A PANEL OF JUDGES TO RULE ON JUDGES

PULL THE OTHER LEG

circa 2003

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 justice system.

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.

Phil Cleary