Potter v Tural & Anor; Campbell v B A H & Anor [2000] VSCA 227

2. I have had the benefit of reading in draft the reasons that Batt, J.A. has prepared, and agree that these appeals should be disposed of as he proposes and for those reasons.

7. These appeals raised three questions for decision: first, whether an order in the nature of certiorari lies against the decision of a magistrate to refuse leave to cross-examine a witness at a committal proceeding; secondly, whether errors made by these magistrates constituted a constructive refusal to exercise the jurisdiction conferred by the Magistrates' Court Act 1989; and, thirdly, whether the learned primary judge was bound, in the exercise of his discretion, to refuse prerogative relief[1] on the footing that it would unduly delay or fragment the criminal process in each case.

10. It is well established in this State that an order in the nature of certiorari will not lie to quash the decision of a magistrate to commit, or not to commit, an accused person for trial.[2] The whole of the committal proceeding is directed to that ultimate, non-reviewable decision, even if the proceeding also fulfils the important incidental function of informing the accused of the case against him or her. If the ultimate decision does not affect rights, and therefore does not afford a subject matter to quash, a decision in running can be in no better case from the point of view of an applicant. That is my reason for deciding the first question as I do, but I think there is much to be said for the view that a refusal of leave to cross-examine a witness is in

any event not a "decision affecting rights" in the sense in which that expression is used in the law relating to certiorari[3].

14. Batt, J.A. has recorded the submissions that were made with a view to showing that the magistrates constructively failed to exercise their jurisdiction. I am content to say that those submissions fail on the facts. There is no material from which I would infer that either of them asked the wrong question or, if it be relevant, failed to have regard to the criteria in clause 13(5), delegated his responsibility or took into account an irrelevant consideration inimical to the task to be performed. Even if Rule 9.02 is outside the purview of s.142(1), or contrary to s.142(5), of the Magistrates' Court Act, which I need not decide, the matters to which it refers were conducive to the exercise of the jurisdiction.

17. For these reasons, I do not consider that certiorari lay at all or that it was appropriate to make an order in the nature of mandamus in the present case. In fairness to the learned judge, I should say that I am not at all sure that his Honour did make an order in the nature of mandamus that was intended to be independent of his decision to quash the decisions under review.

20. It follows that the question of delaying or fragmenting the criminal process does not arise. There would have been a discretion to exercise if either of the magistrates had constructively refused to exercise jurisdiction[4] but, other things being equal, it would have been unlikely to be exercised adversely to the applicant for prerogative relief. Prima facie, if jurisdiction has not been exercised at all, it should be exercised. But that very consideration serves to emphasize the caution that a court should observe before concluding that a magistrate conducting a

committal proceeding has constructively refused to exercise jurisdiction rather than committed an error in the course of exercising jurisdiction.

26. These two appeals, which were heard together, raise questions of two kinds. The first concerns the meaning and operation of clause 13 of Schedule 5[5] to the Magistrates' Court Act 1989 ("the Act"), which relates to the allowing of cross-examination of proposed prosecution witnesses in committal proceedings where a hand-up brief is served. The second concerns the amenability to review by the Supreme Court of decisions refusing to allow such cross-examination.

29. The first respondent to each appeal (whom I shall refer to simply as a "respondent") was charged as defendant with certain indictable offences, being or including indictable offences which the Magistrates Court of Victoria does not have jurisdiction to hear summarily. His legal representatives gave notice, pursuant to clause 12 of Schedule 5 above-mentioned, of intention to seek leave to cross-examine specified persons who had made statements included in the hand-up brief which the informant had served.[6] At both committal mentions application had been made on behalf of the respective respondents for leave under clause 13 to cross-examine the respective specified witnesses. Each magistrate heard and determined the application[7], ruling that the respondent should have leave to cross-examine certain of the specified witnesses, but should not have leave to cross-examine the others.

The latter witnesses included the alleged victim, a female adult, in the case where the

respondent Nathan Tural was defendant, and, in the other case, were the two alleged victims, children then aged nine and eleven years.

34. Each respondent applied by originating motion for judicial review pursuant to Order 56 of Chapter I of the Rules of Court of the decision refusing leave to cross-examine the alleged victim or victims, naming as defendants the informant and the Magistrates' Court of Victoria. The two proceedings were heard together by a judge of the Trial Division. After reserving his decision for some 17 days only, his Honour, in careful and detailed reasons for judgment[8] in which the cases considered went well beyond those cited to him, concluded that the magistrates had erred and in each case exercised his discretion to grant relief. In each case he ordered, first, that the decision refusing leave to cross-examine the alleged victim or victims be quashed and, secondly, that the Magistrates' Court of Victoria hear and determine according to law the application made by or on behalf of the respondent concerning the calling of the witness or witnesses. Those orders are in the nature of certiorari and of mandamus respectively. In the course of his reasons his Honour stated that the criteria in Rule 9.02 of the Magistrates' Court (Committals) Rules 1999 ("the Committals Rules") appeared to him to go beyond power.

37. The informants appealed against his Honour's decisions, purporting to do so as of right. But his Honour's decisions were clearly interlocutory, since they in no way finally determined the rights of the parties in the principal proceeding pending between them[9]. Accordingly, leave to appeal was required by reason of s.17A(4)(b) of the Supreme Court Act 1986. The proposed appeal raised matters of general importance concerning new legislation of everyday application. There being no opposition and the criteria for the grant of leave being satisfied, this Court granted leave early in the hearing of the appeals.

40. After some discussion leave was also given to the appellants to amend the grounds of appeal to ensure that they covered the points which the appellants desired to argue. As amended, the grounds in each case are:

1. That the learned judge erred in law in holding that relief by certiorari is available from a decision of the magistrate made on an application under clause 13 of Schedule 5 of the Act.

1A. That the learned judge erred in making an order in the nature of mandamus on the footing that the magistrate refused or failed to exercise jurisdiction in considering the application under clause 13 of Schedule 5 of the Act.

2. Alternatively, that the learned judge erred in law in holding that the criminal process in this case would not be unduly delayed or fragmented by granting the relief sought.

47. Section 56 of the Act provides in part:

"(2) A committal proceeding must be conducted in accordance with Schedule 5. ... (9) Nothing in this Act alters the nature of a committal proceeding from that existing immediately before the commencement of this section."

51. Under Schedule 5 the Magistrates' Court is to form its "opinion" whether "the evidence is of sufficient weight to support a conviction" for the indictable offence or offences charged or (except where there is a plea of guilty) any indictable offence, and in the light of the opinion formed is to "order" the defendant's discharge, "commit" the defendant or "direct" that a new charge be prepared[10]

54. It is necessary to set out or summarise the material provisions of Schedule 5 as in force at the relevant times. By clause 12(1) a defendant may, no later than 14 days before the committal mention date, give notice in writing to the informant, the Director of Public Prosecutions and the registrar of the relevant court stating that the defendant (amongst other things) intends to seek leave to cross-examine at the committal proceeding a specified witness or witnesses, "the scope and purpose of the proposed questioning and how it has substantial relevance to the facts in issue".[11] By clause 12(5), the time may in effect be extended after expiry, on the ground of "exceptional circumstances".

57. Clause 13 applies to witnesses. A witness cannot be cross-examined except by leave: sub-clause (2). By sub-clauses (4) and (5),

"(4) The Court must not grant leave to cross-examine a witness to whom this clause applies unless satisfied - (a) that the evidence sought to be adduced by the proposed questioning has substantial relevance to the facts in issue; and (b) if the witness is under the age of 18 years, that the interests of justice cannot be adequately served except by granting leave. (5) In considering whether to grant leave in accordance with sub-clause (4), the Court must have regard to - (a) the need to ensure that the case for the prosecution is adequately disclosed; and (b) the need to ensure that the issues are adequately defined; and (c) the need to ensure that the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged; and (d) the interests of justice."

