Evidence - Burden of proof, presumptions and weight and sufficiency of evidence - Generally - Credibility and weight - Party's failure to give or call evidence - Failure of defendant to give evidence - Effect on inferences which may be drawn. Weissensteiner v R [1993] HCA 65; (1993) 68 ALJR 23, referred to.

GREEN CJ The appellant was convicted in a court of petty sessions of assaulting a police officer in the execution of her duty contrary to the Police Offences Act 1935, s34B(1)(a)(i). A notice to review that conviction was dismissed by a judge. This is an appeal against that order.

2. The grounds of the notice to review which remain for consideration by this Court are as follows:

1 The learned magistrate erred in law in that he so

misdirected himself as to the evidence that his finding of

the complaint proved against the applicant was unsafe and

unsatisfactory in all the circumstances of the case.

2 The learned magistrate erred in law in holding that because

the applicant had not given evidence in his own defence that

it was open to him to draw an adverse inference against the

applicant for failing to do so.

3 The learned magistrate erred in law and in fact in

rejecting that the applicant's defence of alibi raised a

reasonable doubt entitling him to an acquittal.

4 The learned magistrate erred in law and in fact, having not

rejected the applicant's evidence of alibi, in finding,

nonetheless, that the applicant had committed the said

offence.

7 The learned magistrate erred in law and in fact in

finding, beyond reasonable doubt, that the identification of

the applicant was adequate, having regard to;

(a) the nature of the relationship between the victim and the

applicant;

(b) the opportunity to observe the person identified, the

conditions prevailing at the time, and the nature and

circumstances of the alleged prior knowledge of the applicant

by the victim;

(c) the fact that the victim received a severe blow

immediately prior to the alleged identification of the

applicant;

(d) The fleeting nature of the alleged identification of the

applicant;

(e) The lack of any other evidence implicating the applicant

with the commission of the offence.

3. Ground 1 of the notice to review is as amended by order of this Court. This Court was persuaded that it should grant the application to amend that ground as the application was not opposed by the respondent and the allegation that the finding was unsafe and unsatisfactory was argued before the learned primary judge.

4. Ground 2 of the notice to review was based upon the following passage in the learned magistrate's reasons for judgment:

"The defendant did not give evidence. That of course is not

evidence but I can more confidently draw inferences from the

evidence that (sic) I otherwise could if the prosecution

evidence was contradicted."

"... although the onus of proof never shifts, the observation

of the learned magistrate about the effect of the applicant's

failure to give evidence was a proper one in the

circumstances of the case. Ground 2 is not made out."

6. The learned primary judge also held inter alia that the appellant was not entitled to have the conviction reviewed on the ground that it was unsafe and unsatisfactory and rejected grounds 1, 3, 4 and 7.

1 The learned judge erred in law in holding that the

inferences which the learned magistrate drew from the

evidence upon the appellant not giving evidence in his own

defence, such inferences being adverse to the appellant, were

proper under the circumstances when such a conclusion was

based on;

(a) an application of the ultimate findings of fact made by

the learned magistrate to the principles laid down in

Weissensteiner v R [1993] HCA 65; (1993) 68 ALJR 23.

2 The learned judge erred in law in holding that the

appellant was not entitled to have his conviction reviewed on

the ground that his said conviction was unsafe and

unsatisfactory.

3 The learned judge erred in law in holding that

grounds 1, 3, 4 and 7 of the notice to review alleging

errors of fact were to be reviewed in the same way as an

appeal from the verdict of a jury.

4 The learned trial judge erred in law in failing to

determine grounds 3, 4, 7 and 1.

8. These grounds which were argued together related to grounds 1, 3, 4 and 7 of the notice to review.

9. This Court's jurisdiction to entertain this notice to review is derived solely from the Justices Act 1959. The effect of the Justices Act 1959, ss107 and 110 is that the Court's jurisdiction can only be invoked by the filing of a valid notice to review, that to be valid a notice to review must contain a ground which alleges an error or mistake of fact or law or both on the part of the magistrate and that this Court's function on the hearing of a notice to review is to review the order the subject of the notice "so far as relates" to that ground.

10. The view expressed by the Full Court in Bedelph v Weedon (1963) Tas SR 69 and in Richardson v Shipp (1970) Tas SR 105 that this Court's function when reviewing a magistrate's decision on an issue of fact is similar to that which it performs when it is hearing an appeal from the verdict of a jury has been repeatedly applied in many cases since. I see no reason to reconsider that long line of authorities but in any event for reasons which will appear I do not regard it as necessary to do so in order to determine the appellant's submissions. Obviously the Court's functions when it reviews the decision of a magistrate are not identical to those it performs when reviewing the verdict of a jury: inter alia the reasons for a magistrate's decision are known whereas those of the jury are not and all the legal directions upon which a jury has acted will have been explicitly stated by the trial judge in his summing up whereas a magistrate will rarely record all the directions of law which have actuated his decision. But in essence the functions are the same. However the way in which courts should go about reviewing the verdict of a jury has undergone development in recent years. The High Court has re-affirmed that in the absence of express statutory provisions the responsibility for deciding upon the verdict lies with the jury and there is no justification "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", per Gibbs CJ and Mason J in Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 534. But the

High Court has also held that when a court of criminal appeal is considering a ground of appeal which alleges that the verdict of a jury is unsafe and unsatisfactory the Court is required to make an independent assessment of the evidence and ask whether a reasonable jury ought to have entertained a reasonable doubt about the guilt of the accused: see Chamberlain v R (supra); Morris v R [1987] HCA 50; (1987) 163 CLR 454 and Chidiac v R [1991] HCA 4; (1991) 171 CLR 432. Since the hearing of this appeal the High Court has provided authoritative guidance to courts of appeal by restating their function in the following terms:

"In most cases a doubt experienced by an appellate court will

be a doubt which a jury ought also to have experienced. It

is only where a jury's advantage in seeing and hearing the

evidence is capable of resolving a doubt experienced by a

court of criminal appeal that the court may conclude that no

miscarriage of justice occurred. That is to say, where the

evidence lacks credibility for reasons which are not

explained by the manner in which it was given, a reasonable

doubt experienced by the court is a doubt which a reasonable

jury ought to have experienced. If the evidence, upon the

record itself, contains discrepancies, displays inadequacies,

is tainted or otherwise lacks probative force in such a way

as to lead the court of criminal appeal to conclude that,

even making full allowance for the advantages enjoyed by the

jury, there is a significant possibility that an innocent

person has been convicted, then the court is bound to act and

to set aside a verdict based upon that evidence. In doing

so, the court is not substituting trial by a court of appeal

for trial by jury, for the ultimate question must always be

whether the court thinks that upon the whole of the evidence

it was open to the jury to be satisfied beyond reasonable

doubt that the accused was guilty."

(Per Mason CJ, Dean, Dawson and Toohey JJ M v R [1994] HCA 63; (1994) 126 ALR 325 at 329.)

11. In my view those propositions also apply to a judge hearing a notice to review. As Cox J observed in Greaves v Aikman A81/1994 (unreported, available on SCALE):

"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."

