R v Gatt (No 8)

[2018] NSWSC 489

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Gatt (No 8) [2018] NSWSC 489
Hearing dates:	17 April 2018, 18 April and 19 April 2018
Date of orders:	19 April 2018
Decision date:	24 April 2018
Jurisdiction:	Common Law - Criminal
Before:	Schmidt J
Decision:	Direction given as to suitable meal arrangements.
Catchwords:	CRIMINAL LAW – Procedure – Miscellaneous powers of courts and judges – application for the provision of food be given to accused during trial – arrangements made for a suitable meal to be provided to accused in the cell not adhered to – direction sought – whether the Court has powers to make direction sought – Court has powers to make the requested direction
Legislation Cited:	Court Security Act 2005 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Administration of Sentences) Regulation 2014 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46
Texts Cited:	Second Reading Speech, Criminal Procedure Amendment (Case Management) Bill, New South Wales Legislative Council, Parliamentary Debates (Hansard) 1 December 2009
Category:	Procedural and other rulings
Parties:	Regina (Crown) Joseph Gatt (Accused)
Representation:	Counsel: Mr A Robertson (Crown) Mr P Boulten SC (Accused)   Solicitors: Solicitor for Public Prosecutions (Crown) The Law Practice (Accused)
File Number(s):	2014/186944
Publication restriction:	Nil

Judgment

1. During the course of the hearing an issue arose in relation to the accused’s health, which finally resulted in me directing that Mr Gatt’s lawyers be permitted to provide him, while remaining sitting in the dock in court in the presence of corrective service and sheriff’s officers and his lawyer, with food to eat for lunch, before being returned to the cells during the lunchtime adjournment. I contemplated that this would occur in closed court, in the absence of the jury.

2. It finally proved to be unnecessary for this direction to be given effect, because other arrangements were made for a suitable meal to be provided to Mr Gatt for lunch, in the cells.

3. The reasons for the giving of this direction were as follows.

The events which gave rise to the direction being made

4. On the Tuesday of the third week of the trial, Mr Gatt’s counsel raised the difficulty which had arisen, in relation to the provision of food to Mr Gatt. Then described was the regime for Mr Gatt to be brought to court each day from the prison where he was housed. This involved him having to respond to an alarm at about 4am; some time after 5am being taken to a muster area, where he was given one portion of cereal; at 1pm being given a sandwich in his cell at the court complex; by the time he was returned to the prison in the evening, it being common that there was insufficient food for him, he arriving after many other people and the reception area then having only limited meals available.

5. The result was explained to be that Mr Gatt was finding it very difficult to cope with his reduced diet during the trial. It was thus requested that I consider facilitating Mr Gatt’s lawyer providing him with something more substantial to eat for lunch each day.

6. The Crown did not oppose that occurring, in the circumstances. Accordingly, I requested that sensible steps be taken by those who had responsibility for Mr Gatt’s custody in the court complex, to facilitate the provision of that food to him. I also said that if there were any difficulties, they could either be raised with me, or through counsel with me, and I would deal with them.

7. No difficulties were brought to my attention, but my request was not complied with, when the food which had been obtained, by his lawyers that day, was sought to be provided to Mr Gatt.

8. At the end of the hearing that day counsel drew to my attention that Mr Gatt had not been allowed to eat any food other than the Corrective Services issued cheese sandwich, but that he had been given two of them, that day.

9. Further assistance from the Court was sought. The Crown’s attitude to the provision of food to Mr Gatt by his lawyers, was that it still did not oppose that occurring.

10. Accordingly, that afternoon, after referring to the obvious disadvantage caused to the orderly conduct of the proceedings, if the accused did not receive appropriate supplies of food, I reiterated both my concern about the impact of this issue on the trial and my view that the accused ought to be provided with the food that I had authorised his lawyers to provide him.

11. I added to that, a request that whoever was responsible for the prison to which Mr Gatt was taken each night, make sure, bearing in mind the extraordinary hours which he has to spend while attending to the things which require his attention during the course of the trial, that he should be given, for every meal, an adequate supply of food.

12. I also asked that these requests be conveyed to those authorities and if there was any further difficulty, that counsel raise it and be prepared to address me on what powers I might have to exercise, if it was thought necessary for the Court to take any further steps.

13. On the following day Mr Gatt was too ill to continue giving evidence, having spent the morning vomiting and without objection, the hearing was adjourned to the following day.

14. Given that both counsel had duties, as officers of the Court, to assist me in relation to the question of what powers the Court had to deal with the question which had arisen, I asked them to be ready to address me on those powers, if I was asked to take any further steps. I took that course because of the obvious need for the Court to guard against this issue adversely affecting the proper conduct of the trial.

15. I then also observed that it would be unfortunate if this practical problem did interfere with the conduct of the trial, in the absence of the co-operation I had asked for.

16. The following day written submissions were provided by Mr Boulten, Mr Gatt’s counsel, as to the Court’s powers, it being submitted that the circumstances which had arisen were such that I should exercise them.

