R v Benbrika (Ruling no 20)
[2008] VSC 80
•20 March 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1544 of 2006
| THE QUEEN |
| v |
| ABDUL NACER BENBRIKA, AIMEN JOUD, SHANE KENT, FADL SAYADI, HANY TAHA, ABDULLAH MERHI, BASSAM RAAD, AHMED RAAD, SHOUE HAMMOUD, EZZIT RAAD, MAJED RAAD, and AMER HADDARA |
---
JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 February, 3 and 4 March 2008 | |
DATE OF RULING: | 20 March 2008 | |
CASE MAY BE CITED AS: | R v Benbrika and ors (Ruling No. 20) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 80 | Revised 9 December 2008 |
---
CRIMINAL LAW – Fair trial – Conditions of incarceration and transportation of accused – Effect on psychological and physical health – Effect on fairness of trial – Trial running – Application for stay of proceedings – Fragmentation of criminal process – Exception – Conditional stay of trial – Appearances by audio visual link – ss 42K (2), 42M (2) of
Part IIA Evidence Act 1958 (Vic).
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Maidment SC and Mr N Robinson SC with Mr D Lane and Ms L Taylor | Commonwealth DPP |
| For the Accused Benbrika | Mr R Van de Wiel QC with Mr A Halphen | Doogue & O’Brien |
| For the Accused Joud | Mr T E Wraight | Lethbridges |
| For the Accused Kent | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Sayadi | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Taha | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Merhi | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Bassam Raad | Mr B Lindner | Revill & Papa Lawyers |
| For the Accused Ahmed Raad | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| For the Accused Hammoud | Mr D Brustman | Victoria Legal Aid |
| For the Accused Ezzit Raad | Mr G Barns | Slades & Parsons |
| For the Accused Majed Raad | Mr GP Mullaly | Slades & Parsons |
| For the Accused Haddara | Mr J H Kennan SC with Mr P Doyle | Robert Stary & Associates |
| By leave for the Secretary of the Department of Justice intervening | Dr D Neal SC | Corrections Victoria |
HIS HONOUR:
The accused in this case, 12 in number, have been indicted by the Commonwealth Director of Public Prosecutions on a total of 13 counts alleging breaches of that part of the Commonwealth Criminal Code concerned with proscribing activity associated with terrorism. They have all pleaded not guilty and are currently standing trial before a jury in this Court. They were all arrested between about November 2005 and March 2006 and have been in custody since that time. Bail applications by some of them failed for want of the “exceptional circumstances” required by s 15AA of the Crimes Act 1914 (Cth). As a result, all of them have been in custody for at least two years as at this date.
Preliminary arguments in respect of various matters were heard and determined between about November 2006 and the end of 2007. A large number of rulings, some extensive, many relatively short, have been given. During this period the Court did not sit exclusively on this case. There were many, sometimes lengthy, periods when it was engaged in other matters. The accused were excused from attendance in court during most of these preliminary arguments although some chose to attend from time to time. The time taken to dispose of the preliminary matters was not lengthened by any action of any of the accused, their counsel or of the Crown. In fact, generally, the time taken by the parties in Court and outside Court was well spent and resulted in a large measure of agreement between the Crown and the defence Bar on many issues. These agreements have resulted in the undoubted shortening and smooth running of the current trial.
The trial itself commenced with the empanelment of the jury between 4 and 8 February 2008. The Crown commenced its opening on 13 February and since 4 March evidence in support of the prosecution case has been led. All 12 accused, by their counsel, made opening statements. Apart from a number of unavoidable interruptions, including the hearing of this stay application which commenced on 29 February, the trial has proceeded on all court days since it commenced.
The predicted length of this trial, if it runs to a conclusion, is between six and nine months although Mr Maidment SC, the leading prosecutor, has optimistically suggested that this might be an overestimate. The usual difficulty of accurate trial length estimation is exacerbated in this case by the number of accused and the size and breadth of the Crown case which, all other things aside, involves the production before the jury of about 480 intercepted conversations, usually between the accused but also sometimes involving others.
Shortly after the trial commenced, on 18 February 2008, Mr McMahon, counsel for Ahmed Raad, foreshadowed this application to stay the trial on the ground that it was unfair because of the general circumstances in which the accused were being held at HM Prison Barwon and the way they were transported to Court each day. He said that the prevailing situation was having a detrimental effect on the psychological and physical wellbeing of the accused, particularly upon his client, Ahmed Raad. He said his client was falling asleep and could not give proper attention to the proceeding.
Although no written application was filed, on 27 February and the following days a number of affidavits were filed on behalf of various of the accused in anticipation of an oral application which was made on 29 February by Mr JH Kennan SC who was specially retained, with Mr P Doyle, on behalf of the accused Kent, Haddara, Merhi, Ahmed Raad, Sayadi and Taha. In due course counsel for all other accused joined in the application, relying for the most part on Mr Kennan’s arguments. The affidavits originally filed in support of the stay application by Fiona Todd (21 February 2008 and two on 26 February 2008), Michelle Mykytowycz (two on 21 February 2008), Elizabeth Jean McKenzie (25 February 2008) and Andrew Papadimitroupoulos (26 February 2008) were not read by Mr Kennan or any other counsel on behalf of any of the accused. They were in fact largely inadmissible as being hearsay, containing opinions and expressing inadmissible conclusions concerning the accused. Upon the Crown taking appropriate objections neither Mr Kennan nor any other counsel pressed their admissibility and did not seek to rely on them.
Mr Kennan, initially at least, sought to characterise this application as a continuation of a stay application which had been commenced in March 2007 based upon the conditions under which the accused were then being held at HM Prison Barwon. That application, which also relied upon the imposition of prejudicial in-court security upon the accused, was dealt with by the Court, as far as it needed to be, in a published ruling on 12 December 2007.[1] That ruling dealt only with the issue of in-court security. All other matters concerned with the accused had been the subject of at least partial agreement between the accuseds’ lawyers and Corrections Victoria, the unit of the Department of Justice charged with carrying out the statutory obligations of the Secretary of that department and, presumably, the constitutional obligations of the State of Victoria imposed upon it by s 120 of the Australian Constitution.
[1][2007] VSC 524.
As noted in the Court’s ruling of 12 December 2007 the nature and extent of any agreement which was reached between Corrections Victoria and the accused was never communicated to the Court, although it was always clear that full agreement was never reached on what are now contended by the accused to be serious obstacles in the way of their getting a fair trial on the indictment filed against them.
Dr David Neal SC sought and was granted leave to appear and intervene on behalf of Corrections Victoria on this application. On reflection, it should have been the Secretary of the Department of Justice who sought such leave as she is the person legally charged with the custody of the accused. The difference is one of form rather than substance and accordingly need not be of any further concern. There was no objection to Corrections Victoria’s intervention in the matter. Indeed had affidavits not been filed on its behalf there would have been no evidence as to the accuseds’ conditions of incarceration and transport or of a number of other matters central to this application. An order will be made in due course granting leave to intervene in this application by the Secretary of the Department of Justice.
