chidiac v The Queen [1991] HCA 4; (1990-91) 171 CLR 432, the High Court held that sections in the form of the Criminal Law Consolidation Act 1935 (SA), s353 gave such a power. This section is in common form with the Tasmanian Criminal Code, s402(1) and a number of other statutes granting the Supreme Courts of the States and Territories of Australia power to allow an appeal if of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence ... or that on any ground whatsoever there was a miscarriage of justice. In Whitehorn (supra) at 688 Dawson J said:

"A court of criminal appeal should conclude that a verdict

is unreasonable or cannot be supported having regard to the

evidence if, on the evidence, it considers it to be unsafe

and unsatisfactory. The verdict will be unsafe and

unsatisfactory if the court of appeal concludes that the

jury, acting reasonably must have entertained a sufficient

doubt to have entitled the accused to an acquittal."

28. At 660 Gibbs CJ and Brennan J expressed their agreement with this dictum. They said:

"If the court reaches such a conclusion in a particular

case, that means that it thinks that it was not open to the

jury to be satisfied beyond reasonable doubt of the guilt of

the accused in that case."

29. In Morris v The Queen (supra) Mason CJ said at 461-462:

"It is unnecessary to recount the long line of cases in

which the statutory provisions have been interpreted. It is

sufficient to say that it is now unsatisfactory

notwithstanding that there was, as a matter of law, evidence

upon which the accused could have been convicted: Whitehorn

v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 600, 686; Chamberlain (No

2. (1984) 153 CLR at 532, 404, et seq., 618 et seq.). In

Chamberlain Gibbs CJ and I, after noting that it was

unnecessary to consider whether the jurisdiction exercised

by the Court of Criminal Appeal in Australia is precisely

the same as that exercised by the Court of Criminal Appeal

in England, said (1984) 153 CLR at 534: ' ... the proper

test to be applied in Australia is, as Dawson J said, to ask

whether the jury, acting reasonably, must have entertained a

sufficient doubt to have entitled the accused to an

acquittal, ie must have entertained a reasonable doubt as to

the guilt of the accused. To say that the Court of Criminal

Appeal thinks that it was unsafe or dangerous to convict, is

another way of saying that the Court of Criminal Appeal

thinks that a reasonable jury should have entertained such a

doubt. The function which the Court of Appeal performs in

making an independent assessment of the evidence is

performed for the purpose of deciding that question. The

responsibility of deciding upon the verdict, whether of

conviction or acquittal, lies with the jury and we can see

no justification, in the absence of express statutory

provisions leading to a different result, for an appellate

tribunal to usurp the function of the jury and disturb a

verdict of conviction simply because it disagrees with the

jury's conclusion. We do agree that in many cases the

distinction will be of no practical consequence; it will be

merely a matter of words. That will not generally be the

case where questions of credibility are decisive. However,

whether it matters from a practical point of view or not in

a particular case, it is not unimportant to observe the

distinction - the trial is by jury, and (absent other

sources of error) the jury's verdict should not be

interfered with unless the Court of Criminal Appeal

concludes that a reasonable jury ought to have had a

reasonable doubt.'

In performing the function which is discussed in the passage

just quoted the Court of Criminal Appeal is deciding a

question of fact. So much clearly appears from the judgment

of the Court (Dixon CJ, Fullagar and Taylor JJ) in Raspor v

The Queen [1958] HCA 30; (1958) 99 CLR 346 at 350 and Hocking v Bell

[1945] HCA 16; (1945) 71 CLR 430 at 497. When 'the court performs this

duty, it is not deciding a question of law; it is

supervising or reviewing the findings of a tribunal of

fact', to use the words of Dixon J in Darling Island

Stevedoring and Lighterage Co Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635

at 643."

30. In a notice to review under the Justices Act 1959 the grounds are not expressed in the common form considered in the above cases. Section 107(4) provides:

"The grounds set forth in a notice to review shall allege -

(a) an error or mistake on the part of the justices on a

matter or question of fact alone, or of law alone, or of

both fact and law; or

(b) that the justices had no jurisdiction to make the

relevant order."

31. Nevertheless, though differently expressed, these grounds in my view are sufficient to encompass the basis for review on the "unsafe and unsatisfactory" ground. That ground in essence is a challenge to the findings of fact necessary to sustain a verdict of guilt. The appeal court when performing an appraisal of the verdict on this ground is, as Mason CJ points out in Morris (supra) at 462, "Supervising or reviewing the findings of a tribunal of fact". If in a jury case the appellate court expresses itself as satisfied that the jury ought to have entertained a reasonable doubt as to guilt, it is saying that one or more of the findings of fact necessary for guilt could not have been reasonably made and the finding must therefore be erroneous. In my opinion if an appellant can demonstrate that the verdict is unsafe and unsatisfactory in the sense used by the High Court in the cases to which I have referred, he will have established an error of fact upon which the Supreme Court may quash the order of justices or magistrate appealed from.

32. I do not think this conflicts with the dicta of Burbury CJ in Richardson v Shipp (1970) Tas SR 105 or the Full Court of Victoria in Taylor v Armour and Co Pty Ltd [1962] VicRp 48; (1962) VR 346. In the former case, Burbury CJ said at 117:

"The appeal is essentially an appeal against a finding of

fact. The decision of a court of petty sessions upon

questions of fact is to be treated upon a motion to review

in the same way as an appeal from the verdict of a jury."

33. His Honour then referred to the latter case in which the Full Court concluded at 351:

"This court has merely to see whether there was evidence on

which the magistrate might as a reasonable man, come to the

conclusion to which he did."

34. If he, like a jury, ought to have entertained a reasonable doubt on a crucial matter of fact but made a finding notwithstanding, an appealable error of fact is shown.

