R v Benbrika & Ors

2 All of the accused are in custody and have been so since their arrest in late 2005 and early 2006. Some have had bail refused. Some have not applied for bail. That they are all in custody is not surprising having regard to the provisions of s 15AA of the Crimes Act 1914 (Cth) which places a heavy onus on an accused person charged with the offences upon which these accused have been indicted, who seeks to obtain bail. At the time the application the subject of this ruling was argued all of the accused were being held in custody in the Acacia Unit at HM Prison Barwon, a maximum security prison situated at Lara, some 60 or so kilometres south-west of Melbourne. The conditions in which they were being held were severe, probably the most severe of any prisoners within the Victorian prison system. Until March this year, when some accommodation was reached between the accused's lawyers and their custodians, their conditions were even harsher, involving long periods of solitary incarceration, severe restriction on receiving visitors, the requirement to wear prison clothing (in direct contravention of a statutory provision[1] that they not be required to do so), frequent strip searches and restriction on the free practice of their religion, Islam. As well as these privations the accused were severely hampered in a number of different ways in preparing their defences to the charges they are facing. There were restrictions on material they could have in their cells, particularly material in a language other than English and in respect of access to their lawyers.

3 On 19 March of this year a general application was brought by a number of the accused for a stay of proceedings in respect of their indictment on the grounds that the conditions under which they were being held, including the conditions under which they were brought by vehicle to court, were such that their right to a fair trial was infringed by their being unable to prepare their cases adequately because of these conditions. In the course of the hearing of that application discussions were held between the accused's legal representatives and representatives of their custodian, the Secretary of the Department of Justice of Victoria. She has custody of most prisoners in the State by virtue of the Corrections Act 1986 (Vic), even Commonwealth prisoners. This is because s 120 of the Australian Constitution requires each of the States to provide custodial facilities for persons accused or convicted of offences against the laws of the Commonwealth.

4 The discussions to which I have referred resulted in arrangements being made to alleviate to some extent at least the conditions under which the accused were being held. The details of those arrangements have not been made known to the Court but as a result of them the accused have not pressed their application for a stay of the indictment filed against them further and it has been stood over generally.

5 Proceedings against the accused have generally been conducted in Court 3.3 in the County Court building which has been temporarily provided to the Court for the conduct of this trial. Court 3.3 is the ceremonial court used by the County Court and is probably the only court in the Victorian justice system which could accommodate a trial in which 13, or even 12, accused were involved.

6 Court 3.3 can accommodate 15 jurors and, depending upon the configuration of Bar tables, upwards of 15 members of counsel and their instructing solicitors. As envisaged for this trial it will accommodate 17 members of counsel and their instructing solicitors. There is also room for the installation of information technology equipment and its operators.

7 At the back of the Court there is a dock consisting of two rows of seats in a wooden enclosure. In front of each row of seats is a slightly curved wooden barrier about .87 metres high. At present, superimposed on the dock is a perspex structure which not only isolates the dock and its occupants from the body of the Court but also serves to create a number of small cells in the dock itself, each containing two seats bolted to the floor. Each cell is surrounded on three sides by the perspex screen which sits on the floor and rises to a height of 1.8 metres. There are also a number of computer screens positioned at regular intervals in front of the accuseds' seats. The height of the perspex screen effectively prevents conversation, particularly private conversation, over the wooden dock wall as would, and does, occur in any ordinary court room. At present the position of the perspex screen in front of each seat in the dock means that, for a person of average height or above, the occupant's knees are jammed hard against the perspex necessitating frequent postural adjustment to achieve even a moderate degree of comfort. However, the Court understands that, should the perspex screens remain, the seats would be able to be repositioned slightly backwards to eliminate, or at least minimise, this problem.

8 By applications dated 1 June 2007, two of the accused, Shoue Hammoud and Aimen Joud, sought orders that, prior to the trial of the proceeding commencing before a jury, the perspex screens to which I have referred be removed, essentially on the ground that their presence precluded, or at least militated against, their having a fair trial on the indictment to which they have pleaded not guilty. Subsequently, the rest of the accused joined in this application which was eventually heard on 12 June when, in a commendable spirit of co-operation between counsel, argument for all the accused was presented by Mr J. McMahon of Counsel who appears for Ahmed Raad. Also, by the time the matter was argued it concerned not just the conditions under which the accused were held in the dock but the question of in-court security generally and its possible effect on the accuseds' right to a fair trial including questions going to their right to consult their counsel and solicitors freely during the course of the trial.

