Director of Public Prosecutions (Vic) v Smith
High Court of Australia · 2024
Director of Public Prosecutions (Vic) v Smith [2024] HCA 32
A judge, both counsel and a child complainant meet before she gives evidence, and the accused is not there. Does the Victorian Charter's fair and public hearing right shrink what the statute lets a court direct?
What happened?
The accused was charged with three offences of sexual assault of a child under 16 and one of sexual penetration of a child under 16 ([3]). Before the complainant gave evidence at a special hearing, Judge Syme of the County Court and counsel for both the prosecution and the accused met with and were introduced to her at the offices of the Child Witness Service; the joint reasons infer that the appointed intermediary was also there. The accused was not present and the meeting was not recorded ([4]).
The meeting followed a recommendation in the intermediary's report, which recorded that meeting counsel and the judicial officer in person would assist the complainant's confidence. Judge Syme said its purpose was for the complainant to "say hello", and counsel for the accused had no objection ([5]). The special hearing took place the next day before the same judge ([6]).
After the Court of Appeal's decision in Alec (a pseudonym) v The King, which set aside a conviction because the judge had met the complainant privately without counsel ([7]), the accused's counsel submitted that the recording of the special hearing should not be admitted and that a new special hearing should be held before a different judge ([8]). Questions of law were reserved, and the Court of Appeal answered that the meeting was not authorised by s 389E, was inconsistent with open justice and was a fundamental irregularity ([11]-[12]).
What did the Court decide?
The High Court allowed the appeal and set aside the Court of Appeal's order. It answered the reserved question on fundamental irregularity "No", and said the other three questions were unnecessary to answer because they did not arise ([99]).
The joint reasons of Gageler CJ, Gleeson, Jagot and Beech-Jones JJ held that the meeting was authorised under s 389E(1) and did not give rise to any fundamental irregularity ([2]). Edelman J gave separate reasons from [100]. He would also have allowed the appeal; on the first reserved question, reformulated, he answered "Yes" (the meeting was an irregularity in relation to the trial), and on the third he answered "No" ([166]).
Proposition
What is the principle?
Section 32(1) of the Victorian Charter provides that "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights" ([15]). In applying it to s 389E(1) of the Criminal Procedure Act 2009 (Vic), Gageler CJ, Gleeson, Jagot and Beech-Jones JJ in their joint reasons recorded that the provision "has been said to mean" that where more than one interpretation is available on a plain reading, the one compatible with Charter rights is preferred ([57]). They then said that "[t]he general operation of the interpretative principle in s 32(1) of the Charter need not be resolved in this appeal" and that s 32(1) requires "close attention to the particular rights said to be engaged by the statutory provision that falls for interpretation" ([58]). The right they identified was the s 24(1) right to a "fair and public hearing"; the meeting was not itself a "hearing" ([59], [66]-[67]), so there was "no basis to construe s 389E(1) more narrowly than its language permits" by reason of s 24(1) ([68]). Edelman J, who agreed that the appeal be allowed, reached a different view of s 389E(1): he held that s 389E(1) did not empower the direction ([162]), a conclusion he said was "further reinforced by the weight of s 32(1)", read with s 24 ([159]). He also suggested that s 32 "might mandate a process of partial disapplication" ([137]), a technique he would confine to cases of "serious interference with the core of a right" ([138]) and found "unnecessary to consider" on the facts ([162]).
Why does this case matter?
A High Court decision on s 32(1) invites a student to cite it for the whole interpretive method. This one arose from a child-witness procedure under the Criminal Procedure Act, and the five Justices who agreed that the appeal should be allowed did not share a route to that result or the answers to the reserved questions, so the weight of a given sentence depends on whose reasons it comes from.
A second slip is to read the result as overruling Alec. The joint reasons treated Alec as an orthodox decision on its own facts, where the judge met the complainant in the absence of counsel for both parties ([75], [85]). An examiner rewards an answer that attributes each step to the Justices whose reasons support it.
Exam and application relevance
In a Victorian Charter problem, identify the Part 2 right said to be engaged and test whether the facts engage it before arguing for a rights-compatible reading. The joint reasons take that step at [58]-[59].
When citing [57], say that the joint reasons report the plain-reading formulation from another source, and cite [58] beside it. For an argument that s 32 reaches beyond choosing between available meanings, [137]-[139] are in Edelman J's separate reasons, where he said such techniques "might" apply and did not apply them ([162]).
Check your understanding
1. At [57] and [58], what do the joint reasons say about the plain-reading formulation, and what do they say about the general operation of s 32(1)? 2. Why did s 24(1) not lead the joint reasons to read s 389E(1) narrowly, and how did Edelman J approach s 24 and s 32 on the same question? 3. Did Edelman J agree that the appeal should be allowed, and on what points did his reasons and his answers to the reserved questions differ from the joint reasons?