R v Stott & Ors

2 A jury panel is available here, in Shepparton, this afternoon. Indeed, a panel is waiting outside court right now.

3 I have been told that a court room and a jury panel are available in Melbourne first thing tomorrow, or in the afternoon, or the next day, as the case may be.

4 The reason the accused apply to move the trial to Melbourne is so as to be able to have a fair trial, whereas, if the matter remains here, the trial could not be run fairly. I accept that submission.

5 It would not be a fair trial here because I accept, from what I am told (and it seems to be agreed to a greater or lesser extent), that, because of a Victoria Police policy, which is said to be state‑wide, the accused, who are held here at the police cells during the week, are woken every hour at night either by being disturbed in their sleep for a check with a torch, or by being spoken to, and in some cases they are even asked to move or stand up. It is said sometimes it involves only ambient light going into the room. But, either way, the whole point of the policy is to check on the welfare of the accused and, necessarily, one would have thought, it requires the police to rouse or wake them to ensure that they are all right.

6 The difficulty is that this policy, it seems, has been introduced following a couple of notorious inquests that involved circumstances nothing like the situation that obtains here. There is no need, as far as I can tell, for these accused to be woken every hour, or disturbed in their sleep every hour, because of welfare concerns. There is no evidence that they are suffering mental or physical illness of the type that would require that sort of monitoring. They are classified as low a risk as the scale of classification allows, even by Victoria Police. Yet, still, this policy is being implemented - for goodness knows what purpose.

7 When they are at the prisons on weekends - i.e., Friday night through to Sunday night - they are not subjected to this indignity or this interruption of their sleep.

8 The consequence of their sleep being interrupted is that they may well appear tired in the dock, which is one thing, and that is bad enough. The jury will - as juries always do during trials - look at the accused, and, as Mr Sala (for Ms Stott) submitted, they will notice any tiredness in any accused who might nod off, and that would reflect badly on the others as well. Further, the fact that they are tired makes it harder for them to follow the trial and give instructions meaningfully. Further still, were they to give evidence in their own trial, they would be disadvantaged by being so tired.[1]

9 These people are on trial for murder, the most serious crime in the criminal calendar, as well as kidnapping and arson. It is unthinkable in today's world, to me at least, that police would engage in such behaviour all dressed up in the name of welfare.

10 If it is truly aimed at welfare, it is a complete and utter overreaction to completely different sets of circumstances that obtained in the inquests which, I was told, were the catalyst for these changes.

11 The practice just should stop. It is idiotic. It is cruel. It is bone‑headed. It just should not be happening. Sleep deprivation is a well‑known form of torture.

12 Obviously, it is not intended to be torture, but the effect of it is to deprive these accused of their sleep in circumstances where they need to be the best (or as fresh as) they can be when facing trial on such serious charges.

13 The presumption that usually applies - namely, that a trial should be heard in the region in which the alleged offending occurred - is displaced wholly and solely because of this idiotic policy and the intransigence of Victoria Police in refusing to bend to allow common sense to prevail in order to allow a fair trial to be heard here.

14 Perhaps something needs to be done about it at a higher level. I do not blame any of the police officers here in court. They are just doing their job, as is the nature of their role in the command‑militaristic structure the police have. But those who are responsible for making these policies (or for commanding others to enforce them) really need their heads read. They should think again.

15 It is well understood in the area of occupational health and safety law that, by introducing one measure to fix a concern or to offset a risk, it often creates another risk. Those who practice in that area know it too well. This is the sort of thing that has gone on here, it seems to me.

16 In any event, since a fair trial cannot be heard here in Shepparton under these conditions, since the Court can accommodate this case in Melbourne as of tomorrow, and even though there will be inconvenience in doing so (in the sense that the view that was to be conducted here from Shepparton would have been completed within a day, whereas, a view conducted from Melbourne will require the jury to come here overnight), and even though the presumption (or starting point) is that the trial should be heard here, the only course available, in the end, I think, is to grant the application and order that the trial commence before a jury in Melbourne post‑haste.

17 These are only ex tempore reasons. I shall publish detailed reasons at a later time.[2] Of course, I would not publish any reasons to the world at large during the course of this trial anyway, because of the fact that a jury will be empanelled, hopefully, sooner rather than later, and publication would risk their being prejudiced. But, after the trial, reasons will be published and they will go on the internet for all to see.[3]

18 Victoria Police needs to rethink its approach to this issue. The consequence will be that, if this practice is going on throughout the regions, where police act as the gaolers at least during the week at courts in those country areas that are too far from the prisons to allow accused persons to be transported between the courts and prisons each day - and this is one of those country areas, which Mr Gibson KC (for the Crown) accepts - then it is the end of criminal trials of any substantial duration in those regional courts when the accused are in custody.

19 Here, in Shepparton, we have this relatively new, massive, purpose‑built building, and there are similar buildings in other regional centres, and, yet, if this practice continues, they are not to be used for such trials. What a waste. What a disgrace. Victoria Police should hang their heads in shame. It is disgraceful.

20 In any event, I order that the trial be moved from Shepparton to be held in Melbourne pursuant to s 192 of the Criminal Procedure Act 2009 (Vic).

21 Section 192 provides that, if a court considers that (a) a fair trial in a criminal proceeding cannot otherwise be had or (b) for any other reason it is appropriate to do so, the court may order the trial be held in any other place that the court considers appropriate.

22 I make this order under s 192(a) because I consider a fair trial in this criminal proceeding cannot otherwise be had here in Shepparton simply because of the unjustified intransigence of Victoria Police in failing to yield in the application of its policy.

[1] As things turned out, two of the accused did give evidence before the jury at the trial in Melbourne.

[2] While this was my view when giving the ruling, on reflection, I consider it unnecessary to give more detailed reasons and that the reasons I gave ex tempore are sufficient.

[3] As the trial before the jury has been completed, it is now appropriate to publish these reasons.