17. The Crown’s position was that it agreed both that the Court had the power to deal with what had arisen and that in the absence of the requested co-operation from those who had control over Mr Gatt while he was in custody, that this was an appropriate case in which they should be exercised.

18. In the result I was then satisfied both that the Court did have the necessary power to deal with the issue, which was by then plainly having an impact on the trial and that it should be exercised. I was then addressed by both counsel as to how, sensibly the exercise of the power should be given practical effect and then finally issued the direction.

19. I also then asked counsel, over the morning tea adjournment, to speak to the designated corrective services officer in charge of Mr Gatt at court, in the hope that it would not prove necessary to make an order directed to that officer, as to these matters.

20. Over morning tea, the co-operation I had earlier requested was forthcoming, with the result that I withdrew the direction I had made, it being accepted for by the parties, that the Court was not required to take any further steps, in the circumstances which had developed.

The Courts powers

21. My conclusion that I had the necessary power to make directions and orders about the provision of food to Mr Gatt, by his lawyers as officers of the court, flowed from the following considerations.

22. The Court has a fundamental obligation to ensure that an accused has a fair trial. As discussed in Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 at [13], “processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial”.

23. I could see no reason for taking a different view about steps taken in relation to the management of an accused in custody, which are pursued in such a way that a real risk arises that a trial will become unfair. In the result, I concluded that the Court’s powers had to be exercised, to prevent such a result from materialising.

24. In the circumstances which had arisen, the position was that by the completion of the day’s hearing at 4pm, Mr Gatt had already been awake for some 12 hours; he had received but little food during all of that time; still then he had before him a wait of a number of further hours, before he arrived at the prison, when he would have missed the normal meal-time; the result was that he would not at any time during the day have received a normal meal; and he would then have but limited time for sleep, before having to rise again when called at 4 am.

25. I was satisfied that the ongoing repetition of this cycle, over the course of the rest of the trial had the potential to result in an unfair trial, if not addressed by the exercise of the Court’s powers, in the way that the parties had agreed was appropriate, in the circumstances which I have described.

26. It was apparent that the issue raised security questions, which are dealt with in the Court Security Act 2005 (NSW) whose objects are specified in s 3 to be:

“(a)    to provide for the secure and orderly operation of courts, and

(b)    to confer certain functions on judicial officers and security officers for that purpose.”

27. While that Act empowers the Court to take certain actions, s 5 provides:

“5    Operation of Act and effect on other powers

(1)    The powers conferred by this Act are in addition to, and not in derogation of, any other power of a court, judicial officer or other person in relation to the conduct of proceedings in a court or regulating the conduct of persons in court premises.

(2)    Without limiting subsection (1), this Act does not affect:

(a)    any power of a court relating to contempt of the court or any other similar power, or

(b) any power of a correctional officer under the Crimes (Administration of Sentences) Act 1999 or any other law with respect to a person in the officer’s custody in a court cell complex or other place in court premises.”

28. Section 7 empowers the Court to order the closure of the courtroom for security purposes. Section 8 precludes a person, without reasonable excuse, to be in possession of a “restricted item” while in court premises. That term does not include food, which is defined to mean “any of the following:

(a)    any prohibited weapon within the meaning of the Weapons Prohibition Act 1998,

(b)    a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996,

(c)    any knife (whether or not a prohibited weapon within the meaning of the Weapons Prohibition Act 1998).”

29. Even in relation to restricted items, a judge may direct that a person should be allowed bring the item into the “court premises”, which is defined to mean “the premises or place where a court is held or that is used in relation to the operations of a court, and (without limitation) includes:

“(a)   a forecourt, courtyard, yard, parking area, toilet facility, hall, corridor or other area used in conjunction with the premises or place, and

(b)    a part of premises or a place used as an entrance to or exit from the premises or place where the court is held or that is used in relation to the operations of the court, and

(c)    a part of premises or a place being used to enable a person to appear before the court by means of an audio link or audio visual link, and

(d)    any part of premises or a place used in relation to the operations of a court, or referred to in the preceding paragraphs, that is also used for other purposes.”

30. It followed that the Court had power to authorise Mr Gatt’s lawyers bringing food for him into Court.

31. There was no issue that Mr Gatt fell within s 5(2)(b) of the Court Security Act, or that he was an offender, as defined in s 3 of the Crimes (Administration of Sentences Act 1999 (NSW) and a “person in custody” as there defined in s 249.

32. Accordingly, while Mr Gatt was in the keeping of a designated correctional officer, including when transported to and from court, subject to any applicable regulations, he was taken to be in the custody of that officer, who had all the powers the governor of a correctional centre has, in relation to an inmate of a correctional centre: s 251. That while Mr Gatt was present in Court during the hearing, he was not subject to the Court’s powers, like anyone else present before the Court was not apparent.