9 Dr D. Neal of Senior Counsel sought leave of the Court, which was granted, to appear for Corrections Victoria, the name of a Department of Justice entity responsible for carrying out the statutory obligations of the Secretary of that Department with respect to the custody and transport of prisoners, including Commonwealth prisoners.

10 Mr Robinson (now SC), for the Crown, informed the Court that the Commonwealth Director of Public Prosecutions did not wish to be heard on the accuseds' applications, at least at this stage. He submitted that the Crown had no interest in the outcome of the application. Although this may not be strictly accurate, I accepted his position and, having regard to the course I propose to take, no prejudice to the Crown will result. Should further developments change this situation the Crown will have the opportunity to become involved.

11 Mr McMahon's submission was that the perspex screens are burdensome and oppressive. They have the effect of cutting the accused off from the rest of the court room and that the burden and oppression thus created would render a trial under such circumstances unfair. This is particularly so, submits Mr McMahon, because outside the court room the accused are being subjected to a very harsh regime of imprisonment in Acacia Unit at Barwon. He quoted from the evidence given by a psychiatrist, Dr Bell, on a bail application for one of the accused to the effect that the conditions in Acacia would challenge the psychological coping capacity of any mentally able individual. He argued that the accused will have undergone this regime for more than two years by the time this trial is finished. In fact it may be closer to three years.

12 Mr McMahon referred to s 390(2) of the Crimes Act 1958 (Vic) which imposes duties on the Chief Commissioner of Police with respect to security in trial court rooms in this State and the capacity of the presiding judge to request that extra police be deployed if necessary. He also referred to cases from Queensland and New South Wales, Farr v The Queen[2] and R v E.J Smith[3] in the NSW Court of Criminal Appeal and, on an application for special leave to appeal to the High Court of Australia.[4]

13 Mr McMahon submitted that the question of security in a court is ultimately a matter for the trial judge but that any security which is out of the ordinary should be no more obvious than is absolutely necessary. The perspex screen is unnecessary he argued, having regard to the antecedents of the accused, their behaviour so far at both the committal (which was also held in this Court) and this trial, the extraordinary regime of searching they are currently subjected to and the security screening which everyone else who enters the court room is subjected to, both at the entrance to the County Court building and at the entrance to the court room itself. He argued that 26 security officers, which is the number Corrections Victoria assert would be necessary without the perspex in place, is excessive. He referred to the issue of the accused's classification by Corrections Victoria and their alleged dangerousness. He submitted that, given the level of security proposed, it would be difficult for a jury to be persuaded that they were not being asked to convict the accused in circumstances where "the authorities" or "the Government" had already decided they were a danger to the community - thus causing severe and irremediable prejudice to their case.

14 There are a number of affidavits before the Court dealing with issues concerning the accuseds' custody at Barwon Prison, their transport arrangements to and from Barwon Prison and the circumstances in which they have been held whilst in court. It is only with respect to the last of these matters that those affidavits are now relevant, having regard to the issues with which this ruling is concerned.

15 In an affidavit sworn 20 March 2007, Roderick John Wise, the Acting Deputy Commissioner, Prisons, of Corrections Victoria described a security assessment of the accused in this case. Mr Wise said:

1. The defendants have been assessed by Corrections Victoria as to their appropriate security classification while they are remanded in custody. The major factors that were considered were:

(a) The serious nature of the charges brought against the defendants;

(b) the State's duty of care to place the defendants safely and securely, including the risk that others in the prison system might be prepared to harm the defendants; and

(c) the defendants' alleged links with senior members of a terrorist organisation.

16 In his oral evidence before the Court in March Mr Wise explained the security classification system of Corrections Victoria as it was applied to the accused in this case. He said:

... the things that I would find as being central are the length of sentence that a prisoner is serving or might be anticipated to serve, the danger that he or she might pose to the community were he or she to escape and whether the prisoner possesses the means and the motivation to escape.

Mr Wise said that he opposed the removal of the perspex screens currently on the dock. If they remained he thought that, potentially at least, two barristers and two solicitors for two different clients could confer with those clients in the dock at any one time.

17 Neither in his affidavit nor in his oral evidence did Mr Wise explain how the security assessment applied to the accused in this case was arrived at. He said that that security rating was set by the Director of the Offender Management Unit, that "a range of factors" would have been taken into account and that there were "formal reports" compiled in relation to the classification process. He said that these formal reports might take into account even press reports on matters of terrorism. None of the formal reports to which Mr Wise referred were produced to the Court, but in re-examination Mr Wise described the security rating of the accused in this case, at least by implication, as being "A1", the maximum security level in the system.