Whether this application is a continuation of the March 2007 application or is, in reality, a new application matters little. What is important is a proper identification of the material upon which the Court is being moved to grant the relief which all the accused now seek. Mr Kennan, accordingly, detailed the evidence upon which he relied as being an affidavit of David Maxwell Prideaux sworn 28 February 2008, an affidavit of Steven Nicholas Aird sworn on the same date, and a transcript of evidence given before the Melbourne Magistrates’ Court on 26 October 2006 by Dr Douglas Bell, a consultant psychiatrist, upon a bail application by the accused Abdullah Merhi. This transcript was admitted by consent.
Subsequently, Mr Kennan called oral evidence from Dr Bell as well as from Dr Amanda Silcock, an occupational physician, Ms Helen Eliza Leeson, a psychiatric nurse, and Dr Adam Deacon, another psychiatrist. He also cross-examined Mr Prideaux and Mr Roderick Wise, the deponent of another affidavit also sworn on 28 February 2008 filed on behalf of Corrections Victoria.
Dr Neal read Mr Wise’s affidavit and also that of Michael Francis Carroll also sworn on 28 February 2008. He called no oral evidence. The Commonwealth Director of Public Prosecutions on behalf of the Crown filed no affidavits and called no oral evidence.
Mr Kennan articulated his case in the following terms:
… The totality of the conditions in which the accused are labouring under for the purpose of this trial fall well short of what are recognised, internationally at least, and ought to be recognised in Victoria, as the standards for a fair trial and … we want to put a generic argument in relation to that …
...
We say it’s an objective test, that an ordinary person would have, by reason of the confinement and the transport and so on, a lowered physical and mental resistance to face the trial (which is then) not a fair trial.
Mr Kennan’s submissions commenced with a review of some Australian decisions concerning the right to a fair trial. He referred to R v Carroll[2] in which the High Court considered oppression or abuse of process in the context of double jeopardy and DPP v Shirvanian[3] where the New South Wales Court of Appeal considered whether a magistrate had jurisdiction (scil. power) to order a permanent stay where a prosecutor had laid a charge of “goods in custody” in circumstances where the accused had been acquitted of larceny and receiving in respect of the same property.
[2](2002) 213 CLR 635.
[3](1998) 44 NSWLR 129; 102 A Crim R 180.
Mr Kennan submitted that the common law acknowledged that the accused had a right to a fair trial, citing Dietrich v The Queen[4] as authority for that proposition. He also referred to a recent decision of a single judge of this Court, Ragg v Magistrates’ Court of Victoria,[5] the International Covenant on Civil and Political Rights, and a number of European and English cases mainly concerned with human rights legislation and public international law treaties. He submitted that this Victorian case and the ICCPR reinforced or “underlined” the propositions for which he contended. As will become clear the law relating to the so-called right to a fair trial has been stated and developed by the High Court in a number of cases in recent times such as Barton v The Queen[6], Jago v District Court of NSW[7], Glennon v The Queen[8], Dietrich v The Queen[9], and Carrol v The Queen.[10] There is, accordingly, no need here for an examination of Ragg or the application of the principles of the ICCPR in this case. With respect to the latter Mr Kennan placed much emphasis on the principle of “equality of arms” between the Crown and the accused. In the circumstances there is no need to examine this concept further to determine the question now before the Court.
[4] (1992) 177 CLR 292.
[5] [2008] VSC 1.
[6] (1980) 147 CLR 75.
[7] (1989) 168 CLR 23.
[8] (1992) 173 CLR 592.
[9] (1992) 177 CLR 292.
[10] (2002) 213 CLR 635.
Mr Kennan also raised the question of the applicability of the Charter of Human Rights and Responsibilities to his clients’ situation. However, after some argument, it became clear that any attempted reliance upon the provisions of the Charter concerning a fair trial faced a number of obstacles. First, it was only barely arguable that the Charter would apply of its own force to this case having regard to the transitional provision contained in s 49(2). Unless a somewhat strained meaning was attributed to the word “proceeding” this proceeding, of which the accuseds’ trial is a part, commenced well before the commencement of Part 2 of the Charter - possibly more than a year before. The accused were originally arraigned on 18 December 2006. Even if the indictment filed that day was subsequently amended and eventually replaced by another version which was “filed over,” as the common Victorian expression has it, the accuseds’ trial actually commenced in December 2006: R v Talia;[11] R v Symons,[12] although in England the situation may have been otherwise: R v Tonner;[13] R v Vickers.[14]
[11][1996] 1 VR 462 at 471.
[12][1981] VR 297.
[13][1985] 1 All ER 807.
[14][1975] 2 All ER 945.
Secondly, any attempt at reliance on the Charter would necessarily require compliance with s 35(1)(a), which concerns the giving of notice to the Attorney‑General and the Equal Opportunity and Human Rights Commission of a question of law relating to the application of the Charter. Compliance with this provision would, of necessity, involve delay – perhaps considerable delay – which in the context of an application such as this would be at least inconvenient and perhaps even intolerable.
Section 35 of the Charter contains no severance provision, nor does it contain any urgency exception such as are found in s 78B of the Judiciary Act 1903 (Cth). These are major impediments to the smooth operation of the Charter which need the urgent attention of the Legislature. The section needs to preserve a residual discretion in the judge to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason. This is, for obvious reasons, particularly important in criminal proceedings. Without such a power there is a real danger that the notice provisions of the Charter will be used to delay or even disrupt the orderly conduct of criminal trials.
Thirdly, any attempt to apply the Charter to a trial in federal jurisdiction, as this trial is, may well raise questions which require the issue of notices to all State Attorneys‑General and the Federal Attorney‑General pursuant to s 78B of the Judiciary Act 1903 (Cth) – another source of potential delay to the trial.
Confronted with these difficulties Mr Kennan abandoned reliance on the fair trial provisions of the Charter whilst continuing to maintain that s 22 applied to Corrections Victoria in its capacity as the accuseds’ custodian. No notice of this contention was given pursuant to s 35, but this omission is of no consequence. This application will be determined without the necessity for reference to the Charter at all.
The Crown responded to the accuseds’ application by arguing that it constituted an unjustifiable fragmentation of the criminal process, and, accordingly, should not be entertained by the Court. It referred to Atlas v Director of Public Prosecutions.[15]
[15](2001) 3 VR 211.
