Director of Public Prosecutions v Smith

[2024] HCATrans 27

[2024] HCATrans 027

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M16 of 2024

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and

DAVID JOHN SMITH

Respondent

GAGELER CJ
EDELMAN J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 APRIL 2024, AT 10.00 AM

Copyright in the High Court of Australia

MR L.T. BROWN, SC:   If your Honours please, I appear with MS S.C. CLANCY and MS J.R. WANG for the appellant.  (instructed by the Office of Public Prosecutions (Vic))

MR P.F. TEHAN, KC:   May it please the Court, I appear with my learned friends MR G.J.F. CHISHOLM and MS B.A. MYERS for the respondent.  (instructed by James Dowsley & Associates)

GAGELER CJ:   Thank you.  Mr Brown.

MR BROWN:   Thank you, your Honour.  If the Court pleases, this appeal concerns whether it was a “fundamental irregularity” in a criminal proceeding for a judge to meet with a child complainant – the principal prosecution witness – outside the court in the presence of both the prosecutor and counsel for the accused.

I would like to start with some brief introductory remarks about the case before I delve into some submissions on the appeal.  In summary, the respondent faces trial in the County Court of Victoria on an indictment on charges of sexual assault and sexual penetration of a child under 16.  The indictment is in the core appeal book at page 5.  As mentioned, the child concerned is the principal prosecution witness and remains a child.

The Criminal Procedure Act 2009 (Vic) modifies the way evidence is elicited from complainants in sexual offence matters and, in particular, those matters involving child complainants. Accordingly, the child concerned gave evidence at what was called a “special hearing”, and that is one where the evidence is recorded, the public is excluded, and the child is not in the same room as the accused. The day before the child came to give her evidence, the judge who presided over that special hearing, together with the prosecutor and defence counsel, met with the complainant at a location outside the court, known as the Child Witness Service. The meeting accorded with a recommendation that had been made by an intermediary appointed for the complainant. That recommendation was that the judge and counsel meet with the complainant before the complainant gave her evidence. The use of an intermediary in this way also accorded with statutory modifications to the conventional trial process.

After the evidence was taken, the Court of Appeal ruled in the case of Alec (a pseudonym) v The King [2023] VSCA 208 that where a judge in that case had met with the relevant witness – also a complainant in a similar matter – in the absence of counsel for the parties, that meeting transgressed the principle of open justice, gave rise to a suspicion of partiality, and was a fundamental irregularity in the trial, which meant that there had been a substantial miscarriage of justice. And I will come to Alec at length a bit later on.

GAGELER CJ:   But that was a case where the counsel for the defendant was not present.

MR BROWN:   That is so, your Honour, yes.  So, the only other person who was present was the intermediary.  After that decision was handed down, this proceeding was reserved for determination by the Court of Appeal in a case stated with four questions of law, and of course ‑ ‑ ‑ 

GAGELER CJ:   They are very abstract questions.  Are they normally stated in that form?

MR BROWN:   I do not have extensive experience, your Honour, but I appreciate what your Honour is saying.  In my submission, they are concrete – they are questions of law.  They are somewhat abstract in a sense because they have been drawn from the case, that is, the case of – they are heavily influenced by Alec, then applied to this case.

BEECH‑JONES J:   Mr Brown, if you are correct about the principle of open justice being a principle and not a rule, does it not follow that the first question is not a question of law?  Because an act can be in breach of, or contravene, the principles of open justice, but it does not have any legal meaning.

MR BROWN:   Yes.  I understand what your Honour says.  The question uses the word “infringe”, and that is redolent of there being a consequence for the infringement.  “Principle” and “rule” – obviously, they are used somewhat interchangeably, and we say through the word “infringe” there is a suggestion that there is a consequence for that infringement.

BEECH‑JONES J:   I see.

EDELMAN J:   You would say a principle is open‑textured, in the sense that it does not, of itself, dictate a result that is universally applicable. So, the concept unconscionability, in section 21 of the Australian Consumer Law, might be said to be a principle rather than a rule, but it gives rise to rules of law.

MR BROWN:   Yes, that is precisely how we conceive it.

GLEESON J:   But the outline says that the first question is about an infringement of any rule derived from the principle.

MR BROWN:   We say that necessarily follows.  So, there is a principle; the principle coheres in rules of law.  In this case, we say, the rule of law that is relevant is the open court rule – the rule that courts would ordinarily sit in public.  So, that is the rule that is in play as a consequence of the infringement of the open justice principle.

In answering the questions, the Court of Appeal held that the meeting between the witness, the judge and counsel infringed the principle – that is going back to the word “infringe” – and it must follow, because not only did it infringe the principle, but it was a “fundamental irregularity”.  So, therefore, there were consequences for the principle being infringed.  Not only were there consequences, they were severe.  It could only be cured if the special hearing were to be conducted before a different judge.

The way I propose to address the Court is I will first spend some time explaining how the principle of open justice applies to criminal proceedings, and at that point we will discuss the dichotomy between principles and rules and how ‑ ‑ ‑

GAGELER CJ:   We will at some stage look carefully at the provisions of the Act, will we, and see the source of the power?

MR BROWN:   We will.  I anticipated, your Honour, this might ‑ ‑ ‑

GAGELER CJ:   You know, it is the traditional way we start here.

MR BROWN:   I am getting there very soon, your Honour.  In fact, it is the first point I am going to make.

GLEESON J:   It looks like it is at paragraph 3 of your outline.

MR BROWN:   That may well be the case.  Indeed, it is.  Thank you, your Honour.

JAGOT J:   Would it be right to say that ultimately there is just one question, which is whether what occurred was a fundamental irregularity or not, in this case?

MR BROWN:   Yes, that is potentially a way of conceiving ‑ ‑ ‑

EDELMAN J:   Or arguably two:  whether there is an irregularity and whether it is fundamental.

JAGOT J:   Yes, I am happy to accept that one – two questions.

MR BROWN:   Two questions – and depends which prism you look though as well.  So, whether you are looking through the prism of open justice or the rule against bias, both of which potentially could be an irregularity and both of which could potentially a fundamental irregularity.

JAGOT J:   But that would at least – doing it in that way would ground or it would make concrete what is abstract by feeding in questions of open justice, whatever the statute says, frankly, and whatever the rules of the appearance of impartiality say into, on those facts, in this statutory context, was there an irregularity; two, was it fundamental?  On my part, anyway, that would seem to be a more logical way to do it, rather than up there in the ether saying what are the principles of open justice, because they do not float free from the statutory context.

MR BROWN:   No, I accept that, your Honour.  I suppose the drafters of the open case – the case stated – approached it through a premise that there were two potential irregularities.  One was a breach of the principle of open justice, and one was the rule against bias, and so that is why questions 1 and 2 are framed in that way, and then the consequences of the breach of those.

I will first deal with some principles, then I will take the Court through the five errors that we say the Court of Appeal made in this. So, the first was to find that the principle of open justice had been infringed. The second was not to accept that if the principle was engaged at all, any limitation was authorised by section 389E of the Act. The third, we say, there has been some degree of convergence or merger between the principle of open justice with the right of an accused to be present during their trial. They are distinct rules, we say, and they ought not to have been converged in the way the Court of Appeal did. The fourth was to find that there was a fundamental irregularity, and the fifth was to fail to address the rule against bias.

GAGELER CJ:   Where do we look at sections 389D and E?

MR BROWN:   You are going to look at 389E right now, your Honour – please.

GAGELER CJ:   Not D?

MR BROWN:   I beg your pardon?

GAGELER CJ:   Not D?

MR BROWN:   We can look at D at the same time.

GAGELER CJ:   That is good.

MR BROWN: So, the power to conduct the meeting, we say, falls out of powers provided under Part 8.2A of the Criminal Procedure Act. That is at the joint book of authorities, volume 1, tab 3. Page 81 is where Part 8.2A commences. I wanted to start my submission on the statutory regime and the power to conduct the meeting with 389E, which is page 83. So, that is headed, your Honours will see, “Directions which may be given at ground rules hearings”. We say, on the case stated, that there was a direction for the meeting, and we say it falls within the power in subsection (1), that is:

At a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding.

Now, I mentioned earlier, your Honours, that we say, on the case stated, that there was such a direction.  To make good that proposition, could the Court pick up the core appeal book at 24.  So, this is where we find the facts.  Now, if the Court turns to paragraph 9, your Honours will see there is a subheading, “The intermediary report”:

An Intermediary Assessment Report and Recommendations in respect of –

the child

was prepared –

In paragraph 10 is a reference to some of the content of that report.  In paragraph 11:

The complainant told the intermediary that it would assist her confidence to meet counsel and the judicial officer in person on the day she gives evidence if this was possible.

Moving through to paragraph 13, “The ground rules hearing”:

On 14 March 2023, the ground rules hearing proceeded before Judge Syme –

Paragraph 14:

Counsel for the accused and prosecution both confirmed that they had received a copy of the intermediary report.  Defence counsel indicated that he would not oppose the Court making ground rules that were consistent with the recommendations in the intermediary report.

A reference in paragraph 15 – it says:

In relation to the request of the complainant to meet counsel and the judge in person prior to giving evidence, Judge Syme indicated that she was content to meet the complainant and asked counsel where that meeting was to be arranged.

Skipping over a sentence, which deals with the VARE:

Judge Syme indicated that if no one had any difficulty with the proposal, she would meet the complainant at the same time.  Judge Syme confirmed that the purpose of the meeting was for the complainant to “say hello”.  Defence counsel confirmed he had no objection to the meeting and that he was content to attend to introduce himself to the complainant at the same time.

We focus on paragraph 16:

The intermediary recommended the meeting take place prior to the complainant watching her VARE.

It refers to an agreement, and paragraph 17 ‑ ‑ ‑

BEECH‑JONES J:   Mr Brown, I am just wondering what VARE stands for.

MR BROWN:   I am sorry, Video and Audio Recorded Evidence.  I am sorry, your Honour.  That is a process where the evidence‑in‑chief is taken at an earlier point in time and recorded.  At paragraph 17, Judge Syme appointed the intermediary, and what we say is important:

and made directions for the fair and efficient conduct of the proceeding pursuant to s 389E of the CPA, having regard to the recommendations made by the intermediary.

GAGELER CJ:   Do we have those directions?

MR BROWN:   No.  All the Court has is the facts in the case stated.

GAGELER CJ:   Right.  And under section 389D, the only persons required to attend a ground rules hearing are those set out in subsection (1).  The accused does not need to be there.

MR BROWN:   At the ground rules hearing?

GAGELER CJ:   Yes.

MR BROWN:   That is correct, your Honour, yes.  But the accused was there at this one, and also was represented there, of course.  But I think, as your Honour is adverting to, he was not required to be there.

GAGELER CJ:   In essence, what is said to have been wrong with this meeting?  What are the factual integers that give rise to these problems that are identified?  Is it the accused is not there – that is one problem?

MR BROWN:   That is one problem, yes.

GAGELER CJ:   And it is not actually in a court room – that is another problem, is it?

MR BROWN:   Yes.

GAGELER CJ:   And what else is there?

MR BROWN:   Not recorded.

GAGELER CJ:   Not recorded.

MR BROWN:   It is not available to the public – I suppose that is a subset of the second problem.

GAGELER CJ:   Yes.  Anything else?

MR BROWN:   No.

GAGELER CJ:   Those three things.

MR BROWN:   Yes.  I think two and three probably merge.  It is the absence of the accused and it not being in a place accessible to the public.

As I have already adverted to, your Honours, section 389E sits within a statutory framework, in particular Parts 8.2 and 8.2A of the Act, which provide for a number of special measures for vulnerable witnesses such as child complainants in sexual offence prosecutions. I want to highlight some of those features now. In particular, I will start with the special hearing at section 370. I will start there because the ground rules hearing that we were just dealing with was for the purpose of establishing ground rules for that special hearing. That is on page 73 of volume 1.

GLEESON J:   Where do we see that purpose?  Is that just implicit in the Act?

MR BROWN:   No, there is a connection.

EDELMAN J:   We are looking at 370?

MR BROWN:   Yes, 370 is the special hearing and the directions – the ground rules hearing is for that purpose – I am trying to recall where ‑ ‑ ‑

JAGOT J:   Is it possible that we need to go back to 366?  Because you referred to the VARE being the evidence‑in‑chief of the person, whereas 370 is about the whole evidence including cross‑examination and re‑examination.  Section 366 says:

applies to a criminal proceeding . . . that relates . . . to a charge for –

(a)     a sexual offence –

Section 367 says:

A witness may give evidence‑in‑chief –

Is that what the VARE is, under 367?

MR BROWN:   Yes, my understanding is that is what the VARE is.

JAGOT J:   That is the VARE.

MR BROWN:   Yes.  That is tendered, and then the cross‑examination occurs at the special hearing.

JAGOT J:   Right.  So that the VARE is 367.

MR BROWN:   Yes.

JAGOT J:   And that happened in this?

MR BROWN:   Yes, your Honour.

JAGOT J:   But it happened before the meeting?

MR BROWN:   No, after the meeting.

JAGOT J:   After the meeting.

MR BROWN:   Yes.  So, the special hearing – there is the ground rules hearing to establish the ground rules for the special hearing.

JAGOT J:   Yes.

MR BROWN:   Then there is the meeting, then there is the special hearing.

JAGOT J:   Right, and that included a 367 giving of evidence‑in‑chief?

