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Moularas v Nankervis [1985] VicRp 40; [1985] VR 369 (8 October 1984)

MOULARAS v NANKERVIS

SUPREME COURT OF VICTORIA

ORMISTON J

24-27, 30 July, 08 October 1984

Ormiston J: On 24 April 1983, the applicant made a complaint to the police that she had been raped that evening on the foreshore at Long Island, Frankston, by a man unknown to her. An exhaustive search was made for this man by the police, in the course of which an artist's impression appeared in the local newspaper. Eventually a man was interviewed who, it is said, alleged that he had intercourse with the applicant, but with her consent. It is also alleged that, when this was put to her on 5 May 1983, she changed her mind and admitted that her first complaint was false, making a second statement to that effect. Subsequently, although she has made a third statement reviving her original allegation of rape, she was charged with causing a false report to be made to the police, contrary to s53 of the Summary Offences Act 1966, by information dated 14 October 1983.

When that charge first came on for hearing on 16 November 1983, at Frankston Magistrates' Court, the applicant, in accordance with her rights under subs(5) of s53, objected to the charge being heard summarily and elected to the tried by jury. Consequently, that Court had no jurisdiction finally to determine the matter, but had power to hear and inquire into the matter, and to direct the person charged to be tried by a jury, upon presentment made as for an indictable offence, or to discharge her. It was submitted, correctly as it seems to me, that the consequence of this provision was that the inquiry so directed was indentical with the preliminary examination--or committal proceedings as they are more frequently called--in respect of which Magistrates' Courts ordinarily have jurisdiction under s50(1)(a) of the Magistrates' Courts Act 1971. It follows that the procedure to be employed was that prescribed by PtV, s43-s75 of the Magistrates (Summary Proceedings) Act 1975. To enable that preliminary examination to take place, the matter was then adjourned to the Melbourne Magistrates' Court, where it eventually came on for hearing on 30 May 1984, before Mr. Pilgrim SM.

The procedure proposed by the informant, the present respondent, for the hearing was by what is commonly called a "hand-up brief", pursuant to s45 and s46 of the Magistrates (Summary Proceedings) Act. Nothing in the material before me indicates that notice was given on behalf of the applicant pursuant to s45(9) requiring any witnesses to attend the preliminary examination to give evidence. When the matter was called on, counsel for the applicant immediately made a preliminary application "that publication of all report of the proceedings be prohibited, or at least publication of [the applicant's] name and address, and any evidence which would identify [her] be prohibited". It was pointed out that a reporter was sitting in court taking notes of the proceedings, that the charge was that of a false reporting of rape, and that the applicant still maintained that she had been raped. Reference was made to the statutory prohibition against the publication of names of victims of sexual offences. Great harm could be done to the applicant, it was argued, if reporting of the proceedings were allowed.

The Magistrate asked whether account should not be had of the victim of the charge, that is the man said to be falsely accused, and as to whether he should have the opportunity of being vindicated publicly. The Magistrate was told that defamation proceedings had been taken by the man against the local newspaper which had published the artist's impression with a related article, and that a solicitor was present in court representing the newspaper, which had already unsuccessfully sought permission to examine the hand-up brief. Counsel referred the magistrate to s43(1) and s44(4) of the Magistrates (Summary Proceedings) Act, and s48 of the Magistrates' Courts Act. The prosecutor neither objected to nor supported the application. The solicitor present sought to appear to oppose the application, but was refused leave to appear.

