Synfield v Parker - [2015] TASSC 19

[2015] TASSC 19

COURT: SUPREME COURT OF TASMANIA

CITATION: Synfield v Parker [2015] TASSC 19

PARTIES:  SYNFIELD, Rodney David
  v
  PARKER, JOHN (Senior Sergeant)

FILE NO:  805/2012
DELIVERED ON:  20 May 2015
DELIVERED AT:  Hobart

HEARING DATES: 21 and 29 October 2014 (Issue determined on basis of oral submissions on these dates and subsequent written submissions.)

JUDGMENT OF: Tennent J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – Power of Court to compel production of documents from Tasmania Police by subpoena or order prior to hearing.

Justices Act1959 (Tas), ss 107, 110.
Supreme Court Civil Procedure Act1932 (Tas), s 9.
Supreme Court Rules 2000 (Tas), r 4.
Justices Review Rules 2004 (Tas).
Justices Rules 2003 (Tas).
Traynor v McCulloch [2011] TASSC 41, referred to.
Aust Dig Magistrates [1348]

REPRESENTATION:

Counsel:
             Applicant:  N/A
             Respondent:  S Nicholson
Solicitors:
             Applicant:  In person
             Respondent:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 19
Number of paragraphs: 50

Serial No 19/2015
File No 805/2012

RODNEY DAVID SYNFIELD v SENIOR SERGEANT JOHN PARKER

REASONS FOR JUDGMENT TENNENT J

20 May 2015

These reasons concern the question of what, if any, power this Court has on the hearing of a notice to review, not being a hearing de novo, to compel production by subpoena or otherwise of documents asserted to be in the possession of Tasmania Police. It is necessary to provide the background to the matter to understand how the issue has arisen.
By complaint number 30268/12B, the applicant, Rodney Synfield, was charged with two counts of common assault and one count of injure property. A co-accused, Neil Graham, was charged with the same offences on complaint number 30268/12A. Following a hearing before Magistrate Pearce (as he then was), his Honour found each charge proved against the applicant and Mr Graham. On 24 August 2012, his Honour sentenced both men in respect of the charges. Pursuant to the Sentencing Act 1997, s 7(f), without recording a conviction, his Honour adjourned the proceedings for a period of 18 months upon undertakings by the applicant and Mr Graham that each would be of good behaviour for that period and would reappear for conviction and sentence if called upon to do so. Both the applicant and Mr Graham were unrepresented at the hearing before the learned magistrate. As might be inferred from the sentence imposed, both the assaults and the injure property were considered to be relatively minor.
On 14 September 2012, a lawyer acting for both the applicant and Mr Graham filed a notice to review. There were five grounds of review. While the notice itself appeared to be in respect of the sentence imposed, the grounds made it clear that both the applicants also sought a review of the findings of guilt. The grounds were in the following terms:
"1That the learned Magistrate erred by failing to explain to the applicant the proper and correct procedure by which hearings should be conducted and by failing to give the applicants a reasonable opportunity to present their defence in their own way.
2That the learned Magistrate erred in receiving an authority without the defendants being provided with a copy and being given an opportunity to consider it or comment upon it, prior to the departure of the Magistrate from the court to consider his decision.
3That the learned Magistrate erred by finding the charge proved without sufficient evidence to support the finding in relation to the Injure Property charge.
4That the learned Magistrate erred in not giving adequate reasons as to why he preferred the evidence of Ms Sarah Steers over the evidence of the applicants.
5That the finding of guilt by the learned Magistrate was unsafe and unsatisfactory."
That notice to review was listed for directions before the Associate Judge on 22 October 2012. At that time, the applicants' lawyer flagged an application to amend the grounds of the notice to review. Directions were made for the preparation of an appeal book and the matter was listed for hearing.
Prior to the finding of guilt on 24 August 2012, both the applicant and Mr Graham had made a complaint to police about the handling of the investigation which resulted in charges against them. The day after the directions hearing, both the applicant and Mr Graham received a letter from Commander Richard Cowling responding to their complaints. Each had raised a number of matters. In relation to the applicant, those dealt with in Commander Cowling's response were:
·     an alleged personal relationship between the officer who attended the scene and the complainant which resulted in bias;
·     mismanagement of what was described as the "crime" scene in that no forensic examination was conducted;
·     that the applicant was not spoken to about the incident at the earliest opportunity;
·     that the applicant was not more fully interviewed in relation to the issue of a citizen's arrest;
·     the release of private information to the applicant in the course of the disclosure process;
·     the failure by police to provide the applicant with a copy of the handwritten and signed statement of the complainant (only a typed version was provided);
·     that signature blocks did not appear on the facts for the prosecutor or proofs of evidence.
The letter to Mr Graham was slightly different. In particular it dealt with a specific aspect of the complaint about the lack of forensic investigation. Commander Cowling said about that:
"Senior Sergeant Judges did in fact take a series of photographs of the damaged vehicle on the day at the Deloraine Police Station. However because of the colour of the vehicle and slight nature of the damage the images when processed did not clearly show evidence of damage and as a result Senior Sergeant Judges made a decision not to include them on the court file. I believe they should have been included, regardless of their evidential value and the senior sergeant will be provided some guidance in relation to that aspect of his investigation. I can also indicate that the photos taken by the repairer also did not show clearly any damage due to the nature of that damage and the bright colour of the vehicle."
On 30 October 2012, the lawyer for both applicants wrote a lengthy letter to the principal legal officer of Tasmania Police, Mr Miller. It began with a request in the following terms:
"I am writing to you to seek disclosure of relevant evidence in the matter, that is the full Tasmania Police Internal Investigation file, given that my client's matter is still before the courts."
It was asserted in support of that request:
·     That what Commander Cowling said about the existence of photographs contradicted evidence given by Sergeant Judges before the learned magistrate because Sergeant Judges had told the magistrate he had not taken any photos.
·     That the comments by Commander Cowling about the slight nature of the damage were more consistent with what the applicant and Mr Graham said happened than what the complainant said happened.
·     That in a lengthy telephone conversation Mr Graham had had with Inspector Hopkins, Inspector Hopkins had told Mr Graham about things the complainant had told him during the course of an interview with her that were inconsistent with what she had told the learned magistrate, thus casting some doubt on her credibility.
·     That the lawyer had information from an independent source to the effect that the complainant was a personal friend of Sergeant Judges and she was prepared to provide the name of that source.
The lawyer suggested that, if police did not pursue the last issue, she had advised her clients they could refer the matter to the Integrity Commission. Numerous other matters were raised and a copy of a draft amended notice to review was attached. Mr Miller responded promptly to that letter. He declined to make available the full file, suggested he believed the lawyer had already been advised to seek access under right to information legislation, said he would review the file and asked for the name of the person who asserted Sergeant Judges and the complainant were "close personal friends". That name was provided shortly thereafter.
On 14 December 2012, Mr Miller forwarded transcripts of interviews with the investigating officer and the lady whose name had been provided by the applicants' lawyer. At that time he expressed himself satisfied that the complaints made were unfounded. A few days later, the right to information request was complied with subject to redactions of material by reference to the legislation. The material redacted included material relating to enforcement of the law, internal deliberative information and personal information of others.
On 9 January 2013, a notice of hearing issued from the Court in relation to the notice to review. The hearing date allocated was 18 February before Porter J.
By letter dated 13 January 2013, the applicants' lawyer wrote to the office of the Director of Public Prosecutions seeking "full and appropriate disclosure". On the same date, the lawyer wrote to the Commissioner of Police making numerous complaints about the activities of various police officers connected in some way to her clients' matters. In that letter, the lawyer also identified material she asserted had not been provided from the internal investigations file which she said was critical to her clients' case in this Court. She identified:
·     details of more recent information from the complainant;
·     the "Subject Report" of Sergeant Judges dated 30 September 2012;
·     the report by Inspector Hopkins of the internal investigation, and
·     the consideration by Commander Cowling of the issues raised in that report.
The lawyer asserted that the disclosure of such material was essential to a fair hearing of her clients' "appeal".
On 12 February 2013, Mr Miller responded to the applicants' lawyer in relation to her letter to Commissioner Hine. As to the issue raised about photographs taken of the complainant's vehicle, Mr Miller advised that the photos taken by Sergeant Judges were not in the possession of police prosecution service when disclosure was made. He said it appeared Sergeant Judges had deleted them. As to those taken by the smash repairer, police were unaware of them until after the hearing. Inspector Hopkins obtained them in September 2012. He otherwise responded to the various complaints contained in the letter to Commissioner Hine. He suggested that, if the lawyer still required the documents she sought, she should seek the issue of a summons requiring disclosure which would provide her with an opportunity to satisfy this Court that the documents were being sought for a legitimate forensic purpose.
On 12 February 2013, the applicants' lawyer wrote to the Court seeking an urgent directions hearing before Porter J. In that letter, she identified the issues she wished to raise. These were:
· The failure of the police and the Office of the DPP to disclose the required material in the interests of justice, despite several written requests (although she understood that police had not supplied the necessary material to the DPP).
· The existence of cogent and credible new and fresh evidence and the existence of possible additional new and fresh evidence critical to any future hearing which should be adduced in the interests of justice.
· The issue of a court order directing the disclosure of material required by the applicants to allow for the appeal to properly proceed (pursuant to s 110(2) of the Justices Act). She said she was able to supply a list of the specific material required.
On 14 February 2013, a directions hearing was held before Porter J in relation to the proceedings initiated by the notice to review. His Honour heard submissions from the parties about the matters raised by the applicants' lawyer including the suitability of a subpoena to obtain the requested documents. As a consequence, the hearing date on 18 February was vacated and his Honour allocated a date before the Associate Judge on 4 March 2013 as a "return date for the subpoena".
On 27 February 2013, the applicants' lawyer applied for the issue of a subpoena directed to the Commissioner of Police. By that subpoena, both applicants sought production of the following documents:
·     The subject report by Senior Sergeant Russell Judges dated 30 September 2012 in response to the complaints against police made by Mr Synfield on 22 February 2012 and Mr Graham on 21 August 2012.
·     Any report or reports of Inspector Darren Hopkins regarding the above complaints which would have been prepared in around October 2012, and any subsequent reports relating to the matter as a result of further correspondence.
·     Any report or written comment of Commander Richard Cowling regarding the above complaints against police and any subsequent report relating to the matter.
·     Any notes or any records made by Inspector Darren Hopkins of the lengthy phone call with Mr Graham on or around 20 October 2012.
·     Any notes of any interaction or conversation with Melanie Patterson in relation to the matter.
·     Any statement or records of conversations or interaction with Sarah Steers (now Belchambers) regarding the complaints against police and records and notes or any subsequent interaction with her by police in this matter.