12. I hold that if a judge who is hearing a notice to review a magistrate's determination of guilt is not satisfied that it was open to the magistrate to be satisfied beyond reasonable doubt that the defendant was guilty then it has jurisdiction to review the order under the Justices Act 1959 because to find a charge proved when a reasonable doubt ought to have been entertained is an error within the meaning of Justices Act 1959, s107. It follows that this Court cannot say a priori that a ground of a notice to review which alleges that an order made by a magistrate should be set aside because it is based upon a decision which is unsafe or unsatisfactory is not a valid ground. However it will only be a valid ground if in fact it is based upon an allegation that the decision is unsafe and unsatisfactory because the magistrate was in error because he was satisfied that a charge was proved when he ought to have entertained a reasonable doubt. Notwithstanding the terms in which it is drafted that was in fact the basis upon which ground 1 of the notice to review was argued before this Court and I therefore hold that it was a valid ground.

13. I should make it clear that nothing I have said is intended to suggest that the functions of a judge hearing a notice to review are to be equated generally with those of a court of criminal appeal hearing an appeal from the verdict of a jury. In particular insofar as dicta which lay down how an appellate court should discharge its function are derived from statutory provisions which require the court to allow an appeal if it is satisfied that on any ground there has been a miscarriage of justice they are not applicable to the functions of this Court upon the hearing of a notice to review which may only review the order of a magistrate if it is satisfied that there has been an error of fact or law or both.

14. Counsel for both parties submitted that in the event of this Court reaching the conclusion that ground 1 of the notice to review is a valid ground it would be appropriate and convenient for this Court to determine it. I accept that submission. In making that determination I take into account that although I must make my own assessment of the evidence it is not open to this Court to disturb the magistrate's decision simply because it disagrees with his conclusion. The Court must be affirmatively satisfied that the magistrate ought to have entertained a reasonable doubt as to the appellant's guilt before it may interfere.

15. The complainant gave evidence that at about 4.30am on Friday 4 June 1993 she and First Class Constable Reardon received information that a burglary had just been committed in Longford. They drove to Evandale. At 4.45am they saw and pursued a motor vehicle which came to a halt. The driver and a passenger alighted. Both were wearing balaclavas. The complainant pursued the passenger on foot into a vacant block. She grabbed him by the shoulder from behind and he immediately turned and punched her in the face just below the right eye. The complainant pulled the balaclava from his face and recognised him as the appellant. She said that there was a full moon, it was a very clear night and there were two street lights in the vicinity. She knew the appellant having first met him about three years before and seen him last about one week before this incident. When she recognised him she was about 1 to 1_ feet from him, they were facing each other, she had him under observation for about five seconds although she conceded in cross-examination that it might have been less and she had "no problems at all" recognising him.

16. First Class Constable Reardon gave evidence that he saw the complainant commence the pursuit and later saw her with injuries to her face.

17. The appellant did not give evidence but called two witnesses. His wife gave evidence that on a Thursday night which she said was the first Thursday in the school holidays she and the appellant and a number of other persons were at a party together in St Helens. "Probably about" 2am she went to bed at the house where the party was held. She "vaguely" remembered the appellant staggering into bed during the night and that the appellant was in bed with her when she awoke the next day at 9am. When pressed she said she didn't remember what time he came to bed but it was still dark. She would not agree that it might have been as late as 7am "because it was dark".

18. Michael Marlow gave evidence that he attended a party at St Helens with the appellant and others on a night which "to the best of his recollection" was a Thursday but he was unable to identify the date. He went to bed in the early hours of the morning. In cross- examination he could not be more precise about the time but would not agree that it was as early as 2.30am because, he reasoned, he arrived at the party between 8.30 and 9pm, he was drunk when he went to bed and he took longer than two to three hours to get drunk. It will be noted that the witness's reasoning does not support his conclusion the time between 9pm and 2.30am being greater than three hours. The appellant was still up when he went to bed. He next saw the appellant at 7 to 7.30am the next day when, in the course of looking in the rooms of the house because for some unspecified reason he wanted to see who was there, he saw the appellant in bed.

19. The complainant's evidence was not to any great extent attended with the dangers which can make identification evidence unreliable. The complainant identified a person whom she knew well as a result of seeing him in very close proximity face to face for several seconds in lighting conditions which she said presented her with no difficulties in identifying him. If the complainant's evidence of the conditions under which she recognised the appellant were to be accepted the identification evidence could be characterised as strong and prima facie reliable. In order for me to conclude that the magistrate ought to have had a reasonable doubt about the identification evidence I would have to be persuaded that the magistrate should have found that the complainant's evidence should not be believed. There is no basis upon which it would be open to me to be so persuaded.

20. The evidence of Mrs Kelly and Mr Marlow is on its face without weight as it does not establish that it was the night of the 3 and 4 June 1993 upon which they saw the appellant. Mr Marlow's evidence does not establish even the month when the party took place and can only have relevance if one infers that his evidence relates to the same night about which Mrs Kelly gave evidence. Mrs Kelly's evidence only fixes the date by reference to the school holidays but the dates of the holidays were not proved, no judicial notice was taken of them by the magistrate and in any event the witness did not identify the holidays of which school she was referring to. But even if it should be inferred that they were referring to the night of the 3/4 June 1993 taking into account the fact of which the magistrate took judicial notice that the travelling time between St Helens and Launceston is about two hours together with the uncertainty and tendency to rationalise about time which characterised their evidence, acceptance of the evidence of Mrs Kelly and Mr Marlow that they saw the appellant that night or in the early morning would not compel a conclusion that the appellant was not at Evandale at 4.45am.

21. Upon all the evidence I am not satisfied that the magistrate ought to have entertained a reasonable doubt as to the appellant's guilt. For the foregoing reasons I also reject grounds 3, 4 and 7 of the notice to review.

22. This ground relates to ground 2 of the notice to review.

23. Counsel for the appellant did not submit that the proposition from the magistrate's reasons for judgment referred to above was erroneous but submitted that this was not a case involving the drawing of inferences and was therefore not a case in which the propositions referred to in Weissensteiner v R [1993] HCA 65; (1993) 117 ALR 545 had any relevance. But those propositions included the following passage from May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658 which was cited with approval at 552:

"After the prosecution has adduced evidence sufficient to

support proof of the issue, the defendant may or may not call

evidence. Whether he does or not, the question to be decided

in the end by the tribunal is whether, on the whole of the

evidence before it, it is satisfied beyond reasonable doubt

that the defendant is guilty. This is a question of fact.

In deciding this question it may in some cases be legitimate

... for it to take into account the fact that the defendant

has not given evidence as a consideration making the

inference of guilt from the evidence for the prosecution less

unsafe than it might otherwise possibly appear:"

"... 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."

24. With respect I agree with the learned primary judge that it was not inappropriate for the magistrate to apply those principles to his determination of this case.

CRAWFORD J The appellant was convicted by a magistrate of assaulting a police officer in the execution of her duty contrary to the Police Offences Act 1935, s34B(1)(a)(i). His motion to review the conviction was dismissed and he has appealed from that dismissal.

