Chief Judge's Letter to the Editor

5 November 2018

County Court Chief Judge Peter Kidd publishes Letter to the Editor.

Chief Judge replies

On October 29, The Age published an article entitled "Law fails in 20-year wait for justice in rape cases".

There is a public interest in exposing and correcting problems within the justice system. There is significant ongoing reform to improve the procedure for complainants in sexual offence matters. While judges may be the subject of informed criticism, this article unfairly suggests that the court has contributed to an injustice.

It implies that Judge McInerney has acted, not in accordance with the rule of law, but in a manner which was biased against the complainants. The article does so without reference to the judge's legal reasoning and makes a number of factual errors.

The article states that separate trials for three complainants were ordered "so the allegations . . . could be tested in isolation". In a considered ruling, Judge McInerney determined that the interests of justice required separate trials.

It states that Judge McInerney directed the jury to deliver a verdict of not guilty. That is untrue. In accordance with the law, the judge directed the jury that they had the option of entering an early verdict of not guilty. The jury did not take this opportunity.

It states that the jury was dismissed, even though they "wanted to go on". The law empowers a trial judge to discharge a jury where an accused person can no longer receive a fair trial. Judge McInerney found this to be the case and gave reasons.

It is for the prosecution to bring charges to court. It is wrong to suggest that the court's record keeping has somehow led to a failure to prosecute. Judges are among the most rigorously scrutinised professions. This occurs in the review or appeal court process, where the judge's reasoning is examined by reference to admissible evidence, established principles and case law.

An unsubstantiated attack upon the legal decision of judges, without any examination of their reasoning, risks undermining public confidence in the justice system. It may be read as a considered legal judgment, when it is not.

It is wrong to suggest because some people involved in the case were "dismayed" by one of the judge's decisions that this decision is somehow unlawful or biased.

Judges McInerney and Lacava, quite properly acted independently of all the parties, and sought to diligently apply the rule of law.

Chief Judge Peter Kidd, County Court of Victoria

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Page last updated: 5 November 2018