A Judge is judged not fit to Judge (some cases).

NeilsonIt’s a disgrace and a shameful episode for the District Court of New South Wales.
Judge Neilson ought properly resign as a judge. 

In 2014, District Court Judge Neilson was referred to the oversight body for judges to be investigated for his conduct during a trial involving a man who had allegedly has sexual contact with his sister during the 1980s.

At the time, there had been outcry over the judge’s comments which included the notion that the community may no longer see sexual contact between siblings and between adults and children as “unnatural” or “taboo”, just as homosexuality is now widely accepted.

He apparently also said: “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.”

You read it right, that’s apparently, what he actually said. I have no earthly idea why a judge would ever need to say such a thing to a jury or to anyone in his or her court. It is intemperate at best. At worst, it bespeaks of a depth of ignorance that is horrifying in the mind of a judge.

Apparently, at the Judicial Commission, his Honour said he merely intended to indicate that the community was more aware of such conduct than it had once been. Yes, indeed, right. What a very fine dissemble for such an emphatic original statement.

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Early, the NSW Court of Criminal Appeal had sharply criticised  Judge Neilson after what they considered to be a “favourable” decision that a sexual assault by a 55-year-old man fell in the “mid-range” of seriousness because there had been no ejaculation involved and no physical violence. His Honour had apparently found in that case that because there was no ejaculation involved when the man raped his niece she “had not been exposed to the risk of pregnancy or having some sexually transmitted disease”.

At the time, the victim had been aged 15 and 16 and she had been attacked in 2007 and 2008 at her family home. The rapist uncle was in a de facto relationship with the girl’s mother — his sister — at the time.

Justices McCallum, Schmidt and (now District Court Chief Judge, Mr Justice Derek Price) criticised Judge Neilson’s findings in their appeal decision finding that the conclusions of the District Court judge had been baseless and entirely questionable.

This week, the Judicial Commission of NSW – to whom the then Attorney General Brad Hazard had referred the District Court judge back in 2014 for his comments on the ease with which incest might be accepted, much the way homosexuality is now – has delivered a judgement upon the conduct of the Judge, after a public hearing had been held.

applesThe Commission has found that Judge Neilson should not be allowed to sit in judgement of cases involving sexual offences. The Commission didn’t refer him to parliament to be considered for expulsion as a judge, but found that his comments had the effect of undermining confidence in the judiciary. Inexplicably, in my view, the Commission found that although his honour had said what he said and had thereby brought the judiciary into some disrepute (by virtue of undermining confidence in the institution) nonetheless, the Judge had apparently not believed what he said.

According to the Sydney Morning Herald:

The comments included the opinion that, just as gay sex was socially unacceptable and criminal in the 1950s and 1960s but was 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”.

Following a public hearing last month, the Judicial Commission completed its findings this week, declaring that Judge Neilson’s actions amounted to “inappropriate judicial conduct”.

“The comments express views that are likely to lead members of the public to think that a judge of the District Court hearing a case involving allegations of criminal sexual misconduct doesn’t regard the alleged offences as significant crimes,” the three-member panel said in its findings.

“They diminish the significance of the victims of the relevant criminal conduct.”

During the commission’s hearing, Judge Neilson said he had simply meant that for modern juries, allegations of incest and pedophilia were no longer “inconceivable” or “unusual”.

incestThese judicial comments are scandalous. It cannot be said that they are anything other than judicial comments. As such they necessarily carry with them the weight of the District Court, of a judge, of legal integrity and deep-thought. It is in this way that such comments as those made by Judge Neilson completely undermine the community confidence. How can we be so confident in all those hallmarks of the judiciary when the comments are so clearly inconsistent with even the most basic learned wisdom.

The comments were offensive at the time he said them (last year) and they remain so now. Many of us in the legal profession hoped that somehow, his Honour had been misquoted or taken out of context, but the horrid reality is that this judge did indeed say those things. Incredibly, the Judicial Commission, despite some apparent misgivings over his Honour’s evidence (presumably on his own behalf) proceeded to accept that he has somehow rambled his way into an accidental oversight that can be entirely fixed by keeping him out of the fiery kitchen that is sexual assault cases.

