1 That the learned magistrate erred in law and/or in fact by proceeding to convict the applicant without having heard the evidence of one Steven Cole who was able to give relevant evidence.

2 That the learned magistrate erred in law and/or in fact in that having heard evidence that it was claimed that the said Steven Cole and not the applicant had committed the relevant offences, he failed to enquire as to why Cole was not called as a witness, he failed to advise the applicant as to the desirability of Cole being called as a witness, he failed to issue a summons or a warrant to compel the attendance of Cole, and he proceeded to convict the applicant without first having heard evidence from Cole.

3 That the learned magistrate erred in law and/or in fact in drawing an inference adverse to the applicant based upon the failure to call Steven Cole to give evidence.

2 The complaint charged the applicant with unlawfully assaulting one Jason Bolton by punching him to the face, and with unlawfully assaulting one Gregory Dawson by kicking him to the head, taking hold of him by the hair and hitting his head on the ground. Each of these offences was alleged to have occurred on 5 October 1990. It is appropriate to summarize the effect of the prosecution case as it was put before the learned magistrate. In the early hours of 5 October 1990, Bolton, an off duty police officer, was walking in Brisbane Street towards the Launceston Hotel when three male persons, one of whom was the applicant, emerged from the hotel and walked towards Bolton. One of the men bumped into Bolton. Bolton turned to ask why but was then punched in the face by the applicant. The incident was seen by police officers from the Licensing Branch, but the applicant managed to elude them. The officers went searching for the applicant. They entered Yorktown Square on two occasions for that purpose. On leaving Yorktown Square on the second occasion they proceeded to Cameron Street. In that street they observed the applicant on top of Dawson. The applicant had Dawson by the hair, and bashed Dawson's head against the footpath. Moments earlier the applicant had kicked Dawson to the head. The officers arrested the applicant. In so far as the first charge was concerned, there was evidence from Bolton, one Prue Connell and the two licensing officers, 1/C Const Price and Const O'Dwyer, which, if accepted, established the commission of the offence by the applicant. In so far as the second charge was concerned, evidence was called from Price and O'Dwyer, as well as from a large number of civilian witnesses, Deanne Donnellan, Geoffrey Handy, Leonard Kusnezow and Timothy Richardson. Whilst not all witnesses claimed to have seen the whole of the relevant episode, the totality of their evidence was such that there was an extremely strong case against the applicant. In particular a number of the civilian and apparently independent witnesses said that they had seen the applicant kick Dawson. Dawson was rendered unconscious and claimed to have no recollection of the incident.

3 The applicant gave evidence that on the morning in question he had been in the company of Gregory Cole, Steven Cole and Paul Munro. He said that he accidentally bumped into Bolton, who then raised his hand, whereupon it was Steven Cole who hit Bolton. There was no dispute that Bolton was hit. The dispute was as to the identity of the assailant. The applicant gave evidence of later events in Cameron Street. He said that Dawson "shaped up to" Steven Cole, whereupon Cole hit Dawson, who fell to the ground. The applicant said that Dawson then grabbed him around the neck and that they wrestled to the ground. He said that a short time later, Steven Cole came running up and kicked Dawson. He said that the police then dragged him off Dawson. There was no dispute that Dawson was kicked. The dispute was as to the identity of the attacker. The applicant denied that anyone had grabbed hold of Dawson's head or had hit it on the ground. The applicant called Gregory Cole to give evidence. To some extent he corroborated the applicant's version of both episodes. Neither Steven Cole nor Paul Munro were called to give evidence.

4 No explanation was given to the learned magistrate as to why Steven Cole was not called as a witness. It would have been apparent to the learned magistrate from the evidence given before him that Steven Cole, in common with the applicant and his other companions, resided in Victoria. In the course of counsel for the applicant (who was not counsel who appeared before me) making closing submissions, the learned magistrate said to him, "You're not calling him - Steven Cole?" Counsel told the learned magistrate that he was not calling him. He offered no explanation and the matter was not adverted to again.

