Director of Public Prosecutions v Smith

[2024] HCATrans 7

[2024] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M100 of 2023

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

DAVID JOHN SMITH

Respondent

BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 12 FEBRUARY 2024, AT 9.16 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MS R.J. ORR, KC, Solicitor-General for the State of Victoria, appears for the applicant with MS S.C. CLANCY and MS J.R. WANG.  (instructed by Office of Public Prosecutions (Vic))

MR P.F. TEHAN, KC appears for the respondent with MR G.J.F. CHISHOLM and MS B.A. MYERS.  (instructed by James Dowsley & Associates)

HIS HONOUR:   I understand the parties have the proposed draft directions, is that right, Ms Orr and Mr Tehan?

MS ORR:   Yes, it is, your Honour.

MR TEHAN:   Yes, it is, your Honour.

HIS HONOUR:   And I understand the parties have been advised of a tentative hearing date of 18 April.

MS ORR:   Yes, your Honour.

HIS HONOUR:   Given what is said to be what was said by the State to the effect on other cases, we did have in mind the April sittings.  Is 18 April a suitable date?

MS ORR:   It is for the applicant, your Honour.

HIS HONOUR:   Mr Tehan?

MR TEHAN:   Your Honour, we would prefer a date of 8 April, or as soon as close to 8 April, because myself and one of my juniors are counsel for an accused in a murder trial.  However, if that cannot be arranged, we will naturally comply with whatever date is fixed by the Court.

HIS HONOUR:   What I think I will do about the date is ask if you could just go back to the Registrar with your difficulties, Mr Tehan, and you Ms Orr, in that whole period.  We are mindful of your client’s position in particular, Mr Tehan, and your position, and we will see what we can do.  But we are committed to the April sittings.

MR TEHAN:   Yes, I understand that, your Honour.

HIS HONOUR:   Subject to that, are the directions acceptable, Mr Tehan?

MR TEHAN:   Yes, your Honour.

HIS HONOUR:   And Ms Orr?

MS ORR:   Yes, your Honour, and I might just make clear, we will discuss with the Registry but I have explained to Mr Tehan that we have difficulties in the first week at the April sittings.  So, we will need to find a way to try and accommodate everyone as best as possible, but it might be difficult.

HIS HONOUR:   All right, I will leave that difficult task to you and the Registrar, but ultimately, one way or another, we will have to cut through it.

MS ORR:   Yes.

HIS HONOUR:   Can I just raise a couple of points.  That I would ask that the submissions address, but in raising them – I think it can be done within the page limit, and I do not wish to distract the parties from the main point that is sought to be agitated, but it does concern the form of the appeal and the questions that were referred to the Court of Appeal.  With no particular precision about it:  whether the concept of open justice that the Court of Appeal was asked to look at and was addressing – did it address it as a rule or as a principle?  That is, something that if, in the former case – which it breached – had some particular legal consequence.

The second point is – because this matter was not entirely clear, if I may say so, from the submissions, but I do not mean to be critical of them – whether the meeting that was the subject of the appeal, the meeting between the trial judge, the two counsel and the complainant, whether it is said to be an extension of the ground rules hearing or something separate, and if that is the case – that is, if it was said to be an extension of the ground rules hearing – is there power for a legal practitioner to waive section 389D(1)(b) of the Criminal Procedure Act?  If it was not an extension of the ground rules hearing, was it nevertheless a “hearing” within the meaning of sections 246 and 330 of the Criminal Procedure Act, or otherwise part of the proceeding?

The last point is – and this comes back to the questions that were asked of the Court of Appeal – if there could be some attention given to what is the legal significance of a conclusion that the meeting was a “fundamental irregularity in the trial process” when we are not looking at a conviction appeal or an application for a stay.  Now, they are just a couple of issues that the Court would be assisted from the parties, but, as I said, it is not meant to distract the parties from addressing the substance of – or the real complaint that led to the questions referred, and I think all of that could still be accommodated within the page limits.  Ms Orr, from your perspective is there anything else we need to raise today?

MS ORR:   No, I do just want to make sure I understand the first of the points, of the three points, that your Honour has raised so that we can be of assistance to the Court.  Your Honour referred to the question of whether the concept of open justice is a rule or a principle, and the legal consequences that flow.  Is your Honour and the Court interested in whether that is the way the Court of Appeal treated the concept of open justice and what we say about how it should be treated?

HIS HONOUR:   Indeed.  What is it and how did the Court of Appeal treat it is at the essence of it, but also whether that was implicit in the question that they were asked.

MS ORR:   Whether it was implicitly treated as one or the other in the reserve – yes.

HIS HONOUR:   If I remember rightly, the question had to be a question of law arising in the proceedings, and one might query whether a question about a principle, as such, is truly a question of law that arises, as opposed to asking a question about a rule and, as you said, whether the Court of Appeal took that up in its reasoning.

MS ORR:   Yes, I understand.  I am grateful for that further information.  Thank you, your Honour.  No other matters from our perspective that require resolution today.

HIS HONOUR:   Yes.  Mr Tehan?

MR TEHAN:   No.  Thank you, your Honour, we have no matters to raise.

HIS HONOUR:   All right, I thank the parties for coming along at short notice and I will leave it to the Deputy Registrar to formally make the directions about the written submissions and note that the parties will liaise with her about the precise hearing date.

MR TEHAN:   Thank you, your Honour.

HIS HONOUR:   Court will adjourn.

AT 9.24 AM THE MATTER WAS ADJOURNED