Leader not a violent man, court hears

CONVICTED jihadi terrorist leader Abdul Nacer Benbrika had major depression and a history of abusing painkillers, the Supreme Court was told at his plea hearing yesterday.
His lawyer, Remy van de Wiel, QC, said Benbrika had seen a psychiatrist about his depression before he was arrested and he had stomach problems from his overuse of painkillers.
Mr van de Wiel said Benbrika’s health problems were the reason he used to be on a disability support pension.
Benbrika, 48, was convicted in September of being a member and leader of a terrorist organisation and of possessing a compact disc connected to the preparation of a terrorist act. Six other men were convicted with him.
Mr van de Wiel said yesterday the organisation had never been more than embryonic and that Benbrika and the others had never had weapons, training or a plan.
Benbrika was not a man of violence and his remarks that he wanted to see maximum damage in an explosion were never converted into action, he said.
Prosecutor Nicholas Robinson, SC, argued that the absence of death or destruction was not a mitigating factor because such acts would have warranted different charges.
He said a psychiatrist who examined Benbrika had found him unshakeable in his views and this comment in the medical report followed a reference to zealotry.
In a written submission, the Crown said Benbrika’s conduct was uniquely malevolent: “(He) attracted the dedication of younger men … by corrupting the teachings of Islam, inculcating a sense of belonging to a select brotherhood whose members alone walked a path of right and truth.”
There was no evidence suggesting remorse or recanting by Benbrika of the insidious ideology he preached, which meant he was at high risk of reoffending, the submission said.
Mr van de Wiel said Benbrika had not inculcated jihadi views in the others but merely mirrored their own sentiments back to them.
Benbrika’s family was not in court only because lawyers had advised them to avoid the media. Mr van de Wiel told Justice Bernard Bongiorno: “You should not (get) the idea that he has been abandoned. He has not.”
Benbrika will be sentenced on a date to be fixed.

First published in The Age.

Justice system ‘unfair and deficient’

HE father of two boys murdered by their mother has attacked defence lawyers as manipulators of an unfair justice system and backed prosecutor Jeremy Rapke’s controversial stand on victims’ rights.
“The system favours the accused far more than it should,” David Fitchett wrote in a letter to The Age. “They have all the rights.”
Mr Fitchett said his ex-wife Donna had “fooled a lot of people” with claims of mental impairment: “My life has been destroyed by the action of one person; at sentencing, all the judge could worry about was what impact jail would have on her state of mind.”
He thanked Mr Rapke, “who took a chance against some odds to prosecute my ex-wife. If people like you were not in our defence system, bullying defence QCs … would have all the criminals set free. Somebody that is in the system has to be critical of it, as it has many deficiencies and without somebody challenging it there will never be changes made to improve it.
“The law is not untouchable and when mistakes are made somebody should be accountable. If not, then our society will keep heading in the same direction where there is always an excuse and a reason nobody is accountable for their own actions, however deplorable and despicable they may be.”
Donna Fitchett gave a cocktail of sedatives to her sons Thomas, 11, and Matthew, 9, before strangling and suffocating them at their North Balwyn home in September 2005, two days after Father’s Day. A court was later told she had chronic depression and had suffered postnatal depression after each child.
Four days before the killings she told her husband she was going to leave him and take the boys, but later decided she could not go on with life as a single parent. She had planned to commit suicide after killing her sons.
A jury rejected her defence of mental impairment and she was sentenced to 24 years, with a minimum of 18, in a secure psychiatric facility. She is appealing against her conviction and prosecutor Mr Rapke, QC, filed an appeal against the “manifest inadequacy” of the sentence.
Mr Rapke ignited a legal firestorm last week when he told The Age he sometimes privately counselled judges who made insensitive comments about victims from the bench. (He did this only after the trial was over.)
Chief Justice Marilyn Warren accused him of endangering the fairness of the criminal justice system. Prominent Melbourne QC Robert Richter accused Mr Rapke of cheap shots, playing politics and taking on the role of judge as well as prosecutor.

