DPP v Smith

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 presence of counsel at the out-of-court meeting between judge and witness means that the reasoning and the principles articulated in Alec do not apply.
It is a 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. The principle of open justice is reinforced by s 24(1) of the Charter of Human Rights and Responsibilities Act 2006, which provides that ‘[a] person charged with a criminal offence … has the right to have the charge … decided by a competent, independent and impartial court or tribunal after a fair and public hearing’.[6] 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.[7]
[6]Emphasis added.
[7]See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [30] (Gleeson CJ); Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ); X7 v Australian Crime Commission (2013) 249 CLR 92, 153 [158] (Kiefel J).
In this case, the complainant is a child, who is to be supported by an intermediary when giving evidence. There was a ‘ground rules hearing’ to enable orders to be made governing the questioning of the complainant at the special hearing which subsequently took place. The complainant had reported to the intermediary that she had ‘anxiety at a level higher than the baseline’ when thinking about giving evidence and that meeting new people was a particular trigger for increased anxiety. The judge sought to alleviate that anxiety by briefly meeting with the complainant to say ‘hello’. While the judge’s desire to ease the witness’s anxiety was understandable, and conformed with one of the measures suggested in the Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearing, it was not, in my opinion, allowed. Apart from other issues — such as the lack of facilities to record what was said or done — the meeting necessarily took place in the absence of the accused. The accused had no choice but to stay away.
The scheme relating to intermediaries and ground rules hearings is set out in Part 8.2A of the Criminal Procedure Act 2009 (‘CPA’), which commenced on 28 February 2018. It introduced an intermediary scheme for vulnerable witnesses, based on the English model, as was recommended by the Victorian Law Reform Commission in its 2016 report, ‘The Role of Victims of Crime in the Criminal Trial Process’.[8] Intermediary schemes aim to facilitate vulnerable witnesses to give their best evidence and seek to draw to the attention of counsel and judicial officers the comprehension capacity and communication needs of the vulnerable witness.
[8]An intermediary scheme and the use of ground rules hearings in Victoria was endorsed in Ward (a pseudonym) v The Queen (2017) 54 VR 68; [2017] VSCA 37, a decision of the Court of Appeal on the subject of questioning of children, and obligations of counsel and judicial officers.
It is clearly in the interests of the administration of justice that vulnerable witnesses not feel intimidated, overawed or confused when giving their evidence and that they are asked questions that they can understand and respond to. Due to age and/or vulnerability, this may require modification of conventional court procedures. To the extent that Parliament has seen fit to modify conventional court procedures to facilitate vulnerable witnesses to give their best evidence and ensure adequate focus on their needs, it has done so by establishing the role of intermediaries and providing for ground rules hearings. 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. Nor is there anything to suggest that, outside of an open court hearing in the presence of the accused, the judge should (or even may) undertake the therapeutic role of putting a vulnerable witness at ease. As French CJ said in Hogan v Hinch, ‘[t]he principle of legality will favour a construction which, consistently with the statutory scheme, has the least adverse impact upon the open justice principle’.[9]

[9](2011) 243 CLR 506, 526 [5] (French CJ).

In my view, the CPA cannot be construed so as to permit a judge to leave the confines of the courtroom to speak privately to a witness, no matter how briefly and benignly, in the absence of the accused. Accordingly, I would answer the questions in the case stated:
1.        Yes.
2.        Unnecessary to answer.
3.        Yes.
4.        Yes.

PRIEST JA:

Introduction

David John Smith (for convenience, ‘DJS’) faces trial in the County Court on an indictment that charges him with sexual assault[10] and sexual penetration[11] of ‘MTM’, a child under 16, in the period between 1 April 2018 and 1 January 2020, when the complainant MTM was aged between 11 and 13 years.
[10]Charges 1, 2 and 4.
[11]Charge 4.
On 15 March 2023, MTM gave evidence at a special hearing conducted pursuant to s 370 of the Criminal Procedure Act 2009 (‘CPA’). Significantly, on 14 March 2023, the day prior to MTM’s evidence being recorded at the special hearing, the judge who presided over the hearing met with MTM, in the presence of both the prosecutor and defence counsel, at the offices of the Child Witness Service. The meeting occurred as a result of the intermediary appointed for MTM reporting that MTM had indicated that her confidence would be assisted if she could meet with counsel and the judge prior to giving evidence at the special hearing.[12]
[12]See [41] below.
Subsequently, following delivery of this Court’s judgment in Alec,[13] an issue arose as to whether it was a fundamental irregularity for the judge to have met with MTM in the circumstances that she did.
[13]Alec (a pseudonym) v The King [2023] VSCA 208 (Priest, Walker and Taylor JJA) (‘Alec’).
As a result, the trial judge — not the judge before whom the special hearing was conducted — reserved four questions of law for determination by this Court under div 5 of pt 6.3 (ss 302 to 308) of the CPA (‘the case stated’). The four questions are:
1Did the meeting infringe the principles of open justice as identified in Alec (a pseudonym) v The King [2023] VSCA 208?
2Did the meeting bring the impartiality of the presiding judge into question?
3Did the occurrence of the meeting represent a fundamental irregularity in the trial process, such as to constitute a serious departure from accepted trial processes?