2. The prosecution called evidence which, by the close of the prosecution case, was compelling evidence of guilt. The appellant gave no evidence to refute it but he called two witnesses for the purpose of establishing an alibi. The learned magistrate considered the evidence of the alibi witnesses was unconvincing.

3. It was not the defence case that the police officer was not assaulted in the execution of her duty, but that the prosecution case was one of mistaken identity. The police officer concerned was Constable Rushton. Her evidence was that she was in a police vehicle with Constable Reardon. At Evandale at 4.45am on Friday, 4 June 1993, they saw a white utility being driven through Evandale at high speed. They had a report of a burglary at Longford committed by balaclava- clad men in a white Holden HQ utility. They pursued the vehicle until it stopped. (The evidence established that there were three occupants.) She observed the driver get out. He was wearing dark clothing and a balaclava and ran off. She observed a male passenger get out and run off along the street. He also was wearing dark clothing and a balaclava. She was in uniform and called "stop police". She ran after him into a vacant block where she caught up to him and grabbed hold of his right shoulder from behind. He immediately turned and punched her in the face just below the right eye. She grabbed his balaclava and pulled it from his head. Thereupon she recognised the man as the appellant. He punched her in the mouth. She punched him in the face and held on to his jacket. He then punched her twice more to the face knocking her to the ground and ran off, leaving the balaclava and a woollen glove she had also removed from him during the struggle.

4. Constable Rushton's evidence was that it was a very clear and cold night with a full moon. There was a light opposite the gate to the vacant block they had entered. She said that when she pulled the balaclava from the appellant he was only about a foot or a foot and a half away and "it was easily clear enough for me to see who it was. I had no problems at all". She knew the appellant prior to that night and had last seen him a week before. In cross-examination she agreed that the punches to her face had dazed her "to a certain degree", but she was not shaken about her identification. She agreed to a leading question in cross-examination that upon her return to Constable Reardon she told him that it had been Shane Kelly. The same counsel also ascertained by a leading question put to another police officer that one Michael Gibson had been one of the three persons travelling in the white utility and Gibson had been captured while still in it. The appellant's wife subsequently agreed in evidence that the appellant and Gibson both lived at Rossarden and were associates of each other.

5. As previously mentioned the appellant gave no evidence in his defence. He called his wife and one Michael Marlow in an apparent attempt to establish that he was or may well have been at St Helens at the time of the alleged assault. Mrs Kelly gave evidence of an occasion when she and the appellant were at a party at St Helens on a Thursday night which was "the first Thursday in the school holidays" in about June. Whether that coincided with the night of the assault was not established. Mr Marlow also gave evidence of being at the same party with the appellant and his wife on a Thursday night some time in 1993 prior to 2 December.

6. The learned magistrate concluded that Constable Rushton was an impressive witness who was not shaken in cross-examination. His Worship came to that conclusion having had the advantage of observing all of the witnesses. I note that Constable Rushton identified her attacker as the appellant as a result of knowing him and this is not a case of risky identification by a witness who did not previously know the person concerned.

7. In giving reasons for his decision the learned magistrate did not refer to the primary weakness of the alibi evidence, that being that it did not establish the date upon which the witnesses said the appellant was at a party in St Helens. Instead His Worship assumed that the evidence referred to the relevant night. He considered that in an important respect the evidence of Mr Marlow was vague and a reconstruction and did not accept it. His Worship also found Mrs Kelly's evidence to be lacking in clarity and particularity in an important respect, that being the time of the morning when the appellant joined her in bed. On my reading of the transcript the magistrate was entitled to treat their evidence in that way. The conclusion of the magistrate was that the alibi evidence did not cause him to have a reasonable doubt that the appellant could have been in Evandale at the time of the offence.

8. A ground of the appeal concerns a comment made by the learned magistrate about the failure of the appellant to give evidence. The comment was:

"The defendant did not give evidence. That of course is not

evidence but I can more confidently draw inferences from the

evidence that (sic) I otherwise could if the prosecution

evidence was contradicted.

As I have said previously I found Constable Rushton's

evidence a most impressive witness (sic) and there was

nothing arising from the evidence which caused me to doubt

her evidence and I accept her evidence."

9. Ground 2 of the motion to review asserted that the magistrate erred in law in holding that because the appellant had not given evidence in his own defence it was open to his Worship to draw an adverse inference against him for failing to do so. The ground misstated the learned magistrate's comment. His Worship did not state or even suggest that it was open to him to draw an adverse inference against the appellant because he failed to give evidence. Such a statement would have given evidentiary value to the failure to give evidence and the learned magistrate made it clear that he would not treat the failure to give evidence as evidence.

10. In the court below the learned judge found no merit in the ground for another reason. Having first concluded that the reference to the absence of contradictory evidence was to evidence which might have contradicted that the appellant was in Evandale at about 4.47 on the morning in question, the learned judge referred to Bridge v R [1964] HCA 73; (1964) 118 CLR 600 at 615, Weissensteiner v R [1993] HCA 65; (1993) 68 ALJR 23 at 28, 32 and 35-36 and May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658-659 and concluded:

"By calling evidence from two witnesses the applicant sought

to establish an alibi for himself. The learned magistrate

found that the evidence did not establish an alibi for the

applicant at the material time. As the only person who knew

with certainty where he was at the material time, the

applicant was the one with the facts to contradict the

evidence of the complainant, and although the onus of proof

never shifts, the observation of the learned magistrate about

the effect of the applicant's failure to give evidence was a

proper one in the circumstances of the case. Ground 2 is not

made out."

11. To this Court the relevant ground of appeal which was maintained by counsel was:

"(1) The learned Judge erred in law in holding that the

inferences which the learned Magistrate drew from the

evidence upon the Appellant not giving evidence in his own

defence, such inferences being adverse to the Appellant, were

proper under the circumstances when such a conclusion was

based on:

(a) An application of the ultimate findings of fact made by

the learned Magistrate to the principles laid down in

Weissensteiner v R [1993] HCA 65; (1993) 68 ALJR 23."

12. The plain answer to the ground is that the learned judge did not relevantly hold any particular inferences which were drawn by the learned magistrate were properly so drawn. All his Honour held was that the observation or comment of the learned magistrate about the effect of the applicant's failure to give evidence was a proper one in the circumstances of the case. In this Court counsel for the appellant conceded that as an abstract statement of law the comment by the learned magistrate that he could more confidently draw inferences from uncontradicted evidence was correct, but countered by submitting that the drawing of inferences did not arise. Whether the learned magistrate intended to refer to the drawing of inferences I doubt and think it likely that the reference was directed to the finding of a fact from uncontradicted evidence, the fact being that it was the appellant who struck Constable Rushton in Evandale on the morning in question. On that basis the statement by the learned magistrate was also a correct statement of law. See Weissensteiner v R [1993] HCA 65; (1993) 68 ALJR 23 at 28. The ground of appeal must fail.

