JUDGE:	Eames J
WHERE HELD:	Melbourne
DATES OF HEARING:	6 and 7 March 2000
DATE OF JUDGMENT:	24 March 2000
CASE MAY BE CITED AS:	Tural v Potter and Magistrates Court; “B.A.H“ v Magistrates Court & Anor.
MEDIUM NEUTRAL CITATION:	[2000] VSC 80

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Procedure – Committal hearing – Witnesses – hand-up brief – application for leave to cross examine witnesses – application refused – whether judicial relief available – whether orders in nature of certiorari, mandamus, prohibition should be granted – Basha inquiries – reasons for decision - Magistrates Court Act 1989, as amended by Act No. 10 of 1999, Schedule 5, cl. 13 – Magistrates’ Court (Committals) Rules 1999, R.9.01, R.9.02 – Crimes (Criminal Trials) Act 1999.
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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (Tural)	Mr R. Bourke	Galbally & O'Bryan
For the Plaintiff (B.A.H.)	Mr D. Wraith	Victorian Legal Aid
For the Defendants	Mr R.A. Elston	Solicitor for Public Prosecutions

Table of Contents

IS RELIEF IN THE NATURE OF CERTIORARI, MANDAMUS AND PROHIBITION AVAILABLE?.......................... 4

CERTIORARI................................................................................................................................................................................. 5

THE LIMITS OF OPERATION OF CERTIORARI.................................................................................................................. 7

MANDAMUS................................................................................................................................................................................ 10

PROHIBITION............................................................................................................................................................................. 11

THE INTENDED SCHEME OF SCHEDULE 5......................................................................................................................... 12

ANALYSIS OF THE APPLICATIONS.................................................................................................................................... 16

THE APPLICATION FOR LEAVE BY TURAL...................................................................................................................... 16

THE APPLICATION FOR LEAVE BY “B.A.H.“................................................................................................................... 21

SHOULD RELIEF BE GRANTED? – DISCRETIONARY FACTORS............................................................................... 27

THE BASHA INQUIRY............................................................................................................................................................... 29

ABSENCE OF REASONS.......................................................................................................................................................... 32

THE MAGISTRATES COURT (COMMITTALS) RULES 1999......................................................................................... 34

CONCLUSION............................................................................................................................................................................. 35

HIS HONOUR:

These are two applications for judicial review under Order 56 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 1996. An order was made by a Master of the Court that the two applications for review should be heard together as they raise common issues. In both actions complaint is made about a decision of a magistrate to refuse leave for the cross-examination of persons in committal proceedings. Those persons made statements which form part of the hand-up briefs for the committals and notice seeking leave to cross-examine was given in each case pursuant to cl.12 of Schedule 5 of the Magistrates Court Act 1989 (hereafter referred to as “the Act“). In the case of one of the proceedings I have identified the plaintiff only as “B.A.H“, although the proceedings were issued in the name of that plaintiff. I do so, lest the identity of the witnesses be disclosed. They are the daughters of B.A.H.

The provisions of Schedule 5 were introduced by Act No. 10 of 1999 and commenced operation on 1 July 1999. Before examining the present legislation it is useful to examine the relevant legislation as it applied prior to its repeal and replacement by the new legislation. The scope of the earlier legislation is discussed in detail by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tural v Potter

Details

AGLC: Tural v Potter; B a H v Magistrates' Court of Victoria [2000] VSC 80
Case: [2000] VSC 80
Decision Date: 24 March 2000

CaseChat Overview and Summary

In the Magistrates Court of Queensland, the case of Tural v Potter involved a dispute regarding the refusal of an application for leave to cross-examine witnesses during a committal hearing. The defendant, Tural, sought to challenge the decision of the court that declined his request to cross-examine witnesses in a hand-up brief. The legal issues at the heart of this case centred on the availability of judicial relief and whether orders such as certiorari, mandamus, or prohibition should be granted to permit the cross-examination.

The court examined the principles outlined in the Basha inquiries and the Magistrates Court Act 1989, as amended, along with the relevant rules under the Magistrates’ Court (Committals) Rules 1999. Specifically, the court considered clauses 13 of Schedule 5 of the Act and rules 9.01 and 9.02 of the Magistrates’ Court (Committals) Rules 1999. The court meticulously reviewed the reasons for the decision to determine if there was any basis for granting the relief sought by the defendant. After careful consideration, the court concluded that the decision to deny the application for leave to cross-examine witnesses was within the discretion of the trial judge and did not warrant judicial intervention.

The court found that the trial judge had appropriately exercised their discretion in denying the application for cross-examination, and there was no error of law that justified the granting of relief. Consequently, the application for leave to cross-examine witnesses was dismissed, and no orders in the nature of certiorari, mandamus, or prohibition were granted. The decision was grounded in the understanding that the trial judge's discretion in such matters should be respected, barring any clear error of law or procedural injustice.

Orders