·     Any notes, report or statements made or information provided by the Police prosecutor, Ms Brown, to Tasmania Police as a result of the complaints against police and subsequent correspondence, in relation to photos taken by Senior Sergeant Judges of the allegedly damaged vehicle and their use or non-use in the Magistrate's Court hearing in Launceston.
The hearing listed before the Associate Judge on 4 March 2013 was adjourned by consent to 3 April 2013 and on that date an order was made that "The appellants' application for the production of the subpoenaed documents stands adjourned sine die."
Nothing further occurred in relation to the proceedings until the middle of November 2013 at which time the applicant, alone, personally contacted the Court. As a consequence, a date for a directions hearing was allocated for the proceedings generally. The Court was advised that the lawyer who had acted for both the applicant and Mr Graham was no longer acting for the applicant. The lawyer asked for time to confirm whether she remained acting for Mr Graham. She advised the Court by letter that:
"It became apparent during the hearing on 3 April 2013 that an application for a de novo hearing may be an appropriate course of action.
Mr Synfield and Mr Graham are apparently still considering pursuing this action."
The directions hearing was adjourned to 17 December 2013 and subsequently adjourned by consent to 6 February 2014.
On 26 November 2013, the applicant wrote a lengthy letter addressed to the judges of the Court. In that, he confirmed he would be acting for himself. The letter did not address the matters which had been the subject of various directions hearings and correspondence. Instead it discussed what the applicant asserted were "some issues that caused me to believe that the current processing of 'reviews/appeals under Part XI of the Justices Act 1959 is likely to be both systemically flawed and jurisdictionally in error, in potentially all cases that come before the Supreme Court for a hearing – and that on a number of fronts." He asked the judges of the Court to investigate the matters he raised, make appropriate rules and to forthwith cease the current practice.
On 6 February 2014, both the applicant and Mr Graham appeared unrepresented before the Associate Judge in Launceston. His Honour made fresh orders to facilitate the preparation of an appeal book and the listing of the notice to review for hearing. That appears to be the last occasion when Mr Graham took any active part in the proceedings. All appearances and dealings since have been with the applicant alone.
By letter dated 13 February 2014, the applicant wrote to the Deputy Registrar of the Court in Launceston and all judges of the Court. He sought a temporary stay of the current and proposed proceedings in the Court as he said previous proceedings which had been adjourned sine die had not been resolved. He reiterated his request that the judges of the Court consider the issues raised in his letter of 26 November. The Deputy Registrar advised the applicant that it was not appropriate to correspond directly with judges of the Court, and that, if he wished to challenge any aspect of the Associate Judge's directions, he should file an application with the Court.
On 21 February 2014, the Court received a 119 page document from the applicant dated 5 February 2014 and addressed to the judges of the Court. The first 115 pages contained arguments about court procedures in the same vein as the applicant's letter of 26 November 2013. Thereafter, the applicant purported to turn to matters or procedures specific to his case. The comments did not however advance any matter directed to the substance of the notice to review.
On 27 March 2014, the applicant filed an application by which he sought what he described as interim orders. On 3 April, the applicant filed a second document by which he again sought interim orders. That document was in part the same as the first. The orders sought in the second application were as follows:
"l The Full Court (if not all or a majority of the Judges) of the Supreme Court correct for 'administrative' and or procedural errors in general*, as they relate to Part XI of the Justices Act 1959. [*See explanatory note a) on page 2 hereunder.]
2 The Full Court investigate and determine that previous Court decisions that take a narrow view, or interpretation of, the jurisdiction given under Section 107 (4) of the Justices Act 1959, should not be followed.* [*See explanatory note b) on page 2 hereunder.]
3 The Full Court investigate and determine that previous Court decisions that prevent 'fresh evidence' (other than in exceptional circumstances) from being tendered into Court proceedings, related to Part XI of the Justices Act 1959, should not be followed.* [*See explanatory note c) on page 2 hereunder.]
4 The Court requires all the documents sought off the Police, as per previous hearings into our matter, be handed over to me; not only because of Points 2 and 3 above but because the justice made an error on the facts before him.* [*See explanatory note d) on page 2 hereunder.]
5 The Court / State cover costs of these proceedings, as they relate to jurisdiction, administration and procedures utilized in potentially all cases, except for one type of case presently irrelevant*, that may come before the Court, in relation to Part XI matters under the Justices Act 1959; also because I'm on a Disability Pension. [* Exception being Part IX matters under Supreme Court Civil Procedure Act 1932; (and) also see explanatory note e) commencing on page 2]
The (Interim) orders being sought are made pursuant to the provisions of the following legislation:
In relation to Interim Order;
1 Act: Justices Act 1959, Section 110 (1) and / or Section 123 thereof, as well as the privative provisions in Supreme Court Civil Procedure Act 1932, Section 9 [(1) (d)] in particular and Section 6 thereof, in general;
Section 124 of Justices Act 1959, is where, under the heading of 'Rules of Court' the requirement for 'The judges, or a majority of them, may make general rules and orders to regulate the practice and procedure under this Part, and for carrying this Part into effect, and, subject to the provisions of this Act, may prescribe the fees to be taken and the costs to be allowed' should it be shown new said general rules and orders are required, at this stage, to progress the matter further!,
2 Act: Justices Act 1959, Section 110 (1) and / or Section 123,
3 Act: Justices Act 1959, Section 110 (1) and / or Section 123,
4 Act: Justices Act 1959, Section 110 subsections (1) and [(2) (f) and (3)] and / or subsection 2 (g) and / or Section 123 [Police Manual requirements to hand over relevant documents and information, in an ongoing Court matter, are also applicable],
5 Act: Justices Act 1959, Section 125 (1). [Justices (Review) Rules 2004; Rule 12 may have applicability?]"