5 During the course of expressing his reasons for finding both matters of complaint proved, the learned magistrate made the following observations:

"His defence simply is that he was not the assailant, rather it was one Steven Cole whom he nonetheless did not call to give evidence on his behalf. There was no explanation for this extraordinary failure to call this most vital witness for the defence, and I draw an inference adverse to the defendant regarding it. He did call Cole's brother, which makes one wonder perhaps even more, why he did not call Steven Cole himself. Frankly however, those considerations I have not found to be at all critical regarding this decision which is easily made without any regard to the adverse inference referred to amounting to no more than an additional helping, so to speak, to an already full plate which takes one well beyond the boundary of being satisfied of the defendant's guilt beyond reasonable doubt."

6 In the light of the nature of at least some of the grounds upon the basis of which the review is sought, I heard evidence relating to issues which, by their very nature, arise out of material which was not before the learned magistrate. The respondent did not oppose my taking that course. The evidence was in the form of affidavits of the applicant and of Steven Cole and oral evidence given by both deponents. In addition the parties placed before me a statement of agreed facts.

7 Upon the basis of the evidence which I received and the statement of agreed facts, I find the following relevant facts:

1 The applicant instructed a solicitor in Melbourne to act for him in relation to the prosecution.

2 That solicitor instructed a practitioner in Launceston to appear for the applicant on the hearing.

3 Neither of the applicant's legal advisers provided the applicant with any sufficient advice as to the importance of Steven Cole being called as a witness.

4 The applicant's Melbourne solicitor advised the applicant that the law provided no mechanism whereby the attendance of Steven Cole, as a witness, could be enforced. Such advice was, of course, quite wrong.

5 The applicant's Melbourne solicitor advised the applicant that Steven Cole had an absolute right to refuse to answer any questions the answer to which might incriminate him. Again, that advice was quite wrong. At the time of giving that advice, the solicitor was unaware of the provisions of ss87 and 89 of the Evidence Act 1910.

6 The Melbourne solicitor prepared an affidavit which was sworn by Steven Cole and was made available to the Launceston practitioner. The latter did not make any endeavour to have it introduced into evidence. In that affidavit Cole admitted that he had committed some of the acts said to constitute the offences with which the applicant was charged.

7 The applicant did not at any time ask Steven Cole to attend to give evidence. He did not do so because he believed that the affidavit of Steven Cole and the oral evidence of Gregory Cole would be sufficient. That belief was induced by the advice given by the Melbourne solicitor.

8 Had the applicant been properly advised as to the importance of Steven Cole being called as a witness, he would at least have asked Steven Cole to attend and might have sought to enforce his attendance.

8 In support of the first ground upon which it is sought to review the convictions, counsel for the applicant submits that the error complained of amounts to an unwitting error on the part of the learned magistrate and that such an error is capable of constituting an error or mistake within the meaning of s107(4)(a) of the Justices Act 1959. For that submission, he relied upon two decisions of the Full Court of the Supreme Court of Queensland, namely Bick v Morelli, ex parte Morelli [1969] Qd R 94 and Kimmorley v Atherton; ex parte Atherton [1971] Qd R 117. In the first of those cases the appellant had been convicted on a plea of guilty of driving a motor vehicle whilst under the influence of liquor. A breathalyser test had revealed that at the time he allegedly committed the offence the appellant had a blood alcohol level of .01%, but this fact was not disclosed to the court. Rather the court was informed by the prosecutor that a breathalyser test had been taken but had proved "not satisfactory". In the course of giving the leading judgment, Hart J, at pp98-99, said:

"... It was plainly the duty of the police officers to see that the Magistrate was informed of the result of the breathalyser test made by Dr Halberstater. The failure to do this was a very serious breach of duty. If the Magistrate had been informed of it, it would have been his immediate duty to enter a plea of not guilty and to proceed to hear and determine the matter. The appellant should not be adversely affected because of a failure of duty on the part of the prosecution.

Under s 209 of The Justices Acts, an applicant for an order to review is required to show either a prima facie case of error or mistake in law or fact or a lack of jurisdiction, but in my view the error or mistake can be an unwitting error or mistake."