MR BROWN:   Yes, yes.  So, the evidence‑in‑chief – the VARE had already been prepared.

JAGOT J:   Then 368, then says – sorry to be pedantic, I am just trying to get how this works – 368 then says, if you have that recording of that evidence‑in‑chief, it is admissible at a special hearing – relevantly, “if” – and then there are certain circumstances.  So, I am assuming they happened in this case.

MR BROWN:   Yes.

JAGOT J:   So, the transcript was served, et cetera, on the legal practitioner.

MR BROWN:   Sorry, your Honour, there is nothing to suggest, on the case stated, that that was not ‑ ‑ ‑

JAGOT J:   We can assume that all this happened in 368 and was all satisfied, so that all gets a tick.  Then, maybe 368A is not relevant.  Then, we go Division 6, and we are at the special hearing.

MR BROWN:   Yes.

JAGOT J:   Okay.  No, we are at the ground rules hearing – that comes in between.

MR BROWN:   Yes.  So, that is 389E.

JAGOT J:   Which is at 389E, and then we are at 370. 

MR BROWN:   Yes, your Honour.

JAGOT J:   And everybody is there except the accused.

MR BROWN:   No, the accused is at the 370.  The accused is at ‑ ‑ ‑

JAGOT J:   Sorry, I meant at the meeting.

MR BROWN:   At the meeting, yes.

JAGOT J:   Everybody is at the meeting except the accused, and then we come to a special hearing when everybody is there, and it is in open court.

MR BROWN:   Yes, but the complainant is still at the Child Witness Service, so the complainant is not in court, but is by audiovisual link.

JAGOT J:   By audiovisual.

MR BROWN:   Yes, that is right.

JAGOT J:   Yes, and then the whole of the evidence – the recorded evidence‑in‑chief goes in as admitted, and then the cross‑examination takes place.

MR BROWN:   Yes.

JAGOT J:   Are there provisions that make it clear that ‑ ‑ ‑

MR BROWN:   Sorry, your Honour, I think I did not pick up on something.  It is not in open court, it is controlled by 370.  So, the special hearing is – the only people who are allowed to be at the special hearing are those who are mentioned in 370.  So, the judge can leave people but, effectively, it is only those people the judge permits to be there.

JAGOT J:   So, where is that in 370, sorry?

MR BROWN:   I am sorry, your Honour, I am indebted to my friend.  It is 372:

Conduct of special hearing –

JAGOT J:   Yes, okay.  Where is the arrangement that the child, or the complainant – if it applies generally to complainants in a sexual assault matter – is not there in the court.  Is that somewhere else, again?

MR BROWN:   No, it is in 372.  So, 372(1):

At a special hearing –

JAGOT J:   I see.  So, that comes from 372?

MR BROWN:   Yes, that is right.

JAGOT J:   Yes, okay.  Sorry, I just needed to ‑ ‑ ‑

BEECH-JONES J:   Mr Brown, could I just ask you about what you are saying about 367 and 370?

MR BROWN:   Yes.

BEECH-JONES J:   As I understand it, 367 – and correct me if I am wrong – is, actually, talking about the use of, for example, a child complainant being interviewed, perhaps by a police officer – that is, a person prescribed by the regulations – and that is not part of the special hearing?

MR BROWN:   I will just talk to my junior.  My understanding is that it gets tendered at the start of the special hearing.

BEECH-JONES J:   It gets tendered at the start of the special hearing?

MR BROWN:   That is right.

BEECH-JONES J:   Right.

JAGOT J:   Which is 368(1)?

MR BROWN:   Yes, your Honour.

BEECH-JONES J:   Right, I see.  That could have been done at a much earlier stage, but in this case it was not.  Actually, is that right?

GLEESON J:   Section 370(1) provides that the whole of the evidence must be given at a special hearing.

MR BROWN:   Yes.  The VARE was conducted a long time ago.

BEECH-JONES J:   A long time ago, right.

MR BROWN:   But it is tendered at the start of the special hearing, so that is why it forms the whole body of their – they accept it as true and correct, or words to that effect.

BEECH-JONES J:   Yes.

MR BROWN:   That becomes the evidence‑in‑chief.

BEECH-JONES J:   I see.

MR BROWN:   Then there is the cross‑examination.

BEECH-JONES J:   At a special hearing.

MR BROWN:   At a special hearing, yes.

GAGELER CJ:   Could I just ask about this ground rules hearing?  I mean, it is in a criminal context, but it looks very much like what I would think of as a directions hearing.

MR BROWN:   Well, there are directions hearings in the criminal proceedings, too.

GAGELER CJ:   Could it be by telephone?  Could it be by video?  Is there a practice?

MR BROWN:   Well, the practice is that it is in court.  Could it be convened in another way?  I do not see why not.

EDELMAN J:   In other States it is.

MR BROWN:   There is flexibility elsewhere in the Act, which I do not presently have, to conduct hearings otherwise than in person.

GLEESON J:   Well, people must attend it in some way.

MR BROWN:   Yes.  And so, in this case, they did.

GAGELER CJ:   Is there a suggestion that the actual ground rules hearing needs to be in public, or accessible to the public?  Is that part of the argument that you need to meet?

MR BROWN:   I do not think so.  The ground rules hearing is in open court, so that ‑ ‑ ‑ 

GAGELER CJ:   Well, here it was, in fact, in open court.

MR BROWN:   Yes, and it is ordinarily.  There is nothing to suggest – there is no control of the participants or the people who can attend other than, I suppose, the implied power to control proceedings and things like that, but otherwise there is no statutory power to prevent people.  The accused can be excused from attending, but our case is not put on the basis that the meeting was part of the ground rules hearing, it was a separate thing that fell out of the ground rules hearing.

EDELMAN J:   Does it matter?

MR BROWN:   No, I do not think so.  I do not think it matters.

BEECH‑JONES J:   Mr Brown, can I ask you, briefly, a question about – if you are still dealing with the Act?

MR BROWN:   Yes, your Honour.

BEECH‑JONES J: In your and Mr Tehan’s submissions, you refer to section 246, which involves, or provides:

An accused must attend all hearings . . . unless excused under section 330.

MR BROWN:   Yes.

BEECH‑JONES J:   How does that relate to 329(1), which seems to say a similar thing?

MR BROWN:   Well, 246 is dealing with Chapter 5.

BEECH‑JONES J:   Which is trial?

MR BROWN:   Yes, that is right.  And so, the accused is required to:

attend all hearings . . . unless excused under section 330.

BEECH‑JONES J:   Right, and section 329 is dealing with – it says:

every hearing in the criminal proceeding –

I mean, just in terms of scope, is it dealing with some other kind of criminal proceeding?

MR BROWN:   It is the broader proceeding.

BEECH‑JONES J:   That encompasses the trial?

MR BROWN:   Yes, that encompasses the trial.

BEECH‑JONES J:   I see.

MR BROWN:   And section 329 is – there is a difference in language, so:

An accused must appear at every hearing –

You can “appear” at a hearing through counsel, whereas “attend” is in ‑ ‑ ‑ 

BEECH‑JONES J:   I see.  “Appear” versus “attend”, I see.

MR BROWN:   So, I think that might be the actual, key difference.

BEECH‑JONES J:   Yes, thank you.

MR BROWN:   Possibly, I should have started at section 338.  This is the first provision in Part 8.2, headed “Witnesses”, and these are called “Guiding principles”.  We say they are very important, contextually, in determining the breadth of the power in 389E, and that is because what Parliament has said is:

It is the intention of Parliament that interpreting and applying this Part in any criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—

(a)there is high incidence of sexual violence within society; and

(b)sexual offences are significantly under‑reported; and

(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

(d)offenders are commonly known to their victims –

(e) is not presently relevant. We say this is a very clear policy statement as to the intention of Parliament with these amendments to the ordinary trial processes. Now, back to Part 8.2A, getting back towards the ground rules hearing. Part 8.2A, where 389E is, deals with ground rules hearings and intermediaries. Again, your Honours will see the application of Division 1, ground rules hearings:

(1)This Division applies to a criminal proceeding that relates (wholly or partly) to a charge for—

(a) a sexual offence –

And in subsection (3):

This Division applies to a witness (including a complainant) other than the accused in a criminal proceeding referred to in subsection (1) if the witness is—

(a)     a person under the age of 18 years; or

(b)     a person with a cognitive impairment.

I think I am correct in saying that there has been an amendment now, so the court applies it more broadly than that narrow field for sexual offences, not just for a person under the age of 18.  Anyway, that is not presently relevant.  Section 389B ‑ ‑ ‑

GAGELER CJ:   So, we are not looking at the current version of the Act.

MR BROWN:   No, you are looking at the legislation that applied at the time.

GAGELER CJ:   I see.

MR BROWN:   Sorry, I should have made that clear.  The current version is the next tab, tab 4.

GAGELER CJ:   Thank you.

MR BROWN:   Section 389B:

The court may direct that a ground rules hearing under this Division is to be held.

And then, important as well, under subsection (3):

A ground rules hearing must be held if an intermediary is appointed under Division 2.

We will come to that.  There was obviously one appointed in this case, but there was already a ground rules hearing in place as well.  The function of intermediaries, the next part of this excursion is in 389I, and your Honours will there see set out two paragraphs under subsection (1), but in substance, at its core, the function of an intermediary is to explain what is needed so the relevant witness is able to understand questions that are asked and give evidence that can be understood by the Court.  Retreating back to 389E ‑ ‑ ‑

BEECH-JONES J:   Can I just ask this.  The introductory meeting, was that seen as something as a step along the way of communicating something to the person asking questions or to the witness, or a bit of both?

MR BROWN:   The facts of the case stated do not really explain, save to note that the child complainant said to the intermediary that she was experiencing, in my words, anxiety and would be assisted by meeting the judicial officer and counsel before she was cross‑examined, and the intermediary recommended that occur.  So, in having regard to the functions of the intermediary, it seems to follow that that recommendation, the recommendation for the meeting, was for the purpose of ensuring good communication.

GAGELER CJ:   Mr Brown, I note that in Division 2 in section 389G there is a provision for a declaration of a participating venue.  How does that fit into the scheme?

MR BROWN:   Hopefully my junior will tug at my sleeve if I get this wrong.  It is not all courts.  Not all divisions of the County Court or the Supreme Court or other courts do this.  There are particular ones where the program is available based on the availability of resources of the Child Witness Service; it is at the County Court in Melbourne, and I do not know how many regional centres, for example, have it available.  This was at the County Court in Melbourne.  It had been declared, gazetted, and so the scheme could operate.

GAGELER CJ:   Thank you.

MR BROWN:   Returning to where we started, circling back to 389E(1):

At a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding.

We say, having regard to the statutory scheme that I have taken your Honours to, the idea of fairness that is set out there in subsection (1) embraces or includes fairness to vulnerable witnesses.  We put that in our submissions and that is not cavilled with by the respondent.  This was also adverted to by President Emerton who put it as fairness to a vulnerable witness:

is clearly in the interests of the administration of justice –

What we say falls out from that is the purpose of the ground rules hearing, or a purpose, is to allow the court to consider directions that might be necessary to a vulnerable witness who is to give evidence and, in its application to child complainants in sexual offence matters, ground rules hearings support the special hearing process.  It is all about what is going to happen in the special hearing.

EDELMAN J:   Would you accept that the meeting at the Child Witness Service was part of the proceeding?

MR BROWN:   Yes, your Honour.

EDELMAN J:   Does not your case, really, then just come down to 329(1)?  I appreciate there may be some debate about whether this is a hearing or not.

MR BROWN:   Yes.

EDELMAN J:   But even if it is a hearing, if 329(1) is read as permitting an attendance through a counsel, that occurred. 

MR BROWN:   It is an attractive proposition, your Honour.  I might take it on notice and think about that and come back to it.

BEECH-JONES J:   Just on that, at 246, which is what both of you focused on, and if, contrary to what you contend, it was a hearing ‑ ‑ ‑ 

MR BROWN:   Yes.

BEECH-JONES J:   ‑ ‑ ‑ was it a hearing under Chapter 5? 

MR BROWN:   No.  Plainly, it was not in the trial, it was ancillary.  One answer – it is not my final answer, your Honour Justice Edelman – might be, that deals with the right of an accused to be there, it does not deal with principles of open justice.  So, if – because it was not held in a place that was accessible to the public – the principle of open justice applied, it has been limited.  Obviously, the Court of Appeal and my friends focus, at parts, on the right of the accused to be there, but that is not the entirety of it.

BEECH-JONES J:   If the direction had just been prosecution and defence counsel meet with the child witness, that would not raise – that would not be within anyone’s conception of a hearing, would it?

MR BROWN:   Could not be.

BEECH-JONES J:   No.  Or open justice or anything else.

MR BROWN:   No.

BEECH-JONES J:   It is just that the ‑ ‑ ‑ 

MR BROWN: A necessary aspect of the open justice principle must not involve a judicial officer. So, to recapitulate, if we at this point put aside any alleged conflict with the principle of open justice or some other rule of law, we say the breadth of section 389E in that statutory context extends to authorising a meeting with a vulnerable witness in these circumstances. So, in the presence of counsel, and the purpose being to allay the anxiety of that witness about the proceeding, so the best evidence can be adduced.