The struggle of a family shamed

A woman’s reply to Rapke’s claims
“JANE” had an unusual childhood. Her father was a Salvation Army officer who brought home all sorts. She remembers as a child sitting in a gutter chatting to an alcoholic. Growing up, many of her best friends were criminals.
It prepared her – as much as anything could – for what was to come.
Several years ago her husband was jailed for child-sex offences. Jane stood by him. She waited for him to get out, read all that she could find about pedophilia, got him counselling – and now watches him like a hawk to ensure he does not re-offend.
That decision to stay destroyed life as she knew it. She can no longer get jobs in either of her two professions, social work and teaching. Her house is being taken by the state (not Victoria) as compensation for her husband’s crimes.
“Do you want a list of what I lost? Most of my friends – I really only kept my two children and my father. I lost my reputation – people think I’m sinister. I lost my peace of mind, I lost my trust in him, I lost my sexuality – I went into menopause the day I heard what he did.” Her Christian belief in the primacy of forgiveness has cost her dearly. But she finds it even harder to forgive this week’s comments by the Director of Public Prosecutions, Jeremy Rapke, QC, about offenders.
As well as calling for longer jail terms, Mr Rapke complained about the psychologising of crime. He said defence lawyers always tendered psychiatric reports about an accused’s childhood suffering as if that somehow explained the offences: “In some cases it may … But I can’t accept that an adult … could always call upon their unhappy childhood as an explanation for their thoroughly bad conduct. There are some people who are just bad.”
Jane says such condemnation makes it more difficult for offenders trying to stay straight because it leaves them isolated and depressed and adds to their self-loathing, all risk factors that could tip them back into molesting.
She says: “I just want you to imagine that you are a 15-year-old boy at school and that you have just discovered that you are sexually attracted to children. You would like to get some help. Would you put up your hand and ask for it?
“There are boys in school who know this about themselves. What do we teach them? That those men are beyond forgiveness.”
Jane admires Mr Rapke’s skill as a prosecutor. While fostering and testifying for a young man accused of helping his father commit a murder several years ago, she was on the receiving end of one of Mr Rapke’s cross-examinations.
But of his remarks in The Age, Jane says: “Comments like that teach the community to hate and to stay in this ignorant mindset that one group is all good and one group is all bad. God Almighty, I really could have smacked him.
“These men are victims too. Today’s child-sex perpetrators are yesterday’s victims of pedophiles. If we don’t do something about today’s victims, they will be tomorrow’s perpetrators – not all, but some of them definitely will.”
Jane’s husband was molested as a child. The young murderer she fostered while he was on bail had grown up in a criminal family. “That’s what Jeremy left out of his story: the effect of environment. This kid grew up having police raids in the middle of the night and a shotgun in his face, from when he was very little.”
Her sympathy for offenders is not boundless – the young man’s father got 23 years, “and I was glad for every minute of it! The father was just one of those evil men that Jeremy Rapke was talking about.”
But she believes it is important to differentiate between such hard cases and those who can be rehabilitated – and many child-sex offenders can be, she says.
Jane knows the risk factors now: access to victims, emotional collapse, substance abuse, more sexual preoccupations than normal, becoming suddenly hostile, rejecting supervision – and rejection by others. If she sees any one of them, she and her husband go together to his counsellor.
Asked how she felt when she heard about her husband’s crime, her eyes fill with tears. “Oh God, murder was on the agenda – me murdering him.”
She cries again when asked what she thinks the effect on children is. She tries hard not to keep imagining what must have happened.
“But I love my husband and I see the desperate struggle he has. I wouldn’t toss him away if he had anything else wrong with him. He’s got this wrong with him, and he’s doing everything in his power to do something about it.”
Is she ever tempted to leave?
“Every week. It’s the trauma of having to hide yourself. That’s the biggest burden we live with.”
“Outed” by the media when they were living interstate, she fended off phone calls “telling me all the different ways they would kill us” and sat in her home at night while men drove around her property shouting abuse.
Jane and her husband go through “mental gymnastics” about every choice in life. He was offered a humble job cleaning public toilets but realised he could not accept even that because he might run into a child alone.
Meanwhile, Jane continues to push for offender programs and for the message she feels society does not want to hear: “Forgiveness is the only thing that works. I’m sorry, but it is.”
“Jane” is not her real name.

First published in The Age.

