Director of Public Prosecutions v Smith

High Court of Australia|2024-04-18|Before: Emerton P, Gageler CJ, Jones JJ

The application for special leave to appeal in this matter was granted upon the condition that the Director of Public Prosecutions pay the reasonable costs of the accused in this appeal.
The orders to be made are:

(2) The order of the Court of Appeal of the Supreme Court of Victoria made on 30 November 2023 is set aside and, in its place, the reserved questions of law be answered as follows:

It is unnecessary to answer the question as it does not arise in the proceeding.

Did the meeting bring the impartiality of the presiding judge into question?

It is unnecessary to answer the question as it does not arise in the proceeding.

Did the occurrence of the meeting represent a fundamental irregularity in the trial process, such as to constitute a serious departure from accepted trial processes?

If 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?

It is unnecessary to answer the question as it does not arise in the proceeding.

A private meeting between judge, counsel and witness, excluding the accused

Justice has dimensions of procedure and substance. Amongst the most important aspects of procedure are transparency and procedural fairness. Few things breed more public contempt for a system of criminal justice than when the gatekeeper intentionally closes a gate leading into the Law. One ideal for a system of criminal justice is that, at least until the point at which deliberations begin, any person, including a person convicted, can say "the judge ensured that I saw everything that could have had an impact upon the verdict". This appeal tests the limits of that ideal.
In 2023, in Alec (a pseudonym) v The King[65] the Court of Appeal of the Supreme Court of Victoria considered circumstances in which a judge in the County Court, who presided over the recording of the evidence of a child complainant at a special hearing,[66] had met privately with the complainant beforehand "to have a brief chat".[67] All counsel knew of the proposed private meeting but none objected to it.[68] Following a trial over which a different judge presided,[69] the Court of Appeal quashed the convictions of the appellant and ordered a new trial, concluding that the private meeting was contrary to the principle of open justice and was a fundamental irregularity in the proceeding.
Before the delivery of the decision of the Court of Appeal in Alec (a pseudonym) v The King, another private meeting was held - in the present proceeding. The private meeting was attended by a County Court judge ("the presiding judge") and the complainant in this proceeding. The private meeting was held the day before the presiding judge presided over a special hearing involving the recording of the evidence of the complainant. Unlike the circumstances in Alec (a pseudonym) v The King, the meeting was also attended by counsel for the prosecution, an instructing solicitor for the prosecution and counsel for the defence. But, again, the accused was excluded from the private meeting. The accused was not given the opportunity to watch the meeting by closed video-link. The meeting was not recorded. The public were not able to be present.
The present proceeding arises prior to a trial of the accused from a reference to the Court of Appeal of questions of law concerning the private meeting. The Director of Public Prosecutions argued in the Court of Appeal that the private meeting was supported by the statutory power in s 389E(1) of the Criminal Procedure Act 2009 (Vic), which permitted the court to "make or vary any direction for the fair and efficient conduct of the proceeding". The Court of Appeal held that the private meeting was not supported by the statutory power in s 389E(1). The private meeting was held to be contrary to the principle of open justice and a fundamental irregularity which, as in Alec (a pseudonym) v The King, required the complainant's evidence to be recorded at another special hearing before a different judge.
The private meeting from which the accused was excluded was a well-intentioned attempt to address an understandable concern with the discomfort of a nervous child complainant before the difficult experience of giving evidence. But there were other ways of addressing this concern.[70] In both Alec (a pseudonym) v The King and this proceeding the Court of Appeal was correct that the directions to hold private meetings with the complainants were irregular, particularly as the directions were made, and the private hearings were attended, by the judges who then presided over the special hearings. In neither case did the directions fall within the power under s 389E(1) to make directions "for the fair and efficient conduct of the proceeding". To the contrary, in both cases the meetings caused inefficiency and had the potential to undermine the fairness ideals of the system of criminal justice. This conclusion is powerfully reinforced by the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter of Human Rights and Responsibilities"[71]).
In the present proceeding, what would have happened if the complainant had said something at the private meeting which was relevant to a fact in issue at the trial? If the precise content of that statement were disputed by the complainant, could counsel for the accused have given evidence about it at the trial?[72] Would the accused then have been required to obtain new counsel? Could the judge have referred to their recollection of the statement? What would have happened if comments or conduct by the judge at the private meeting were considered by counsel for the accused as demonstrating an apprehension of bias? Who could have given evidence and been cross-examined on the appeal if the judge refused an application for recusal but the judge's factual account of the comments or conduct at the private meeting was disputed or said to be incomplete?
Ultimately, however, in the circumstances of this case, the private meeting, whilst irregular, did not amount to a fundamental irregularity. For the reasons below, the Court of Appeal was correct to answer the questions reserved to the effect that the private meeting was irregular but was not correct to conclude that the private meeting was a fundamental irregularity which required the evidence of the complainant to be retaken at another special hearing before a different judge. Although my conclusion differs from the Court of Appeal in part, my conclusion is heavily dependent upon the limited facts before this Court; I acknowledge the real force in the reasoning of the Court of Appeal and the grave dangers of private meetings in advance of trial that are attended by a judge and a prosecution witness.

The four reserved questions and the answers given by the Court of Appeal

The accused, who is the respondent to this appeal, had not yet been arraigned at the time of the private meeting on 14 March 2023. He was due to face a trial commencing on 18 September 2023. An inefficient, but necessary, consequence of the private meeting is that the trial dates for the accused were vacated. Instead, on the application of the Director of Public Prosecutions, four questions of law were reserved by a judge ("the second judge") for determination by the Court of Appeal.[73] The questions reserved were contained in Annexure B to the orders of the second judge. That annexure, and the answers (in bold) given by the Court of Appeal to the questions in the annexure, were as follows:

"In circumstances where the presiding judge at the special hearing held pursuant to Division 2 of Part 8.2 of the Criminal Procedure Act 2009 met with the child complainant prior to the complainant giving evidence at the special hearing for the purpose of introducing herself to the child, and where:

a) the meeting occurred at the offices of the Child Witness Service;

c) the meeting between the complainant and the judge was also attended by the legal representative for the accused and the legal representative for the prosecution;

d) the meeting occurred with the consent of both the prosecution and defence counsel; and

Did the meeting infringe the principles of open justice as identified in Alec (a pseudonym) v The King [2023] VSCA 208? [Yes]

Did the meeting bring the impartiality of the presiding judge into question? [Unnecessary to answer]

Did the occurrence of the meeting represent a fundamental irregularity in the trial process, such as to constitute a serious departure from accepted trial processes? [Yes]

If 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? [Yes]"

