Criminal law
Introductory meeting – risk of irregularity – miscarriage of justice
In Director of Public Prosecutions v Smith [2024] HCA 32 (11 September 2024), the High Court allowed an appeal from the Court of Appeal of the Supreme Court of Victoria.
The accused was charged with three offences of sexual assault of a child under 16 years pursuant to s49D(1) and one offence of sexual penetration of a child under 16 years pursuant to s49B(1) of the Crimes Act 1958 (Vic). The accused indicated that he would enter a plea of not guilty.
The complainant was a minor and an intermediary was appointed under s389J(1) of the Criminal Procedure Act 2009 (Vic) (Criminal Procedure Act). The intermediary prepared a report that recommended a meeting between the judge and complainant take place prior to giving evidence at a special hearing, to assist the complainant’s confidence. There was no objection from counsel for the accused to this proposal.
Prior to the special hearing, the judge met with the complainant along with counsel for the prosecution and counsel for the accused at the office of the Child Witness Service. The accused was not present, and the private meeting was not recorded.
Following the special hearing, the Court of Appeal of the Supreme Court of Victoria published reasons for judgment in the matter of Alec (a pseudonym) v the King (2023) 72 VR 161. In Alec, the trial judge met with the witness privately without the presence of counsel for the parties or the accused. The Court of Appeal set aside a conviction and ordered a retrial on the basis that there had been a substantial miscarriage of justice as a result of an error or irregularity pursuant to 276(1)(b) of the Criminal Procedure Act. The trial judge in Alec had met with the witness privately.
Counsel for the accused in Smith submitted that the recording of the special hearing was inadmissible in light of the decision in Alec. The prosecution submitted that, given counsel for both accused and prosecution were present, the recording of the special hearing was admissible and applied for the County Court of Victoria to reserve a question of law arising before the trial for determination by the Court of Appeal. The Court of Appeal answered that the private meeting infringed on the principle of open justice in Alec. The prosecution then appealed to the High Court, and the majority held: “. . . the issue is not lack of power, but (as the reasoning in Alec correctly exposes) the apprehension of bias that ordinarily would arise if a judge met a witness in the absence of legal representatives for all parties” (at [83]).
On the question of whether the private meeting represented a fundamental irregularity constituting a serious departure from the trial process, the majority held:
“In these circumstances it cannot be said that a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of any question the judge is required to decide in the criminal proceeding.” (at [95])
Edelman J, in minority, rejected that s389E(1) empowered the court to direct that a private meeting take place excluding the accused and stated that the decision conferred, “. . . 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” (at [167]).
Contract law
Construction – condition precedent
In Attorney-General (Tas) v Casimaty [2024] HCA 31, the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of Tasmania with costs. The question before the court was whether a condition precedent gave rise to an obligation enforceable by a court.
Section 16(1) of the Public Works Committee Act 1914 (Tas) (Act) stipulates a condition precedent to public works to be undertaken by the state government department or authority – in this case, the Parliamentary Standing Committee on Public Works, a Joint Committee of Members of the Legislative Council and House of Assembly.
In 2017, the Tasmanian government’s Department of State Growth proposed a new interchange near the Hobart Airport, which was referred to and reported on by the committee. The Department of State Growth then retained Hazell Bros. Group to construct the interchange. Casimaty claims an interest in land adjacent to the site.
In 2020, Casimaty commenced proceedings in the Supreme Court of Victoria arguing that the condition precedent had not been met and seeking an injunction restraining the construction until it was. The basis for the claim in summary was that the approved construction differed from the proposal Hazell Bros. were engaged to implement on the cost of construction, being $46 million estimated rather than $28.08 million to $29.99 million, and that the final plans differed.
The Attorney-General of Tasmania was joined as a party and sought orders to strike out the claim and otherwise dismiss the proceedings. The matter was heard by Blow CJ, who dismissed the proceedings.
Casimaty successfully appealed to the Full Court of the Supreme Court. The Attorney-General successfully appealed to the High Court.
The High Court looked at the origins of the Act in the Public Works Act 1888 (NSW) and the purpose behind it “. . . to ensure that members should have needful information on public works proposals” (at [15]).
The majority held that, on its proper construction, s16(1) of the Act did not create a condition precedent that is enforceable by a court:
“The consequence of non‑compliance is political, such that compliance is to be enforceable by the House of Assembly and the Legislative Council, not legal, such that compliance is to be enforceable by a court.” (at [40])
The majority gave two further reasons: the traditional view that courts should not interfere with parliament and the inconvenience to private contractors who are tasked with carrying out these types of public works and the public (at [43]).
Criminal law
Evidence – public interest immunity – adequate reasons for decision
In Chief Commissioner of Police v Crupi [2024] HCA 34, the High Court granted special leave, allowed an appeal and remitted the matter to the Supreme Court of Victoria for determination.
Pursuant to s130 of the Evidence Act 2008, a court may direct that evidence is not to be adduced if the public interest in admitting into evidence information that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality. This applies to information and to documents.
The accused was charged with the murder of Giuseppe “Pino” Acquaro, a solicitor, in 2016. Mr Acquaro had provided information to police. It was likely at trial that the accused would argue that there were other parties that had a motive to kill Mr Acquaro. There were a substantial number of documents disclosed by the Chief Commissioner. However, the Chief Commissioner claimed public interest immunity (PII) over around 600 pages of documents on the basis that their disclosure could reveal the identity of an informer, Informer Z. The primary judge rejected the claim for PII and ordered that, aside for some documents to be provided redacted, the documents were to be disclosed in full.
The primary judge gave very brief reasons for rejecting the claim for PII. The reasons did not disclose the process of weighing the competing public interest for and against, and are set out in the High Court judgment:
“I am persuaded by the written submissions and the oral submissions of the amici that in relation to [Informer Z] that there is good reason to think that should that information . . . be disclosed to the defence, that it may be of substantial assistance to the defence in the conduct of their case.” (at [5])
The High Court cited the observations in AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58, that the requirement to give publicly available reasons in these matters needs to be balanced, “. . . and an extremely weighty consideration in that exercise is whether the material sought to be disclosed has any tendency to reveal the identity of a police informer, especially in circumstances where there is a risk to the informer’s safety from disclosure” (at [20]).
The High Court held that the primary judge also had a duty beyond giving reasons relating to the weighing exercise to set out what documents could be disclosed and in what form, that is redacted or otherwise, that “. . . there would still need to be a separate document by document (or class of document by class of document) analysis undertaken as to what documents were required to be produced and in what form” (at [24]).