18 Further affidavits were filed on behalf of Corrections Victoria in preparation for the accuseds' application heard in June, for relief in respect of the conditions under which they were being held (and were proposed to be held) in this Court. One such affidavit was sworn by Michael Francis Carroll on 4 June 2007. Mr Carroll was Acting Commissioner, Prisons when he swore his affidavit but his substantive position was Director, Offender Management Services within Corrections Victoria. He said that in that capacity he made the final decision as to the classification of the accused in this case when they were remanded in custody. He listed the following as the matters he took into account in reaching the classification which he did:

(a) the serious nature of the charges brought against the defendants;

(b) the defendants' alleged links with senior members of international terrorist organisations;

(c) the State's duty of care to place the defendants safely and securely, including the risk that others in the prison system may harm the defendants;

(d) the possibility of funding or support from international terrorist organisations;

(e) the risk the defendants may join together and threaten prison security;

(f) the potential disruptive influence the defendants may have over other prisoners; and

(g) the risk to the defendants from other prisoners, when the defendants may be vocal in contrary views from those other prisoners [sic].

19 Mr Carroll said in his affidavit that officers of the Australian Federal Police provided information to him and his staff as to the details of the charges against the defendants, their alleged links to senior members of international terrorist organisations, and the apparent personal dynamics within the defendants' group. However, none of that information was included in Mr Carroll's affidavit and no offer was made to provide that information to the Court on a confidential basis if that was thought to be necessary.

20 As well as the affidavit material referred to there was also before the Court two DVDs containing video images of incidents involving Majed Raad and Bassam Raad. The first video shows Bassam Raad becoming hysterical during a police interview and demanding that handcuffs be taken off him because, as he alleged, they were injuring his wrists. He abused the police officers who ultimately suspended the interview because of his behaviour.

21 In the second DVD Bassam Raad and Majed Raad are shown engaged in an altercation with press photographers outside the Melbourne Magistrates' Court on 8 November 2005, the occasion of nine of the accuseds' first appearance in that court. As a result of that incident Majed Raad was convicted and fined $500 and Bassam Raad was sentenced to 90 days' imprisonment on charges of affray. Apart from an event described in Mr Aird's affidavit of an exchange between some of the accused and a witness during the committal proceeding in the Magistrates' Court which appears to have been of little consequence, the two videos constitute the only evidence of violent behaviour on the part of any of the accused.

22 Dr Neal based his case on a submission that the Court should accept the expertise of Mr Aird and his assessment of the accused and his opinion as to the security which needed to be in place for the safety of the public and the safety of the accused themselves during the trial. He argued that the perspex screen should remain intact on the dock as it was considered necessary by Corrections Victoria, the staff of which had particular expertise in prisoner management. He referred to a decision of Byrne J in this Court, R v Binse.[5] This case concerned the treatment of a prisoner within a prison in circumstances where the prison authorities considered it necessary to restrict the prisoner's movements by the use of extreme restraints. Its relevance to the circumstance with which this ruling is concerned is peripheral, although both the trial judge and the Court of Appeal each considered that the opinion of professional prison authorities in the area of prisoner management should be respected by the Court. Thus, argued Dr Neal, the Court in this instance should yield to the expert opinion of Mr R. Aird and/or Mr Carroll.

23 The responsibility for security within a court room ultimately rests with the trial judge. As the New South Wales Court of Criminal Appeal pointed out in R v EJ Smith,[6] that responsibility carries with it a corresponding absolute authority in respect of matters of security - an authority which may be exercised without notice either to the Crown or to the accused. Such judicial authority is specifically preserved in this State by s 5 of the Court Security Act 1980 (Vic).

24 But judicial authority with respect to court security must always be exercised having regard to the paramount obligation on the Court to ensure, as far as possible, that the accused have a fair trial conducted according to law. As Brennan J (as his Honour then was) in Jago v District Court (NSW)[7] 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.

To the matters referred to by Brennan J as being within the power of a trial judge to avoid unfairness might also be added the authority to which I have already referred to regulate the security arrangements within the court room.

