Director of Public Prosecutions v Smith [2024] HCA 32

HIGH COURT OF AUSTRALIA

GAGELER CJ,

EDELMAN, GLEESON, JAGOT AND BEECH‑JONES JJ

DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT

AND

DAVID JOHN SMITH RESPONDENT

Director of Public Prosecutions v Smith

[2024] HCA 32

Date of Hearing: 18 April 2024

Date of Judgment: 11 September 2024

M16/2024

ORDER

1. Appeal allowed.

2. Set aside the order made by the Court of Appeal of the Supreme Court of Victoria on 30 November 2023 and, in its place, the reserved questions of law be answered as follows:

1. Did the meeting infringe the principles of open justice as identified in Alec (a pseudonym) v The King [2023] VSCA 208?

It is unnecessary to answer the question as it does not arise in the proceeding.

2. Did the meeting bring the impartiality of the presiding judge into question?

It is unnecessary to answer the question as it does not arise in the proceeding.

3. Did the occurrence of the meeting represent a fundamental irregularity in the trial process, such as to constitute a serious departure from accepted trial processes?

No.

4. If the answer to questions 1, 2 and/or 3 is in the affirmative, is the only remedy for the evidence of the complainant to be taken at a further special hearing conducted before a different judge?

It is unnecessary to answer the question as it does not arise in the proceeding.

On appeal from the Supreme Court of Victoria

Representation

L T Brown SC with S C Clancy and J R Wang for the appellant (instructed by Office of Public Prosecutions (Vic))

P F Tehan KC with G J F Chisholm and B A Myers for the respondent (instructed by James Dowsley & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Director of Public Prosecutions v Smith

Criminal practice – Questions of law arising before trial – Questions of law referred to Court of Appeal – Case stated – Where accused charged with sexual offences against child under 16 years – Where judge and counsel for both prosecution and accused met with complainant before complainant gave evidence at "special hearing" – Where complainant was a minor – Where s 389E(1) of Criminal Procedure Act 2009 (Vic) provides that "[a]t a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding" – Where accused not present at meeting and meeting not recorded – Where meeting occurred consequent to recommendation of intermediary appointed under s 389J(1) of Criminal Procedure Act 2009 (Vic) – Whether meeting authorised by s 389E(1) – Whether meeting inconsistent with principle of open justice – Whether meeting a fundamental irregularity – Whether as a result of meeting fair‑minded lay observer might reasonably apprehend that judge might not bring impartial mind to resolution of any issue required to be decided in proceeding.