The Opinion Page
The Age Newspaper
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 in
to 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.
Phil Cleary
July 2000
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