4If the answer to questions 1, 2 and/or 3 is in the affirmative, is the only remedy for the evidence of the complainant to be taken at a further special hearing conducted before a different judge?

For the reasons that follow, I would answer the questions in the case stated as follows:
1Yes.
2Unnecessary to answer.
3.Yes.
4.Yes.
Submissions of the parties
The Director of Public Prosecutions’ submissions
In oral submissions, counsel for the Director of Public Prosecutions submitted that this Court should resolve the issues raised by the case stated by looking at them through the ‘prism’ of apprehended bias principles, rather than resolving the issues by reference to any principle of open justice.
Relying on Lubemba,[14] counsel for the Director submitted that ‘in person’ meetings between trial judges and vulnerable witnesses[15] have been ‘endorsed’ in the United Kingdom. Moreover, a Multi-Jurisdictional Court Guide for the Intermediary Pilot Program: Intermediaries and Ground Rules Hearing (‘the Guides’) — produced for use in Victorian courts exercising criminal jurisdiction when the intermediary pilot program was introduced in this State on 1 July 2018 — provided that, at a ground rules hearing, in addition to the specific matters spelled out in s 389E of the CPA,[16] the Court may give directions about a number of other matters, including ‘how the judicial officer and counsel are to be introduced to the witness (for example over the video link from Court, or briefly in person at the remote witness facility, noting that a meeting in person must not include an accused)’. Counsel submitted that this approach is not unique to Victoria, so that, for example, intermediaries in New South Wales are advised that they may make recommendations as to ‘whether and how the judge and advocates will meet the child beforehand’.[17]
[14]R v Lubemba; R v Pooley [2015] 1 WLR 1579 (Hallett LJ, Sweeney and Warby JJ) (‘Lubemba’).
[15]For the purposes of ss 16 and 17 of the Youth Justice and Criminal Evidence Act 1999, ‘vulnerable’ witnesses include those under 18 years of age and people with a mental disorder or learning disability; a physical disorder or disability; or who are likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case. See also Practice Direction (Criminal Proceedings: Various Changes) [2014] EWCA Crim 1569; [2014] 1 WLR 3001, 3D(1).
[16]See [39] below.
[17]Victims Services, NSW Department of Justice, Children’s Champion (witness intermediary) Procedural guidance manual (2016), 23–4.
Turning to this Court’s decision in Alec, counsel for the Director submitted in writing that Alec ‘is at odds with the reasoning of the English and Wales Court of Appeal’ in Lubemba, where a ‘private meeting with the main prosecution witness for the purpose of an introduction was not considered to be an irregularity, let alone a departure from the fundamental tenets of a criminal trial’. Counsel for the Director submitted in writing that the Court in that case ‘stated that, while it is preferable that an in-person introduction also occur in the presence of legal representatives, it is not mandatory’. In oral submissions in reply to those advanced by counsel for DJS, counsel submitted that the Director challenged this Court’s decision in Alec in the sense that the Court should have resolved the issues in that case by reference to apprehended bias principles, rather than by simply stating the conclusion that ‘the judge conducting a private meeting with the critical prosecution witness was incompatible with the fundamental tenets of the system of criminal justice in this State’.[18]
[18]See Alec, [38].
Further, counsel submitted that whilst there are similarities in the present case to the facts of Alec — the meeting with the witness did not occur in the courtroom, was not recorded, and the accused was not present at the meeting — it may be contrasted from Alec in that counsel for both parties were present at the meeting (which occurred with their acquiescence), and no issue was raised by counsel or the judge about anything that was said or done at the meeting.
Counsel for the Director submitted that the meeting that occurred between the complainant, the judge, and counsel, could not give rise to an apprehension of bias. The test for apprehended bias is whether ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’[19]. There are two steps: first, ‘the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits’; and, secondly, ‘there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits’.[20] The stated purpose of the meeting was to introduce the judge and counsel to the complainant. When the hearing resumed there was no suggestion by the judge or counsel that anything was said by the complainant or the judge which might cause the judge to decide the issues at the special hearing or trial other than on their merits. That leaves the fact of the meeting itself as the basis for the apprehension of bias. But the only possible logical connection between the fact of the meeting and a fear that the judge might not have conducted the special hearing on its merits, is that in meeting the complainant the judge showed solicitude.
[19]Counsel cited Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6].
[20]Charisteas v Charisteas (2021) 273 CLR 289, 296 [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
MTM, counsel submitted, had told the intermediary that it would assist her confidence to meet counsel and the judge in person prior to giving evidence. The judge invited submissions from both counsel on whether there was any issue with her meeting the complainant. Significantly, the accused’s counsel consented to the meeting occurring and he attended the meeting. No issue was raised about the meeting prior to, or during, the special hearing. The process was entirely transparent. No fair-minded lay observer could reasonably apprehend that the occurrence of the meeting created a danger that the judge would not determine the issues arising at the special hearing or trial according to law and on their merits. In any event, by consenting to and attending the meeting, counsel for DJS effectively waived any possible reliance on apprehended bias.
The Director’s counsel submitted that the Court in Alec also concluded that the approach taken by the judge at the special hearing — meeting with the complainant outside the courtroom and in the absence of the parties — breached the principle of open justice. The principle of open justice is, however, not absolute. It has long been accepted in the common law that courts have the power to impose limits on the application of the open justice principle when necessary to secure the proper administration of justice.[21] Counsel submitted that there are sound reasons for an introductory meeting between a judge and a vulnerable witness, in the presence of the parties’ legal representatives, giving rise to an appropriate exception to the principles of open justice. To require an introductory meeting with a vulnerable witness to occur in the courtroom (and thus to occur in the presence of the accused and be recorded and transcribed) would undermine the very purpose of the meeting; that is, to put the complainant at ease as far as possible prior to the formalities of the courtroom. As is recognised in the United Kingdom — so counsel submitted — the rule of openness must be modified so that the Court can take every reasonable step to encourage and facilitate the attendance of vulnerable witnesses and their participation in the trial process. Furthermore, counsel submitted in writing that, given that the meeting ‘will not form part of the evidence and is not a part of the trial process, the fact that it has not been recorded will not deprive an appellate court of performing its function of reviewing all of the evidence on which a jury may have reached its verdict’.[22]
[21]Counsel cited Hogan v Hinch (2011) 243 CLR 506, 531–2 [21] (French CJ); John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131, 141 (Kirby P).
[22]Emphasis added.
Finally, the Director’s counsel submitted in writing that, if the Court determined that the principle of open justice had been infringed, so much is not an irregularity which constitutes a serious departure from the prescribed processes for trial. Instead, the Court can be satisfied that the irregularity will make no difference to the outcome of the trial.
Counsel submitted that the first three questions posed for this Court’s consideration should be answered ‘no’.
DJS’s submissions
Counsel for DJS submitted that, since the facts of the present case cannot be distinguished from those of Alec, the first, third and fourth questions must be answered ‘yes’. There has been a fundamental irregularity, the only remedy being a special hearing before a different judge. Counsel submitted that it was unnecessary to answer the second question.
In written submissions, counsel for DJS submitted that the principle of open justice had been infringed in three ways: first, the conversation between the complainant and the judge was not in open court; second, the conversation was not recorded; and third, the conversation was not in the presence of the accused. In oral submissions, counsel submitted that there were ‘two fundamental defects’ in the process: first, the accused had a right to be present at any meeting between the judge and the witness — in the sense that he had the capacity to hear and see what occurred — but was not; and, secondly, the meeting was not in a court — where jurisdiction is exercised — and was not recorded by any means.