The first question appears to be expressed as a concern only with the principle of open justice. If the first question were read very narrowly it could appear to be abstracted from the more specific question of whether an irregularity occurred on the facts. The question of whether an irregularity occurred is a step towards each of: (i) the third question of whether there was a fundamental irregularity in the trial process; and (ii) the fourth question of whether that irregularity required the complainant's evidence to be retaken.
The Director of Public Prosecutions treated the first question in the most abstracted way, relying on Dworkin's view that a principle is distinct from a rule because the former "states a reason that argues in one direction, but does not necessitate a particular decision".[74] The Director quoted from French CJ, who said that the open court "principle is a means to an end, and not an end in itself",[75] and from Viscount Haldane LC, who said that the principle that courts must administer justice in public is subject to exceptions which have "a yet more fundamental principle ... to secure that justice is done".[76]
It is no objection to the first question that it might be described as concerned with a "principle" rather than a "rule". It may be that any distinction between principles and rules in the sense that Dworkin described them is a matter of degree.[77] Indeed, each of "open justice", an "irregularity" and "a fundamental irregularity" are open-textured concepts with principle-like qualities. Nor is it an objection to the first question that it is not concerned with the "end" of whether "justice is done". The administration of justice is concerned with both process and outcome, the appearance of justice and actual justice. Viscount Haldane LC was right that actual justice is more fundamental than the appearance of justice. But any system of justice should aim for both.[78]
It would, however, be an objection to the first question if it purported to invite the Court of Appeal to "pronounce principles in the abstract", divorced from any relevance to the parties.[79] But the question, properly, was not understood in that way by the Court of Appeal. The reference in the first question to the decision in Alec (a pseudonym) v The King made clear that the concern of the question was not with open justice in the abstract but with the application of the principle of open justice to the facts of the case to determine whether there is "an error or an irregularity in, or in relation to, the trial".[80] That was, correctly, how the first question was understood by the Court of Appeal.
The reference to Alec (a pseudonym) v The King in the first question reserved was to the unanimous decision of the Court of Appeal of the Supreme Court of Victoria discussed in the introduction to these reasons. In that case, the appellant's convictions were quashed and the complainant's special evidence was required to be retaken, on the ground that before the taking of that evidence the judge had met privately with the complainant and in the absence of any counsel. The Court of Appeal in that case held that the meeting was "a serious departure from accepted trial process" and that "[i]t occasioned a substantial miscarriage of justice".[81] Those two holdings of the Court of Appeal in Alec (a pseudonym) v The King correspond with the first and third questions in this case. As Jagot J said during the oral hearing of this appeal, the "abstract ... question[] of open justice" feeds into two questions: "[one,] was there an irregularity; two, was it fundamental?"
The Court of Appeal in the present case properly considered the first and third questions together, concluding that the meeting was not merely irregular (as a consequence of the application of the principle of open justice) (question 1) but was "a fundamental irregularity in the trial process, so as to constitute a serious departure from accepted trial processes" (question 3).[82] In the course of answering those questions the Court of Appeal considered the submission by the Director of Public Prosecutions that s 389E(1) of the Criminal Procedure Act provided a source of power for the private meeting. The success of such a submission would have meant that the meeting was not irregular. The Court of Appeal rightly rejected that submission.
The Court of Appeal did not consider it necessary to answer the second question. The second question is a shorthand expression for, and if necessary could be re-expressed as, 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".[83] Like the first question, the second question is also a step towards the third. An answer to the second question in the affirmative would necessarily require an answer to the third question in the affirmative.[84] In this Court it would not be appropriate to answer the second question for three reasons: (i) there was no substantial written or oral argument on this appeal concerning the second question; (ii) the Director of Public Prosecutions had no specific ground of appeal alleging that the Court of Appeal should have answered the second question, "No"; and (iii) the respondent made no submission that there was a reasonable apprehension of bias by the judge who presided over the special hearing at which the complainant gave evidence.
The obvious consequence of the Court of Appeal's answers to questions 1 and 3 was that question 4 was answered to the effect that the evidence of the complainant was required to be taken at a further special hearing conducted before a different judge. The essence of the reasoning of the Court of Appeal on the first and third questions was expressed by Priest JA (with whom Emerton P and Macaulay JA agreed), who said that "[a]part from recognised common law or statutory exceptions ... no aspect of the administration of criminal justice in this State should ever take place in a private setting".[85]
On this appeal, both senior counsel accepted that the fourth question was the "central" or ultimate question. Senior counsel for the Director of Public Prosecutions accepted that "the real issue" was the admissibility of the special hearing recording that had been taken before the same judge who had attended the private meeting from which the accused was excluded. Senior counsel for the respondent accepted that it "must be" the case that the central question (to which the other three questions were ancillary) was whether the evidence at the special hearing was admissible at the trial.

The nature of the private meeting direction given by the presiding judge

This appeal was conducted on the assumption that the presiding judge had given a direction at the ground rules hearing on 14 March 2023 to facilitate the private meeting. The relevant facts contained in Annexure A to the order of the second judge do not reveal the precise terms of the directions made by the presiding judge. The facts in the annexure record only that the presiding judge "made directions for the fair and efficient conduct of the proceeding pursuant to s 389E of the [Criminal Procedure Act], having regard to the recommendations made by the intermediary".
There is no indication in the facts supplied in Annexure A that the directions made under s 389E included a direction that a private meeting be held. The presiding judge's directions were not provided to this Court although the Director of Public Prosecutions argued that the direction fell within the power to make directions under s 389E(1). There may, however, be a basis to suspect that the directions made under s 389E(1) did not include a direction to hold the private meeting.
It suffices to proceed on the assumption of the parties to this appeal (and favourably to the Director of Public Prosecutions) that there was such a direction. The only express information about the content of the direction is that given by the second judge in the annexure:

"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 [Video and Audio Recorded Evidence] at 2 pm that afternoon. [The presiding judge] indicated that if no one had any difficulty with the proposal [by the complainant that 'it would assist her confidence to meet counsel and the judicial officer in person on the day she gives evidence'], she would meet the complainant at the same time. [The presiding 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."