The material extracted in the preceding paragraph does not include the entirety of the document. The applicant additionally made numerous references to his very lengthy documents sent to the judges of the Court the previous November and later about his challenge to the rules and procedure utilised by the Court in relation to notices to review.
On 8 April, the applicant was advised by the Deputy Registrar of the Court that his applications had been referred to a judge and a direction made that they not be listed. It was suggested that the correct approach to be followed was an appeal against the directions given by the Associate Judge. Nothing happened until 30 July 2014 when the applicant filed a further application. By that, the applicant sought the following interim orders:
"1)That a Full Court hearing be instituted to determine whether Justice Porter has erred in the following ways in Interlocutory (and incidental) Proceedings in relation to the above matter, in that:
a)His Honour stated that he had no power to require the Police to hand over the documents sought by our then Barrister Ms Etter in the manner then requested by her. [Section 110 gives wide powers to the Court to undertake a variety of tasks];
b)His Honour (then) resolved to utilize the Supreme Court Rules 2000 to issue a subpoena (under said rules) to facilitate a process that may require the handing over of said documents mentioned in a) above;
c)His Honour then referred the matter to the Associate Judge for him to resolve any issues pertaining as to why said documents ought, or ought not, be handed over.
2)That the matters raised in points 4) and 5) of my application to the Court dated 2^nd April 2014 be actioned, by way of these Interim Orders.
3)The remaining matters 1), 2) and 3) from that application (2^nd April 2014) be actioned at a date to be determined, consequent to the satisfactory resolution of the Orders sought here, in respect of Interim Orders 1) and 2) above.
Supplementary Notes
1)I refer you to my document dated the 26^th November 2013 for reasons in support of 1) – parts b) and c) above; given that neither the Supreme Court Civil Procedure Act 1932, nor the Supreme Court Rules 2000 made under that Act, nor any related forms (Rules of Court includes forms, see definition in just mentioned Act) are permitted to be used in relation to my matter before the Court, as it is contrary to the statute that they be utilised in respect to proceedings under Part XI of the Justices Act 1959, with one presently irrelevant exception!
2)I have been asked in a letter dated 8^th April 2014, from Mr Nason, District Registrar Launceston to 'provide an application and supporting affidavit seeking orders to extend time to appeal' and please consider this as the application for doing so. I point out thought with greatest respect that I had in fact raised the jurisdictional (error) issue, as per point 1 above, in my letter to the Court dated 26th November 2013. It is my understanding from reading High Court cases that if someone raises an issue regarding jurisdictional error, or the possibility thereof, then whatever 'other' proceedings may be taking place, or issues are being dealt with, in relation to the matter before the Court, then those proceedings or issues must be suspended whilst, or until the jurisdictional issue is dealt with. Is that correct?
3)Whilst I would like to comply with the direction I was given in the letter by Mr Nason as coming from a Judge of the Supreme Court, in that I needed to appeal under rule 680A of the Supreme Court Rules 2000, it is my contention (query) that if, as raised in point 1) above, that neither the Supreme Court Civil Procedure Act nor any rules made thereunder, can be applied in respect of the matter before the Court how can I appeal in the manner being requested or required of me.
4)That the Court have a hearing to determine whether the jurisdictional issue I have raised is correct or not and advise me as to the reasons why that view is so.
5)If my belief is correct that the Associate Justice had no jurisdiction* to deal with the matter that was referred to his Honour, by Justice Porter, would I not therefore, rather than be appealing against any order that the Associate Justice made, be in fact appealing against the decision of Justice Porter, to refer the matter to the Associate Justice in the first place. If that be the case would I not therefore be appealing to the Full Court in the manner I did in my application letter dated 2nd April 2014? As I'm doing here.
[*My research indicates that not only does the position of Associate Judge in Tasmania not have jurisdiction in respect of such matters, but that that 'office' does not constitute the Court for the purposes of dealing with a Part XI matter under the Justices Act, with the one presently irrelevant exception. This being consequential to the fact that said conferral of 'constituting the Court' comes from Section 191B (subsection 3) of the Supreme Court Civil Procedures Act 1932, the very Act that has no application in respect of proceedings under Part XI of the Justices Act 1959. A chart at the conclusion of this document addresses 'jurisdiction' and the issue of 'constituting the Court' for the purposes being discussed herein.]
6)If my views as expressed in point 5) have merit then I seek an overturning of the 'rejection' of my previous application to the Court dated 2nd April 2014.
The (Interim) orders being sought are made pursuant to the provisions of the following legislation:
In relation to Interim Order;
1) Section 123 of the Justices Act 1959.
[Section 9 (1) (d) of the Supreme Court Civil Procedure Act 1932 being the relevant privative provision.]
2)In respect of the referred to Interim Order 4) from the 2nd April 2014 application then the following applies, Act: Justices Act 1959, Section 110 subsections (1) and [(2) (f) and (3)] and / or subsection 2 (g) and / or Section 123 [Police Manual requirements to hand over relevant documents and information, in an ongoing Court matter, are also applicable], and in respect to the referred to Interim Order 5) from 2nd April 2014 then the following applies, Act: Justices Act 1959, Section 125 (1). [Justices (Review) Rules 2004; Rule 12 may have applicability?]
3)Section 110 (1) of the Justices Act."
Directions hearings were subsequently held in an effort to advance the proceedings actually before the Court, namely the applicant's notice to review. The applicant's main issue in those proceedings appeared to be the failure by prosecutorial authorities generally to give him documents he wanted. In the course of those directions hearings, efforts were made to establish precisely what documents the applicant wanted from police, what documents had already been provided to him, and, of the material he still sought, what actually existed.
On 29 October 2014, counsel for the State provided to the Court and to the applicant a copy of the letter from Tasmania Police to the applicant's former lawyer dated 19 December 2012 in response to a freedom of information request and a table dealing with the documents on the police internal investigation file which were requested indicating whether they had been supplied and, if not, the basis for the refusal to supply. With specific reference to the documents sought by the subpoena sought to be issued by the applicant's solicitor, counsel for the State advised as follows:
"1   The subject report by Senior Sergeant Russell Judges dated 30 September 2012 in response to the complaints against police made by Mr Synfield on 22 February 2012 and Mr Graham on 21 August 2012."
The report of Sergeant Judges dated 30 September 2012 is available. It was released in redacted form at pages 41-43 of the material sent 19 December 2012 by Sergeant R Reardon.
"2 Any report or reports of Inspector Darren Hopkins regarding the above complaints which would have been prepared in around October 2012, and any subsequent reports relating to the matter as a result of further correspondence.
•   A report dated 15 October 2012 from Inspector Hopkins to Constable A. Robinson was released in redacted form at page 28 - 29 of the material sent 19 December 2012 by Sergeant R. Reardon. The unredacted form is available;
•   A report dated 17 October 2012 from Inspector Hopkins to Commander Cowling was released in redacted form at page 9 - 17 of the material sent 19 December 2012 by Sergeant R. Reardon. The unredacted form is available;
•   A report dated 18 October 2012 from Commander Cowling to Inspector Johnston was released in redacted form at page 4 of the material sent 19 December 2012 by Sergeant R. Reardon. The unredacted form is available.
3   Any report of written comment of Command Richard Cowling regarding the above complaints against police and any subsequent report relating to the matter.
•See [2],
•A reported dated 22 October 2012 from Inspector Johnston to Commander, Northern District, was released in redacted form at page 3 of the material sent 19 December 2012 by Sergeant R. Reardon. The unredacted form is available.
4   Any notes or any records made by Inspector Darren Hopkins of the lengthy phone call with Mr Graham on or around 20 October 2012.
5   Any notes of any interaction or conversation with Melanie Patterson in relation to the matter.
•An interview was apparently conducted with Melanie Patterson on 11 December 2012. The interview has not been sighted. Further enquiries to be made as to its availability and its contents.
6   Any statement or records of conversation or interaction with Ms Sarah Steers now Belchambers) regarding the complaints against police and records and notes of any subsequent interaction with her by police in this matter.
•A statement was taken from Sarah Belchambers (nee Steers) which was withheld by Sergeant R. Reardon on 19 December 2012. It is available.
7   Any notes, report, or statement made or information provided by the police prosecutor, Ms Brown, to Tasmania Police as a result of the complaints against police and subsequent correspondence, in relation to the photos taken by Senior Sergeant Judges of the allegedly damaged vehicle and their use or non-use in the Magistrates' Court hearing in Launceston.
•No such notes exist.
Documents referred to by Sergeant Reardon in letter of 19 December 2012 that were not provided:
•Statutory declaration Laureen Steers 12/2/12;
•Confidential report from Divisional Inspector Darren Hopkins 20/9/2012.
•Statutory declaration Sarah Renee Steers 5/11/11
•Statement Sarah Bellchambers (nee Steers) 12/9/2012
•Statement Laureen Steers 25/9/2012."
In relation to point 4 in the above, counsel advised there were no such notes.
Brief submissions were heard on 29 October about whether the Court could compel by the issue of the subpoena sought by the applicant or otherwise the production of the documents still sought by the applicant. The applicant also confirmed that he did not wish to apply for a hearing de novo in respect of his notice to review. By agreement between the parties, the Court sought written submissions about the issue of compelling production. Those submissions were subsequently received. It was then agreed that my decision would be made on the papers without further oral submissions.
It is unfortunate that, in his submissions, the applicant sought to return to his arguments about the power of this Court to even deal with notices to review in the manner that it does, and his wish for this Court to investigate and review the rules and procedures it uses.