Counsel submitted that for a judge to meet with a witness prior to the hearing of a case is ‘highly irregular’. Indeed, in oral submissions, counsel submitted that the ‘mere fact of the meeting’ is enough to say that there had been fundamental error. There is no dispute, counsel submitted, that the meeting at the Child Witness Service was not recorded. Moreover, when the Court reconvened to conduct the special hearing on 15 March 2023 no reference was made to what had occurred at the meeting the previous day. The recording of curial proceedings is a critical aspect of open justice. If proceedings are not recorded there can be no proper scrutiny by appellate review. And there is no dispute that the meeting between the judge and the complainant was not in the presence of the accused, in circumstances where it is a fundamental precept of criminal justice that a criminal trial be conducted in the presence of the accused. Relying on the principle of legality, counsel submitted orally that nothing in the provisions of the CPA could be construed as impinging upon this fundamental right.
In oral submissions, counsel for DJS submitted that the Director had not challenged the decision in Alec, the real issue being whether the presence of counsel at the meeting between judge and witness made any difference.[23] Counsel submitted that the Court should reject the contention that the fact that the meeting between MTM and the judge occurred in the presence of both counsel differentiates the present case from Alec. The fact that counsel for DJS acquiesced to the judge meeting MTM in the circumstances she did makes no material difference. Counsel submitted that, as a general proposition, the accused’s counsel cannot accede to an error resulting in a miscarriage of justice, let alone accede to a fundamental irregularity in the criminal trial process. The holding of the meeting between the judge and the complainant, counsel submitted, was incompatible with the fundamental tenets of the criminal justice system, and constituted a serious departure from accepted trial process. Defence counsel should have objected to the meeting taking place. His attendance at the meeting could not overcome the fundamental error in the holding of the meeting.
[23]But see [18] above.
Furthermore, despite submitting that it was unnecessary to answer the second question in the case stated, counsel for DJS submitted that the meeting between the judge and the complainant did bring the impartiality of the judge into question. The fact that the judge was not required to determine guilt (or non-guilt) did not dilute the requirement that the judge be seen to be impartial, since questions of discretionary admissibility might arise during the special hearing.[24] Notwithstanding that the meeting may have occurred because of the intermediary’s advice, what is at stake in the present case is a matter of a fundamental principle in the administration of criminal justice in this State. The principle that justice should not only be done but be manifestly seen to be done is abrogated when the judge decides, prior to taking evidence, to go to a place which is not a court and introduce herself to the key prosecution witness in the case in the absence of the accused and without the meeting being recorded. The fact that counsel for the prosecution and the accused by their attendance appeared to acquiesce to the holding of the meeting, does not mean that there is no apprehension of partiality in a judge meeting the main witness for the prosecution. Apprehended bias deprives the court of jurisdiction.[25] Convenience and political and social expediency cannot take second place to matters of fundamental principle. Importantly, the only basis for the meeting taking place appears to be the Guides, which do not have any legal force.
[24]Counsel cited LAL v The Queen [2011] VSCA 111, [34] (Buchanan, Hansen and Tate JJA), in turn citing R v Balick (No 2) (1994) 75 A Crim R 515, 520 (Cole JA).
[25]QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, 431 [28] (Kiefel CJ and Gageler J), 459 [188] (Edelman J), 482 [311] (Jagot J).
Finally, counsel submitted that the first three questions being answered in the affirmative, the only remedy is for the evidence of MTM to be taken at a further special hearing conducted before a different judge.