After a short adjournment the Magistrate gave his ruling. He dealt first with s48 of the Magistrates' Courts Act and s43 of the Magistrates (Summary Proceedings) Act, saying that certain words in both sections were similar, s43 referring to "public morality" and to the victim, and s48 referring to "public decency and morality", but not to the victim. He had perused the "hand-up brief" quickly and, from what he had read, it could not be suggested the public decency and morality would be affected. Therefore, those sections did not apply. He said that "they" were aimed at the protection of the victim and not the accused person, but I assume he was referring to the third limb of s43(1). He then dealt subs(4) of s44 of the Magistrates (Summary Proceedings) Act, relying upon two unreported judgments of Marks J: Boucher v McGinley (unreported, 22 March 1982) and R v Collins; Ex parte David Syme (unreported, 22 July 1982). I shall not deal in detail with these reasons as the application under s44(4) is not the subject of any ground of the order nisi to review. However, the Magistrate pointed out that this sub-section enabled prohibition of reports only if they would be likely to prejudice a fair trial. He rejected a submission that, because there was an alleged false rape report, a protection similar to that given by s47A of the Magistrates (Summary Proceedings) Act should be extended to the applicant. He concluded by saying that, having taken all these matters into account, the nature of the allegations themselves was "far from the extent required to offend public morality or decency", both in general terms and specifically in regard to the allegations which were all too frequently before the court in cases of sexual offences. Therefore, leaving aside the issues of public morality and decency, the only question left to be considered was whether there was a distinct probability that the applicant's fair trial would be prejudiced, and he was not satisfied that that was the case.

Thereafter the proceedings were adjourned because of this proposed application. An order nisi to review the Magistrate's rulings was obtained from Marks J on 26 June 1984, on a number of grounds, all related to the proper interpretation of s43(1) of the Magistrates (Summary Proceedings) Act, as follows:--

(1) That the Stipendiary Magistrate failed to consider properly or at all the interests of justice within the meaning of s43(1) of the Magistrates (Summary Proceedings) Act.

(2) That the Stipendiary Magistrate was wrong in holding that s43 of the Magistrates (Summary Proceedings) Act did not apply and therefore he did not have power to grant the application.

(3) That the Stipendiary Magistrate was wrong in holding that s43 of the Magistrates (Summary Proceedings) Act was aimed at the protection of the victim and not of an accused.

(4) That the Stipendiary Magistrate was wrong in holding that because it could not be suggested that public decency and morality would be affected, s43 of the Magistrates (Summary Proceedings) Act did not apply.

(5) That in refusing the application under s43 of the Magistrates (Summary Proceedings) Act, the Stipendiary Magistrate erred in law in the exercise of his discretion.

The only order taken out in the Magistrates' Court was that adjourning the proceedings, but I am not confined to the order formally taken out: cf Johnson v Collis and Krisohos [1981] VicRp 37; [1981] VR 349, at pp. 358-9, per Tadgell J. The order is described by Marks J in the order nisi as an order "whereby applications made pursuant to s48 of the Magistrates' Courts Act 1971, and s43(1) and s(44)4 of the Magistrates (Summary Proceedings) Act were refused". I shall assume that an application was made to close the court, pursuant to s43 of the Magistrates (Summary Proceedings) Act, although the affidavit material suggests that the primary object of the application was to prohibit the reporting of the case.

The first issue is whether the Magistrate erred in his construction of subs(1) of s43. S43, which is the first section in PtV of the Magistrates (Summary Proceedings) Act relating to "Indictable Offences", reads:--

"(1) In all proceedings for indictable offences the place in which a justice or justices or a Magistrates' Court sits to take a preliminary examination or statement shall not be deemed an open court for that purpose, and a justice shall, if it appears to him desirable to do so in the interests of justice or of public morality or of the reputation of a victim of an alleged sexual assault or offence of extortion order that no person, (except the counsel and solicitor for the prosecution or other person conducting the prosecution and the defendant and the counsel and solicitor of the defendant) shall have access to or be or remain in that place without the consent or permission of the justice during the preliminary examination or during the hearing of an application for an order under this sub-section.

"(2) Every preliminary examination taken by a justice or justices shall, where it is practicable, be taken at a place appointed for the holding of a Magistrates' Court.

"(3) Any person who wilfully disobeys an order under subs(1) may be punished under s46 of the Magistrates' Courts Act 1971 as if for contempt of court."