That case was concerned with the resort to judicial review by an accused in a criminal prosecution to review a decision of the trial judge to deny him the right to inspect documents produced on subpoena. Fragmentation of the criminal process was caused by the trial judge’s acquiescence in the accused’s application for an adjournment to test his ruling as to the subpoenaed documents in this Court. That such a course should not be permitted except in “most exceptional” or “exceptional” circumstances or for some “special reason” is now beyond argument: Anderson v Attorney‑General;[16] Sanky v Whitlam.[17] See also Bacon v Rose;[18] Bourke v Hamilton;[19] Barton v The Queen;[20] and Lamb v Moss.[21]
[16](1987) 10 NSWLR 198 at 200 per Kirby P.
[17](1978) 142 CLR at 25 per Gibbs ACJ; at 82 per Mason J.
[18][1972] 2 NSWLR 793.
[19](1977) 1 NSWLR 470.
[20](1980) 147 CLR 75.
[21](1983) 49 ALR 533.
This case is distinguishable from Atlas and the cases cited above on at least two bases. First, the accused have made this application in the course of this trial, to the trial judge. There has been no resort to civil process – either judicial review or an action for a declaration. Secondly, if the accused establish that they are entitled to a stay of their trial, whether absolute or conditional, they will have established an exceptional circumstance which would justify an interruption to the criminal process. Thus, the ordinary disinclination of a court to facilitate an application which will have the effect of fragmenting the criminal process gives way here to the imperative of determining whether a current trial is being conducted unfairly to the accused.
This is not to say that the mere allegation that a current trial is unfair will result in the trial being disrupted to determine the allegation. A clearly vexatious, trivial or frivolous application would require summary determination without affecting the smooth running of the trial. Even where, as here, a serious allegation clearly not devoid of merit is made by responsible counsel the court can arrange to hear the application with as little disruption to the trial proceeding before the jury as possible – even by sitting outside normal court hours to do so if necessary.
The Crown also criticises the failure of the accused to bring this stay application before the trial proper commenced before the jury. Whilst it is true that all the accused have had access to Dr Bell’s opinion as to their conditions of incarceration for some time and could have brought this application on proper material earlier, the Court is aware that there were ongoing discussions between Corrections Victoria and the accuseds’ lawyers concerning the conditions of their incarceration, their method of travelling to court and other matters in an effort to resolve these issues without recourse to the Court. In the circumstances the accused have not acted unreasonably in bringing the application when they did. In any event, even if they ought to have acted earlier, if their trial is in fact unfair the fact that they did not act as early as they might have cannot deprive them of relief to which they are now entitled.
All of the accused have been in custody now for two years or more. That of itself is unsatisfactory. If it could be justified in this case such justification must be found in the novelty and complexity of the case against them, the quantity of evidence to be prepared and documented in admissible form and the unusually large number of accused involved. The legislation under which the charges against the accused are brought is itself extremely complex. Thus the task of investigators and prosecutors has been onerous and time consuming, that of defence counsel and solicitors hardly less so.
If the trial runs to its conclusion without major interruption and the accused are not granted bail, they will have spent close to three years in custody before the case against them is finalised. The case of the accused on this application must be seen in the light of these facts and this prediction that, as matters are at present, their custodial circumstances will not change for some time yet.
Virtually since their arrest the accused have been held in the Acacia Unit of HM Prison Barwon, a maximum security prison situated at Lara, about 60 kilometres or so south‑west of Melbourne. Acacia Unit is one of the two highest security custodial facilities in the Victorian prison system. It was purpose built as a high security facility for sentenced prisoners, not prisoners on remand.
I have visited Acacia, most recently on 17 January 2008. I did this so as to more easily understand evidence which might be given on an application such as this which, for some time, I have regarded as highly likely to be made.
The conditions of the accuseds’ incarceration in Acacia have varied over time. Prior to March 2007, that is to say for the first year or so that they were there, they spent very long periods in their cells each day – up to 23 hours. They had very severe restrictions on receiving visitors and other restrictions which, they claimed, hampered the preparation of their defences to the charges which they faced. A stay application in March 2007 was not pressed when discussions between their lawyers and Corrections Victoria led to changes being made to some of their conditions. There were also, it would seem, some further concessions made even after that time. Indeed, in his affidavit of 28 February 2008 Mr David Prideaux, the general manager of HM Prison Barwon, referred to a concession made as late as February 2008 to allow the accused more time out of their cells on court days than what he said was “usual”.
The history of the accuseds’ incarceration and their conditions in Acacia up to the present is now only peripherally relevant to this application although, of course, it must be borne in mind that any adverse affects which the accused are currently suffering on their capacity to take part in their trial properly must be seen as cumulative upon the effects of two years’ incarceration in the most austere conditions in the Victorian prison system.
Mr Kennan accepted that the accuseds’ present conditions are as set out in Mr Prideaux’ affidavit. They are housed in single cells and are permitted, when out of their cells, to mix in groups of three. When out of their cells they have access to fully enclosed exercise yards, some of which have gymnasium or similar equipment. Once a fortnight they are permitted to cook their own food, again, presumably, in groups of three. In his affidavit and in cross-examination by Mr Kennan, Mr Prideaux described the accuseds’ routine whilst they were attending court during their trial. He said that they were woken shortly before 6.00 am and offered breakfast. Some did not eat any breakfast but he did not know why. Specifically, he did not know whether they were concerned about motion sickness whilst in transit to Court. They are not permitted to have paper bags whilst in transit and, in any event, could not use them in the event of nausea because of their handcuffs which are connected closely to their waist belts. Mr Prideaux said he had never received any report of any of the accused having vomited in a van.
Two vehicles are used to bring the accused to court, a large van with a capacity for about 20 prisoners and a smaller van which holds six. At about 6.50 am the process of loading the vans commences. This process includes a strip search of each accused, his change into clothes for court from his prison clothes, his being handcuffed and shackled and then being placed in the van. The handcuffs are connected to a waist belt and the shackles are chains which restrain the legs. The whole process takes about an hour, for some of which time some of the accused are seated in the van waiting for others.
The trip to court takes between about 65 minutes and 80 minutes although the volume of traffic, particularly on the West Gate Bridge, can extend the travelling time on some days by a considerable amount. Upon arrival at court, between about 8.50 am and 9.30 am, the accused are placed in cells in the court custody area until required to go to the court room. They have their restraints removed when they alight from the van. The loading of the vans takes place in a locked garage (called a sally port) accessible directly from the Acacia Unit. On arrival at court unloading takes places in a similar sally port. At no time are the accused in other than a highly secured area.
The vans in which the accused travel are divided into small box‑like steel compartments with padded steel seats. Each compartment holds one or two prisoners apart from one section of the larger van which holds a number of people. The compartments are lit only by artificial light. They are air conditioned by a unit controlled by one of the prison officers who travels in the driver’s compartment. The accused are under video surveillance at all times whilst in the van by that prison officer. The door of each compartment opens only to the outside of the van and is kept securely locked from the outside when any prisoner is within.