Discussion and analysis

The fundamental principles under which the system of criminal justice operates in this State (and other Australian jurisdictions) are drawn principally from the common law, many of those principles being recognised, complemented or modified, by statute.
Hence, one of the central elements of the system of criminal justice administered by this State’s courts — that it must be open, impartial and even-handed[26] — finds recognition in s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’): ‘A person charged with a criminal offence … has the right to have the charge … decided by a competent, independent and impartial court or tribunal after a fair and public hearing’.
[26]Re JRL; Ex parte CJL (1986) 161 CLR 342, 350 (Mason J); Alec, [29].
Although limited exceptions have been recognised, the principle of open justice — which requires criminal proceedings to take place in public — is an essential characteristic of criminal justice in this State. And importantly, the confined categories of cases in which the principle of open justice will succumb to modification will not lightly be extended. So much was made clear by French CJ in Hogan:[27]
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.
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could ‘cause an entire destruction of the whole matter in dispute’. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of conﬁdence. In the prosecution of a blackmailer, the name of the blackmailer’s victim, called as a prosecution witness, may be suppressed because of the ‘keen public interest in getting blackmailers convicted and sentenced’ and the difficulties that may be encountered in getting complainants to come forward ‘unless they are given this kind of protection’. So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly 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. The jurisdiction of courts in relation to wards of the State and mentally ill people was historically an exception to the general rule that proceedings should be held in public because the jurisdiction exercised in such cases was ‘parental and administrative, and the disposal of controverted questions … an incident only in the jurisdiction’. Proceedings not ‘in the ordinary course of litigation”, such ‘as applications for leave to appeal, can also be determined without a public hearing.
[27]Hogan v Hinch (2011) 243 CLR 506, 530–2 [20]–[21] (citations omitted; emphasis added). See also WEQ (a pseudonym) v Medical Board of Australia (2021) 69 VR 1, 15 [59] (Kyrou and McLeish JJA); John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465; Russell v Russell (1976) 134 CLR 495 (Gibbs J); Dickason v Dickason (1913) 17 CLR 50.
To a large extent, the manner in which criminal proceedings are conducted in this State is prescribed by the CPA. As the Charter makes plain, so far as it is possible to do so consistently with their purpose, the provisions of the CPA must be interpreted in a way that is compatible with human rights,[28] including the accused’s right to have the charges decided by a competent, independent and impartial court or tribunal after a fair and public hearing. Plainly, the principle of open justice is ingrained.
[28]Charter, s 32.
That the principle of open justice is deeply embedded in the criminal law was emphasised by Lord Atkin in Lawrence, when his Lordship observed 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 …’.[29] To like effect, Lord Mustill remarked in Preston — a case that involved a judge meeting privately with counsel — that ‘the existence and high importance of the general principle that the trial should be held in the presence of the defendant unless absolutely necessary is indisputable’.[30] Indeed, this Court has acknowledged the general rule that, unless an accused person has waived his or her right to be present — for example, by absconding — any step in a criminal proceeding must occur in his or her presence.[31]
[29]Lawrence v The King [1933] AC 699, 708.
[30]R v Preston [1994] 2 AC 130, 153. See also R v Smith [1990] 1 WLR 1311, 1314 (Russell LJ); R v Pitman [1991] 1 All ER 468, 470 (Lord Lane CJ); R v Harper-Taylor and Bakker (1988) 138 NLJ 80; R v Davis [1993] 1 WLR 613.
[31]Caulfield (a pseudonym) v The King [2023] VSCA 76, [38] (Beach, Niall and Kaye JJA); Taupati v The Queen [2017] VSCA 106, [21] (Redlich, Santamaria and Ferguson JJA).
Not only is an accused person entitled to be present at his or her trial and any related pre-trial hearings, but the provisions of the CPA make it plain that the accused is obliged to be present unless excused by the court. Where an accused has been committed for trial, or is the subject of a direct indictment, Chapter 5 of the CPA — headed ‘Trial on indictment’ — has application.[32] Chapter 5 contains provisions dealing with both pre-trial and trial procedure, and, as I have indicated, makes plain that an accused person must attend any hearing in the criminal proceeding against him or her, unless excused from attendance by the court. Thus, s 246 provides that: ‘An accused must attend all hearings conducted under this Chapter in the criminal proceeding against the accused unless excused under section 330’.[33]
[32]CPA, s 158.
[33]So far as relevant, s 330 provides:
330 When accused etc. is required to attend hearing
(1) An accused must attend a hearing in the criminal proceeding against the accused if—
(a) this Act or the rules of court require the attendance of the accused at the hearing; or
(b) the accused has been remanded in custody or granted bail to attend the hearing; or
(c) the court requires the attendance of the accused at the hearing.
…
(3) The court may excuse a person from attending a hearing.
In the present case, since DJS’s trial relates to charges for sexual offences involving a person under the age of 18 years, MTM’s evidence-in-chief was in the form of an audiovisual recording (or ‘VARE’)[34] of an interview conducted with her by police on 18 February 2021,[35] and her further evidence was required to be recorded at a special hearing.[36] By dint of s 372(1)(a) of the CPA, at the special hearing, ‘the accused and his or her legal practitioner are to be present in the courtroom’; and, by virtue of s 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’. As I have said, the special hearing was conducted on 15 March 2023.
[34]Video and Audio Recorded Evidence. See CPA, ss 366 and 367.
[35]CPA, pt 8.2, div 5 (ss 366 to 368A), and Criminal Procedure Regulations 2020, pts 2 and 3 (regs 7 to 17).