It is also necessary to refer to certain other sections to understand the powers given to justices and magistrates in certain proceedings. The following section, s44, is primarily directed to the restriction of the publication of reports of committal hearings and has had a curious history. When passed in 1975, it contained six sub-sections, but subs(1), subs(2) and subs(3) have not yet come into operation, although over eight years have passed since the rest of the Act was proclaimed. For some of the history of the section, see the report of the Statute Law Revision Committee upon s44 of the Magistrates (Summary Proceedings) Act 1975, published on 10 May 1978.

These first three sub-sections deal with confessions, opening statements and evidence objected to as inadmissible, and the only head of prohibition presently applicable is under subs(4), which reads:--

"Where a justice is sitting to take a preliminary examination or statement in a proceeding for an indictable offence, if he is satisfied that the circumstances are such that the publishing of a report of the proceeding or any part thereof or of any evidence adduced would be likely to prejudice the fair trial of any person, the justice may make an order prohibiting the publication of a report of the proceeding or part thereof or of any evidence adduced."

In the same Part there has been, since 1976, s47A which contains special rules closing the court in committal proceedings for certain sexual offences. Next, s48 of the Magistrates' Courts Act 1971 enables a magistrates' court hearing criminal and civil matters summarily to prohibit reports of proceedings on the grounds of public decency and morality. Finally I mention s78(1)(a) of the Magistrates (Summary Proceedings) Act which provides, in part, that in cases of summary jurisdiction:--

"The room or place in which the Court sits to hear the matter of an information or complaint shall be deemed an open Court to which the public generally may, subject to this Act, have access so far as the room or place can conveniently contain them..."

See also s6(4) and s47 of the Magistrates' Courts Act.

It can thus be seen that, as far as magistrates' courts and justices are concerned, the legislature has made separate provision relating to the opening of the court and the publication of reports of proceedings. Since the rulings of the Magistrate as to the publication of proceedings have not been challenged, rightly in my opinion, the issues are confined to the circumstances in which committal proceedings should be held in open or closed court.

If one compares s43(1) and s78 of the Magistrates (Summary Proceedings) Act, the contrast might at first lead to the conclusion that whereas in the hearing of matters determinable summarily magistrates are obliged to sit in open court, subject to certain limited exceptions, they are under no such obligation when sitting out of sessions and, in particular, when conducting preliminary examinations for indictable offences.

A careful examination of s43(1) and its history will show, however, that the open administration of justice has been seen by the courts to be of great importance, even in the case of justices or magistrates sitting out of sessions and, in particular, during the hearing of committal proceedings.

The curious expression "shall not be deemed an open court" in the section goes back to the reforms of Sir John Jervis, known as Jervis' Acts, which included both the Summary Jurisdiction Act 1848 (UK), 11 and 12 Vict. CL43 and the Indictable Offences Act 1848 (UK) 11 and 12 Vict. CL42. The latter contained the following section, sXIX, which in substance remained in effect in England until 1967 and has been reproduced with minor alterations by all the Australian legislatures:--

"The Room or Building in which such Justice or Justices shall take such Examinations and Statement as aforesaid shall not be deemed an open Court for that Purpose: and it shall be lawful for such Justice or Justices in his or their Discretion, to order that no Person shall have Access to or be or remain in such Room or Building without the Consent or Permission of such Justice or Justices, if it appears to him or them that the ends of Justice are best served by so doing."

Remarkably it appears that, notwithstanding that this was the first statutory provision explicitly allowing the examining justices to sit in closed session, the practical consequence of this legislation was that within a comparatively short time the practice arose of committal hearings ordinarily taking place in open court: see Report of the Departmental Committee on Proceedings before Examining Justices (The Tucker Committee) Cmnd. 479, 1958, pp. 3-5. Probably this occurred because, as Sir James Fitzjames Stephen pointed out in his History of the Criminal Law in England, 1883, vol. I, p. 221, the real difference between the procedure before and after Jervis' Act was that, whereas formerly the examining justice acted the part of a public prosecutor and inquisitor, thereafter he occupied the position of a preliminary judge. Previously the accused was often questioned without any right to legal assistance, let alone representation (Cox v Coleridge (1822) 1 B and C 37; [1822] EngR 19; 107 ER 15); thereafter witnesses were examined and cross-examined by counsel or solicitor and the accused could be asked no questions, but simply cautioned and invited to make a statement: see also R v Gray (1865) 10 Cox CC 184, at p. 194 (quoted below).

