A PANEL OF JUDGES TO RULE ON JUDGES
PULL THE OTHER LEG
If Attorney General Rob Hulls Rob Hulls is committed to the 'modernising
of the administration of justice' (Push for panel to rule on Judges
- Age - Friday 26 December) he has a funny way of showing it.
The creation of a panel of three judges - as proposed by Crown
Prosecutor Peter Sallman - to investigate serious judicial misdemeanours
will not pacify those who believe outmoded thought and insidious
forms of discrimination have been an inherent feature of the criminal
Contrary to the views of some sections of the legal fraternity,
community disquiet about the administering of law is not confined
to 'red necks' and irrational proponents of capital punishment
and tougher sentencing. Although the Law Reform Commission will
soon deliver a report on the Criminal Justice system, its study
of the now discredited law of provocation is restricted to only
a handful of years and cases. This is no way to track the evolution
of bad judgments.
It's instructive that County Court Judge, Bob Kent's, conviction
on tax charges in 2001 is cited as a major reason for the government
commissioning the current review. Although judges should abide
by the laws they administer, of greater significance are the principles
they articulate in the administering of law. If the Law Reform
Commission were to look at the post war evolution of the law of
provocation Bob Kent's thoughts in R v Crowe (1987) would have
greater significance than his failure to fill out a tax return.
In that case, Kent, then a defence barrister, sought the concurrence
of Justice Alan McDonald for the admission of nude photos of a
woman shot dead by her estranged partner, Kevin Crowe. 'We would
submit it is a proper and valid argument to say it is relevant
to know that the person who is deceased in this case was an attractive
woman both in face and body and was in fact the wife of the deceased
man. And that in those circumstances a juror might say, 'an ordinary
man in this man's situation may well have acted, lost control
and acted in that way (the photos show) she is somebody whom we
could understand him having a great passion for,' Kent had argued.
'She was a prostitute. I can't see how photographs would be seen
to attack her character,' Justice McDonald was to tell prosecutor
Mr Parkinson when he opposed the admissibility of the photos.
Parkinson withdrew his objection and the judge eventually allowed
a defence of provocation. Given Crowe had callously shot dead
Christine Boyce in front of her two children it was an astounding
decision. It remains one of the most astonishing transcripts among
the piles of criminal records I studied when researching my book
'Just another little Murder' in 2002. Such transcripts tell us
much more about the attitude of judges and their reluctance to
challenge the shameless misogyny of the law than does any social
or legal indiscretion.
Although the legal fraternity will argue that the Appeal Court
is well equipped to deal with the errors of trial judges, I remain
unconvinced. The criminal justice archives are rife with cases
that should have been referred to an Appeal Court but instead
have become imbedded in precedent to be drawn upon by other judges.
So often the victims in these cases are women from working class
families that have a limited capacity to generate public discussion.
That Professor Sallman's review found only two complaints about
Supreme Court judges in 2000 tells us nothing about the attitude
of judges. If Professor Sallman had looked he'd have found numerous
cases of judges institutionalising outmoded interpretations of
the kind contained in R v Crowe. To say, as Rob Hulls does, he
'has full confidence in the professionalism and excellence of
Victoria's judiciary' only obscures the issue.
My criticism of former Judge George Hampel's handling of the
case involving the murder of my sister (R v Keogh 1987) has been
very public. That criticism has nothing to do with misbehaviour
and everything to do with what I believe was the judge's outmoded
view of relationships and the rights of a woman. I've said the
same about Justice McDonald's ruling in R v Crowe and Justice
Lush's granting of a defense of provocation to a Turkish Muslim
father (R v Dincer 1982) who argued that his daughter's relationship
with a young man had provoked him to stab her to death.
It's truly staggering that the legal fraternity has remained
silent on these and so many similar cases. As with our treatment
of indigenous Australians, too often the stories have been hidden
away. A democratic society must offer the community a channel
through which to express its concerns about the operation of the
criminal justice system. And whilst it's not the case that all
or most judges are imbued with outmoded views of the world, institutionalised
discrimination, as the Law Reform Commission is sure to find in
relation to the law of provocation, has been an insidious force.
It's time for Rob Hulls to bite the bullet and create a genuine
and diverse committee, not a panel of judicial insiders, to deal
with the legitimate concerns of progressive members of the community
about the operation of the law.