9 With respect to his Honour, I find it difficult to see that the circumstances of that case were such that had the magistrate been informed of the breathalyser reading he would have had an immediate duty to enter a plea of not guilty. Whilst the existence of the reading might have made it desirable for the magistrate to have queried with the appellant his plea of guilty, the level of the reading did not per se constitute a defence to the offence charged in the absence of some express statutory provision to that effect. Proof of such a blood alcohol content at the relevant time, perhaps coupled with evidence of what it meant in terms of alcohol consumption, might well have raised a reasonable doubt as to the appellant's guilt, but it could not have done more than that. Be that as it may, his Honour held that the error or mistake referred to in the Queensland Act (which, for practical purposes, is indistinguishable from s107(4)(a) of the Justices Act) might be no more than an unwitting error or mistake. The other members of the court concurred, although Lucas J expressed some residual doubts. It ought not to be overlooked that in that case the Crown did not show cause against the order nisi being made absolute and the conviction being quashed.

10 Kimmorley v Atherton; ex parte Atherton (supra) was a case where the appellants had pleaded guilty to charges of aggravated assault. Photographs taken at or about the time that the offences were said to have been committed were put before the Full Court and they were indicative of the offences not having been committed. The appellants were young persons who were without the benefit of any advice, had no real understanding of the ingredients of the offences charged and wished to avoid any publicity. Accordingly they pleaded guilty.

"For this court to interfere under s 209 of The Justices Acts there must be 'a prima facie case of error or mistake in law or fact' on the part of the stipendiary magistrate. This Court in Bick v Morelli, ex parte Morelli [1969] Qd R 94 held that such error or mistake can be an unwitting error or mistake. Surely it must be an unwitting error or mistake to accept a plea of guilty in circumstances where there quite obviously is no offence committed. No stipendiary magistrate in his right senses, and no court for that matter, would accept a plea of guilty when he or it was informed by objective evidence that there had been no offence committed which could provoke the plea. When such evidence existed and the stipendiary magistrate unaware of it records a conviction I cannot see where this Court has not the power to step in and correct his unwitting error."

12 Similar views were expressed by Hoare J, at pp142-143:

"... If a magistrate records a conviction against a person as for an offence which he did not commit it is surely an 'error or mistake' on the part of the magistrate. To take a different view is surely an exercise in extreme cynicism. The fact that he may have been led into error by the defendant himself is irrelevant when considering whether or not the act of the magistrate constituted an 'error or mistake' although it is highly relevant to the question whether or not an appellate court will interfere. Notwithstanding an array of dicta to the contrary (eg Halfpapp v Bateman [1951] QWN 19; Fursman v Blackman [1953] St R Qd 33; Di Camico (sic) v Wilcox [1964] WAR 44; Thompson v Marilyn [1964] WAR 136; Hallahan v Campbell; ex parte Campbell (No. 2) [1964] Qd R 337) it seems to me that a straight-forward approach such as that adopted by Scott LJ in Dick v Piller [1943] KB 493 surely gives the sensible answer that every miscarriage of justice involves an error or mistake. It would be repugnant to common-sense to assert that a conviction recorded against an innocent man is not 'an error or mistake'. It would seem that the courts have tended to look beyond the primary question as whether there is in fact an error or mistake, to other circumstances not really relevant to that question. Fairly obviously the proper course is for the appeal court to look at the matter objectively as a matter affecting the defendant and not subjectively as a matter affecting the magistrate.

In Bick v Morelli, ex parte Morelli [1969] Qd R 94 it was held that the error or mistake can be an unwitting error or mistake. I respectfully agree with that approach. Surely the primary consideration is whether there has been an 'error or mistake'. If there has been an 'error or mistake', the appellate court has jurisdiction to entertain the appeal. Whether it exercises it is another matter."