Mr Prideaux described the method by which the accused are strip searched. It is sufficient for present purposes to say that the procedure involves a prison officer inspecting the accuseds’ naked body as thoroughly as possible without actually conducting a body cavity inspection. The accused are subjected to this search twice a day – before leaving Acacia to go to court and upon their return. The same search procedure is followed before and after contact visits with relatives. Mr Prideaux said that as far as he knew nothing untoward had ever been discovered on any of the accused in the two years they have been in custody.
Mr Prideaux said that seven of the accused are on daily medication provided by the prison’s medical provider Pacific Shores Health Care. A nurse is available before the accused go to court each morning and a psychiatric nurse is in attendance at Acacia when they return. That nurse, Ms Leeson, gave evidence on this application which will be referred to subsequently.
On the return trip from court the accused usually arrive at Barwon between about 6.00 pm and 7.00 pm. They are then given an evening meal and, since last month, they have been allowed to remain out of their cells until 9.00 pm when they are locked in for the night. Their cells contain a shower and toilet and a television set.
An affidavit of Mr Steven Aird, also of 28 February 2008, also described in some detail the loading and travelling procedures for the accused when they are conveyed to court, the facilities on the transport vehicles and various other matters concerning their travelling to court. Mr Aird is the general manager of the Security and Emergency Services Group of Corrections Victoria. He referred to the prohibition on any accused carrying anything whilst being transported including a Ventolin inhaler. He said that Ventolin would be provided to any accused who required it upon the vehicle being stopped for the purpose at the request of an accused using an intercom. His affidavit also explained Corrections Victoria’s response to various complaints made by the accused during the time they have been travelling to court.
An affidavit of Mr Michael Carroll, the Assistant Commissioner, Offender Management Services, of Corrections Victoria was also sworn on 28 February 2008. It explains the security rating given to the accused, namely A1. Mr Carroll is responsible for that security rating and in his affidavit he set out the circumstances in which such a rating is considered to be appropriate. Those circumstances include the charges which the accused face and the fact that a court has refused bail!
Mr Carroll said that there were regular reviews of the accuseds’ status and that in January 2008 Ms Marlene Morison who was then the General Manager Sentence Management Unit of Corrections Victoria met with “the AFP”. He said that she discussed with them “information as to the charges and any new information that may have been arisen (sic)”. The accuseds’ security rating remained at A1 after Ms Morison’s review.
A second review process was described by Mr Carroll as having occurred in February 2008. On this occasion Ms Megan Bridgett, the Acting General Manager of the Major Offenders Unit, was the reviewing officer along with a panel of senior prison officers. Mr Carroll’s affidavit contained no information upon which either Ms Morison, Ms Bridgett or he acted in relation to the accuseds’ classification nor any factual material derived from the Australian Federal Police or anyone else which explains why they are classified as A1 – the highest security classification in the prison system.
The fourth affidavit filed by Corrections Victoria was that of Mr Roderick Wise, the Deputy Commissioner, Prisons and Transitional Services, of Corrections Victoria. It was also sworn on 28 February 2008. In his affidavit Mr Wise explained the set-up of maximum security prisons in Victoria. He says that at the time the accused were remanded in custody Acacia Unit was the only high security unit in the system. Given the accused’s classification this is the only place they could be accommodated.
Mr Wise’s affidavit deals with a number of options which have been considered for the accommodation of the accused as alternatives to HM Prison Barwon. Each of the options assumes the security status of the accused as being A1. All of them were considered inappropriate for various reasons except one. That involved utilising the Metropolitan Remand Centre for some accused during weekdays, returning them to HM Prison Barwon on weekends. Mr Wise said that this option was offered to the accuseds’ solicitors but none accepted it.
In his affidavit Mr Wise referred to strip searches and said that it might be possible to avoid strip searching the accused as often as they are searched at present when they have been under constant supervision and have only been in secure areas.
Cross-examined by Mr Kennan, Mr Wise said that Corrections Victoria is currently undertaking a study into the long term well-being of prisoners who are incarcerated in high security prisons.
The evidence placed before the Court by Mr Kennan consisted solely of medical opinion which, he submitted, established the proposition contended for by him that, having regard to the nature, complexity and length of the trial, that no‑one could be tried fairly on this indictment when they are being subjected to the regime of incarceration and travelling to which these accused are subjected.
He called Dr Amanda Silcock who described her post-graduate qualifications in occupational medicine and said that she worked as an occupational physician. She said that this entailed providing opinions as to fitness for occupations or duties. She visited Acacia Unit on 11 February 2008 to visit one of the accused, Ahmed Raad, in relation to a back injury of which he was complaining. She did not inspect Acacia Unit nor, on that day, the vehicles in which the accused travelled to court but she did inspect those vehicles in the precincts of the Court on the day she gave evidence.
Dr Silcock’s inspection of the prison vehicles involved her getting into each of the compartments and sitting down to determine how people would sit if they were travelling in that compartment. The doors of the compartments were kept open whilst she was inside.
Mr Kennan put the circumstances of the accuseds’ incarceration and travelling to Dr Silcock and asked her to give her opinion as to the impact on the physical and psychological functioning of someone subjected to such a regime. Dr Silcock said that as far as the physical aspect is concerned the accused had little or no time for physical exercise which itself could create a number of problems. She referred to back ache, neck ache, aches and pains in other joints and other consequences of lack of exercise. From a psychological point of view she said that she would expect people to become depressed, irritable and anxious as a result of such incarceration. In particular, Dr Silcock referred to fatigue. She said that the circumstances in which the accused found themselves could lead to fatigue which could play a major role in their response to their situation. She said it could have the same effect on an individual as being “over .05” so that reflexes, concentration and “ … all of that sort of thing can be quite markedly inhibited”.
Dr Silcock said that fatigue of the type she was describing would impair memory and concentration, lowering a person’s capacity to function, particularly if they had to perform complex tasks. People who are depressed or anxious often complain that they cannot remember things and, in the context of the accuseds’ case, she would expect that their capacity to absorb detailed evidence about a range of conversations and documents would be impaired.
Mr Kennan asked Dr Silcock as to how a person who performed an administrative job would be able to perform it if they were subjected to the regime of incarceration and travelling imposed upon the accused. She said that she would expect their work performance to be lower than it would normally be. It would be impaired. They would have difficulty, particularly if the tasks were complex and if they required having to make decisions about the task and “ … sort out what happened in what order, that sort of thing … “.
When asked as to the effect of the trial proceeding for a further six to nine months, Dr Silcock said:
I would expect that as time goes on things will probably gradually deteriorate because, you know, I would expect that the people concerned would become more depressed, more tired, more anxious and that their ability to deal with the whole aspect of the trial would become further impaired.