61. By clause 16, the Court may disallow any question asked of the witness in cross-examination which appears to the Court -

"(a) to have no substantial relevance to facts in issue; or (b) to be beyond the scope of the questioning for which leave to cross-examine was granted; or"

to be repetitive or to be oppressive in form or manner.

67. Section 142(1) of the Act authorises the making of rules of court for or with respect to -

"(a) any matter relating to the practice and procedure of the Court in committal proceedings; (b) without limiting paragraph (a), steps or processes in the course of the committal proceeding, ... and the procedure applicable to [any such] step or process; (c) ... (d) ... (e) generally prescribing any other matter or thing ... necessary to be prescribed by rules of court to give effect to [Schedule 5]."

By sub-s.(5) a rule must not be inconsistent with a provision of the Act and is to the extent of the inconsistency of no force or effect.

72. Order 9 of the Committals Rules relates principally to cross-examination. By Rule 9.01 an application for leave to cross-examine is made on the filing of a notice under Form 8A. Rule 9.02 provides:

"9.02 Criteria to be taken into account in considering application In considering whether to grant an application referred to in Rule 9.01, the Court must have regard among other matters to - (a) the age of the witness; (b) the importance of the witness for the establishment of the prosecution case, for example, whether the witness is an eye witness and whether the witness is the complainant; (c) the existence or lack of existence of corroborative evidence; (d) the extent of any admissions; (e) the probative value of the evidence; (f) the issue in dispute; (g) the weight of the evidence; (h) statements of other witnesses that contradict statements of a witness who is not of full age or capacity."

80. It is established by a long line of authority in Victoria that a magistrate's order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari (as I shall for convenience call relief in the nature of certiorari to quash)[12] or to appeal under statutory appeal procedures replacing certiorari.[13] The better view as to the ground of the latter proposition is now considered to be, not the ministerial nature of the order,[14] but the fact that it determines nothing save the sufficiency, in the magistrate's opinion, of the evidence to put the defendant upon trial for an indictable offence.[15] Although the law in some States, in the Federal Court and in England, Wales and Northern Ireland[16] may be different in some cases at least as a result of legislation, neither respondent sought to challenge the Victorian authorities (assuming that a challenge would have been possible before the Court as presently constituted). Now, the principal purpose of a committal hearing is to determine whether in substance, however the precise test may be phrased, the evidence is sufficient to warrant the defendant's being put on trial for an indictable offence[17]. If a decision or order effectuating that purpose is not amenable to certiorari, it seems to me impossible for a preliminary decision or ruling made on the way to effectuating that purpose, even if denominated an order, to be amenable to certiorari: the greater comprehends the lesser. The judgment of Smith, J. in Phelan v. Allen[18] makes this clear. Neither respondent could have waited until the conclusion of the committal proceeding and, if he was committed for trial, have then obtained certiorari to quash that decision on the basis that cross-examination of the alleged victim or victims had been refused erroneously, for, as stated, the decision to commit would not have been amenable to certiorari. I cannot accept that by moving earlier but on the same basis the respondent could obtain certiorari.

83. The respondents, however, contended, as his Honour had held[19], that each decision to refuse leave to cross-examine the alleged victim or victims was a "final determination of the right to seek leave to cross-examine", and was capable of being quashed by certiorari because the decision affected rights in a legal sense, in that it had legal effect and carried legal consequences. I am unable to accept that contention. First, the "right" to seek leave to cross-examine was, in Hohfeldian terms, only a liberty (or privilege), or perhaps a power,[20] and in any event was not denied, the application being entertained. It is simply not correct that, as the respondents argued, the refusal of leave after argument on the application amounted to a denial of the "right" to apply for leave. Lest that be said to be mere semantics, I add that clause 13(2) makes it clear that there was no right to cross-examine or to obtain leave in the sense of an enforceable claim to cross-examine or to be allowed to do so whose denial as the legal effect of a decision might, to anticipate the case next to be cited, be removed for quashing (if any other necessary condition was satisfied). Whilst the refusal of an application for leave has effect in that there is no cross-examination, no substantive right is affected. At most a procedural privilege or power is not granted. It is true that the decision need not affect rights in the sense of legally enforceable rights if it is a step on the way to affecting legal rights or, in other words, is sufficiently connected with an ultimate decision that does so[21]; but, as shown in the next paragraph, that condition is not here satisfied.

86. Secondly, the decision does not, in my view, come within the principle invoked by the respondents and held applicable by his Honour. In Hot Holdings Pty. Ltd. v. Creasy[22] Brennan, C.J. and Gaudron and Gummow, JJ., having referred to Ainsworth v. Criminal Justice Commission[23], stated the principle as follows:

"Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing. This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently `affects rights' in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at the preliminary or recommendatory stage of the decision-making process sufficiently `determines' or is connected with that decision."

It was the primary contention of the respondents that the case fell within the situation (1), the magistrates' decisions being said to be, not steps in the process, but the process itself. That contention cannot be accepted. The magistrates' decisions refusing leave to cross-examine here were not the ultimate decisions in even their decision-making process. It is true that, unless an extension was obtained under clause 12(5), their rulings finally determined the applications for leave to cross-examine, but that is clearly not what "the ultimate decision" means in the passage under consideration.[24] Accordingly, they do not fall within the first situation described by their Honours. Nor can the decisions refusing leave come within the second situation described; for the magistrates' ultimate decisions whether to commit or not will not affect legal rights[25], especially as the Director of Public Prosecutions may proceed contrary to them, whether they be to commit or to discharge[26]. To rebut that conclusion, the respondents contended that the exercise of the "right" to cross-examine had the potential to affect the magistrates' decisions under clause 23. That may be accepted. Counsel also drew attention to the fact that, in the event that a prosecution witness died before trial or was otherwise unavailable, the deposition of the witness would not be able to be used as evidence in the trial pursuant to s.55AB(2) of the Evidence Act 1958 because the defendant had not had "a full opportunity of cross-examining the witness" as required by sub-para.(b)(i) of sub-s.(2). Counsel also referred to disadvantages or difficulties arising, or said to arise, under the Crimes (Criminal Trials) Act 1999 in cases where cross-examination at the committal hearing had not been permitted. Thus, the accused might not be able to agree to the admission of evidence in the defence response pursuant to s.7(3) of that Act without first having cross-examined. It was also suggested that it would not be possible to obtain an order under s.11(1) of that Act to take before trial the evidence of a witness if leave to cross-examine him at the committal hearing had been refused, because by sub-s.(2) an application may only be made for an order if, relevantly, the person was not "available to be examined" as a witness at the committal proceeding. But the correctness of that may be doubted. In my view, the consequences of a refusal of leave to cross-examine do not bring the magistrates' decisions within situation (2) in the passage cited from Hot Holdings.

91. Reliance was placed on Barton v. The Queen[27] and it was submitted that the deprivation of a "right" to cross-examine was, in the words of Gibbs, A-C.J. and Mason, J.[28], "a serious departure from the ordinary course of criminal justice", so that the determination of an application to cross-examine affected a substantive right. But the Victorian Parliament has since Barton seen fit to alter the features of committal proceedings to which their Honours referred[29] and in particular to require the brief to contain written statements by proposed Crown witnesses that are on oath and to restrict considerably "the opportunity to cross-examine" the witnesses. For reasons already given, the determination of an application for leave to cross-examine does not affect any right and in particular any substantive right. The universe of discourse is adjectival, not substantive.[30] To return to the passage from Hot Holdings, the challenged decisions do not have a discernible or apparent legal effect upon rights, being, relevantly, the respondents' criminal liability or immunity, nor are they sufficiently connected with the determination of those rights. I respectfully differ from the primary judge in my understanding of Phelan v. Allen[31]: in my opinion, the decisions refusing leave to cross-examine were, as I have earlier indicated, merely preliminary rulings[32], steps along the way to the ultimate (administrative) decision whether to commit or not, and were not themselves ultimate decisions. Byrne v. Baker[33], distinguished by Smith, J. as a reviewable decision on a preliminary application, is equally distinguishable here: it was a judicial determination, which could therefore be reviewed, because, unlike the magistrates here, the magistrate there had authority to hear and determine the information charging the offence in question and thus to determine legal rights.

