Denney v Lusted - [2015] TASSC 10

[2015] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Denney v Lusted [2015] TASSC 10

PARTIES:  DENNY, Kane Jae
  v
  LUSTED, Garry (Sergeant)

FILE NO:  649/2014
DELIVERED ON:  23 March 2015
DELIVERED AT:  Launceston
HEARING DATE:  10 March 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Hearing – Conduct of magistrates – Participation – Questioning by magistrate using internet images of scene not in evidence.

R v Esposito (1998) 105 A Crim R 27, referred to.
Aust Dig Magistrates [1119]

Criminal Law – Evidence – Credibility – Failure to put matter to witness – Unfairly drawing adverse inference from failure of the accused to dispute prosecution evidence.

MWJ v The Queen (2005) 80 ALJR 329, applied.
Aust Dig Criminal Law [2875]

REPRESENTATION:

Counsel:
             Applicant:  E Hughes
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Rae & Partners
             Respondent:  Director of Public Prosecutions

Judgment Number: [2015] TASSC 10
Number of paragraphs: 49

Serial No 10/2015
File No 649/2014

KANE JAE DENNEY v SERGEANT GARY LUSTED

REASONS FOR JUDGMENT PEARCE J

23 March 2015

On 4 June 2014 the applicant was found guilty by a magistrate, Mr R Marron, of recklessly discharging a missile to the danger of another person and common assault. On the common assault charge the applicant was convicted and sentenced to imprisonment for 14 days. On the other charge the applicant was convicted and sentenced to imprisonment for 7 days. His Honour ordered that the sentences be concurrent. The applicant moves this Court to review the convictions and sentences. The amended motion contains four grounds of review. Two grounds assert specific errors, one ground asserts that the finding of guilt was "unsafe and unsatisfactory", and the final ground asserts that the sentence was manifestly excessive. Before I deal with the grounds in detail, I will explain the evidence and issues at the hearing.

The prosecution case

At about 7.30 or 8pm on 12 October 2013, Nicholas Atkinson was riding his bicycle east along Westbury Road at Prospect. He and his partner, Bronwyn Innes, were returning towards the centre of Launceston after having been riding in a nearby bush reserve. At that time, the applicant was walking on or near the footpath of Westbury Road. He was carrying a glass bottle.
On the count of recklessly discharging a missile to the danger of another person it was the prosecution case that the applicant threw the glass bottle towards Miss Innes as she rode past the applicant and that the bottle struck the wheel of her bicycle. On the count of common assault it was the prosecution case that, in the course of an exchange which occurred after the bottle was thrown, the applicant punched Mr Atkinson once to his face. The particulars in the complaint allege the applicant assaulted Mr Atkinson by "punching him to the head".
Ms Innes did not give evidence. The learned magistrate was told that, at the time of the hearing, she was in the Northern Territory. The prosecution case depended on the evidence of Mr Atkinson, the evidence of a bystander, Katrina Edwards, and the evidence of a police officer, Constable Melissa Death.
Mr Atkinson gave evidence that he was riding 20 metres or so ahead of Miss Innes. They were "almost in Prospect really, just near the Olde Tudor Motor Inn". He heard the smash of a bottle and Miss Innes scream for him to stop. He stopped and rode somewhere between 20 to 50 metres back along the footpath to investigate. He said he and Miss Innes were opposite a shopping complex, but "about 100 metres city centre side of it". He saw a man walking towards Prospect about 50 metres away. Mr Atkinson called out "what's your fucking problem". The male then turned and walked back to him. He asked the man again what his problem was. He said the man then called him a "poofter" and "other things". Mr Atkinson said that he continued to ask the man "what his problem was", and then "he hit me". Mr Atkinson was wearing a bike helmet but was not on his bike, which was being held by Miss Innes. He said the man punched him once with his fist to the left side of his face. According to Mr Atkinson, "I think more he got the helmet than my head". He said that after he was punched he grabbed the man's upper body with both hands and turned him into nearby bushes with his thumb in the man's throat to restrain him. His evidence was that the man unsuccessfully tried to punch him again while this was happening, but then other people turned up because of the "ruckus" and "got me off him and restrained him". They waited around until the police arrived. He pointed the man out to them. There was no issue at the hearing that the man was the applicant.
Mr Atkinson gave evidence that he saw damage to Miss Innes' bicycle wheel rim when he looked at it the next day. He then took photos of the bicycle which were tendered in evidence. One photograph shows a mark towards the inner circumference of the rim.
Before the day of these events Miss Edwards did not know either man. She was on her way to "get tea" and parked "at the Olde Tudor". She saw two cyclists riding down Westbury Road and the defendant walking on the footpath in the opposite direction. Her evidence–in-chief included the following passages:
"As I was getting out of the car and locking my car I was watching two cyclists ride down the left hand side towards town and saw the defendant throw – he had something in his hand.
...
He had a bottle, I'm not sure if it was glass or anything like that, and he was throwing it at the second cyclist who was a female. Now I'm not sure if it hit the cyclist or the bike but I did hear it hit the ground after that. The cyclist just stopped along the road. The male cyclist got off to see if the female was okay. Once he realised what had happened he went onto the footpath and approached the defendant who'd turned back around and walked towards him. They were discussing for a couple of minutes – I couldn't hear exactly what was said, I just heard yelling I was about 50 metres away, but there was a discussion and then the defendant hit the male cyclist.
...
The defendant and the cyclist were talking, and then there was a push and a shove and then the defendant's hit the cyclist on – I'm not a hundred per cent sure but as far as I can remember it was in the head a couple of times and they had a bit of a scuffle and fell onto the – there was a pavement kind of thing with some trees."
Miss Edwards was cross-examined about where she was when her attention was drawn to the "incident". She was also asked what it was that first drew her attention but that question was not clearly answered. It is obvious from the cross-examination that the reliability of aspects of her evidence about what she said she saw was in issue. It was suggested to her that her ability to observe the relevant events was limited by her position and distance from the applicant. She said that when she first noticed something she was locking her car, which she had parked facing the shops away from Westbury Road. It is apparent from the transcript that in the course of her evidence, at the suggestion of the learned magistrate, Miss Edwards drew some sort of diagram to illustrate her position in relation to the cyclists and where she was looking. The diagram is not in evidence. She estimated that she was at first no more than 50 metres away. She said that as the incident "unfolded" she walked closer and stood on a grassy section to watch, and as she did so she phoned the police. She was asked what caused her to walk from her car to the "grassy section" and answered only that she was locking her car when she "seen it start to happen [sic]". It was when she was standing on the grassy section, she said, that the "defendant punched the cyclist and then the cyclist pushed him away and then they just started wrestling with one another". When cross-examined about the bottle being thrown she said that "it hit something and then smashed to the ground".
Constable Death was called to the incident. After speaking with Mr Atkinson she approached the applicant. She observed him to be affected by alcohol and unsteady on his feet. She arrested him and took him to the police station where he was "detained until he was sober". In cross-examination she said that she could smell alcohol on the applicant.