The words in question have been on the statute book with relatively little change for many years: cf. s83 of the Justices of the Peace Act 1865 (Vic.). The very fact that they point to a discretionary power in justices to control their own proceedings has meant that there is little reported authority on them, for it is not a subject likely to lead to judicial review, for the reason that they have not led and do not lead to any final or conclusive determination of the prosecution. Most of the reported cases have been cases of libel or contempt arising out of the publication of reports of committal proceedings.

In the first such case after the passing of the 1848 Act, Lewis v Levy (1858) El Bl and El 537, at pp. 558-9; [1858] EngR 785; 120 ER 610, at p. 617, Lord Campbell CJ, in delivering the judgment of the Court of Queen's Bench, stated: "But, although a magistrate upon any preliminary inquiry respecting an indictable offence may, if he thinks fit, carry on the inquiry in private, and the publication of any such proceedings before him would undoubtedly be unlawful, we conceive that, while he continues to sit foribus apertis, admitting into the room where he sits as many of the public as can be conveniently accommodated, and thinking that this course is best calculated for the investigation of truth and the satisfactory administration of justice (as in most cases it certainly will be), we think the Court in which he sits is to be considered a public Court of justice.... In R v Wright...that great Judge, Mr. Justice Lawrence...observed that, though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings."

The substance of these observations was repeated with approval by Lord Hewart CJ, in a case relating to a charge to a grand jury in R v The Evening News; Ex parte Hobbs [1925] 2 KB 158, at pp. 167-8.

The earlier libel cases were explained seven years after Lewis v Levy in the Court of Queen's Bench in Ireland by Fitzgerald J, in R v Gray (1865) 10 Cox CC 184, at p. 194: "Proceedings before the magistrates at that time were really ex parte. They usually took place in the magistrates' house; there was no right in the public to be admitted; they were, as I have said, really and truly ex parte proceedings, and liable to great abuse. But, in the altered state of the law, it is totally different. It is true, as has been observed, that the magistrates may, in the exercise of the discretion which has been entrusted to them, sit with closed doors and exclude the public; but I would say that is a discretion which ought rarely to be exercised. There may be possibly cases of such indecency or otherwise as would make it expedient; but the cases must be rare and few, indeed, which would justify the magistrates at a criminal investigation in sitting with closed doors; and on the other hand, while it gives the magistrate that discretion, it makes the police court, unless such an order is made, an open court to which the public have the right to be admitted."

His Lordship forcefully explained the rationale behind the need for open courts in these circumstances, at p. 193 of his judgment: "I have always understood, in common with the Lord Chief Justice [that is Lord Campbell CJ] that one of the many securities for the administration--the pure administration--of justice in this country--one which distinguishes it from the administration of justice in most countries--is the great security of publicity. That applies as well to this as to other superior courts; but it applies, in my mind, in a much stronger degree to the proceedings of inferior courts, and especially to the proceedings--to the inquiries that take place in what we popularly call the police courts, courts where questions of great importance are under consideration, and in which--if not the lives--the liberties and characters of persons are commonly at stake. It appears to me that the security obtained by publicity for the due administration of justice is this, that it brings to bear on that administration at once the pressure and support of public opinion--its pressure to prevent intemperance on the part of the judge--pressure to prevent corrupt or improper proceedings, and, on the contrary, its support where justice is administered in a pure, fair, and legitimate manner. It has been said, and said truly, that possibly in particular cases there may may be inconvenience to individuals from the early publication of evidence or of statements with respect to matters that are subsequently to be tried more solemnly; but it has been well observed, too, that this inconvenience to individuals is infinitesimal in comparison to the great public advantage given by that publicity."