The issue in this case, obviously, that has been canvassed already, is whether that power in 389E is limited because the meeting was inconsistent with the principle of open justice.  The way we say that ought be assessed is to consider the scope of the principle of open justice and how it is applied in a meeting of this nature and whether it was even engaged in the meeting at all.

JAGOT J:  I mean, 246 itself is subject to 330. It does not seem to be a right. Section 246 is more interested in requiring an accused to be there when the court wants them there, as opposed to ‑ ‑ ‑

MR BROWN:   It is a duty.

JAGOT J:   Yes.  It is not exactly suggesting a right to be there, and the court does not require it.  I mean, even if were a hearing under Chapter 5, the court did not require it. 

MR BROWN:   Quite.

JAGOT J:   But is not a hearing under Chapter 5, so that is by the by.

MR BROWN:   Yes, that is right. 

EDELMAN J:   But there may be big issues as to whether 246 contemplates the court releasing an accused from a list from important parts of the hearing, but you say that is not engaged here.

MR BROWN:   No, that is right.  It probably is concepts of waiver – so, waiving the right to attend.  Whilst you are commanded to attend by 246, and you seek to be released, obviously waiving any right that might be embedded in that command.  Principle of open justice – the first case I would like to take the Court to is Condon v Pompano (2013) 252 CLR 38, in joint book volume 3, tab 13. Obviously, this case was in the context of a legislative scheme that amended the way in which proceedings were to occur, so that certain information was not given to certain people in organisations.

EDELMAN J:   Do we get much from statements of the principle divorced from the particular regime which shapes and structures the content of the principle? 

MR BROWN:   The statement of principles simply ground, we say, the way in which it could be applied – the broad statements of principle – but of course, where we get to, is one always need to look at the nature and function that is being performed to determine whether the principle has any engagement or not. 

GAGELER CJ:   If we are going to think in constitutional terms – Pompano is a constitutional case, of course – it is hard to see this meeting as involving an exercise of judicial power.  It may be incidental to an exercise of judicial power, but it is not the actual exercise of any coercive power by the State against anybody.  It is not deciding anything. 

MR BROWN:   We say that that is fundamental to the point we subsequently make about why it is not a hearing.  There is no exercise of ‑ ‑ ‑

EDELMAN J:   They may be different points.  You can have a hearing without the exercise of judicial power.  That commonly happens in directions hearings, call overs.

MR BROWN:   Directions hearings, arguably, involve an exercise of power. 

EDELMAN J:   If directions or orders are made, but sometimes no directions or orders are made.

MR BROWN:   If there is the possibility of the exercise of judicial power, because the purpose being there to contemplate – to determine whether judicial power ought be exercised, I think we would accept that is a hearing.

EDELMAN J:   You say there was no possibility of any exercise of judicial power when a judge is meeting with both counsel and ‑ ‑ ‑

MR BROWN:   Not on the facts that are stated, where the purpose of the meeting is to “say hello” and steady the nerves of the complainant.  We said there was no possibility.  In determining the scope of the principle, before we then get to the rules that fall out from it, there are some important statements, we say, of this Court that touch upon the breadth of the principle and how it ought apply.  That is the reason I was going to take the Court to Condon v Pompano and also Hogan v Hinch, because of the statements of Chief Justice French about what the principle is seeking to achieve.  What his Honour said at paragraph 1 of Pompano is that:

At the heart of the common law tradition is “a method of administering justice”.  That method requires judges who are independent of government to preside over courts held in public in which each party has a full opportunity to present its own case and to meet the case against it.  Antithetical to that tradition is the idea of a court, closed to the public, in which only one party, a government party, is present, and in which the judge is required by law to hear evidence and argument which neither the other party nor its legal representatives is allowed to hear.

That statement follows what his Honour had said in Hogan v Hinch, which is at tab 15, at paragraph 46:

The open hearing is an essential characteristic of courts –

Again, your Honours focusing on hearings:

which supports the reality and appearance of independence and impartiality.  Its corollary is the freedom to make a fair and accurate report of what transpires in court proceedings, including the orders made by the court.  However, at common law the open justice principle has, consistently with the judicial function, long been subject to qualifications reflected in the inherent jurisdiction of courts or their implied incidental power to hear part of their proceedings in camera and to restrict the publication of evidence or the names of witnesses.

We simply pause there to observe the importance of open justice and what it relates to in the effective exercise of judicial power and in circumstances of hearings.  Now, we accept, and it is a universal truth, that the principle of open justice is a fundamental principle of the common law.  Justice of Appeal Priest observed in the judgment below that it is “ingrained”.

It is ingrained, and in particular in Victoria it is ingrained through the statute book.  It finds expression in the Open Courts Act 2013 and in the Charter of Human Rights and Responsibilities Act 2006.  Turning to the Open Courts Act, which is at volume 2 of the authorities, your Honours will there see what the purpose of Parliament was in section 1:

The main purposes of this Act are to—

(aa)recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system which—

(i)maintains the integrity and impartiality of courts and tribunals; and

(ii)strengthens public confidence in the system of justice –

Pausing there, your Honours, what Parliament has done is expressly adverted to the key rationales, or perhaps goals, for the principle.  That is the end that the principle is seeking to achieve.  That is given further expression by Parliament in section 4:

Principle of open justice prevails unless circumstances require displacement

(1)A court or tribunal is to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order.

And then there is a reference to suppression orders.

BEECH‑JONES J:   In this case, I think you said the ground rules hearing was in public.  Is that right?

MR BROWN:   Yes.

BEECH‑JONES J:   So, a member of the public who was there would have heard that there was to be a meeting between the judge and the two lawyers, but there was not to be anything other than “hello”.

MR BROWN:   Yes.

BEECH‑JONES J:   And if trial had been allowed to – if it had got to the point of having a trial, the trial judge could have confirmed that there was a meeting and that counsel attended, and it did not go beyond anyone saying “hello”, is that right?  And the counsel for the accused could have corrected that, if there was something else that happened, is that right?

MR BROWN:   That is possible.

BEECH‑JONES J:   All right.

MR BROWN:   What we say Parliament has usefully done, in conformity with a number of decisions of this Court, is to underscore that the principle of open justice is a means to an end rather than an end itself.  I will come back to this, but that is one of the issues with the way in which the Court of Appeal dealt with this, we say – and, in fact, in terms, Justice of Appeal Priest says that it was an end, the principle of open justice needs to be upheld because it is in its own right, effectively.  I will come back to that.

Perhaps following on from that question from Justice Beech‑Jones, your Honours do not need to turn this up, but in Hogan v Hinch, again, Chief Justice French referred to the rationale in similar terms:

An essential characteristic of courts is that they sit in public.  That principle is a means to an end, and not an end in itself.  Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny.  It is also critical to the maintenance of public confidence in the courts.  Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals.  The open‑court principle serves to maintain that standard.  However, it is not absolute.

JAGOT J:   Sorry, where were you reading from?

MR BROWN:   Sorry, that is from Hogan v Hinch.

JAGOT J:   At what paragraph?

MR BROWN:   Paragraph 20.  I beg your pardon, your Honour.  We embrace that as the expression of the rationale for the principle.  What is plain, and perhaps because of the nature of the principle – it is often referred to in those broad terms, however, there are three things we say that need to be mentioned.  One is, what is plain is that it is not absolute.  So, it can be:

limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers . . . where it is necessary to secure the proper administration of justice.

That is also set out in Hogan v Hinch at paragraph 21.  There are accepted categories of case where the principle will yield to a different public interest – again, the dichotomy between principles and rules becoming apparent, because principles will often be balanced against other principles.  So, the open justice principle will yield to a different principle in cases where publicity would destroy the subject matter of the litigation, for example.  Also, as mentioned, Parliament of course can establish further exceptions.  What Parliament cannot do is require a court to invariably sit in closed court because that is to alter the nature of the court.  That was said by Justice Gibbs in Russell v Russell, which is tab 19 of volume 3, at page 520.

I want to move to a matter that has been briefly adverted to this morning that arose from the directions hearing for this matter conducted by his Honour Justice Beech‑Jones.  Your Honour asked the parties to consider whether the principle of open justice was a principle or whether it applied as a rule and how that happens.  In order to answer that question, we say – and more is put in our written submissions – is one needs to distinguish between a principle and a rule.  We referred to Professor Dworkin’s scholarship on this.  The paper written by Professor Dworkin is at tab 39 of volume 6 of the authorities.

EDELMAN J:   That is going down a very deep rabbit hole that this case might not require.

MR BROWN:   Yes.  I accept that criticism, your Honour.

BEECH-JONES J:   Do not take anything I said at a directions hearing to go down the rabbit hole.

MR BROWN:   I was wondering what the rabbit hole was.  I think we are clear.  In any event, as I have already adverted to, we say a principle is something to be taken into account where it is relevant.  It is inclining in a particular direction.  It might be a consideration, but it does not have a fixed endpoint.  Whereas a rule, if contravened, has legal consequences.

In our written submissions we give the example of the principle of natural justice which manifests – so, the principle is plain.  But that manifests in the hearing rule and the bias rule.  Another example would be the fundamental principle is for the prosecution to prove the guilt of an accused person.  That principle gives rise to the companion rule, that an accused person cannot be compelled to assist the prosecution in the proof of their case, or the case against them.  So, that is one way in which it might manifest.

Of course, the other way that is relevant to this case as well is a principle of law may be applied by a court as a relevant consideration and that, for example, in the Open Courts Act – which we have already traversed – the court is required before it makes an order to have regard to the primacy of the principle of open justice.  Again, in that case, the principle is not dictating any particular outcome, so it is not possible to talk about it being contravened, or not.  Then, of course, there is the principle of legality.  So, the principle might be relevant when one comes to consider how the principle of legality operates in any particular statutory context.

Now, getting to what the Court of Appeal did, turning to the questions that were set for the Court of Appeal ‑ ‑ ‑

GAGELER CJ:   Were you going to tell us something about the Charter, or not?

MR BROWN:   I was, in due course.

GAGELER CJ:   I see.

MR BROWN:   I can do it now, your Honour.  If it is convenient, I am happy to show how this manifests in the Charter.

GAGELER CJ:   If you would, yes.

MR BROWN:   So, the Charter is at tab 6 of volume 2 and the relevant right that engages the open justice principle is section 24, the fair hearing right.  Subsection (1):

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Then there is a limitation of it in subsection (2):

Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.

So, your Honours, in terms of a statutory adoption of the principle of open justice, that is another example.

GAGELER CJ:   I mean, there would be a rich background to that provision, I would imagine.

MR BROWN:   Yes.

GAGELER CJ:   The Canadian Charter and the European Charter.

MR BROWN:   European Charter – the Charter of Human Rights as well, yes.  So, the first question asked of the Court of Appeal was whether the principles of open justice had been infringed, as identified in Alec, and we say it is plain that Justice of Appeal Priest has approached that question through the use of the word “infringed” as to whether there is a rule of law that has been infringed. If your Honours go to core appeal book at 46 – the decision of the Court of Appeal commences at page 30 and at 46, at paragraph 55, the last sentence:

The holding of such a meeting was, however, inconsistent with the principle of open justice, an essential element of the administration of criminal justice in this State.  It was a fundamental irregularity that could not be waived. 

In other words, his Honour has identified a rule of law that had consequences for contravention.  The president – President Emerton – agreed with Justice of Appeal Priest, but made some of her observations, in particular about the operation of the principle of legality.  If your Honours turn back to – start at paragraph 9, about halfway through it:

However, as Priest JA explains, there is nothing in the CPA that permits, let alone encourages, departure from the principle that proceedings be conducted in open court in the presence of the accused. 

So, adopting his Honour’s view of a rule having been infringed.  Back at paragraph 6, her Honour refers to the:

central tenet of the administration of criminal justice in this State that proceedings be conducted in open court and in the presence of the accused.

Refers to section 24(1) of the Charter, then says:

The introduction of a statutory regime directed to ensuring that vulnerable witnesses are supported so as to be in a position to give their best evidence should not be taken to impinge on the principle of open justice unless a departure is permitted or endorsed by express statutory language or by clear implication from the language of the statute.

And then the footnote – footnote 7 – deals with cases dealing with the principle of legality. 

GAGELER CJ:   There are two things going on here.  You have a statutory power in ‑ ‑ ‑

MR BROWN: Section 389E?

GAGELER CJ:   Yes, 389E(1).  And that is being, on one view, just simply read down by reference to what is called the principle of legality, operating by reference to the principle of open justice.  That is one thing that is happening.  So, what is being said is that this is something that is simply beyond the power of direction, and therefore an irregularity.

MR BROWN:   Yes.

GAGELER CJ:   That is one thing.  Perhaps another thing might be that the provision of the Charter is somehow infringed and – I am not sure if it is the same analysis that is involved in asking whether principle 4 of the Charter is infringed by the making of a direction – in that respect, I just do not know; you will have to inform me.  Is it relevant to the infringement of the Charter that the direction is within power?

JAGOT J:   Could I just point out that section 32 of the Charter is probably also something the Court of Appeal relied upon, because it says they have construed provisions of other statutes – which would include the CPA – in a way that is compatible with human rights, being the right in 24.

MR BROWN:   Yes.  There is no doubt that section 32 of the Charter applies to the construction of 389E ‑ ‑ ‑

GAGELER CJ:   Right.

MR BROWN:   And that requires, effectively, the most compatible construction to be given.

EDELMAN J:   The infringement of the Charter would be 24, though, would it not?