94. I should add that I do not regard D.P.P. v. Denysenko[34] as in any way against the views which I have expressed. Brooking, J.A., in delivering the principal judgment in that case on a successful appeal against certain orders, including an order in the nature of certiorari to quash a magistrate's decision refusing to permit examination of certain witnesses, merely said that it was not necessary for the Court to consider whether orders in the nature of certiorari or mandamus were available remedies and referred to Brygel. His Honour in no way suggested that certiorari was available. Nor do I consider that a different conclusion is required by the fact that in South Australia decisions refusing leave to call witnesses for cross-examination have been held amenable to relief in the nature of certiorari[35]; for in South Australia it has long been held that decisions to commit or not are reviewable[36]. Likewise, the fact that like decisions have recently been held amenable to administrative review in New South Wales[37] does not mean that certiorari is available.[38]

97. If, as I consider, certiorari is not available at all, no occasion arises for considering whether the particular circumstances of the two cases fall within certain propositions in Craig v. South Australia[39], a matter debated at some length during the hearing of the appeals.

101. There remain his Honour's orders in the nature of mandamus. To them the remaining grounds of appeal are directed. On the basis of Brygel[40] the appellants accepted that an order in the nature of mandamus was an available remedy, though they contended that it was not open to grant it on the facts of these cases. In the passage in Brygel J.D. Phillips, J. stated, with reference to the authorities, three propositions presently material. First, mandamus may go where there has been an error which amounts to a refusal, whether actual or constructive, to exercise jurisdiction at all. Secondly, there is no need for certiorari in such a case; for anything purportedly done below can then be regarded as nugatory and void and mandamus can go to compel the due exercise of the jurisdiction that ought to have been, but by hypothesis was not, exercised. Thirdly, however, the grant of relief remains essentially discretionary. A fourth relevant proposition appears in the following portion of the well-known passage in the judgment of Rich, Dixon and McTiernan, JJ. in The King v. War Pensions Entitlement Appeal Tribunal; ex parte Bott[41]:

"... the prosecutor who undertakes to establish that a tribunal has so acted [scil., made an ostensible determination that is not a real performance of the duty imposed by law upon it] ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal's decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies."[42]

What is meant by a constructive refusal to exercise jurisdiction is explained earlier in the same passage[43]. It may be shown that the tribunal has not applied itself to the question which the law prescribes, or that in purporting to decide it the tribunal has in truth been actuated by extraneous considerations, or that in some other respect it has so proceeded that its determination is nugatory and void.

106. There is a preliminary question whether the orders in the nature of mandamus made by the primary judge were merely supplementary to those in the nature of certiorari or were independent of the latter. On their face they are capable of being read as independent and his Honour's reasons[44] show that he intended them to be independent. Accordingly, they do not fall with the orders in the nature of certiorari.

109. The question, then, is whether his Honour erred in holding that relief in the nature of mandamus lay in the circumstances of these cases, that is, in holding that there had been constructive refusal or failure to exercise jurisdiction. This is the nub of these appeals. In order to consider the question it is necessary to state further facts about the alleged offences and about the proceedings in the Magistrates' Court and to summarise his Honour's reasons.

113. The respondent Tural was charged with the indictable offences of false imprisonment, making a threat to kill (two charges), cultivation of cannabis and possession of cannabis and also with the summary offences of unlawful assault and possessing a hand gun. The alleged victim of the offences against the person was Nicole Anastasia Barnes.[45] The respondent Tural and Barnes had been living in a de facto relationship. After some years it broke down and Barnes left the shared residence. A period of hostile conduct followed, with allegations of threats, and conduct amounting to stalking, by Tural. The allegations relating directly to the alleged offences against the person were that, after a period of threats, Barnes on 1 September 1999 agreed to visit Tural's new residence; that she was there tied up by him and threatened with a firearm; and that a shot was fired into the ceiling of the room. She later escaped, leaving a note for Tural, who was asleep, saying that she would see him soon. She explained the note to police by saying that it was left so as placate Tural, of whom she was, she said, frightened. She did not report the incident for some days. When police attended the scene they found some items tending to corroborate her account, including the state of the ceiling. Tural declined to be interviewed. Barnes is the only immediate witness to the first two charges and to the charge of unlawful assault.

116. The notice in Form 8A seeking leave to cross-examine Barnes noted that apart from some corroborative evidence the case on the three charges last-mentioned rested, apart from some corroborative evidence, almost entirely on Barnes. The scope of proposed cross-examination, as outlined in the notice, was, as his Honour said, little more than a statement that all of the incidents were disputed and that the actions and conversations of Barnes and the respondent on the night of 1 September 1999 would necessarily be relevant in cross-examination, as well as how she came to be at the premises. The notice also stated that it was intended to cross-examine about events following the separation of Barnes and the respondent as being relevant to the issue of a "corroborative" context, his state of mind and her motive in describing events inaccurately.

119. The practitioner appearing for the respondent before the magistrate said that there would be an issue as to, "if I can use the term, `consent'", referred to Barnes' two statements, said that the allegations were strongly denied and stated that the other matters were set out in the written submissions, which seems to be a reference to the Form 8A. She added that the circumstances leading up to the incident were also disputed. After the luncheon adjournment counsel for the informant submitted that the purpose of "these rules" is to prevent some sort of preliminary attempt to cross-examine witnesses regarding issues in dispute. He contended that Barnes should not be subjected to cross-examination. He claimed that it was quite clear what the Crown case was. The respondent's practitioner in reply repudiated that there was any continuation of some sort of harassment of Barnes by the respondent or that there was going to be some sort of fishing expedition.

122. The magistrate gave reasons for his decision not to give leave to cross-examine Barnes, but, unfortunately, the tape-recording and hence the transcript of the ruling begins only part-way through it. His Worship is recorded as saying:

"... necessarily be in the position to change the view of a magistrate in having the defendant committed for trial. I just do not think - and indeed I think these rules were meant to protect, to some extent, victims, and on that basis, and given the history in relation to the defendant and the first witness whereby he's pursued her at various times, I do not think that this would cause her anything other than embarrassment, and on that basis I do not propose her to be cross-examined...".

The evidence was that before the commencement of the transcript his Worship had said that the issue was whether the evidence of Barnes could be believed as to the incident in the home; that he found that there was strong evidence supporting her allegations, namely the gunshot blast in the roof; and that the cross-examination of Barnes could be conducted at trial and the matter was simply whether or not her evidence would be believed over the respondent's.