The applicant's case

The applicant gave evidence that he had been to a friend's house which he thought was at 188 Westbury Road. He said he had not drunk alcohol that day, but had been drinking bottles of his friend's fruit juice and was walking to the shop to buy replacements. He said that as he was walking out of the driveway he tripped on a gate fitting on the ground and dropped the glass bottle he was carrying on the footpath near the gutter. He denied throwing a bottle at the female cyclist. He continued to walk to the shop until he was approached by a male who had ridden on a bike from down the street asking him (the applicant) what his problem was. The applicant said he was then "scruffed" by the man who pushed him over backwards and landed on top of him with his knees on him and his left hand around his throat stopping him from breathing. He was held until his mate arrived and then they walked off down the street to get away. When asked whether he punched the male cyclist he said "on the way down I might have in self-defence but I can't recall. It happened quite quick as I was falling". He denied punching Mr Atkinson before Mr Atkinson grabbed him.
The defence called a Mr Evison, a friend of the applicant, to give evidence. His evidence did not assist the defence about the critical events because he did not arrive at the scene until the applicant was being held down by others.

The conclusion of the hearing and the decision

At the conclusion of the hearing the learned magistrate remarked to counsel for the applicant, Miss Lydon, "it's a factual matter Miss Lydon, there's nothing legal submission-wise really". I infer that his Honour's words were directed to the Justices Rules 2003, r 35(f), which provides that at a hearing of a complaint to which an accused person has pleaded not guilty,neither party is entitled to address the magistrate at the conclusion of the evidence without leave. No application for leave had been made and, after his Honour's comment, no application was then made.
The learned magistrate reserved his decision and gave reasons about two weeks later. The learned magistrate found both counts proved.

