Dear RobYou’d probably be aware that over the past decade I’ve written and made numerous public statements regarding what I consider are inconsistencies in the Criminal Justice system as it pertains to acts of violence against women. Whilst it’s true that the killing of my sister in 1987 and the subsequent granting of a defence of provocation by Justice George Hampel was the impetus for my position, it is the inconsistencies in the law that concern me.
Attorneys General have a great opportunity and indeed a responsibility to further the goal of equality before the law. So just as it’s imperative that decent people condemn, as you have done, the Northern Territory’s racially discriminatory sentencing regime, so too should you and we condemn the law when it discriminates against women or in favour of violent men. You would be aware that a recently commissioned Federal Government report, 'Fatal Offences against the Person', handed down a finding suggesting the law of provocation was gender biased. There is any number of thoughtful and scholarly people who would and do argue that discrimination against women is endemic in the criminal law. High Court judge Mary Gaudron is the most recent to declare that 'sexism is endemic in the law'.
Along with Mary Gaudron there are many non-legal people who, having experienced a trial involving the killing of a daughter, sister or mother, are baffled by the outcome. Too often they’re not in a position to generate public interest or catch the ear of a lawmaker. Yet in so many cases the stories that come my way are so similar to the one with which I’m familiar. The most recent have come from the De Jager and Smart families who lost a woman to an act of male violence only to be stunned by the court proceedings.
My contention is that Justice Hampel was wrong to allow a defence of provocation in my sister’s case. I did not accept then and still believe Justice Hampel to have been wrong in drawing on the killing of Zerrin Dincer by her Turkish father in 1981 to support defence counsel’s right to plead provocation in my sister’s case. It’s instructive that Zerrin Dincer’s father was found guilty of manslaughter after Justice Lush allowed a defence of provocation. On page 222 of my book "Cleary Independent" I have this to say about the Dincer case:"In that celebrated case, a defence of provocation was allowed on the grounds that the accused, Dincer, was a devout Muslim who carried permanent cultural characteristics and that it was therefore appropriate for the jury to consider the effect on him of his daughter’s perceived sexual conduct. … In R v. Dincer, gregarious defence barrister Colin Lovitt implored Justice Lush to accept that Dincer was a fundamentalist Turkish Muslim who, upon hearing the screams of his wife, entered a house in South Melbourne and was swept up in the chaos. In his sock he carried a knife, which witnesses claimed was normal in Dincer’s Turkish circles. As his daughter raised her arm she was fatally stabbed. Notwithstanding the danger of attributing ‘peculiar’ characteristics to specific ethnic groups, the circumstances as placed before the court presented no similarity to those presented in R v. Keogh. … "
I went on to ask whether "… the thoughts of Justice Lush in R v. Dincer stood condemned as a piece of careless typecasting of the Islamic community? Would there be an apology to Zerrin Dincer, on the grounds that neither Turk nor Arab is so beguiled by cultural myths as to kill in their name? … "Rob, the point is, if Justice Lush wasn’t blinded by racial typecasting, was he blinded by some other cultural and gender typecasting?
In the same chapter I went on to state the following:"It was commonly understood that the granting of a defence of provocation in R v. Keogh was a significant moment in the annals of criminal justice in Victoria. Prosecutor Bruce Walmsley described the case as ‘a lemon’ and felt that Justice Hampel had taken the ordinary man test so far that almost anything was possible. Even John Champion (defence barrister) was surprised. Yet, despite the disquiet within the hardbitten legal fraternity, not one word was fired in public anger. … "
If there was a last straw it was the decision handed down in the Heather Osland case. Here was a woman who hadn’t even lifted the weapon that killed a husband accused and acknowledged by a host of witnesses to have subjected her to barbaric forms of violence. No such mercy was shown to Osland, who was found guilty of murder and sentenced to something in the vicinity of 15 years gaol despite her son committing the act that killed her husband.
I believe there is sufficient evidence to conclude that too often flawed cultural assumptions underpin the judgements of many criminal law judges. It’s this issue of flawed cultural assumption that I explore in the chapter ‘Murder by any other name’ of my book. It’s also an issue I’ve addressed in a range of articles for The Age. In many ways the law of provocation in its conceptualisation and its application is a useful starting point in assessing the operation of the criminal justice system.
My contention is that there are a sufficient number of rulings in cases involving the killing of women to indicate that regressive assumptions underpin the law. So just as we expunged a host of prejudicial forms of cross-examination from rape cases, so too should we explore the kind of assumptions from which too many judges proceed in cases involving the murder of women. However, as I argued in relation to the trial following the killing of Keith Hibbins in the Fitzroy Gardens, similar assumptions operate in other settings.
I look forward to talking with you about this issue.Yours sincerelyPhil Cleary