Director of Public Prosecutions v Smith [2024] HCA 32

Director of Public Prosecutions v Smith [2024] HCA 32

A meeting between the presiding judge and the child complainant attended also by counsel for the prosecution and defence, but not by the accused and not recorded, does not constitute a fundamental irregularity in the trial process where counsel for both parties had notice, attended, and no prejudice or apprehension of bias was established; such a meeting may fall within the ground rules directions power of s 389E(1) of the Criminal Procedure Act if it is for the fair and efficient conduct of the proceeding, is not itself a hearing, and does not impinge on the fairness of the eventual trial.

Parties
Appellant: Director of Public Prosecutions; Respondent: David John Smith
Jurisdiction
Australia
Judgment Date
11 September 2024
Procedural Posture
Criminal Appeal / High Court of Australia Appeal From Supreme Court of Victoria Court of Appeal
Outcome
Appeal allowed
Legal Topics
Open Justice, Special Hearings, Impartiality of Judge, Fundamental Irregularity, Ground Rules Hearings, Sexual Offences, Procedural Fairness, Apprehension of Bias, Directions for Conduct of Proceedings
Criminal Law Procedure Human Rights Law Open Justice Special Hearings Impartiality of Judge Fundamental Irregularity Ground Rules Hearings +4 more

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Parties

Director of Public Prosecutions

Appellant

David John Smith

Respondent

Procedural Posture

Criminal Appeal / High Court of Australia Appeal From Supreme Court of Victoria Court of Appeal

Legal Issues

  1. 1 Whether a meeting between the judge, prosecution and defence counsel, and child complainant, in the absence of the accused and not recorded, infringed principles of open justice or impartiality.
  2. 2 Whether s 389E(1) of the Criminal Procedure Act 2009 (Vic) authorised such a meeting.
  3. 3 Whether the meeting constituted a fundamental irregularity in the trial process requiring a further special hearing before a different judge.

Ratio Decidendi

A meeting between the presiding judge and the child complainant attended also by counsel for the prosecution and defence, but not by the accused and not recorded, does not constitute a fundamental irregularity in the trial process where counsel for both parties had notice, attended, and no prejudice or apprehension of bias was established; such a meeting may fall within the ground rules directions power of s 389E(1) of the Criminal Procedure Act if it is for the fair and efficient conduct of the proceeding, is not itself a hearing, and does not impinge on the fairness of the eventual trial.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Set aside the order made by the Court of Appeal of the Supreme Court of Victoria on 30 November 2023.