Ground 3 – Use of internet maps or images

It is convenient to deal with this ground of appeal first. The Justices Act 1959, s 107(4)(a), requires an applicant to show an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law: Phillips v Arnold (2009) 19 Tas R 21, per Crawford CJ, at [46]. This ground asserts that the magistrate "erred in fact or law by receiving into evidence by his own inquiry images from the internet of the area of Westbury Road, Prospect Vale, during the course of the applicant's hearing". Although the ground refers to errors of fact, no error of fact was identified by the applicant. What is claimed is an error of law. For the reasons which follow I am satisfied that error occurred and the ground is made out.
It is useful to first set out some matters of principle:
(a)The Magistrates Court is a court of record: Magistrates Court Act 1987, s 3A(2).
(b)The Evidence Act 2001applies to all proceedings in a Tasmanian court: Evidence Act, s 4(1). In hearing and determining complaints made under the Justices Act, magistrates are required to apply the rules of evidence.
(c)A judge or magistrate must try a case before him or her on the evidence and arguments presented in open court by the parties or their legal representatives and by reference to those matters alone unless Parliament provides otherwise: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350.
(d)A criminal trial is an adversarial, not an inquisitorial, process: Dietrich v The Queen (1992) 177 CLR 292 at 334. It is not a pursuit of the truth: Whitehorn v The Queen (1983) 152 CLR 657 per Dawson J at 682. The question in a trial is whether the prosecution has proved its case against the accused beyond reasonable doubt: R v Griffis (1996) SASR 170; 91 A Crim R 203.
(e)The protagonists in a trial are the prosecution on the one hand and the accused on the other. Each is free to decide what evidence to call and what questions are to be asked in examination-in-chief or in cross-examination, always subject to the rules of evidence, fairness and admissibility: Rattan v The Queen (1974) 131 CLR 510 at 517. It is generally left to the parties to define the issues and select the evidence: Crampton v The Queen 206 (2000) CLR 161 at 173. If a party's evidence is deficient the ordinary consequence is that it does not succeed: Whitehorn at 682.
(f)A judicial officer should take care not to descend into the adversarial arena: Yuill v Yuill [1945] 1 All ER 183 at 189. The role of the judge or magistrate is to "hold the balance between the contending parties without himself taking part in their disputations": Whitehorn at 682. He or she should objectively evaluate the evidence from a detached distance: R v T, WA (2013) 118 SASR 382 per Kourakis CJ at [38], repeated in Zanker v Kupsch [2014] SASCFC 13. It is permissible and proper practice for a judge to ask a question or questions to elucidate answers given by the witness where he or she considers this course desirable in the interests of justice: Re Damic [1982] 2 NSWLR 750 per Street CJ at 762–763. In Galea v Galea (1990) 19 NSWLR 263 at 281-282 Kirby ACJ set out a series of principles concerning complaints about judicial intervention. It is not necessary that I repeat them here but I respectfully adopt his Honour's remarks. The boundary between permissible judicial intervention in a criminal trial and intervention of a kind that results in an unfair trial is not capable of clear definition: R v Thompson (2002)130 A Crim R 24 at [38]. In R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 at 56 it was said that the task of destroying the credit of a defence witness should always be left by the judge to the prosecutor. The care that is required of a judge conducting a criminal trial involving a jury is explained by Wood CJ at CL in Esposito at 56-57:
"The line that a trial judge walks when asking questions of a witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties."
(g)Greater latitude should be allowed to a judge sitting alone and, by extension, a magistrate: see Galea v Galea at 281-282 per Kirby ACJ. The Magistrates Court is a court of summary jurisdiction. The demands on the time of a magistrate are heavy. It is in the public interest that a magistrate is able to control the proceedings of his or her court so as to enable the timely and efficient disposition of court business. As a general rule, I think it is quite proper for a magistrate to intervene, within reasonable and legitimate boundaries, to clarify evidence and identify issues, to overcome unclear, imprecise, repetitive or irrelevant questioning and so prevent undue delay or unnecessary