13. I next deal with the basis upon which a judge, on the hearing of a motion to review under Part XI of the Justices Act 1959, may review a determination of fact. Since Richardson v Shipp (1970) Tas SR 105 it has been settled law at first instance in this State that the judge has merely to see whether there was evidence upon which the justices or magistrate might, as a reasonable person, have come to the conclusion reached. In that case Burbury CJ at 117 said:

"This is not an appeal by way of rehearing and it is not for

this court to weigh the evidence and reach its own

conclusion. The court is only concerned with the question of

law whether there was evidence before the learned stipendiary

magistrate upon which he was entitled to hold that the

offence was not proved. 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."

14. Notwithstanding the settled line of authority it was submitted for the appellant both in this Court and in the court below, that an order may also be reviewed if the court is satisfied that the finding of guilt was unsafe or unsatisfactory. The learned judge rejected the argument finding it lacking in statutory authority. Two months later, Cox J in Greaves v Aikman A81/1994 (unreported, available on SCALE) was of the opposite view and held that he had jurisdiction to review a conviction on the ground that on the evidence it was unsafe and unsatisfactory.

15. In a case such as this the Justices Act 1959, s110(2) obliges the court to review the conviction on evidence and materials adduced and brought before the court below so far as relates to the grounds of the motion set forth in the notice to review. By s108(1) the applicant must be held to those grounds, subject to the court's power to allow amendments. By s107(4)(a) the grounds must allege "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".

16. A ground that a verdict or conviction is unsafe or unsatisfactory was recently explained in M v R [1994] HCA 63; (1994) 126 ALR 325 at 328 by Mason CJ, Deane, Dawson and Toohey JJ:

"Where a court of criminal appeal sets aside a verdict on the

ground that it is unreasonable or cannot be supported having

regard to the evidence, it frequently does so expressing its

conclusion in terms of a verdict which is unsafe or

unsatisfactory. Other terms may be used such as 'unjust or

unsafe' (Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170 at 180), or

'dangerous or unsafe' (Ratten v R (1974) 131 CLR at 515). In

reaching such a conclusion, the court does not consider as a

question of law whether there is evidence to support the

verdict (Raspor v R [1958] HCA 30; (1958) 99 CLR 346 at 350-1; Plomp v R

[1963] HCA 44; (1963) 110 CLR 234 at 246, 250). Questions of law are

separately dealt with by s6(1). The question is one of fact

which the court must decide by making its own independent

assessment of the evidence (Morris v R [1987] HCA 50; (1987) 163 CLR 454; 74

ALR 161) and determining whether, notwithstanding that there

is evidence upon which a jury might convict, 'none the less

it would be dangerous in all the circumstances to allow the

verdict of guilty to stand'. (Hayes v R (1973) 47 ALJR 603 at

604). But a verdict may be unsafe or unsatisfactory for

reasons which lie outside the formula requiring that it not

be 'unreasonable' or incapable of being 'supported having

regard to the evidence'. A verdict which is unsafe or

unsatisfactory for any other reason must also constitute a

miscarriage of justice requiring the verdict to be set

aside."

17. The High Court in cases such as Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657, Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, Morris v R [1987] HCA 50; (1987) 163 CLR 454, Chidiac v R [1991] HCA 4; (1990-91) 171 CLR 432 and M v R (supra), has stated that the ground is available on appeals to courts of criminal appeal in States having a common statutory provision. In this State it is in the Criminal Code, s402(1) which provides:

"402 (1) On an appeal the Court shall allow the appeal if it

is 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 the judgment

or order of the court of trial should be set aside on the

ground of the wrong decision of any question of law, or that

on any ground whatsoever there was a miscarriage of justice,

and in any other case shall dismiss the appeal."

18. The learned judge distinguished the line of authority in the High Court because in the Justices Act 1959 no provision for review is expressed to be on the basis that an order is unreasonable or cannot be supported having regard to the evidence. His Honour pointed out that the intention of Parliament as expressed in ss107(4)(a), 108(1) and 110(2) is that an order will only be reviewed if error of fact or law or both is shown. That is correct, but it is worth noting that there is nothing in those provisions either which states that a test on review is whether there is evidence upon which a magistrate might, as a reasonable person, have come to the conclusion reached. The Justices Act 1959 simply requires an error of fact, law or both.

19. It seems to me to follow irresistibly that if a finding of guilt by justices or a magistrate is unsafe or unsatisfactory in the sense that it is unreasonable or cannot be supported having regard to the evidence to the extent that, although there might have been evidence upon which the finding of guilt could have been based, it would be dangerous in all the circumstances to allow the finding to stand, then an error or mistake on the part of the justices or magistrate on a matter or question of fact has occurred. In my view therefore if a finding of guilt is unsafe or unsatisfactory in that sense then a ground of review alleging it is a valid ground and must succeed. Ground 2 of the appeal has therefore been made out.

20. In most cases the result of a motion to review will be the same whether the ground asserted is that the finding of guilt is unsafe or unsatisfactory in the sense I have stated or whether it is that there was no evidence upon which the magistrate might, as a reasonable person, have come to the conclusion in fact reached. Applying both tests in this case I conclude that the finding of guilt should stand. The evidence of Constable Rushton was clearly sufficient to justify the learned magistrate concluding as a reasonable person, that the appellant was the one who struck the police officer. The magistrate had the advantage, which an appellate court does not have, of observing the witnesses give their evidence and he was entitled to come to a conclusion that Constable Rushton was an impressive witness and to conclude that the evidence of Mrs Kelly and Mr Marlow did not raise a reasonable doubt that the appellant was the one who assaulted the officer at Evandale on the morning in question. I am satisfied that the finding of guilt was not unreasonable and it clearly could be supported having regard to the evidence.

21. Ground 3 alleges that the learned judge erred by holding that determinations of fact should be reviewed in the same way as on an appeal from the verdict of a jury. His Honour held that by adopting what was said to that effect by Burbury CJ in Richardson v Shipp (1970) Tas SR 105 at 117. I am not persuaded that it is an incorrect statement of law providing that it is understood that a criminal jury was being referred to and not a civil jury. Of course there is an important difference between a criminal jury case and one such as this, that being that the jury gives no reasons for its findings of guilt with a consequence that error is less likely to be detected than in a case heard by a magistrate.

22. I have effectively disposed of grounds 3 and 4. Notwithstanding that it is my opinion that ground 2 has been made out, it is my view that the dismissal of the motion to review was appropriate and the appeal should therefore be dismissed.

SLICER J The appeal involves the questions of the effect of the failure of an accused person to give evidence and the appropriate test of review of a summary conviction.

2. The appellant was convicted by a Court of Petty Sessions of assaulting a police officer in the execution of duty contrary to the Police Offences Act 1935, s34B(1)(a)(i). The issue identified in the course of the hearing was the identity of the assailant. The appellant did not give evidence (although he had done so on the taking of evidence de bene esse) at the hearing but called two witnesses who deposed that on the night of the assault he was at St Helens, a considerable distance from the place of the alleged assault.