There is real difficulty in identifying from these facts the content of a direction made by the presiding judge concerning the private meeting. Perhaps the best that can be said is that the direction was that an unrecorded, out-of-court meeting would be held, which senior counsel for the Director of Public Prosecutions accepted was part of the criminal proceeding, and which the judge would attend together with the prosecutor, an instructing solicitor for the prosecution, the complainant and the defence counsel.
Any direction for the holding of the private meeting must have excluded the accused, at least by implication. Section 372(1)(b)(i) of the Criminal Procedure Act prevents the accused from being in the same room as the complainant when the complainant's evidence is being formally taken at a special hearing. It is inconceivable that the accused would be permitted to be present in the same room when the complainant is being informally met, particularly at a meeting which had been requested by the complainant for the purpose of assisting her confidence.
Similarly, any direction to hold the meeting must have provided, at least by implication, that the meeting be in private. The meeting was not the subject of any public court listing. As senior counsel for the Director of Public Prosecutions accepted on this appeal, the meeting was not "in a place accessible to the public". Any member of the public present at the ground rules hearing would have heard only that the meeting was going to take place at the offices of the Child Witness Service before the complainant viewed her pre-recorded Video and Audio Recorded Evidence prior to its tender at the special hearing. There was no suggestion that the public could attend. No address, floor, or room number was provided. A member of the public could not reasonably have expected that they could attend the offices of the Child Witness Service, and certainly could not reasonably have expected that they would be admitted and shown the location of the room in which the complainant would view the recording and be greeted beforehand. The only reasonable inference to draw is that the meeting was intended to be, and would have been understood as being, private.
As to the subject matter of any direction for the private meeting, there was no suggestion that the subject matter was confined in any way. It is clear that the purpose of the meeting was for the judge to introduce herself to the complainant. But no party to this appeal suggested that any direction for the private meeting contained a prohibition upon the complainant or either counsel raising any legal issue at the private meeting. Nor did any party suggest that there was a self-imposed prohibition upon the presiding judge addressing any legal issues if they happened to be raised in the course of the private meeting. Section 179 of the Criminal Procedure Act might have permitted the presiding judge to do so. Section 179 provides that "[a]t any time except during trial, the court may conduct one or more directions hearings" with the power in s 181(1) to "make or vary any direction or order, or require a party to do anything that the court considers necessary, for the fair and efficient conduct of the proceeding". Whether or not the presiding judge actually made any directions or orders at the private meeting is irrelevant to the question of whether there was any implied restriction upon the subject matter of the direction that was said to have provided for the private meeting to occur.

Senior counsel for the parties on this appeal made reference to a cornucopia of different provisions of the Criminal Procedure Act but the argument for the Director of Public Prosecutions ultimately reduced to a question of interpretation of the open-textured provision in s 389E(1), which was said to provide the source of power for a judge to hold private meetings in the absence of an accused person. The central question is whether a direction to hold a private meeting that includes the judge and a central prosecution witness, but excludes the accused, can be a direction made under s 389E(1) for the "fair and efficient conduct of the proceeding". If statutory authority under s 389E(1) were provided for the private meeting then the meeting would not be an irregularity in the trial process. If statutory authority were not provided then the principle of open justice dictates the conclusion that the meeting was irregular.
The parties made substantial and detailed submissions about the role of the Charter of Human Rights and Responsibilities in the interpretation of s 389E(1) of the Criminal Procedure Act. As explained below, s 32 of the Charter of Human Rights and Responsibilities assumes considerable importance in the interpretation of Victorian legislative provisions.
The parties also relied upon s 28 of the Open Courts Act 2013 (Vic). That provision relevantly requires a court in determining whether to make an order to "have regard to the primacy of the principle of open justice and the free communication and disclosure of information which require the hearing of a proceeding in open court". Section 28 does not bear upon the interpretation of provisions. It concerns the judicial discretion to make orders. Even if the direction for a private meeting were a direction for a "hearing of a proceeding" within s 28, the respondent had no notice of contention, and made no submissions, to the effect that: (i) if s 389E(1) of the Criminal Procedure Act created a discretion to make a direction of the nature that was assumed to have been made then s 28 of the Open Courts Act imposed a mandatory relevant consideration for the exercise of power to be valid (rather than merely a matter that should be considered); and (ii) the consequences of such a conclusion for the answer to any of the questions stated. For those reasons, the Open Courts Act can be put to one side.

"Directions which may be given at ground rules hearings

(1) At a ground rules hearing, the court may make or vary any direction for the fair and efficient conduct of the proceeding.

(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;

(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."

The legislative description of the function of the ground rules hearing to which s 389E(1) refers has evolved since this proceeding commenced.[86] At the time this proceeding commenced, the ground rules hearing provisions applied to particular proceedings including those that relate to a charge for a sexual offence,[87] and to a witness (including a complainant) who is under 18 years of age or who has a cognitive impairment.[88] When the provisions were introduced, the purpose of a ground rules hearing was described in the Explanatory Memorandum as "to discuss and establish how certain witnesses will be enabled to give their best evidence".[89] The examples of directions set out in s 389E(2) illustrate numerous different directions that can be given by the court concerning the evidence of a relevant witness to enable the witness to give their best evidence at trial.

The operation of the Charter of Human Rights and Responsibilities

Section 32(1) of the Charter of Human Rights and Responsibilities 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". "Human rights" in s 32 are those civil and political rights set out in Pt 2 of the Charter of Human Rights and Responsibilities.[90] Part 2 includes s 24(1), which provides that:

"A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing."

The various aspects of the s 24(1) right overlap. Independence and impartiality are two concerns of fairness. The public nature of a hearing is apt to reinforce fairness, independence and impartiality.

None of the overlapping aspects of s 24(1) is absolute. But like Art 6 of the European Convention on Human Rights, which is expressed in similar terms, any qualifications to the right must "represent[] no greater qualification than the situation calls for".[91] Section 24(2) provides that "[d]espite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter". But the general right established by s 24(1) remains subject to the interpretative mandate in s 32.

