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.
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.