MR BROWN:   Yes, 24(1) is where the right to an open hearing is.  Of course, your Honour immediately – what I am about to get to, the principle and the right in 24 apply to hearings, so if this was not a hearing, there is no infringement.

GAGELER CJ:   Yes.

MR BROWN:   In order to identify rules that might derive from the principle of open justice, what we say the cases may explain – and even section 24 of the Charter may explain – is that the rule is that the court ordinarily conducts its hearings in open court.

GLEESON J:   Did the Court of Appeal make a specific finding that the meeting was a hearing?

MR BROWN:   No, your Honour.  So, we say, what the authorities demonstrate is that the principle of open justice applies to hearings, not to every part of a civil or criminal proceeding.  There are some authorities in the joint book where this is demonstrated.  For example, one of the early cases dealing with the principle, Scott v Scott [1913] AC 417 – it is in volume 5, tab 32. This was a case dealing with divorce proceedings that had been held in camera. At page 439 of the judgment, the last paragraph, Viscount Haldane said:

My Lords, in my opinion the facts before Bargrave Deane J. fell short of what was requisite to justify departure from the principle which requires the hearing, in all but exceptional cases of the class I have indicated, to take place in open Court.  No doubt the petitioner and the respondent preferred to give their evidence in private.  But the evidence actually given was of a brief and simple character, and it might without difficulty have been tendered in open Court.

We say there is a direct connection there between the exercise of judicial function – the taking of evidence, a hearing – and the application of the principle of open justice. 

The next example from the cases I will give is from Russell v Russell (1976) 134 CLR 495, volume 3, tab 19. Again, this was a case broadly related to matrimonial matters; it was about the conferral of jurisdiction on State courts to deal with those matters. At 532, Justice Stephen – first full paragraph:

Different considerations affect s. 97(1), if only because it is concerned not with mere curial dress but with a matter of great substance, the concept of the hearing in open court.  It would be an unnecessary and profitless digression to attempt any account of the long history and high significance attaching to open hearings in English courts of justice; it is all most eloquently exposed in the judgment of the members of the Full Court of Appeal in Scott v. Scott and in the speeches of their Lordships in the appeal to the House of Lords.

Again, referring to open hearings and hearings in open courts.  So, we say this general rule that it is limited to hearings coheres with previous decisions of this Court, that, for example, the public does not have a general right of access to court documents.  A principle of open justice is not engaged where the public seek access to material on a court file that has not been admitted into evidence.  That is from Hogan v Australian Crime Commission (2010) 240 CLR 651 at paragraph 40 – it is not in the joint book of authorities.

GLEESON J:   This passage does not seem to differentiate between hearings and proceedings.

MR BROWN:   The Russell v Russell passage?  Well, the concept of hearing in open court, your Honour, is the first sentence.

BEECH‑JONES J:   Mr Brown, could I just ask you a question maybe about practice in Victoria.  It is not unknown, at least – I can only give experience in New South Wales – that where a witness is giving evidence, and for some reason personal to them, unrelated to the case – they may have some personal difficulty or serious medical condition – it is not unknown for counsel to either email or, perhaps, in the old days, both counsel to go to the judge and actually disclose what the intense personal problem is, to explain why the witness cannot come along that day, and then for the judge to go into court and say, look, because of a personal matter attending the witness, I excuse the witness for a couple of hours.  Now, that is just an experience I have had or seen.  Does that sort of thing happen in Victoria?

MR BROWN:   In my experience it does, yes.

BEECH‑JONES J:   Is there an open justice problem or any irregularity with that?

MR BROWN:   We say no, if it is not a hearing.  Whilst the witness might be excused from giving evidence, I do not think the witness is released from giving evidence, there is just an accommodation being made.

BEECH‑JONES J:   Well, the judicial act occurs in the court.  The court judge comes on and says, I have excused them.

MR BROWN:   Yes, that is right.

BEECH‑JONES J:   But there is a communication of, actually, something about the witness.

MR BROWN:   Yes.  So, another example might be decisions made on the papers.  So, there is receipt of submissions from parties, nothing happens in court, the judicial act happens in chambers, but justice is administered.

BEECH‑JONES J:   Yes.  Anyway, I took you off your route – Russell v Russell.

MR BROWN:   So, we say that the limitation of the principle to hearings coheres with the right of access to court documents.  We say it also coheres with something that Chief Justice French said in Hogan v Hinch, which is at tab 15, volume 3, at paragraph 21.

GAGELER CJ:   You may have taken us to this.

MR BROWN:   I have, your Honour.

JAGOT J:   I think you took us to 20.  And 46, not 21.

MR BROWN:   Commencing at 532 – perhaps at the bottom of 531:

The categories of case are not closed, although they will not lightly to be extended.  Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified.  The character of the proceedings and the nature of the function conferred upon the court may also qualify the application of the open‑court principle.

Then his Honour refers to proceedings to the jurisdiction – I withdraw that.  He refers to proceedings relating:

to wards of the State and mentally ill people –

and then concludes that paragraph with:

Proceedings not “in the ordinary course of litigation”, such as applications for leave to appeal, can also be determined without a public hearing.

Then, there is a reference to Coulter v The Queen, which was a decision about the special leave process.  What we say falls from that is, his Honour’s reference to proceedings not being “in the ordinary course of litigation” and the reference to the character of the proceedings and the nature of the function demonstrates that the scope of application of the open‑court principle may be qualified by the nature of the function being performed by the judicial officer.

GAGELER CJ:   Mr Brown, are finished with that case?

MR BROWN:   It seems a convenient spot, your Honour.  It is a convenient spot.

GAGELER CJ:   Yes, we will take the morning adjournment.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR BROWN:   If the Court pleases, I was addressing the circumstances and exercise of functions in which the principle of open justice applies.  What we say the cases demonstrate and the examples, such as where things are done outside the eye of the public – such as views, applications determined on the papers, judicial mediations, those sorts of activities – we say this demonstrates that the principle of open justice does not require every aspect of every proceeding to be exposed to the public for the rationale of the principle to be advanced.

Then we focus back on the principle of open justice applying to hearings. Then the question is raised, what is a hearing? Now, what we note in our submissions at paragraph 49 is that hearings under the Criminal Procedure Act are generally steps that involve the making of orders, the taking of evidence for the determination of issues of fact or law, and it is through that purposive lens that we analyse what a hearing might be.  That is, the sorts of steps taken by a court in its decision‑making capacity, or in the receipt of evidence or material that affects its decision‑making capacity.  We say that is consistent with the rationale of the principle and those steps ought to be subject to public scrutiny.

EDELMAN J:   I think you refined it a little bit earlier.  You said that it did not need to be steps taken in its decision‑making capacity, but steps taken that have the prospect of the exercise of a decision‑making capacity. 

MR BROWN:   Yes.  I think, I accept that there must be something slightly short of the actual decision‑making; it is also leading up to the decision‑making as well because, I think as your Honour Justice Edelman put to me, there will be many circumstances where there will be no decision made, but, nonetheless, there will be a hearing.

GAGELER CJ:   In a hearing, you normally have either evidence or submissions, or both.

MR BROWN:   Yes.  At its simplest, yes, I would adopt that.  That is what a hearing commonly would involve, hearing from the parties as to the exercise of judicial power.  What we say is determining whether a step in the proceeding is a hearing, to which the rule derived from the principle of open justice applies, should be determined having regard to the rationale for the principle and the judicial function being performed.

GAGELER CJ:   Where are we up to?

MR BROWN:   I am just collecting my thoughts to see whether I can skip ahead, make it a bit faster for your Honours.  There is one point I want to make about this, which is this:  the respondent conceives of the hearing as a court exercise in jurisdiction, having assembled the parties for a witness with the exercise of jurisdiction understood to mean the judge acting as judge.  That is it; paragraphs 35 and 40.

We are not really sure what “judge acting as a judge means”, but in any event, a court having jurisdiction means the court has authority to decide something, and there is a distinction between jurisdiction and the exercise of that jurisdiction.  Nonetheless, the exercise of jurisdiction characteristically involves the exercise of judicial power, so that is quelling the controversy about legal rights and obligations, determining facts, making a decision.

We say even if the respondent’s characterisation of a hearing is accepted, that does not answer this case, because the question still then is, was there an exercise of judicial power, were there steps leading to the exercise of judicial power, so, was there a hearing?  To end this point, simply, we say, the finding to rule is courts ordinarily sit in public.  That does not mean that the rule applies to every step of a proceeding.  Rather, to determine whether the rule applies, scrutiny of the judicial function being performed is required to determine whether the rule is engaged.  The first error of the Court of Appeal:  finding that the principle of open justice was infringed by the meeting.

Returning to the Court of Appeal’s judgment, core appeal book, page 46.  I have already taken your Honours to this part of the judgment of Justice of Appeal Priest.  Paragraph 55 is where his Honour held that the meeting was:

inconsistent with the principle of open justice, an essential element of the administration of criminal justice in this State. 

Then at paragraph 57, commencing at the second sentence:

But the principle of open justice must be upheld for its own sake.  It is of critical importance in maintaining public confidence in criminal courts.  Maintenance of that confidence requires that every aspect of the criminal process must be open to scrutiny (save where there are recognised exceptions), so that criminal justice may at all times be seen to be administered by courts that are unmistakably impartial and indisputably independent. 

One thing that fell out of that paragraph, of course, is that the “principle of open justice must be upheld for its own sake”, and, of course, there is dicta from this Court that it is not an end in and of itself.

GLEESON J:   I mean, the next sentence makes it clear that what is being said there is not about it being upheld for its own sake.

MR BROWN:   In paragraph 58?

GLEESON J:   In 57, saying it must be upheld for its own sake, and then saying that it is ‑ ‑ ‑ 

MR BROWN:   Sorry, yes, subject to exceptions.

GLEESON J:   Well, it is important “in maintaining public confidence”, immediately indicates a justification.

MR BROWN:   Yes, I accept that, your Honour.  We say, quite simply, as we have already alluded to, the principle of open justice was not infringed through this meeting because the meeting was not a step in the proceeding that was required to go to the public.  The purpose of the meeting was a quick hello.

BEECH-JONES J:   So, is your point that 57 is wrong with the phrase “every aspect of the criminal process” because it is too wide?

MR BROWN:   Yes, it is too wide.  You need to analyse the scope of the judicial function being performed. 

GAGELER CJ:   Are we dealing with the second error now, or where are we up to?

MR BROWN:   This is still the first, your Honour.

GAGELER CJ:   Okay. 

MR BROWN:   We will get to the second.  The purpose of the meeting was a quick hello, no decision or decision‑making capability, no evidence was taken from the complainant, no exercise of judicial power.  We say if that submission is accepted, that is the end of the matter in terms of open justice – in terms of the engagement of open justice, because open justice was not required, and it was authorised ‑ ‑ ‑ 

GAGELER CJ:   We do understand that submission.

MR BROWN: Thank you, your Honour, for that clarification. The second error: if the principle of open justice was engaged – so, if there was a requirement for open justice – we say it was authorised by section 389E; a departure from the principle was authorised. As I have already adverted to, the terms of 389E are very broad:

the court may make or vary any direction for the fair and efficient conduct of the proceeding.

I already adverted to that it embraces fairness to vulnerable witnesses, reinforced by the examples in subsection (2) and supported by the statutory context.  Statutory context including those guiding principles where Parliament has expressly adverted to or has adjudged particular witnesses as being vulnerable and requiring a modification to the orthodox processes.  We say it is a significant and intentional departure from the conventional criminal procedure and fundamental common law rules.

We say that section 389E should be construed as authorising the introductory meeting that took place in this case, and that it would be incongruous for that power to be construed so as not to permit it to happen in this way – incongruous in the statutory context of the modification to the orthodox processes for conducting trials of this nature. The Court of Appeal – I have already taken your Honours to the part of the judgment – this is at paragraphs 6 to 9 – where President Emerton refers to the principles of legality. Her Honour does not expressly refer to section 389E, but rather the whole Part of the Act – Part 8.2A of the Act – and said, at paragraph 9:

there is nothing in the CPA that permits, let alone encourages, departure from the principle that proceedings be conducted in open court in the presence of the accused.

There is a similar statement at paragraph 40, in Justice of Appeal Priest’s judgment.  On the case stated, direction was made under 389E.  The question is whether the principle of legality in some way means that the encroachment on the open justice principle is not authorised by 389E.  What we would say about that is this.

The meeting held in accordance with the power in 389E was facultative of the broader purpose of the legislature for providing for special hearings and other measures to assist vulnerable witnesses, assist those witnesses to give their best evidence, and therefore in the administration of justice.  In other words, having regard to the statutory scheme, it must be accepted that a judge can take steps to introduce themselves to a vulnerable complainant where the judge considers that necessary for the fair and efficient conduct of the proceeding.

In our written submissions, at paragraph 60, we drew attention to 372(1)(c) of the Criminal Procedure Act, and your Honours will see there that this is at tab 3 of volume 1, page 77.  This is dealing with the conduct of special hearings, subsection (1)(c):

no person, other than a person authorised by the court, is to be present in the courtroom or the same room as the complainant when the complainant’s evidence is being taken –

What we say that demonstrates is Parliament has turned its attention to the balance between the principles of open justice and the competing public interest of supporting vulnerable complainants to give their best evidence, and the balance has been struck in favour of closing the court in this instance to the public when vulnerable complainants are giving evidence, and so it would be incongruous for a meeting of this nature to be held in open court because that would undermine the whole purpose of the statutory regime.  That is, the legislature has deliberately given primacy to the privacy protection of vulnerable witnesses.  We say, falling out from that, as a matter of necessary implication a meeting of this kind was authorised by 389E.