[36]CPA, ss 369 and 370.
Another consequence of MTM being under the age of 18 years[37] is that, in the course of a ‘ground rules’ hearing[38] on 14 March 2023, a judge of the County Court appointed an intermediary for MTM.[39] The purpose of a ground rules hearing is to consider MTM’s ‘communication, support or other needs’, and decide ‘how the proceeding is to be conducted to fairly and effectively meet those needs’.[40] By virtue of s 389D(1)(a) and (c) of the CPA, both ‘a person acting for the prosecution’ and ‘the intermediary appointed for a witness’ must attend a ground rules hearing; and s 389D(1)(a) provides that ‘the legal practitioner representing the accused or, if the accused is unrepresented, the accused’ must attend. In the present case, both prosecution and defence counsel appeared, and both the accused and the intermediary were present in the courtroom.[41]
[37]CPA, s 389F(1).
[38]CPA, s 389B(3).
[39]CPA, s 389J(1).
[40]CPA, s 389B.
[41]Presumably, s 330(3) of the CPA would in an appropriate case permit a judge to excuse a legally represented accused person’s attendance at a ground rules hearing.
Section 389E sets out the directions that may be given at a ground rules hearing. Thus, under s 389E(1), ‘the court may make or vary any direction for the fair and efficient conduct of the proceeding’; and s 389E(2) permits the court to give a range of directions concerned with the questioning of witnesses:
(2) Without limiting subsection (1), the court may give one or more of the following directions—
(a) a direction about the manner of questioning a witness;
(b) a direction about the duration of questioning a witness;
(c) a direction about the questions that may or may not be put to a witness;
(d) if there is more than one accused, a direction about the allocation among the accused of the topics about which a witness may be asked;
(e) a direction about the use of models, plans, body maps or similar aids to help communicate a question or an answer;
(f) a direction that if a party intends to lead evidence that contradicts or challenges the evidence of a witness or that otherwise discredits a witness, the party is not obliged to put that evidence in its entirety to the witness in cross-examination.
Nothing in s 389E, however, authorises — either directly or by necessary implication — a private meeting between a trial judge (whether or not accompanied by counsel) and a witness outside the courtroom.
The meeting in this case between the complainant and the judge arose out of the intermediary’s report, dated 18 October 2022. In describing the circumstances in which the questions have arisen, the case stated contains the following:
10Under the heading of ‘Emotional state’ in Part 4 of the report, the intermediary recorded that the complainant reported having anxiety at a higher level than baseline when thinking about giving evidence. In addition, the complainant reported that meeting new people is a particular trigger for increased anxiety and that this is one of her worries about giving evidence. The complainant further reported that she finds it difficult to express her viewpoint when it differs from others in authority and that conflict increases her stress levels. The intermediary opined that this would likely be exacerbated in the intimidating situation of giving evidence.
11The 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.
…
14Counsel 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.
15In relation to the request of the complainant to meet counsel and the judge in person prior to giving evidence, [the judge] indicated that she was content to meet the complainant and asked counsel where that meeting was to be arranged. The prosecutor indicated to the Court that he planned to meet the complainant at the offices of Child Witness Service where the complainant was going to view her VARE at 2 pm that afternoon. [The judge] indicated that if no one had any difficulty with the proposal, she would meet the complainant at the same time. [The judge] 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.
16The intermediary recommended the meeting take place prior to the complainant watching her VARE. It was agreed that [the judge] and counsel would attend the offices of Child Witness Services for a very quick meeting with the complainant at 2 pm.
…
18[The judge], counsel for the prosecution and defence and the instructing solicitor for the prosecution met with the complainant at the Child Witness Services and were introduced to the complainant. The accused was not present. The meeting was not recorded.
It is convenient at this point to note the statutory functions of an intermediary. They are concerned solely with two matters: first, communicating or explaining to a relevant witness questions asked, so as to enable the witness to understand them; and, secondly, communicating or explaining to a questioner the answers given by a relevant witness, so as to enable the questioner to understand them. Thus, s 389I of the CPA provides:
389I Function of intermediaries
(1) The function of an intermediary is—
(a) to communicate or explain to a witness for whom an intermediary is appointed, questions put to the witness to the extent necessary to enable them to be understood by the witness; and
(b) to communicate or explain to a person asking questions of a witness for whom an intermediary is appointed, the answers given by the witness in reply to the extent necessary to enable them to be understood by the person.
(2) An intermediary is an officer of the court and has a duty to act impartially when assisting communication with the witness.
Although the intermediary’s report stopped short of suggesting or recommending that a meeting take place between the judge and the complainant — the report merely recorded ‘that it would assist [MTM’s] confidence to meet counsel and the judicial officer in person on the day she gives evidence if this was possible’ — it is not part of an intermediary’s statutory function under s 389I to make any such recommendation or suggestion, the intermediary’s statutory function being restricted to the two matters specified in the section. It is important not to lose sight of the fact that it is the judge —— not the intermediary (or anyone else) — who ultimately is responsible for the proper conduct of the proceeding against the accused, including giving such directions as are contemplated by s 389F ‘for the fair and efficient conduct of the proceeding’.