3. In relation to the appellant's failure to give evidence, the learned magistrate stated:

"The defendant did not give evidence. That of course is not

evidence but I can more confidently draw inferences from the

evidence that (sic) I otherwise could if the prosecution

evidence was contradicted"

"After considering all of the evidence I am satisfied beyond

reasonable doubt that the charge is proved."

4. The grounds relevant to the issues raised in this appeal were stated in the notice to review that the learned magistrate erred:

"... in holding that because the applicant had not given

evidence in his own defence that it was open to him to draw

an adverse inference against the applicant for failing to do

so"

"The conviction of the applicant upon the said offence was

against the weight of the evidence."

5. Leave was granted to amend the original notice to review (so as to permit the appellant to argue the question of unsafe and unsatisfactory finding) so as to read:

"... he so misdirected himself as to the evidence that his

finding of the complaint proved against the applicant was

unsafe and unsatisfactory in all the circumstances of the

case."

6. The learned primary judge dismissed the notice to review (Kelly v O'Sullivan A58/1994, unreported, available on SCALE). In relation to the ground that there had been a misdirection as to the inference which may be drawn from the failure to testify, his Honour stated:

"In the present case, the applicant went into the witness box

on a voire dire concerning disputed confessional evidence.

Accordingly, it could not be suggested that his failure to

give evidence about his whereabouts at the material time

might have arisen out of apprehension of curial proceedings,

giving evidence or being cross-examined. By calling evidence

from two witnesses the applicant sought to establish an alibi

for himself. The learned magistrate found that the evidence

did not establish an alibi for the applicant at the material

time. As the only person who knew with certainty where he

was at the material time, the applicant was the one with the

facts to contradict the evidence of the complainant, and

although the onus of proof never shifts, the observation of

the learned magistrate about the effect of the applicant's

failure to give evidence was a proper one in the

circumstances of the case."

and in relation to the question of unsafe and unsatisfactory verdict concluded that:

" ... a person who is aggrieved by an order of justices is

not entitled to have that order reviewed on the grounds that

it is unsafe or unsatisfactory in the sense expounded by the

High Court."

7. The appellant seeks to challenge those two conclusions on the following grounds:

1 The learned judge erred in law in holding that the

inferences which the learned magistrate drew from the

evidence upon the appellant not giving evidence in his own

defence, such inferences being adverse to the appellant, were

proper under the circumstances when such a conclusion was

based on;

(a) an application of the ultimate findings of fact made by

the learned magistrate to the principles laid down in

Weissensteiner v R [1993] HCA 65; (1993) 68 ALJR 23.

2 The learned judge erred in law in holding that the

appellant was not entitled to have his conviction reviewed on

the ground that his said conviction was unsafe and

unsatisfactory.

3 The learned judge erred in law in holding that

grounds 1, 3, 4 and 7 of the notice to review alleging

errors of fact were to be reviewed in the same way as an

appeal from the verdict of a jury.

4 The learned trial judge erred in law in failing to

determine grounds 3, 4, 7 and 1.

8. Ground 3 is incorrect and may be the result of a typographical error. The error does not affect the substance of the appeal.

9. The importance of the fundamental common law right of silence at every stage of an investigation and subsequent proceedings was recognised by the High Court in Petty v R [1991] HCA 34; (1991) 173 CLR 95 where, although primarily concerned with the situation involving an earlier allegation made on behalf of an accused person and its subsequent abandonment at trial, the majority pointed out at 99:

"An incident of that right of silence is that no adverse

inference can be drawn against an accused person by reason of

his or her failure to answer such questions or to provide

such information. To draw such an adverse inference would be

to erode the right of silence or to render it valueless."

"That incident of the right of silence means that, in a

criminal trial, it should not be suggested, either by

evidence led by the Crown or by questions asked or comments

made by the trial judge or the Crown Prosecutor, that an

accused's exercise of the right of silence may provide a

basis for inferring a consciousness of guilt."

10. In Tasmania the right to remain silent during the course of a criminal trial is recognised by the Evidence Act 1910, s85(4):

"In criminal proceedings, the defendant has a right to give

evidence on his own behalf and on behalf of any person who is

jointly charged with him if that person requests him to do

so, but in no circumstance may the defendant be compelled to

give evidence in the proceedings."

"The prosecutor shall not, in any criminal proceedings,

comment on the failure of the defendant to give evidence in

the proceedings, but he may comment on the failure of any

other person, including the spouse of the defendant, to give

evidence in the proceedings."

11. The prohibition against counsel commenting on the failure to give evidence does not prevent the trial judge from telling a jury that an accused person possessed the right to give evidence (see R v Anastasiou (1991) 21 NSWLR 394) and that the failure to proffer an explanation about some matter which might be expected to be within the knowledge of an accused might be relevant to the question of innocence. The High Court in May v O'Sullivan (1955) 92 CLR 655 at 658 adopted the following statement of Napier J in the judgment of the Full Court in Wilson v Buttery (1926) SASR 150:

"When this stage has passed and the defendant has been called

upon for his explanation or answer, and no evidence has been

forthcoming, the Court or jury is entitled to take into

consideration the probable means of knowledge on either side.

If the truth is not easily ascertainable by the prosecution,

but is probably well known to the defendant, then the fact

that no explanation or answer is forthcoming as might be

expected if the truth were consistent with innocence, is a

matter which the Court or jury may properly consider."

as being "unexceptional and to contain an accurate statement of the law".

12. There is a distinction between the making of a comment concerning the failure to give evidence (which after all is an exercise of a common law and statutory right) generally, and the failure to provide an account of some material fact or event which was within the personal knowledge of an accused. In such a case it is permissible to advise a jury that they might use the absence of such an account as part of their inferential process of assessing guilt or innocence from the failure of the accused to give evidence of relevant facts which could be perceived to be within his or her knowledge. In Weissensteiner v R [1993] HCA 65; (1994) 68 ALJR 23 the High Court dealt with a case primarily dependent on circumstantial evidence in which the trial judge, having advised the jury that the accused bore no onus to prove anything, was not obliged to give evidence and that no inference of guilt could be drawn from his failure to do so, pointed out that there was no evidence from the accused to add to or explain or to vary or contradict the evidence put before the jury by the prosecution, and concluded:

"Moreover, this is a case in which the truth is not easily,

you might think, ascertainable by the prosecution. It asks

you to infer guilt from a whole collection of circumstances.

It asks you to draw inferences from such facts as it is able

to prove. Such an inference may be more safely drawn from

the proven facts when an accused person elects not to give

evidence of relevant facts which it can easily be perceived

must be within his knowledge. You might, for example, think

in this case it requires no great perception that the accused

would have direct knowledge of events which can be canvassed

only obliquely from the point of view of seeking to have you

draw an inference from the evidence which has been led by the

Crown. The use that you make of the fact that there is no

evidence given or called by the defendant is that."