The latter part of this passage was also quoted with approval by Lord Hewart CJ, in R v The Evening News; Ex parte Hobbs, at ([1925] 2 KB) p. 168. The next direct discussion of the section appears in Kimber v The Police Association [1893] 1 QB 65, where Lord Esher said, at pp. 68-70: "Under certain circumstances ... publication may be very hard upon the person to whom it is made to apply, but public policy requires that some hardship should be suffered by individuals rather than that judicial proceedings should be held in secret. The common law, on the ground of public policy, recognizes that there may be greater danger to the public in allowing proceedings to be held in secret than in suffering persons for a time to rest under an unfounded charge or suggestion... "It was said that at a later part of the proceedings where the summons had been issued and was before the Court for hearing, s19 provided that the Court or room in which the magistrates sat should not 'be deemed to be an open Court', and that it would be ridiculous if the Court or room were to be deemed an open Court when the application for the issue of the summons was heard. I cannot see that. Nor can I agree with the meaning sought to be given to the section. All that it says is that 'the room or building in which justice or justices shall take such examination and statement as aforesaid shall not be deemed to be an open Court for that purpose; and it shall be lawful for such justice or justices, in his or their discretion', to order the Court to be closed to the public. Having regard to the fair meaning of the enactment it is obvious from the second part that the justices have a discretion whether they will allow the public to be in the Court or not. They may, or they may not, abstain from preventing the public from remaining there. The only meaning of the section is that the Court is not to be deemed an open Court if the justices exercise their discretion by ordering it to be closed to the public; but, if it is not so closed by order of the justices, then it is an open Court."

Kay LJ said, at pp. 75-6: "I also agree that in the present case there is a possible hardship to the plaintiff in the publication of the report. But it is of such extreme importance that publicity should be given to all judicial proceedings that that consideration seems to me to outweigh what have been pointed out as the possible evils attending a publication of this kind."

I have looked at various editions of Burns' Justices of the Peace, Stones' Justices Manual, Irvine's Justices of the Peace, Quick and Berriman's The Victorian Magistrate and Paul's Justices of the Peace, and also at Halsbury, Laws of England, 1st ed., vol. 9, pp. 311-12 and it appears that the practice hardened in the last part of the nineteenth century to concluding that a closed hearing was the exception rather than the rule. See also R v Skates (1895) 60 JP 11 at p. 12, per Hawkins J and Re Gibson; Ex parte Price (unreported, Manning J, Supreme Court of New South Wales) noted in (1958) 31 ALJ 630. In R v Katz (1900) 64 JP 807, Darling J held that a deposition taken during a preliminary examination by a hospital bed, though not held in open court, was admissible in evidence at the trial, but in my opinion he did no more than confirm that the magistrate had a discretion in appropriate circumstances not to sit in open court.

Moreover, the language of the section, both in Jervis' Act and in its present form, points to a requirement that the examining magistrate should find specific grounds for excluding the public if the proceedings are not to be held in open court. The usual practice in holding committal proceedings for many years has been to conduct them in open court at the ordinary places appointed for the sitting of magistrates' courts: cf. subs(2). No doubt some reason for this procedure includes the provisions contained in s70 of the Magistrates' Court Act and s71(4) of the Magistrates (Summary Proceedings) Act, which enable committal proceedings for indictable offences to be converted into final hearings determined summarily by magistrates' courts. The election or decision to deal with the charges summarily need not be made at the beginning of the hearing, and it would therefore be undesirable to commence proceedings in closed court which might, in particular circumstances, lead to the final determination of the charges.

