Respect is earned; so is disrespect, Your Honour

Andrew L. Urban.

In a timely warning to his fellow judges, High Court Chief Justice Stephen Gageler has raised concerns that increasing media “attacks” made on individual judges may reflect on the judiciary as a whole, saying judges need to be seen upholding ethical and professional standards. Couldn’t agree more, Your Honour. Respect has to be earned. 

Reported by The Australian’s Ellie Dudley on March 22, 2024, this concern struck me as wholly appropriate, since I have held such a view myself for some time. Not about media “attacks” – but about the causes of such “attacks”, in some of which I myself have taken part. I’ll come to those in a moment.

Since I began focusing my journalism on wrongful convictions in mid-2013 following my encounter with the case of Sue Neill-Fraser, I have gradually but now completely lost confidence in Australia’s legal system – and it’s in no small part thanks to what I see as terrible judicial decisions and utterances.

Justice Gageler highlighted the importance of “maintaining the level of competence of our judiciary” and emphasising the need for judges to be seen as “within the acceptable middle of ideological positioning and not at an extreme”. Competence…yes, please.

He went on to critique the dangers of the polarisation of politics and referenced overseas trends (read the US). But that’s not my concern here.It is the day to day aspect of his observations that are of interest to me. “The tendency of the mainstream media to criticise individual judges who are seen to fall short – even in their personal lives – of maintaining community standards, has increased. (Increased perhaps because more  judges were falling short…?) I could point to two or three examples of individual judges who have been criticised publicly in Australia in the last few months,” he said.

Yeah, well so could we all. My first “attack”, if you like, was of then Justice Blow (published on January 11, 2014), deconstructing his woefully wrongheaded remarks at the end of the Sue Neill-Fraser trial. As well as the points below, I am especially critical of his prejudicial summing up, in which Blow referred to a wrench as a possible murder weapon: this, too, was mere speculation by the DPP. As I say, competence matters.

BLOW’S SENTENCING REMARKS (part)

Justice (now Tasmania Chief Justice) Blow

Blow: I am satisfied beyond reasonable doubt that Ms Neill-Fraser attacked Mr Chappell
Urban: On what evidence? None was produced in court. No weapon. No body. No Witness. This was speculation by the DPP.
Blow: I cannot rule out the possibility that the attack left him deeply unconscious, and that drowning was the cause of death
Urban: Baseless speculation based on baseless speculation.
Blow: I am satisfied beyond reasonable doubt that Ms Neill-Fraser used the ropes and winches on the yacht to lift Mr Chappell’s body onto the deck; that she manoeuvred his body into the yacht’s tender; that she attached an old-fashioned fire extinguisher weighing about 14 kilograms to his body; that she travelled away from the Four Winds in the tender with the body for some distance; and that she dumped the body in deep water somewhere in the river.
Urban: On what evidence? None was produced in court. This was speculation by the DPP.

ADAMS’ INCONSISTENT APPEAL DECISION
In the Court of Criminal Appeal, Adams JA said: “… the evidence of the Complainant … was not so persuasive as to dispel the significant doubts raised by a number of seeming implausibilities and inconsistencies…” yet went on, inconsistently, to dismiss the appeal.

DEREK BROMLEY AND THE JUDGES

Associate Professor Bibi Sangha and Dr Robert Moles of Flinders University

Virtually every judge who Bromley has faced in his numerous appeals over decades has, in our opinion, failed the test of competence. Possibly the worst of these are the judges who heard his 2018 appeal. Justices Stanley, Nicholson and Peek decided that Bromley’s appeal grounds are not made out. They “fundamentally failed to pay due regard to the rule of law and to the well-established principles governing criminal appeals,” according to legal academics Dr Bob Moles and Bibi Sangha. “The principles espoused in the Bromley decision are not only contrary to established authority but have never before appeared in any legal judgment in Australia, Britain or Canada.”

The Court of Criminal Appeal was provided with five expert reports as to the psychological state of the ‘eye-witness’ at the time of the incident. Although known to be psychotic and suffering from hallucinations and delusions on the night of the incident, the Crown told the jury that this did not necessarily make the evidence of his observations implicating Bromley unreliable. Any judge worth their salt would have directed the jury to deliver a verdict of not guilty. Then it would not have tripped up the judges of the appeal court.

The appeal court was also provided with three expert reports on the forensic pathology evidence given by Dr Colin Manock. All the experts agreed that the diagnosis of death by drowning was wrong (as it was in the Keogh case).

In this case the appeal court has, in effect, abolished the right to a jury trial, say Moles and Sangha, and at the same time abolished the right of a wrongfully convicted person to an effective appeal and to a retrial.

In December 2023, three of the five High Court judges refused Bromley leave to appeal. “The High Court judgement is in many respects a very extraordinary judgement, as the judges said at the beginning of their judgement. This is merely an application for leave to appeal. I should say that the application for leave to appeal had continued through the court process for over ten years and it’s only today, ten years and seven months after the new right of appeal came in that we finally get a decision on the application for leave to appeal,” commented Moles.

But Justices Edelman and Steward were both clear that leave should have been granted; that the appeal should have been allowed; that it was in fact a substantial miscarriage of justice – and they further said that the verdict of an acquittal should have been entered. In other words, half the bench thinks Bromley is innocent while the other half won’t even hear his appeal. It seems judges leave themselves open to attack, Your Honour.

Derek Bromley has just been granted parole, after 40 years in prison for a murder he insists he didn’t commit. It certainly isn’t a case of guilt beyond reasonable doubt.