But the truth is that this isn’t the first time the Judge has been a problem. When Judge Neilson was first placed on the District Court bench, it was politely said that his experience in civil cases was the cause of an apparent lacunae in relevant and helpful knowledge of criminal law. Whatever the truth of that statement may be, the reality is that since then he has presided over a significant amount of criminal trials to the extent that it cannot possibly be said that he lacks the sort of experience required to be a judge in criminal law and to be a member, usefully, of the criminal courts judiciary.

Yet that experience seems to have bought him to the point where not only would he say such manifestly absurd comments, he lacked the judgement to perceive the lack of need to engage in such a discourse in the first place. Such commentary is, in my respectful opinion, egoist and self-indulgent: reflecting a judge’s desire to have their opinions heard or to express their self-appraised intellect by the airy ventilation of their percolating (but perhaps undercooked) opinions.

rrm1bThis brings us to the rub of the problem. The Judicial Commission has decided this Judge is not fit to judge sexual cases – but presumably he remains fit to Judge.

What a remarkable suggestion that throws up – is it at last the case that the Judiciary of NSW and those that stand in judgement of their conduct, may actually accept that some judges are suitable for certain types of cases but not others? When a judge is sworn into their office, they swear an oath to be a judge of the court and to apply and uphold the law without fear nor favour. They do not undertake a noble course of judicial conduct in relation to certain types of cases. They do not pick and choose and those that appoint them similarly do not pick and choose their cases for them (or at least not openly).

Indeed, so protective has the judiciary been of its guarded independence that any whiff of a suggestion that a solicitor or barrister are engaged in “judge-shopping” is stamped out and referred for the most stringent of misconduct investigations. Judge shopping is the process by which a party, dissatisfied with a judge that has been allocated to their case, seeks to cause the matter to have to be adjourned so that it might end up in front of another judge (the ways in which judge shopping allegedly operates are many and varied and would take far too much time to summarise here). The point behind the prohibition against judge shopping is to ensure that all lawyers and indeed parties to criminal justice trials approach the court with the same level of respect irrespective of how that court is staffed. It ensures the appearance of consistency of judges (that is, “it doesn’t matter who you get, a judge is a judge is a judge” – type thinking) while also making a fair claim as to the dignity of those that sit as judges.

solastyearHowever, we now have a District Court Judge rolling around the lists who isn’t allowed to sit on one particular kind of case, but apparently can sit on anything else? This seems an anomalous approach to both the system of judicial conduct and its associated traditions. It also invites speculation among the legal profession going forward – if another judge is known to behave in a particular way in respect of certain types of trials, should an application be made to have them remove themselves from such a trial? Is the concept of perceived bias about to be expanded to include some new doctrine of horses for courses – the “Neilson Principle” is emerging here.

Of course, it’s likely  that none of that was given too much thought prior to working out how to deal with Judge Neilson. Clearly he is a capable lawyer who has a lifetime of experience behind him. His manner of speech – and the delicacy and opprobrium with which he can correct a lawyer’s latin pronunciation by reference to which school they went to is quite well known. As are his lengthy and at times Lewis Carrollean judgements that often saw him sit well past the usual closing time of courts as his honour engaged in a comprehensive discourse on the law as he saw it. But there is a basis now to doubt, and to doubt to a very real degree, the suitability of this Judge to be a judge. That basis comes from the finding, that is inescapable in the decision of the Judicial Commission, that his Honour has a limited capacity to judge – so much so that he should be removed from sitting in judgement of one of the types of trials that figures very frequently and with statistical significance in the daily lists of New South Wales District Court.