Remorse to be key in terror sentencing

THE question of whether convicted terrorists had renounced violent jihad would be central to their sentencing, a judge said yesterday.
He was speaking at the plea hearings of Aimen Joud, 23, and Ezzit Raad, 26, two of six men convicted with Muslim sheikh Abdul Nacer Benbrika of being members of an organisation fostering or preparing a terrorist act.
Justice Bernard Bongiorno rejected the adequacy of claims that the two men felt sorry for the hardship their actions had caused their families and the community. “That’s not remorse,” he said.
Raad’s lawyer said he could not say his client had “total remorse”.
Joud’s lawyer said the group’s plans were not advanced, so Joud “didn’t have a victim” over whom to feel remorse.
Justice Bongiorno said: “He didn’t have an individual victim. We have this society, which is the victim.
“I think the ‘R-word’ is the word that’s going to have to be dealt with, if not by counsel then ultimately by me in respect of my judgement about sentencing.
“If someone here were to say, ‘I have considered the things we discussed, the things that we were going to do, the things that we might have led to and what that might have meant to the society in which we live, and I have come to the decision that I won’t have anything to do with it’ – saying ‘I am sorry for what I have put my family through’ is not enough.”
Greg Barns, for Raad, said his client came under Benbrika’s influence shortly after his brother died at the age of 23.
Mr Barns said Raad was involved in only 23 of 482 covertly taped conversations, that his fingerprints were on only one of 31 documents in the group’s common jihadi library, and that there was no evidence he gave a pledge of loyalty to the leader, Benbrika.
He had “a relatively minor role in the organisation”, he said.
Mr Barns said the judge should make concurrent the sentences for being a member of and attempting to provide funds to the organisation.
Trevor Wraight, for Joud, denied prosecution claims that Joud had been Benbrika’s “heir apparent”.
He said Joud had moved away from the group by the time he was arrested and had not had a more senior role than others in Benbrika’s consultative council.
He also asked for concurrent sentences on Joud’s five convictions.
The two men were remanded for sentence on a date to be set.

First published in The Age.

Prosecutor out of control, says top QC

Victims’ advocate backs Rapke
LEADING Melbourne QC Robert Richter has launched a savage attack on Director of Public Prosecutions Jeremy Rapke, QC, saying that he should resign “if this is the best he can do”.
He accused Mr Rapke of running a popularity contest and political campaigns in the media. He said Mr Rapke’s public and repeated attacks on the independent bar undermined the part of the system designed to counterbalance “his prosecutorial zeal – which, left unopposed, leads to the danger of prosecutor becoming persecutor”.
In an article on today’s opinion page Mr Richter, a former chairman of the Criminal Bar Association, says of Mr Rapke: “He has assigned himself the role of judge as well as prosecutor, which happens sometimes with those who become arrogant enough to believe only they pursue the guilty. It seems a shock to his certitude that juries of decent citizens sometimes tell him he is wrong.”
Responding to a call by Mr Rapke to abolish committal hearings, Mr Richter said the High Court had many times affirmed the importance of committals. “If this is the best he can do, he should resign.”
Mr Rapke declined to respond yesterday. Mr Richter’s attack followed Supreme Court Chief Justice Marilyn Warren publicly rebuking Mr Rapke on Monday for saying that he sometimes called up judges who he felt had made insensitive remarks about victims.
In other developments yesterday a victims’ advocate strongly backed Mr Rapke, and a senior barrister challenged Mr Rapke’s account of a court case that allegedly involved a judge being insensitive.
Mr Rapke had told The Age that a young man had died at work and it was decided to prosecute even though the company involved had gone into liquidation.
Mr Rapke said the judge had asked why the case had been pursued, and when told that it was because it involved a death, said, “That doesn’t mean anything.” The victim’s mother had left the court in tears, Mr Rapke said.
Transcript of the County Court trial before Judge John Barnett shows a different context.
The judge had queried why the case was being run five years after the death, with the company responsible already in liquidation. He questioned whether such “political correctness” was appropriate in the face of an “overstuffed list”.
Trying to explain the delay, the prosecutor said, “There was a death …”
The judge: “That doesn’t mean much …
The prosecutor: “Sorry?”
The judge: “That doesn’t mean much in terms of slowing down the procedures.”
Tim Tobin, SC, yesterday told The Age the dead man was actually in his 50s and that his wife, who attended court, did not leave in tears.
Mr Tobin said he acted for a labour-hire firm, which was also charged even though it had merely sent the man to the site where he died. The site was run by the company in liquidation.
“We had said there’s no case against us, and it went for four days and the judge said ‘no case’.
“That case could have been done in a day but it wasted five days of court time on something that they could never win because there was absolutely no liability that could apply to that agency,” Mr Tobin said.
Crime Victims Support Association president, Noel McNamara, said judges were too unaccountable but that Mr Rapke had “stepped up to the plate; we are right behind him”.

First published in The Age.

