Director of Public Prosecutions v Smith

The parties in this matter before the High Court of Australia were the Director of Public Prosecutions, as the applicant, and Mr. Smith, as the respondent. The proceedings concerned the form of an appeal and questions referred to the Court of Appeal. The hearing was conducted remotely, with appearances noted for both the applicant and the respondent.

The High Court was required to determine several legal issues. These included whether the concept of open justice, as considered by the Court of Appeal, was treated as a rule or a principle, and the legal consequences flowing from that distinction. Further, the Court needed to ascertain whether a meeting between the trial judge, counsel, and the complainant was an extension of the ground rules hearing or a separate event, and if it was an extension, whether a legal practitioner had the power to waive section 389D(1)(b) of the Criminal Procedure Act. If the meeting was not an extension of the ground rules hearing, the Court had to consider if it constituted a "hearing" within the meaning of sections 246 and 330 of the Criminal Procedure Act, or was otherwise part of the proceeding. Finally, the Court sought to understand the legal significance of a conclusion that the meeting constituted a "fundamental irregularity in the trial process," particularly when the appeal did not concern a conviction or an application for a stay.

The Court indicated that submissions should address these points, focusing on what the concept of open justice is and how the Court of Appeal treated it, and whether this treatment was implicit in the questions referred to the Court of Appeal. The Court noted that a question about a principle, as opposed to a rule, might be queried as to whether it truly constitutes a question of law arising in the proceedings. The Court also sought clarification on the legal significance of a finding of fundamental irregularity in the context of the specific appeal. The Court expressed its commitment to the April sittings and directed the parties to liase with the Deputy Registrar regarding written submissions and the precise hearing date.