13. In upholding the correctness of that direction Mason CJ, Deane and Dawson JJ, in a joint judgment, stated at 28-29:

"The failure of the accused to give evidence is not of itself

evidence. It is not an admission of guilt by conduct. It

cannot be, because it is the exercise of a right which the

accused has to put the prosecution to its proof. In some

other circumstances, silence in the face of an accusation

when an answer might reasonably be expected can amount to an

admission by conduct. But when an accused elects to remain

silent at trial, the silence cannot amount to an implied

admission. The accused is entitled to take that course and

it is not evidence of either guilt or innocence. That is why

silence on the part of the accused at his or her trial cannot

fill in any gaps in the prosecution case; it cannot be used

as a make-weight. It is only when the failure of the accused

to give evidence is a circumstance which may bear upon the

probative value of the evidence which has been given and

which the jury is required to consider, that they may take it

into account, and they may take it into account only for the

purpose of evaluating that evidence. The fact that the

accused's failure to give evidence may have this consequence

is something which no doubt an accused should consider in

determining whether to exercise the right to silence."

14. This was in part because uncontradicted evidence is easier or safer to accept than contradicted evidence but also 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."

15. In their joint judgment, at 32-33, Brennan and Toohey JJ held that:

"It follows that, in Queensland and in other jurisdictions

where there is no statutory prohibition against judicial

comment, a judge may tell the jury that where the facts which

they find to be proved by the evidence can support an

inference that the accused committed the offence charged and

where it is reasonable to expect that, if the truth were

consistent with innocence, a denial, explanation or answer

would be forthcoming, the jury may take the accused's failure

to give evidence into account in determining whether the

inference should be drawn."

and adopted the approach taken in R v Guiren (1962) NSWR 1105 at 1107 that:

"it is legitimate to have regard to the fact that the accused

has given no evidence or explanation or satisfactory

explanation of the Crown case as a consideration making the

inference of guilt from the evidence for the prosecution less

unsafe than it might otherwise possibly appear."

16. The Australian approach is consistent with that adopted by the English Court of Appeal in R v Martinez-Tobon (1994) 2 All ER 90 where Lord Taylor CJ, at 98, considered that the following principles apply where a defendant does not testify:

"(2) The essentials of that direction are that the defendant

is under no obligation to testify and the jury should not

assume he is guilty because he has not given evidence. (3)

Provided those essentials are complied with, the judge may

think it appropriate to make a stronger comment where the

defence case involves alleged facts which (a) are at variance

with prosecution evidence or additional to it and

exculpatory, and (b) must, if true, be within the knowledge

of the defendant. (4) The nature and strength of such

comment must be a matter for the discretion of the judge and

will depend upon the circumstances of the individual case.

However, it must not be such as to contradict or nullify the

essentials of the conventional direction."

17. In Canada, a more stringent approach has been taken by the Supreme Court in R v Francois (1994) 91 CCC (3d) 289:

"In any event, subject to the caveat that failure to testify

cannot be used to shore up a Crown case which otherwise does

not establish guilt beyond a reasonable doubt, a jury is

permitted to draw an adverse inference from the failure of an

accused person to testify: Kolnberger v R, (1969) 3 CCC 241,

2 DLR (3d) 409, (1969) SCR 213; Corbett v R (1973), 14 CCC

(2d) 385, 42 DLR (3d) 142, (1975) 2 SCR 275; R v Vezeau

(1976), 28 CCC (2d) 81, 66 DLR (3d) 418, (1977) 2 SCR 277,

and also R v Johnson (1993), 79 CCC (3d) 42, 21 CR (4th) 336,

12 OR (3d) 340 (CA)." (Per McLachlin J at 295)

"The inferences which can properly be drawn from an accused's

failure to testify have previously been discussed by this

court in Kolnberger v R, (1969) 3 CCC 241, 2 DLR (3d) 409,

(1969) SCR 213, and R v Vezeau (1976), 28 CCC (2d) 81, 66 DLR

(3d) 418, (1977) 2 SCR 277, and more recently by the Ontario

Court of Appeal in R v Johnson (1993), 79 CCC (3d) 42, 21 CR

(4th) 336, 12 OR (3d) 340. These cases make it clear that,

where the accused does not testify, it is open to the jury to

draw the inference that he or she could not have raised a

reasonable doubt in the face of convincing Crown evidence.

However, it is not permissible for a jury which is not

otherwise convinced that the Crown has proven guilt beyond a

reasonable doubt to infer from the fact that the accused has

not testified that he must be guilty. In other words, where

the Crown has proven its case beyond a reasonable doubt, the

absence of the accused's testimony may indicate that he or

she is unable to raise a reasonable doubt as a basis for

acquittal, but this lack of testimony cannot otherwise be

used to strengthen the Crown's case where the Crown has

fallen short of proving guilt."

18. Four other justices of that Court concurred with the judgments of McLachlin and Major JJ.

19. The appellant refined the argument by contending that the appellant's calling of evidence from two witnesses involved the legal consequence that the principles stated in Weissensteiner had no application to the proceedings. An examination of the evidence shows that the refinement has no validity, even if the proposition is correct. One witness stated that she had seen the appellant at St Helens at 2.00am and 9.00am. The second witness averred that he had seen the appellant at St Helens at 7.30am. The issue concerned the presence of the appellant at Evandale at about 4.45am. That evidence was not contradicted by evidence given by the appellant or any of his witnesses, and in that respect the magistrate was entitled to apply the test as he did.

20. The prosecution case was that the appellant had assaulted a police officer at Evandale at approximately 4.45am. The issue was one of identification. The evidence led on his behalf was to the effect that he could not have committed the assault since he had spent the night at St Helens, a considerable distance away. Knowledge of his own whereabouts was a matter which comes within the test stated by the High Court. The magistrate, in addressing his mind to the absence of testimony from the appellant, stated three propositions:

- that the absence of evidence is not of itself evidence;

- that he could act with more confidence

- in drawing inferences from uncontradicted evidence than

contradicted evidence.

21. In directing his mind in this manner he did not transgress the principles stated in Weissensteiner.

23. These grounds, comprised in grounds 2, 3 and 4 of the notice of appeal are that:

- the relevant test to be applied in determining an appeal

from a court of summary jurisdiction is identical to that

required of a review of a jury verdict; and

- the learned primary judge applied a more stringent test.

24. The learned primary judge determined that the scope of the review was defined by statute and further that the motion to review contained no ground that the order was unsafe and unsatisfactory. This latter point was canvassed during the hearing of this appeal and to enable the central argument to be properly put, the original ground appearing in the notice to review was amended.

25. The basis on which a person aggrieved by an order of a Court of Petty Sessions may seek review is set out in the Justices Act 1959, s107(4) which provides that:

"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."

26. The Act, s108, confines an applicant to the ground or grounds set forth in the notice, unless amendment be allowed. It is procedural in nature and could not be taken as affecting the substantive basis of a motion to review.