33. Regulations 50 to 52 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) deal with food and diet, providing:

“50    Diet

(1)    An inmate must be supplied each day with food in accordance with a diet designed to provide a dietary intake generally in accordance with the recommended dietary intakes published by the National Health and Medical Research Council.

(2)    The diet must:

(a)    be varied, and

(b)    provide adequate amounts of each essential nutrient from basic foods, and

(c)    be planned to ensure optimal nutritional health.

(3)    The diet of an inmate having special dietary needs is to be planned having regard to those needs.

51    Complaints about correctional centre food

(1)    An inmate wishing to complain about the quantity or quality of the food supplied by a correctional centre must do so promptly.

(2)    The inmate is responsible for substantiating the complaint.

52    Purchase of food by inmates

(1)    The governor of a correctional centre may permit an inmate:

(a)    to purchase food available for purchase at the centre or outside the centre, or

(b)    to arrange for the supply of food from outside the centre.

(2)    An inmate must not purchase food, or arrange for the supply of food from outside a correctional centre, unless permitted to do so under subclause (1).

(3) An inmate must not receive or have in his or her possession any food other than food supplied by a correctional centre or food that he or she is permitted to purchase or be supplied with under this clause.

(4)    An inmate supplied with food from outside a correctional centre must ensure that none of it is received by another inmate.

Note.

Failure by an inmate to comply with this clause is a correctional centre offence.”

34. Under this Regulation it followed that there was power to permit Mr Gatt to have access to the food which I had directed he could be provided by his lawyers, but the exercise of that power was refused, in the circumstances I have explained.

35. No reasons for the refusal had been given. Undoubtedly security concerns arose for consideration, but given the security arrangements in place for this trial, I was satisfied that they could be managed, particularly when it was borne in mind that the persons I had authorised to provide food to Mr Gatt were all officers of the Court. Further, once I had directed that they be permitted to provide Mr Gatt with food while he remained in the closed courtroom, the food would have to be brought into the courtroom via scanners.

36. In the result I concluded that it was appropriate to exercise the Court’s power to prevent injustice: Jago at [25]. The exercise of those powers was supported by the provision made in s 149E(1) of the Criminal Procedure Act1986 (NSW), which provides:

“149E   Court powers to ensure efficient management and conduct of trial

(1)    On or after the commencement of the trial in proceedings, the court may make such orders, determinations or findings, or give such directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial.”

37. That provision needs to be read, however, in light of the purpose for Division 3 of that Act, in which s 149 appears, specified in s 134 to be:

“(a)    requiring certain pre-trial disclosure by the prosecution and the defence, and

(b)    enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.”

38. Those purposes do not support the conclusion that the provision made in s 149 is as broad as the power discussed in Jago. There was, however, no basis for concluding that the intention of the enactment of these provisions was in order to restrict that general power, particularly when consideration was given to what was discussed in the Second Reading Speech to the Criminal Procedure Amendment (Case Management) Bill 2009, where amongst other things it was explained:

“This general upward trend in NSW is not of itself a cause for concern. The duration of criminal trials has increased drastically in all Australian jurisdictions in recent decades. Gone are the days when a murder trial could be conducted in under a week, and for the most part, there are good reasons for this. Advances in technology have resulted in forensic evidence that is greater in both volume and complexity than in years gone by, and the rapid adoption of electronic communication in the last 20 years has resulted in an exponential increase in the amount of electronic evidence that is adduced in criminal trials.

However, not all causes of increased trial durations can be said merely to reflect scientific progress, and steps should be taken to provide mechanisms to minimise unnecessary delays in trials, whatever their cause.”

And further that:

“In addition to these pre-trial measures, courts will be given a general power to manage the trial on or after its commencement. The power will allow the court to make such orders, determinations and findings, or give directions or rulings, as it thinks appropriate for the efficient management and conduct of the trial. This will include making orders for disclosure that were, or could have been, made prior to the commencement of the trial under the proposed amendments. Unexpected and unnecessary delays can arise during the course of a trial, whether due to the nature of the evidence involved, the conduct of the parties, or other factors. This power will allow a judge to deal with these situations, regardless of whether pre-trial case management was ordered in that case.

The aim of the bill is to increase the efficiency of the trial process and it does so by introducing a number of mechanisms which will give those involved the means to identify and resolve issues at the beginning of a matter rather than during the trial itself. This will also assist the judiciary in undertaking their role in the trial by allowing them to be informed early in the trial process of the relevant issues. For these efficiencies to be achieved it will need the profession to embrace the changes and fully utilise the procedures that have been made available. In this regard, I have been greatly assisted by the Trial Efficiency Working Group, who have assisted in identifying what can usefully be introduced and used by the profession and the judiciary.”

39. Accordingly, I was satisfied that the parties’ common position, that the Court did have the power to make the requested direction should be accepted and that the power should be exercised in the way described.

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Amendments

01 May 2018 - amendments to [24] and [32]

Decision last updated: 01 May 2018