As I have mentioned, counsel for the Director supported the propriety of the judge’s meeting with MTM by reference to the Guides, and by reference to Lubemba, which, they submit, ‘endorsed’ in-person meetings between trial judges and vulnerable witnesses.
It is clear, however, that insofar as the Guides suggest that in addition to the specific matters spelled out in s 389E of the CPA, the court may give directions about matters such as how the judge and counsel are to be introduced to the witness — including ‘briefly in person at the remote witness facility’ — they must be regarded merely as advisory. They are not imbued with any statutory (or other) authority.[42]
[42]The Guides ostensibly are guides for the various courts using intermediaries and ground rules hearings. They may be contrasted with Practice Notes, which are issued for the guidance of parties and lawyers in the conduct of litigation in the courts; but which — although they may complement legislation and court rules to specifically set out the steps practitioners and litigants are expected to take in preparing a case for hearing — do not have the force of law. See, e.g., Williams, Civil Procedure Victoria, [1555.0] (Status of practice notes).
Moreover, Lubemba does not provide a sound basis for concluding that non-public meetings between a judge and a witness are other than offensive to fundamental principle.
Lubemba was a case which involved two conjoined applications for leave to appeal. One of the applicants, Jonathan Pooley, had been found guilty by a jury of three counts of sexual assault of an eight-year-old child. At a case management hearing conducted prior to trial, it was determined that the child’s video interview would be played as her evidence-in-chief, and she would be cross-examined by defence counsel. On the day the child attended court to be cross-examined over a live link, the prosecutor visited her in the witness waiting room. He then took defence counsel with him to introduce counsel to the child. It seems that the judge then visited the child, after which the child was shown her video interview in the presence of an usher and a ‘Witness Care’ representative. After the child had viewed her video, she received another visit from the judge. The judge then returned to court and announced — with no warning — that, in his opinion, the child could not participate in cross-examination, no matter how sensitively done. Both the prosecutor and defence counsel protested that this was not their understanding of the situation, but the judge could not be moved and he refused defence counsel permission to ask the child any questions. The video interview was thus played as the only evidence of the child, and, as I have said, the jury returned verdicts of guilty.
Pooley’s sole ground of appeal was that the judge erred in preventing cross-examination of the complainant so that he did not have a fair trial and his convictions were unsafe. That ground succeeded, so that the Court of Appeal granted leave to appeal; allowed the appeal; and quashed the convictions. Significantly, s 54 of the Youth Justice and Criminal Evidence Act 1999 (UK) set out a procedure by which the court in a criminal proceeding could (on the application of a party or on the court’s own motion) determine the competency of a witness. It was provided by s 54(5) that ‘[a]ny proceedings held for the determination of the question shall take place in the absence of the jury’; and s 54(6) provided that ‘[a]ny questioning of the witness (where the court considers that necessary) shall be conducted by the court in the presence of the parties’.
Hallett LJ gave the judgment of the Court, which appears to proceed on the premise — a premise which, with respect, cannot be accepted — that it might have been proper for the judge to assess the competence of the child to give evidence in a non-public meeting, so long as both counsel were present. It is to be noted, however, that before dealing with the individual applications of Pooley and Lubemba, the Court made some general observations. One of those general observations, upon which the Director relied in this Court, was as follows:[43]
In general, experts recommend that the trial judge should introduce him or herself to the witness in person before any questioning, preferably in the presence of the parties. This seems to us to be an entirely reasonable step to take to put the witness at their ease where possible. …
[43]Lubemba, 1588 [43].
When delivering reasons for judgment in Pooley’s application specifically,[44] Hallett LJ said:[45]
As far as the application in Pooley is concerned, we unhesitatingly give leave. With respect to the judge, who no doubt had the child’s best interests at heart, we simply do not understand what he was saying as a matter of law, why he concluded the child could not be cross-examined and why he did not allow defence counsel to try a few sensitively phrased questions. It is not clear to us whether he had concluded the child was not competent to give evidence, not fit to give evidence, or it would not be good for her to give evidence. These difficulties might not have arisen had it been arranged for him to introduce himself to the witness at the same time as the advocates did.
The judge’s approach was wrong in a number of respects. If his visit was designed to assess her competence, he should have taken the parties with him or used the live link in their presence. He should not have questioned her alone: see section 54(6) of the Youth Justice and Criminal Evidence Act 1999. If his visit was merely designed to introduce himself properly to her and he unexpectedly began to question her ability to participate, he should have informed the parties of his concerns and sought their submissions, before making a ruling. He should have considered whether any other special measures such as the services of an intermediary might benefit the witness: section 54(3). Furthermore, he could have considered calling for an expert to assist him.
If he had then concluded, on a sound basis, that the witness could not be cross-examined, he should have revisited the provisions of section 27 of the 1999 Act and the decision to allow the video recording to be played. He should have considered whether or not it was admissible where the prosecution could not tender the witness as required by section 27(5) of the 1999 Act (as amended). Finally, and most importantly, the judge should have openly and clearly given far greater consideration to the impact on the fairness of the trial of prohibiting the defence from testing the evidence of the main prosecution witness.
