Conditions of Detention and Transportation and the Right to a Fair Trial

R v Benbrika & Ors (Ruling No 20) [2008] VSC 80 (20 March 2008) The applicants had been charged with terrorism-related offences under the Commonwealth Criminal Code.

They applied to have the trial stayed on grounds of unfairness, arguing the conditions of their incarceration and of their transport to and from Court each trial day were increasingly affecting their capacity to properly defend the charges against them.


The applicants had been incarcerated for more than 2 years (bail having been refused) in the Acacia Unit of HMP Barwon, a maximum security prison 60 kilometres south-west of Melbourne.  For the first year, they spent up to 23 hours per day in their cells and had very severe visitor restrictions.  Several changes were made to these conditions after March 2007 and before the application was brought.

At the time of the application, the applicants were housed in single cells.  When out of their cells, they were permitted to mix in groups of 3.  On court days, they were woken before 6am and offered breakfast, which some did not eat.  They were thoroughly strip-searched, handcuffed and shackled, and then placed in a van.  The trip to court usually took 65 to 80 minutes.  The vans were divided into small box-like steel compartments with padded steel seats, lit only by artificial light.   They were under video surveillance at all times.

When court proceedings finished for the day, the applicants were transported back to Acacia by the same method, returning between about 6pm and 7pm, and thoroughly strip-searched again.  They were given an evening meal, then at 9pm locked in their cells for the night.  Upon their return, the applicants were fatigued, which was observed to negatively affect their ability to focus, concentrate or stay awake.

Bongiorno J accepted expert evidence that, in these conditions, the applicants would:

  • be likely to become depressed, irritable and anxious, and would suffer fatigue, which would affect their concentration and memory; and
  • be more likely than an ordinary person to experience significant psychological and emotional difficulties, the burden of which would be cumulative and would be likely to impact significantly on the cognitive mental functions required to appropriately attend to the long and complex trial process they faced.

The applicants argued that the conditions of their incarceration and transportation denied them their right to a fair trial.  The effect of these conditions upon their powers of memory and concentration was, among other things, to reduce their ability to follow the evidence against them.  The issue was whether in these circumstances the applicants were being subjected to an unfair trial, such that the Court could exercise its jurisdiction to stay the proceeding.



Bongiorno J found that the trial was unfair and should be stayed unless the unfairness was remedied.

His Honour cited Privy Council and High Court authority for the proposition that at common law a superior court has inherent jurisdiction to make and enforce rules of practice in order to ensure fairness and convenience to both sides, including a general power to prevent unfairness to an accused, and a duty both to protect its process from abuse and to protect those who are brought before it from oppression or injustice.  This included taking action to prevent an unfair trial.

His Honour noted that the High Court in Dietrich v R (1992) 177 CLR 292 drew upon international instruments, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, as enshrining a basic minimum right of an accused in a criminal trial.  His Honour applied the law about the right of an accused to a fair trial as stated and developed by the High Court in favour of relying on the International Covenant on Civil and Political Rights or an earlier Supreme Court decision in which it was applied.

His Honour set out the minimum alterations to the applicants’ conditions of incarceration and transportation necessary to remove the unfairness affecting the trial.  These were that the applicants:

  • be incarcerated for the rest of the trial at the Metropolitan Assessment Prison;
  • be transported to and from court directly from and to the MAP without any detour;
  • not be shackled or subjected to any other restraining devices other than ordinary handcuffs not connected to a waist belt;
  • not be strip searched in any situation where they have been under constant supervision and have only been in secure areas;
  • have not less than 10 out-of-cell hours on days when they did not attend court; and
  • otherwise be subjected to conditions of incarceration not more onerous than those normally imposed on ordinary remand prisoners, including conditions as to professional and personal visitors.

Justice Bongiorno ordered that the Secretary of the Department of Justice or her nominee file an affidavit by 31 March 2008 (11 days after the decision date), deposing as to the conditions under which the accused were then incarcerated and the conditions under which it was proposed they would be incarcerated and transported for the remainder of the trial.  His Honour ordered the trial be adjourned to that day.  If the affidavit were not filed or if the proposed conditions did not meet the minimum alterations set out above, his Honour indicated the trial would be stayed until further order and the Court would list bail applications for as soon a date as possible.




The Charter was raised by the applicants but found not to apply for three reasons:

  • s 49(2) of the Charter operated to exclude the relevant proceedings, which had commenced in December 2006;
  • the requirement in s 35(1)(a) of the Charter that notice be given to the Attorney-General and Equal Opportunity and Human Rights Commission had not been complied with; and
  • the Charter’s application to a trial in Federal jurisdiction might raise constitutional issues requiring notices to be issued under s 78B of the Judiciary Act 1903 (Cth).

Justice Bongiorno also noted that s 35 of the Charter contained no severance provision or urgency exception, such as are found in s 78B of the Judiciary Act 1903, and said the lack of such provisions were ‘major impediments to the operation of the Charter which need the urgent attention of the Legislature’.  Interestingly, this paves the way for a declaration of inconsistent interpretation under s 36(2) of the Charter if it is not possible to read s 35 consistently with the right to a fair trial (his Honour effectively made a non-statutory declaration to this effect through his dicta).


The decision expands the content of the right to a fair trial at common law.  It is an interesting overlap of several Charter rights, including s 10(b) (right to protection from cruel, inhuman and degrading treatment); s 13(a) (right to privacy); s 22(1) (right of persons deprived of liberty to be treated with humanity and respect for human dignity); and s 24(1) (right to a fair hearing).

Bongiorno J noted that that the common law ‘right to a fair trial’ is actually a right not to be tried unfairly, and is an exercise by the court of its inherent jurisdiction to protect its own processes.  However, section 24(1) of the Charter provides a right which is a positive right to a fair trial belonging to an individual.

The decision is available at

Emrys Nekvapil, Human Rights Law Group, Mallesons Stephen Jaques