Yet sit on he shall and the parties who are accused and must stand for judgement will have to put up with it. Such will be the delicacy of the subject, the partial yet public repudiation of a judge’s judgement, few will dare to say anything or to raise as a very real prospect that something is very and terribly wrong with the judgement of Judge Neilson.

benchThat opinion is based upon two things – what he said in 2014 and the decision that he must have made to say it. If his honour simply said what he said in an off-the-cuff manner, then that too raises questions. The concepts implicit in his statements reveal a depth of unenlightened and deeply unread assumptions. His comparison with homosexuality is abhorrent and the sort of thing that ordinarily the liberal left would cry blue murder over. The notion that a judge would enlist the enlightenment of modern attitudes toward homosexual people to demonstrate the evolution of attitudes towards incest and familial sexual assault is something heinous to consider and deeply offensive not only to those who are victims that go before this judge, but to everyone who has had to stand by and what his honour engage in sentencing of sexual assault offenders in the past – to say nothing of the feelings of outrage and disgust that those child sexual assault victims who happen to be homosexual must be feeling when they hear of what his honour thinks. 

And think it he does. The Judicial Commission may well have found as a matter of fact that his honour himself did not believe the comments he made, but I have his Honours own words to judge by and judge him I shall, as I am entitled to do as a citizen of this state. Any man who compares incest with homosexuality – no matter how vaguely – deserves to be called out for the profundity of their stupidity and ignorance that such a comparison implies. Moreover, if a judge says the things this judge has said, then in my humble opinion, he should be no judge at all.

Senator Bill Heffernan has called for judicial institutions to be referred to the Royal Commission into Institutional Responses to Child Sex Abuse. If only the learned Senator bothered to follow (even in passing) the Royal Commission proceedings, he might realise that the Royal Commission is presently engaged in exactly that. But it would be very helpful and worth while for the Royal Commission to consider at some length the point and the conduct of Judge Neilson – for it will remain a weather bell for dumbed down judicial wit (at best) or a warning of seriously impaired judgement (which, frankly, seems more likely in the present case).

Judge Neilson ought properly be ashamed of himself. He has always prided himself on the bench as being a learned man of some intellectual significance – so much has been clear in his pronouncements from the bench. When a smart man goes to war, his crimes are all the worse because he knows what it is he is doing. If his Honour was just foolhardy and ignorant perhaps we could dismiss it. But he is a judge, of the District Court of New South Wales – someone that we are called upon to respect and dignify with institutional obeisance and fidelity. Nothing in this case commends itself to such a principled approach and it might be said, fairly I think, that his Honour should do the gentlemanly thing and pack up his bat and ball and head home, calling a declaration to the proceedings and gently fade into the ranks of retired judicial officers. In that way he will cease to be a burden to the District Court (a judge who can only do certain types of cases) and a stone around the neck of the community’s respect for the judiciary.

neilson2I stand up for judges as a matter of course. I have great respect for their sacrifices and the discipline needed to approach the task at hand. But I cannot remain silent while a judge is gently moved into a pasture of restricted duties because he said something that should have him sacked. The Parliament should take it upon itself to recall the judge and remove him from his commission. Judges must be expert, they must be dignified, they must be respectful and respectable. Mistake are made, and everyone is human, but judges are called upon to judge us. If they cannot restrain themselves, then they must be restrained from further judgement and returned to the community where they are free to express their views or their conceived or ill-expressed statements that notionally don’t reflect what they actually believe.

I don’t know why a judge would say something they didn’t think was right – especially if they intend to act consistently with their oath of office.

Resign, retire or Parliament ought appoint a special prosecutor to review his case on their behalf with a view toward making an independent finding.

Anyhow, another day, another question for further thought.

Aaron Kernaghan

This Article is the personal opinion of the author and does not reflect the views of Kernaghan & Associates. In expressing his opinion, the author is doing so without fear nor favour and in fervent hope that no professional body would take exception to the notion that a lawyer is entitled to demand judges be what judges are supposed to be and that the legal institutions of New South Wales are sufficiently robust as to be able to allow and even encourage its lawyers to engage in meaningful, if slightly cynical and ever so slightly humorous, discourse on the subject. God save the Queen.