Three techniques of interpretation and construction

It has been said that s 32 of the Charter of Human Rights and Responsibilities does not permit an approach to interpretation that differs from the approach ordinarily undertaken[92] and does not authorise a legislative "function of a law-making character".[93] So much may be accepted, but the approach ordinarily taken to interpretation depends upon the interpretative issue that is raised by a case. In particular, the relevant interpretative technique engaged by s 32 concerns when, and how, a particular statute can be interpreted so that it is consistent with a general result that is desired by another statute.
Australian law recognises three techniques by which statutory provisions can be interpreted and construed, consistently with their purpose and also, as far as possible, consistently with a result desired by an enacting Parliament in other, more general, legislation. These techniques are most commonly encountered in the course of assessing the constitutional validity of legislation. The techniques can be described as "reading down", "severance", and "partial disapplication".[94] All three techniques are supported by general Commonwealth, State and Territory legislation that requires interpretation or construction of the legislative provisions of the relevant Parliament, consistently with the legislative purpose, to preserve the constitutional validity of the legislation.[95]
The expression "reading down" can be misleading. It suggests that a correct, or proper, interpretation is being discarded in favour of "reading" (interpreting) a provision in a narrower way. The expression should not be understood in this way. As Professor Rishworth KC correctly observes in the context of s 6 of the New Zealand Bill of Rights Act 1990 (NZ), "it is problematic to speak of more than one meaning of an enactment" because "[t]he idea of multiple meanings flies in the face of the central idea behind human communication, that words are almost always used ... to convey one meaning and not another".[96] Instead, the expression "reading down" should be understood as describing the ordinary technique of interpretation which recognises that sentences have only one meaning but which gives particular weight to important considerations in identifying that meaning, including those that attempt (by legislative direction) to ensure constitutional validity of the provision. Hence, the technique can also involve interpreting the provision in a broader way, sometimes also called "reading up" or "reading in".[97]
Where the statutory provision involves the rights of an individual, the weight given to a reading that achieves consistency between the provision and the right will increase in accordance with the importance of the right and the greater the abrogation of the right that would result from a proposed interpretation.[98] This technique, described at common law as the principle of legality, is reflected in s 32 of the Charter of Human Rights and Responsibilities, which demands that weight be given to the civil and political rights set out in Pt 2 of the Charter.[99] Like any interpretation, however, the weight given to any of the rights guaranteed in the Charter of Human Rights and Responsibilities cannot permit a meaning to be given to a statutory provision that is contrary to the purpose of the provision.
The interpretative techniques of severance and partial disapplication are more controversial. In constitutional law, these techniques are similarly directed to achieving an interpretation or construction that is consistent with a result desired by an enacting Parliament so far as it is possible to do so consistently with the purpose of the provision. Hence, both of these techniques have sometimes, confusingly, also been described as "reading down".[100] Where severance occurs in constitutional law, the process involves the interpretation of a single provision, or a statute, as though words contained in a single provision, or an entire provision of a statute, had been struck out with a "blue pencil".[101] It involves "textual surgery" to remove "invalid portions" of legislation.[102] But it is not possible to sever such text if the remainder would cause the purpose of the provision or the statute to change.[103] Partial disapplication has a similar effect and is sometimes also described as "severance".[104] But the difference is that the technique of partial disapplication does not ignore or notionally remove any words of the provision. Instead, partial disapplication has the effect of permitting a court to construe the provision so that "a provision too widely or generally expressed should be confined in its operation [application] to so much of the subject it is capable of covering as is constitutionally competent to the legislature".[105] In short, the concern of partial disapplication is with severing part of the "operation" or "application" of a provision rather than severing words of a provision.[106]
The amendment to the operation of legislation by the technique of partial disapplication (properly so-called), and perhaps also by treating words of a single provision as though they had been severed, required statutory mandate and justification.[107] There was a simple justification for the mandate by Commonwealth, State and Territory interpretation legislation to treat words of a provision as though they had been severed or to treat a provision as partially disapplied in its operation. That justification was that the same power[108] which permits a court to invalidate an unconstitutional provision in its entirety should permit the provision to be partially invalidated by severing words or partially disapplying its operation, provided that the valid remainder retains the same purpose and substantial operation. But "[t]here is no such justification for judicial invalidation of laws within the scope of legislative power".[109]
There might be another role for severance or partial disapplication, beyond limiting the effect of constitutional invalidity, by the operation of s 32 of the Charter of Human Rights and Responsibilities.[110] Section 32 acts as a statutory mandate to apply a relevant provision, unless its purpose and context require otherwise, only to those circumstances which are compatible with the civil and political rights set out in Pt 2 of the Charter of Human Rights and Responsibilities. Section 32 might provide a mandate, or "added sense of legitimacy",[111] in the process of interpretation to sever, or ignore, words of a provision that are not integral to its purpose. So too, s 32 might mandate a process of partial disapplication which, as Professor Lindell has explained, would result in a court "failing to apply [the provision] ... according to its own terms" as "a matter of statutory construction", rather than failing to apply it as a result of incapacity due to lack of constitutional power.[112]
The failure by courts to apply a provision according to its own terms is not disobedient to the intention of Parliament. It is making a necessary choice, according to the terms required by Parliament itself, between the conflicting requirement of a general enactment (s 32) and the application of a particular enactment of the Parliament. But before a general enactment is permitted to prevail over a particular one, great care must be exercised, and institutional respect afforded, by confining the application of techniques of severance or partial disapplication to instances where the full and strict application of the particular enactment would involve serious interference with the core of a right protected by the general enactment. An analogy can be drawn with the approach by which courts ignore statutory words in circumstances where the application of those words could not have been intended by Parliament because it would mean that the provision was "totally irreconcilable with the rest of the statute".[113]
In cases of severance or partial disapplication, the process is therefore not one of preserving validity to the greatest extent possible but one of "[r]econciling conflicting provisions [which] will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'".[114] It has been cogently argued that the application by provisions such as s 32 of such interpretative techniques, beyond the principle of legality ("reading down" and "reading in"), was "certainly what was expected by the legislators" of the Charter of Human Rights and Responsibilities.[115]
The techniques of "reading down", "severance" and "partial disapplication" will not, however, be possible where the purpose and context of the statutory provision indicate that the provision is not compatible with the rights guaranteed in the Charter of Human Rights and Responsibilities. Perhaps the most obvious instance of context where the techniques may not be used is where a parliamentary statement has been made recognising incompatibility of the provision with Charter rights.[116] The techniques will also be unable to be applied where partial severance or partial disapplication of a provision would leave the remainder of the provision with a different operation from that which the remainder would otherwise have had.[117]
The techniques of, on the one hand, "reading down" and applying the principle of legality, and, on the other hand, "severance" or "partial disapplication", are also reflected in the different approaches taken in the United Kingdom when applying s 3 of the Human Rights Act 1998 (UK), which requires courts of the United Kingdom, "[s]o far as it is possible to do so", to read and give effect to legislation in a way which is compatible with the rights guaranteed under the European Convention on Human Rights.
In R (Wilkinson) v Inland Revenue Commissioners,[118] speaking of the first of these techniques, Lord Hoffmann (with whom the other Law Lords agreed) said that the effect of s 3 was:

"to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the 'principle of legality' meant that statutes were construed against the background of human rights subsisting at common law ... so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights."

In Vidal-Hall v Google Inc,[119] Lord Dyson MR and Sharp LJ said that separately from "[r]eading in to a provision or reading it down" they did "not see why, as a matter of principle, it is impermissible to disapply ... a relatively minor incompatible provision in order to make the measure compatible". In the decision of the House of Lords in Ghaidan v Godin-Mendoza,[120] which was relied upon by the Victorian Human Rights Consultation Committee in its report recommending enactment of the Charter of Human Rights and Responsibilities as part of the Committee's discussion of the proposed clause which became s 32,[121] it was held that provided that disapplication does not "alter a fundamental feature of the legislation",[122] does not go against "the grain of the legislation"[123] or does not alter the "essential character" of the provision,[124] disapplication under s 3 of the Human Rights Act could reflect the same approach as courts adopt when applying national law "as far as possible" to be consistent with European law.[125]

Interpreting s 389E(1) of the Criminal Procedure Act in light of ss 24 and 32 of the Charter of Human Rights and Responsibilities

