Statement by the NSW Attorney General regarding Judge Garry Neilson, 11 July 2014

Statement by the NSW Attorney General regarding Judge Garry Neilson 
Issued: Friday, 11 July 2014

As Attorney General I want the NSW community to have confidence in the NSW legal system.

Confidence in the judiciary is a critical part of ensuring broader community support for the legal system.

The majority of the judiciary in this State do extremely good work day in and day out for the community.

With that context I was extremely concerned to read the comments of His Honour Judge Garry Neilson in regard to his views on incest.

In my view the community would be rightly appalled at his reported comments.

Incest is completely reprehensible, unacceptable, disgusting and criminal.

Accordingly I have taken advice as to the appropriate course and have today determined that I will, on behalf of the NSW Government, and on behalf of the NSW community refer His Honour to the Judicial Commission of NSW.

I will also be writing to The Chief Judge of the District Court to request that His Honour remove Judge Neilson from undertaking any criminal trials whatsoever until the Judicial Commission has dealt with the necessary processes it must undertake.

I will be making no further comment and will allow the Judicial Commission to take its appropriate course. 

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BACKGROUND

Excerpt from an article in The Sydney Morning Herald on 11 July 2014:

District Court Judge Garry Neilson said just as gay sex was socially unacceptable and criminal in the 1950s and 1960s but is now widely accepted, “a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now ‘available’, not having [a] sexual partner”.

He also said the “only reason” that incest is still a crime is because of the high risk of genetic abnormalities in children born from consanguineous relationships “but even that falls away to an extent [because] there is such ease of contraception and readily access to abortion”.

Judge Neilson made the extraordinary and bizarre comments in the case of a 58-year-old man, known for legal reasons as MRM, who is charged with repeatedly raping his younger sister in the family’s western Sydney home in 1981.

The man had earlier pleaded guilty to sexually assaulting his sister when she was 10 or 11 years old in 1973 or 1974 after police recorded a telephone conversation between the siblings in July 2011 in which he admitted to having sexual contact with her when she was “a kid”.

But he has pleaded not guilty to the charge of sexual intercourse without consent, with an alternative charge of incest, regarding the 1981 events.

On April 7 a jury was empanelled and the Crown Prosecutor requested the jurors be told of the earlier misconduct to show MRM had a tendency to have a sexual interest in and have sexual intercourse with his sister.

The Crown argued that without the background information, the jury might find it hard to understand why MRM began raping his sister “out of the blue” and why she did not report it to her parents or police.

In the mid-1970s MRM had warned her not to tell their parents because they had just lost another son in a car crash and she remained fearful of upsetting her parents when the abuse recommenced in 1981.

But Judge Neilson refused to admit the evidence, saying the sexual abuse which had occurred when the girl was 10 or 11 and the youth was 17 occurred in a different context to the sex which happened when she was 18 and he was 26. By 1981, she had had sexual relationships with two men and had a young child.

“By that stage they are both mature adults. The complainant has been sexually awoken, shall we say, by having two relationships with men and she had become ‘free’ when the second relationship broke down,” Judge Neilson said.

“The only thing that might change that is the fact that they were a brother and sister but we’ve come a long way from the 1950s … when the position of the English Common Law was that sex outside marriage was not lawful.”

He went on to say incest only remains a crime “to prevent chromosomal abnormalities” but the availability of contraception and abortion now diminishes that reason.

“If this was the 50s and you had a jury of 12 men there, which is what you’d invariably have, they would say it’s unnatural for a man to be interested in another man or a man being interested in a boy. Those things have gone.”

On Tuesday Crown Prosecutor Sally Dowling SC asked the Court of Criminal Appeal to remit the case to a judge other than Judge Neilson because of the "misogynistic" attitude he displayed towards the complainant….

Excerpt from an article in The Sydney Morning Herald on 12 July 204:

On Friday it was revealed Judge Neilson had in November 2011 ruled the sexual assault of a man against his 16-year-old niece was less serious because there was ''no ejaculation'' and therefore the victim had not been put ''at risk of pregnancy or disease''.

In March 2013 the appeal court cut his non-parole period by six months but found Judge Neilson's comments regarding ejaculation were ''entirely questionable'' and his attitude towards pregnancy and sexually transmitted diseases ''plainly had no foundation''....

In 2013 His Honour Judge Neilson was a member of the Professional Development (Education) Committee. The District Court, in partnership with the Judicial Commission of New South Wales, provides this continuing judicial education program for judges.

The program aims to:

* Enhance professional expertise

* Facilitate the development of judicialknowledge and skills, and

* Promote the pursuit of juristic excellence.

With a focus on interactive learning, the program is based on enhancing skills, attitudes and knowledge in a judicially relevant environment. 

In 2013  he was also a member of the Governing Council of the Judicial Conference of Australia. The Judicial Conference of Australia was established in 1993. Its objects relate to the public interest in maintaining a strong and independent judiciary within a democratic society that adheres to the rule of law. The Judicial Conference of Australia consists of judges and magistrates drawn from all jurisdictions and levels of the Australian court system. All Australian courts are represented on the Governing Council.