Director of Public Prosecutions v SmithCitation:[2024] HCA 32Before:Gageler CJ, Edelman, Gleeson, Jagot, Beech-Jones JJDate:11 Sep 2024Case Number:M16/2024Read more

Director of Public Prosecutions v SmithCitation:[2024] HCA 32Before:Gageler CJ, Edelman, Gleeson, Jagot, Beech-Jones JJDate:11 Sep 2024Case Number:M16/2024Read more

The meeting between the judge, counsel, and complainant (minor), held without the accused present and not recorded, was not authorised by s 389E(1) of the Criminal Procedure Act 2009 (Vic), was inconsistent with the principle of open justice, and constituted a fundamental irregularity giving rise to a reasonable apprehension of bias.

Parties
Prosecution: The Queen; Accused: Accused (name not stated)
Jurisdiction
Australia
Judgment Date
11 September 2024
Procedural Posture
Criminal / Pre Trial Question of Law Referred to Court of Appeal
Outcome
question answered in the negative; meeting not authorised; fundamental irregularity found
Legal Topics
Sexual Offences Against Minors, Ground Rules Hearing, Open Justice, Judicial Impartiality, Apprehension of Bias
Criminal Law Procedure Human Rights Sexual Offences Against Minors Ground Rules Hearing Open Justice Judicial Impartiality Apprehension of Bias

Case Brief

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Parties

The Queen

Prosecution

Accused (name not stated)

Accused

Procedural Posture

Criminal / Pre Trial Question of Law Referred to Court of Appeal

Legal Issues

  1. 1 Whether a meeting between judge, prosecution, defence counsel, and complainant (minor) before evidence at special hearing, without accused present and not recorded, is authorised by s 389E(1) of Criminal Procedure Act 2009 (Vic)
  2. 2 Whether such a meeting is inconsistent with the principle of open justice
  3. 3 Whether the meeting constitutes a fundamental irregularity

Ratio Decidendi

The meeting between the judge, counsel, and complainant (minor), held without the accused present and not recorded, was not authorised by s 389E(1) of the Criminal Procedure Act 2009 (Vic), was inconsistent with the principle of open justice, and constituted a fundamental irregularity giving rise to a reasonable apprehension of bias.

Court Disposition

question answered in the negative; meeting not authorised; fundamental irregularity found

Orders

  • The meeting was not authorised by s 389E(1) of the Criminal Procedure Act 2009 (Vic).
  • The proceeding affected by the meeting is fundamentally irregular.