Five matters of text and context militate against an interpretation of s 389E(1) that permits the court to direct that a private meeting occur from which the accused is excluded. These five matters, in combination with the operation of ss 24 and 32 of the Charter of Human Rights and Responsibilities, lead to an irresistible conclusion that s 389E(1) does not permit the court to direct that a private meeting occur from which the accused is excluded.
First, the power in s 389E(1) to make directions at a ground rules hearing is expressed in terms that are more constrained than the general directions power in s 181. Like the power in s 389E(1), the general directions power in s 181 permits the court to "make or vary any direction ... for the fair and efficient conduct of the proceeding". But the general directions power also permits the court to "require a party to do anything that the court considers necessary". In this context, senior counsel for the respondent presented a compelling submission that a direction "for" the fair and efficient conduct of the proceeding at a ground rules hearing was concerned with directions for things that would occur during the proceeding itself. By contrast, a direction to compel parties to do things, such as to provide documents, would fall only within the general directions power in s 181.
In any event, in light of the omission from s 389E(1) of a power to require any party to do anything that the court considers necessary, it is a surprising interpretation of s 389E(1) for the provision to empower a court to order that a non-party be required to do something that might be unnecessary (such as a direction that requires the attendance of at least counsel or instructing solicitors at a private meeting when a similar effect might be achieved by commencing the recorded special hearing earlier and informally with the judge and counsel being unrobed and without any formal entrance[126]).
Secondly, although s 389E(2) does not limit the scope of s 389E(1), it is notable that: the examples in s 389E(2) all concern the conduct of the hearing itself; none concerns private and out-of-court conduct; none requires any step to be taken by the judge themself; none involves the absence of the accused. The examples are a universe away from directions by the court that the judge and counsel meet with the central prosecution witness in the absence of the accused. Indeed, if the open-textured nature of the phrase "fair and efficient conduct of the proceeding" in s 389E(1) were truly to extend to a private meeting between judge, counsel and a witness in order to assist the confidence of the witness, then it might even extend to a private meeting between only the judge and any witness.
Thirdly, s 389E(1) must be interpreted against the background that there is, at least, serious doubt concerning whether courts have any general authority to give directions that bind non-parties in relation to any conduct outside the courtroom.[127] The general terms of s 389E(1) contain no indication that the Victorian Parliament intended that judicial directions could be made to bind non-parties such as counsel or the complainant for the specific purpose of attending a private meeting with the judge.
Fourthly, and assuming (as the parties to this appeal did) that the private meeting was part of the criminal proceeding, the notion that s 389E(1) could permit a direction that excluded the accused from attending part of the proceeding appears inconsistent with the scheme of the Criminal Procedure Act, which is scrupulous always to permit, and usually to require, the accused to attend hearings that are part of the proceeding. For instance, provision under the Criminal Procedure Act requiring the attendance of an accused at a hearing for the purposes of s 330(1)(a) is made by s 246, which provides that "[a]n accused must attend all hearings conducted under this Chapter [Trial on indictment[128]] in the criminal proceeding against the accused unless excused [by the court] under section 330".
Fifthly, the requirement that the direction be for the "fair and efficient" conduct of the proceeding is not mere surplusage. For instance, there was (and could be) no suggestion that the private meeting in Alec (a pseudonym) v The King between only the judge and the complainant could have been the subject of a direction under s 389E(1). In Re JRL; Ex parte CJL,[129] Mason J described a fair system of justice as a system that must be "open, impartial and even-handed". His Honour cited with approval the following observations:[130]

"The sound instinct of the legal profession - judges and practitioners alike - has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither [the judicial officer] nor [the advisers and witnesses] should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined."

The point that Mason J was emphasising was one of prophylaxis. This reasoning does not draw distinctions between circumstances where both a party and their counsel had been excluded from a private meeting between a judge and a witness and those where only a party had been excluded from a private meeting between a judge and a witness.
In HT v The Queen,[131] Gordon J applied the same concept, affirming the long-standing approach set out by Lord Diplock[132] that "[a]part from statutory exceptions … where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule [of open justice], the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice". In this context it is difficult to see how it could ever be necessary "for the fair and efficient conduct of the proceeding" for a judge to direct that there be a private meeting between judge and complainant, attended by counsel but excluding the accused, and without any requirement that the meeting be recorded.
No submission was made on this appeal addressing why it was necessary to exclude the accused from seeing or hearing the meeting from a remote location. For instance, an alternative manner of attempting to reduce the discomfort of a child complainant might involve an informal and unrobed (but recorded) greeting between the judge and the complainant as an initial step in a special hearing, where the judge explains the procedure in an informal way and the accused can see and hear the meeting from a location away from the courtroom.[133]

Is s 32 of the Charter of Human Rights and Responsibilities engaged?

The parties to this appeal made detailed submissions about the semantic meaning of a "hearing" within s 24 of the Charter of Human Rights and Responsibilities. The Director of Public Prosecutions submitted that the private meeting was not a hearing and did not engage s 24 of the Charter of Human Rights and Responsibilities. A hearing can occur even if the judge does not ultimately make any directions or orders; the possibility that such orders might be made on an occasion where the judge engages in exchanges with counsel will usually be sufficient. And, as explained earlier in these reasons, the direction to hold a private meeting was not said to contain any express or implied constraint upon the presiding judge raising with counsel at the meeting any legal issue that might arise in discussion at the private meeting. Ultimately, without any more detail about what happened at the private meeting it is difficult to conclude whether it was, or was not, a "hearing". But the presence of a judge, counsel for the parties and a central prosecution witness was a pretty good start.
Ultimately, it is unnecessary to attempt to resolve this semantic issue. The effect of statutory provisions on protected rights may be difficult to predict in advance, with any conflict between a provision and protected rights often arising incidentally and without facial prominence.[134] Contrary to the submissions of the Director of Public Prosecutions, s 24 of the Charter of Human Rights and Responsibilities, like Art 14(1) of the International Covenant on Civil and Political Rights, upon which it was modelled,[135] is not so cabined, cribbed, confined and bound-in that the fairness and public nature of a hearing depends only upon events that occur within the hearing itself. Both the fairness and the public nature of a hearing can be significantly compromised by events that occur outside the hearing.
An illustration can be given that demonstrates how a private meeting that is not a hearing can compromise the independence, impartiality, fairness or public nature of a later hearing. The illustration is the foreign decision, to which s 32(2) of the Charter of Human Rights and Responsibilities encourages consideration, of the Supreme Court of New Zealand in Wilson v R.[136] In that case, the Supreme Court considered s 25 of the New Zealand Bill of Rights Act 1990 (NZ), which relevantly provides for "the right to a fair and public hearing by an independent and impartial court".
Wilson v R concerned a private meeting between the Chief District Court Judge and two police officers at which the police officers provided the Chief Judge with a letter requesting that an undercover police officer appear in the District Court to be remanded and sentenced by a different judge under an assumed name. The police officers believed that they had obtained the consent of the Chief Judge to that course of conduct. It was not shown that the judge who conducted the hearing at which the undercover officer appeared had any knowledge of the letter or the subterfuge.[137] There was no suggestion that the events during the hearing itself were other than fair or public or that the judge was other than independent or impartial. Nevertheless, as Elias CJ said, the right to a fair and public hearing by an independent and impartial court was compromised by the private meeting.[138] The other members of the Court described the right to a fair and public hearing by an independent and impartial court as one of the reasons that the private meeting was "particularly concerning".[139]
The point that Wilson v R illustrates about the impact of a private meeting on a public hearing is that the apparently public hearing was not entirely public because the true nature of the hearing could not have been understood without knowledge of the matters raised at the private meeting. The purpose of the private meeting in the present case might have seemed entirely innocuous, as an opportunity for friendly greetings to be exchanged. But the point that Wilson v R illustrates is that an unrecorded private meeting can have the potential to impact upon a later hearing.