[44]Lubemba’s application, which related to two convictions for rape of a child, failed. His grounds of appeal related to the way the trial judge had restricted, and intervened in, defence counsel’s cross-examination of the complainant. See ibid 1589–90 [51]–[53].
[45]Ibid 1589 [47]–[49].
The ratio in Pooley’s case appears to have five limbs: first, if the judge’s visit to the complainant was to assess competence, he should not have questioned her alone, but should either have taken counsel with him, or used an audio visual link in their presence; secondly, if the visit was for the purposes of introduction rather than assessing competence, but, after the visit, the judge had concerns about the complainant’s competence, before making any ruling on the issue the judge should have informed the parties of his concerns and sought their submissions; thirdly, in the circumstances, the judge should also have considered enlisting the services of an intermediary for the benefit of the complainant, and the calling of an expert to assist him; fourthly, if the judge reached a conclusion — soundly based — that the complainant was incapable of being cross-examined, he should have revisited the admissibility of the child’s video interview; and, fifthly, the judge should have — ‘openly and clearly’ — given far greater consideration to the impact on the fairness of the trial of prohibiting the defence from testing the complainant’s evidence.
I agree that the judge in Pooley’s case should not have questioned the child complainant alone. But I cannot agree with the assumption underpinning the Court’s reasons that the judge could have attempted to assess the complainant’s competence in a non-public meeting so long as counsel were present. Indeed, save for a very exceptional case — for example, where a witness suffered such physical or mental incapacity that it would be impractical to make an assessment in a courtroom, or via an audio-visual link to a courtroom — it is inconceivable that a judge in this State would endeavour to make any assessment of the competence of a witness in a non-public setting (whether or not accompanied by counsel for the parties). Acknowledging that, for the purposes of determining competence, ‘the court may inform itself as it thinks fit’,[46] the principle of open justice dictates that any assessment of competence must be conducted at a public hearing. For that reason alone, the decision in Pooley’s case is unpersuasive.
[46]Evidence Act 2008, s 13(8).
Furthermore, when making the general observations in Lubemba that, in general, ‘experts recommend that the trial judge should introduce him or herself to the witness in person before any questioning, preferably in the presence of the parties’, and that so much seems ‘to be an entirely reasonable step to take to put the witness at their ease where possible’, it does not appear that the Court paid any attention to the principle of open justice, let alone considered how the proper application of that principle might have borne upon the issues to be decided. Indeed, it is somewhat odd that the Court appears to have given tacit approbation to the notion that the trial judge might have an in-person meeting with a witness in the absence of the parties, in circumstances where one of the central problems in Pooley’s case arose from the judge having formed impressions or views in a meeting with the main prosecution witness in the absence of counsel. Certainly, it does not appear that the Court had any regard to the opinions of the House of Lords in Lawrence or Preston[47] — including Lord Mustill’s observation that hearings in private ‘are objectionable in principle and in practice’ — or to previous relevant decisions of the Court of Appeal.[48]
[47]See [35] above.
[48]See fn 30.
In my view, it is anathema to the principle of open justice that a judge could have a non-public communication with a witness in the course of a criminal proceeding, particularly a witness whose evidence is central to the prosecution case. Apart from recognised common law or statutory exceptions — which generally owe their existence to the necessity to secure the proper administration of justice in particular situations — no aspect of the administration of criminal justice in this State should ever take place in a private setting. As the Court said in Alec:[49]
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.
[49]Alec, [28].
One cannot doubt that, in deciding to meet with MTM to ‘say hello’, the trial judge was well-intentioned, and was motivated to act in accordance with the intermediary’s report. Moreover, it cannot be doubted that counsel acquiesced in the course adopted by the judge. 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.
It follows that I do not accept the somewhat chimerical submission advanced by the Director’s counsel that to require an introductory meeting with a vulnerable witness to occur in the courtroom — and to be in the presence of the accused and recorded and transcribed — would undermine the very purpose of the meeting (that is, as far as possible to put the complainant at ease prior to the formalities of the courtroom). I consider that, in the same way that the child complainant in a case like the present gives evidence via an audio-visual link — where the accused can observe, but cannot be observed — and the process is recorded, any ‘introductory’ meeting between a witness and trial judge is quite capable of being conducted adequately via an audio-visual link — where the accused can observe, but cannot be observed — and the process is recorded. The average judge would, I think, be quite capable of putting the witness at ease as far as possible, and of doing so in a relatively informal manner.
I acknowledge that the insistence that a judge eschew having a private meeting with a witness — even a vulnerable witness in a criminal case such as the present — might be thought by some to have inconvenient ramifications. 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.
The first and third questions in the case stated ask respectively whether the meeting the subject of this case infringed the principle of open justice (as identified in Alec); and whether the occurrence of the meeting represented a fundamental irregularity in the trial process, so as to constitute a serious departure from accepted trial processes. For the foregoing reasons, both questions must be answered ‘yes’.
Given the answers to the first and third questions, it is unnecessary to answer the second question (even assuming that it raises a question of law).[50] I consider it to be arguable, however, that the judge having met with the main prosecution witness might well raise