CARDINAL PELL’S APPEAL JUDGES
It is not an outspoken Pell supporter such as TV host and columnist Andrew Bolt, or even acclaimed historian Keith Windshuttle (who wrote a book about it), but the unassailably well credentialed jurist John Finnis AC QC, who shows conclusively how the evidence against Cardinal George Pell simply falls apart on inspection. And in the process, casts doubt on the judgement of the judges who didn’t see it. Like the jury, the two Appeal judges who voted to uphold the conviction also failed to act rationally, by implication.

Ferguson CJ

In his chapter “Where the Pell Judgement Went Fatally Wrong”, Finnis wastes no time in slicing open the Victorian Court of Appeal’s Judgement; it “falls apart under your eyes. Its sequencing (falsity, improbability, impossibility) reverses the rational order of treatment. Its handling of Archbishop Pell’s alibi defence concludes abruptly in para. 143 by placing the onus of proof exactly where the law quoted in para. 142 says it cannot be: on the defence.” Ouch. Ouch because it should be obvious to anyone, especially a judge, never mind two judges. (The two judges were Ferguson CJ and Maxwell P; the dissenting judge was Weinberg JA, whose reasons were affirmed by the High Court 7:0.)

ROBERT XIE – LOVING UNCLE BRUTAL KILLER?
Like Derek Bromley, Robert Xie has had a succession of judge-inflicted injuries to his innocence, we maintain, after years of examining the case.

Justice Elizabeth Fullerton presided over both trial 3 and trial 4 – the two trials that were completed of the four that were begun; trial 3 with a hung jury (majority voting not guilty) and trial 4 with an 11-1 majority voting guilty.

(He was convicted of the brutal murder of his wife’s brother, brother’s wife and their two young sons and his sister, sons to whom he was a loving uncle, as evidence shows. The brutality was such that it took scientific witnesses days to describe.)

Her Honour Justice Elizabeth Fullerton

Fullerton failed to disallow the prosecution to base its case on speculation that determined the time window for the murders to occur: after 2am on July 18, 2009. The Crown was reduced by lack of evidence to ‘force’ the alleged murder into the limited time frame to make allowance for the fact that Xie had an unassailable alibi until 2am (computer use).

Later, she tells the jury:
I direct you that if the Crown is to prove beyond reasonable doubt the first element of the offence of murder, the Crown must remove or eliminate to your satisfaction any 
reasonable possibility that the accused was at home in bed asleep with his wife at the time the deceased were killed.

If the Crown does not satisfy you beyond reasonable doubt to reject the alibi, it follows that the Crown will have failed to have proved the first element of the offence of murder and you must acquit the accused. 


This direction is very close to the standard Alibi Direction outlined in the Bench Book. The only difference is the omission of the words “as asserted by the alibi evidence”. By that omission, Her Honour’s direction is not offering the jury the clear instruction that if they do entertain even “a reasonable possibility” of Kathy Lin’s evidence being true (‘as asserted…’), they must acquit. Kathy is Robert’s wife; she gave sworn evidence that Robert didn’t leave the bed that night.

That’s why the following exchange, which took place with the jury absent (during the defence closing by Robert Webb appearing for Xie), is so damning of Her Honour’s response:

WEBB: So if it may be submitted, your Honour, would your Honour permit and – would it be permissible for your Honour to say to the jury “if you thought in respect of the evidence of Kathy Lin that there was a reasonable possibility that Kathy Lin was not mistaken and gave honest evidence, that you’d be duty bound to acquit”?

HER HONOUR: I’m not sure that I’d go that far, Mr Webb.

There are more examples of Her Honour’s errors, as we see them, but this sample is enough to show why we include this judge in this reckoning, before we move on to the appeal judges – where I’m sorry to say the errors continued.

After the fourth and final trial (ending in 2017), the case eventually moved to the NSW Court of Criminal Appeal (June 22 – July 1, 2020), before Bathurst CJ, R A Hulme J nd Beech-Jones J. Xie’s appeal was dismissed on 15 February, 2021 – 11 years and 7 months after the murders; he had spent nearly 5 years in prison without a conviction.

My most severe criticism of the appeal judges (even the estimable then NSW Chief Justice Bathurst) relates to a covert recording made by a prisoner trying to entrap Xie in a deal with police. The recording isn’t the issue: it’s the failure of the trial judge and the appeal judges to understand the central problem with what is supposedly said. And it comes down to the words, “yeah, yeah”, which the prosecution presented as Xie agreeing to a damning proposition put by the snitch. In fact, the second, indistinct “yeah” is not accurate. The tape shows it took five seconds for Xie to say whatever he said. Hence he was not affirming by repeating.

The appeal judges couldn’t grasp the point Xie’s counsel Belinda Rigg SC was making.

Justice Beech-Jones

HULME J: Isn’t the significance not so much whether he said “yeah” once or “yeah” twice but the fact that he didn’t say, “What? What are you talking about?”?
RIGG: Yes.
HULME J: What does it matter whether her Honour said “yeah” twice rather than “yeah (indistinct)”?
RIGG: Because the case as presented for the applicant at trial was that he was in difficult circumstances in custody, had limited English ability and continued on conversations with Witness A and, in this regard, perhaps one that he didn’t completely understand, comprehend or hear the full effect of what it was that he had said and that the “yeah”–
BEECH-JONES J: I don’t see how that is undermined by “yeah yeah” as opposed to “yeah (indistinct)”.

Yeah, well, with respect, that is precisely the problem, your Honour; that you don’t see. Given this weak circumstantial case, such an error is egregious, effectively allowing a snitch’s untrustworthy testimony to determine a man’s fate. (See our various analytical articles on the Xie case via the menu on the right.)

As these few depressing examples show, judges as a cohort cannot be enveloped in the warm embrace of universal, unconditional trust. Their life-altering decisions are and should be open to scrutiny and if found wanting, exposed … attacked, even.