13 Hanger SPJ dissented and referred to the earlier case of Fursman v Blackman and Nicholls, Ex parte Blackman and Nicholls [1953] St R Qd 33 where Philp J (with whom the other members of the court agreed) said, at p35:

"... It is not suggested in any way before us that there has been any error or mistake made by the justices in that they were guilty of any error or mistake but it is suggested that the words 'error' and 'mistake' mean something wider, that they include the case where the justices have been led into a mistake by someone else's fraud. I doubt very much whether that is the meaning of the words in the Justices Acts."

In that case, the court found that there had been no fraud, so his Honour's observations were obiter. Hanger SPJ also referred to the availability of an alternative mode of appeal as being relevant to a construction of the section under consideration. The Justices Act formerly contained an alternative way of appeal by way of the former s113. Whilst that section has now been repealed and that alternative method of appeal is no longer available, that repeal ought not to affect the construction of s107(4). During the course of argument some passing reference was made to s111(5)(b). It may be that the draftsman intended that that provision operate so as to retain the former right of appeal in appropriate cases. If that was the intention of the draftsman, then his object has not been achieved. Before an order can be made under s111(1) upon the ground referred to in s111(5)(b), there must be in existence a valid notice to review. That notice must be a notice which satisfies the requirements of s107. If it does not, then it is not a motion to review (see Hesselman v Reid [1973] Tas SR 93). The benefit of s111(5)(b) is only available to an applicant who can raise an error on the part of the justices on the material before them. I would be surprised if the draftsman intended to limit the operation of this provision in this way. In any event, that provision is of no relevance in the present case as the applicant was represented by counsel.

14 Doubts have been expressed as to the correctness of the view that in the present context "error or mistake" includes an unwitting error or mistake. In the course of giving his reasons in the Full Court in Green v Fletcher [1988] TASSC 4; [1988] Tas R 59, Green CJ, in considering the meaning of the expression "error of fact" appearing in s76A of the Justices Act, expressed the following views, at pp61-62:

"A court may only make findings of fact which are based upon the materials which have been lawfully received by it. Therefore prima facie an error of fact means a finding of fact which is not supported by, or is in conflict with the materials before the court. In my view to characterise a finding of fact which was properly arrived at and which was supported by the materials before the court as an error of fact because it is subsequently shown by reference to other materials which were not before the court that the fact was otherwise than as found, would be an inappropriate use of language. The foregoing propositions derive support from the following cases in which it was held that statutory provisions which confer a right of appeal upon the ground that a court has made an error of fact do not extend to findings which can only be impugned by reference to materials or evidence which were not before the court originally: The Shamrock Brewing and Malting Coy v Schomann (1894) 16 ALT 5; Stuart v Phillips (1895) 17 ALT 61; Peek v Peek [1948] p46 (affirmed on appeal [1948] 2 All ER 297); Fursman v Blackman and Nicholls 1953, Sr R Qd 33, at p35; Catling v Catling (1956) 58 WALR 75, at p77; Hallahan v Campbell, Ex p Campbell [1964] Qd R 337, at p355; Cleaver v Powell 1979 Tas R 134, at p138; Wallington v Devries 1979 Tas R (NC) 11.

A different conclusion was reached in Bick v Morelli [1969] Qd R 94 and Kimmorley v Atherton, Ex p Atherton [1971] Qd R 117 in which it was held that what was described as an 'unwitting error' on the part of a magistrate was capable of being regarded as an error of fact. However those decisions seem to be in conflict with the two earlier Queensland decisions I have cited and they were not unanimous decisions: see Hanger SPJ's vigorous and well reasoned dissent in Kimmorley v Atherton (supra) and his statement at p127 that the scope of the section containing the phrase 'is very much in issue as the cases stand at present'. See also Lucas J's lukewarm assent to the majority view in Bick v Morelli (supra, at p99). In addition, in each case it appears that the court was influenced more by its view of the desirability of adopting a construction which would enable it to remedy an injustice, rather than by its view of the meaning of the phrase 'error of fact': see the statement of Hoare J in Kimmorley v Atherton (supra, at p142) that 'every miscarriage of justice involves an error or mistake' and the observation by Hart J in Bick v Morelli (supra, at p99) that 'it would be wrong if this court could not intervene'. Considerations of that kind have no relevance in the present case because the scope and operation of s76A have no effect upon the scope of this court's powers to review magistrates' decisions. Insofar as they are relevant I prefer to be guided by the other authorities which I have cited."