Cross-examined by Dr Neal, Dr Silcock said that exercise equipment would be of assistance to the accused if they in fact exercised, but that by the time they got back to the prison from court there would be little time to do so. She was shown photographs of the inside of the truck compartments and said that when she sat in the single compartment she was concerned that the guard might shut the door as, although she said she did not suffer from claustrophobia, she regarded the experience as “very claustrophobic”. She agreed that the compartments were not cramped but said there was “not a lot of room to move and you really have to be seated”.
Dr Silcock was cross-examined by Mr Maidment. She agreed that the accused could go to bed at 9.00 if they wished but that the stresses on prisoners such as the accused were somewhat different to that imposed on ordinary people. In re‑examination she said that she expected that travelling in the vans such as she inspected for long periods each day would have quite an impact because of anxiety. If they became anxious the accused would not be able to focus and process things, particularly in a complex situation.
Mr Kennan called Dr Douglas Bell, a forensic psychiatrist employed by Forensicare, the government provider of forensic psychiatric services. Dr Bell has been engaged in forensic psychiatry for about 13 years and is now the authorised psychiatrist at Forensicare. He is the Assistant Clinical Director of In‑Patient Operations of Forensicare, a role which he has had since 2001.
Dr Bell said he was familiar with Victorian prisons and that he had last been in Acacia towards the end of 2006 in relation to this case. It was after that visit that he gave evidence on a bail application concerning one of the accused to which reference has already been made. He said that he still held the views that he expressed in October 2006. At that time he said that Acacia was “…undoubtedly a very austere and restrictive regime that would be challenging to the most mentally able in the community.” Dr Bell expressed the opinion that although the conditions for the accused at Acacia had been ameliorated somewhat since his visit in 2006 in that at that time they were spending 22 or 23 hours a day in their cells and were now spending considerably less, he considered that the ordinary person could reasonably be expected to experience a very significant degree of psychological and emotional distress.
In reaching that conclusion Dr Bell included the transportation of the accused, their being shackled and their being strip-searched as significant matters which had to be taken into account. He said that it is more likely than not that an ordinary person in such circumstances would experience significant psychological and emotional difficulty. He found it difficult to quantify such difficulty because of the many factors which would impinge on a given individual. He summarised his opinion in the following terms:
It is my view that taking account of the likely duration of the trial, that not only is it more likely than not that they will experience significant difficulties, but that one can at least say that at some stage during the process, is likely to have a significant effect on things like the ability to concentrate, the ability to remember from day to day or week to week materials that are relevant to the proceedings to the extent that the accused experience significant levels of anxiety, of depression, of difficulties with sleep, of fatigue consequent on those things, without even beginning to talk about the possibility of the development of more serious specific psychiatric syndromes that would require their removal from Acacia Unit. It is my view that the cumulative burden of those difficulties would impact to a significant extent on the cognitive mental functions that are required to appropriately attend to a process that is as protracted and as complex as is the case in these proceedings.
Subsequently, Dr Bell related his opinion specifically to the question of the accuseds’ defence of the charges against them:
… It is my view that the factors that I have articulated can be reasonably be expected to significantly compromise the capacity of the ordinary person under such circumstances to attend to such complex material and appropriately process it in the way that is required to assist in their defence.
In reaching his conclusion, Dr Bell said that he considered the two years or so that the accused have already been in custody as significant, particularly with respect to their possibility of developing a severe depressive illness such as major depression which he described as more than a psychologically comprehensible response to circumstances which are distressing. He said it is an illness characterised by constant and ruminative preoccupation with pessimistic thoughts of hopelessness, futility, worthlessness or failure with perhaps suicidal thoughts. There may be pronounced biological disturbance such as disturbance of sleep, appetite and the like. He considered the effect of the accuseds’ situation to be cumulative and that there was a real and significant risk that an illness of this kind may develop.
Dr Bell referred to strip-searching. He said he thought:
… It is experienced as having a cumulative effect of making the person feel degraded and humiliated in a way that leads to the person wanting to avoid going out of the unit and to avoid having to have that sort of procedure done to them.
Dr Bell considered that fatigue, particularly when experienced over a protracted period such as the estimated length of this trial, would affect the ability of a person to think clearly and concentrate. He said it becomes increasingly difficult for a person to remain assertive and vigorous in the way that they attend to matters at hand. They develop more of a sense of futility and hopelessness.
Mr Kennan called Helen Eliza Leeson, a registered psychiatric nurse employed by Pacific Shores Health. She works at Barwon and has worked with the accused for virtually the whole period that they have been there on remand. Since the accused began going to court the prison authorities have put in place a system whereby Ms Leeson is on duty at Acacia when the accused return in the evening and remains there until they are locked in their cells. She described strip-searching as extremely humiliating for many people, leading to some prisoners refusing to have visits so that they did not have to undergo the procedure. She said that prisoners who suffer from motion sickness become anxious because they do not have anything to vomit into in a prison van. Many won’t have breakfast before they go to court because they don’t want to be or feel sick.
Ms Leeson described seeing the accused regularly upon their return from court. She described them as extremely tired or fatigued. They are worse as the week goes on although they look forward to the weekend on Friday. She said that when people are stressed or fatigued their concentration and memory lowers. Fatigue impacts negatively on their ability to focus, to concentrate and to stay awake.
Ms Leeson commented specifically on the capacity of the accused to cope if they had to give evidence. She said that in her experience people find giving evidence extremely difficult and when they are fatigued or stressed that difficulty is accentuated.
Under cross‑examination from Dr Neal, Ms Leeson said that having people in a group was undoubtedly a support for some of the accused and that the officers in Acacia are, on the whole, supportive and have gone out of their way to make sure that they can accommodate different out-of-cell hours which Corrections Victoria has organised. She said that she has observed interactions between the accused and officers in the Acacia Unit and that they have a “very free and easy relationship”.
The final witness was Adam Deacon, a psychiatrist employed by Forensicare, who has worked in prisons in Victoria since late 2005. He said that he had had some involvement with the majority of the accused at some stage in his capacity as the visiting psychiatrist at HM Prison Barwon.
Dr Deacon was asked by Mr Kennan for his opinion as to the psychological wellbeing and functioning of someone in the position of the accused who had been in that position for two years and was facing another six to nine months. Dr Deacon referred his answer to the accused themselves, rather than the hypothetical accused put up by Mr Kennan, and said that he had concerns about how “sustainable this could be for these men”. He said that he had concerns under “this sort of regime” as to whether there might be further psychological compromise in terms of the stress that might result from being shackled and the various other aspects that were described to him. He thought there could be further difficulties for these men in terms of their capacity to cognitively function at appropriate levels through the duration of the trial. He thought their difficulties would be being able to sustain adequate concentration and memory given the intensity of the trial and its duration. He said that his professional opinion would be that an average person may experience difficulties in remembering and concentrating even if they had not shown any particular vulnerability or psychiatric illness or disorder to date. He said he thought that an average person’s capacity to tolerate the accuseds’ regime was likely to be limited.
