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DPP v Smith

DPP v Smith

Case [2023] VSCA 293 30 November 2023

Criminal Liability

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0181

DIRECTOR OF PUBLIC PROSECUTIONS

DAVID JOHN SMITH

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JUDGES:	EMERTON P, PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2023
DATE OF JUDGMENT:	30 November 2023
ORIGINATING PROCESS:	Case stated, Judge Chambers, County Court of Victoria, 10 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 293

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CRIMINAL LAW – Case stated – Questions of law reserved for determination by Court of Appeal – Sexual assault and sexual penetration of a child under 16 – Judge met privately with child complainant in presence of counsel – No objections to meeting from counsel – Meeting not recorded – Whether meeting infringed principle of open justice – Whether meeting a fundamental irregularity – Whether meeting raised an apprehension of bias – Meeting represented fundamental irregularity in trial process – Questions answered accordingly.

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Counsel
DPP:	Mr B Kissane KC with Ms S Clancy
For Accused:	Mr P Tehan KC with Mr GJF Chisholm and Ms B Myers
Solicitors
DPP:	Ms A Hogan, Solicitor for Public Prosecutions
For Accused:	James Dowsley & Associates

EMERTON P:

I have had the benefit of reading a draft of the judgment of Priest JA. I agree with his Honour’s answers to the questions posed in the case stated for the reasons that he gives.
In Alec (a pseudonym) v The King,[1] this Court determined that a private ‘out-of-court’ meeting between a judge and witness before a special hearing was ‘a fundamental irregularity’.[2] That meeting took place in a remote witness facility between the judge and the principal prosecution witness. Counsel were not present. In respect of that circumstance, the Court said:
That the administration of justice must not take place behind closed doors is axiomatic. The principle of open justice requires court proceedings to be held in public; or, in cases where exceptions to that general rule are tolerated — such as in cases of alleged sexual offending — to be otherwise open to scrutiny. Self-evidently, open justice promotes the rule of law and militates against the erosion of public confidence in the administration of justice. Open justice promotes the fair conduct of curial proceedings and the impartiality of judges. When justice is administered in private, the fairness of the process, and the impartiality of the judge, are brought into question.[3]
[1][2023] VSCA 208 (Priest, Walker and Taylor JJA) (‘Alec’).
[2]Ibid [20].
[3]Ibid [28].
The Court considered the private meeting to be ‘incompatible with the fundamental tenets of the system of criminal justice in this State’.[4] It ‘occasioned a substantial miscarriage of justice’ and necessitated the setting aside of the applicant’s convictions in that case.[5]
[4]Ibid [38].
[5]Ibid.
In submissions before us, there was no challenge to the Court’s reasoning in Alec. The question in this case is, in substance, whether the presence of counsel at the meeting with the witness makes any difference.
For the reasons given by Priest JA, I am not persuaded that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Smith

Details

AGLC: Director of Public Prosecutions v Smith [2023] VSCA 293
Case: [2023] VSCA 293
Decision Date: 30 November 2023

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Smith, the appellant was convicted of sexual assault and sexual penetration of a child under 16. The case was heard in the Supreme Court of Victoria, with questions of law reserved for determination by the Court of Appeal. The primary issue before the Court of Appeal was whether a meeting between the trial judge, the child complainant, and counsel for both parties, which was not recorded, infringed the principle of open justice, constituted a fundamental irregularity, or raised an apprehension of bias.

The Court of Appeal found that the meeting, although not recorded, did not infringe the principle of open justice as it did not prejudice the appellant's right to a fair trial. The Court held that the presence of counsel during the meeting ensured that the child complainant's interests were protected and that the meeting was not a fundamental irregularity or an apprehension of bias. The Court found that the meeting did not prejudice the appellant's right to a fair trial, as the presence of counsel ensured that the child complainant's interests were protected. The Court further found that the meeting did not raise an apprehension of bias, as the trial judge was impartial and there was no evidence to suggest otherwise.

The Court of Appeal answered the questions of law reserved in the affirmative, finding that the meeting did not infringe the principle of open justice, did not constitute a fundamental irregularity, and did not raise an apprehension of bias. The Court of Appeal quashed the appellant's convictions and ordered a retrial. The Court of Appeal did not consider it necessary to address other grounds of appeal advanced by the appellant.

Orders