Page 149 - Magistrates Conference 2019

Mr. Rupert raised by the appellant at the trial. Strictly speaking these issues are not
included in the three headings of appeal listed by Kearns J. However, I find this

criticism equally unjustified. It has never been the law that a trial court must trawl

through every credibility point raised against a key witness and explain why it has
rejected it in its judgment. Under the jurisprudence of the European Court of Human

Rights, there would be a requirement for a judge who has listened to two opposing
points of view in the same area to explain his reasons in a general way as to why he

favoured one rather than the other. This could be especially so in a field of specialist

expertise. But that is a long way from saying that every credibility point against a
key witness must be expressly touched on and commented upon and dealt with in a

judgment.’ [emphasis added]

(83) In the Australian decision in Hunter v Transport Accident Commission and Avalanche,
one of the issues that arose on appeal was whether the trial judge’s reasons for her decision

were sufficient. In giving the decision of the court, Nettle JA said at paragraph 21:

“[21]…while the extent of the reasons will depend upon the circumstances of the

case, the reasons should deal with the substantial points which have been raised;
include findings on material questions of fact; refer to the evidence or other

material upon which those finding are based; and provide an intelligible
explanation of the process of reasoning that has led the judge from the evidence to

the findings and from the findings to the ultimate conclusion. It should also be

understood that the requirement to refer to the evidence is not limited to the evidence
that has been accepted and acted upon. If a party has relied on evidence or material

which the judge has rejected, the judge should refer to that evidence or material
and, in giving reasons which deal with the substantial points that have been raised,

explain why that evidence or material has been rejected. There may be exceptions.
But, ordinarily, where a judge rejects or excludes from consideration evidence or

other material which is relevant and cogent, it is simply not possible to give fair and

sensible reasons for the decision without adverting to and assigning reasons for the
rejection or exclusion of that material. Similarly, while it is not incumbent upon the

judge to deal with every argument and issue that might arise in the course of a case,

where an argument is substantial or an issue is significant, it is necessary to refer to
and assign reasons for the rejection of the argument or the resolution of the issue.
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