Discussion

At issue in this matter is whether, in proceedings commenced by a notice to review, absent any application for a hearing de novo, the Court has power to issue a subpoena to a third party to compel the production of documents sought by an applicant from that third party for the purpose of the proceedings, or otherwise order the production of such documents. It is implicit in the arguments mounted by the applicant to date that he wants access to the documents because he holds the view they contain evidence critical to his notice to review. The material is critical, the applicant argues, because he says it will show that, since his hearing before a magistrate, evidence has come to light which shows a police witness misled the Magistrates Court about certain matters, and, in fact, concealed evidence which might have supported the applicant's case. The applicant has also asserted that that particular witness had a personal relationship with the complainant, implying possible bias. I infer that, ultimately, if he is able to obtain the material he seeks, the applicant would apply to present it on the hearing of the review as fresh evidence. There can be no other purpose in relation to the proceedings before the Court.
As a starting point it is necessary to look at the nature of the proceedings involving a notice to review. The Justices Act 1959 ("the Act"), Pt XI, deals with motions to review to this Court and hearings de novo. Sections 107, 108, 110 and 124 (I have omitted s 111 because it relates to hearings de novo and that is not being pursued), relevantly provide as follows:
"107     Summary mode of reviewing decisions of justices
(1)   A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order.
(2)   A notice of motion under this section —
(a)   shall be known as a notice to review; and
(b)   shall set forth in specific terms the ground on which review is sought.
(3)     An applicant under this section shall, within 21 days after the making of the order to be reviewed —
(a)   file a notice to review in the Supreme Court; and
(b)   serve a copy of that notice on —
(i)the person interested in upholding the order; and
(ii)the clerk to the justices making the order.
(4)   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.
(5)   …
(6)   …
108     Applicant limited to grounds to be stated in notice to review
(1)   On the hearing of a motion made on notice to review, the applicant shall be held to the ground set forth in his notice to review unless the court, on such terms as to costs and otherwise as it thinks proper, allows amendment of the notice.
(2)   A notice to review may be amended under this section by adding new grounds and by striking out and amending existing grounds.
110     Powers of Supreme Court
(1) The Supreme Court shall be constituted by a single judge for the hearing of motions to review under section 107, but the judge may reserve the motion or any point arising thereon for the Full Court or direct the motion or any such point to be argued in the Full Court, and the Full Court has power to hear and determine any motion or point so reserved or directed to be argued.
(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 habeas corpus or an order of review under the Judicial Review Act 2000;
(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.
124 Rules of court
The judges, or a majority of them, may make general rules and orders to regulate the practice and procedure under this Part, and for carrying this Part into effect, and, subject to the provisions of this Act, may prescribe the fees to be taken and the costs to be allowed."
As is apparent from the Act, s 124, the judges of this Court may make general rules to regulate the practice and procedure under Pt XI and for carrying Pt XI into effect. The only rules made pursuant to that power are the Justices Review Rules 2004. Those rules make no provision for the issue of subpoenas or methods by which production of documents may be compelled by the Court in proceedings under that Part. There is nothing in those rules which provides that, if they are silent as to a matter, the Supreme Court Rules 2000 ("the Rules") apply.
As to the Act, Pt XI, s 110(2), the applicant has submitted in the past that this section empowers the Court to compel production of documents for the purpose of a hearing. With respect, I do not accept that any such power contained in the section authorises that. The section provides that the Court shall review the order sought to be reviewed and "thereupon may do all or any of the following things". A list of what the Court may then do appears in s 110(2)(a) to (i). The word "thereupon" is defined in Butterworths Australian Legal Dictionary to mean, "1. At that instant; at that time. 2. As a consequence or due to that document, matter or thing." In my view, the powers in s 110(2)(a) to (i) inclusive relate to things the Court may do after it has reviewed the order sought to be reviewed, or as a consequence of any review, but not to steps which might be taken before the hearing.
The Act otherwise contains no provision dealing with the production of documents for the purpose of a hearing of a notice to review. The Justices Rules 2003, rules made by magistrates, deal with procedure in the Magistrates Court and not in this Court. Interestingly those rules contain a provision which does not appear in the Justices Review Rules which specifically provides that in any matter not otherwise provided for by those rules, the practice of this Court is to be followed: (see r 5).
The Rules, r 4, provides that the Rules do not apply to a proceeding in respect of which special provision is made by any other rule unless otherwise provided by that other rule. Counsel for the respondent contends that a notice to review is a proceeding for the purpose of r 4, and that the Justices Review Rules are special provisions as provided for in r 4. The term "proceeding" is defined in the Rules to mean any matter commenced by an originating process. "Originating process" is defined to mean any document by which an original proceeding is commenced and a writ. I accept that a notice to review filed with this Court is an originating process and that the Justice Review Rules make special provision for how such notices are to be dealt with.