15 The question is whether the existence of error or mistake on the part of justices is to be determined by reference to the material before the justices, or whether it is to be determined by reference to all available material whether or not that material was before the justices. I find it difficult to see how it can be said that justices have made an error or a mistake when such error or mistake cannot be identified by reference to the materials before them. That is the effect of the views expressed by Green CJ, with which I respectfully agree. Similar views were expressed by Hale J in Di Camillo v Wilcox [1964] WAR 44 and by the Full Court of the Supreme Court of Queensland on a consideration of a provision similar to s76A of the Justices Act in R. v Williams; ex parte Biggs [1989] 1 Qd R 594, as explained in Boyd v Sandercock; ex parte Sandercock [1990] 2 Qd R 26. I hold that the error or mistake on the part of the justices referred to in s107(4)(a) must be one which appears from the materials before the justices. It might be argued that the first ground of appeal does not even disclose an unwitting error or mistake, but assuming that it does, then it is not capable of constituting a ground upon which the orders of conviction may be reviewed. One cannot but have some sympathy for the applicant. He was not properly advised. Had he been properly advised his case might have been conducted differently. However Parliament has not seen fit to confer upon this court a power to review a conviction imposed by justices on the ground of an unwitting error or mistake.

16 I turn to the second ground upon which the review is sought. This complains of the learned magistrate having failed to take certain steps and having proceeded to convict the applicant without first hearing the evidence of Steven Cole. It is submitted that the learned magistrate ought to have enquired as to why Steven Cole was not being called by the applicant. The transcript of the proceedings before the learned magistrate does not disclose that the learned magistrate made any such enquiry and it is not suggested that he did. He did no more than to enquire as to whether or not Steven Cole was being called. It is submitted that the learned magistrate ought to have made further enquiry having regard to the inexperience of counsel who appeared for the applicant. It appears that he had been a legal practitioner for about a year. The transcript suggests that it must have been apparent to the learned magistrate that counsel was quite inexperienced. I mention one particular part of counsel's cross-examination of the prosecution witness, Kusnezow. In evidence-in-chief that witness had said that he witnessed an incident when he saw a person kick a man who was on the ground and then bash that man's head against the concrete footpath. He was unable to identify the applicant as being the person who committed those acts. Notwithstanding that, counsel deemed it appropriate to cross-examine the witness on the issue of identity, and the following exchanges occurred:

"Q If I put it to you that some other person kicked the complainant other than the defendant, would you deny that?

A I would, yes.

CORAM: I'm sorry?

A I would, yes.

Q You didn't know the defendant prior to this incident, did you, this gentleman here?

A No.

Q Have you seen him since that incident?

A Only now.

Q So you've seen him on two separate occasions?

A The night, whatever the date is, and now.

Q The 5th of October and today?

A M'mm.

Q Can you recollect any of his features, did he make a distinctive impression upon you?

A I do recognise him now, yes.

Q You're quite sure of that?

A Positive."

Whether the learned magistrate ought to have made such an enquiry of the applicant's counsel falls to be considered upon the basis of the material before him. Whether or not a magistrate ought to make such an enquiry was considered in general terms by Mitchell and Zelling JJ in Smith v Samuels (1976) 12 SASR 573 at p587, in the following terms:

"Any counsel and particularly any experienced counsel ... knows perfectly well that if he chooses not to call available witnesses, that may well be taken into account by the tribunal of fact in coming to its conclusion. Indeed it would be unwise and undesirable to place an onus upon a Magistrate to ask counsel such a question. Counsel may have very good reasons for not wishing to call the witness but may have equally good reasons for not desiring to inform the Court what those reasons are. In the present case he probably would not have wished to inform the Court that the two companions of the defendant were alleged to fall within the category of suspected persons. The position remains as the Magistrate found it to be. Counsel chose not to call the witnesses and he must take the consequences of not calling them if an inference adverse to his client is drawn from the absence of the possible witnesses from the witness box."

