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Supreme Court 24 April 2018

R v Gatt (No 8)

[2018] NSWSC 489

Public order & justice offences
CRIMINAL LAW PROCEDURE DIRECTION SOUGHT

Citation: R v Gatt (No 8) [2018] NSWSC 489
Court: Supreme Court of New South Wales
Date: 24 April 2018
Judge(s): Schmidt J

Background

During an ongoing criminal trial, an issue arose concerning the adequacy of food being provided to the accused, who was held in custody and transported each day from prison to the court complex. The accused's daily routine required him to wake at approximately 4am, receive one portion of cereal before leaving the prison, receive only a sandwich at the court cells around midday, and then return to the prison in the evening after the meal period had passed, often leaving him with little or nothing to eat at the end of the day.

Counsel for the accused raised the issue with Schmidt J, submitting that this cycle was significantly affecting the accused's ability to participate in the trial. The Crown did not oppose arrangements being made for the accused's lawyers to provide him with more substantial food at lunchtime.

The presiding judge initially requested informally that those responsible for the accused's custody facilitate the provision of food. That request was not followed: despite his lawyers obtaining food for him, the accused was given only two corrective services-issued cheese sandwiches that day. The following day, the accused was too ill to continue giving evidence, having spent the morning vomiting.

  • Whether the Supreme Court has power to direct that food be provided to an accused in custody during the course of a trial.
  • Whether the circumstances that had arisen, particularly the health impact on the accused and his capacity to participate, warranted the exercise of that power.

Decision

Schmidt J concluded that the Court possessed the necessary power to make directions about the provision of food to the accused. The foundation for this conclusion was the Court's fundamental obligation to ensure a fair trial, as affirmed by the High Court in Jago v District Court of NSW (1989) 168 CLR 23. Processes that create a real risk of an unfair trial constitute an abuse of process, and the Court is entitled to take steps to prevent that outcome.

By the time the issue crystallised, the accused had been awake for approximately 12 hours, had consumed very little food, still faced a lengthy wait before reaching the prison, and would miss the normal meal period upon arrival. He then had only limited hours before being required to rise again at 4am. Schmidt J was satisfied that the repetition of this cycle over the remaining weeks of trial carried a real risk of rendering the trial unfair.

The Court Security Act 2005 (NSW) was noted as relevant to the security dimension of the situation, but its s 5 expressly preserves all other powers of a court in relation to the conduct of proceedings. The Criminal Procedure Act 1986 (NSW) further confirmed a broad general power for a court to make orders, determinations, and directions as appropriate for the efficient management and conduct of a trial.

Both the Crown and defence accepted that the power existed and should be exercised. Schmidt J issued a direction permitting the accused's lawyers to provide him with food in the dock, in closed court during the lunch adjournment, in the presence of corrective services and sheriff's officers. Before the direction took practical effect, the necessary co-operation was obtained at the request of counsel during the morning tea adjournment, and the direction was withdrawn.

Orders Made

No orders were made in this decision. The direction given by Schmidt J was withdrawn after the issue was resolved through co-operation, rendering formal enforcement unnecessary.

Key Takeaways

  • The Supreme Court confirmed it holds an inherent power to make directions about the provision of food to an accused in custody where there is a real risk that inadequate nutrition will render a trial unfair.
  • A fair trial is a fundamental obligation of the court. Relying on Jago v District Court of NSW, Schmidt J held that management of a person in custody that creates a real risk of an unfair trial can amount to a misuse of the court process.
  • Under s 5 of the Court Security Act 2005 (NSW), the powers conferred by that Act are expressly additional to, and do not derogate from, any other power of a court in relation to the conduct of proceedings.
  • The Criminal Procedure Act 1986 (NSW) provides courts with a broad general power to make orders and give directions as appropriate for the efficient management and conduct of a trial, including in response to unexpected disruptions arising from factors beyond the conduct of the parties.
  • Both the Crown and defence agreed the power existed in these circumstances, reinforcing that the fair trial obligation extends to practical conditions affecting an accused's capacity to participate effectively in proceedings.

Legislation and Cases Referenced

Legislation:
- Court Security Act 2005 (NSW), ss 3, 5, 7, 8
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46