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Terrorism trial's legacy of fairness

  • 09 December 2008
In 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