In Director of Public Prosecutions v Smith [2024] HCA 32 (11 September 2024), the High Court allowed an appeal from the Court of Appeal of the Supreme Court of Victoria.
The accused was charged with three offences of sexual assault of a child under 16 years pursuant to s49D(1) and one offence of sexual penetration of a child under 16 years pursuant to s49B(1) of the Crimes Act 1958 (Vic). The accused indicated that he would enter a plea of not guilty.
The complainant was a minor and an intermediary was appointed under s389J(1) of the Criminal Procedure Act 2009 (Vic) (Criminal Procedure Act). The intermediary prepared a report that recommended a meeting between the judge and complainant take place prior to giving evidence at a special hearing, to assist the complainant’s confidence. There was no objection from counsel for the accused to this proposal.
Prior to the special hearing, the judge met with the complainant along with counsel for the prosecution and counsel for the accused at the office of the Child Witness Service. The accused was not present, and the private meeting was not recorded.
Following the special hearing, the Court of Appeal of the Supreme Court of Victoria published reasons for judgment in the matter of Alec (a pseudonym) v the King (2023) 72 VR 161. In Alec, the trial judge met with the witness privately without the presence of counsel for the parties or the accused. The Court of Appeal set aside a conviction and ordered a retrial on the basis that there had been a substantial miscarriage of justice as a result of an error or irregularity pursuant to 276(1)(b) of the Criminal Procedure Act. The trial judge in Alec had met with the witness privately.
Counsel for the accused in Smith submitted that the recording of the special hearing was inadmissible in light of the decision in Alec. The prosecution submitted that, given counsel for both accused and prosecution were present, the recording of the special hearing was admissible and applied for the County Court of Victoria to reserve a question of law arising before the trial for determination by the Court of Appeal. The Court of Appeal answered that the private meeting infringed on the principle of open justice in Alec.
The prosecution then appealed to the High Court, and the majority held: “. . . the issue is not lack of power, but (as the reasoning in Alec correctly exposes) the apprehension of bias that ordinarily would arise if a judge met a witness in the absence of legal representatives for all parties” (at [83]).
On the question of whether the private meeting represented a fundamental irregularity constituting a serious departure from the trial process, the majority held:
“In these circumstances it cannot be said that a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of any question the judge is required to decide in the criminal proceeding.” (at [95])
Edelman J, in minority, rejected that s389E(1) empowered the court to direct that a private meeting take place excluding the accused and stated that the decision conferred, “. . . a discretion upon the Victorian judiciary to give directions for private meetings between a judge and a witness but excluding the accused, at least where those private meetings are also attended by counsel” (at [167]).
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