17 As a matter of general principle that is undoubtedly correct. The response or absence of a response to any such enquiry might have the effect of enabling a magistrate to more readily draw an adverse inference against a defendant who has not called an apparently available witness. Certainly any experienced counsel would be perfectly well aware of the consequences of not calling an apparently available witness. Particularly inexperienced counsel might not be aware of such consequences. The question is whether, notwithstanding the general principle, the circumstances of this case were such that it was incumbent upon the learned magistrate to make such enquiry and that the failure to make such an enquiry constitutes error. I have concluded that there was no such obligation upon the magistrate. The inexperience of counsel in itself made such an enquiry more hazardous. The learned magistrate directed counsel's attention to the matter and presumably alerted him to the fact that the learned magistrate considered it to be a matter of some significance. It was inappropriate for him to take the matter any further. For the same reasons, I do not consider it to have been incumbent upon the learned magistrate to advise the applicant that it was "desirable" to call Steven Cole. The learned magistrate could not possibly have known that it was desirable to call Steven Cole. For all he knew, had that person been called as a witness, he might well have given evidence adverse to the applicant's case. There is no basis for suggesting that the learned magistrate should have issued a summons or a warrant to compel the attendance of Steven Cole. Neither the respondent nor the applicant proposed calling him. Neither party asked the learned magistrate to call this person as a witness. Had such an application been made, it would probably have been refused. But the simple fact is that no one sought to have the witness called, so the occasion for the issue of a summons or a warrant did not arise. Having concluded that the learned magistrate did not err in failing to do certain things which the applicant submits he ought to have done, it follows that he did not err in proceeding to convict without first having heard evidence from Steven Cole. The second ground is not maintainable.

18 I turn to the final ground upon the basis of which the applicant seeks to review the orders of conviction. It complains of the learned magistrate having drawn an inference adverse to the applicant by reason of the unexplained failure to call Steven Cole. Whilst the learned magistrate indicated that he drew an inference adverse to the applicant from that failure, he did not, in express terms, say what inference he drew. I assume that in accord with authority (Brandi v Mingot (1976) 12 ALR 551, at pp559-560 and O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916) the learned magistrate inferred that nothing which Steven Cole could have said would have assisted the applicant in his defence. I have concluded that the learned magistrate ought not to have drawn any inference adverse to the applicant by reason of the failure to call Steven Cole. Had Steven Cole given evidence corroborating that given by the applicant, then by the very nature of that evidence it would have been such that it would have incriminated him. Speaking of similar circumstances, Mitchell and Zelling JJ in Smith v Samuels (supra) said, at pp586-587:

"... In that case we agree that it would be unreasonable to expect such persons to appear as witnesses. In the instant case the appellant's counsel may have thought it inadvisable or unfair to place the two other accused in a position in which they might not have been astute enough to take an objection to answer a question put in cross-examination on the ground of self incrimination."

19 The nature of the evidence which Steven Cole might have been expected to give had he been called to support the applicant's case in itself constituted an explanation for not calling him. The fact that he resided in Victoria and the undoubted substantial cost associated with calling him as a witness were other relevant matters. In that sense, it was incorrect for the magistrate to say that there was no explanation for the failure to call Steven Cole. The learned magistrate erred in drawing any inference. Nevertheless it does not follow that this appeal should be upheld. I am not concerned with the question as to whether if Steven Cole had been called the learned magistrate might have come to a different conclusion. I am merely concerned with the inference drawn by the learned magistrate. If his findings of fact could be said to have been infected by that inference, then the convictions should not stand. However, it is clear from the learned magistrate's reasons that he was satisfied beyond reasonable doubt of the guilt of the applicant of each of the offences charged without reference to any such inference. The error which he made was of no relevance to his ultimate finding that the offences were proved.

20 Accordingly I conclude that there is no reason to interfere with the convictions, and to that extent the appeal will be dismissed. The applicant also seeks to review the sentences imposed. I have not as yet heard argument on that matter and I will hear such argument at a convenient time.