Chief judge scolds the prosecutor

DPP in hot water for phoning judges
VICTORIA’S two most senior judges have delivered an extraordinary rebuke to the state’s Director of Public Prosecutions, Jeremy Rapke, QC, accusing him of endangering the fairness of the criminal justice system.
The chiefs of the Supreme and the County Court have both taken aim at Mr Rapke over his professed habit of telephoning judges and counselling them over their “insensitive” remarks towards victims of crime.
In comments to The Age last week, Mr Rapke revealed he would sometimes ring judges after trials had ended and ask them to think next time before they spoke in court.
Supreme Court Chief Justice Marilyn Warren released a statement yesterday rebuking him. “The role of the DPP is to prosecute criminal cases, independently, not to counsel, supervise or criticise judges in private discussions,” she said. “The community would be justifiably alarmed if that happened.”
She said she had never heard of Mr Rapke speaking to any Supreme Court judges. “I would be very concerned if he did. It is not the role of the director of public prosecutions,” she said.
“If any party to a case has a concern, the proper action is to inform the head of jurisdiction. I have not been told by Mr Rapke of any concerns about insensitive remarks. If a judge was contacted by the director, it would put at risk the independence and impartiality of the criminal justice system.”
Neither prosecution nor defence lawyers were permitted to speak to a judge directly about a case, Justice Warren said. “Everything occurs in open court so that justice is open and impartial.” She said County Court Chief Judge Michael Rozenes shared her views.
By legal convention, lawyers do not speak to judges about ongoing cases except in open court. Speaking about a case when it is over is a grey area.
Law Institute of Victoria president Tony Burke said Mr Rapke’s comment signified an inflated view of the role of his office. “No one has special access to the courts in this state. An essential part of our justice system is its impartiality,” he said. “Justice happens in public. Both trials and sentences are conducted in public.”
He said the institute also disagreed with Mr Rapke’s view, reported in The Age last weekend, that committal hearings were a waste of time and money. “The criterion in the criminal justice system is not economy and efficiency; it is fairness. An accused person should not be subjected to a lengthy trial unless it has first been established that there are reasonable grounds upon which a jury, properly charged, might convict,” Mr Burke said.
John Digby, QC, chairman of the Victorian Bar Council, said the council wholeheartedly supported the Chief Justice’s comments: “We would be opposed to any informal communications between parties to a process of the court.” He said the bar also believed that committals should be retained.
Last week Mr Rapke told The Age of a judge who complained about the prosecution of a case involving a workplace death. Mr Rapke said the judge had questioned pursuing the case because the company responsible was in liquidation and said of the death: “That doesn’t mean anything.”
The victim’s mother had left the court in tears, Mr Rapke said. “Where those things come to my attention, I’m not afraid to ring up the judge – often we’ve gone through years and years of law together – and say, as one human being to another ‘Have a think next time before you say something’.”
In previously unpublished remarks from that interview, he also said: “I’ve spoken to judges on occasions … In fact I wrote a letter to a judge last week in relation to a matter.”
He said the law governing his role gave him a particular responsibility in terms of victims of crime: “If I don’t say things in relation to matters which attract a lot of attention, then who else is going to say it?”
Mr Rapke had no comment yesterday.
‘The prosecutor said, “Well, your honour, there’s a death.” The judge said, “That doesn’t mean anything.” And the mother of that boy was in court. “Where those things come to my attention, I’m not afraid to ring up the judge.” JEREMY RAPKE, FROM SATURDAY’S AGE
“The role of the DPP is to prosecute criminal cases, independently, not to counsel, supervise or criticise judges in private discussions.” SUPREME COURT CHIEF JUSTICE MARILYN WARREN

Scrap committals, says prosecutor

A costly waste of time, Rapke claims
COMMITTAL hearings should be abolished because they are a waste of time and money and clog up an overburdened court system, according to the director of public prosecutions, Jeremy Rapke, QC.
“It’s a costly and inefficient and time-wasting process, for what you get out of it,” he told The Age. “They don’t serve the purpose they were originally intended to serve, which is as a proper filtering process.”
Mr Rapke also called for tougher sentences for drug offences. “It’s rare these days for courts to be dealing with crimes that don’t have some kind of drug element to them.
“Whether committed by persons under the influence of drugs or committed in order to buy drugs – I think, from the figures I’ve seen, 90% of crime is drug related in one of those two ways. So, therefore, the penalties which were imposed 25 or 30 years ago don’t reflect the burgeoning crime problem associated with drugs.”
All criminal prosecutions destined for the County or Supreme Courts first come before a magistrate, who holds a committal hearing to assess whether there is enough evidence to send the case to trial. Mr Rapke said very few committals resulted in the dismissal of a case. Even where this happened, he had the right to take the matter directly to court.
“A good example of this is the Bandali Debs case. I appeared at his committal (for the murder of) little Kristy Harty, whose body was found up in the bush. The magistrate said: ‘Well, I’m not going to commit him on that.’ Five minutes after she made that decision, Paul Coghlan, who was then the director of public prosecutions, gave notice of trial. And a jury convicted him (Debs). All directors retain this right. So what purpose does the committal serve?”
Mr Rapke said abolishing committals would eliminate much of the delay between when an accused was charged and when the trial was heard. “Magistrates courts would have a lot more capacity to push through with their (other) work.”
Mr Rapke said there was now a much greater need for deterrence, both general and individual, about drug-related crime. “It sends a message to the community that this type of crime will not be tolerated.”
And he said sentencing of sex crimes had fallen behind community expectations. “I’ve recently launched an appeal where I have invited the Court of Appeal to look at our current sentencing practices to determine whether or not they need to be reviewed.
“The sentence imposed (in that appeal case) was in line with current sentencing practices for rape. But, bearing in mind that rape carries a maximum sentence of 25 years, when you see three or four-year sentences, you have to ask yourself: ‘Well, what’s the maximum reserved for’?”
There were 3068 committal hearings conducted in Victoria in 2007-08; 3260 in 2006-07; and 3253 in 2005-06.