prolongation of hearings: see FB v Regina; Regina v FB [2011] NSWCCA 217 per Whealy J at [90]-[110]. The motivation for judicial intervention and the reason for allowing latitude were discussed by Vanstone J in R v T, WA at [93]. The conduct of criminal trials remains subject to different and more stringent requirements than a civil trial. It is impossible and undesirable to mark out the permissible limits of judicial intervention. As I earlier pointed out, the boundary is inevitably unclear and will depend on the circumstances of each case. As Kirby ACJ said in Galea v Galea, at 282, when considering whether excessive judicial intervention amounted to prejudgment of issues, "the decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions". It is a question of balance, degree and judgment: R vThompson (2002) 130 A Crim R 24 at [44].
It is apparent from the transcript that in the course of the hearing, on separate occasions, the learned magistrate asked questions, often amounting to cross-examination, of witnesses based on images displayed on a computer screen in the court room. It seems likely that the learned magistrate used the court computer screen to produce some form of map or image by reference to which he asked the witnesses to indicate their location and the location of objects and events which were the subject of the evidence. It is obvious that the images must have depicted the Prospect area but, beyond that, the source of the images and what was depicted does not emerge. The following passages illustrate the instances to which I refer. During the examination-in-chief of Mr Atkinson the following exchange occurred:
"And what was he trying to hit you with?.....His fists.
HIS HONOUR: This is past the Olde Tudor is it?
WITNESS: Yes just past on the opposite side.
HIS HONOUR: Round the roundabout?
WITNESS: No, no, heading towards Launceston, so there's several houses.
HIS HONOUR: Can you see that?
WITNESS: Yeah.
HIS HONOUR: There's the shopping centre?
WITNESS: Yep.
HIS HONOUR: That's Launceston up that way?
WITNESS: So it was about where your mouse pointer is there, someone in there.
HIS HONOUR: Here?
WITNESS: Yea, I couldn't tell you exactly.
HIS HONOUR: Okay, somewhere about there.
WITNESS: Yeah somewhere around there.
HIS HONOUR: Okay. Yes."
After the completion of the cross-examination of Ms Edwards by counsel for the applicant, the following exchange occurred:
"HIS HONOUR: Just so I can understand, can you see that screen?
WITNESS: Yes.
HIS HONOUR: Is there where you're parked in here somewhere?
WITNESS: There's a Jacket Potato place and a Panda Chinese shop.
HIS HONOUR: This is a more up-to-date photograph, but in terms of the pharmacy, you talked about a pharmacy?
WITNESS: Yes, there's a white sign near that black telegraph pole.
HIS HONOUR: Yeah here?
WITNESS: No, to the right a bit, yep, I was about there.
HIS HONOUR: About there?
WITNESS: Yes.
HIS HONOUR: Can you see that Miss Lydon?
MISS LYDON: I can your Honour.
HIS HONOUR: And you're parked in here somewhere, is that right?
MISS LYDON: Yes. [The transcript records this as an answer of Miss Lydon but it seems to me to be an answer by the witness, Ms Edwards]
HIS HONOUR: And what was happening was somewhere over here was it?
WITNESS: Yeah, around, no back the other way, there's a red brick fence. Yeah, that's the garden just there.
HIS HONOUR: That's where they struggled?
WITNESS: Yes.
HIS HONOUR: Where was the bottle incident?
WITNESS: The bottle, back further, there's a rise up on the footpath on the right hand side.
HIS HONOUR: This bit here?
WITNESS: Yes.
HIS HONOUR: Here?
WITNESS: From the best of my knowledge, yes, there was a rise and the cyclists were, yes.
HIS HONOUR: Anything arising out of that Miss Lydon you want to ask any questions about?
MISS LYDON: Sorry your Honour?
HIS HONOUR: Anything you want to – I've raised some questions, but is there anything?
MISS LYDON: (Resuming) Yes just to clarify Miss Edwards, the physical struggle between the two males appears to be a lot further away from where the bottle incident unfolded?.....Yeah, when the cyclist when she got – whether it her or whether it hit the ground – they kept riding a little bit forwards–
Towards?.....Towards town still. And then she yelled out 'stop' and he got off and that's when they went up onto the footpath.
But you were still standing at your car at that point. Were you walking towards the grassy ledge?.....Yep.
And from the grassy ledge to – on that map the house with the red brick fence and the bushes, how far would you say, what that distance was?.....Nowhere near 50 metres down the road, not even that far, 30, I would think."