Much criticism has been made over the years of the reporting of committal proceedings, and this has led in England to amendments to the law providing that those proceedings are held by law in open court but the reporting of them is restricted to a few formal matters: see the Criminal Justice Act 1967 and the Magistrates' Courts Act 1980. For that reason, neither R v Horsham Justices; Ex parte Farquharson [1982] QB 762 or R v Leeds Justices; Ex parte Sykes [1983] 1 WLR 132; [1982] 1 All ER 460 are of direct relevance to the present case, although each contains some discussion of the meaning of the expression "in the interests of justice" in the context of that legislation. It is significant that no such reform has been introduced in Victoria, except for the matters contained in s44 and s47A of the Magistrates (Summary Proceedings) Act.

It is not useful to repeat all that has been said in other cases about the virtues of open court hearings, although I consider most of it applicable to committal proceedings. I shall cite only what Gibbs J, said in the High Court in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495, at p. 520; 9 ALR 103, at p. 122: "It is the ordinary rule of the Supreme Court, as of other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' (Scott v Scott [1913] AC 417 at 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for 'publicity is the authentic hallmark of judicial, as distinct from administrative, procedure' (McPherson v McPherson [1936] AC 177)."

Those observations are relevant, in my opinion, notwithstanding the fact that committal proceedings are characterized as ministerial: cf Phelan v Allan [1970] VicRp 28; [1970] VR 219; Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415, at p. 435; Pearce v Cocchiaro [1977] HCA 31; (1977) 137 CLR 600, at p. 606; and the cases cited therein. Generally, the justification for open courts has otherwise been best explained in Scott v Scott [1913] AC 417, at pp. 441, 463, 477-8; Attorney-General v Leveller Magazine [1979] AC 440, at pp. 449-50; R v Kerr (No 2) [1951] VicLawRp 31; [1951] VLR 239; David Syme and Co Ltd v General Motors-Holden Ltd [1984] 2 NSWLR 294; Broadcasting Corporation of New Zealand v Attorney-General [1982] 1 NZLR 120; and Richmond Newspapers v Virginia [1980] USSC 154; 448 US 555 (1980).

Bearing in mind the long history of s43(1) and the practice over many years, and having had the benefit of extensive and careful argument from counsel for both parties, I have reached the conclusion that it is consistent with its proper interpretation that the well accepted principles as to the desirability of open hearings are applicable as a general rule to committal proceedings. There remains a discretion, for good reason, not to hold them in open court and I would not like to lay down finally what are the exceptions to the general rule. The three limbs for exclusion contained in s43(1), namely the interests of justice, public morality, and the reputation of victims of two classes of offence, would appear to cover most, if not all, cases justifying the closing of the court for these proceedings. In particular the "interests of justice" cover a wide range of circumstances, which, however, must all be related to the proper administration of justice, including the organization of justices and magistrates' courts and their hearings, and the interests of the informant and the accused to the extent necessary to ensure that all parties obtain a just, efficient and expeditious hearing. See also the Tucker Committee Report, 1958, p. 5 and cf Attorney-General v Leveller Magazine [1979] AC 440, at pp. 450, 470-1. Finally it must be remembered at all times that closing the court to the public is a more serious step than imposing restrictions on the reporting of proceedings.

It is next necessary to see what the Magistrate said and did in the present case. In the first place, he held two of the specific limbs of exclusion in s43(1) to be inapplicable. He said that this was not a case in which the interests of public morality required that the court should be closed. In this, I believe he was correct, as far as I can judge from the material before me. In any event it was a matter involving his discretion, and I cannot see that it miscarried in any way. No argument was put to the contrary.