First published in The Age.

A calling for justice

Victoria’s head prosecutor, a man able to silence a courtroom with an impassioned plea, is a vigorous advocate for the victims of crime.
IT WAS the plea hearing for Robert Farquharson, who had been convicted of driving his three small boys into a dam on Father’s Day in revenge against the wife who had left him. Jeremy Rapke, QC, was prosecuting.
Rapke had run a restrained case. His questioning of witnesses had been cool and courteous; his oratory, even in the closing address meant to sway the jury, was measured. No aggressive rhetorical flourishes here. An observer might have assumed his natural style was detached.
This day, though, Rapke rose to his feet in a rustle of black silk and launched an impassioned plea for the judge to lock Farquharson up and throw away the key. Rapke’s voice rose and fell but his emotional intensity never wavered. The room hushed. Fidgeters stilled.
He talked of the children’s “fear, shock, feelings of abandonment and plain terror in the last few moments of their lives. We shall not dwell on the scene that must have played out in the car as it sank below the surface of the dam and slowly filled with water … Where was the father of these three children as they fought for their lives? …
“Mr Farquharson is to be sentenced as much for the monumental act of betrayal that the murder of the three children represents as for the loss of their young lives.”
Rapke demanded three life sentences with no minimum term. The judge later agreed. (Farquharson is appealing. His former wife is among those who have always maintained his innocence.)
Asked whether he had intended to speak that day with the wrath and certitude of an Old Testament prophet, Rapke initially looks embarrassed. He casts his penetrating gaze to the floor and murmurs that he had merely done the usual thing -reviewed the crime, consulted the authorities. “It wasn’t intended to sweep away the court.”
But then his head swings up and his eyes have a hard bright glare: “I was speaking on behalf of three little children who couldn’t speak for themselves. And they had a mother who wouldn’t speak for them either.”
Rapke is not one to fudge what he believes to be an important truth. He has written eloquently about what he calls “the immorality of silence” in the face of wrongdoing. Whatever else is said about him when he finally leaves the role of Victoria’s director of public prosecutions, he will not be accused of massaging his views to please anyone. His sense of justice goes too deep – and is too tightly wound into fierce personal loyalties – for that.
This month Rapke celebrates his first year in the job and the 25th anniversary of the establishment of a politically independent – that is, structurally independent of the State Government – Office of Public Prosecutions in Victoria. He marked the occasion with a formal dinner for 160 people in Queens Hall at Parliament House and used his speech to flip a few grenades into the august audience of politicians, lawyers, magistrates and judges (thereby proving, as shrapnelled fellow speaker and Attorney-General Rob Hulls remarked dryly, the independence of his office).
Challenging all kinds of sacred cows, Rapke suggested that judges should gag lawyers who go on for too long, courts should sit at night to help reduce “extraordinary” backlogs and some long, complex trials might be better tried by judge alone than by juries.
Rapke said the days of lawyers being permitted to run their cases with minimal intervention by judges must end, and in cases that were legally or factually complicated, it should be open to both sides to agree to trial by judge alone.
Most controversially, he has repeatedly called for tougher sentencing. Rapke has said he will ask the Court of Appeal to set tougher sentences for drug traffickers, murderers, rapists and fraudsters. He is running “test case” appeals linked to cases where he believes sentences are softer than the community would want.
In January he publicly accused some judges of being insensitive to sexual assault victims. He called for more judicial education so that victims of crime were treated with “dignity, sensitivity and compassion”. He has been known to visit judges in their chambers and rebuke them over sentencing or over tactless remarks from the bench – though “rebuke” is not the word he would use.
“I had a case recently, it was a WorkCover case, young fellow was killed on a worksite. Went to work and never came home. And the company was prosecuted for its breaches of work safety. By the time the case had come to court, the company had gone into voluntary liquidation. The question then arises, ‘What’s the utility in prosecuting a company in liquidation? It’s got no money to pay any fine imposed.’
