NSW Judicial Commission examines conduct of District Court judge Garry Neilson … “Mortified” that his words have been unhappily interpreted … Putting homosexuality in the same category as incest … The eugenics approach to criminal law … Emily Meller reporting courtside 

NSW District Court judge Garry Neilson admitted he shouldn’t have used the word “unnatural” in comments that compared homosexuality with paedophilia and incest, a hearing before the Judicial Commission heard on today (Monday, Aug. 3). 

Judge Neilson took the stand for a lengthy examination, which was a pretty awkward experience for the judge. 

The Judicial Commission is hearing a complaint about Neilson’s conduct in court during criminal proceedings in April 2014. 

The judge made the comments during the trial of a 58-year-old-man, referred to as MM, who was charged with sexual intercourse without consent of his sister and an alternative charge of incest. 

Neilson refused to admit evidence of an earlier plea of guilty by the accused, for sexually assaulting his sister when she was 10 or 11 years old in 1973-1974. 

He also denied the crown’s application to admit into evidence a telephone conversation in July 2001, in which MM admitted to having sexual intercourse with his sister. 

Justifying his decision not to admit this evidence, Neilson said that just as gay sex was once regarded as socially unacceptable, but is now widely accepted, so the community may no longer see sexual relations between siblings as well as adults and children as “unnatural [or] taboo”. 

In an ex tempore judgment he said: 

“A jury may 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.” 

The “only reason” incest was still a crime, Neilson added, was because of the high risk of “chromosomal abnormalities” in children born of consanguineous relationships, “but even that falls away to an extent [because] there is such ease of contraception and access to abortion”. 

Neilson was taken off criminal trials by the then chief judge of the District Court Reg Blanch, after a request from the attorney general of the day, Brad Hazzard. 

Hazzard also referred the judge to the NSW Judicial Commission and the Court of Criminal Appeal overturned his decision to reject the crown’s evidence. 

In today’s hearing the judge conceded that “unnatural” was a “very silly word to use”. He said that, “It’s been a mortifying experience, the way it’s been interpreted”. 

However, he didn’t go so far as admitting that the comments were outright wrong. 

In a cross-examination by Philip Strickland SC, counsel assisting the commission, Neilson appeared flustered and maintained that he did not compare homosexuality to paedophilia or incest, and that this was certainly not his personal view. 

When counsel for the judge, Phillip Boulten SC, asked him, “Do you think incest is immoral?” he replied, “I do.” 

By using the word “unnatural” he meant to say “implausible” or “unusual” – as in, the kind of sexual conduct that the jury might find implausible has changed with context.

Whether these were his personal views was not the issue. Rather, the focus was on whether “a reasonable reader” would interpret his comments in that way. 

When pressed by Strickland on this point, he eventually conceded that if one wished “to draw that inference, one might”. 

By way of explanation, Judge Neilson said he always approached the law “on a historical basis”. 

He even cited a 1965 edition of Smith and Hogan’s Criminal Law, studied while at law school, for taking a similar “eugenics” approach. 

Bizarrely, when questioned about the public policy behind having laws against incest, Judge Neilson’s response was, “I’m not a politician, but clearly incest breaks up families”. 

When asked about any “lessons” he may have learned from this unfortunate chapter of his judicial career, Neilson said he would be “more circumspect in the use of language” and that it would be best to “eschew historical approaches” to the law.

The hearing before Justice Nigel Rein, Roger Boland, a former president of the NSW Industrial Relations Commission, and Rosemary Sinclair, a lay member, will conclude on Tuesday (Aug 4), following closing remarks. 

The conduct division will then decide whether to dismiss the complaint, refer it to parliament or prepare a report with further recommendations.