Secondly, he said that it was not a case in which the interests of a victim of an alleged sexual assault were in issue. It was strongly argued that the applicant was the victim of an alleged sexual assault, because she had made the original complaint and she was now, again, asserting that she had been raped: ground 3. In my opinion, looking at the purpose of this section, I am convinced that the discretion is to be exercised for the benefit of complainants, especially when they are witnesses, and not for the benefit of the accused. I consider that the broad ground of "the interests of justice" in the sub-section, as well as the related basis for restricting the publication of reports under s44(4), is intended to give the appropriate protection to an accused person. I know of no case where the word "victim" has been construed, but I consider that in its context it imports that it is the prosecution case which alleges that the person is a victim, and it does not apply to cases where another party, namely the defendant or accused, seeks to maintain she was a victim of such an assault. It is primarily intended to protect the feelings and reputation of witnesses who are obliged to give evidence in committal proceedings, so that the Magistrate correctly held that this was no basis for closing the court.

However, the first limb for closing the court contained in the section, namely that it was in the interests of justice to do so, does not appear specifically to have been considered by the Magistrate. He separately reached the conclusion that subs(4) of s44 should not be applied to restrict reporting of the case, and no challenge has been made to that ruling, which was based on the fact that the Magistrate did not consider that the fair trial of the applicant would be prejudiced. So it is only if the "interests of justice" extend beyond the need for a fair trial, that the first head of s43(1) could be of relevance in the present case.

It was argued that this head was wider, had not been considered by the Magistrate, and should have been applied because the applicant was facing a charge of falsely reporting a sexual assault: grounds 1, 2, 4, and 5. It was said that the applicant may be discharged or acquitted and her reputation could still be tarnished as a result of the proceedings. No doubt both the third limb and s47A were introduced to protect the reputation of victims of sexual assaults, but neither applies in this case.

In the end, I think the Magistrate erred technically in not considering the first limb of s43(1) and he should have done so. In my opinion, however, the interests of justice in cases such as the present could only rarely justify the extreme step of closing the court. I would not like to restrict further the magistrate's discretion in these cases; he is best able to judge what the overall effect of such an order might be. However, if I had to exercise the discretion for myself, I doubt that this would be an appropriate case for shutting the court. The open administration of justice should be seen to be predominant and, as far as the accused is concerned, the "interests of justice" could only be invoked if the case is one in which it can be seen clearly that there might be some prejudice to the fair hearing of the case.

Technically, therefore, the Magistrate was in error. However, assuming that the Magistrate's ruling was an "order" (cf McGrath v Dobie (1890) 16 VLR 646; Weppner v Arnold [1923] VicLawRp 17; [1923] VLR 127; Phelan v Allan [1970] VicRp 28; [1970] VR 219; at p 223; cf Hall v Braybrook [1956] HCA 30; (1956) 95 CLR 620, at p. 635), I consider that this is a case where I have a discretion whether or not to make the order absolute: see Byrne v Baker [1964] VicRp 57; [1964] VR 443, at p. 460; Mudge v O'Grady [1965] VicRp 8; [1965] VR 65, at p. 70; Wilson v Kerr [1980] VicRp 2; [1980] VR 17. This is a matter relating to the day to day administration by magistrates of their power generally to control proceedings: cf O'Toole v Scott [1965] AC 939. Here, the matter may be considered by the magistrate from time to time. There have been many judicial observations recently as to the undesirability of interfering with committal proceedings: see Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 146; Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, at p. 22; cf at p. 83; Summers v Cosgriff [1979] VicRp 56; [1979] VR 564; Spautz v Williams [1983] 2 NSWLR 506, at pp. 515-16; Lamb v Moss [1983] FCA 254; (1982) 49 ALR 533, at pp. 545-6; and Seymour v Attorney-General [1984] FCA 122; (1984) 53 ALR 513, at pp. 534-40. Such interference is strongly to be deprecated and I see no good reason why any relief, by way of order to review or prerogative writ, should be granted to deal with matters which are procedural at best and are to be determined by the presiding magistrate as he sees the proceedings before him. For those reasons, I shall discharge the order nisi. I do not propose to make any order as to costs.

The order, therefore, is that the order nisi be discharged.

Order nisi discharged.

Solicitor for the applicant: Legal Aid Commission of Victoria.
Solicitor for the respondent: RJ Lambert, Crown Solicitor.


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