“Is it in the public interest to have such prosecutions? I determined that in that case, yes it was. It also sends a message to industry that if you do the wrong thing, then there is a consequence for that. But the judge made some comments I thought were insensitive about ‘Why are we wasting money on this?’
“The prosecutor said, ‘Well, your honour, there’s a death.’ The judge said, ‘That doesn’t mean anything. Does the community still demand we have these sorts of prosecutions?’ And the mother of that boy was in court when those comments were made and she apparently left the court in tears.
“I don’t think he meant to hurt the woman but it was an unthinking comment. Where those things come to my attention, I’m not afraid to ring up the judge – often we’ve gone through years and years of law together – and say, as one human being to another … ‘Have a think next time before you say something.”‘
Rapke’s energetic assumption of the role of advocate for victims of crime – “I don’t want it to sound like I’m some sort of avenger on a white horse charging around; it’s just a job,” he protests – has outraged some in the criminal bar. The normally circumspect association that speaks for them lashed back, charging that he was compromising judicial independence by pressuring judges to impose harsher penalties, and that his comments risked eroding public confidence in the administration of justice.
He says: “The judiciary is more robust than that. In a democracy, I don’t believe that any of the three arms – the judiciary or the executive or the Parliament – should be above criticism.”
Of course, defence barristers are almost honour-bound to loathe Rapke’s stance because the policies he promotes, if implemented, would weaken their chances of winning a good outcome for defendants.
Rapke will tell you that his advocacy for victims is purely professional. He points out that the legislation that governs his role is peppered with reminders that this is part of his job. But Rapke became a full-time prosecutor in 1995. Surely those years of working with victims and seeing their anguish have affected him?
“I do see the distress of these victims,” he agrees. “I had a recent example of a case where a bloke who’d been convicted of four rapes – raping four individual women – got a sentence of about nine years. He appealed it to the Court of Appeal. They sent it back for retrial. He was convicted again. He appealed again.
“By this stage the victims were worn down. Three of my four victims said, ‘I’m no longer prepared to go on. I can’t go through with this any more. I’ve moved on with my life. I can’t go on re-living this.’ So then I had to make the decision, ‘Well, what do I do about the fourth one?’ It was a case which really hung together because we had four victims. You had a pattern in respect of it.
“The accused eventually pleaded guilty because he’d serve four years, which would be the appropriate sentence for the one victim. There would be no point in running the trial, he realised that. He pleaded guilty and basically walked free from jail.
“So you can see that the system does take its toll on individuals. They’re your primary victims. What about the secondary victims – the husbands or the wives or the children or the families? And the witnesses? The human cost of cases being protracted over a long period of time is enormous.”
There are other clues to what drives him. On the wall in the waiting area outside Rapke’s office is a verse from Deuteronomy that he had framed: “Justice, justice shalt thou pursue.”
In his eyrie of an office – high and light but not far enough up to escape the hum of traffic below – sits a framed formal photograph of his father, Trevor, a former County Court judge, in wig and robes.
On a different shelf sits a soft amateur snap of two elderly Hasidim. They are wearing black suits and hats and sitting on kitchen chairs facing the Wailing Wall in Jerusalem. Standing between them are Rapke’s two sons, then only small boys. Rapke points out the folded scraps of paper that are stuffed between the cracks of the wall’s ancient stones – the prayers of the faithful.
Jeremy Wingate Rapke grew up in what he calls “a traditional Jewish family” in Melbourne. It was not altogether traditional in the sense that his grandmother Julia was a Children’s Court magistrate and a strong feminist. Rapke’s father inherited from her a deep sense of social justice (and in the 1960s happened to preside over the first jury in Victoria to contain women).
The “Wingate” is after a British general who helped early Jewish settlers in Palestine. “He was posted to Palestine in the 1930s and he became very friendly with what was then the embryonic Jewish settlement and he helped train the settlers in how to defend themselves against Arab attacks. Indeed, he is credited with creating the squads which later became the Haganah, the forerunner of the Israeli Army. My father was a great admirer of him and his work. My father was a great Zionist as well.”