The third error:  the accused was not required to be present.  Justice of Appeal Priest referred to two sources for the requirement that the accused be at the introductory meeting.  In paragraph 35, his Honour referred to a case called Lawrence, and endorsed or quoted that:

It is an essential principle of our criminal law that the trial for an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings –

The second basis was section 246 of the Criminal Procedure Act, which we have already largely dealt with. 

JAGOT J:   I should say, the whole of the proceedings was in the context of that case.  Meaning, the whole of the proceedings, including sentence, did not literally mean every single step in the proceeding that might administratively or non‑judicially occur.  That is obvious from the context.

MR BROWN:   Yes, that is right.  We would endorse that, your Honour.  We say there is no authority for the proposition that there is a common law principle requiring the accused to be present at his trial extends to every possible step, as your Honour Justice Jagot says.  The only authority identified by Justice Priest in support of that extension to what might be said to be pre‑trial steps was a decision of the Court of Appeal called Caulfield.

Again, Caulfield is of a similar nature.  That is, the sentence that was being passed was by video link, the video link dropped out, whilst the video link was off the judge spoke to family members about their victim impact statements, and that, of course, meant that the sentencing miscarried.  That is entirely different from the evolution of the principle to require the accused to be at every possible step during the proceeding.  So, Caulfield was only about the imposition of sentence.  The other matter we would say – it is not necessarily a fundamental irregularity for an accused to be absent during parts of a trial.  There is a case in the bundle ‑ ‑ ‑ 

BEECH‑JONES J:   Are you on your fourth error?

MR BROWN:   We are on the third error still, I am sorry, your Honour.

BEECH‑JONES J:   I see, sorry.  I will let you continue, then.

MR BROWN:   This is about the right of the accused to be present.

BEECH‑JONES J:   I see.  Yes.

MR BROWN:   So, the decision of Tongahai v The Queen (2014) 241 A Crim R 217, at tab 33 of the bundle of authorities. In this case, the applicant did not attend a view in his trial for murder. At paragraph 39, the first sentence:

The evidence proffered by the accused was to the effect that he had formed a subjective belief, based on the statement of the trial judge . . . that he had no right to attend.

And then, at paragraph 43, about two‑thirds of the way through it, Justice of Appeal Basten says:

However, if he did form such a belief it was a matter which he had an opportunity to discuss with his counsel, against whom there was no suggestion of incompetence, lack of diligence, or failing to follow instructions.

So, there was nothing to indicate there had been a miscarriage of justice.  We would say that obviously readily applies to this case in circumstances where, at the ground rules hearing, the accused was there and represented by counsel, and made no submission that he ought to be at the meeting.

GAGELER CJ:   That goes to your fourth point, does it not?

MR BROWN:   Yes, your Honour. The other factor that guided the Justice of Appeal breached was section 246 of the Criminal Procedure Act.  I have already taken the Court to this area this morning:

An accused must attend all hearings conducted under this Chapter in the criminal proceeding against the accused unless excused under section 330.

The first point is, of course, that 246 applies to hearings; this was not a hearing.  The second point is 246 applies to “hearings conducted under this Chapter”, that is, Chapter 5.  And so, for that reason, it had no application.  The respondent says that if the meeting was a hearing, then the accused was required to be there because of section 158.  That is, Chapter 5:

applies if—

(a)an accused is committed for trial –

We say, well, that does not grapple with the text of 246, which relates to hearings provided for in Chapter 5.  And, in any event if the respondent’s construction were to be adopted ‑ ‑ ‑ 

GAGELER CJ:   Of what?

MR BROWN:   I beg your pardon?

GAGELER CJ:   If the respondent’s construction of what?

MR BROWN:   Of 246, so as to apply to the ground rules hearing, then there would be an inconsistency, because section 389D(1)(b) provides that the accused is not required to attend.  So, attendance for ground rules hearings, subsection (1):

The following persons must attend a ground rules hearing—

. . .

(b)the legal practitioner representing the accused or, if the accused is unrepresented, the accused –

So, we say, there was no statutory or common law requirement for the accused to be present at the introductory meeting and so, for that reason, there was no irregularity.

Error four:  if the principle of open justice was infringed, it was not a fundamental irregularity.  This question, question 3 of the questions that were asked of the Court of Appeal, reflected the decision in Alec, which is in the authorities at volume 5, tab 22.  Alec, being the case that led to the reserved questions being set, involved an appeal against conviction. So, section 276 of the Act was engaged. If your Honours turn to that ‑ ‑ ‑

GAGELER CJ:   The case or the section?

MR BROWN: The section, section 276 of the Criminal Procedure Act.  The fundamental distinction, or a fundamental distinction, between Alec and this case was that Alec was after conviction. So, when the Court of Appeal was determining the matter, the Court of Appeal was required to turn its attention to the provisions in section 276(1)(b).

BEECH-JONES J:   You said “in the matter” – do you mean in this case, or in Alec?

MR BROWN:   In Alec.  In this case, of course, we have not even had a trial.

BEECH-JONES J:   I know, but your side posed the question.  It was your question – you asked the judge to pose the question in those terms.

MR BROWN:   Yes.

BEECH-JONES J:   Right.  Was it meant to pick up that that is close to the test for a stay?

MR BROWN:   That is where I am going ‑ ‑ ‑

BEECH‑JONES J:   That is where you are going.  All right, okay.

MR BROWN:   I am going to head there, your Honour, yes.  So, Justice of Appeal Priest at core appeal book page 46, paragraph 55.  We have already seen this paragraph many times:

The holding of such a meeting was, however, inconsistent with the principle of open justice, an essential element of the administration of criminal justice in this State.  It was a fundamental irregularity that could not be waived.

We say that statement was obviously conclusory, and there is no analysis why it is said to be a fundamental irregularity, why it was necessary for a further hearing, a further special hearing, to be held before a different judge.  If there was a fundamental irregularity in the trial, how would the conducting of the special hearing, again, before a different judge, cure the irregularity?

GAGELER CJ:   What is the statutory basis for the case stated procedure that was used?

MR BROWN:   It is Division 5 of Part 6.3, section 302.

JAGOT J:   And 305.

MR BROWN:   Yes, I beg your pardon.  Thank you, your Honour Justice Jagot.

GAGELER CJ:   So, it is ‑ ‑ ‑

MR BROWN:   The Court.

GAGELER CJ:   At 305, and all that is required there is a question of law.

MR BROWN:   Yes.

GAGELER CJ:   So, are you saying – what is the question of law, then, that the relevant question is directed to?

MR BROWN:   The question of law is whether a breach of the principle of open justice is a fundamental irregularity.

GLEESON J:   In the trial process, yes.

MR BROWN:   Yes, or “fundamental irregularity” would ordinarily attach to the trial process.

BEECH‑JONES J:   The actual question was:

Did the occurrence of the meeting represent a fundamental irregularity –

MR BROWN:   Yes.

GAGELER CJ: Where does the notion of a “fundamental irregularity” come from? Is it equivalent to what is in section 276?

MR BROWN:   In my submission, yes.  Yes, in my submission.

GAGELER CJ:   It equates to a substantial miscarriage of justice?

MR BROWN:   Miscarriage of justice, yes, that cannot be cured.

BEECH‑JONES J:   That cannot arise at a trial that has not had a conviction.

MR BROWN:   Yes.  That is a difficulty we have with it being termed a “fundamental irregularity” in circumstances where there has been no trial.

GAGELER CJ:   So, what is the question of law?

MR BROWN:   The question of law is whether it is one.

BEECH‑JONES J:   What is the question of law arising?

MR BROWN:   We say the answer to the question is no.

BEECH‑JONES J:   But how does it arise?  How does it arise at trial, at that stage?  I must say, looking at it, the only way I could see it arising is actually as part of a question, should this trial be stayed?

MR BROWN:   Yes, that is right.  Well, no – I think it arises also in circumstances like a declaration as to future events.  The concrete facts are, that there has been an irregularity; if the trial were to proceed, would that amount to a fundamental irregularity?

JAGOT J:   Page 29 of the core appeal book follows the judgment of the county court, against which there is no appeal, saying that this is the question of law.  If you look at page 29, it is more than just the questions, it is the circumstances.  Question 3 assumes that the test for saying that the trial cannot proceed before the judge who conducted the meeting is a fundamental irregularity.

MR BROWN:   Yes.

JAGOT J:   That is assumed to be the test.  I assume that is sourced from some Victorian case, is it, somewhere?

MR BROWN:   In my submission, it is sourced from the cases dealing with 276, the substantial miscarriage of justice.

JAGOT J:   Right, okay.

BEECH‑JONES J:   But how does that arise?  Because there was no conviction.  We keep coming back to that.  It is not a question of law; it is not one you think of – it has to arise in the case.

MR BROWN:   It arises if this case were to proceed and go to conviction, is there a fundamental irregularity?

JAGOT J:   The whole issue is that there has been a stay, has there not?  It is all adjourned until it is worked out whether you have to redo the special hearing before some other judge, which is question 4.

MR BROWN:   Yes, that is right.  Yes.

GAGELER CJ:   I suppose what we have been asking is, is that is that a question that goes to whether there should be a stay, or is it a question that looks forward to a hypothetical conviction and hypothetical appeal?

MR BROWN:   Yes.

GAGELER CJ:   Because if it is the former, one can see that it has arisen; if it is the latter, it is not so easy.

MR BROWN:   If it is the former – whether it is relevant to a stay, which is why we would attack it as not being a fundamental irregularity, in these circumstances – that is, there is no contention that the fact of the introductory meeting would warrant the exclusion of the complainant’s evidence that was then subsequently given at the special hearing.  That is, there was no defect in the special hearing, the only defect is the meeting.  We say the way that the respondent’s – the recourse available to the respondent is, the respondent could seek a permanent stay on the basis of irregularities of such a nature that ‑ ‑ ‑

EDELMAN J:   A permanent stay of a trial before this judge, or do you say a permanent stay of any trial?

MR BROWN:   If the fundamental irregularity – and it goes to the fairness of the trial – would be a permanent stay, we say there is nothing to suggest unfairness. 

EDELMAN J:   Sorry, a permanent stay of any trial?

MR BROWN:   Yes. 

BEECH-JONES J:   There are stays and stays; sometimes stays are granted on conditions that can be changed, so you might – I have seen trials stayed in the event that a particular prosecutor runs them, or something of that kind, but you are saying it just focuses on the connection between the identified irregularity and the outcome. 

MR BROWN:   Yes, and what is the fundamental nature of the irregularity, in circumstances where there has been no identification of any source of unfairness to the accused.  The only potential unfairness that the accused has been able to identify is that, in his submissions, the accused could not provide his lawyer with any instructions he could have given based on the complainant’s demeanour during the meeting – that is at paragraph 41.  We simply say to that, well, it is difficult to understand what meaningful instructions an accused could provide about a complainant’s demeanour in a meeting where the meeting is for the purpose of saying “hello”.  Further to that, it is difficult to conceive how any relevant evidence could be elicited at the special hearing based on those instructions.

So, we say there is no unfairness that the respondent can identify, and certainly nothing that would rise to the level of being a fundamental defect, it would justify a permanent stay.  So then, what are the other options that are available for the respondent?  The respondent could seek to have the judge – or could have sought to have the judge recuse itself on the basis of apprehended bias.  That did not happen in this case, and we say for good reason, that is because it does not arise.

JAGOT J:   But the real issue, the practical issue, is the special hearing recording which would otherwise be admitted in the trial and, as I understand it, the respondent says it cannot be admitted because it is infected by a fundamental irregularity, and you say it can.  In one sense, I suppose, the question of law really is in question 4 on page 29, if at all; maybe not well‑expressed.  I mean, another way of putting it is, is the special hearing evidence admissible in the trial?  It either is or it is not; you say it is, they say it is not.

MR BROWN:   Yes.

JAGOT J:   Is that not the real issue?

MR BROWN:   That is right, because we say ‑ ‑ ‑

JAGOT J:   And the Court of Appeal said it is not because it is infected, the effect of which, as I understand it, is you have to have another special hearing.

MR BROWN:   Yes, that is right.

JAGOT J:   Before a different judge, of course.

MR BROWN:   We say the effect of it is, if the principle of open justice was infringed, the meeting was beyond power.  The decision to hold the meeting was not authorised, so the meeting was beyond power.  That says nothing about the special hearing.

EDELMAN J:   Yes, but all of that and all of questions 1, 2, 3 could all be treated effectively as submissions or steps in argument to the question that Justice Jagot has just put to you, which is the question of law being, is the special hearing evidence admissible in the trial?

JAGOT J:   That is surely the ultimate issue here.

MR BROWN:   There is certainly some force in that, and we say it is admissible, because there was no ‑ ‑ ‑

JAGOT J:   I understand that.  You have been through all that, yes.

MR BROWN:   The consequence of the hearing being beyond power was simply that it was a hearing beyond power, but there is nothing that then follows through to the special hearing.  There is no defect in the special hearing.

