DPP v Smith – managing the rights of accused to participate in all aspects of their case with the aims of assisting complainants in sex cases in the modern court rooms
‘There is a legal term for a meeting, however informal, which parties have the opportunity to watch and which is attended by a judge and counsel (who might, or not might, make submissions). That term is a “hearing”. Edelman J, in Director of Public Prosecutions v Smith [2024] HCA 32.
‘It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ Lord Hewart LCJ, in R v Sussex Justices; Ex parte McCarthy,
In September of 2024 the High Court upheld an appeal brought by the Victorian DPP against a decision of the Victorian Court of appeal which had found that a meeting between a judge and a complainant in a sex trial (which had been attended by counsel and to which no objection had been taken) was a fundamental irregularity and that the only remedy was for the special hearing which had followed that meeting to be re-conducted before a different judge.
The case raises a number of practical and policy issues that are worthy of consideration. What is the balance to be struck between ensuring that a complainant is sufficiently comfortable with the process to allow the best possible evidence of the allegations to be given and the right of an accused to be involved in all aspects of their trial? How do principles of open justice fit in with efforts of modern courts to accommodate witnesses, particularly in sex cases to ensure they are not overwhelmed with the process?
The case of Smith followed on from the earlier decision of Alec (a pseudonym) v The King [2023] VSCA 208. That case involved a judge meeting privately with a complainant in the absence of counsel or the accused. The Court of Appeal held that to do so was a fundamental irregularity and inconsistent with fundamental principles of open justice and as a consequence set aside the convictions.
In both cases the judge conducted the meeting for the sole purpose of seeking to alleviate the stress and anxiety that comes with giving evidence as a complainant in a criminal trial. Unquestionably this is a laudable aim. It cannot be doubted that it is in the interests of justice that witnesses testimony is not unduly impacted by the stress of the environment of a court room. Many measures have been taken over several years in pursuit of such aims. Such measures can however, at least on their face, run contrary to the axiom stated by Lord Hewart over a century ago which is quoted above.
The majority of the High Court in Smith held that the meeting conducted was authorised by the discretion conferred under section 389 of the Criminal Procedure Act. That section authorises the making of ‘any direction for the fair and efficient conduct of the proceeding.’ The majority also held that the meeting was not a ‘hearing’.
Their decision is worth reading for a variety of reasons including their analysis of the meaning of the provisions set out in the Criminal Procedure Act and the need, as a result of the operation of the Charter of Human Rights and Responsibilities Act to interpret the sections consistent with human rights. Those issues are beyond the scope of this article but worthy of consideration.
As set out above Edelman J took a different view regarding what a hearing is. His honour found that the meeting was an irregularity and not authorised under the Act. However, he found that it was not a fundamental irregularity - and as such agreed that the appeal should be allowed. In distilling the difference in his view from that of the majority he said:
‘The reasoning of the majority has the effect that, unless and until it is amended, s 389E(1) of the Criminal Procedure Act will confer a discretion upon the Victorian judiciary to give directions for private meetings between a judge and a witness but excluding the accused, at least where those private meetings are also attended by counsel. Whether it would be wise for such directions to be given is another question.’
That final sentence carries some force. Defence lawyers need to consider carefully the steps involved in accommodating the taking of evidence from witnesses and ensure that steps are not being taken which may undermine the trial process.
When provisions including the introduction of intermediaries and ground rules hearings were introduced the Attorney General said in the statement of capability for the purposes of the Charter:
‘A fair trial does not require a hearing with the most favourable procedures for the accused: it must take into account other interests, including the interests of the victim and of society generally in having a person brought to justice. Any limitation on the right to a fair hearing by altering the way that evidence may be presented to the court is balanced with these broader considerations.’
The meetings involved in this case are one particular thing, done with the best of intentions, to which attention has now been drawn. In the context of the various measures engaged in over a long period of time and the statement of the Attorney General just quoted it is unwise to think that issues may not arise going forward in relation to other potential measures with similarly noble aims. It will fall to defence lawyers to ensure as best we can that measures which are not ‘the most favourable’ to their clients are not so unfavourable as to be unfair.