Dr Deacon was not cross-examined by Dr Neal. He told Mr Maidment that travel sickness tablets might not be appropriate for someone in the long term but that he was not sufficiently qualified to offer an opinion on that matter.
At the end of the evidence I inspected the vans in which the accused are transported to court. I sat in the accuseds’ seats with the door closed as well as open. I did this to ensure that I understood the evidence of Dr Silcock.
In Connelly v DPP,[22] Lord Devlin declared that
[22][1964] AC 1254 at 1347.
“ … the judges of the High Court have in their inherent jurisdiction, both in civil and criminal matters, power (subject of course to any statutory rules) to make and enforce rules of practice in order to ensure that the Court’s process is used fairly and conveniently by both sides.”
His Lordship supported this conclusion by reference to three specific heads of power, the first of which he expressed as being
“ … a general power, taking various specific forms, to prevent unfairness to the accused [which] has always been a part of the English criminal law … “.
Lord Devlin observed that nearly the whole of English criminal procedure and evidence had been developed in the exercise of judges’ power to see that what was fair and just was done between prosecution and accused. He referred to the doctrine of autrefois, the judges’ rules as to police interrogations, the requirement that the Crown give adequate notice to an accused if it intended to call evidence at trial which was not called at committal and a number of other requirements of the law of criminal procedure which imposed obligations on the Crown in the interests of the accused receiving a fair trial.
Lord Pearce expressed the matter in similar terms. He said that it was an inherent power to protect the process of the Court from abuse. He cited a dictum of Lord Blackburn ( with whom the Earl of Selborne LC agreed) in Metropolitan Bank Limited v Pooley[23] (a civil case) to the effect that the Court could:
…inform(ing) its conscience upon affidavits and by a summary order (to) stay the action which was brought under such circumstances as to be an abuse of the process of the Court…
[23](1881) 10 App Cas 220.
Thirteen years later in DPP v Humphrys,[24] Lord Salmon expressly approved the judgments of Lord Devlin and Lord Pearce in Connelly saying that it is an important part of the Court’s duty to protect its process from abuse and those who are brought before it from oppression. Lord Edmund‑Davies considered that Connelly’s case established that judges are vested with the power to do what the justice of the case clearly demands. See also Mills v Cooper.[25]
[24][1977] AC 1.
[25][1967] 2 QB 459 at 467.
In Barton v The Queen,[26] Gibbs ACJ and Mason J in the High Court cited Connelly and Humphrys as authority for the proposition that the courts have all the necessary powers to prevent an abuse of process to ensure a fair trial. In Barton the High Court was concerned with the fairness of a trial conducted without a prior committal hearing. The Court’s decision to stay the trial did not depend upon its considering that a trial conducted without an antecedent committal proceeding was, ipso facto, unfair or an abuse of process. It depended rather upon the Court’s balancing the interests of the community, represented by the Crown, against the interests of the accused. It is inherent in such a formulation that even in like cases (i.e. a trial without a committal) a stay might be appropriate in some cases but not in others.
[26](1980) 147 CLR 75.
In Jago v District Court of New South Wales,[27] the High Court again considered the circumstances in which the power to stay criminal proceedings permanently might be exercised. The issue there was delay between the alleged commission of dishonesty offences and their prosecution to trial. Mason CJ distinguished cases of abuse of process from those where a stay might be ordered or “other appropriate action” taken to prevent injustice to an accused. His Honour found it unnecessary to define the limits of the Court’s jurisdiction with respect to the latter class of case in the specific context with which he was there concerned, namely undue delay in prosecution. However it is clear that he endorsed the general proposition that the courts can, by appropriate order, regulate their procedure so as to prevent injustice. His Honour said:
… there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process. [28]
[27](1989) 168 CLR 23.
[28]Ibid 29.
In considering the remedy which the Court may grant the Chief Justice pointed out that it may mould its order to meet the exigencies of the particular case. He considered that in safeguarding the interests of the accused the touchstone in every case was “fairness”, the test of which involves a balancing process, as the interests of the accused cannot be considered in isolation and without regard to the interests of the community that persons charged with criminal offences be brought to trial. In the context of a delayed prosecution the factors which needed to be taken into account in deciding whether a permanent stay was needed to vindicate the accuseds’ right to be protected against unfairness could not be precisely defined but whatever those factors were his Honour considered that a permanent stay would only be ordered in an extreme case. It would be justified only where there was a fundamental defect which went to the root of the trial and which was of such a nature that it could not be overcome by any order or direction of the trial judge.
In the same case Brennan J endorsed the power of a trial judge to make orders which were necessary to prevent unfairness in a particular case. He gave as examples, adverse publicity, absence of competent legal representation, the death or unavailability of a witness et cetera. He said:
When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[29]
His Honour considered that unfairness occasioned by circumstances outside the Court’s control could not make the trial a source of unfairness.
[29]Ibid 47.
In dealing with the notion of unfairness Deane J said that it “defies analytical definition”. His Honour said that it was not possible to catalogue the occurrences, outside or within the actual trial, which will or could affect it to such an extent that it could not be properly regarded as fair. The identification of what constitutes unfairness and the steps which need to be taken to avoid it involve what his Honour described as an “ … undesirably, but unavoidably, large content of essentially intuitive judgement.”[30] He went on to give a number of examples, none of which approach the circumstances of this case. With respect to the “right” to a fair trial his Honour pointed out that the common law recognises no such “right” in the strict sense. What it does recognise is a right not to be tried unfairly.
[30]Ibid 57.
The applicants’ case here is that the oppressive conditions in which they are currently incarcerated and transported is having such an effect on their capacity to attend to their own interests in defence of the charges against them that the trial they are currently engaged in is unfair and will become more so as time passes.
The applicants’ daily routine has already been described from the affidavits of the witnesses from Corrections Victoria. Whilst they are in court, after their trip from Barwon, they must, if they are to be able to look after their own interests properly, closely follow the transcripts of telephone intercepts and listening devices which are contained in seven lever arch folders supplied to each accused. Even though there are breaks in proceedings throughout the day this is tedious work. It requires close attention to the detail of the transcripts whilst listening to what are, often, less than perfect sound reproductions.
Dr Silcock, the occupational physician, considered that being subjected to the regime described to her the applicants would be likely to become depressed, irritable and anxious and would suffer from fatigue. This would affect their ability to concentrate and remember. Ms Leeson, the psychiatric nurse at Barwon, said that upon their return there in the evening they were fatigued – extremely tired. Her observation was that their level of fatigue impacted negatively on their ability to focus, to concentrate or to stay awake. She said that they are typical of people who have fatigue. They cannot concentrate and cannot remember.