an apprehension of bias. It is central to the role of a trial judge in our system of adversarial criminal justice that he or she extends fairness to both the prosecution and defence. In circumstances where the trial judge had a meeting with, and talked to, the central prosecution witness outside a court setting — the meeting not having been recorded by any means — a fair-minded lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of any question the judge might be required to decide (including questions of admissibility in the evidence of the witness yet to be given).[51] The fair-minded observer might well apprehend that the judge’s impartiality may have been compromised by something said or done by MTM in the course of their meeting. That is particularly so in circumstances where no (formal or informal) record of the meeting was produced. It matters little that defence counsel was present. The meeting, which both the public and DJS were precluded from observing, was with the principal witness for the prosecution.
[50]See, e.g., Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394–6.
[51]LAL v The Queen [2011] VSCA 111, [34] (Buchanan, Hansen and Tate JJA); R v Balick (No 2) (1994) 75 A Crim R 515, 520 (Cole JA).

Since I consider it to be unnecessary to answer the second question, there is no occasion to consider whether, given that defence counsel acquiesced in or consented to the course adopted by the judge, there has been a waiver of any right to object. I note, in any event, that this Court must confine itself to the questions that are reserved.[52] Whether, as a matter of law, DJS waived his right to object to the judge presiding over the special hearing, was not a question reserved by the case stated for this Court’s consideration. In those circumstances it is unnecessary to consider whether, and to what extent, the concept of waiver has application in criminal cases.[53]
[52]R v Assange [1997] 2 VR 247, 253.
[53]See, e.g., Dickason v Edwards (1910) 10 CLR 243, 260 (Isaacs J); Vakauta v Kelly (1989) 167 CLR 568, 577–8 (Dawson J).
Given affirmative answers to the first and third questions, the fourth question must also be answered ‘yes’. Since the fundamental irregularity related to the subsequent conduct of the special hearing over which the judge presided, the only ‘remedy’ is for a further special hearing to be conducted before a different judge.

MACAULAY JA:

I have had the advantage of reading in draft the reasons for judgment of the President and Justice Priest. For the reasons they each give, I would also answer the questions in the case stated:
(1)Yes.
(2)Unnecessary to answer.
(3)Yes.
(4)Yes.
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[2023] VSCA 293

30 November 2023