BEECH-JONES J:   That analysis kind of starts at the end, because the Court of Appeal’s remedy of, you have to have another hearing, appears to be – and it is unstated, just looking at it – the sort of remedy you would grant if you had concluded it was inadmissible or it did not comply with the statutory criteria.

MR BROWN:   Yes.

BEECH-JONES J:   But a part of your argument is, we do not know how you got to that result based on the reasoning ‑ ‑ ‑

MR BROWN:   Well, they got to that result by saying, fundamental irregularity because of breach of open justice, therefore ‑ ‑ ‑

BEECH-JONES J:   They got to the result that way, but why was the answer not then get another judge for the trial, as opposed to redo the hearing?

MR BROWN:   Well, I think the answer to that would be, against myself, it is tainted.  The evidence is tainted by the meeting.

BEECH‑JONES J:   The evidence will stay tainted, because the meeting happened.

MR BROWN:   That is our point about the fundamental irregularity – how is that cured by redoing it?

BEECH‑JONES J:   Indeed, so we may be talking here – I will stop.

MR BROWN:   So, we say, obviously, it was not a fundamental irregularity, it is not clear how it amounts to a fundamental irregularity, and the evidence is admissible.  The last error:  the Court of Appeal did not answer question 2:

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

Obviously, this is focusing on the rule against bias, and that is, obviously, how Justice of Appeal Priest considered the question, because he has ‑ ‑ ‑ 

JAGOT J:   Sorry, when you said “the last error”, what do you mean?

MR BROWN:   Error 5, sorry.  There are five errors ‑ ‑ ‑ 

JAGOT J:   Have you amended your notice of appeal?

MR BROWN:   We say they fall within the first ground.

GAGELER CJ:   Is it put against you by Mr Tehan that that there would be a reasonable apprehension of bias?

MR BROWN:   Not so far as we can ascertain, your Honour.

GAGELER CJ:   Perhaps you could deal with this in reply, if it turns up.

MR BROWN:   If necessary.

GAGELER CJ:   Yes.

MR BROWN:   I take the hint, your Honour.

GAGELER CJ:   It was more than a hint.

MR BROWN:   A direction – you phrased it with “perhaps”, though.  So, for all of those reasons, your Honour, we say, as set out in our submissions, we seek that the orders of the Court of Appeal be set aside and, in its place, the reserved questions be answered:  question 1, no; question 2, no; question 3, no; question 4, unnecessary to answer.

As your Honour pleases.

GAGELER CJ:   Thank you.  Mr Tehan. 

MR TEHAN:   Your Honours, this appeal reflects the tension between measures designed to support vulnerable witnesses to give their best evidence and the application of fundamental principles of the criminal law to a novel situation where a judge decides to have a private communication with the key witness for the prosecution, not in the court room, at the witness’s request, where the meeting between judge and witness is not recorded, is not subject to public scrutiny, and is in the absence of the accused.

There is, to our knowledge, no other case like it that has occurred since the intermediaries programs were introduced into Victoria and other States and Territories in the Commonwealth. Your Honours, the first issue which arises in this appeal is whether section 389E of the Criminal Procedure Act 2009 authorised the meeting. 

EDELMAN J:   Mr Tehan, before you get into the issues, do you accept what Justice Jagot put to the appellant?  That the questions could, really, just be condensed into a single question, which is, is the special hearing evidence permissible in this trial?  With all of the submissions really just supporting that central question.

MR TEHAN:   Yes, and it must be – yes, your Honour.

EDELMAN J:   Thank you.

MR TEHAN: The respondent’s answer to the question that this first issue is about is no, there is no provision contained within section 389E which authorises this meeting or any meeting of this type. There is, in fact, no provision in the balance of the Criminal Procedure Act for any meeting of this type being described as a “meeting” or a “step” in the process of a proceeding. There is no statutory provision in Victoria that permits such a meeting. The power contained within section 389E is to make:

any direction for the fair and efficient conduct of the proceeding.

The proceeding there referred to is the proceeding to be held by way of special hearing.  A special hearing is held in court.  A special hearing is recorded.  An accused must be present at a special hearing – section 372(1)(a).

The public are not be permitted to be present unless authorised by the court because Parliament has seen fit to specifically exclude them – section 372(1)(c).  The room from which the complainant gives evidence is taken to be part of the courtroom while she is there for the purpose of giving evidence.  So, what happens is – as was pointed out with my friend – there is questioning of the witness by police, sometimes months beforehand.  That is done by way of what is called a VARE, a visual and audio recording, and that material – if I can call it that – that product, the VARE, becomes the evidence‑in‑chief in the trial.

Then the cross‑examination is conducted by way of a special hearing.  But at the special hearing, of course, the first thing that happens is that the witness adopts the VARE as being her or his evidence‑in‑chief.  Of course, during the conduct of the special – the special hearing can take place before a jury.  It does not have to be conducted in the way that it was here, but it can be in the presence of the jury.  Section 372(1)(a) requires that:

the accused and –

their legal representative:

be present in the courtroom –

during the special hearing, and specifically at section 372(1)(b)(ii), the accused:

is entitled to see and hear the complainant while the complainant is giving evidence and to have at all times the means of communicating with his or her legal practitioner –

notwithstanding the fact that the accused is not in the same room as the complainant.  Section 370(1) provides that:

the whole of the evidence . . . of a complainant must be—

(a)given at a special hearing . . . recorded as an audiovisual recording –

So, the special hearing, one, is conducted in a court; two, is conducted in the presence of the accused and his or her legal representatives; and three, is recorded.  And, as I have said, indeed, it could occur in front of the jury.  There was no power, in our respectful submission, to support this meeting prior to the special hearing.

GAGELER CJ:  Are you going so far as to say that a direction given under section 389E can only be a direction as to what is to occur in court during the special hearing?

MR TEHAN:   Yes.  And indeed, that is the practice.

GLEESON J:   So, there could not be a direction, for example, for the exchange of documents or the service of some information relating to some of these matters that are set out in subsection (2)?

MR TEHAN:   The whole purpose – no, not necessarily.  The sorts of directions that are given are in relation to the use of aids in giving evidence – remembering that the section relates to cognitively impaired persons – the type and the nature of questioning, whether or not counsel for an accused has to comply with the rule in Browne v Dunn ‑ ‑ ‑ 

GLEESON J:   A direction about the use of plans might include a direction - - -

MR TEHAN:   Yes, the use of plans.  Yes, we allow for the possibility that it is all concerned with what happens in court.

BEECH‑JONES J:   So, you could not have a direction that the prosecutor and senior counsel to the defence, without the judge there, go and introduce themselves to the vulnerable witness?

MR TEHAN:   No.

BEECH‑JONES J:   Even though that might be a matter of fairness to the witness, to assist them ‑ ‑ ‑

MR TEHAN:   It might be a good idea, but the fact of the matter is that when you examine the statutory context of this, immediately before and immediately after the meeting, there were these things:  there were hearings provided for under the Criminal Procedure Act, they were conducted in court.  In the case of the ground rules hearing, it was not required to be closed to the public, because there was no statutory sanction closing it to the public.

What we submit is that Parliament has clearly turned its mind to whether or not the accused be present; so that a meeting – whether it be said to be a step or hearing – could take place between these two hearings but not conform to the legislative framework regulating those hearings, or the framework in the balance of the Criminal Procedure Act from which those two hearings emanate – that is, the ground rules hearing and the special hearing – is not supported by the text, context, and purpose of the Criminal Procedure Act.

In fact, it is extraordinary, really, when you stop and think about it.  The Criminal Procedure Act deals with every step, every type of hearing, every process that takes place.  The holding of a private meeting outside court between the key Crown witness and the judge, where the judge and the witness are communicating – albeit in the presence of counsel – in an unrecorded situation, has not been allowed for.  It simply bespeaks of the fact that if the Parliament had intended such a meeting to take place, they would have said so with irresistible clarity.

Our submission is that Parliament has turned its attention to the balance between open justice and the competing public interest in vulnerable witnesses giving their best evidence.  That balance is reflected in the provisions of the Criminal Procedure Act concerning special hearings.  It follows that if the legislature had intended an introductory meeting outside of open court prior to the special hearing, it would have said so – and it would have said so in express words.  And it has not done so.

One might compare it with other provisions in the Criminal Procedure Act – for example, section 201. Section 201 of the Criminal Procedure Act allows for the court to decide a pre‑trial issue without a hearing.  Let there be no mistake about it, your Honours, our submission is that this “meeting”, so‑called, is in the nature of a pre‑trial issue which is caught by Part 5.5 of Chapter 5.

EDELMAN J:   Do you accept that the trial had not commenced?

MR TEHAN:   The trial before a jury had not commenced.  But a trial includes the conduct of all pre‑trial issues ‑ ‑ ‑ 

EDELMAN J:   Had there been an arraignment?

MR TEHAN:   I will have instructions on that, your Honour.

JAGOT J:   I think the answer is in the earlier – the County Court’s reasons, which indicate that there had been no arraignment.  No – paragraph 41:

No jury has been empanelled. By reason of s 210 of the Act, a trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel.

MR TEHAN:   Yes, that is certainly true, but there is another aspect to this.  Often, accused are arraigned more than once.  I will find that out.

GLEESON J:   When you say it is in the nature of a pre‑trial issue, do you mean it is in the nature of a pre‑trial hearing?

MR TEHAN:   It is.  It is in the nature of a pre‑trial hearing.  It is caught by Chapter 5.

GLEESON J:   And is not a pre‑trial hearing to decide an issue with respect to the trial?

MR TEHAN:   It is a pre‑trial hearing – what our friend seeks to do is to confine “a hearing” to the traditional.  I am not being critical, in this sense, it is the traditional way in which a hearing might be seen, when evidence is taken, and judgments and decisions are made.  But this is, after all, an interaction between the judge, both counsel for the prosecution, the solicitor for the prosecution, counsel for the prosecution, counsel for the defence, and the witness.  And there is an exchange of words.  We do not know exactly what the words were, who said what.  We, I suppose, can infer that at least the judge, or at least the witness, said “hello” ‑ ‑ ‑ 

GLEESON J:   Why do you not know what was said, when the accused’s counsel was present?

MR TEHAN:   Because it is not recorded.

GLEESON J:   Well, he must have had his ears on.

MR TEHAN:   That is one of the problems:  it is not recorded.

BEECH-JONES J:   Did you ask your predecessor, who had the brief, what happened?  Your client always had that – what happened?

MR TEHAN:   It is not recorded, your Honour.  It is a simple as that.  And the case stated is what it is.  But the point that we are making is this, that where a judge in the presence of counsel hears from the key Crown witness for the Crown, one would have thought that that is a hearing.  Hearings can take place where not much happens.

EDELMAN J: How does section 201 help you, though? Because there was no decision that was made, was there?

MR TEHAN:   No, but all I am doing is giving examples of the Criminal Procedure Act making provision for matters to take place without a hearing. Section 201 is one example, and 337A is another. Interestingly, section 337A is headed “Court may determine issue in criminal proceeding without oral hearing”. So, whilst “hearing” is not defined under the Criminal Procedure Act, it is referred to as both a hearing and an oral hearing.  But the point that we make is that Parliament has turned its attention to there being interactions without hearings – decisions being made, issues being decided, matters being determined, without the necessity for a hearing.

BEECH‑JONES J:   Both of those provisions appear to tie the hearing to the process of determining something or deciding something.

MR TEHAN:   Yes, that is true.  Deciding issues.  That is true, your Honour, I agree with that.  But the point, I suppose, is this:  Parliament has turned its attention to circumstances in which a hearing can take place in the absence of the parties, or in the absence of the accused, and not in public.  That is the point.  The circumstances are limited and are provided for.

The next point that we seek to make is a discrete point, and that is that if you go to the Criminal Procedure Act, as it is now in operation, section 389AB – and this is a point that was not held within oral argument by our friend, but was made in writing – 389AB provides that:

A ground rules hearing is a hearing at which the court—

(a)considers the communication, support or other needs of witnesses; and

(b)decides how the proceeding is to be conducted to fairly and effectively meet those needs.

As we apprehend it, our friend – at least in writing – says that you can use that provision to confirm the purpose of ground rules hearings, and further, you can use it to interpret section 389E, in particular, the words “other needs of witnesses” tied up with the words “meet those needs”. Then, if you go to 389E(2):

Without limiting subsection (1) –

So, the argument goes like this:  the witness’ needs – some might doubt that that was the case here, because it was simply a request for her confidence to be improved by meeting with the judge – are such that there ought to be a meeting between the witness and the judge and counsel.

What we say to that is that you cannot take any notice of all of section 389AB, because section 389AB is not relevant, does not have retrospective operation, and was not in operation at the time of the meeting.  What is more, the 2022 Amending Act changed the definition of a “ground rules hearing” from: 

a hearing conducted in accordance with Division 1 of Part 8.2A –

to the meaning given in the section I have just referred to, that is, section 389AB.  In addition to introducing that section, the 2022 Amending Act extended ground rules hearings to all sexual complainants across Victoria.

The potential, in relation to this case, is that courts in Victoria may sit in private, in the sense that they do not seek publicly to meet with all sexual complainants, including adult complainants, prior to those witnesses being cross‑examined. So, what we say is that section 389AB related to an expanded legislative scheme and the section and its extrinsic materials are not relevant to the construction of section 389E as it was at the time of this case.

GAGELER CJ:   You say that, but you also say that to adopt the appellant’s construction in relation to the Act as it was would carry over to the Act as amended and have an expanded operation on children.