Giving weight to the right to a fair and public hearing

The conclusion supported by each of the five matters of text and context described above is further reinforced by the weight of s 32(1) of the Charter of Human Rights and Responsibilities, read in conjunction with s 24, when interpreting a statutory provision such as s 389E(1) of the Criminal Procedure Act.
In the second reading speech introducing Pt 8.2A of the Criminal Procedure Act (including s 389E(1)), the Attorney-General for Victoria made a statement of compatibility,[140] stating that the Part was compatible with the Charter of Human Rights and Responsibilities.[141] In discussing s 24, the Attorney-General considered a range of ways in which the s 24 right might be engaged. One example was an amendment to s 389 "to enable evidence to be given from outside Australia by audiovisual link in cases for an offence of 'facilitating sexual offences against children'". The Attorney-General explained that this amendment did not contravene the right to a fair hearing because "[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".[142]
Although the Attorney-General adverted to the circumstance where the witness could only be seen by the court and the accused person by audiovisual link, the Attorney-General made no mention of the possibility of a private meeting prior to trial from which an accused person was excluded both physically and virtually, without even access by audiovisual link. That omission is telling. The simple point is that an unrecorded, private meeting between a judge and a witness, which excludes an accused, has the clear potential to compromise the independence, impartiality, fairness or public nature of a later hearing. The private meeting, excluding the accused, which was considered by the Court of Appeal in Alec (a pseudonym) v The King had that potential. And, whilst the potential was reduced by the presence of counsel for the accused, there remained potential that the independence, impartiality, fairness or public nature of a later hearing would be compromised by a direction for a private meeting in the terms that were assumed to have been made in the present case.

Conclusion: a lack of statutory authority under s 389E(1)

For these reasons, s 389E(1) did not empower a direction of the kind that the presiding judge was assumed to have made, requiring a private meeting which was unrecorded and which excluded the accused person. Although s 389E(1) is an open-textured provision, the constraint that the direction must be "for the fair and efficient conduct of the proceeding" has the effect of excluding a direction that will result in unfairness or inefficiency in the conduct of the proceeding. Those terms should be applied, having regard to the five matters of statutory and extrinsic context identified above and to s 32 of the Charter of Human Rights and Responsibilities, so as not to extend to any private meeting involving a judge and a witness from which an accused person is entirely excluded. The private meetings in Alec (a pseudonym) v The King and in the present case could not, therefore, have been the subject of a direction under s 389E(1). It is therefore unnecessary to consider whether s 389E(1) could otherwise have been partially disapplied from such circumstances, consistently with both ss 24 and 32 of the Charter of Human Rights and Responsibilities and the purpose of s 389E(1).

In an important step towards the conclusion that the private meeting between the presiding judge and other players in the trial, but excluding the accused, was an irregularity, Priest JA (with whom Emerton P and Macaulay JA agreed) said in the Court of Appeal that "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".[143] With respect, that reasoning is impeccable. The absence of statutory authority for the presiding judge to make a direction for the private meeting necessarily meant that the meeting was contrary to the principle of open justice and constituted an irregularity in the proceeding.
In a valiant submission, senior counsel for the Director of Public Prosecutions analogised between the circumstances of the present case and curial processes such as views, applications determined on the papers, and judicial mediations. None of those examples involves (i) the private and unrecorded participation of the judge and a witness and (ii) the exclusion of the accused. These were the two features which senior counsel for the Director of Public Prosecutions properly accepted on this appeal as problematic. Those problems are the central issue. It would not be irregular if the meeting were open to the public and recorded, particularly if the accused had the opportunity to watch it contemporaneously (although not the opportunity to be physically present). 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 might not, make submissions). That term is a "hearing".
Although the private meeting was irregular, I do not consider that it was a fundamental irregularity. I reach this conclusion contrary to the approach of the Court of Appeal but recognising that this is a conclusion upon which reasonable minds might differ. The relevant circumstances of this case that militate against a conclusion that the irregularity was fundamental are that: (i) counsel for the accused confirmed in advance of the meeting that he had no objection to the meeting; (ii) counsel for the accused attended the meeting; and (iii) there was no information in the stated case before the Court of Appeal concerning what occurred at the meeting so that no inference can be drawn other than that, as the second judge described the purpose of the meeting, the presiding judge said "hello" to the complainant.

The appeal should be allowed. Question 1 should be reformulated to reflect the issue as it was treated in oral argument. In place of the answers to each of questions 3 and 4 given by the Court of Appeal, there should be substituted the answer, "No". Therefore, the questions should be answered as follows:

In light of the principle of open justice was the meeting an irregularity in relation to the trial? Yes.

Did the meeting bring the impartiality of the presiding judge into question? Unnecessary to answer.

Did the occurrence of the meeting represent a fundamental irregularity in the trial process, such as to constitute a serious departure from accepted trial processes? No.

If 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? No.

The most crucial point of difference in my reasoning from that of the majority is that I do not accept that s 389E(1) of the Criminal Procedure Act empowered the court to direct that a private meeting take place between the judge, counsel and a witness, in the absence of the accused. 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.

Criminal Procedure Act 2009 (Vic), s 389A(3). From the commencement of the relevant section of the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic) on 30 July 2023, those provisions apply to any witness who is a complainant in relation to a charge for a sexual offence. See Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic), ss 69, 2(5). ↑

Criminal Procedure Act 2009 (Vic), Pt 8.2, Div 6, provides for special hearings in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence if at the time the proceeding was commenced the complainant was under 18 years of age or had a cognitive impairment (s 369). ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 164 [20]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 166 [26]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 167-168 [32]-[33]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 168-169 [35]-[38]. ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [40]. ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [55]. ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [57]. ↑

Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 13 December 2017. See also Justice Legislation Amendment (Victims) Bill 2017 (Vic). ↑

Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 13 December 2017 at 4355. ↑

Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 13 December 2017 at 4356. ↑

Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 13 December 2017 at 4359. ↑

From 30 July 2023, Div 1 of Pt 8.2A applies generally to a "witness who is a complainant in relation to a charge for a sexual offence". See Criminal Procedure Act 2009 (Vic), s 389A(3)(b); Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022 (Vic), ss 69, 2(5). ↑

