Director of Public Prosecutions v Smith

The Director of Public Prosecutions appealed to the High Court of Australia against an order of the Court of Appeal of the Supreme Court of Victoria. The dispute concerned a meeting held between a judge, counsel for both the prosecution and the accused, and a child complainant, prior to the complainant giving evidence at a special hearing. The accused was charged with sexual offences against a child under 16 years. The meeting was not attended by the accused and was not recorded, and it occurred following a recommendation from an intermediary appointed for the child witness.

The central legal issues before the High Court were whether the meeting was authorised by section 389E(1) of the Criminal Procedure Act 2009 (Vic), whether it was inconsistent with the principle of open justice, whether it constituted a fundamental irregularity in the trial process, and whether it gave rise to a reasonable apprehension that the judge might not bring an impartial mind to the resolution of issues. These questions arose in the context of a case stated by the Court of Appeal, which had previously set aside a conviction in a similar matter due to a private meeting between a judge and a complainant.

The High Court allowed the appeal, holding that the meeting was authorised under section 389E(1) of the Criminal Procedure Act and did not constitute a fundamental irregularity. While acknowledging that the meeting created a risk of irregularity, the Court found that no such irregularity in fact occurred. This conclusion was influenced by the fact that counsel for the accused had no objection to the meeting and attended it, and that there was no information suggesting anything untoward occurred during the brief introductory meeting. The Court determined that the meeting did not infringe the principles of open justice or bring the impartiality of the presiding judge into question in a way that constituted a fundamental irregularity.

Consequently, the High Court set aside the order of the Court of Appeal and substituted its own answers to the reserved questions of law. The Court answered that the meeting was an irregularity in relation to the trial, but not a fundamental irregularity. It was unnecessary to answer whether the meeting brought the impartiality of the presiding judge into question, and it was not the case that the only remedy for the complainant's evidence to be taken at a further special hearing conducted before a different judge.