Dr Bell considered that in the circumstances of the applicants it is more likely than not that an ordinary person would experience significant psychological and emotional difficulties. These difficulties are likely to have a significant effect on the applicants’ ability to concentrate or to remember things from day to day or week to week with respect to their case. He considered that the burden of these difficulties would be cumulative and would be likely to impact to a significant extent on the cognitive mental functions that would be required to appropriately attend to the trial process, particularly because of its protracted length and its complexity. He thought that there was a risk that they, or some of them, may develop major depressive illness. This was particularly so having regard to the fact that they have already been in custody, in what he described as “austere” circumstances, for two years or more.
Dr Deacon, the other psychiatrist who gave evidence, was more familiar with the applicants than the other witnesses. He said that he had concerns about how sustainable their present condition and situation could be for them. He was concerned that there might be further psychological compromise in terms of stress. He referred to shackling and various other aspects of the applicants’ situation which were described to him. Dr Deacon mentioned cognitive function, concentration, memory and other similar matters as being all matters which would be likely to be impaired by what was occurring. He thought that an average person’s capacity to tolerate the regime to which the applicants were subjected would be limited.
The Court has sat on this case on more than 90 days to date. Although not every accused has been present on every one of those days[31] I have had ample opportunity to make such observations of their demeanour, attitude and general condition as is possible in the court situation. Nothing I have seen would cause me to doubt the opinion of the doctors or the nurse who gave evidence on this application.
[31]The accused were excused if they did not wish to be brought to Court during much of the hearing of preliminary applications.
Accepting the evidence of the witnesses referred to as I do, it remains to consider whether this trial is now or will become unfair so as to permit the invocation of the Court’s jurisdiction to intervene by way of a stay of proceedings or otherwise to obviate such unfairness.
The Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) sets out the criteria by which the fitness of a person to stand trial is determined.[32] Dr Bell addressed this question in his evidence. He said that he was not discussing the particular question of the fitness of the applicants to stand trial as defined in the Act. That he described as a “yes or no” decision that would need to be made in a particular case. Whether any individual would meet the rigid criteria of the section he thought that it was reasonable to think that the applicants in this case would suffer more from impairment of their capacity to concentrate, to think clearly, to attend appropriately or to remember salient information and the like. I took him to mean that the accuseds’ problems created by this situation were not such that they were unfit to stand trial in the statutory sense but that they were suffering from remediable effects of their situation which would be alleviated if their situation changed. What then are the criteria to be applied to determine whether this trial is unfair?
[32]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6.
No authority was cited by counsel as to the right of an accused to attend his trial and, if he wishes, take an active part in defending the charges against him by instructing counsel, receiving advice and the like. Generally, a trial should be held in the presence of the accused whether he wishes to be present or not. This principle is fundamental to our criminal justice system.[33]
[33]See s 42K(2) Evidence Act 1958 (Vic); R v Fitzgerald (1889) 15 VLR 40; R v Abrahams (1895) 21 VLR 343; Lawrence v The King [1933] AC 699 at 708; R v Vernell [1953] VLR 590 at 600; R v Cornwell [1972] 2 NSWLR 1; R v Tait and Bartley (1979) 24 ALR 473; R v Foster (1992) 25 NSWLR 732.
In Dietrich v The Queen,[34] Mason CJ and McHugh J acknowledged that there had been no judicial attempt to list exhaustively the attributes of a fair trial.[35] However their Honours drew upon international instruments, including the European Convention for the Protection of Human Rights and Fundamental Freedoms as enshrining a basic minimum right of an accused in a criminal trial as the right to have adequate time and facilities for the preparation of his or her defence.[36] The Court in that case went on to hold that in a criminal prosecution, where representation of the accused by counsel was essential for a fair trial and the accused, through no fault of his own could not obtain such representation, a court should generally stay the trial until such representation was obtained.
[34](1992) 177 CLR 292.
[35]Ibid at 300.
[36]ECHR article 6(3)(b).
Similarly, a long trial on complex criminal charges where, through no fault of his own, an accused has significantly less than his ordinary capacity to concentrate, to remember facts or conversations, to consider his own interests properly and to act appropriately in defence of those interests (including but not limited to instructing counsel, taking advice and making crucial decisions) will also generally be unfair. The case is a fortiori where the trial has up to nine months to run and, with the effluxion of time the accuseds’ disabilities will probably increase, possibly to the point of major psychological illness.
I am satisfied that the evidence before the Court establishes that the accused in this case are currently being subjected to an unfair trial because of the whole of the circumstances in which they are being incarcerated at HM Prison Barwon and the circumstances in which they are being transported to and from court. Having regard to the relatively uncontroversial nature of the evidence which has been led on the trial to date and their counsels’ active participation in the trial, including their selective cross‑examination of the witnesses who have been called, I am satisfied that no material disadvantage has yet accrued to the accused by reason of such unfairness. It is, accordingly, not necessary, on that account that the trial be recommenced before a new jury once the cause of the unfairness is removed. Of course, should any accused subsequently apply to have any Crown witness who has already given evidence recalled for further cross‑examination that application will be dealt with on its merits.
Mr Kennan did not spell out in any detail the remedy he sought on the applicants’ behalf. He simply referred to “a stay”. He did concede, however, that were the accused to be granted bail the reason for any stay would cease to exist. I took this to mean that he would not argue that the trial could not proceed if the accused were no longer subjected to the factors which I have decided have caused the trial to be unfair. Removal of the source of unfairness in this trial requires either that the accuseds’ conditions of incarceration be drastically altered or that they be released on bail.
It is not for this Court (at least not on this application) to order any specific alteration to the terms of the accuseds’ detention. That is a matter for the Executive Government which must act, of course, according to law in the discharge of its obligations, which include its obligations to the Commonwealth pursuant to s 120 of the Australian Constitution. This provision requires the several states to make provision in their prisons for persons accused of offences against the laws of the Commonwealth, such as the accused in this case. It might be said that that obligation carries with it an obligation to ensure that an accused’s conditions of incarceration do not result in a trial in this Court in federal jurisdiction being stayed because it is unfair. However that is not of concern to this Court at this time. It is sufficient if the Court makes clear the specific matters about the accuseds’ incarceration and travel arrangements which have combined to make the continued incarceration of the accused at HM Prison Barwon and their travelling arrangements intolerable and their trial unfair.
The Crown submitted that if the Court found that the accused’s conditions of incarceration and their travel arrangements were the cause of their trial being unfair the Court should invoke s 42M(2) of the Evidence Act 1958 (Vic) to allow the accused to remain at HM Prison Barwon and view the proceedings by audiovisual link from Acacia unit. It is common ground that there is a satisfactory audiovisual facility in Acacia which could be used for this purpose. It was recently purpose built to enable prisoners there to appear at Court (or elsewhere) without leaving the unit. The video room not only has the necessary video equipment but is also equipped with telephones which would enable their lawyers to communicate privately with the accused.
