Director of Public Prosecutions v. Smith

Lower Court Judgment

30/11/2023 Supreme Court of Victoria (Court of Appeal) (Emerton P, Priest & Macaulay JJA)

[2023] VSCA 293

Catchwords

Criminal practice – Open justice – Where respondent faces trial in County Court of Victoria on indictment charging them with four child sexual offences – Where child complainant gave evidence at special hearing conducted pursuant to s 370 of Criminal Procedure Act 2009 (Vic) ("CPA") – Where day prior to special hearing, presiding judge met with complainant in presence of both prosecutor and defence counsel at offices of Child Witness Service – Where respondent's counsel did not object to introductory meeting and judge made directions for fair and efficient conduct of proceeding pursuant to s 389E of CPA, having regard to recommendations made by intermediary – Where introductory meeting not recorded and accused not present – Whether Court of Appeal erred in finding introductory meeting between child complainant, presiding judge, prosecutor and defence counsel prior to special hearing at which complainant gave evidence, not authorised by s 389E of CPA – Whether Court of Appeal erred in finding introductory meeting inconsistent with principle of open justice – Whether Court of Appeal erred in finding introductory meeting fundamental irregularity in respondent’s trial that could not be waived.