Meetings between counsel and the trial judge in chambers during a criminal trial, even for seemingly minor procedural matters, may constitute 'proceedings' under s 88 of the Criminal Procedure Act 2004 (WA) requiring the accused's presence. The question whether such meetings are permissible in the absence of the accused remains unresolved but is identified as a real question with reasonable prospects of success on appeal. Prosecution non-disclosure of additional evidentiary material under s 95(9)(b) of the Criminal Procedure Act, even if not deliberate, may ground an appeal, particularly where the question of whether the error led to a substantial miscarriage of justice turns on the application of the proviso.
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