After the applicant had completed his evidence-in-chief he was asked questions by the learned magistrate:
"HIS HONOUR: Now Mr Denney just have a look at this, can you see – is that the place?
WITNESS: Yes.
HIS HONOUR: Is that the driveway?
WITNESS: Yes.
HIS HONOUR: So you're coming down this driveway were you and this is where you tripped somewhere down there?
WITNESS: It was towards the end near where the road was.
HIS HONOUR: Round here somewhere?
WITNESS: Yes, there's actually gates there now.
HIS HONOUR: This might be a different photo, but that's where the gates would have been?
WITNESS: Yeah that's the house, yeah. And that's the fence there.
HIS HONOUR: There's the fence.
WITNESS: Yeah. The whole scene happened there your Honour there was no – that was as far as I got to the end of the driveway and a couple of steps on the street.
HIS HONOUR: So just here?
WITNESS: Yes.
HIS HONOUR: Righteo. All right."
In the course of the cross-examination of the applicant conducted by the prosecutor, Mr Collins, the following exchange occurred:
"And you haven't tripped over there, you've continued to walk along Westbury Road until you've walked closer to the shopping complex and where there is an area where the footpath rises to be higher than the road. Do you know the area I am talking about? Did you hear Miss Edwards give evidence where the footpath rises to be a bit higher than the road. Do you understand where that is?.....I don't understand where it is, but I did hear her say that, yes.
Well it's an area just opposite – just about opposite the complex prior to the in-drive for cars?
HIS HONOUR: This area here I think Mr Collins.
MR COLLINS: Yes.
HIS HONOUR: Here, and just relevant to that, that's the house there, and I think this is the area that was identified here.
MR COLLINS: Yes thank you your Honour."
At the conclusion of the cross-examination of the applicant the following was said:
HIS HONOUR: And you were on your way to go and get some more.
WITNESS: Yes.
HIS HONOUR: Is that right?
WITNESS: I was replacing the ones I drank.
HIS HONOUR: Yes. I think you said you were on your way to the IGA?
WITNESS: Yes.
HIS HONOUR: So that's the IGA down in the complex there, isn't it? So that would have had you walking from 188 back up this way from there?
WITNESS: Yes.
HIS HONOUR: Anything to flow from that from either."
It is obvious from these passages that the witnesses and the magistrate were each looking at images on a computer screen on which the learned magistrate was somehow pointing, at least once apparently with a cursor controlled by the learned magistrate with a computer mouse, at certain features displayed on the computer screen.
The learned magistrate's reasons for finding the applicant guilty on both counts included the following passage:
"Miss Edwards was cross examined essentially in relation to the position from which she said she had viewed what had occurred. According to her evidence she had an unobstructed view from a relatively close distance such as she was able to identify by description the parties involved and as to what actions the had – that were taken by each. It was put to her, but she did not accept, that she may have had her attention directed to the locking of her car and not seen everything that had happened. She was not, however, challenged on her evidence that Mr Denney threw a container towards the second cyclist…"
And later:
"With regard to the charge of discharging a missile to the danger of another I do not accept Mr Denney's evidence that he tripped and that the bottle fell from his hand, an account that was never put to Miss Edwards. The location that Mr Denney said he tripped was different to the location that Miss Edwards placed him and the location where Mr Atkinson said that his partner had stopped and where he saw the broken glass. I am satisfied the object discharged by Mr Denney was thrown towards Miss Innes and her bicycle.
With regard to the charge of assault his Honour found
"… I am satisfied on the evidence of Mr Atkinson and the uncontested evidence of Miss Edwards that Mr Denney did strike Mr Atkinson in the way he described …
Mr Atkinson candidly admitted that he was concerned and angry when he approached Mr Denney and that at least by his tone of voice he was the aggressor. Mr Denney conceded that during the struggle with Mr Atkinson he may have punched him but that was in self-defence. I am satisfied however that at the time of the confrontation the behaviour of Mr Atkinson did not in any way justify Mr Denney's responding in the way in which he did such as to constitute self-defence."
Although it is not the subject of a ground of appeal, the learned magistrate was incorrect to describe Miss Edwards' evidence as "unchallenged" and "uncontested". Although he was correct that it was not expressly put to her that she was mistaken in her evidence that the applicant threw the bottle and later punched Mr Atkinson, it was clear from a fair consideration of all of the evidence that the reliability of her observations was in issue. She was cross-examined about her location and about where her attention was first directed. She was asked in cross-examination about her estimate that she was 50 metres away and then:
"So am I correct to say that the distance between you and the incident may have made things difficult for you to see exactly what had happened as it was unfolding?....Well when it was unfolding it was when I was on the phone to the police walking over to it."
Although it is not entirely clear, it seems to me that this answer could only have referred to the assault rather than the bottle throwing, because the witness's evidence was that she was at her car when "it started to happen", and then she called the police as she walked closer to the incident. Similarly she was asked where she was when she saw the physical struggle and then:
"What's to say that you simply stumbled across a scuffle between two people, could you tell who pushed who or who started?....Because the defendant punched the cyclist and then the cyclist pushed him away and then they just started wrestling with each other".
In determining whether the charges against the applicant were proved it was necessary for his Honour to have been satisfied beyond reasonable doubt:
(a)For the charge of recklessly discharging a missile to the danger of another, that the applicant discharged a missile, that the discharge caused danger to another, and that the applicant was aware of the risk of danger and acted regardless of the risk. His Honour could only have found the charge proved if he was satisfied beyond reasonable doubt that, amongst other things, the applicant "discharged" the bottle to the danger of Miss Innes. It was not necessary to prove that the bottle struck Miss Innes or her bicycle. Apart from some circumstantial evidence, his Honour could only have been satisfied if he accepted Miss Edwards' evidence of what she saw and heard and rejected the evidence of the applicant.
(b)For the charge of assault, that the applicant applied force to the person of Mr Atkinson and that his act was not justified or excused by self-defence. His Honour could only have found the charge proved if he accepted the evidence of Mr Atkinson and Miss Edwards that the applicant punched Mr Atkinson without first being grabbed, rejected the evidence of the applicant, and was satisfied beyond reasonable doubt that the applicant did not have a genuine and honest belief that some force was necessary in defence of himself, or that the force he used was not reasonable in the circumstances as he believed them to be.
