Balancing Fair Trials and Witness Support in Sexual Offence Proceedings
Recent High Court authority has highlighted an important tension in modern criminal trials: the need to ensure a fair trial for an accused person, while also supporting complainants to give their best evidence in court.
The decision in Director of Public Prosecutions v Smith [2024] HCA 32 raises significant questions about how far courts can go in accommodating vulnerable witnesses without compromising the principles of open justice and procedural fairness.
The Principle of Open Justice
As Lord Hewart famously stated in R v Sussex Justices; Ex parte McCarthy:
“It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
This principle sits at the heart of the criminal justice system. It requires that court processes remain transparent, fair, and accessible to all parties — including the accused.
The High Court Decision in DPP v Smith
In September 2024, the High Court considered an appeal by the Victorian Director of Public Prosecutions following a Court of Appeal decision that had set aside convictions in a sexual offence trial.
The issue arose from a meeting between a judge and a complainant during proceedings. The meeting was attended by counsel and conducted to support the complainant in giving evidence.
The Court of Appeal had previously found that this amounted to a fundamental irregularity requiring the trial to be redone before a different judge.
The High Court disagreed.
Key Findings of the High Court
The majority held that:
The meeting was authorised under section 389E of the Criminal Procedure Act 2009 (Vic)
The provision permits directions for the fair and efficient conduct of proceedings
The meeting did not constitute a “hearing” in the legal sense
The procedure did not automatically result in unfairness or a miscarriage of justice
The Court also emphasised that modern criminal procedure must be interpreted consistently with human rights considerations, including those under the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Edelman J’s Separate View
Edelman J took a different analytical approach.
His Honour considered that:
The meeting did fall within the concept of a “hearing”
It was therefore procedurally irregular
However, it was not a fundamental irregularity
As a result, the appeal was still allowed
His Honour observed:
“Whether it would be wise for such directions to be given is another question.”
This distinction is important. While lawful, such practices may still raise concerns about fairness in complex criminal trials.
Fair Trial Rights vs Witness Support
The case highlights a developing tension in criminal procedure:
Ensuring complainants are supported when giving evidence
Maintaining the accused’s right to participate fully in their trial
Preserving the integrity and transparency of the judicial process
Courts have increasingly adopted measures such as:
Ground rules hearings
Intermediary witnesses
Remote or pre-recorded evidence
Special hearings in sexual offence matters
These reforms are designed to reduce trauma for witnesses, particularly in sexual offence cases. However, they must still operate within the boundaries of procedural fairness.
The Legal Context: Section 389E
Section 389E of the Criminal Procedure Act 2009 (Vic) allows courts to make directions for the fair and efficient conduct of proceedings.
The High Court confirmed that this discretion may, in appropriate cases, extend to facilitating structured communication with witnesses — provided it does not compromise fairness to the accused.
Why This Decision Matters
The decision in DPP v Smith reinforces that:
Fair trial rights remain central to criminal proceedings
Procedural innovation must still comply with legal safeguards
Informal or support-based judicial interactions may still raise appellate scrutiny
It also signals that modern trial management practices will continue to evolve, particularly in sexual offence cases where witness vulnerability is a key concern.
Practical Implications for Criminal Defence
For defence practitioners, the decision underscores the importance of:
Carefully scrutinising trial procedure and case management directions
Objecting where procedural fairness may be compromised
Ensuring the accused’s right to participate in all aspects of the trial is preserved
Monitoring evolving practices in sexual offence case management
Even well-intentioned procedural adaptations must be assessed through the lens of fairness and equality before the law.
Conclusion: Maintaining Balance in Modern Criminal Trials
The High Court’s decision reflects a broader shift in criminal procedure — one that seeks to balance competing interests within the justice system.
While witness support measures are an important feature of modern trials, they must operate within clear legal boundaries that preserve the accused’s right to a fair hearing.
As courts continue to refine these processes, careful legal scrutiny remains essential to ensure that fairness is not compromised in pursuit of efficiency or witness comfort.
Speak to a Criminal Lawyer in Melbourne
If you are involved in a sexual offence matter or complex criminal proceeding, obtaining early legal advice is critical to protecting your rights throughout the process.
Experienced criminal lawyers at Stary Norton Halphen & Galbally can provide strategic guidance on procedure, evidence, and trial fairness issues.
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