At the time of the ground rules hearing in this matter (14 March 2023), s 389AB of the Criminal Procedure Act 2009 (Vic) had not been enacted. Section 389AB commenced on 30 July 2023. It states that a ground rules hearing is a hearing at which the court "(a) considers the communication, support or other needs of witnesses; and (b) decides how the proceeding is to be conducted to fairly and effectively meet those needs". ↑

See, eg, Pound and Evans, Annotated Victorian Charter of Rights, 2nd ed (2019) at [CHR.32.40]; Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 at 13 [27]; R v DA (2016) 263 A Crim R 429 at 443 [44]. ↑

Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 at 64 [195]. ↑

See Victoria, Legislative Assembly, Charter of Human Rights and Responsibilities Bill 2006, Explanatory Memorandum at 17-18. ↑

Pound and Evans, Annotated Victorian Charter of Rights, 2nd ed (2019) at [CHR.24.320]. ↑

eg, X v General Television Corporation Pty Ltd (2008) 187 A Crim R 533; News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248; PQR v Secretary, Department of Justice and Regulation [No 1] (2017) 53 VR 45. Further, in similar statutory contexts, see Canadian Newspapers Co v Canada (Attorney General) [1988] 2 SCR 122; R v Mentuck [2001] 3 SCR 442; R v JJ (2022) 471 DLR (4th) 577; Police v O'Connor [1992] 1 NZLR 87; Siemer v Solicitor‑General [2013] 3 NZLR 441; Wilson v R [2016] 1 NZLR 705. ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [33]. ↑

(2011) 243 CLR 506 at 530-531 [20]-[21] (footnotes omitted). ↑

cf, eg, Criminal Procedure Act 1986 (NSW), s 154. See also Stephens v The Queen (2022) 273 CLR 635 at 645 [8], citing R v Janceski (2005) 64 NSWLR 10 at 42 [219]. ↑

Criminal Procedure Act 2009 (Vic), ss 328, 329. ↑

Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357. See also Thomas v Mowbray (2007) 233 CLR 307 at 414 [306]; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at 553-554 [28]. ↑

Thomas v Mowbray (2007) 233 CLR 307 at 414 [306]. ↑

cf Director of Public Prosecutions v Smith [2023] VSCA 293 at [43]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 163 [5(3)], 164 [20], 165 [23], 166 [26]-[27]. ↑

eg, Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 at 155 [34]; R v AL (2016) 310 FLR 320 at 322 [5]. ↑

Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450. ↑

Caulfield (a pseudonym) v The King [2023] VSCA 76 at [17]. ↑

Caulfield (a pseudonym) v The King [2023] VSCA 76 at [20]. ↑

Caulfield (a pseudonym) v The King [2023] VSCA 76 at [38] (emphasis added). ↑

eg, R v Gee (2012) 113 SASR 372 at 388 [61]-[62]; R v Chute [No 4] (2018) 337 FLR 222 at 243-244 [81]-[82] and the cases cited therein. ↑

(1999) 200 CLR 485 at 514 [69] (emphasis added). ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [40]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 167-169 [32]-[38]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 166 [28]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 166-167 [29]-[30]. ↑

(1986) 161 CLR 342 at 351, quoting R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. ↑

eg, Director of Public Prosecutions v Smith [2023] VSCA 293 at [57]. ↑

Open Courts Act 2013 (Vic), s 30(1) (emphasis added). ↑

Charisteas v Charisteas (2021) 273 CLR 289 at 296 [11], applying Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 164 [20], 169 [39]. ↑

eg, HCF v The Queen (2023) 97 ALJR 978 at 981-982 [1]-[3], 982-983 [7]; 415 ALR 190 at 191-192, 193. ↑

R v Glennon (1992) 173 CLR 592 at 605 (footnotes omitted), quoting Barton v The Queen (1980) 147 CLR 75 at 111. See also Dupas v The Queen (2010) 241 CLR 237 at 245 [18]. ↑

Charisteas v Charisteas (2021) 273 CLR 289 at 296 [11], applying Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at 432-433 [38]; 409 ALR 65 at 77, applying Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345 [8] and Charisteas v Charisteas (2021) 273 CLR 289 at 296-297 [11]. See also QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at 437-438 [67]-[73], 440 [81], 446-447 [119], 455 [163], 455-456 [165], 460 [194], 466 [225], 476 [274], [278], 477 [282]; 409 ALR 65 at 83-85, 87, 96, 108, 114-115, 123, 135-137. ↑

See Criminal Procedure Act 2009 (Vic), s 370. See generally Pt 8.2, Div 6. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 165 [25]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 166 [26]. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 163 [5], fn 5. ↑

Alec (a pseudonym) v The King (2023) 72 VR 161 at 166 [27]. See below at [146], [153]. ↑

Charter of Human Rights and Responsibilities, s 1(1). ↑

Dworkin, Taking Rights Seriously, rev ed (2013) at 42. ↑

Hogan v Hinch (2011) 243 CLR 506 at 530 [20]. ↑

Hart, "Postscript", in The Concept of Law, 3rd ed (2012) 238 at 261-263. See also Gardner, "Ashworth on Principles", in Zedner and Roberts (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in honour of Andrew Ashworth (2012) 3 at 12-14. ↑

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at 460 [192]; 409 ALR 65 at 114. ↑

Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 83, quoting New York v United States (1946) 326 US 572 at 575. ↑

Criminal Procedure Act 2009 (Vic), s 276(1)(b). See Weiss v The Queen (2005) 224 CLR 300 at 314 [35]-[36]. ↑

See Alec (a pseudonym) v The King (2023) 72 VR 161 at 169 [38]. ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [58]. ↑

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]. See also Charisteas v Charisteas (2021) 273 CLR 289 at 296 [11]. ↑

Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at 125-126 [98]-[102]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at 459 [188]; 409 ALR 65 at 113; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at 614 [6]. See also Wilde v The Queen (1988) 164 CLR 365 at 372-373. ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [54]. ↑

See now Criminal Procedure Act 2009 (Vic), s 389AB. ↑

Criminal Procedure Act 2009 (Vic), s 389A(1)(a). ↑

Criminal Procedure Act 2009 (Vic), s 389A(3). ↑

Victoria, Legislative Assembly, Justice Legislation Amendment (Victims) Bill 2017, Explanatory Memorandum at 13. ↑

Charter of Human Rights and Responsibilities, s 3(1). ↑

Momcilovic v The Queen (2011) 245 CLR 1 at 217 [565]. ↑

Momcilovic v The Queen (2011) 245 CLR 1 at 92-93 [171]. ↑

Clubb v Edwards (2019) 267 CLR 171 at 313-322 [415]-[433]. ↑

Acts Interpretation Act 1901 (Cth), s 15A; Acts Interpretation Act 1931 (Tas), s 3; Acts Interpretation Act 1954 (Qld), s 9; Interpretation Act 1978 (NT), s 59; Interpretation Act 1984 (WA), s 7; Interpretation of Legislation Act 1984 (Vic), s 6; Interpretation Act 1987 (NSW), s 31; Legislation Act 2001 (ACT), s 120; Legislation Interpretation Act 2021 (SA), s 15. ↑

