WHAT PRICE JUSTICE

On 5 December the Victorian Law Reform Commission forum on 'Homicide in the Context of Violence Against Women' is almost certain to conclude that the criminal justice system has institutionalised laws and attitudes that seriously compromise the rights of women before the law. So, what was Robert Richter SC thinking when he told a legal gathering that having testicles was an impediment to promotion in the legal system under Attorney General Rob Hulls? Does anyone seriously believe that our legal system, either in the promotion of women lawyers or its treatment of women victims, is biased against men?

So embedded is the anti-female culture of the legal system that the new Chief Justice Marilyn Warren recalled in her 'Promoting Difference' speech in May 2003 how she'd once been shunned by a 'misogynist client' on the grounds of her gender. This poses a serious question. If the legal setting is so discriminatory, why does the glass ceiling faced by women lawyers rather than the culture of blame borne by women victims stir a female silk's passion? When the victim's a girl from the suburbs or when a victim's family cries foul it passes without a murmur. Why, for example, has no one questioned Justice Warren's decision to banish the family of murdered 17-year-old Luke Collins to the gallery of her court earlier this year?

Collins had been stabbed to death at Northland in 2001 and his family had chosen to wear blue ribbons to a pre-trial briefing in honour of his memory. The next day they were confronted by police and security men who told them they were banned from the body of the court. Despite the family's good character and their impeccable behaviour Justice Warren claimed her decision was 'in the interest of the smooth operation of the courts…(and)…the victim's family has no role in the proceedings.' When Collins' sister, Frances Duncan, protested in writing to the Chief Justice of the Supreme Court, John Harber Phillips and the Director of Public Prosecutions, Paul Coghlan, she was told it was Justice Warren's prerogative. Unfortunately, such stories are not rare.

Contrary to the myths perpetrated by defence lawyers and some judges, victims of crime are not irrational rednecks intent on revenge. More often than not they are thoughtful, decent people seeking nothing more than civilised justice. So why is it that supposedly intelligent men and women in wigs so often offend their sensibilities? And why is that when the court transcripts are scrutinised, so often they reflect the very misogyny about which Chief Justice Marilyn Warren opined in her May speech?

In that speech, Marilyn Warren praised the Attorney General for his 'affirmative action programme in the appointment of women as judges and magistrates.' Nowhere did she add her weight to the intense community and legal disquiet that has confronted Hulls' refusal to pardon convicted murderer Heather Osland. Although there was undisputed evidence that Osland's husband, Frank, had abused and raped her for fourteen years, and that her son David had struck the blow that killed him, Heather Osland received a fifteen-year gaol sentence. In a verdict that astonished everyone and led so many to point to deep misogyny in the law, her son was found not guilty. So much for the Attorney General's commitment to women!

Marilyn Warren does not have a public profile for speaking out against the anti-female assumptions of criminal law and the now discredited defence of provocation. Sadly, the pioneering work of barrister Jocelynne Scutt aside, female barristers have done little to rectify the institutionalised discrimination against women victims of violent crime. Whilst it might be argued that the entrenched views of Robert Richter and the boys of the Criminal Bar Association have made such progress difficult, it remains a disappointment.

If Robert Richter's public quip about testicles was so humiliating it caused Felicity Hampel SC to leave in protest, she might like to imagine what it's like for a family barred from court by the Chief Justice elect or what it's like to hear a judge allow a defence that effectively blames a woman for her own murder. The community doesn't just need women on the bench. It needs women with the courage, not just the intellect, to challenge the deep prejudices that the boys have exploited in the interest of an acquittal. It does need women prepared to 'stand up and be counted', as Warren said in her speech. However, we want them to stand up for the human rights of all people, victims and their families, men and women, and of course the defendant. Until such time the jury's still out.

Phil Cleary