A Victorian supreme court judge has strongly criticised police for the “idiotic” and “cruel” practice of unnecessarily waking up people in custody during the night under the guise of welfare checks.
Justice Michael Croucher said Victoria police needed to rethink its approach or it would result in the end of criminal trials “of any substantial duration” in regional courts where the accused had to be held in the local police station.
Croucher made the comments in a decision in May this year, where he agreed to move a murder trial from Shepparton to Melbourne after the accused argued they were too sleep deprived because police were waking them up in their cells every hour.
In a statement explaining his decision, which was published by the court this week, Croucher said he understood the statewide welfare policy of conducting an hourly check on detainees in police custody had been implemented after inquests into deaths in custody, but that those cases involved “circumstances nothing like the situation that obtains here”.
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He said the policy meant those in police cells were woken every hour, either by having a torch shone on them, or by being spoken to, or in some cases being asked to stand up, but that the detainees in this case were classified low risk for their physical and mental health.
“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,” Croucher said.
“This practice just should stop. It is idiotic. It is cruel. It is bone‑headed. It just should not be happening.”
Croucher agreed Kylie Stott, 40, Dimitri D’Elio, 27, and Danny Clarke, 41 – who were accused of kidnapping and murdering 19-year-old Charlie Gander and burning his body – could not receive a fair trial in Shepparton because they were too tired to meaningfully follow the trial and give instructions.
The judge noted the severity of their alleged crimes when he questioned why police would wake them up continuously throughout the night.
“These people are on trial for murder, the most serious crime in the criminal calendar, as well as kidnapping and arson,” Croucher said.
“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.
“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.”
Croucher made the criticisms of police on 27 May but they were only made public this week because his reasons for moving the trial could not be published until after it had finished.
D’Elio was found guilty of murder, kidnapping and arson, Stott was found guilty of kidnapping and manslaughter, and Clarke was found guilty of kidnapping.
Clarke was sentenced on Monday while D’Elio and Stott are due to be sentenced in February, the ABC reported.
