The bashing to death of Keith Hibbins and the subsequent trial of a couple of blokes involved in what's been romantically labelled 'a citizen's arrest gone wrong' as Hibbins and his gay partner wandered through a public park, is a salutary lesson for all of us. Most people are not personally touched by violence or the court cases that accompany them. If they were, they wouldn't innocently ask, as Dianne Osborne did (Age Tues), "would any man who murdered his wife in an act of domestic violence be so absolved?" That sadly the answer is invariably 'yes' casts some light on the trial of Peter Dieber and John Whiteside.
The killing of my 25-year-old sister Vicki in 1987 and Justice George Hampel's subsequent granting of the right to a plea of provocation brought me face to face with the criminal law and the assumptions that underpin it. By the time the jury had handed down a verdict of not guilty to murder and Justice Hampel had locked Peter Keogh away for three years any illusions about equality before the law had been swept from my idealistic mind. Regrettably, the transformation of Vicki's Cleary into provocateur and her knife wielding killer into the tragic victim of a sudden loss of control was not some legal aberration.
The trial that followed the killing of Hibbins carries so many conceptual similarities. As is a defence lawyer's lot when men kill, Ian Hill QC (good bloke and all) attempted to sheet the blame for Hibbins' death to the woman whose cry of 'rape' on the edge of the park had sent the two blokes in search of a quarry. Hadn't Euvegina Tsionis' cry of 'rape', after being dumped drunk and partially clad from her boyfriend's car, caused Dieber and Whiteside to kill Hibbins, asked Hill? That Hibbins was bashed to death, as he lay bleeding and helplessly pinned against a parked car, was no impediment to Mr Hill's pursuit of Ms Tsionis. Where many commentator's saw "poofter bashing", euphemistically described by prosecutor Mr Morgan-Payler as punishment driven by "a sense of righteousness", Mr Hill spotted the hand of a woman.
When all else fails, blaming a woman is a reliable stand by. Not surprisingly, the cultural assumptions and legal logic underpinning so many cases in which women meet their death at the hands of violent men had found its way into this case. Since my sister's death I have met and heard from so many people shattered by the memory of the treatment meted out to a murdered daughter in 'civilised' western courts. Sandra Smart's sad, hand written letter to the Attorney General asking why the man with a recorded history of family violence who killed her 32 kg daughter in 1999 "will only have to serve two years and three months" is among the most recent letters.
When Heather Osland, despite her son propelling the weapon that killed Heather's brutally violent husband, was judged to have been like Shakespeare's Lady MacBeth, the real killer, neither the media nor the judiciary could find the mercy displayed by Justice Cummins. Osland received 15 years for her crime. Unlike Osland, as Justice Cummins reminded his court, the killers of Hibbins were victims of 'malevolent stars' not of malevolent minds or cultural prejudice. How these words must have torn at the heart of Hibbins' partner David Campbell as he sat seeking comfort in court.
Nowhere it seems was man's capacity for violence properly exposed to scrutiny. Could anyone really question Campbell for concluding on the basis of the sentence and more importantly the words of Justice Cummins that his partner had emerged as a legitimate target in the depressing act of violence carried out that night. To put the question more bluntly, would Justice Cummins have spent hours scouring Shakespeare and then waxed the bard's lines so lyrically had the dead man had a wife and had she and the children been centre stage weeping in the court? And what does Justice Cummins in quoting Shakespeare's, The fault, dear Brutus, is not in our stars, But in ourselves, want to have us believe? That we are all just waiting to kill some gay bloke in a park! Instead of playing with fiction he should be grappling with the reality of violence, including its origins and the role of wise people in ameliorating it.
Ultimately, how long Dieber and Whiteside should have served is not the real issue. Nor do I have any reason other than this act of violence to think they aren't ordinary, well-meaning blokes. The problem is that whenever acts of violence find their way into courts of law, society is obliged to ensure repressive cultural assumption doesn't impede the process of justice and thus diminish our respect for life. Regrettably, such are the anomalies in the justice system it's easy to conclude that there is a category of citizens, women killed by an estranged partner, prostitutes raped by a client, blacks and gay men, whose lives are less valued.
There is much more to this case than Shakespeare dreamed or Justice Cummins appears to understand. If there's a moral to this tale it's that men who dare to be homosexual share some of the same precarious ground as their murdered sisters. Challenging the authority of some men can be a dangerous past time. If we view this case in isolation, as the Premier's statements suggest he might well do, we will have failed to address the more profound question of whether flawed assumptions drive the law. Rather than sending out a political posse to evaluate sentencing, Premier Bracks should be asking the Attorney General Rob Hulls to talk tough about the cultural assumptions upon which our criminal justice system is based.
The Age July 2000