The scheme of Part II A of the Evidence Act 1958 (Vic) is to permit the use of audio visual links (and audio links when appropriate) in a variety of circumstances. But s 42K(2) makes it clear that an accused in custody must be brought to his trial in person. In this respect it follows the common law[37]. However, notwithstanding this provision, s 42M(2) provides that in exceptional circumstances the Court may grant an application that an accused may appear at trial by audio visual link. It is this provision which the Crown argues should be used in this case.
[37] See cases cited at footnote 33.
It might be argued that the accused’s incarceration and travelling difficulties constitute the exceptional circumstances necessary to justify reliance upon s 42M(2) but there are at least three difficulties with such an argument. First, if the accused’s living conditions do not change the only advantage of the audiovisual link would be to eliminate the burden of long journeys in the van in restrictive circumstances. Whilst this would be an advantage it would be more than outweighed by the deprivation of the accuseds’ right to attend their own trial in person – a right not to be easily put aside in the interests of expediency. Were the accused to be disruptive or for some other reason it was not appropriate that they be in the courtroom s42M(2) might be appropriately invoked. But such is not this case. None of the accused have, on any occasion, behaved other than impeccably in the courtroom and no other legitimate reason has been advanced as to why they should not be permitted to remain.
Secondly, the reason for the accused’s present situation is that they have been classified in a particular way by Corrections Victoria. The demonstration of exceptional circumstances, as required by s 42M(2) of the Evidence Act would entail a justification of the accused’s classification as A1 and their consequent treatment within the prison system. Neither Corrections Victoria nor the Crown has ever placed any evidence before this Court in any form to justify either the accused’s classification or their treatment which is, in terms of the fairness of this trial, intolerable.
The Crown also submitted that a change of the trial’s venue to Geelong would obviate, or at least alleviate, some of the difficulties arising from the accused’s present situation. Innovative and imaginative as this submission is, there are a number of particular difficulties which would prevent its adoption. First, Geelong does not have a court room which could accommodate 12 accused without substantial alteration which may not even be able to be feasibly undertaken. Secondly, the jury in this trial, which is drawn from the Melbourne Metropolitan area, would be gravely inconvenienced by daily trips to Geelong. For some it may even be impossible.
Thirdly, such a change in venue would only have a marginal impact on the accused’s conditions unless there were significant other changes to their incarceration situation generally.
The minimum alterations to the accuseds’ conditions of incarceration and travel which would be necessary to remove the unfairness currently affecting this trial are as follows:
1.They be incarcerated for the rest of the trial at the Metropolitan Assessment Prison, Spencer Street.
2.They be transported to and from court directly from and to the MAP without any detour.
3.They be not shackled or subjected to any other restraining devices other than ordinary handcuffs not connected to a waist belt.
4.They not be strip searched in any situation where they have been under constant supervision and have only been in secure areas.
5.That their out of cell hours on days when they do not attend court be not less than ten.
6.That they otherwise be subjected to conditions of incarceration not more onerous than those normally imposed on ordinary remand prisoners, including conditions as to professional and personal visitors.
The trial has currently been adjourned to 31 March 2008 for reasons referred to below. It will be listed that day at 2.15pm. I propose to require the Secretary of the Department of Justice or her nominee to make and file an affidavit on 31 March before noon, deposing to the conditions under which the accused are then incarcerated and the conditions under which it is then proposed that they will be incarcerated and transported for the rest of this trial. Such affidavit must address each of the matters to which I have referred in paragraph 100 of this ruling. Should that affidavit depose to the appropriate amelioration of the accuseds’ conditions the trial will continue on the following day, 1 April 2008. Should such affidavit not be filed as required by the order I propose to make or should the conditions of the accuseds’ proposed incarceration and transportation for the rest of this trial not include all of the minimum conditions set out in paragraph 100 when the Court sits at 2.15 pm on 31 March 2008, the trial will be stayed until further order.
Should the trial be stayed as set out above the Court will list bail applications for hearing as soon after 2.15pm on 31 March as possible.
The orders of the Court are as follows:
1.That the Secretary to the Department of Justice be joined as an intervener in this application.
2.That on 31 March 2008 before noon the Secretary of the Department of Justice, or her nominee, make and file an affidavit deposing to the conditions under which the accused in this proceeding are then incarcerated and the conditions under which it is then proposed that they will be incarcerated and transported until this trial is concluded, such affidavit addressing each of the matters to which reference is made in paragraph 100 of this ruling.
3. That the trial of this proceeding be adjourned to 2.15pm on 31 March 2008.
A Subsequent Development
After the hearing of this application by all of the accused for a stay of this proceeding was completed certain matters were reported to this Court which should be noted in this ruling. Those matters have not been taken into account in determining the application.
On the afternoon of Friday, 14 March 2008 (a day on which the Court did not sit) my Associate, Ms Astrid Haban-Beer, was informed by a solicitor acting for two of the accused that they had been examined by Dr Deacon at HM Prison Barwon and were found to be suffering from a psychiatric condition. On the evening of Sunday 16 March my Associate was further informed that the two accused referred to had been taken to the Metropolitan Assessment Prison where they were under psychiatric observation. Early on Monday 17 March Ms Haban-Beer was informed by Ms Debra Coombs of Corrections Victoria that the two accused were being assessed by a psychiatrist at the Metropolitan Assessment Prison, Dr Steven Tallents.
When the Court convened at 10am that day Dr Tallents attended and gave evidence to the effect that neither of the accused was, at that time, fit to attend court and that they would be assessed by Dr Alexandra Welborn of Forensicare in the course of the morning. Ms Coombs, who was present, agreed to ask Dr Welborn to provide the Court with a report as to each of these accused as soon as possible.
Dr Bell also attended court and gave evidence as to the circumstances in which these two accused were moved from Barwon to the MAP. He said he had spoken to Dr Deacon on Friday 14 March. Dr Deacon had expressed concern as to the health of several of the accused but particularly the two who were later separately (some hours apart) found to be in need of psychiatric attention beyond the capacity of HM Prison Barwon to provide.
In the afternoon of Monday 17 March the Court received reports from Dr Welborn concerning each of the relevant accused. Dr Welborn’s opinion was that each of the accused required a period of assessment in the Acute Assessment Unit of the Melbourne Assessment Prison, which assessment would take some days. Dr Welborn agreed to report to the Court when appropriate as to the situation with these two accused.
Having regard to the forthcoming holiday and the information provided by Dr Welborn the Court adjourned this trial to Monday, 31 March 2008.
---
12
15
0