It is a loyalty Rapke shares. He spent six months working in fields, cowsheds and chook pens on a kibbutz in Israel after the Yom Kippur war in 1973. In 2002, he wrote a furious opinion-page article for The Age in which he linked international indifference to the slaughter of Jews in World War II with lack of sympathy today over Israeli suffering at the hands of Arab terrorists.
“Who cried out when Jewish women and children were slaughtered while standing outside a synagogue at the end of the Sabbath? What was said when Jewish men, women and children were blown to pieces while eating in cafes and restaurants? … Day after day, Jews died horrible, senseless deaths. And what did the world do about it? … World leaders stand condemned for the immorality of silence.”
Rapke says his wife of 37 years, Sarah, is the only child of Holocaust survivors who lost all their families during the war. “So we’re very aware of those things in our family.”
Does he think his strong sense that the Jews were abandoned to a bitter fate by authorities who should have protected them has sensitised him to others who have suffered injustice?
“Yes. I think that’s true. Also, I’m wary of the power of the state. You can’t always equate the state with good …
“So I’m conscious of the need for society to look after its weak and its vulnerable. I have a great deal of empathy and understanding for the plights of refugees and others who come from other lands looking for a better life, and I get distressed when I see the doors of our country closed on them, or see them put in camps in the middle of the desert behind barbed wire.”
THESE days, he is not on his feet in court very often. He appeared over the suppression of Underbelly, and he does appeals and High Court matters. One of his last full trials was that of John Sharpe, a former banker who used a speargun to kill first his sleeping wife and then his small daughter. At the plea hearing, Rapke asked: “Could it be no more than that he is a thoroughly evil person?”
He says he does believe in evil: “Look, I’ve seen too much of it not to believe in it, I’m afraid. An evil person is a person who has just lost their moral compass, who is not able to tell right from wrong, or if they can, are able to sublimate the natural revulsion one would have from doing evil and doing bad things, and will do them because it’s expedient to do it, or they see some short-term benefit to doing it.
“I don’t think there’s any doubt that we can characterise some deeds as evil, and some people, I think, are bad people. Not necessarily irredeemably, but at the time they committed the offence they may have been bad.
“What’s happened in recent times is that we’ve seen a move to try to explain criminal behaviour in psychological and psychiatric terms. I challenge you to go to a plea hearing where a psychological report or a psychiatric report is not tendered (by the defence); where there’s not some reference to his upbringing, his terrible childhood and home, alcoholic father, abused as a child, deprived in some way. I challenge you to go and find a plea where there’s not some reference made to that, as if that somehow explains the criminal conduct with which the court is concerned.
“In some cases it may, or it may be a partial explanation. But I can’t accept that an adult, when he gets to his 40s or 50s or 60s committing criminal offences, could always call upon their unhappy childhoods as an explanation for their thoroughly bad conduct. Over the years I have come to accept that there are some people who are just bad.”
Were they born bad?
“I don’t know.”
Rapke comes from a privileged background: strong family, private schooling, university, a religion that gave him a firm sense of moral purpose. That was his kitbag for life. Is there no place for compassion for wrongdoers whose kitbag was very different?
His certainty does not waver. “I can’t accept that, irrespective of what your education or your background is, you’re not capable of making right decisions.”
Karen Kissane is law and justice editor.
BORN Melbourne, 1949.
EDUCATED Wesley College; graduated with economics and law degrees from Monash University in 1971. Spent six years in the navy while studying.
FAMILY Married with five children. and one grandchild.
CAREER HIGHLIGHTS He nominates as cases that were important to him personally the prosecutions of: Robert Farquharson for murdering his three sons; the killers of policemen Gary Silk and Rod Miller; and James Bazley, Mafia hitman convicted of murdering Mr Asia drug couriers Douglas and Isobel Wilson and conspiracy to murder Donald Mackay, the Griffith-based anti-drugs crusader.
HOBBIES Reading non-fiction (currently a history of Genghis Khan); walking; cycling.

