Justice Bongiorno’s Maundy Thursday ruling (R v Benbrika and others [2008] VSC 80) in the case involving 12 defendants charged with breaches of provisions of the Criminal Code (Commonwealth) which create “terrorist offences” is both a landmark in human rights law and the application of old doctrine to unchallenged facts.

He found that they are indeed getting an unfair trial due to their harsh prison conditions. In the light of the way prison authorities appear to have taken upon themselves a frontline role in the “war on terror”, the ruling is a very welcome step. It will also be interesting to see how the Commonwealth Attorney-General’s Department reacts.

Much of the evidence on which Justice Bongiorno acted was contained in affidavits filed by Corrections Victoria. Much of the medical evidence was provided by government psychiatrists and psychologists and nursing staff employed by Corrections Victoria. The evidence clearly showed that the regime to which the defendants were being subjected (and the regime to which they have been subjected for the last two years while awaiting trial) would cause an ordinary person “significant psychological difficulties”. The difficulties include stress, depression, anxiety, irritability and fatigue.

Justice Bongiorno held that impacts of this kind were sufficient to impair the defendants’ ability to follow the evidence and instruct their legal representatives. His honour held that the defendants “are currently being subjected to an unfair trial because of the whole of the circumstances in which they are being incarcerated … and transported to and from court”.

The conditions which led to his honour’s finding include up to three hours travel per day in closed steel compartments without natural light with shackled legs and arms handcuffed and attached to a waist belt; exercise for less than three hours per day in groups of three; and full strip searches both before entering and upon disembarking from the special closed prison van: that is, a minimum of four strip searches per day.

Justice Bongiorno ordered that, unless the conditions dramatically change by 31 March 2008, he will stay the trial and arrange to hear bail applications from the defendants. His honour has issued a six point list of conditions that would, as a minimum, constitute the basis for a fair trial. These six requirements include incarceration in the Metropolitan Assessment Prison at Spencer Street; restraining devices restricted to ordinary handcuffs not attached to any belt; and no strip searching where the defendants are coming from a secure area.

While Justice Bongiorno’s order is unusual, there is ample authority authorising and requiring judges presiding in criminal trials to take action to ensure that the trial being conducted is fair.

A 1992 High Court case of Dietrich laid down that the absence of legal assistance (through no fault of the accused) in a serious criminal trial was sufficient to justify a stay of the trial. Earlier, in the 1989 case of Jago, the High Court endorsed the prospect of a permanent stay of prosecution being ordered where delay in bringing a prosecution had prejudiced the accused’s right to receive a fair trial, for example, through the death of a relevant witness. The principles on which Justice Bongiorno acted have been espoused by the England’s highest court, the House of Lords, in 1964, in the case of Connelly.

Perhaps the most scandalous matter recorded in last Thursday’s ruling is that neither the prison authorities nor the Crown made any attempt to justify the conditions being experienced by the 12 defendants. They were classified maximum security A1 but no reason was put forward for this classification after over two years.

The action by Corrections Victoria in this case is similar to actions taken with regard to persons arrested and charged with “terror offences” in NSW. It is as if prisons authorities feel that they have to match the hysteria associated with a “war on terror” displayed by “shock jocks” and politicians and house even remand prisoners in the worst conditions available in the prison system without making any kind of appropriate risk assessment and without any reference to the actual security risk presented by such prisoners. It is particularly disturbing when one takes into account how broadly the anti-terror provisions in the Criminal Code are drafted. The provisions go way beyond traditional concepts of “conspiracy” or “attempt” in criminalising behaviour. The legislation allows quite innocuous behaviour to be susceptible to being the subject of “terrorism” charges.

Justice Bongiorno’s decision, while deeply rooted in established principle, will encourage similar applications if prison authorities do not respect a defendant’s right to a fair trial. Much interest lies, however, in seeing whether Justice Bongiorno faces his own recriminations.

Will the head of the Commonwealth Attorney-General’s Department, Robert Cornall, bring a complaint against Justice Bongiorno as he did against Justice Adams of the New South Wales Supreme Court for dismissing the case against Sydney medical student, Izhar ul-Haque? There used to be a time when judges got praised for doing their job: deciding issues that come before them in court. Is that time gone for ever?

Peter Fray

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