Judge Garry Neilson in 2003.
The Greens have called for District Court Judge Garry Neilson to be referred to the powerful Judicial Commission for his comments comparing incest and paedophilia to homosexuality.
But Attorney-General Brad Hazzard has refused to be drawn on the controversy, saying he does not want to prejudice an upcoming trial.
Fairfax Media today reported Judge Garry Neilson has 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 April 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.
MRM has pleaded not guilty to the charge of sexual intercourse without consent, with an alternative charge of incest, and will face a jury trial in September.
Greens MP David Shoebridge said the Judicial Commission is the appropriate body to consider the question of Judge Neilson's fitness to sit on the bench given his "deeply troubling comments".
The commission examines complaints against judicial officers.
"I personally was astounded to hear these views coming from the bench and they in no way appear representative of the many many good people who sit as judges and magistrates in this state," Mr Shoebridge, a former barrister, said.
Shadow Attorney-General Paul Lynch said he would not comment on a case where a trial is pending.
However, he said it seemed "entirely wrong to compare concensual gay sex with either incest or child sexual assault. That would be completely inconsistent with community attitudes either in the 1950s or today."
On Tuesday, Crown Prosecutor Sally Dowling SC asked the Court of Criminal Appeal to remit the case to a District Court judge other than Judge Neilson. The three-judge appeal panel has reserved its decision.
Mr Shoebridge said he has "every faith" in the Court of Criminal Appeal to ensure MRM and his alleged victim get a fair trial.
"The request has been made that it be remitted to a judge other than him, because his comments suggest he couldn’t deal with it in an unbiased fashion," he said. There are robust appeal processes in the criminal justice system in this state and I have every faith that they will effectively deal with this."
The Chief Justice of the District Court, Reg Blanch, declined to comment on the case while it is before the appeal court.
Fairfax Media has also approached Judge Garry Neilson for comment.
Bravehearts founder Hetty Johnston, as well as Adults Surviving Child Abuse, have both slammed Judge Neilson's comments.
Ms Johnston also called on the case to be referred to the current Royal Commission into Institutional Responses to Child Sexual Abuse.
MRM 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”.
On April 7 a jury was empanelled to hear the 1981 charges 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.”
In asking the Court of Criminal Appeal to remit the case to a judge other than Judge Neilson, Crown Prosecutor Sally Dowling SC said the judge's comments were "completely disgraceful".