A private meeting between judge and complainant a miscarriage of justice

A recent Court of Appeal decision highlights the importance of transparency and fairness in the administration of justice.

On 5th September 2023, the Court of Appeal, presided over by Priest J JA, Walker J JA, and Taylor J JA, granted an appeal in the case of Alec (a pseudonym) v The King [2023] VSCA 208. The court found that a substantial miscarriage of justice had occurred due to a private meeting between the judge and the complainant during a special hearing known as a ‘ground rules hearing’. This irregularity led to the court setting aside the convictions and ordering a new trial.

The case revolved around the applicant, Alec, who was tried in the County Court for sexual offences against his stepson, TB. The alleged offences, which included instances of oral and anal rape, were reported to have occurred during a camping trip in 2016 when TB was aged 10. The prosecution presented evidence of Alec’s occasional physical abuse towards TB to explain the delay in reporting and TB’s submission to Alec. Alec was found guilty of committing an indecent act with a child under the age of 16 (six charges) and incest (eight charges). He was sentenced to a total effective sentence of 14 years’ imprisonment, with a non-parole period of 9 years and 9 months. Alec subsequently filed applications for leave to appeal against both conviction and sentence.

The court found that a substantial miscarriage of justice had indeed occurred due to the private meeting between the judge and the complainant during the special hearing. This was deemed a fundamental irregularity that tainted the process by which the complainant came to give evidence at the special hearing. The court held that the administration of justice must not take place behind closed doors and that open justice promotes the rule of law and mitigates against the erosion of public confidence in the administration of justice.

Decision 

The court granted leave to appeal, allowed the appeal, set aside the convictions, and ordered a new trial.