Supreme Court of Tasmania|1997-10-07|Before: Dixon CJ, Dean J, Crawford J

The applicant wishes to have this Court review the upholding of the objection and the respondent submits that the Court has no jurisdiction to do so. The Justices Act 1959, s107(1) authorises a person who is aggrieved by "an order of justices" to move the Supreme Court to review that order. By s116 it is provided that "unless the contrary intention appears, 'order' includes conviction, dismissal of a complaint, determination, and adjudication". Counsel for the respondent submitted that I should apply Hall v Braybrook (1955 - [1956] HCA 30; 1956) 95 CLR 620 and hold that the upholding of the objection by the learned magistrate did not fall within the meaning of the word "order" as it is used in the Act. In that case the High Court considered the Crimes Act 1928 (Vic), s4 which provided that unless inconsistent with the context or subject matter, the word "order" included:

"... order, adjudication, decision, grant or refusal of an application and also a determination of whatsoever kind made by justices or any court of petty sessions and also any refusal by justices or any court of petty sessions to hear or determine any information or complaint or to determine any application."

"There can be no doubt of the correctness of the decision of Dean J in State Savings Bank (Vic) v Rogers Bros [1954] VicLawRp 24; [1954] VLR 149, that a magistrate's ruling that evidence is to be admitted or rejected cannot itself constitute an 'order' that may be reviewed under s150, though of course if erroneous it may be a ground for reviewing a determination affected by it."

The provisions of s116 are not so different that I ought not apply that dictum to them. I do apply it and hold that I have no jurisdiction to review the ruling of the learned magistrate because it is not a reviewable "order", as that word is used in s107(1). (Counsel made no reference to the case, but since the oral statement of my reasons and the conclusion of the hearing my research has revealed that it was also held in Hesselman v Reid [1973] Tas SR 93 that a mere ruling on the admissibility of evidence cannot be made the subject of a motion to review. I would have expressly followed that case if I had been aware of it.)

However I will to make some remarks about the ruling. With the utmost of respect to the learned magistrate it is plain that he lost sight of what was happening before him. Counsel for the applicant was entitled to cross-examine Constable Rogers about prior statements made by him with a view to establishing whether or not the officer had made a prior inconsistent statement. Immediately before the objection was taken he had simply asked the witness "did you make a report", and the ruling prevented him from obtaining an answer. He had every right to ask the question and to obtain an answer to it.

A consideration of the transcript of the hearing provides an understanding of how the error came about. Following the making of the objection but before the ruling, there was a discussion between the magistrate and counsel for the applicant concerning the wording of a complaint that had been filed against one Riley as a result of the same incident. It is apparent from what was said to his Worship, that counsel regarded what was contained in the complaint as directly relevant to the question of the witness's credit. The learned magistrate took the view, and he was clearly correct, that what some other police officer in the prosecution section had expressed in a complaint against Riley was immaterial so far as concerned the evidence and credit of Constable Rogers. But that is not to say that if Constable Rogers had made some prior inconsistent statement (which may or may not have formed the basis for the drafting of Riley's complaint), the cross-examiner was not entitled to cross-examine about it.

For the reasons I have given the motion will be dismissed.

Adam Dez Phillips v Sergeant Roger Richardson [1997] TASSC 112 (7 October 1997)

Hall v Braybrook [1956] HCA 30; (1955-1956) 95 CLR 620, applied.

Adam Dez Phillips v Sergeant Roger Richardson [1997] TASSC 112

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Judgment (7 paragraphs)

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Cases Cited (2)

Adam Dez Phillips v Sergeant Roger Richardson [1997] TASSC 112 (7 October 1997)