The law is supposed to reflect current social attitudes and values – but the Australian justice system appears to be moving backwards in some areas rather than forwards.
Unlike most developed countries, which have aligned their laws with an increased acceptance of gay marriage, the Australian legal system appears to be increasingly out of touch with modern ideals – as exemplified by a District Court judge comparing incest and paedophilia with homosexuality.
Judge in Hot Water
Judge Garry Neilson attracted criticism last year after he refused to allow “tendency evidence” in a case concerning a 58-year-old man known only as ‘MRM’, who allegedly sexually assaulted his sister several times in 1981, when she was aged 17 or 18.
Tendency evidence is that which shows a pattern of behaviour – and therefore indicates that the defendant has a tendency to act in a particular manner or has a particular state of mind.
Tendency evidence is not admissible unless it has ‘significant probative value’.
In the MRM case, the tendency evidence which was ruled inadmissible concerned the defendant’s decision to plead guilty to sexual assault charges involving the same complainant several years previously, when she was aged 10 or 11.
The prosecution argued that this showed that the defendant had a tendency to have a sexual interest in his sister, and to have sexual relations with her.
But Judge Neilson disallowed the evidence, saying that the sexual conduct that was the subject of the present trial occurred in a different context to that which occurred when the complainant was a child.
According to the Judge, the two incidents differed due to the difference in the complainant’s age at the time of each offence, and the fact that the later alleged offence occurred after she had had other sexual relationships with men and had given birth to a child.
In handing down his decision, the Judge commented that ‘a jury may find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men, and was now ‘available,’ not having [a] a sexual partner.’
The Judge then compared incest to homosexuality, making the point that homosexuality was once considered ‘unnatural’ and ‘taboo’ – implying that incest may one day become as widely accepted as homosexuality.
His Honour then went on to concede that incest was currently criminalised because of the potential for it to result in genetic abnormalities in children, but then stated that these risks could be reduced through contraception and abortion.
The Aftermath
Unsurprisingly, the Judge’s comments were condemned, both by other judges and the wider community.
The Crown Prosecutor in the MRM case, Sally Dowling SC, asked for the case to be transferred to another District Court Judge.
The Court of Criminal Appeal ruled that the tendency evidence was admissible, and MRM was ultimately convicted of carnal knowledge and incest. He received a two year suspended sentence.
Meanwhile, Judge Neilson was stood down from his position and referred to the Judicial Commission.
The Judicial Commission is an independent statutory body that, amongst other things, investigates complaints against members of the judiciary in New South Wales.
The Commission heard evidence this week from Judge Neilson, who has back-peddled on his previous comments, telling a panel of three members that his comments were ‘unfortunate’ and ‘misinterpreted,’ and that he simply meant that members of the community were more willing to accept the reality that sexual activity between family members took place – and that he was merely comparing this to the situation in the mid-20th century, when much of the general public refused to accept that homosexual sex took place.
However, Neilson conceded that his ‘attempt to convey that was extremely poor.’
He also sought to reassure the Commission that he believed incest was immoral, and that it should remain a criminal offence.
Mr Neilson’s barrister, Phillip Boulton SC, argued that he should not be referred to a joint sitting of parliament because he had not tried to defend the comments or deny that he had made them.
Mr Boulton also suggested that Neilson had already suffered public humiliation and embarrassment, and that it had been an ‘excruciating process.’
Boulton instead asked the Commission to refer Mr Neilson to the Chief Judge, Derek Price, and ban him from sitting in on sexual assault trials.
Boulton noted that his client had been reinstated, but only presided over civil cases.
After hearing closing submissions on Tuesday, the Commission adjourned the matter – meaning that Judge Neilson will have to wait for the outcome.
