TZEEGANKOFF v THE MAGISTRATES COURT No. SCGRG-98-528 Judgment No. S6857 [1998] SASC 6857

3 The applicant was charged with murder. A notice was filed pursuant to the Magistrates Court Rules ahead of the committal proceedings in which it was submitted that issues of self-defence were crucial to the defence. It also said that the pathologist's report was of significance and should also be the subject of an order. By the notice filed, the applicant sought to have some six witnesses to a fight between the accused and the deceased cross-examined. An amendment to the r20 notice sought to add some further three people to the list sought to be cross-examined. The magistrate heard submissions. The applicant's counsel referred to a decision of this Court .

4 The magistrate simply refused leave to call witnesses for oral examination, giving no reasons for his refusal. S106 of the Summary Procedure Act 1921 provides that a court will not grant leave to call a witness for oral examination unless satisfied that there are special reasons for doing so.

5 The principal submission made on the hearing of the application was that the magistrate should have given reasons and that a reviewable error in law is identified by his failing to do so. That submission would have succeeded in proceedings in the Supreme Court of New South Wales with respect to provisions similar to s106. The remedy there is not by way of judicial review. S48E and s134 of the Justices Act 1902 (NSW) are part of a statutory scheme which provides that justices must give reasons for refusing to give directions and that the Supreme Court may direct a justice to do any act relating to the duties of his or her office. The authorities cited to this Court with respect to the New South Wales provisions are of no assistance with respect to any relief available by way of judicial review in this State .

6 S42 of the Magistrates Court Act 1991 makes plain that there is no right of appeal against the magistrate's decision. It is the right of appeal that is often used to maintain the proposition that judicial officers are under an obligation to give reasons. Nevertheless, there is no inflexible rule of universal application that reasons should be given for judicial decisions. That is a normal, but not a universal incident. It is normal in the case of final decisions and other matters the subject of a right of appeal . It is not too difficult to conclude, in this case, that the magistrate was not satisfied that there were special reasons and that in arriving at that decision he had regard to the provisions of s106 and the authority of this Court cited to him. I reject the submission that reasons were required in this case . In previous decisions of this Court the apparent absence of reasons for not finding special reasons under s106 has not been the subject of criticism .

7 In Watson v Anderson , Bray CJ referred to Pettit v Dunkley . His Honour agreed with the decision but added that he could not,

"regard it as laying down a universal proposition that every judge must give reasons for every decision he makes and that every such decision will automatically be set aside on appeal if he does not. ...

Of course, if there is a trial on oral evidence and the facts are in dispute, it is impossible for the appellate court to deal with the judge's decision if it does not know what facts he has found. The real criterion, it seems to me, must be whether the failure to give reasons frustrates the performance of its duty by the appellate court. This does not happen in every case when no reasons are given.

In dealing with this matter something may turn on whether or not the decision in question is appealable and, if so, whether as of right or only by leave, but I think that this is not a decisive matter. It may be that if there can be no appeal and no possibility of the decision being questioned in any other way - and it is hard to predicate any decision of which that would be completely true - there is no obligation to give reasons, but it does not follow that any failure to give reasons where there is a possibility of appeal amounts to an error of law."

8 In the matter then before the Full Court, which was an interlocutory order, the Full Court concluded that there was no obligation to give reasons for refusing an application to have judgment set aside. The Chief Justice spoke of it being preferable for reasons to be given for every judge's decision. It is not an error of law to fail to give reasons for an interlocutory decision with respect to which there is no right of appeal .

9 There is only one possible basis for interference by this Court by way of judicial review. That would be if the decision was so unreasonable or unintelligible that it could only have been arrived at on an erroneous understanding of the statutory provisions . It must always be remembered that judicial review is more concerned with the decision-making process than with the decision itself. It is concerned with the merits in, at best, no more than a most limited way .

10 The matter remains as it was when Grieve's case was decided. The magistrate's decision is final and not properly the subject of appeal or review . No review is appropriate given the considerations operating against the grant of such relief in respect of committal proceedings and because the refusal cannot be said to be so unreasonable, on the material before the magistrate, that no reasonable person would ever have come to the conclusion that he did .

11 I agree that the application for judicial review should be dismissed.

12 I agree with the reasons given by Prior J for our decision on 15 September 1998 to dismiss this application.