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Terrorism trial's legacy of fairness

Australian Scapegoat Trial, Flickr image by publik16In his landmark ruling in the course of what was known in Victoria as the terrorism trial (Ruling 20 of R v Benbrika [2008] VSC 80), the trial judge Justice Bongiorno found that the 12 accused were being subject to an unfair trial because of the whole of the circumstances in which they were being incarcerated and transported.

Justice Bongiorno then proceeded to outline the minimum conditions which would be necessary to remove the unfairness and allow the trial to continue. These included a change of prison from Barwon Prison to the Melbourne Assessment Prison, removal of shackles, restrictions on strip searching, treatment as normal remand prisoners and the provision of 10 out-of-cell hours on non court days.

Justice Bongiorno described the conditions edured prior to his ruling, in addition to the daily trip from Barwon in shackles, as oppressive, involving incarceration in the most austere conditions in the Victorian prison system.

Barwon prison was built as a high security facility for sentenced prisoners and not for prisoners on remand. The transporting of the accused every day to court from Barwon involved strip searches, shackling, and up to an hour in the van prior to movement.

The day began at 6.00am. They would arrive at court between 8.50am and 9.30am, and arrive back at Barwon between 6.00pm and 7.00pm, with lights out at 9.00pm. In between the accused were expected to participate in one of the most complex criminal trials ever conducted.

Tellingly, Justice Bongiorno found that 'neither Corrections Victoria nor the Crown has ever placed any evidence before this court in any form to justify either the accuseds' classification or their treatment which is, in terms of this trial, intolerable'.

Psychiatric and psychological evidence was placed before the court which concluded that the accuseds' capacity to conduct their defence and concentrate on daily court proceedings was diminished by their prison conditions.

These conditions, in the words of Dr Douglas Bell, a forensic psychiatrist employed by Forensicare (the government provider of psychiatric services), 'would be likely to impact to a significant extent on the cognitive mental functions that would be required to attend to the trial process'.

In other words an accused cannot get a fair trial if his conditions of imprisonment affect his capacity to concentrate in court, understand the evidence and give instructions to his lawyers.

This is the first time a trial judge has challenged the executive to alter the conditions of an accused during a trial. While Justice Bongiorno recognised that it was not for the court to order any specific alterations to the terms of the accuseds' detention, he made it clear that if the trial was to proceed, his minimum alterations should be met, or the trial would be stayed and bail hearings listed.

The Accused were moved to MAP, the minimum conditions were met and the trial proceeded without many of the problems that had bedeviled it to that point because of the accuseds' health. Four of the accused were acquitted by the jury and a fifth was granted bail when the jury proved unable to reach a verdict.

Those acquitted have no legal recourse for the period and conditions of incarceration. Three years in the conditions as described by Justice Justice Bongiorno and acquitted — such is the price to be paid to maintain your innocence, plead not guilty and run a trial.

Were the accused to be punished prior to the outcome of the trial and irrespective of the jury verdict? To an objective observer it might seem that there was a presumption of guilt upon arrest for terrorism offences and punishment to commence immediately.

Fortunately in this case the independence of the judiciary prevailed, Ruling 20 was made and the fairness of the trial process in this respect was upheld.

This ruling has added another category to what constitutes an unfair trial. The accused are entitled to prison conditions that are humane and acknowledge the foundation stone of the criminal justice system — the presumption of innocence. In dealing with the conditions of remand prisoners and how these conditions affect the running of a criminal trial, Justice Justice Bongiorno has asserted the power of the court over the executive.

In this context it is unprecedented; in combination with the Victorian Charter of Human Rights, the conditions in which remand prisoners are held can be challenged and monitored by the courts. A trial cannot be fair if the accused are medically unfit to follow the proceedings because of their conditions of imprisonment.

Hopefully the prison authorities have taken note and this point will not have to be litigated again.

James MontgomeryJames Montgomery is a Senior Counsel at the Victorian Bar. He has been a criminal barrister for 30 years, and has specialised in murder trials for the last five. James appeared in R v Benbrika for Hany Taha, who was acquitted of all terrorism charges.


Topic tags: james montgomery, Ruling 20 of R v Benbrika [2008] VSC 80, remand, strip search, Justice Bongiorno



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Existing comments

We should indeed be thankful that we have judges like Bongiorno and a legal system that will challenge the executive in this way.

There is no doubt in my mind that over the Howard years we developed a two-tier system of justice - one for Muslims and the other for the rest of us, and the former has been a very rough form of justice.

However, it has not only been the Coalition Commonwealth [sic!] Government and the Federal Police and other federal agencies that have perpetrated these injustices - Labor State Governments and some of their agencies have been complicit to varied extents.

Thankfully the Victorian Police have not been as gung ho as their NSW colleagues but one cannot say the same about the Victorian prison system.

James Montgomery is 'hopeful that prison authorities have taken note' but I'll reserve my 'hopefulness' until I see signs that the Victorian Government has got the message and changed its attitude.

Warwick | 09 December 2008  

Sadly this just one of many instances of unfairness. Other examples are the treatment of Dr Haneef and the treatment of many genuine asylum seekers.

The powers that be seem determined that the treatment of yet to be found guilty people held in detention should be so harsh as to act as a deterrent to others. The presumption of innocence unless proved guilty no longer obtains.

If this practice continues Australia will cease to be a free democracy and for this reason alone James Montgomery's article needs to be given wide circulation: too few Australian citizens are aware of what the previous government did to remove fundamental elements of a true democracy.

D,D. | 09 December 2008  

The question still remains if a reasonable person would consider words to be a crime.

Jonah Bones | 09 December 2008  

Wow. What shame for Australia. We are become so like America - where is our dignity and fairness?

What a fantastic Justice to speak for justice for prisoners.

Maurice Shinnick | 09 December 2008  

Why do you have a gavel in the illustration beside the Terrorism Trial article? Were the defendants subject to the further indignity of trial in an American court?

Michael Grounds | 09 December 2008