27. The powers afforded the Supreme Court by the Act, s110 are extensive. That section provides:

"(2) On the hearing of a motion to review, the court shall,

upon consideration of the evidence and materials adduced and

brought before the justices and such further evidence (if

any) as it thinks fit, review the order so far as relates to

the ground set forth in the notice to review, and thereupon

may do all or any of the following things, namely:

(a) dismiss the motion;

(ab) in a case where the court considers that no substantial

miscarriage of justice has occurred even though the cause or

matter raised by the motion might be decided in favour of the

applicant, dismiss the motion;

(b) confirm, vary, amend, rescind, set aside, or quash the

order reviewed;

(c) remit the cause or matter to the justices by whom it was

dealt with, either with or without any direction in law;

(d) order that the cause or matter be re-tried by a

magistrate;

(e) prohibit the justices concerned, or any other person,

from proceeding or further proceeding in respect of the

order;

(f) amend or cause to be amended, on such terms as are just,

any defect or error in any proceedings before the justices;

(g) make all such orders and cause all such proceedings to be

had and taken as the court thinks necessary to secure a final

determination of the cause or matter on the merits;

(h) exercise, in addition to any other powers conferred by

this section, any power which the court might exercise upon

certiorari, mandamus, prohibition, or habeas corpus;

(i) exercise any power that might have been exercised by the

justices in relation to whose order the motion to review is

made.

(3) On the hearing of a motion to review, all such amendments

shall be made under subsection (2) (f) as may be necessary

for the purpose of determining the cause or matter on the

merits."

28. The section requires a consideration "of the evidence and materials adduced" and a review of the order "so far as relates to the ground set forth in the notice to review". It does not seek to delimit the error or mistake required to be identified by the operation of the Act, ss107 or 108.

29. The provision contained in the Justices Act 1959 can be compared with that in the Criminal Code, s402(1) which provides:

"On an appeal the Court shall allow the appeal if it is 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 ... ."

30. That form of statutory provision has received comprehensive interpretation by the High Court. See Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657, Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, Morris v R [1987] HCA 50; (1987) 163 CLR 454 and Chidiac v R [1991] HCA 4; (1990-1991) 171 CLR 432.

31. The power afforded by the Code is wider than that provided in the Justices Act. There need not be a specific demonstrated error or mistake identified for there to be a finding of miscarriage of justice. There may be a miscarriage of justice without error. That distinction has been recognised by the High Court in Hargan v R [1919] HCA 45; (1919) 27 CLR 13 where Isaacs J said at 23:

"Now, before the Criminal Appeal Act, doubtless, the question

would have been whether there was error in law, that is,

strict law, as distinguished from practice. But the essence

of the matter here is that sec 6 of the Criminal Appeal Act

states three grounds on which an appeal 'shall' prima facie

be allowed, viz: (1) verdict unreasonable or not supportable

on the evidence; (2) error in law; (3) miscarriage of justice

on any other ground. It is the third ground that was relied

on principally in the Supreme Court, was entertained and

passed upon there, and is relied on here; and that is what I

call the essence of the case. It is, therefore, not an

answer to the appellant to say that what he complains of is

not an error in strict law. If he can show a miscarriage of

justice, that is sufficient. That is the greatest innovation

made by the Act, and to lose sight of that is to miss the

point of the legislative advance."

and by the English Court of Appeal in a case involving the Criminal Appeal Act 1968, s2(1) in which Widgery LJ said:

"However, now our powers are somewhat different, and we are

indeed charged to allow an appeal against conviction if we

think that the verdict of the jury should be set aside on the

ground that under all the circumstances of the case it is

unsafe or unsatisfactory. That means that in cases of this

kind the court must in the end ask itself a subjective

question, whether we are content to let the matter stand as

it is, or whether there is not some lurking doubt in our

minds which makes us wonder whether an injustice has been

done. This is a reaction which may not be based strictly on

the evidence as such; it is a reaction which can be produced

by the general feel of the case as the court experiences it."

(R v Cooper (1969) 1 QB 267 and 271.)

32. The question was addressed by the High Court in M v R [1994] HCA 63; (1994) 126 ALR 325:

"Where a court of criminal appeal sets aside a verdict on the

ground that it is unreasonable or cannot be supported having

regard to the evidence, it frequently does so expressing its

conclusion in terms of a verdict which is unsafe or

unsatisfactory. Other terms may be used such as 'unjust or

unsafe' (see Davies and Cody v R [1937] HCA 27; (1937) 57 CLR 170 at 180),

or 'dangerous or unsafe' (see Ratten v R (1974) 131 CLR at

515). In reaching such a conclusion, the court does not

consider as a question of law whether there is evidence to

support the verdict (see Raspor v R [1958] HCA 30; (1958) 99 CLR 346 at

350-351; Plomp v R [1963] HCA 44; (1963) 110 CLR 234 at 246, 250).

Questions of law are separately dealt with by s6(1). The

question is one of fact which the court must decide by making

its own independent assessment of the evidence (Morris v R

[1987] HCA 50; (1987) 163 CLR 454) and determining whether, notwithstanding

that there is evidence upon which a jury might convict, 'none

the less it would be dangerous in all the circumstances to

allow the verdict of guilty to stand' (see Hayes v R (1973)

47 ALJR 603 at 604). But a verdict may be unsafe or

unsatisfactory for reasons which lie outside the formula

requiring that it not be 'unreasonable' or incapable of being

'supported having regard to the evidence'. A verdict which

is unsafe or unsatisfactory for any other reason must also

constitute a miscarriage of justice requiring the verdict to

be set aside." (Per Mason CJ, Deane, Dawson and Toohey JJ at

328.)

33. Brennan J, in dissenting, adopted the more restrictive approach:

"A broader function for an appellate court has been

suggested, namely, to determine whether 'there is some

feature of the evidence which raises a substantial

possibility that the jury may have been mistaken or misled':

Morris v R [1987] HCA 50; (1987) 163 CLR 454 at 472-473. In Carr v R (1988)

[1988] HCA 47; 165 CLR 314 at 333-334 I attempted to explain that that

proposition, which owes its origin to a phrase in the

judgment of the Court in Davies and Cody v R (supra), cannot

authorize the setting aside of a verdict as unsafe and

unsatisfactory when the verdict is supported by evidence on

which a jury, acting reasonably, could have convicted and

when there is no blemish in the conduct of the trial. Of

course, where evidence that is inherently but not manifestly

suspect is placed before a jury without a warning about its

suspect nature - for example, identification evidence as in

Davies and Cody v R - an appellate court may well conclude

that the verdict is unsafe and unsatisfactory (Bromley v R

[1986] HCA 49; (1986) 161 CLR 315 at 324-325; Carr v R (1988) 165 CLR at

329-330). But that is because of the absence of the

warning." (at 335-336.)

34. The note of caution expressed by Brennan J should be borne in mind. A review on the basis that a verdict or finding was unsafe or unsatisfactory should not entitle an Appellate Court to simply substitute its own conclusion. But if it is satisfied that on the evidence, paying regard to the fact finder's advantage of involvement in the complex dynamics of a trial, that there exists a reasonable doubt, then there exists a proper basis for intervention.

35. But the test of an unsafe verdict is not necessarily encompassed by the term "miscarriage of justice". The absence of that phrase from the Justices Act, s107 does not confine the test of "error or mistake" so as to exclude an evaluation of whether the fact finder, acting reasonably, ought to have entertained a reasonable doubt as to the guilt of the person charged. It does not follow that the test of unreasonableness or insufficiency of evidence is different from that of error or mistake. That question is fundamental to the trial process. As was observed by Mason CJ, Deane, Dawson and Toohey JJ in M v R (supra) at 327:

"Nevertheless, the criminal appeal provisions which are in

common form in this country allow a verdict that is unsafe or

unsatisfactory to be set aside, notwithstanding that those

words do not appear in the legislation."