The Rules are rules made by the judges of this Court under the Supreme Court Civil Procedure Act 1932. Section 9(1)(d) of that Act provides that nothing in that Act or the Rules shall affect the jurisdiction of a judge, or the law to be applied, or the procedure or practice in proceedings under Pt XI of the Justices Act.
It would seem to flow from an examination of the various rules and acts that there are no rules which deal with the issue of subpoenas or orders to compel production of documents in proceedings involving a notice to review. It may very well be that the Justices Review Rules are deficient in that regard and, as the applicant urges the judges of the Court to do, there should be further rules made pursuant to the Act, s 124, to deal with the issue. However, whether the judges of this Court decide to make such rules is a matter for them, and not something a single judge, or indeed even the Full Court, could order the judges to do.
In the context of a notice to review, is there any other power which would enable a judge to either authorise the issue of a subpoena directed towards an entity to produce documents, or otherwise order that entity to produce the documents? The applicant referred to two other matters in his submissions. He submitted that this Court had inherent jurisdiction to prevent an abuse of process, and further that the provisions of the Police Manual require the production of documents identified in that document, and the documents being sought by him are such documents.
In his submissions, the applicant set out those parts of the Police Manual he said were relevant. It appears to be part 12.4.7 headed "Supply of Information by Prosecution Services" and it deals with situations where people are charged with any offence. In 12.4.7.2 the information which will be supplied is listed with an indication as to whether a particular item will be supplied with or without charge. In the list of documents which will be supplied subject to payment of a fee is an item described as "proof of evidence". The extract from the manual in the applicant's submissions further provides:
"   The Officer in Charge of the relevant Prosecution Service shall have the discretion to supply additional documentation requested by the applicant that is not listed in this section.
-     If the Officer in Charge elects not to exercise his discretion to supply additional documents, the applicant should be advised to apply for that documentation under the Right to Information Act 2009.
-     Where the applicant requires information not contained within the file at the time the application is made, and which is not subject to a Right to Information Act 2009 application, it will be necessary for the applicant to make a subsequent application for the required information.
-     Information supplied as a result of a subsequent application will be supplied without further cost to the applicant."
The applicant submitted that what he sought was "proof of evidence". The provisions in the Police Manual, with respect, do not assist the applicant. They relate to procedures which enable an alleged offender or his lawyer to obtain documents from police prior to any hearing of charges against the alleged offender. Further, a proof of evidence is a document which contains detail, usually of the evidence of a particular witness, of evidence proposed to be led from that witness at a hearing of charges against an alleged offender. In the context in which that term is used in the Manual, it clearly refers to a document which might contain evidence, but does not refer generally to proof of any evidence.
The applicant also made comment in his submissions to the effect that he did not agree with some of the bases upon which police had refused to provide documents under right to information legislation. The Right to Information Act 2009, ss 44 and 45, provide for forms of external review of decisions made under that Act. The proceedings in this Court cannot involve some sort of appeal against the decision made under that Act.
Returning to the issue of an inherent power to prevent an abuse of process issue raised by the applicant, I do not cavil with the general proposition that a court may act to prevent an abuse of its process. However, the issues raised by the applicant do not come within the framework of an abuse of process of this Court.
It would seem to me having considered the submissions made by the parties that there is no power in this Court to authorise the issue of a subpoena as requested by the applicant or to otherwise make an order to compel production by Tasmania Police of the documents the applicant seeks.
Were there to be any argument that this Court has an inherent power to regulate its own proceedings in any way it sees fit, absent specific provision and that such a power could be used to compel production of the documents sought in this case by the applicant, there would need to be consideration of just what the applicant is trying to achieve in the context of the proceedings actually on foot. The proceedings involve a notice to review pursuant to the Act, s 107. The applicant has specifically disavowed any intention to seek a hearing de novo pursuant to the Act, s 111. The possibility of making such an application was, I infer, one which the applicant had advice about from his former solicitor. I say that because in correspondence to the Court from that solicitor, she indicated the applicant and Mr Graham were considering such an option. Relevantly, s 107(4) provides that the grounds of review set forth in the notice to review shall allege "an error or mistake on the part of the justices on a matter or question of fact alone, or the law alone, or of both fact and law". Importantly the error must be one "on the part of the justices".
The applicant, as I have indicated earlier, is seeking documents from police which he says will show:
·     A police officer misled the magistrate as to the existence of photographs of damage to the complainant's car.
·     The complainant was not truthful as to what occurred on the day of the alleged offending and as to alleged damage to her car.
·     That the police investigation into the events which occurred which gave rise to the charges against the applicant was deficient in a number of respects.
·     The officer who attended the incident had a personal relationship with the complainant and it may be inferred was biased towards her in his conduct of the investigation.
As I have already indicated, I infer that the applicant proposes, once he has the documents he wants, to make an application to adduce further evidence, not before the learned magistrate, on the hearing of his notice to review. Any such application would be made against the background that, even if the complaints summarised above are made out, none are likely to demonstrate an error on the part of the magistrate. He made his decision based on the materials before him. In saying that, I am mindful that material which the applicant has received from police would indicate that a police officer who told the learned magistrate he had not taken any photos of a damaged car, indeed did take some photos. It was explained later that those photos were of poor quality and apparently showed little damage, and so the police officer elected not to include them in the brief to the police prosecutor. It also transpired that photographs were taken of the car by a repairer but the police were not even aware of those. The photographs taken by police should obviously have been put before the magistrate whatever they showed and it would have been a matter for the magistrate whether they were of any use to him or not. In any event those police photos, I am told, no longer exist.
I am also mindful that the applicant's former lawyer was provided in December 2012 with transcripts of interviews with Sergeant Judges and a Cathy Oliver, I infer about the alleged relationship between the sergeant and the complainant. Ms Oliver was the person named by the applicant's lawyer as the source of her information about the alleged relationship. The material was sent by the lawyer for Tasmania Police who expressed himself satisfied the allegations made by the lawyer were unfounded. I do not have copies of the material but can only infer the lawyer meant by that statement that the interview transcripts did not support the allegations.
I mention these matters simply because they would impact upon any application the applicant might make in respect of his notice to review to adduce further evidence beyond that which was before the learned magistrate.