127. Close to the commencement of his reasons his Honour summarised the provisions relating to cross-examination that were contained in Schedule 5 immediately before 1 July 1999. He did so essentially as follows. By clause 3(1) the informant was not required to arrange for the attendance at court for persons who had made statements unless the defendant, at least 14 days before the committal mention date, gave notice in writing requiring the attendance of such a person. By clause 3(4) the Court might at any time before the commencement of the committal proceeding, on the application of the informant or of its own motion, set aside, wholly or in part, a notice under sub-clause (2), but by sub-clause (7) it could not do so unless it was satisfied that it would be frivolous, vexatious or oppressive in all the circumstances to require a witness to attend the committal proceeding. Therefore, as his Honour said, under that legislation, subject only to the setting aside of a notice that was frivolous, vexatious or oppressive, there was what amounted to a right in the defendant to require the attendance for cross-examination of a person who had made a statement which formed part of the hand-up brief. As his Honour recognised, the provisions of the new Schedule 5 plainly were intended to make significant changes to the regime for cross-examination of witnesses in committals. Having, in the course of his consideration of the availability of certiorari, mandamus and prohibition, referred to several South Australian and New South Wales cases on corresponding legislation, his Honour in dealing with the intended scheme of Schedule 5 said that it was important to note the differences between the legislation in those States and that in Victoria, as well as the similarities. He pointed out that under s.106 of the Summary Procedure Act 1921 of South Australia a witness is not called unless the Court grants leave and leave is not to be granted unless the court is satisfied that there are "special reasons" for doing so. In determining whether special reasons exist the court must have regard to the same matters as contained in the Victorian clause 13(5). In addition, if the witness is a victim of an alleged sexual offence or a child under the age of 12 years, the court must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so. That is a provision very similar to the Victorian clause 13(4)(b). His Honour pointed out that under the Victorian clause 13(4)(a) the ordinary requirement was that of substantial relevance of the evidence, not special reasons. (I would, however, observe that, whilst "special reasons" is in the ordinary case the sole criterion in South Australia, substantial relevance is in the ordinary case a necessary condition for, but, as I read clause 13(5), not the sole criterion of, the grant of leave in Victoria. In other words, the considerations enumerated in clause 13(5), whilst relevant to the pre-conditions, are also relevant to an independent discretion.) His Honour pointed out that in New South Wales under s.48E of the Justices Act 1902 on application of the defendant or informant or on their own motion the justices might direct the attendance of a person who had made a written statement if, but only if, in the case of a witness alleged to be the victim of a violent offence, they were of the opinion that there were special reasons why, in the interests of justice, the witness should attend or, in any other case, they were of the opinion that there were substantial reasons why, in the interests of justice, the witness should attend. His Honour referred[46] to cases in both those jurisdictions which I need not discuss in detail in which, whilst recognising (in South Australia at any rate) that proof of facts by means of statements in writing without oral examination or cross-examination had become the norm or (in New South Wales) at least that there had been substantial changes, the courts had stated that, subject thereto, previous statements by courts as to the role of committals continued to apply. His Honour then referred to statements in Barton v. The Queen[47] and in Grassby v. The Queen[48] as to the importance of committal proceedings and as to the value of the opportunity to cross-examine witnesses, which was amongst the protections and advantages which committal proceedings afforded accused persons.[49] Of course, as his Honour recognised, the procedures relating to committal proceedings have been considerably changed in several jurisdictions, including Victoria, since those decisions were given. It may also be observed that in Barton v. The Queen[50] Gibbs, A-C.J. and Mason, J. stated that the principal purpose of a preliminary examination is to ensure that the accused will not be brought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt, a statement which, in my view, is still true after the substantial changes in procedure. The primary judge here concluded that, in common with those other States, the new legislation in Victoria was not intended to override the accepted wisdom as to the importance of committals, but was directed more to curbing the excesses and abuse of the proper conduct of them[51]. In support of that view his Honour referred to the Second Reading Speech of the Minister in relation to the Bill to effect the amendments in Victoria.

130. His Honour then turned to an analysis of the applications. He stated that the threshold requirement under clause 13(4)(a) - that the evidence sought to be adduced had substantial relevance - was established in both cases before him, and that that did not appear to have been in doubt. Given that, he presumed in the case of the respondent Tural that the magistrate purported to rely on factors addressed in clause 13(5) (or possibly factors addressed in the Rules) in refusing leave. After considering the evidence referred to earlier, the hearing before the magistrate and the arguments of counsel, his Honour, who, it is important to remember, was considering error of law on the face of the record as well as failure to exercise jurisdiction, expressed his conclusion as follows:[52]

"I was initially attracted by the submission of [counsel for the present appellants] that the contentions advanced on behalf of Tural merely sought a re-hearing of the application by me, and a substitution of my discretion for that of the magistrate. However, having re-read the transcript of the hearing before the magistrate it does seem to me that his Worship had misunderstood the scope of the new legislation and so undervalued the continuing importance of the right to cross-examine at committal, and overstated the importance of the embarrassment which the witness might experience, as to apply the wrong tests in his consideration of the application."

135. The respondent B.A.H. was charged with three charges of the indictable crime of incest, the alleged victims being, in the case of the first two charges, his daughter LTH, who was born on 24 January 1990, and, in the case of the third charge, his daughter RJH, who was born on 19 December 1987. In respect of the younger daughter the first charge alleged penile penetration of the vagina on or about 18 December 1998 and the second charge alleged digital penetration of the vagina between 1 January and 31 December 1998. In respect of the elder daughter the third charge alleged penile oral penetration at Healesville (in fact during a family fishing expedition) between 1 January and 31 December 1998. Both daughters had given very extensive video-taped interviews to police officers, detailing events which took place between them and their father on occasions when he had come home very drunk and on occasions when he was alone in the house with the children. The younger daughter spoke of other acts of indecency at least and the elder daughter of other acts of penetration. A medical report contained the opinion that there was suggestive, but not conclusive, evidence of penetration of the vagina of the younger girl, but normal signs for the older girl.

138. As his Honour said, the notice of intention to seek leave to cross-examine was singularly lacking in specificity. It stated that it was sought to cross-examine each daughter "in relation to her allegations on the basis that they are denied by the defendant". The notice concluded by saying that each of those (and other) witnesses had evidence of substantial relevance to the defendant and clarification of their statements by means of relevant cross-examination would enable the respondent to define certain issues and, if he should be committed to stand trial, that cross-examination would assist him in preparation of a defence and reduce the trial's potential duration. That scarcely complied with clause 12(1). During the committal mention the magistrate asked to be told "a bit more about the scope and purpose of cross-examining the two young complainants." The respondent's legal practitioner listed the matters on which it was desired to cross-examine as "the factual allegations, the family circumstances, their relationship with the defendant, any discussions that they have had with persons associated with the police, Human Services or neighbours relating to these allegations, or relating to the intervention of Human Services into their family." The possibility of the allegations having been suggested to the complainants had already been raised or speculated about in argument.

141. Early in the course of the committal mention to which I have referred the magistrate said that he was anxious to ensure that the respondent's rights were preserved and was also mindful of the fact that the two alleged victims were very young. He said that the hand-up brief was in every respect "a bare bones brief", but that the practitioner had still got to overcome the hurdle of persuading him that justice could only be served by calling these two young people and that it was going to be an incredibly traumatic occurrence for them. He observed that there could very well be argument on the papers whether the matters should be committed for trial or not, given that there appeared to be no corroborative evidence at all, or very little. His Worship then in substance repeated his early remark summarised at the commencement of this paragraph. He went on to say that it might very well be that even if the matters were sent to the County Court the Office of Public Prosecutions considering the matter might decide not to proceed. The applicant's practitioner, referring to the possibility that the allegations might have come from some other source, asked rhetorically how that issue was to be tested by the Magistrates' Court unless it was satisfied that the witnesses would tell the same story in the witness box. The magistrate repeated that he had real problems with the two young complainants. The practitioner asked whether that was not a matter which struck at the whole heart of the justice system, saying that the examining magistrate had to make an assessment of the reliability, whereupon the magistrate interrupted, saying that he disagreed,

"as those who drafted the legislation make it very clear that the interests of young people should be protected and unless you can satisfy me that the interests of justice can only be served by calling them, then ..."