36. Summary trial or trial by jury require equally that the "fact finder" be satisfied as to guilt beyond reasonable doubt. As Gibbs CJ and Mason J stated in Chamberlain (No 2) (supra) 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."

37. That does not mean that the test is whether or not the Appellate Court agrees with the verdict. It does not. But the test is predicated on the requirement that the appropriate tribunal be satisfied beyond reasonable doubt as to guilt. If the evidence is not sufficient to meet that requirement, then the verdict can be described as being unsafe or unreasonable. In the words of Cox J in Greaves v Aikman A81/1994 (unreported, available on SCALE) at 10:

"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."

38. That approach is consistent with that stated by the High Court in M v R (supra) where, in the joint judgment of Mason CJ, Dean, Dawson and Toohey JJ, it was stated at 329:

"In most cases a doubt experienced by an appellate court will

be a doubt which a jury ought also to have experienced. It

is only where a jury's advantage in seeing and hearing the

evidence is capable of resolving a doubt experienced by a

court of criminal appeal that the court may conclude that no

miscarriage of justice occurred. That is to say, where the

evidence lacks credibility for reasons which are not

explained by the manner in which it was given, a reasonable

doubt experienced by the court is a doubt which a reasonable

jury ought to have experienced. If the evidence, upon the

record itself, contains discrepancies, displays inadequacies,

is tainted or otherwise lacks probative force in such a way

as to lead the court of criminal appeal to conclude that,

even making full allowance for the advantages enjoyed by the

jury, there is a significant possibility that an innocent

person has been convicted, then the court is bound to act and

to set aside a verdict based upon that evidence. In doing

so, the court is not substituting trial by a court of appeal

for a trial by jury, for the ultimate question must always be

whether the court thinks that upon the whole of the evidence

it was open to the jury to be satisfied beyond reasonable

doubt that the accused was guilty."

39. In 1974 the Justices Act was amended by Act No 108 of 1974. The amendment removed the right to a hearing de novo (s113) and replaced it with a procedure whereby a rehearing could be held with the leave of the court. The Act, s111(4) provides:

"An order shall not be made under subsection (1) unless the

court is satisfied that, having regard to all the

circumstances, the interests of justice require that the

complaint be reheard de novo."

40. It would be open to an aggrieved party to contend that the finding was "unsafe or unsatisfactory" and to seek relief by way of the Act, s111. If the court was persuaded that such were the case, the only power would be the ordering of a hearing "de novo", such hearing to be by the Appellate Court. Such a dichotomy between the powers afforded by the operation of s107 and s111 would be unsatisfactory. Parliament ought not to be taken, in repealing the right of rehearing, to have limited the operation of the review process by delimiting the grounds of perceived error. That reading of the legislative scheme is consistent with the history of the Act (and its predecessors) and judicial authority expressed in relation to it. See Brown v Aylett (1916) 12 Tas LR 32, Hill v Davies (1917) 12 Tas LR 25, Bedelph v Weedon (1963) Tas SR 69, Richardson v Shipp (1970) Tas SR 105.

41. There are a number of reasons why the same test should be applied to both the Code and the Justices Act: The Act, Pt VIII provides for the summary trial of certain crimes proscribed by the Criminal Code. With respect to some forms of crime the forum of proceedings is mandatory, with others it is at the option of the person charged. The crime is deemed to be a simple offence. The procedure, albeit efficacious to the administration of justice, does not change the nature of criminal law. It would be incongruous if the basis of review differed or possessed differing standards.

42. Although the nature of the crimes which may be dealt with summarily are less serious than those which may only be tried by jury, it could never be that differing standards of the application of the criminal law depend on the severity of penalty. To apply a test of unsafe verdict to a finding by a jury and a different standard to that of a judicial officer would belie a lack of confidence in the jury process whilst intimating that judicial officers are remiss in their approach to the concept of reasonable doubt. Both approaches are unfounded.

44. Both parties to the appeal submitted that in the event that this Court concluded the appropriate test to be that of an unsafe or unsatisfactory finding, then this Court should determine the motion to review. That is an appropriate course to adopt.

45. The evidence adduced at the hearing of the complaint is comprehensively set out by the learned primary judge in his judgment A58/1994. On the test adopted it could not be said that the finding made by the magistrate was either unsafe or unsatisfactory. The officer who had been assaulted deposed:

"... and I observed the driver of the ute get out of the ute.

He was wearing dark clothing and a balaclava and I saw him

run through the garden of that residence. I also saw a

passenger get out from the ute. He was also wearing dark

clothing and a balaclava and he ran back into Macquarie

Street and then back in a Westerly direction up Barclay

Street and I pursued this person on foot. I ran after this

person for about 70 metres before shouting out, 'Stop.

Police'. I observed the person glance over their shoulder,

they were still wearing a balaclava at this time, continued

to run for about another 10 metres where they turned left and

ran into a vacant block where I caught them. As I caught

them I then shouted out 'Stop. Police' and I grabbed them

from behind on the right shoulder. The person immediately

turned around and punched me. This blow hit me to the right

side of my face and just below the right eye. I responded by

grabbing the balaclava which I removed from that person's

head and I then observed a male person who I know to be Shane

Kelly of Rossarden, the defendant now present in court."

She further stated that there was a full moon, the night was clear and there was street lighting in the vicinity. She had previously met the man she claimed to recognise on more than one occasion. She was able to provide a physical description of the assailant. In all respects other than that of the identity of the assailant, her evidence was corroborated. The magistrate found "Constable Rushton's evidence a most impressive witness and there was nothing arising from the evidence which caused me to doubt her evidence and I accept her evidence".

46. The magistrate found that the evidence of the two witnesses called on behalf of the appellant did not "singly and collectively ... raise any reasonable doubt the defendant could have had an opportunity of being at Evandale at approximately 4.47am that morning".

47. That conclusion was reasonably open to the magistrate. The process of review by way of the test of unsafe verdict is no mere paper exercise. It must accommodate the process whereby the original tribunal heard and saw the witnesses and was able to make an assessment of credibility and accuracy. That process is inadequately transferred to the written word. An Appellate Court could not simply determine a conflict between two witnesses by reference to a numerical balance. As Brennan J concluded in M v R (supra) at 337:

"In my opinion, when an appellate court is faced with an

appeal against conviction in which no more appears than a

conflict between evidence that is sufficient in law to

support the conviction and evidence tending to show that the

appellant is not guilty, that court has but one function to

perform. That function is to determine whether a jury,

acting reasonably and appreciating the burden and standard of

proof, could have convicted on the evidence available to

support the conviction."

48. In this case the magistrate was entitled to accept the evidence of the police officer. Having done so he was entitled to make a finding of guilt beyond reasonable doubt.