Justice Michael Croucher said the Victoria Police policy of waking people held in the police cells every hour to check on their welfare was akin to torture.
He also warned that such a policy could mean that long court trials where the accused person was in custody may not be able to be held in regional courts such as Shepparton in the future.
Justice Croucher made his remarks during the pre-trial discussions in May last year in the case of the death of Benalla’s Charlie Gander, 19, who was kidnapped, and then killed, before his body was placed in a vehicle that was then set alight on a remote road at Bunbartha in 2022.
His remarks were only allowed to be made public in late December after the jury had returned a verdict so the comments would not influence a jury.
Dimitri D’Elio, 27, of Mooroopna, Kylie Anne Stott, 40, of Shepparton, and Danny Clarke, 41, of Shepparton all stood trial in front of a jury, with all three charged with the murder and kidnapping of Mr Gander and the arson of his car.
D’Elio was found guilty of murder, kidnapping and arson, while Stott was found guilty of manslaughter and kidnapping.
Clarke was found guilty of kidnapping.
The trio were to be held in the police cells in Shepparton throughout the trial.
Justice Croucher took the unusual step of moving the trial from Shepparton to Melbourne.
The Victoria Police policy of welfare checks on anyone in police cells was introduced after coronial inquests where people had died in custody — including First Nations woman Veronica Nelson, who died in 2020 in a cell at the Dame Phyllis Frost Centre in the western Melbourne suburb of Deer Park.
However, Justice Croucher said the circumstances of this case were different and there was no evidence these accused would require that type of monitoring.
He said the consequences of this happening every night during a long trial was that the accused would appear tired in the dock, or could fall asleep during the trial.
He also said they would be disadvantaged when giving evidence because they were so tired and it would make it harder for them to follow the trial and give instructions to their defence counsels.
“These people are on trial for murder, the most serious crime in the criminal calendar, as well as kidnapping and arson,” Justice 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.
“The practice just should stop.
“It is idiotic. It is cruel. It is bone‑headed.”
In moving the trial to Melbourne, Justice Croucher noted that he did not blame local police officers for waking prisoners.
“They are just doing their job,” he said.
“But those who are responsible for making these policies — or for commanding others to enforce them — really need their heads read.”
Justice Croucher moved the trial to Melbourne — where the three accused would be able to be housed in prisons that did not use such a policy. The trial ended up running for 29 days.
He also warned that this could mean the end of long trials being held in regional centres such as Shepparton if an accused person was in custody, because it was too far to transport accused between prisons and the court each day.
“Here, in Shepparton, we have this relatively new, massive, purpose‑built building …. and, yet, if this practice continues, they are not to be used for such trials,” Justice Croucher said.
When questioned about the policy, Victoria Police issued a statement that the organisation “has strict policies in place to ensure the safe management of people in police custody”.
“These processes take into account prisoner welfare and are regularly reviewed to ensure police are supporting the human rights of any detained person,” the statement said.
In December, Clarke was sentenced to three years in prison on the kidnapping charge and another year on a separate arson charge not related to Mr Gander’s death, with a non-parole period of two years and four months set.
D’Elio and Stott will be sentenced in February.
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