Crawford CJ in Traynor v McCullough [2011] TASSC 41 dealt with a notice to review in which an application was made by an applicant to adduce further evidence not before the magistrate. His Honour carried out an extensive review of the authorities relating to the power of the Court to receive further evidence by reference to the Act, s 110(2). In doing so, he declined to follow decisions in two matters in which further evidence was received, one of which was dealt with by me some years before. On reflection, I conclude he was correct not to do so. His Honour said at [15]–[36]:
"For the power of the Court to receive the further evidence, counsel referred to the Justices Act 1959, s110(2), which provides that '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 a number of things, such as dismiss the motion, set aside or quash the order of review and remit the case to be re-tried.
Counsel relied on statements of Underwood J (as he then was) in Brinkman v Dix (No 2) [1999] TASSC 65 and of Tennent J in Hudson v Australian Food Group Pty Ltd (2006) 15 Tas R 322.
When the Justices Act was originally enacted in 1959, it provided for an aggrieved party to proceedings before justices (which term included a magistrate) to bring his or her grievance before this Court in one of two ways. If he or she wished to argue that on the materials before the justices a prima facie case of error or mistake by the justices on a matter or question of fact alone, or of law alone, or of both fact and law had occurred, the grievance was brought by way of a motion to review in the then form of s107, and it was argued on the materials that were before the justices. Notwithstanding that s110(2) gave a power to receive further evidence, as it thought fit, it was settled that further evidence could not be relied upon to establish that an error of the necessary kind had been made by the justices. The reason was that s107(4)(a) relevantly required that an affidavit in support of a motion to review show a prima facie case of 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. Although the Act has since been amended, its current requirements are similar. Section 107(4)(a) now requires that the grounds in a notice to review shall 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.
Because of the requirements of s107(4)(a), it was held by Gibson J in Gower v Roffe, unreported 38/1966 at 1, on the hearing of a motion to review a sentence under the Act, that it would be wrong to receive further evidence because his task was to consider whether the magistrate was in error on the material before him. Two months later in Pulfer v Fletcher, unreported 67/1966, Burbury CJ entirely agreed, adding that the task of the court is to consider whether the magistrate was in error on the material before him and that apart from exceptional cases, it would be mischievous to permit evidence to be placed before the court of mitigating circumstances which were not before the magistrate.
The other way to attack an order of justices under the original Act was by way of appeal under s113. It was the way chosen by aggrieved parties if they wished to rely on evidence that was not before the justices. Such an appeal was conducted by way of a complete rehearing, with witnesses who gave evidence before the justices having to do so again before a judge. However, under s113(8), such a course was not open to a person against an order made ex parte, an order committing a defendant for trial, an order made on the defendant's plea of guilty or a sentence.
Concern was expressed by both prosecutors and judges that a defendant was entitled to a second hearing regardless of whether an error had occurred and merely because he or she did not like the result of the first hearing. Most hearings in courts of petty sessions were before legally trained magistrates and it was considered an unreasonable impost on resources to allow an unfettered right to a second contested hearing of a complaint before a judge. As a result, the Act was amended by the Justices Amendment Act 1974, so as to remove the right of appeal under s113. Thereafter, aggrieved persons were generally confined to a motion to review under s107, which is in a substantially similar form today, and to being forced to establish error on the part of the justices on the material that was before the justices, notwithstanding the power to receive further evidence under s110(2). The authority of Gower v Roffe and Pulfer v Fletcher remained, and certainly so for motions to review sentences.
The question was considered again by Green CJ in Cleaver v Powell [1979] Tas R 134. The applicant in that case sought to adduce evidence concerning a sentence imposed on a co-offender that was not before the sentencing magistrate, in support of an argument that the applicant's sentence was unjustifiably disparate. At 136 his Honour referred to Pulfer v Fletcher as authority for the proposition that a court hearing a motion to review should only receive fresh evidence relating to matters which were not before the magistrate in exceptional circumstances. At 138 his Honour affirmed that the statutory jurisdiction under the Justices Act prescribed that the court only had jurisdiction to review orders of magistrates if they were shown to have made an error or mistake of fact or law on the materials that were before them. As a result the further evidence was not received. His Honour's views were followed three months later by Everett J in Wallington v Devries [1979] Tas R (NC 11), unreported 42/1979.
Green CJ reconsidered what constituted an 'error of fact' when a member of the Full Court in Green v Fletcher [1988] Tas R 59 at 61, 62. The question arose under the Justices Act, s76A, which has since been repealed. He confirmed the view he reached in Cleaver v Powell and found support in a number of cases concerning appeals based on errors of fact that had been decided in a number of different jurisdictions in this country and in the United Kingdom. His Honour rejected the suggestion in Bick v Morelli [1969] Qd R 94 and Kimmorley v Atherton, ex parte Atherton [1971] Qd R 117 that a magistrate's 'unwitting error', which could only be established by further evidence, was capable of being regarded as an error of fact. Cosgrove and Underwood JJ at 65 were also of the view that evidence that was not before the magistrate could not show the required error.
Three years later, on the hearing of a motion to review a finding that charges had been proved in Webster v White [1991] TASSC 75 (unreported 58/1991), an applicant sought to establish by further evidence that a magistrate had made an error of fact by way of an 'unwitting error' of the kind considered in Bick v Morelli, Kimmorley v Atherton, ex parte Atherton, Green v Fletcher and the earlier cases in this Court to which I have referred. Zeeman J conducted an extensive review of authorities and at 6 agreed with what was said by Green CJ in Green v Fletcher. His Honour held 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. He added what had been made clear by the decisions of at least six judges, either at first instance or in the Full Court, that notwithstanding sympathy that might be felt for convicted defendants in some cases in which further evidence revealed a miscarriage of justice, Parliament had not seen fit to confer on the Court a power to review an order of justices for an unwitting error or mistake. The jurisdiction was a statutory one and the terms of the statute defined its extent.
There were however, two decisions of Cox J that were subsequently relied upon by Underwood J in Brinkman v Dix [1997] TASSC 140 (unreported 134/1997) in support of a contrary view. The first was Randall v Lowe unreported 59/1985 in which an applicant sought to have reviewed a sentence based on what he claimed was marked disparity between his sentence and that of a co-offender which had been imposed by the same magistrate on an earlier date. Cox J found that no such disparity had been shown and dismissed the motion to review. His Honour made no mention of the question I am considering and which had been considered in the cases to which I have referred, no doubt because it was not raised for consideration. In fact, there is nothing in his Honour's judgment to suggest that the magistrate was unaware of the co-offender's earlier sentence and circumstances when he sentenced the applicant.
The other decision of Cox J was Smart v Filz [1994] TASSC 123 (unreported B46/1994). The relevant ground of a motion to review a sentence also raised the question whether there was marked disparity between the applicant's sentence and the sentence imposed on a co-offender. However, this time the co-offender's sentence was imposed subsequent to the applicant's sentence so that if there was an 'error' by the magistrate it had to have been an unwitting one. Cox J did not consider whether such an error was reviewable. As his Honour had done in Randall v Lowe, he held that there were ample reasons for differentiating between the two sentences and that no injustice was apparent.
