Director of Public Prosecutions v Smith

Criminal practice – Questions of law arising before trial – Questions of law referred to Court of Appeal – Case stated – Where accused charged with sexual offences against child under 16 years – Where judge and counsel for both prosecution and accused met with complainant before complainant gave evidence at "special hearing" – Where complainant was a minor – Where s 389E(1) of Criminal Procedure Act 2009 (Vic) provides that "[a]t a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding" – Where accused not present at meeting and meeting not recorded – Where meeting occurred consequent to recommendation of intermediary appointed under s 389J(1) of Criminal Procedure Act 2009 (Vic) – Whether meeting authorised by s 389E(1) – Whether meeting inconsistent with principle of open justice – Whether meeting a fundamental irregularity – Whether as a result of meeting fair minded lay observer might reasonably apprehend that judge might not bring impartial mind to resolution of any issue required to be decided in proceeding.

Words and phrases – "apprehension of bias", "exercise of judicial power", "fair and efficient conduct of the proceeding", "fair minded lay observer", "fundamental irregularity", "ground rules hearing", "hearing", "impartiality", "intermediary", "introductory meeting", "minor", "principle of open justice", "proper administration of justice", "special hearing", "substantial miscarriage of justice".

Charter of Human Rights and Responsibilities (Vic) – ss 24, 28, 32.

Criminal Procedure Act 2009 (Vic) – Pts 5.7, 8.2, 8.2A; ss 246, 276, 330, 389B, 389E, 389I, 389J.

Open Courts Act 2013 (Vic) – ss 28, 30.