It follows from the evidence, and the passages I have described from his Honour's reasons, that the reliability of Miss Edwards' observations was an important factor in the determination of the central issues for each charge. Her credibility and reliability on the one hand, and the credibility and reliability of the applicant on the other, were important considerations. The learned magistrate accepted the evidence of Miss Edwards and rejected the evidence of the applicant. The reasons his Honour gave make it apparent that his findings depended, at least in part, on the evidence each witness gave about their respective locations at various times. It is obvious that his Honour's understanding of the location of the witnesses and the objects used to identify the location of the witnesses was contributed to by the computer images he introduced and asked the witnesses about.
Unfairness may arise from excessive or impermissible judicial questioning in a number of ways. It can indicate prejudgment of issues amounting to bias. It can also result in the bolstering of one case or another to such an extent that it amounts to an impermissible intrusion on the adversarial nature of the proceedings. In this case it is not contended that the nature and extent of the learned magistrate's intervention, per se, amounted to error. The error asserted is that the magistrate intervened by use of the internet images.
With respect to his Honour, his intervention by use of the computer images he introduced should not have occurred and amounted to error. It was an error for a number of reasons:
(a)His Honour's duty was to conduct the hearing and reach a decision based, except as authorised by legislation, on the admissible evidence. By reference to and use of the images his Honour generated on the court computer screen, his Honour resorted to material which had no evidentiary status. The images were extrinsic material. It was not disclosed how, or from where, the images were produced. The images were not evidence which had been introduced by either party. Their provenance and accuracy was not established and could not be tested. Although the answers given to the questions asked about the images are evidence, the images themselves, once displayed in court, were not tendered and were not evidence. The answers cannot be properly understood or scrutinised without the images. The question of whether such images were admissible evidence at all, even if they had been tendered by a party, was not raised. If it had been, then his Honour would have been required to consider the provisions of the Evidence Act concerning whether the images were a document and, if so, rule as to the admission of documents. Without knowing what the images were or where they came from I cannot say whether they could have been received into evidence in some form or not. I tend to think it unlikely and the issue was not explored. His Honour, if he had wished to do so, could have undertaken a view and inspected the scene provided it was properly undertaken under the Evidence Act, ss 53 and 54. I am well aware magistrates do not generally have time to undertake such inspections, but that does not justify resort to inadmissible material. This was not a case of the learned magistrate taking judicial notice of facts which are "not reasonably open to question" and "common knowledge" or "capable of verification by reference to a document the authority of which cannot reasonably be questioned": Evidence Act, s 144(1). No document was identified so as to determine its "authority". No party was given the opportunity to make submissions about whether the information should be taken into account: Evidence Act, s 144(4). His Honour went much further than simply taking notice of matters of common knowledge and used the images as part of the evidence of witnesses about contentious facts.
(b)Introduction and use of the computer images was unfair to the applicant. The image or images were introduced when the reliability of the observations of the prosecution witnesses was very much in issue. The reliability of Ms Edwards' observations, as an independent witness, was of particular importance. Her location and ability to observe the relevant events was the subject of challenge. The images of the scene were displayed to her at the learned magistrate's own initiative after cross-examination of the witness by counsel for the applicant had been completed. The passage of her evidence set out earlier in these reasons demonstrates that the material bolstered the force and effect of her evidence. As was explained by Whealy J in FB v Regina; Regina v FB, it is not necessarily unfair if otherwise proper questioning by a magistrate has the indirect effect of strengthening the case of one party. However in this case, I have concluded that unfairness resulted. Use of the images enabled the witness to remedy what I regard as inadequacies in her evidence until then. Counsel for the applicant at the hearing had little, if any, real opportunity to test or challenge the evidence that had been elicited from the witness on the material the magistrate, not the prosecutor, had introduced. Until the moment it was introduced, counsel was not informed of, or given the opportunity to deal with, the nature and content of material the learned magistrate used and then apparently took into account.
(c)The use of the images before, during and at the conclusion of the cross-examination of the applicant was unfair. His Honour first asked questions in the nature of cross-examination of the applicant about his evidence, based on the images. Then, in an exchange with the prosecutor set out earlier in these reasons, there appeared to have been some understanding reached between them about the position of the applicant as described by Miss Edwards and shown on the images, to which the applicant was not given an opportunity to respond. The learned magistrate then questioned the applicant again based on the images. His Honour's reasons give a strong indication that the answers he elicited from the applicant were a factor in his assessment of the credibility of the applicant, and his Honour's rejection of the applicant's account. Use of material not in evidence in that way was unfair. Moreover, if his Honour intended to use the material in a manner that was prejudicial to the applicant, his duty was to disclose that to the applicant and allow his counsel a reasonable opportunity to address the admissibility and use of the material. In my judgment, by using the images to question the witnesses in the way he did, the learned magistrate crossed the line between questioning to clarify evidence and impermissible judicial intrusion into the adversarial process.
(d)The importance of a tribunal of fact, whether it be a judge, magistrate or jury, refraining from independent inquiry was stated in the clearest terms in Re JRL; Ex parte CJL (above) at 350. What happened in this case is different from the factual circumstances in JRL, which involved an approach by a counsellor to a judge's private chambers. However, although the images his Honour viewed were displayed in open court, they were, apart from that limited extent, beyond the scrutiny of the parties. It is difficult to determine how much his Honour relied on the extrinsic material beyond what was disclosed at the hearing. It is hard to avoid the conclusion that his Honour looked at and used the images himself without fully disclosing to the parties how he intended to use them. The learned magistrate appears to have made his own independent observations of the images and used them determine the credibility and reliability of the applicant and other witnesses. The conclusion that they were a factor in his determination is inescapable. It is also important to note that the material his Honour introduced and used is now entirely beyond the scrutiny of an appellate court.
I am satisfied that by resorting to the computer images in the way that I have described, his Honour fell into error. It amounted to a miscarriage of justice. This ground is made out.