Nothing was said by Cox J in either of those cases that doubted the correctness of the established view that an 'unwitting error' was not a reviewable one under the Act.
In the 1997 case of Brinkman v Dix, Underwood J had before him an applicant's motion to review a sentence based on an 'unwitting error' by a magistrate because of disparity between it and a later sentence imposed on a co-offender. His Honour held that such an error could found a valid motion to review. In so holding, no reference was made to Gower v Roffe, Pulfer v Fletcher, Wallington v Devries or Webster v White. Reference was made to the fact that in Green v Fletcher, the Full Court had considered a different section in the Act, s76A(1)(c). With doubtful justification, his Honour thought that in Randall v Lowe and Smart v Filz, Cox J assumed that marked disparity between sentences could be a valid ground.
Underwood J declined to follow the view of Green CJ in Cleaver v Powell. He considered it to have been shown to be wrong by Lowe v R (1983) 154 CLR 606, which had been decided before Green v Fletcher and Webster v White, and by Postiglione v R (1997) 145 ALR 408, which had been decided since then. In Lowe v R, the court was unanimously of the view that marked disparity between sentences could be a ground of appeal under criminal appeal legislation, although the members of the court were not agreed as to the reason. It appears from the judgments that the interests of justice was a major consideration. At 613 – 614, Mason J, with whom Wilson J agreed at 616, thought that intervention by an appellate court was justified if there was a manifest discrepancy such as to engender a justifiable sense of grievance in the appellant. Mason J referred to such a discrepancy as constituting or causing error. Reference was also made by Underwood J to the statements of Dawson and Gaudron JJ in Postiglione v R at 411. They included that the parity principle is an aspect of equal justice and that if an error arises out of unequal justice, the error should be corrected.
The conclusion of Underwood J at 12 was that Lowe v R was authority for the proposition that upon the hearing of a motion to review under the Justices Act, a marked disparity between sentences which engendered a justifiable sense of grievance in an applicant and an appearance of injustice to an objective bystander amounted to an error of law, and that such an error did not have to be apparent from the materials before the sentencer at the time the sentence was imposed. It seems that it must be inferred that his Honour concluded that such an error amounted to an error or mistake on the part of the justices, which was required to be shown by s107(4)(a).
A difficulty that immediately comes to mind upon a consideration of his Honour's conclusion is that the nature of an appeal under the common form of criminal appeal legislation and the nature of a motion to review under the Justices Act are different. For example, the Criminal Code, s402(1), gives the Court of Criminal Appeal a power to uphold an appeal if a miscarriage of justice is shown. Under the Justices Act, a motion to review cannot be upheld for that reason, although under s111(2)(ab), it may be dismissed if there was no substantial miscarriage of justice. Section 107(4) requires that a ground of review must allege an error or mistake on the part of the justices, whether of fact, law, or both, or lack of jurisdiction to make the order to be reviewed. It is particularly that requirement for error on the part of the justices that makes a motion to review different from an appeal under the Code, which does not require that the judge who made the order, or the jury who returned the verdict, to have committed an error or mistake. That difference explains what was a settled line of authority in this State that an 'unwitting error' cannot form the basis of a ground of review and as a consequence, evidence that was not before the justices may not be considered, except perhaps in an exceptional case. As to which see Pulfer v Fletcher (above), and Wallington v Devries (above).
On appeal to the Full Court in Brinkman v Dix [1998] TASSC 135, the point I am considering was not raised by a ground of the appeal, nor was it touched upon by the majority of the court. They merely determined that Underwood J had erred when he found a marked disparity of the relevant kind, and remitted the motion to his Honour to deal with grounds of the motion that had not been determined.
The question of receiving further evidence upon the hearing of a motion to review came to be reconsidered by Underwood J when Mr Brinkman's motion returned to him for further hearing. In the meantime, R v Stanley (1998) 7 Tas R 357 had been decided by the Court of Criminal Appeal. His Honour was a member of that court and at 361, 362 he approved of the proposition that the court should exercise the power in the Criminal Code, s409(1)(c), to receive evidence upon the hearing of an appeal if it showed the true significance of facts which were in existence at the time of sentence or explained facts which were before the sentencing judge so as to put them in a new light.
When Mr Brinkman's motion to review returned to Underwood J for further consideration in Brinkman v Dix (No 2) (above), the applicant sought to adduce evidence at the hearing of the motion of events that occurred after the impugned sentence was imposed. That was opposed by the respondent, but in the event that it was allowed the respondent also sought to adduce further evidence. Referring to R v Stanley as well as Plumstead v R (1997) 7 Tas R 206, R v Araya & Joannes (1992) 63 A Crim R 123 at 129 – 130, and R v Smith (1987) 44 SASR 587 at 588, Underwood J affirmed what he said in R v Stanley and applied it, receiving the evidence under the power given by the Justices Act, s110(2). Once again, his Honour did not analyse the differences between an appeal under the Criminal Code and a motion to review under the Act, nor did his Honour refer to the earlier decisions of judges of this Court in which a contrary view was settled. He thought that the power to receive further evidence given on an appeal by the Criminal Code, s409(1), was just as wide as that conferred by the Justices Act, s110(2), on a motion to review.
Upon the hearing of a motion to review that was treated as concerning both conviction and sentence, Evans J in Turner v Driver [2005] TASSC 85 at par[6] held that the clear effect of the Act, ss107, 108 and 110(2) was that, save for a ground that asserts that the magistrate has no jurisdiction, this Court's jurisdiction on a motion to review is confined to reviewing circumstances where it can be shown that there has been an error or mistake on the part of the magistrate on a matter of fact or law. His Honour refused to receive further evidence, saying: 'The magistrate could not err in relation to a matter of which he had no knowledge.' He cited Cleaver v Powell and Webster v White as examples of the application of the principle.
On the hearing of a motion to review the following year in Hudson v Australian Food Group Pty Ltd (above) at par[55], Tennent J simply followed what was said by Underwood J in Brinkman v Dix (No 2) and made no mention of Turner v Driver or of any of the other decisions of judges of this Court in conflict with what was held in Brinkman v Dix (No 2).
With respect to Underwood J and Tennent J, the settled and long line of authorities in this State required a contrary conclusion to the one to which they came. In my view, a single judge of this Court was and is obliged to follow them. There is not sufficient doubt about them that leads to a conclusion that they were clearly wrong, and without a contrary decision of the Full Court, I must refuse the application to adduce further evidence."

The authorities to which his Honour referred make the limitations which are in place in respect of notices to review clear. The hearings in relation to such notices are not, absent a hearing de novo, appeals by way of rehearing. They involve a consideration of what was before the learned magistrate save in exceptional circumstances. While reference to the purpose for which the applicant wishes to obtain the material he wants is not strictly within the ambit of the issue with which these reasons are concerned, it does have relevance because it defines the parameters within which, even if there were power to compel production, the material could be used.

Conclusion

I am of the view that there is no power in the circumstances of this case to compel production of the material sought, either by subpoena or an order of the Court.