MR TEHAN: Yes, it would. Of course it would, and that is, in some senses, the importance of this case, because it does have importance. The other thing that happened on the very day, the very time section 389B was changed into 389AB, the pilot intermediary scheme that had been in operation for some three years in Victoria, and was the subject of a multi‑jurisdictional guide that is mentioned in the Court of Appeal judgments, became the guide which, in part by its terms, suggested that the sort of directions that a judge might make pursuant to section 389E(2) might include having a meeting with the complainant outside of court and, of course, it has to be in the absence of the accused.

So, this whole argument that the accused could have been there – as the President of the Court of Appeal indicated in her judgment in this very case, he had no right, he had no choice but to stay away.

GAGELER CJ:   Can I just go back to your point about the guide.  Is that an instrument that has some statutory force?

MR TEHAN:   No, it does not.  It does not, and it is the sort of sleeper in the background to this case, if you like, because why did it happen?  Anyway, it does not have any statutory force.  Section 389 did not merely confirm the meaning of a ground rules hearing, it expanded the meaning of ground rules hearings by requiring that the witnesses’ support, communication or other needs are to be considered.

That is why our friend, in writing, goes to the explanatory memorandum that preceded the Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022, because it says the words “or other needs” as used in the new section 389AB(a) are intentionally broad and intended to address a variety of factors that may influence a person’s ability to give their best evidence.  For example, the fact that sexual offence complainants may experience intimidation and distress when giving evidence.

GAGELER CJ:   You have no difficulty with those considerations being brought to account provided the directions are focused solely on what occurs during the proceeding.

MR TEHAN:   In court.  And the other interesting thing about this legislation is Parliament has actually turned its mind to dealing with the emotional needs of vulnerable witnesses giving evidence and allowed for, for example, support persons.  If one goes, for example, to section 360:

The court may direct that alternative arrangements be made for the giving of evidence by a witness, including arrangements . . .

. . .

(c)permitting a person, chosen by the witness and approved by the court for this purpose, to be beside the witness while the witness is giving evidence –

that is important:

for the purpose of providing emotional support to the witness –

Then, further, at section 365(1):

If the witness is a complainant in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court must direct that an arrangement referred to in section 360(c) be made unless the court is satisfied that the complainant—

(a)is aware of the right of the complainant to have a support when giving evidence; and

(b)does not wish to have a support person.

EDELMAN J:   Which provision were you just reading from then?

MR TEHAN:   That is 365, your Honour.

EDELMAN J:   Thank you.

MR TEHAN:   So, the point that we make is this.  Obviously, the moving force behind this legislation in recent years throughout Australia has been to modify court procedures to allow vulnerable witnesses to give their best evidence.  Our point is that there are comprehensive provisions of the Criminal Procedure Act (Vic) which deal with that, but they certainly do not permit of what happened in this case. Now, we have given the Court that New South Wales decision of Sieders on statutory construction relating to later legislation.  In Sieders, at paragraph 125 in that case, the Court said this:

“it is the intention of the legislature when effecting textual amendment of an Act to produce a revised text which thereafter and as to subsequent events is to be construed as a whole.”

That is quoting from another case, I think, but it does not mean the later Act can affect the construction of the earlier as applied to events before the later Act.  So, that is the short point.  Section 389AB is out as a matter of statutory – cannot be used in this case, because the meeting took place before it was in effect.

GAGELER CJ:   Are you about to move on to your next proposition?

MR TEHAN:   I am, your Honour.

GAGELER CJ:   Mr Tehan, we might take the luncheon adjournment.

MR TEHAN:   Thank you, your Honour.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GAGELER CJ:   Mr Tehan.

MR TEHAN:   Thank you, your Honour.

GAGELER CJ:   We were up to?

MR TEHAN:   Paragraph 10.

GAGELER CJ:   Paragraph 10, very good.

MR TEHAN:   Your Honours, the respondent had not been arraigned at the time of the meeting.  He could have been arraigned, of course, at a directions hearing; he would have to have been arraigned on trial in the presence of the jury panel under the ‑ ‑ ‑

EDELMAN J:   All the indications, then, point to the fact that the trial had not started.

MR TEHAN:   The trial had not started in the sense of a trial before a jury.

EDELMAN J:   In any sense, yes.

MR TEHAN:   The County Court of Victoria – I now turn to the issue of whether or not it can be said that the holding of this meeting arises out of some implication of power.

GAGELER CJ:   Is that being put?

MR TEHAN:   I thought it was put in writing at least, but the point we do want to make – we do want to deal with it.  We say, then, our position, I think, is clear enough – there is no express power at all.  The County Court of Victoria, as a statutory court, has no inherent jurisdiction; it only has such powers as are conferred upon it by the express conferral of jurisdiction.  There was no power to hold the meeting, and, therefore, that ought to be the end of it.

The issue as to whether or not the Court might have had implicit power would depend upon application of this rule, that is, was there a conferral of power, express, out of which it could be implied that the holding of a private meeting between the judge and the complainant was necessary, was absolutely necessary in the interests of justice?

GAGELER CJ:   “Absolutely” might be a bit strong, do you not think?

MR TEHAN:   Well, let me express it in the way Lord Dyson expressed it in Al Rawi, cited by Justice Gordon in HT v The Queen:

The basic rule is that (subject to certain established and limited exceptions) the court cannot exercise its power to regulate its own procedures in such a way as will deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.

There is a case, which is not in the books, John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344, that stands for the proposition that the District Court of New South Wales has no inherent jurisdiction and the test to determine whether there is any implied power arising out of a conferral of jurisdiction is the test of necessity. There is nothing, in our submission, to indicate that it was necessary to hold this meeting.

The court could have readily discharged its powers under section 389E without holding this meeting. On no view of it could the court’s implied powers permit a private communication between the judge and the witness outside of court. Power cannot be inferred merely because the meeting might be categorised in a certain way, either as a step or as a hearing.

That matter arises under the second issue, which I turn to now, that issue being:  was the introductory meeting a hearing or a step in the proceeding; did the principle of open justice apply to the meeting?  I think I have touched upon this.  In our submission, the meeting was a hearing because the judge, counsel, and the witness were present, and the purpose of it was to hear the witness and to introduce the judge and counsel to her.

The meeting was not a mere step such as the filing or exchange of documents between parties or such steps as I have just mentioned are provided for under the Criminal Procedure Act.  None of those steps involve the judge, let alone the judge meeting and hearing a witness.  The principle of open justice and its derivative ordinary rule that all courts sit publicly, applied to this meeting.  Because the hearing was not in court, it was not in public.  A judge cannot decide, as this judge did, as a matter of discretion, to sit in private.  Parliamentary sanction is required for the exclusion of the public.  That is the fundamental principle that comes out of Scott v Scott, Dickason v Dickason and Russell v Russell in this Court.

There is no parliamentary sanction for the holding of a private meeting outside of court.  Courts are the fountain of justice because, amongst other things, they are in public.  It is perhaps unsurprising that, although we concede the reality that the Court of Appeal was expressing itself in using the phrase “the principle of open justice” they were concentrating upon the derivative rule from the principle that courts sit publicly, it is perhaps unsurprising in this case that the court expressed the matter in terms of the infringement of a principle, having regard to the nature of what was before them – that is, not just a meeting outside of a courtroom between a judge and a witness, but a meeting of the key Crown witness, which was unrecorded and in the absence of the accused.

The rationale, as we know, for the principle of open justice is that the criminal justice system operates in such a way that the public can have confidence in the system; the public can have confidence in the integrity and institutions of the system of justice, because it is open to public scrutiny.  Public scrutiny is different from the scrutiny that counsel or parties may have in a particular proceeding.  The public have an interest in seeing justice be done.

GAGELER CJ:   Is there provision in the Criminal Procedure Act for the judge to go on a view?

MR TEHAN:   There is procedure, not in the Criminal Procedure Act, your Honour.  I will find out the section, but it is in the Evidence Act.  There is a particular procedure in our Evidence Act.

BEECH-JONES J:   That is section 55.

MR TEHAN:   Thank you, your Honour – for the holding of a view, so it is specifically provided for, your Honour.

GAGELER CJ:   Yes, but if the judge went on view, would it be necessary, in your submission, for the public to be invited along?

MR TEHAN:   Well, there would be no reason why the public could not – there is no reason why the public could not go.

EDELMAN J:   The view would usually be announced in court.

MR TEHAN:   Yes, it would be announced in open court, and if members of the public wanted to go, of course they could.

EDELMAN J:   And the members of the public that were attending court could go along to a view.

MR TEHAN:   Yes, of course they could.

BEECH-JONES J:   But they are kept at a distance.  You do not let the public mingle with the jurors.

MR TEHAN:   No.  Well, you are subject to all those obvious qualifications, yes, but ‑ ‑ ‑

BEECH-JONES J:   It is very difficult – and they do not have the degree of scrutiny they do if they are sitting in open court.

MR TEHAN:   No, your Honour, I agree with all that.  The rule flowing from the principle that courts sit in public is an aspect of the rule of law.  The requirement that a court sit in private without parliamentary sanction changes the nature of a court, and one cannot, with the greatest of respect to the appellant, dodge that reality by simply saying:  well, this is a step and not a hearing.  It does not matter.  Ultimately, it does not matter whether it is a hearing or a step.  We say it is a hearing, and that the principle of open justice and its ordinary rule was infringed.

That brings me to another issue that arises under the head of this issue, and that is the application of the principle of legality to the interpretation of section 389E. We submit that the principle of statutory construction known as the principle of legality does apply, because the appellant in this case contends the statutory context and purpose of section 389E abrogates the principle of open justice.

In our submission, application of the legality principle is not limited to cases where construction choices relate only to the validity of a provision. Section 389E, by its terms, is not restrictive of freedom. There is nothing in the text, context or purpose that would permit a construction that restricts freedom or disallows – it restricts freedom in two ways. First of all, disallows the public from attending and means that the accused cannot be present at the meeting. The public cannot go to it and the accused cannot be present. There is simply nothing in section 389E which would allow for that interpretation. And we stress that section 24 of the Charter provides for the right of the accused to have a fair and public hearing.

GAGELER CJ:   And the relevance of that is section 32 of the Charter?

MR TEHAN:   Yes.

GAGELER CJ:   In its application to the construction of the same provision?

MR TEHAN:   Yes.  And indeed, it is further than that, your Honour.  This is dealt with at paragraph 20 in our submissions and in the joint authorities at page 1314.  The statement of compatibility for the 2017 Amending Act, that is, the Act that introduced ground rules hearings, introduced section 389, and it stated, in relation to section 25 of the Charter, “Rights in criminal proceedings” as follows:

While intermediaries will assist vulnerable witnesses to communicate, they will not limit the rights of the accused –

Intermediaries will “ensure” most reliable evidence obtained from:

witnesses, which in turn will result in a fairer hearing.

And I do want to stay with the role of intermediaries for just a moment, because as Justice Priest pointed out in the Court of Appeal, it is no function of the intermediary to advise upon steps or processes which should be taken to alleviate any distress or emotional concern that the complainant might have.

The functions of intermediaries – and intermediaries are officers of the court, unlike support persons, who are there for support and advocacy purposes in relation to the complainant; the intermediary is not that. The intermediary is an officer of the court whose functions are specified in 389I, and they relate to communication and explanation to the witness of questions to be put to the witness. So, it is questioning, and that dovetails, of course, with section 389E(2).

EDELMAN J: Could I ask just a slightly technical question, just to take you back one step, about section 32 of the Charter. If, contrary to your submission, section 389E(1) can be read and cannot be read down to prevent a meeting of the nature as that which occurred, can the words “so far as it is possible” in section 32 be used in the way, for example, that the Human Rights Act (UK) is used, to disapply the section 389E(1), so that in its application to such meetings, that application is just disapplied even though the words would naturally extend to that?

MR TEHAN:   In other words, it does not apply at all to meetings.

EDELMAN J:   Yes.

MR TEHAN:   No.

EDELMAN J:   It cannot be used in that way?

MR TEHAN:   No.

EDELMAN J:   And why not?  That would be consistent with your submissions, to interpret it that way, but it would go beyond the reading down.  It would say that, rather than changing the meaning of the words or reading the words down, it is limiting the scope of application in the same way as a provision in the Migration Act, for example, expressly permit the limit of the scope of application of those provisions, if they would be invalid.

MR TEHAN:   The right of an accused to a public hearing is fundamental and enshrined in the Charter, and that cannot be read down.

EDELMAN J:   No, no, I am not suggesting reading that right down.

MR TEHAN:   No – your Honour is speaking of section 32 of the ‑ ‑ ‑

EDELMAN J: The use of section 32 with section 24 of the Charter, which provide for a legislative mandate to do everything so far as possible to ensure the protection of the section 24 right. What I am putting to you is, if it is not otherwise possible to read down section 389E, and section 389E would otherwise require or permit the meeting, could section 32 be used to disapply it in that application?

MR TEHAN:   No.  In our submission, no, your Honour.

EDELMAN J:   So, you concede that it would operate against you, then?

MR TEHAN: Yes. So, in our submission, your Honour, President Emerton was correct in her reliance on the principle of legality in interpreting section 389E, and, in particular, in her reliance upon the statement of Chief Justice French in Hogan v Hinch that the principle of legality is relevant to the application of the open justice principle in this case.

