The state's Attorney-General has directly intervened in a bid to address growing community concern over comments made by a Sydney judge who has compared incest and paedophilia to homosexuality.
Attorney-General Brad Hazard has referred District Court Judge Garry Neilson to the NSW Judidical Commisison, while Fairfax Media can reveal that a senior public official has referred the state's judiciary to the royal commission into child sexual abuse.
Mr Hazard said he was acting on behalf of the community and that he had also written to the Chief Judge of the Distrcit Court, Reg Blanch, requesting that Judge Neilson not sit on any criminal trials under the commission had examined his complaint.
Cheif Judge Blanch late Friday said Judge Neilson would not sit on criminal matters until the issue had been dealt with.
"I was extremely concerned to read the comments of His Honour Judge Garry Neilson in regard to his views on incest," Mr Hazzard said..
"In my view the community would be rightly appalled at his reported comments. Incest is completely reprehensible, unacceptable, disgusting and criminal."
Mr Hazard's intervention came a day after Fairfax Media revealed comments made by Judge Neilson, who told a court that, 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 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.
It is understood that on Thursday a senior NSW official referred the NSW judiciary to the royal commission after it was determined it could be defined as an "insitution" .
Mr Hazard had initially refused to be drawn on Judge Neilson's comments while MRM's trial was pending but in an about-face he issued a statement on Friday saying he had to refer the Judge to the commission because "confidence in the judiciary is a critical part of ensuring broader community support for the legal system".
Even after Bravehearts founder Hetty Johnston, as well as Adults Surviving Child Abuse, have both slammed Judge Neilson's comments.
On Friday it was revealed Judge Neilson had in November 2011 ruled the sexual assault of a man against his 16-year-old niece was less serious because there was "no ejaculation" and therefore the victim had not been put "at risk of pregnancy or disease".
The man, 55, appealed his maximum nine year, minimum six and a half year jail sentence to the Court of Criminal Appeal.
In March 2013 the appeal court cut his non-parole period by six months but found Judge Neilson's comments regarding ejaculation were "entirely questionable" and his attitude towards pregnancy and sexually transmitted diseases "plainly had no foundation".
If deemed serious enough, the Judicial Commission can refer the matter to its Conduct Division, who will then hold a hearing into the matter.
NSW Bar Associaton junior vice president Arthur Moses, SC, said Judge Neilson's comments were "plainly inappropriate" and "not reflective of the views of our judiciary".
However Mr Moses said the fitness of any judge to remain in office should not be a matter for public debate but for the Judicial Commission to investigate. The Commission prepares a report for the NSW Parliament, which has ultimate responsibility to remove a judge.
"Such power is only exercised in exceptional circumstances of proven misbehaviour or incapacity to remain in office".
The story Incest statements: Judge Garry Neilson referred to Judicial Commission first appeared on The Sydney Morning Herald.