He added that it was recognised that there was a balance that must be struck. The practitioner then said in substance that, because there was no corroboration here, the interests of justice, in the absence of some special reason, had to outweigh the interests of protecting the children because otherwise the respondent was treated by the Magistrates' Court as being guilty without the evidence of the young witnesses being tested. The practitioner appearing for the informant said that the magistrate's concern in relation to the ages of the two girls was shared, but -

"if I take Your Worship's point as to the [OPP] possibly withdrawing charges etc., without having instructions, we certainly wouldn't be able to make that sort of decision unless, you know, those witnesses were [properly] tested at a committal prior to making that decision ... So, I don't [know] what to say ..."[53]

In further submissions the practitioner seemed to agree that the children needed to be tested by the defence. Later she did suggest that there was "a bit" of corroborative medical evidence relating to one of the girls.[54]

148. Immediately after the applicant's practitioner had told him "a bit more" about the scope and purpose of the cross-examination proposed, his Worship stated:

"I am not granting leave to cross-examine the two young women. The allegations and the age of the two complainants are such that they would be obviously caused acute embarrassment and distress in whatever venue they are required to attend. Ultimately, notwithstanding the lack of real corroborative evidence, it would come down to a matter of credit which is ultimately a matter for a jury. I am not denying [BAH] his right to contest these matters, but on balance I am not persuaded that the interests of justice are going to be served by calling these young women at a committal hearing, but I think it is also a matter where the [OPP] might have to bite the bullet and really consider what material it has and whether it should proceed any further with the matters. I do not reach that decision very lightly..."

Both practitioners sought to debate the matter further, causing the magistrate to say: "Well, I hear what you say but you have heard my reasons for refusing leave to cross-examine ...".

153. In my opinion, the magistrate was correct in regarding himself not only as having refused leave but as having given reasons for his refusal.

156. Following his analysis of the respondent Tural's application, his Honour analysed that of the respondent B.A.H. After considering the evidence, the hearing before the magistrate and the arguments of counsel, his Honour expressed his conclusion as follows:[55]

"In my view, the magistrate quite appropriately reflected the terms of the legislation in stating his anxiety that the witnesses not be distressed or embarrassed. Initially, as in the case of Tural, I was inclined to the view that I should not interfere in the magistrate's decision concerning the application by B.A.H. His Worship's concern for the situation of the children reflects the legislative requirement that children not be called at committal unless the interests of justice can not otherwise be adequately served. However, the suggestion that his Worship made that the DPP should consider whether to withdraw the charges, when coupled with the prosecutor's statement that it might be less likely that that decision would be taken if the witnesses did not give evidence at committal, when coupled with the implicit concession by the prosecutor that it was not a strong case, suggests that the wrong tests were being applied and that his Worship was not appropriately focussing on the tests and the issues set down by the legislation. Although the approach adopted here is not so clearly erroneous as is the case in the application by Tural, the approach by the magistrate to the application by B.A.H. seems to me to constitute a failure amounting to reviewable error, and subject to questions of discretion, is sufficient to justify the grant of relief by certiorari and mandamus. Whilst the interests of child witnesses are given appropriate focus and priority by cl.13 they are not the sole consideration. In my view, in having regard to whether the interests of justice could adequately be served without the children giving evidence, his Worship did not have appropriate regard, in the circumstances, or at all, to the fact that the interests of justice included the interests of the defendant seeking to be discharged at the committal stage or to lay the groundwork for the entering of a nolle prosequi."

161. In my opinion, this ground also is made out in both appeals.

164. It was submitted, at least in the case of the respondent Tural, that the magistrate had had regard to Committals Rule 9.02, that there were a number of inconsistencies between that rule and clause 13 and that the rule was not within the rule-making power, with the result that, when applying the rule, a magistrate was not exercising jurisdiction. In the course of argument the submission that the rules contained inconsistencies with clause 13 was modified: it was said that there was nothing in clause 13(5) which would necessarily preclude the taking into account of matters in Rule 9.02, but the sub-clause could do so in particular circumstances, reference being made specifically to clause 13(5)(c). It is clear that the magistrate in the case of the respondent B.A.H. did not mention the Committals Rules. He did refer to corroboration and that is a matter listed in Rule 9.02. But it would be an obvious consideration and, to my mind, he did not have regard to the Rules. In the case of the respondent Tural it might be argued that the magistrate's (and counsel's) reference to "these rules" was to the rules of law found in clause 13(4) and (5), for Rule 9.02, except perhaps in para.(a), does not appear to be explicitly directed to the protection of victims. I shall, however, assume that the magistrate was referring to Rule 9.02 and having regard to it. If I am wrong about the other magistrate what follows will apply equally to the case of BAH.

167. It is thus necessary to consider whether Rule 9.02 is valid and, if it is not, the effect of having regard to it. There are two requirements for validity. First, the rule must be "for or with respect to" one of the matters listed in the lettered paragraphs of s.142(1). Secondly, sub-s.(5), reflecting the common law, requires that the rule not be inconsistent with a provision of the Act. In my opinion, Rule 9.02 makes provision for or with respect to matters relating to the practice and procedure of the Magistrates' Court in committal proceedings, and is thus authorised by para.(a) of sub-s.(1), in that it makes provision for or with respect to matters to be taken into account in determining an application for leave to cross-examine. Clearly an application for leave to cross-examine is procedural and adjectival. In my view, a provision that states criteria for the determination of such an application is itself procedural or adjectival. In Attorney-General v. Sillem[56] Lord Westbury, L.C., in the course of holding certain rules of the Court of Exchequer invalid, stated that[57] under a power to make rules as to "process, practice and mode of pleading" any rules might be made by the Barons of Exchequer "for the guidance of their own proceedings" which did not require legislative sanction. Again, a decision applying such criteria would, I should have thought, be described as one concerning a matter of practice and procedure and could not be described as one concerning a matter of substance, the other member of the dichotomy. What aids or amplifies a matter of procedure cannot, as it seems to me, be other than procedural. In essence, Rule 9.02 is directed to governing or regulating the mode or conduct of court proceedings[58] and is a means or instrument by which the ends which the administration of justice seeks are to be attained[59]. In my opinion, however, Rule 9.02, contrary to s.142(5), is inconsistent with clause 13(5) and thus void. It is true that clause 13(5) is not expressed to be exhaustive but "the interests of justice", listed in para.(d) of it, is an omnibus topic and thus covers the field not already covered by the preceding paragraphs. It is well established in Australia, not merely in the area of constitutional law, that where one law covers the field another law which makes provision for some aspect of that field is inconsistent with the first-mentioned law.

170. In my view, however, the voidness or invalidity of Rule 9.02 is immaterial. This is because it simply lists matters as being amongst those to which regard must be had which are all capable of being considered when regard is had, as clause 13(5)(d) requires, to the interests of justice. In other words, it is simply an elaboration, no doubt incomplete, of the concept of the interests of justice or, as Callaway, J.A. said during argument, a check list. Taking into account the considerations enumerated in Rule 9.02 was conducive to the exercise of jurisdiction and not, as was submitted for the respondent Tural no doubt with the reference in Bott's case[60] to being actuated by extraneous considerations in mind, a distraction from it. Rule 9.02, moreover, does not purport to fetter a magistrate's decision by ordaining what decision must be reached when regard is had to all or any of the matters listed. Accordingly, I conclude that, assuming that the magistrate in the case of the respondent Tural had regard to Rule 9.02, he was not constructively declining to exercise jurisdiction (or acting outside jurisdiction).