25 In refusing special leave to appeal in Smith v The Queen, to which reference has already been made, Gibbs CJ referred to the obligation on a trial judge with respect to security arrangements within the court. His Honour (with whom Wilson and Dawson JJ agreed) said:

When it is necessary for a trial judge to take special precautions for the security of the jury (a situation which one would expect to be exceptional) the judge should take special care to ensure that the precautions are no more obvious than is necessary, and that all possible steps are taken to avoid or mitigate the prejudicial effect which such precautions may have on the mind of the jury. It may in some cases be desirable for the judge to advise the accused of the nature of the precautions or to warn the jury that they should not be influenced by the fact that the precautions were taken. But whether that will be so must depend on the circumstances of the case.[8]

26 Although, in recent times, most of the accused have elected not to attend the Court on the hearing of preliminary applications and have, accordingly, been excused, I have had ample opportunity on many occasions over many months to observe them in the dock, their demeanour and their interaction with each other, their guards and their lawyers. I have also, particularly recently, been able to observe them in the new video facility at Barwon Prison. On no occasion have I witnessed any behaviour of any of the accused either singly or together which would give any cause for concern let alone alarm from a security point of view.

27 I have also observed closely the effect of the perspex screens and assessed the likely perception of a member of the public as to that effect and the fact that there are usually a very large number of uniformed prison officers in the court room, concentrated in and about the dock. Indeed, I specifically delayed publishing this ruling to enable maximum time for observation and assessment of all of these matters so that the ruling would be able to be made on as much material as possible before the trial proper commenced.

28 As far as the screens themselves are concerned I am satisfied that they have the effect contended for by Mr McMahon. They cut the accused off from the court room in such a way as to render the accuseds' presence hardly more real than if they appeared by video link. The presence of the computer monitors also does not assist in this regard although it is really the perspex screens themselves which create the effect. Although I am satisfied that the accused can generally hear the proceedings going on in the court room their capacity to communicate with each other is severely restricted and they cannot communicate with their lawyers unless those lawyers actually enter the dock area. As far as the presence of the prison officers is concerned the perception created by such a large number of them is that the accused are people who warrant being guarded in such a fashion to prevent their escape or to prevent other undesirable activity.

29 I am satisfied that the way in which it is currently proposed to accommodate the accused in this Court for their trial before a jury to be empanelled on 4 February 2008 is such as to materially diminish their right to the presumption of innocence - a right fundamental to the conduct of a fair trial and a right which is guaranteed to persons on trial in this State by s 25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The satisfactory amelioration of this situation can only be achieved by the removal of the perspex screens surrounding the dock and by restricting the number of uniformed prison officers in the court room at any one time. A re-arrangement and possible diminution in the number of computer monitors in the dock would also improve the accuseds' sightlines and those of the judge, jury and witnesses. If practicable that alteration should also be undertaken.

30 There are now 12 accused, one having pleaded guilty and been sentenced. I consider that a maximum of 12 uniformed prison officers should be permitted to be in the Court room at any one time during the trial when the jury is present or in the jury room. Whilst I still have some concerns as to the prejudicial effect that even this number may have, it recognises the concerns expressed by Mr Aird at least to some extent.

31 As far as the accused having access to their lawyers during the trial is concerned, without the perspex screens that access will be much more easily achieved. Common sense must prevail in the respect as I have observed it has during hearings so far. Normally lawyers only approach the dock after permission is granted to do so by the Court except during breaks in proceedings. The lawyers should adhere to the normal procedure modified, if necessary, to meet any reasonable concerns of the prison officers in Court at any particular time. Lawyers' failure to use their discretion appropriately might invite intervention by the Court.

32 Of course, this ruling will not affect the number of prison officers or police officers who may be in the immediate vicinity of the Court, available to support those within should the need arise. It should also be made clear that, should any of the accused act in a way inconsistent with the proper conduct of this trial, this ruling can be immediately revoked or modified to accommodate such changed circumstances - even to the extent, if necessary, of excluding the accused from the Court either temporarily or permanently. They should be under no misapprehension as to the power of the Court to ensure the orderly conduct of the trial and as to its willingness to use that power to the full should the need arise.

33 I direct that a copy of this ruling be provided, as soon as possible, to the Secretary of the Department of Justice and to Corrections Victoria. It is not proposed, at this stage, to make orders to give effect to it, having regard to the ordinary conventions. However, should there be any difficulty in implementing the directions which the Court has given appropriate arrangements can be made to make effective binding orders. Finally, as with all preliminary rulings of the nature, this ruling will, for obvious reasons, be the subject of a suppression order in the usual form until further order.

[1] Section 47 Corrections Act 1986 (Vic).

[2] (1994) 74 A Crim R 405.

[3] [1982] 2 NSWLR 608.

[4] Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532.

[5] Unreported, 25 July 1995 and on appeal [1998] 1 VR 381.

[6] [1982] 2 NSWLR 608.

[7] [1989] HCA 46; (1989) 168 CLR 23 at 34.

[8] Smith v The Queen [1985] HCA 62; (1985) 159 CLR 532, 534.