35. In my view therefore, the applicant has by ground 10 put in issue an error of fact and this court has jurisdiction to inquire into it notwithstanding that the words "unsafe and unsatisfactory" do not appear in the statute dealing with appeals from justices. Having reviewed the evidence and conscious of the authorities which emphasise the risks of proceeding to conviction on the basis of disputed evidence of identification where that represents a significant part of the proof of guilt and conscious also of the need to spell out to juries in considerable detail the dangers of convicting on such evidence, I am of the view that the learned magistrate ought to have entertained a reasonable doubt that the applicant was the person who made the transmission the subject of the charge. The voice identification of the complainants was the sole evidence implicating the applicant. Even assuming he was proved to be the speaker on the subsequently recorded tapes, as to which there was at best tenuous evidence, the identification of the voice on those tapes by Mr Hearn and Mr Clarke was fraught with danger. Neither had any familiarity with the voice of the person interrupting, the identification was made in court after a lapse of 19 months, it was conducted in the form of a leading question in each case, the length of time each had heard it on 8 June 1990 was very short and there were conflicts between the two (Mr Clarke said there were two transmissions interrupted by the offender, Mr Hearn said there were three), while one could identify the voice on P10 the other could not but purported to identify the voice on P11 while the first was not given the opportunity to hear and compare that exhibit. A further factor was that the most distinctive feature about the voice of Bruce the Goose was its exaggerated falsetto "howling and baahing". It had all the hallmarks of a disguised voice the features of which were capable of imitation by others. The learned magistrate gave himself a general warning of the dangers by adverting to some of the difficulties inherent in the identification but nonetheless the case against the applicant was such that in my opinion he ought to have entertained a reasonable doubt about the applicant's guilt and erred in fact in finding him to have been the interfering broadcaster.

36. The applicant did not give evidence on the trial (although he did do so on the application for forfeiture which was heard some weeks after the learned magistrate announced his reasons for finding the complaint proved). The learned magistrate adverted to this fact in his reasons. The omission of a defendant to give evidence in answer to a prima facie case may, in some circumstances, make the inference of guilt less unsafe to draw than it might otherwise possibly appear (May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654; Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433). In Weissensteiner v The Queen [1993] HCA 65; (1994) 68 ALJR 23 at 28 Mason CJ, Deane and Dawson JJ said in a joint judgment:

"... it has never really been doubted that when a party to

litigation fails to accept an opportunity to place before

the court evidence of facts within his or her knowledge

which, if they exist at all, would explain or contradict the

evidence against that party, the court may more readily

accept that evidence. It is not just because uncontradicted

evidence is easier or safer to accept than contradicted

evidence. That is almost a truism. It is because doubts

about the reliability of witnesses or about the inferences

to be drawn from the evidence may be more readily discounted

in the absence of contradictory evidence from a party who

might be expected to give or call it. In particular, in a

criminal trial, hypotheses consistent with innocence may

cease to be rational or reasonable in the absence of

evidence to support them when that evidence, if it exists at

all, must be within the knowledge of the accused.

Of course, an accused may have reasons not to give evidence

other than that the evidence would not assist his or her

case. The jury must bear this in mind in determining

whether the prosecution case is strengthened by the failure

of the accused to give evidence. Ordinarily it is

appropriate for the trial judge to warn the jury

accordingly."

37. Their Honours cited this passage from the judgment of Windeyer J in Bridge v The Queen [1964] HCA 73; (1964) 118 CLR 600 at 615:

"An accused person is never required to prove his innocence:

his silence can never displace the onus that is on the

prosecution to prove his guilt beyond reasonable doubt. A

failure to offer an explanation does not of itself prove

anything. Nor does it, in any strict sense, corroborate

other evidence. But the failure of an accused person to

contradict on oath evidence that to his knowledge must be

true or untrue can logically be regarded as increasing the

probability that it is true. That is to say a failure to

deny or explain may make evidence more convincing, but it

does not supply its deficiencies. A direction by the judge

on such matters ... might no doubt be helpful to the accused

in some cases."

"For various reasons other than guilt of the crime charged a

man may decline to go into the witness box and submit to

cross-examination. And the fundamental problem in the

background of both the enactments of legislatures and the

decisions of courts has been, and is, to reconcile the

traditional repugnance aroused by any form of compulsory

self-incrimination with the adverse inferences that

insistently arise from a failure to answer a charge. The

former attitude is, as Professor Glanville Williams has

shown (ibid 37-71) largely the result of deeply rooted fears

and memories of Star Chamber methods. The latter is the

product of natural processes of reasoning. As Frankfurter J

put it in Adamson v California (1947) 171 ALR 1223 at 1233:

'Sensible and just-minded men, in important affairs of life,

deem it significant that a man remains silent when

confronted with serious and responsible evidence against

himself which it is within his power to contradict.'"

39. In a circumstantial case where guilt is a reasonable inference and no other facts are proved which tend to support an inference consistent with the innocence of the accused, his omission to advance by evidence an innocent explanation which must be within his knowledge, may allow the court more readily to draw the inference of guilt. Likewise, where facts within the knowledge of the accused are the subject of direct proof and are not contradicted by him, the court may more readily accept the truth of them. But in the circumstances of this case there was no direct evidence that the applicant had made the offending broadcasts and the prosecution relied on voice identification of a tape proved by tenuous indirect evidence to have recorded the applicant's voice. The proof against him was not "serious and responsible evidence against himself" of the kind contemplated by Frankfurter J. It contained deficiencies which in my view could not be overcome merely by virtue of the fact that the applicant had exercised his right to silence.

40. The appeal will be allowed and the conviction quashed. The forfeiture order must also be set aside.