173. To determine whether either of the magistrates constructively failed or refused to exercise jurisdiction it is necessary to ascertain the task which was confided to them by the relevant legislation.[61] This question of statutory interpretation is that which is determinative of ground 1A. In my opinion, the task confided was simply to determine (1) whether the magistrate was satisfied that the evidence sought to be adduced had substantial relevance to the facts in issue and also, where a witness was under the age of 18 years, whether the interests of justice could not be adequately served except by granting leave; and, if the magistrate was so satisfied, (2) whether leave should be granted to cross-examine as proposed in the notice of intention, that is, whether such cross-examination should be allowed. This follows, in my view, from clauses 4(1)(c), 12(1)(a), 13(2) and (4) and 16(a) and (b). Clause 4(1)(c) appears to be an express grant of jurisdiction to entertain and decide an application for leave[62]. When sub-clause(5), mandatorily requires the Court to "have regard to" the matters enumerated there, it requires the Court to take those matters into account and give weight to them as a fundamental element in making its determination[63]. But the sub-clause does not go to jurisdiction by serving to delimit it with certain tests. Rather, it states criteria or considerations that are obligatory in making the determination confided to the Court. If a magistrate granted leave without having had regard, even tacitly, to consideration (a) for instance, he would not, in my opinion, have failed to exercise jurisdiction (or acted without jurisdiction), but would have made an error within jurisdiction. Unlike the satisfaction required by sub-clause (4), the Act does not require the considerations enumerated in clause 13(5) to be taken into account "as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case"[64]. Nor, in my opinion, if the Magistrates' Court misconstrues clause 13(5), can it be said that it "thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case"[65]. Rather, I consider, the following passage from the judgment of the High Court in Craig[66] is applicable, namely:

"In contrast [to a tribunal], the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected ... Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."

That was said in relation to certiorari. The position must be no less clear in relation to mandamus for failure to exercise jurisdiction.

178. Although neither magistrate expressly said so, I agree with his Honour that it is clear that each proposed cross-examination (or most of it) had substantial relevance to the facts in issue. I consider that each magistrate accepted, at least tacitly, that that was so and moved on to discretionary considerations or (in the case of BAH) the other mandatory requirement.

182. It was submitted for the respondent Tural that, in addition to adopting a Rule which was invalid (a submission with which I have already dealt), the magistrate failed to exercise jurisdiction in that he, first, failed to apply the considerations enumerated in sub-clause (5) and, secondly, had regard to an irrelevant consideration, the embarrassment of the witness. Even if the first of those grounds were factually correct, it follows from the view of sub-clause (5) which I have expressed that that does not show a declining of jurisdiction. But I would add that, bearing in mind that the Magistrates' Court is a very busy one and that an application for leave is merely a preliminary procedural application, I am not persuaded by the argument from silence that the magistrate did not have regard to the considerations enumerated in sub-clause (5), which I should have thought would be present to the mind of a magistrate with some familiarity with committal proceedings. There is much to be said for the view that the magistrate could not have been unaware of consideration (c) and, as a judicial officer, of consideration (d), as indeed the argument revealed, and that the argument before him demonstrated that considerations (a) and (b) were satisfied in that it was clear that the defence knew what the prosecution case was and the respondent's practitioner had herself made clear the real issue. Reasons are at least desirable, but, as in applications for leave in other areas of the law in this State and elsewhere, they need only be brief[67]. If submissions had concentrated on one or more of the considerations enumerated in sub-clause (5) ordinarily a brief reference to the consideration or considerations in question might be expected unless some overriding factor (such as the requirement of sub-clause (4)(b)) determined the magistrate's decision. But the argument before the magistrate for leave to cross-examine the witness Barnes was not of that kind. It simply stressed the relevance of the proposed cross-examination.

185. As to the second ground on which it was said that the magistrate constructively failed to exercise jurisdiction, taking into account an irrelevant consideration (if it was such) in carrying out the task confided as discussed above is at most an error within jurisdiction. In any event, likely embarrassment on the part of the witness is a consideration covered by the "interests of justice", though its weight may be another matter.

49 His Honour was, as I have indicated, principally concerned with error of law on the face of the record, a matter with which, in view of my conclusion that certiorari is not available, I am not concerned at all. But he treated the reasons which he gave[68] at the conclusion of his consideration of the application by the respondent Tural as applicable to mandamus as well.[69] I respectfully consider that Mr. Coghlan is correct in his submission that in his whole consideration of the case the judge was overborne by his view of the appropriateness, desirability and importance of cross-examination. Earlier Mr. Coghlan had put the same submission in slightly different language, when he submitted that his Honour had elevated the right to cross-examination over the new regime, which led him to conclude that there had been a serious error justifying mandamus. It seems to me that to overvalue or undervalue is to make an error within jurisdiction. Even if there was a misunderstanding as to the operation of the considerations in clause 13(5), for the reasons I have given misapplication of them did not amount to a declining of jurisdiction. But I respectfully cannot agree that the magistrate misunderstood the scope of the new legislation or applied the wrong tests in his consideration of the application. The amendments which came to force on 1 July 1999 made, in my view, very substantial changes to the nature of and procedure in committal proceedings as existing at common law and under the immediately preceding statutory regime. There is no longer an assumption in favour of cross-examination. Indeed, clause 13(2) shows the reverse: the magistrate has to be persuaded to allow it. The evidence of proposed witnesses is in writing and on oath, so that the first advantage or protection which an accused formerly had from a committal proceeding that was identified by Gibbs, A-C.J. and Mason, J. in Barton[70] in substance remains. Schedule 5 as substituted with effect from 1 July 1999 clearly had as one of its purposes restriction of the opportunity to cross-examine such witnesses and the reduction in the length of cross-examination when it was permitted. The third and fourth advantages or protections identified by Gibbs, A-C.J. and Mason, J. - the opportunity of calling evidence and the possibility that the magistrate will not commit - remain, although I would acknowledge that that possibility is reduced where cross-examination is not permitted.

190. It was argued for the respondent BAH that the magistrate had declined to exercise jurisdiction because he had delegated his task to the Office of Public Prosecutions. It was also said that the case was a classic one for cross-examination because of the "bare bones" nature of the Crown case and the absence of corroboration. If the matter was borderline cross-examination was likely to tilt the balance against the committal of the defendant for trial. The magistrate had declined jurisdiction by failing to balance this consideration against the age of the victims and the type of offence. Putting aside Mr. Coghlan's point that cross-examination might in some cases make the Crown case stronger, this latter argument, if correct, plainly does not show failure to exercise jurisdiction but simply error within jurisdiction. In any event the argument is not correct, for it is clear from his Worship's own words in argument and in his ruling that he undertook a balancing exercise in order to decide whether the interests of justice required the grant of leave. Reverting to the first argument, I do not accept that there was any delegation by the magistrate of his decision to the Office of Public Prosecutions. He merely added to his reasons for refusing leave a comment intended to be of assistance. It is to be borne in mind that the test put for committing a defendant is different from the presently relevant test for entering a nolle prosequi (namely, whether there are no reasonable prospects of conviction). It is irrelevant that, as the prosecutor stated, cross-examination might have assisted the Director of Public Prosecutions in deciding whether to enter a nolle prosequi, but that consideration did not enter into his Worship's reasons for decision. In my opinion, the correct analysis of the magistrate's reasons for refusing leave to cross-examine the victims is that he did so because he was not satisfied, as he was required to be by clause 13(4)(b) if he was to grant leave, that the interests of justice could not be adequately served except by granting leave. He was, as Mr. Coghlan submitted, "alive" to the interests of the respondent and he did take them into account in a balancing exercise, but it is clear that from the commencement of the hearing of the application the magistrate was very concerned about whether clause 13(4)(b) was satisfied. It can, I think, be said that in a broad way the matters enumerated in sub-clause (5), so far as not obvious, were touched on in argument or in the magistrate's reasons. In not being satisfied as required by clause 13(4)(b) the magistrate did not decline to exercise jurisdiction. Even if he was in error in not being so satisfied (which I do not suggest), that was an error within jurisdiction.