Rishworth, "Interpreting Enactments: Sections 4, 5, and 6", in Rishworth et al, The New Zealand Bill of Rights (2003) 116 at 143. ↑

Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 at 547-548 [36]-[37]; Young, "Judicial Sovereignty and the Human Rights Act 1998" (2002) 61 Cambridge Law Journal 53 at 56-58. ↑

Hurt v The King (2024) 98 ALJR 485 at 506 [106]. See also Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 at 623 [159]; Stephens v The Queen (2022) 273 CLR 635 at 653 [34]. ↑

Momcilovic v The Queen (2011) 245 CLR 1 at 50 [51]. ↑

For instance, Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 348 (describing severance as reading down); Palmer v Western Australia (2021) 272 CLR 505 at 547 [122] (describing partial disapplication as reading down). See Thoms v The Commonwealth (2022) 276 CLR 466 at 495 [75]. ↑

Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 348; Harrington v Lowe (1996) 190 CLR 311 at 328. ↑

SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516 at 530 [43]. ↑

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 at 27; Owners of SS Kalibia v Wilson (1910) 11 CLR 689 at 701. ↑

Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (1921) 29 CLR 357 at 364-365 (in argument), compare at 370 ("operate in respect of all ships to which [the provisions] might lawfully be applied"); Harrington v Lowe (1996) 190 CLR 311 at 326-327. ↑

Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 369. ↑

See, for instance, Williams v The Commonwealth [No 2] (2014) 252 CLR 416 at 457 [36]; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005 at 1020 [73]; 415 ALR 254 at 272. ↑

See Harrington v Lowe (1996) 190 CLR 311 at 326-327, referring to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1, Owners of SS Kalibia v Wilson (1910) 11 CLR 689, and Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434. See also Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (1921) 29 CLR 357 at 370 ("[t]here is ... nothing to prevent Parliament from legislating in this way in order to make its intention clear"). ↑

Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 262; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 381 [89]. See Marbury v Madison (1803) 5 US 137. ↑

R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 230. ↑

Compare New Zealand Bill of Rights Act 1990 (NZ), s 4(b). See also Butler and Butler, The New Zealand Bill of Rights Act: A Commentary, 2nd ed (2015) at 217-218 [7.2.6]-[7.2.7]. ↑

Kavanagh, "Choosing between sections 3 and 4 of the Human Rights Act 1998: judicial reasoning after Ghaidan v Mendoza", in Fenwick, Phillipson and Masterman (eds), Judicial Reasoning under the UK Human Rights Act (2007) 114 at 140. ↑

Lindell, "The statutory protection of rights and parliamentary sovereignty: Guidance from the United Kingdom?" (2006) 17 Public Law Review 188 at 203 (emphasis omitted); see also at 189. See also Lindell, "Invalidity, Disapplication and the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the European Communities Act and the Human Rights Act" (1999) 2 Cambridge Yearbook of European Legal Studies 399 at 414. ↑

Kavanagh, "Unlocking the Human Rights Act: The 'Radical' Approach to Section 3(1) Revisited" [2005] European Human Rights Law Review 259 at 267, citing Bell and Engle (eds), Cross on Statutory Interpretation, 3rd ed (1995) at 93. ↑

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [70], citing Institute of Patent Agents v Lockwood [1894] AC 347 at 360. ↑

Gledhill, "Rights-Promoting Statutory Interpretive Obligations and the 'Principle' of Legality", in Meagher and Groves (eds), The Principle of Legality in Australia and New Zealand (2017) 93 at 111. See also Australian Capital Territory, Legislative Assembly, Human Rights Amendment Bill 2007, Explanatory Statement, cl 5. ↑

Charter of Human Rights and Responsibilities, s 28(3)(b). ↑

Pidoto v Victoria (1943) 68 CLR 87 at 110-111. ↑

[2005] 1 WLR 1718 at 1723 [17]; [2006] 1 All ER 529 at 535. ↑

Human Rights Consultation Committee, Rights, Responsibilities and Respect (2005) at 82-83. ↑

Vidal-Hall v Google Inc [2016] QB 1003 at 1040 [90]. ↑

Ghaidan v Godin-Mendoza [2004] 2 AC 557 at 601 [121]. ↑

Sales, "A Comparison of the Principle of Legality and Section 3 of the Human Rights Act 1998" (2009) 125 Law Quarterly Review 598 at 609. ↑

Ghaidan v Godin-Mendoza [2004] 2 AC 557 at 574-575 [45], 599 [118]. See Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135, particularly at 4159 [8]. ↑

See also Alec (a pseudonym) v The King (2023) 72 VR 161 at 166 [27]. ↑

Hogan v Hinch (2011) 243 CLR 506 at 533 [24], citing Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55, 57, John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 477, and "Mr C" (1993) 67 A Crim R 562 at 563. ↑

See Criminal Procedure Act 2009 (Vic), s 158. ↑

Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350-351, quoting R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 127. ↑

Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450. See also Ex parte The Queensland Law Society Inc [1984] 1 Qd R 166 at 170; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 476-477; Nine Network Australia Pty Ltd v McGregor SM (2004) 14 NTLR 24 at 30-31 [19]; Hogan v Hinch (2011) 243 CLR 506 at 534 [26]; Rinehart v Welker (2011) 93 NSWLR 311 at 320-321 [27]-[31]; Deputy Commissioner of Taxation v Karas (2011) 83 ATR 879 at 881 [4]. ↑

Criminal Procedure Act 2009 (Vic), ss 370, 372. See also ss 360(a), 360(c), 365(1). ↑

Kavanagh, Constitutional Review under the UK Human Rights Act (2009) at 353, referring to Feldman, "The Impact of Human Rights on the UK Legislative Process" (2004) 25 Statute Law Review 91 at 102 and Waldron, "The Core of the Case Against Judicial Review" (2006) 115 Yale Law Journal 1346 at 1370. ↑

Victoria, Legislative Assembly, Charter of Human Rights and Responsibilities Bill 2006, Explanatory Memorandum at 18. ↑

Wilson v R [2016] 1 NZLR 705 at 720 [34]-[35]. ↑

Charter of Human Rights and Responsibilities, s 28. ↑

Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 13 December 2017 at 4355. ↑

Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 13 December 2017 at 4356. ↑

Director of Public Prosecutions v Smith [2023] VSCA 293 at [54]. ↑

Justice Legislation Amendment (Victims) Act 2018(Vic)

Charter of Human Rights and Responsibilities Act 2006(Vic)

Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022(Vic)

See Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022(Vic)

See Criminal Procedure Act 2009(Vic)

See Evidence Act 2008(Vic)

Did the meeting infringe the principles of open justice as identified in Alec (a pseudonym) v The King [2023] VSCA 208?

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (178 paragraphs)

Parties

Legislation Cited (21)

Cases Cited (58)

Cited By (2)