Now, the third issue, your Honour, is, was the respondent required to be present at the meeting? In our submission, the accused was required to be present at the meeting. That arises by virtue of section 246 of the Criminal Procedure Act.  He had not been excused pursuant to section 330 of the Act.  Chapter 5 of the Act required the accused’s presence at all pre‑trial procedures.

JAGOT J:  Could I just ask this question. Section 246 uses the word “attend”, “attend” is defined in section 3, and it is defined to mean either:

(a)be physically in court; or

if authorised under the particular Act:

appear or be brought before the court by audio visual link –

So, it is not under (b) – and it is not under (a) either, because it was not “in court”, or was that ‑ ‑ ‑ 

MR TEHAN:   That is 330, your Honour.

JAGOT J:   Section 330.  Does that say that that place ‑ ‑ ‑ 

MR TEHAN:   I am sorry, your Honour.  He had not been excused – I am sorry, your Honour.  I may have missed your Honour’s point.

JAGOT J:   It is just that you rely on 246, but the word “attend” – “An accused must attend”, and “attend” is defined ‑ ‑‑ 

MR TEHAN:   As being physically present.

JAGOT J:   Yes, but “in court”, which does not suggest – this was not in court.  That is your point about the power in 389E(1), that it was not in court at all.  You say there was no power to do it – that is a different point – but assuming it is not in court, then 246 does not seem to bite at all.

MR TEHAN:   Well, it was a hearing in a criminal proceeding.

JAGOT J:   Well, that is not what “attend” is defined as.  That is all I am saying.  I am not sure how 246 does anything.

MR TEHAN:   If it is a hearing in a criminal proceeding, the accused is obliged to attend.  In fact, in relation to this particular provision, the explanatory memorandum speaks in terms of a presumption of attendance.

JAGOT J:   Well, I do not know.  Section 331(1)(a):

An accused must attend a hearing in the criminal proceeding . . . if—

(a)this Act or the rules of court require the attendance –

Or (b) or (c) – so I am not sure how that works, either.  And that is leaving aside the fact that “appear” is also defined somewhere in this Act – probably back in section 3.

MR TEHAN:   Well, if “appear” means – one can appear by one’s legal practitioner.

JAGOT J:   Section 328 is “appear”.

MR TEHAN:   Yes.

JAGOT J:   No, you can certainly appear by counsel.

MR TEHAN:   Yes.

JAGOT J:   You probably cannot attend by counsel.

MR TEHAN:   Yes.

GLEESON J:   The definition of “attend” suggests that it relates to – that a hearing is something that occurs in court.

MR TEHAN:   Yes, it does.  I agree with that.  Just a moment, your Honours.  Can I return to a matter that Justice Edelman asked of me just a few minutes ago, and clarify what our position is?

GAGELER CJ:   Are you going to change the answer you gave about five times?

MR TEHAN:   Was it five times?

GAGELER CJ:   At least.

MR TEHAN: Our position would be that the Charter disallows meetings, and section 389E cannot be read down, and that section 32 can be used to say that even if section 389E gave a power, section 32 means that the interpretation of section 389E should be that a meeting cannot be held. I do apologise for that, your Honour, but I hope that clarifies our position.

The next matter concerns the issue of waiver, which is raised against us, at least in writing, to which we contend that waiver did not arise on the case stated.  An accused has no right to be absent from his or her trial, an accused cannot waive a fundamental irregularity, and the reality is that, as President Emerton observed, the practicality was that the accused had no choice but to stay away.

GAGELER CJ:   The language of “fundamental irregularity” comes from where, in this context?

MR TEHAN:   I want to turn to that, your Honour, because that is the last issue, and the language of “fundamental irregularity” comes from the criminal appeal provisions, the form of criminal appeal provisions in relation to appeals against conviction.

BEECH‑JONES J:   It is also at least part of the test for a stay though, is it not?

MR TEHAN:   Yes.

BEECH‑JONES J:   In Dupas.

MR TEHAN:   It is, I agree with that, your Honour.  In our submission, the meeting was a fundamental irregularity because it was not authorised by any provision of the Criminal Procedure Act; it was not in court; it was not open to public scrutiny; it was in the absence of the accused; and the meeting involved a communication or communications between the judge and the key Crown witness prior to that witness giving evidence against the accused.  One does not have to show ‑ ‑ ‑

BEECH‑JONES J:   Mr Tehan, I asked your opponent an example earlier about a communication about a witness that often happens in trials that does not happen in open court but can affect an order – the instance where the witness has some acute personal difficulty that is disclosed to the judge and then later only averted to.  On your argument, why is that not a fundamental irregularity?

MR TEHAN:   I suppose each case has to depend – the category of cases where a court would find a fundamental irregularity which did not make a difference to the outcome may be narrow, but they are not closed – and they all depend upon the facts.  If one goes to what this Court said in Wilde v The Queen 164 CLR 365, at page 373 of that case, the Court expressed itself in that case that a mere misdirection might not be:

such a departure from the essential requirements of the law that it goes to the root of the proceedings.

But the Court referred to three cases, and then an English case, interestingly.  One of a case by the name of R v Hildebrandt, which is a New South Wales case, and that involved the misdirection on the standard of proof.  The next case was a Victorian case by the name of Henderson ‑ ‑ ‑

EDELMAN J:   This is all proviso territory, is it not?

MR TEHAN:   It is.  Yes, it is proviso territory.  I am simply engaging with where did the terminology come from.

BEECH‑JONES J:   I think we understand the terminology.  What I am trying to get at is, what makes this so fundamental?

MR TEHAN:   What makes it fundamental ‑ ‑ ‑

BEECH‑JONES J:   Assuming everything else in your favour, why is this so fundamental?

MR TEHAN:   It is a serious departure from proper trial process for a judge to leave the courtroom and have a meeting with the key witness for the prosecution – albeit in the presence of counsel.

BEECH‑JONES J:   But one thing we know is, counsel for your client at least had the opportunity that if anything happened in that meeting that bore on any issue in the trial, to then examine about it at the special hearing.

MR TEHAN:   But that issue, your Honour, would go to the question as to whether it made a difference – in other words, whether the holding of the meeting made a difference to the outcome of the special hearing.

EDELMAN J:   You are not relying upon that aspect of fundamental irregularity in the proviso jurisprudence that says this might have made a difference.  You are saying that this is so fundamental that even if it could not possibly have made any difference, there would be the equivalent of a substantial miscarriage.

MR TEHAN:   Yes.  Exactly.  In other words, it relies upon that narrow band of – what is said to be a narrower band of cases ‑ ‑ ‑

EDELMAN J:   The equivalent of directing a jury that they find on the balance of probabilities, or something like that.

MR TEHAN:   Well, that is why I am going through the examples which were given in ‑ ‑ ‑ 

BEECH-JONES J:   But if that is right, why is the cure doing it again?  On your argument, it can never be done again, because the meeting has happened.  If it is, as you say, fundamental, how can the cure for that be, do it again?  Or to put it around, why is the result that you have to do it again?

MR TEHAN:   I suppose the reason why it has to be done again is for the appearance of justice having been done.  But where we ‑ ‑ ‑ 

BEECH-JONES J:   But that will not cure that, because the meeting will have happened.

MR TEHAN:   Yes.  I do understand the point about remedy, your Honour.

BEECH-JONES J:   I am sorry; I have cut you off.  You were talking about Wilde.

MR TEHAN:   The other cases – what happened in Henderson, which was a Victorian case, was that presentment had been laid prior to the date of committal.  Presentment – we now call that indictment – was laid prior to the date of committal, and the court said that that would be a serious departure from the essential procedure prescribed for trial.  R v Couper, a New South Wales case, cross‑examination of the appellant upon his criminal record with no direction from the judge.

The last case mentioned on that page of the report in Wilde is an English case by the name of R v Rose [1982] AC 822, in the House of Lords at 831 to 834. That involved a private communication by the judge to the jury, through the judge’s staff, imposing a time limit upon reaching a verdict, and it was found that that was a material irregularity. So, the purpose of going down this path is we well appreciate it is the nomenclature of the criminal form appeal legislation.

Perhaps it is unsurprising that it found its way in that way, given the Court’s decision in Alec v The King, but it is a fundamental irregularity, we would say, where what occurred at this meeting did occur.  The mere fact of the meeting, the mere fact that it is not recorded, the mere fact that there is

no public scrutiny of the meeting, and the fact that it is in the absence of the accused who had no choice but to not be at the meeting.  All of those facts do amount to a fundamental irregularity, and the fact that it is not recorded places the judge – and counsel, even – in an invidious position.

We have to go on the bare facts of the case stated, but it is inevitable that the court would have expressed itself in some way to show its disapproval of what had occurred.  This was a way, I suppose, where it made it very clear that this was not going to happen again, because it was something that was – to use the words of Justice Priest – an “anathema” to it.

GAGELER CJ:   You support all of the answers given by the Court of Appeal.

MR TEHAN:   Yes.

GAGELER CJ:   So, your proposed answer to question 3 leads to the remedy that is referred to in question 4, and nothing more?

MR TEHAN:   Yes, and we say the issue of bias does not arise in this case. 

BEECH-JONES J:   Did your side contend before the Court of Appeal that it demonstrated bias?

MR TEHAN:   We said it did not arise.

BEECH-JONES J:   That was your position there, as well.

MR TEHAN:   Yes. 

BEECH-JONES J:   Yes.

MR TEHAN:   Our position is what it was in the Court below, that the issue of bias does not arise.  If the Court pleases.

GAGELER CJ:   Thank you, Mr Tehan.  Mr Brown.

MR BROWN:   Four short points, if the Court pleases.  My friend made a submission that 389E(1) should be read as limited to things occurring in the special hearing.  The words of the provision include:

any direction for –

and I pause there and emphasise the word “for”:

the fair and efficient conduct of the proceeding.

We say there is no reason to confine the ambit of the word “for” to the pendency of the proceeding. My friend also made a submission about the types of directions that are routinely made in support of a confined construction of section 389E. None of that finds a home in the case stated, and in any event, we say it could not assist in the interpretation of the provision.

My friend made some critique of the appellant’s apparent reliance on the new section 389AB of the Act.  This was addressed in our reply submissions at paragraph 16, where we said, to be clear, the appellant’s submission regarding the construction of 389E(1) does not depend upon section 389AB.  The final point is to take up an exchange that Justice Edelman and my friend had about section 32 of the Charter.  Section 32, in terms, says: 

All statutory provisions must be interpreted in a way that is compatible with human rights, so far as it is possible to do so consistently with their purpose.

What that provides is an ordinary rule of statutory interpretation.  You construe the provision, we say, if there is a construction of choice that the choice that least interferes with rights is the one that would be chosen.

EDELMAN J:   Do you say it is any different in its operation – in the techniques of its operation – as from, say, section 15A of the Acts Interpretation Act?

MR BROWN:   Not much.  It is more equivalent to the principle of legality, but with a smaller field of operation.  In any event, in this case, we say that no rights have really been identified as being engaged that would confine the operation of 389E.  Perhaps the right in 24(1), the fair hearing right, which refers to the right to have the matter determined in an open‑court hearing.  Of course, that then forces back to whether we had a hearing, here.  We did not have a hearing, so that does not provide any avenue to read down, as it were, or choose a different construction for 389E.

If the Court pleases.

EDELMAN J:   Could I just ask one question, just before you sit down?  A view that is conducted out of court, is there any provision which operates on section 53 of the Evidence Act to extend the courtroom to the view?  Or is the view, in every sense, truly out of court?

MR BROWN:   That was my understanding of the operation.  I will just check with my learned juniors.  I am not being very certain, I am sorry, your Honour but that is my understanding of how it operates.

EDELMAN J:   Yes, thank you.

MR BROWN:   If your Honours please.

GAGELER CJ:   Thank you, Mr Brown.  Mr Tehan, was there something ‑ ‑ ‑

MR TEHAN:   I am just not sure about that, your Honour.  That last question, as to whether or not – the section 3B of the County Court Act, which, as I understand ‑ ‑ ‑

GAGELER CJ:   Mr Tehan, if you are going to speak, please move to the microphone.

MR TEHAN:   I am sorry, your Honour.  Section 3B of the County Court Act provides that:

Any judge of the court may exercise at any time and place all the jurisdiction vested in the court.

That would have the meaning that, when the court is of the view that it is exercising jurisdiction, obviously - - -

EDELMAN J:   And the proceedings are still in court, in that sense, then.

MR TEHAN:   Yes.  And of course, the review is evidence in the proceeding, pursuant to the provisions of the Evidence Act. 

BEECH-JONES J:   Mr Tehan, while you are there, and I misled you, Justice Edelman is, of course, right, it is 53.  Section 53 provides that the judge cannot order a view unless satisfied the parties were given a reasonable opportunity to be present, but the Act does not contemplate a right or unstinting obligation of the accused to be present.

MR TEHAN:   To be present at a view? 

BEECH-JONES J:   Yes.

MR TEHAN:   Yes.

BEECH-JONES J:   Is there anything in any other Victorian piece of legislation that affects that? 

MR TEHAN:   I cannot think of one, your Honour.  I must say. 

GAGELER CJ:   Thank you, Mr Tehan.  Mr Brown, does anything arise out of that? 

MR BROWN:   No, your Honour.

GAGELER CJ:   Very well.  Thank you.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow. 

AT 2.58 PM THE MATTER WAS ADJOURNED