194. Since my conclusions on grounds 1 and 1A mean that the appeals must be allowed, the present ground strictly does not fall for decision, but, as it was fully argued, it may assist if I express views on it. The grant of relief by way of judicial review is discretionary. His Honour was well aware of the strong statements in the authorities as to the undesirability of intervention by superior courts in the criminal process and, in particular for present purposes, in committal proceedings, as is shown by the numerous cases to which he referred[71] But his Honour declined to refuse relief in his discretion because he considered that "the risk of fragmentation of the criminal trial process" was not a factor of particular importance in the cases before him. His Honour's reason for this conclusion was that it was

"not the case, as would have been the case in D.P.P. v. Denysenko, that the trial in either instance would have been unduly delayed by having to re-commence the committal. Here the trial process, starting with the committal, has not yet begun."

His Honour then considered and rejected a submission that the availability of a "Basha" inquiry[72] obviated the need for relief in the nature of mandamus directed to the Magistrates' Court of Victoria.

199. Despite the numerous, strong and authoritative statements against the interference in the criminal process and in particular in committal proceedings by superior courts in the exercise of their supervisory jurisdiction, it cannot, in my view, be said that they bound his Honour so to exercise his discretion as to refuse the relief to which on the merits he had held the respondents were entitled. If the circumstances were "exceptional or special" he might have exercised his discretion favourably to the respondents, as Charles, J.A. considered appropriate in The Magistrates' Court at Prahran v. Murphy[73]. But, in my respectful opinion, it does seem that his Honour misunderstood or overlooked one matter. That is the delay or protraction caused in each case to the committal proceeding and thus to the trial (if there should be one) by the obtaining of the decision of the Trial Division, in contradistinction to any fragmentation or delay caused by a favourable decision of the Trial Division. That the delay caused by the application to the Supreme Court for relief is material is shown by what was said in Sankey v. Whitlam by Gibbs, A-C.J.[74] and by Mason, J.[75]. The latter passage in particular shows that there are two unacceptable consequences of applications for prerogative or like relief, namely fragmentation (or discontinuity) and delay, each of which is material. Even if it be correct to say that there is no fragmentation because the trial process, starting with a committal, has not yet begun, I respectfully cannot agree that the trial process has not in both cases been unduly delayed by the application for and the obtaining of leave by way of judicial review at first instance. I say this notwithstanding the considerable expedition with which the proceedings, once instituted, were, despite the long vacation, brought on for hearing and determined. It follows that the exercise of his Honour's discretion miscarried and that the discretion would have fallen to be re-exercised had a prima facie entitlement to relief in the nature of mandamus been made out. But since that is not the case I need not consider the topic further.

203. For the foregoing reasons I would in each case allow the appeal, set aside the order below and substitute an order dismissing the proceeding. I would hear the parties on the question of costs both here and below.

207. The Magistrates' Court (Committal Proceedings) Bill, which was in the course of progress through the Parliament as I was finalising these reasons, has now passed. It considerably ameliorates for defendants the provisions relating to cross-examination in Schedule 5. It may be that - though I naturally express no opinion whether - the respondents under its transitional provisions will be able, depending upon the date of commencement of the provision amending clause 12(1), either to obtain leave to give a fresh notice of intention to cross-examine or to give a notice and obtain leave to cross-examine.

[1] In our case the expression is apt and convenient, for we have inherited the jurisdiction of the Court of King's Bench. The position is different for federal courts, at least in respect of constitutional writs: Re Refugee Review Tribunal; Ex p. Aala [2000] HCA 57.

[2] Phelan v. Allen [1970] VicRp 28; [1970] V.R. 219; Ex p. Hamilton (unreported, Full Court, 21st July 1980); Brygel v. Stewart-Thornton [1992] VicRp 70; [1992] 2 V.R. 387 at 390-391.

[3] See, for example, Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1992) 175 C.L.R. 564 at 580; Hot Holdings Pty. Ltd. v. Creasy (1996) 185 C.L.R. 149 at 159.

[4] Brygel v. Stewart-Thornton [1992] VicRp 70; [1992] 2 V.R. 387 at 403-404.

[5] In the form substituted by the Magistrates' Court (Amendment) Act 1999 with effect from 1 July 1999.

[6] I shall for convenience call such persons "witnesses".

[8] Reported in [2000] VSC 80; (2000) 110 A.Crim.R. 475.

[9] Hornsby v. Kaschke [1999] VSCA 153; [1999] 3 V.R. 27

[10] Clauses 11(1)(b) and 23(2) and (3). Although the Act uses the various words which I have quoted, I am mostly using the comprehensive word "decision", which is frequently found in the authorities.

[11] Rules (3)(a) and (5)(aa)(ii) (B) and (C) in s.37A(1) of the Evidence Act 1958 use similar language, but are generally more stringent, though they expressly allow cross-examination as to credit.

[12] Phelan v. Allen [1970] VicRp 28; [1970] V.R. 219 and R. v. The Magistrates' Court at Prahran, ex parte Hamilton (unreported, Full Court, 21 July 1980), and cases respectively there cited; and s.56(9) of the Act. In Brygel v. Stewart-Thornton [1992] VicRp 70; [1992] 2 V.R. 387 at 390-391 J.D. Phillips, J. proceeded on the footing that authority to which he referred dictated that certiorari was not available. In Sedrak v. Carney [1998] VSCA 114; [1999] 3 V.R. 95 it was enough for Chernov, J.A., sitting alone, to state at para.24 that the law in Victoria is that the Court "will almost never interfere by way of certiorari with the decision of a magistrate to commit or not a person for trial". His Honour should not be taken, especially in view of the above authorities and others to which his Honour referred, as deciding that in exceptional cases certiorari is available. Thus, he later said at para.31 that the Victorian and other authorities had consistently held that certiorari was not available to review committal proceedings.

[13] Committal proceedings are now expressly excluded from s.92(1) of the Act, which is the current provision providing for appeals on questions of law from criminal proceedings in the Magistrates' Court. Under the earlier order to review procedure a judge was authorised, amongst other things, to exercise the jurisdiction which the Court had on certiorari (by s.160 of the Justices Act 1958, for example) despite there being a "no certiorari" clause (in s.164 of the last-mentioned Act, for example); but by virtue of the authorities cited in the first two cases mentioned in the preceding footnote the order to review procedure was not available in relation to committal decisions. Although the Supreme Court has, under s.7 of the Administrative Law Act 1978, power to grant relief in the nature of certiorari, that Act is inapplicable to committal proceedings because the definitions of "decision" and "tribunal" in s.2 are not satisfied.

[14] Confirmed in Grassby v. The Queen [1989] HCA 45; (1989) 168 C.L.R. 1 esp. at 11.

[15] R. v. The Magistrates' Court at Prahran, ex parte Hamilton at pp.9-10.

[16] To the cases cited in R. v. The Magistrates' Court at Prahran, ex parte Hamilton I add the subsequent House of Lords decisions of Neill v. North Antrim Magistrates' Court [1992] 1 W.L.R. 1220 and R. v. Bedwellty Justices, ex parte Williams [1997] A.C. 225. For the position in New Zealand see C v. Wellington District Court [1996] 2 N.Z.L.R. 395.

[17] Sankey v. Whitlam (1978) 142 C.L.R. 1 at 82 and Barton v. The Queen [1980] HCA 48; (1980) 147 C.L.R. 75 at 99. Though the Victorian legislation has changed considerably since those decisions, s.56(9) of the Act should be noted. The advantages or protections for a defendant arising from a committal hearing identified in Barton and later High Court decisions discussed below, though important, are incidental or ancillary to the principal purpose of ensuring that only a person against whom there is a sufficient case is put on trial. Although the passage containing it was agreed in by the New South Wales Court of Criminal Appeal in D.P.P. v. Losurdo (1998) 44 N.S.W.L.R. 618 at 627, I respectfully cannot accept the literal correctness of the statement by Studdert, J. in Hanna v. Kearney (N.S.W. Supreme Court, 28 May 1998, unreported) at pp.11-12 that "the fundamental objective of committal proceedings ... [is] the objective of facilitating a fair trial in the event that the person charged is committed and later stands trial." A fair trial is one, but only one, of the objects which the advantages or protections identified in the cases seek to secure.