Ground 4 – Inferences based on the rule in Brown v Dunn

Ground 4 of the amended motion asserts that the learned magistrate "erred in fact and/or in law by drawing an adverse inference on the defence case from the perceived or actual failure of counsel to put matters of instructions to the witness Katrina Joy Edwards". This ground arises from two passages in his Honour's reasons. In the first, referring to the evidence of Miss Edwards, he said:
"In relation to the container alleged to being thrown [sic] at the second cyclist by the defendant her evidence was clear, consistent and importantly unchallenged. It was never put to her that Mr Denney had tripped on a gate stopper sticking out of the ground and the bottle had slipped from his hand smashing to the ground. That scenario was heard for the first time when Mr Denney gave his evidence." [My emphasis.]
When dealing with the applicant's evidence the learned magistrate said:
"… I do not accept Mr Denney's evidence that he tripped and that the bottle fell from his hand, an account which was never put to Miss Edwards." [My emphasis.]
In both passages the learned magistrate commented that the applicant's evidence that he had tripped and the bottle had slipped from his hand was not put to Miss Edwards. This ground contends that the passages just quoted demonstrate that for that reason the learned magistrate drew an inference adverse to the applicant, and by doing so fell into error.
In the High Court in MWJ v The Queen (2005) 80 ALJR 329 at [38], Gummow, Kirby and Callinan JJ, stated the common law rule in Browne v Dunn (1893) 6 R 67 in the following terms:
"The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit."
In the same case Gleeson CJ and Heydon J said about the rule at [18]:
"… for reasons explained, for example, in R v Birks(1990) 19 NSWLR 677 at 686-691, and R v Manunta(1989) 54 SASR 17 at 23, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings."
It is not entirely clear whether his Honour's remarks indicate he reached a view that there had been a breach of the rule by counsel for the applicant, by failing to expressly put to Miss Edwards that the applicant had dropped the bottle when it slipped from his hand and that he did not throw it. Whether the failure to put that proposition in such clear terms amounted to a breach of the rule need not be determined. It seems tolerably clear what Miss Edwards' view would have been, had she been asked about the contradictory version. No submission was made by counsel at the trial about Miss Edwards' evidence, but it is apparent from the cross-examination of Miss Edwards that her evidence was the subject of challenge.
That is not the issue raised in this appeal. It was submitted by counsel for the applicant that his Honour's remarks, although he did not say so, reveal that he wrongly took into account a breach of the rule to make an adverse finding against the applicant. I think that submission has merit. It was submitted by counsel for the respondent that the learned magistrate did not suggest a breach of the rule, but simply stated that the matter had not been put in cross-examination, without drawing any conclusion from it. I do not agree. I think that the passages from his Honour's reasons could only mean that he drew an inference adverse to the applicant by his counsel's failure to put his account to Miss Edwards in cross-examination. Such an approach was an error because, in the circumstances of this case, it was unfair. In R v Manunta (1989) 54 SASR 17, King CJ said at 23:
"It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or exactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned."

That passage was adopted by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 691. Both cases were referred to with approval by the High Court in MWJ by Gleeson CJ and Heydon J. In this case, if the learned magistrate intended to use the failure of the applicant's counsel to put his account to Miss Edwards, then fairness dictated that the applicant be given the opportunity to respond to the facts which formed the basis of the adverse inference. Just what inference was intended and on what basis it was to be drawn could have been identified. His Honour's remarks suggest that he may have concluded the applicant's story was an afterthought. If that were true, then use of the failure in a way that was adverse to the applicant would have been legitimate. However, the applicant was not cross-examined about that issue by the prosecutor. Neither the applicant nor his counsel was asked about that proposition by the learned magistrate. Sometimes, the failure to put a proposition to a witness is remedied by permitting or inviting the recall of the witness. No opportunity was offered in this case. The applicant was allowed no opportunity, either in his evidence or through his counsel, to provide an explanation for the perceived failure. The failure may have been capable of explanation in one of the ways referred to in Manunta.
I am well aware that this ground only expressly concerns the learned magistrate's reasons for finding the charge of discharging a missile proved. However the course adopted by the learned magistrate, and its effect on his findings, inevitably affected his assessment of the applicant's credibility and reliability on both charges.
For those reasons I am satisfied that his Honour erred. This ground is made out.

