After Smith was charged with child sex offences, the judge convened a ‘ground rules hearing’ from which Smith was excluded12. He argued that this infringed his right to a fair and public hearing. This was rejected. It was held there is no absolute rule that an accused must be present throughout their trial.
One issue was the effect of the human rights charter13 on the ‘ground rules hearing’ provisions. All Victorian laws are to be read in a way compatible with the charter. Where more than one view is open, the one compatible with the charter is preferred14. The charter, however, ‘does not authorise a court to do anything which it cannot already do’15.
This principle is from Episode 113 of interpretation NOW!
Footnotes:
12 s 389E(1) of the Criminal Procedure Act 2009 (Vic).
13 Charter of Human Rights and Responsibilities (Vic), cf Episode 107.
14 Plurality [57], R v DA (2016) 263 A Crim R 429 [44] cited.
15 Plurality [60], Momcilovic [2011] HCA 34 [18] quoted.