[18] at 221, last full paragraph. When speaking during argument of "a final determination of the rights to cross-examine", his Honour indicated that he was using the word "right" loosely.

[20] Compare Robertson v. City of Nunawading [1973] VicRp 81; [1973] V.R. 819 at 827-828.

[21] Hot Holdings Pty. Ltd. v. Creasy (1996) 185 C.L.R. 149 at 162-163

[23] [1992] HCA 10; (1992) 175 C.L.R. 564 at 580 and 595

[24] In Hall v. Nominal Defendant [1966] HCA 36; (1966) 117 C.L.R. 423 at 443 Windeyer, J. pointed out in the context of final orders for the purpose of appeals as of right that it was never enough to ask simply whether the order finally determined the actual application out of which it arose; because, subject to the possibility of appeal, every order did that, unless expressly declared to be subject to variation.

[25] R. v. The Magistrates' Court at Prahran, ex parte Hamilton at pp.10, 11 and 16-17; Sankey v. Whitlam at 22; R. v. Murphy [1985] HCA 50; (1985) 158 C.L.R. 596 at 616; pace, perhaps, Mason, J. in Sankey v. Whitlam at 83. The last-mentioned passage is referred to in neutral terms in Grassby at 15 per Dawson, J. after an earlier reference to it by the Court in R. v. Murphy at 616. But, although their Honours in R. v. Murphy stated that the interests of the person charged are affected, they did not suggest that certiorari was available or that legal rights were determined. Indeed, they stated that committal proceedings did "not result in a binding determination of rights". R. v. Murphy was not cited in argument by any party.

[30] Adam P. Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. [1981] HCA 39; (1981) 148 C.L.R. 170 at 176-177; cf. Ousley v. The Queen (1997) 192 C.L.R. 69 at 84, 113-115 and 122-123.

[32] Compare R. v. Colby & Kennedy (1995) 84 A.Crim.R. 125 at 128.

[33] [1964] VicRp 57; [1964] V.R. 443

[34] [1998] 1 V.R. 312 at 315

[35] Goldsmith v. Newman (1992) 59 S.A.S.R. 404 and Tzeegankoff v. Magistrates' Court [1998] S.A.S.C. 6857, though in both cases the application in fact failed.

[36] Clayton v. Ralphs (1987) 45 S.A.S.R. 347

[37] Kant v. D.P.P. (1994) 34 N.S.W.L.R. 216; cf. Colby and Kennedy at 129 and 130

[38] Waterhouse v. Gilmore (1988) 12 N.S.W.L.R. 270 at 275-277

[39] [1995] HCA 58; (1995) 184 C.L.R. 163 at 175-176 and 177-178

[41] [1933] HCA 30; (1933) 50 C.L.R. 228 at 243

[45] The second threat to kill was made to another person by telephone but related to Barnes.

[47] at 99-100 per Gibbs, A-C.J. and Mason, J. and at 105 per Stephen, J.

[49] Reference may also be added to Ebatarinja v. Deland [1998] HCA 62; (1998) 194 C.L.R. 444 at 452-454.

[51] of the occurrence of which judicial notice may, I think, be taken.

[54] But it may be doubted whether that implicates the respondent.

[56] [1864] EngR 352; (1864) 10 HLC 704; 11 E.R. 1200

[58] McKain v. R.W. Miller & Co. (S.A.) Pty. Ltd. [1991] HCA 56; (1991) 174 C.L.R. 1 at 26-27 per Mason, C.J., adopted by Gleeson, C.J. and Gaudron, McHugh, Gummow and Hayne, JJ. in John Pfeiffer Pty. Ltd. v. Rogerson [2000] HCA 36; (2000) 74 A.L.J.R. 1109 at 1127.

[59] Salmond on Jurisprudence, 10th ed., 476, adopted in Adam P. Brown Male Fashions at 176-177. See also Poyser v. Minors (1881) 7 QBD 329 at 333-334, cited in, e.g., Minister for Army v. Parbury Henty & Co. [1945] HCA 52; (1945) 70 C.L.R. 459 at 489, Ousley v. The Queen at 114 and Schutt Flying Academy (Australia) Pty. Ltd. v. Mobil Oil Australia Ltd. [2000] VSCA 103 at para.34 per Ormiston, J.A.

[61] Returned & Services League of Australia (Victoria Branch) Inc. v. Liquor Licensing Commission [1999] VSCA 37; [1999] 2 V.R. 203 at para.[29].

[62] There is no express authority to apply for leave, the note to the clause 13 not being part of the Act: Interpretation of Legislation Act 1984, s.36(3); but it is clearly implicit.

[63] The Queen v. Hunt; Ex parte Sean Investments Pty. Ltd. [1979] HCA 32; (1979) 180 C.L.R. 322 at 329.

[64] Craig v. South Australia at [1995] HCA 58; (1995) 184 C.L.R. 163 at 177

[67] Clause 13 may in this regard be distinguished from s.37A(1) of the Evidence Act 1958, which by Rule 6 requires reasons for granting (it may be noted) leave to cross-examine to be given in writing, though by sub-s.(2) failure to do so does not invalidate the order. In Tzeegankoff v. Magistrates' Court the South Australian Full Court held that a magistrate had not erred in law in not giving reasons for refusing leave to call a witness for cross-examination. It was not too difficult to conclude that the magistrate had not been satisfied that there were "special reasons".

[69] See para.27 and cf. para.43. In the case of BAH, the point is made very clearly by para.66.

[71] in paras.68 to 72 (other, perhaps, than Australian Broadcasting Tribunal v. Bond [1990] HCA 33; (1990) 170 C.L.R. 321 at 328). Without purporting to be exhaustive I add the following: Sankey v. Whitlam (1978) 142 C.L.R. 1 at 82, per Mason, J.; The Queen v. Iorlano [1983] HCA 43; (1983) 151 C.L.R. 678 at 680_; Clyne v. Director of Public Prosecutions_ [1984] HCA 56; (1984) 154 C.L.R. 640 at 643, cf. at 660_; Beljajev v. Director of Public Prosecutions_ [1991] HCA 16; (1991) 173 C.L.R. 28 at 31; Re Rozenes; ex parte Burd [1994] HCA 11; (1994) 68 A.L.J.R. 372 at 373_; The Queen v. Elliott_ [1996] HCA 21; (1996) 185 C.L.R. 250 at 257_;_ Goldsmith v. Newman (1992) 59 S.A.S.R. 404 at 412_;_ Elliott v. Seymour [1993] HCA 70; (1993) 68 A.L.J.R. 173 at 175_; R. v. Colby & Kennedy_ (1995) 84 A.Crim.R. 125 at 129 and 130_;_ and Flanagan v. Commissioner of Australian Federal Police (1996) 134 A.L.R. 495 at 528-529. It is true that statements in some of the High Court cases reflect the peculiar position of that court as the ultimate court in the heirarchy and the need to obtain special leave to appeal to it; but in others of the High Court cases there are more general statements deprecating the interruption or delaying of criminal proceedings by applications for judicial review or prerogative relief in relation to some aspect of committal proceedings or interlocutory rulings by a trial judge.

[72] R. v. Basha (1989) 39 A.Crim.R. 337

[73] [1997] 2 V.R. 186 at 215