S v Stefan Peter Metanomski and State of South Australia No. SCRG 92/2666 Judgment No. 3805 Number of Pages 5 Prerogative Writs Criminal Law and Procedure (1993) 65 a Crim R 353

In this case, the plaintiff, a medical practitioner, has been charged with two counts of procuring by intimidation for alleged sexual acts between April 1991 and September 1992. The plaintiff sought to have two witnesses, the alleged victim and her male friend, called for oral examination at a preliminary hearing. The application was heard before the commencement of the preliminary examination, and both applications were refused. The plaintiff then sought an order in the nature of certiorari quashing the magistrate's order and an order in the nature of mandamus directing him to grant leave. The plaintiff also sought declarations of his right to the orders sought from the magistrate and an injunction or order in the nature of prohibition forbidding the continuance of the preliminary examination until the orders for oral examination and the view have been made. The court considered whether there was an error of law on the face of the record which would legally justify an order in the nature of certiorari. The court noted that there were strong considerations against the exercise of the jurisdiction in relation to preliminary examinations even where there are legal grounds for the making of an order by way of Judicial Review. The court found that the magistrate had not made an error of law and that the decision was not so unreasonable that it could have been arrived at only as a result of an erroneous understanding of the legal test. Therefore, the claim for remedies by way of Judicial Review must fail and the action must be dismissed.

The court considered the arguments presented by the plaintiff's counsel, who contended that an expression used by the magistrate indicated an erroneous understanding of the section. The court found that the expression used by the magistrate did not disclose an error of law. The court also considered the arguments in favour of allowing a limited cross-examination of the kind sought, but noted that there were countervailing considerations to be weighed by the magistrate. The court found that the magistrate was required to weigh the considerations and reach a decision, and that the fact that he reached a decision which might be erroneous on the merits does not mean that he misconceived the test which he had to apply. The court found that no error of law had been demonstrated, and that there was therefore no legal basis for the grant of the orders sought. The question of whether the discretion of the Court should be exercised to grant such relief in relation to what are criminal proceedings did not arise. The court found that the claim for remedies by way of Judicial Review must fail and the action must be dismissed.