Ground 2 – unsafe and unsatisfactory

This ground asserts that his Honour's determination that both charges were proved is unsafe and unsatisfactory. Because of the conclusion I have reached on grounds 3 and 4, it is unnecessary that I determine the ground. However it should be recorded that on a motion to review the decision of a magistrate under the Justices Act, s 107(4)(a), a ground that the decision is unsafe and unsatisfactory, is not a proper ground: Smith v McDonald [2010] TASSC 26. The question is, as a question of law, whether there was evidence before the magistrate upon which he was reasonably entitled to hold that the charges were proved: Phillips v Arnold (above) and Murray v Maingay [2008] TASSC 18. That question could only be determined if the hearing had been conducted without other error.

The proviso – has there been a substantial miscarriage of justice?

Counsel for the respondent submitted that, if a ground of review should succeed, I should nevertheless dismiss the motion on the basis that no substantial miscarriage of justice has occurred. The Justices Act, s 110(2)(ab), provides that, in a case where this 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, the Court may dismiss the motion. This is not a case in which I regard that as the appropriate course.
I have little doubt that there was a range of reasons why the learned magistrate did not accept the evidence of the applicant. His Honour's own observations of the applicant and other witnesses, and the evidence of the applicant's intoxication, were likely to be powerful factors in his Honour's decision to reject the applicant's evidence. However, as to the error asserted in ground 3, the conclusion is inescapable that the inadmissible material played a part in his Honour's determination. It is plain from the reasons that the learned magistrate made use of it. It was an error to do so. The error substantially frustrates my ability to determine whether the applicant's conviction was just. As to ground 4, the error is to the same effect, although not to the same extent. I am not persuaded that the evidence properly admitted during the hearing proved, beyond reasonable doubt, the applicant's guilt of the offences of which the learned magistrate found him guilty: Wilde v The Queen (1988) 164 CLR 365 at 371-372; Weiss v The Queen (2005) 224 CLR 300 at [44]. Even if I were so satisfied, the unfairness to which the applicant was subject resulted in a substantial miscarriage of justice. There was a departure from the essential elements of a fair trial such as to exclude the operation of the proviso: Weiss at [45]; Fleming v The Queen (1998) 197 CLR 250. See also AK v The State of Western Australia (2008) 232 CLR 438. The grounds do not, however, justify an acquittal. It is proper to allow the motion, quash the convictions and sentences and order a new hearing of the complaint before a different magistrate.

Ground 1 – manifestly excessive sentence

Ground 1 asserts that the sentence imposed by the learned magistrate was manifestly excessive. In fact there were two sentences. In light of the conclusion I have reached on other grounds it is unnecessary that I determine this ground. However the ground was fully argued and I will deal with it.
When sentenced, the applicant was aged 25. He had no prior convictions for violence. He had convictions for drug offences committed when he was 17 and 19 but had not been in serious trouble since then. He had not been to prison before. He had maintained a good employment record and had recently commenced full time employment in the roofing industry. At the time of sentencing he lived with his parents and paid board. He has one child who lives in Queensland.
I recently summarised the principles which are to be applied in a motion to review a sentence imposed by a magistrate on the ground of manifest excess or manifest inadequacy in Barrett v Wilson (2015) 69 MVR 333; [2015] TASSC 3. This Court should not, on an appeal from a sentence imposed by a magistrate, interfere just because it would have exercised the sentencing discretion differently from the magistrate. However, I am satisfied that this ground is made out.
The magistrate was right to condemn the applicant's conduct. The assault was committed in a public place. The applicant had demonstrated no remorse and was not entitled to the mitigation a plea of guilty would have attracted. The legislation provides that both offences are punishable by imprisonment. However this was not a serious example of either offence. There was no evidence of serious danger to Miss Innes. Mr Atkinson was wearing a helmet when he was punched which, according to his own evidence, took most of the blow. The single blow caused only a minor and transient injury. With respect to the learned magistrate, the imposition of any sentence of actual imprisonment for either offence upon a person with no prior convictions for violence is a response which is out of all proportion to the gravity of the applicant's criminal conduct. The sentences imposed are unreasonable and plainly unjust. The imposition of an actual sentence of imprisonment was a clear error and plainly outside the proper limits of the wide discretion vested in the magistrate. The imposition of an actual sentence of imprisonment is the most severe sentencing response available to a court. A sentence of imprisonment should be regarded as a sentence of last resort and to be imposed only when other punishment is inappropriate: Underwood v Schiwy [1989] Tas R 269; and James v Turner (2006) 15 Tas R 375in which Evans J applied Parkerv Director of Public Prosecutions (1992) 28 NSWLR 282 at 296. The applicant is still a relatively young man and his prospects seem good. The sentencing goals of punishment, denunciation and deterrence could have been achieved by other means. Other forms of punishment, a fine, community service or even a suspended sentence, all of which could have been imposed alone or in combination, were real sentencing options.

Conclusion and orders

Grounds 3 and 4 of the motion to review succeed. The motion is allowed. The convictions and sentences ordered by the learned magistrate are quashed. I order that the charges on the complaint are remitted to be re-tried before a different magistrate.