As published in the Age newspaper
Our Justice System is Failing Women
If only Chief Justice Marilyn Warren’s (Age Wednesday 11 December) defence of the courts and her colleagues on the Adult Parole Board had acknowledged some of the well-documented failings of the justice system. If only she’d expressed some disquiet about the system’s inability to stop the march of Jill Meagher’s killer, Adrian Bayley, and other woman haters. Instead of addressing the considered concerns of those who believe the justice system has a flawed history when dealing with violence against women, the Chief Justice takes a scattergun approach, describing criticism of the board and its Chairs, Justices Simon Whelan and Elizabeth Curtain as ‘quite disgraceful’, the media’s reporting as ‘selective’ and the social media as prone to misrepresenting the deliberations of judges.
Justice Warren is right to point the finger at the Napthine government for playing the law-and-order card and to accuse some commentators of misrepresenting the deliberations of the courts. Dispensing justice is clearly not as easy as the tough-on-crime posse would have us believe and its administration should not become the victim of a cheap grab for votes. However the Chief Justice’s protestations should not come at the expense of an assessment of the system’s failures in dealing with violence against women. How many women must die at the hands of misogynist recidivists like Adrian Bayley and how many men must be found not guilty of murder after killing a woman known intimately to them before Justice Warren will say there might be a problem?
I became an activist for change and a critic of the justice system in 1989 when my sister’s killer was offered a provocation defence, found not guilty of murder and sentenced to less than four years gaol by Justice George Hampel. In the ensuing years provocation was so discredited that in 2005 the Labor government abolished it. Regrettably, that did not stop the killings or the confounding manslaughter verdicts for ‘wife killers’. What Labor didn’t address, because it hadn’t thought about it, was the deep-seated prejudices that underpin trials involving ‘family violence’. Prejudices brought to life in atrocious courtroom narratives that blame women for their death.
It came as no surprise to me that under the defensive homicide law that replaced provocation a string of men – R v Sherna (2009), R v Middendorp (2010), R v Grimmett (2011) - were found not guilty of murdering women known intimately to them. Now that law is to be abolished, yet no one is asking why replacing one law with another appears to change nothing. Beneath the media generated hysteria about the dangers faced by women on the street in the aftermath of Jill Meagher’s 2012 murder a fundamental question was swirling in people’s minds. Was Bayley – a multiple rapist - on the street only because the justice system is blind sighted when it comes to violence against women? The parents of Colleen and Laura Irwin asked the same question in 2006 after their daughters were raped and murdered by William Watkins, a violent misogynist and convicted rapist, living next door.
The stabbing murder of Adriana Donato in Aberfeldie in August 2012 by ex-boyfriend James Stoneham was the archetypical ‘domestic murder’ except that the killer pleaded guilty, thus sparing Adriana’s family a demeaning courtroom narrative. Yet in a decision I found mystifying, Justice Croucher, ruled that he was not satisfied beyond reasonable doubt that Stoneham – alleged to have been suffering depression - had actually intended to kill rather than inflict serious injury. I believe, based on the facts, that men who kill in such circumstances never intend only to inflict serious injury - Stoneham had told people of his intention to kill Adriana - and that the judge’s finding could lead some to believe the killer was a victim, something redolent of the old provocation law.
That Justice Croucher cried, described the killing as chilling and devoted an hour to his sentencing remarks clearly indicates that judges now understand the importance of offering comfort to the family of a murdered woman. Justice Warren has every right to claim this as progress. However what cannot be disputed is that historically, violent men, the bloke who killed my sister, William Watkins and Adrian Bayley and so many others have been treated with kid gloves while dead women continue to be pilloried in courtrooms. If Justices Whelan and Curtain were ‘hung out to dry’ as the Chief Justice claims, maybe they were the scapegoats for a justice system in need of deep reform.