A judge who compared incest and paedophilia to homosexuality when he rejected evidence of sexual abuse by a man against his sister was "clearly in error" and the trial should be heard by a different judge, an appeals court has found.
Separately, this month, District Court Judge Garry Neilson was referred to the NSW Judicial Commission and stood down from new criminal trials after the Herald revealed he said the community may no longer see sexual contact between siblings, as well as between adults and children, as “unnatural” or “taboo”.
Judge Neilson made the comments in April during 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.
MRM has pleaded not guilty to the charge of sexual intercourse without consent and an alternative charge of incest.
The Director of Public Prosecutions stepped in after Judge Neilson refused to allow the jury to know the man had earlier pleaded guilty to sexually assaulting his sister when she was 10 or 11 years old in 1973 or 1974.
Judge Neilson also denied the Crown prosecutor's request to admit into evidence a telephone conversation between the siblings in July 2011, recorded by police, in which MRM admitted to having sexual contact with her when she was “a kid” to "get his rocks off".
In making his decision to exclude the evidence, Judge Neilson made a series of comments, including 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”.
He also said the “only reason” that incest was still a crime was 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”.
The jury was discharged.
On Wednesday, the Court of Criminal Appeal upheld the Crown's appeal, setting aside Judge Neilson's ruling and ordering a different judge preside at the trial, due to be held in Parramatta District Court in September. A new jury will be empanelled.
Justices Arthur Emmett, Derek Price and Elizabeth Fullerton said Judge Neilson's "discretion miscarried" because, without evidence of the years of unwanted sexual conduct, "it would inevitably appear surprising to a jury that [MRM] would, out of the blue, enter his sister's bedroom and attempt to have intercourse with her while she was asleep".
The history of sexual abuse and MRM's threats that their parents' marriage would be destroyed if she told them what he was doing to her would also help the jury explain why she didn't scream or shout or complain to their parents or the police.
The appeal judges also questioned Judge Neilson's reasoning that the sexual abuse that had occurred when the girl was 10 or 11 and MRM was 17 occurred in a different context to the sex that later 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.
"His Honour gave no reasoned explanation, or any proper analysis, as to why these facts, either in isolation or combination, dimished the probative value of the evidence," the appeal judges said.
Following public outcry over Judge Neilson's comments, Attorney-General Brad Hazzard referred him to the NSW Judicial Commission, which examines complaints against judicial officers and makes a report to the Governor.
A judge can only be removed by the Governor on an address from both houses of the NSW Parliament on the ground of proved misbehaviour or incapacity.