First published in The Age.

Drawing out notions of evil

Can you perceive a potential for wrongdoing in a person’s appearance? Is there a place for beauty in the depiction of crimes? A confronting exhibition raises many questions, writes Karen Kissane.

PEOPLE WHOSE ACTS personify evil mostly look just like everyone else. It is only hindsight that makes us scrutinise them for any outward signs of their inner corruption: a hard glint in the eyes, a sullenness in the expression, a hint of threat in the swagger.
Our primal anxieties long for something, anything, that will mark them as Other, that can be relied upon to alert us to potential danger before it strikes.
But often there is nothing that would alarm. The only peculiar things about the appearance of convicted serial killer Peter Dupas, whose trademark was slicing off the left breast of his female victims, were his blank gaze and daggy pudding-bowl haircut. Christopher Hudson, the drug-addled city shooter who took one life and maimed several others, was a young and handsome Dorian Gray. Robert Farquharson was accused of killing his three children by driving them into a dam on Father’s Day but he came across as timid. He murmured to a reporter during a break in court, smiling gently, “I’m not a bad person.” The jury disagreed. (Farquharson is appealing.)
If those who have done great evil have no defining physical characteristics, then how is the artist to render them? How does one impart a sense of the mark of Cain, or the force of malevolence, or the isolation of the sinner who has been cast out? Or can this only be brought to bear by the gaze of the viewer who knows the story behind the image?
Artist Nick Devlin believes so. In his display at a true crime exhibition at Geelong Gallery, he mixes at random 27 charcoal portraits of perpetrators and victims and does not disclose their identities to the viewer. It is a silent satire on the faux 19th-century science of phrenology, the theory that criminality could be documented and measured in the features of the face and head. Find Jean Lee, the pretty redhead who in 1951 became the last woman hanged in Australia (she allegedly helped kill a bookmaker who would not reveal where his money was), or the young Myra Hindley (the British Moors murderess who helped her partner molest, torture and kill five children).
Or maybe you won’t find them – except for the portraits that have mugshot serial numbers in one corner, it is difficult to tell which of these respectably dressed and coiffed people were “perps” and which were “vics” (the latter include a man killed by the Manson family and Trotsky, who was the victim of a political assassination).
The artist Albert Tucker originally thought he saw inner corruption in the face of someone he painted from a newspaper photograph (Man’s head, 1946). The subject’s thickly lined visage is obscured by shadow and the narrow, sloping shoulders somehow suggest weakness, an inability to cope with life’s burdens.
Tucker had painted it from a newspaper photograph of a man who had been charged in court with kicking a small dog to death. Tucker later recalled: “I was fascinated with the utterly dissolute face of this man … he had that look about him, a collapsed kind of face, a kind of moral disintegration. And I realised it wasn’t so much the person that was fascinating me – rather, he stood as a symbol for all sorts of things that work in the human condition. I remember once I located the photograph again and it’s really nothing like it.”
For the artist painting a portrait is, himself, a viewer of the original image that is his subject, and projects on to it his own fears and loathings about the story behind it.
None of the portraits in this exhibition – True Crime: Murder and Misdemeanour in Australian Art – involved a personal sitting with the subject. They are drawn from police shots and photographs in the public domain, so the artist’s vision of the criminal is coloured not by the subject’s fleeting changes of expression or carriage or snatches of conversation but by the harrowing, if impersonal, material on the public record about their deeds.
Not all the works in this gripping line-up are portraits. Some of them capture neither the criminal nor the victim but the quality of the experience. Charles Blackman’s The Shadow and Prone schoolgirl, both 1953, were inspired by the Gun Alley murder. Twelve-year-old schoolgirl Alma Tirtschke was found dead in a laneway off Little Collins Street on New Years’ Eve, 1921, after being sent by her mother on a message to her grandmother’s house.
The vulnerable figure of a small girl in an iconic mushroom school hat and pleated tunic walks through a hostile landscape of industrial buildings with saw-toothed roofs, her own shadow thrown long in front of her like a premonition of the way she would soon become a shade herself. In the next image in the sequence, Prone Schoolgirl, the light has all but gone, just touching gently on her body as she lies dead on the grey roadway – again, alone.
Blackman later said the pictures had a lot to do with his own fear and “a lot to do with my isolation as a person and my quite paranoid fears of loneliness”.
What Brett Whiteley’s series on killer John Christie captures is the morbid grotesquerie of Christie’s crimes. In 1960 Whiteley moved to London where he lived within blocks of 10 Rillington Place, where Christie had murdered seven women and buried their bodies. Several women had been rendered unconscious with domestic gas, administered through tubing with its release controlled by a bulldog clip. Some were raped post-mortem.
Whiteley used surreal mounds of flesh – stand back to get yourself anatomically oriented – in 10Rillington Place. Against a dark background the anonymous body of a woman lies with legs splayed, emphasising the sexual nature of the crimes. Her swollen belly might be a reference to Christie’s offer to perform an illegal abortion on a neighbour whom he then made one of his victims. The deadly tubing, snapped by the bulldog clip, snakes its way out of a corner of the painting, which is decorated at the top with images including Christie’s bony face, a penis and a photograph of police digging in his garden.
These are not paintings that make for easy viewing. Best not to contemplate the feng shui implications of having one hung over your fireplace.
It almost seems strange to have Ned Kelly in such a line-up. He has the status of mythic hero now, with an overlay of the political rebel. Mere hold-ups and clean-cut shootings of armed police officers hardly compete with the vicious perversities of a Christie or a Hindley.
Still, he remains the nation’s most famous criminal, and in this exhibition he is portrayed in very different ways. Sidney Nolan, in Kelly at the mine (1946-7) painted his iconic black-helmeted figure outside the hideout of the Kelly gang in the Wombat Ranges near Mansfield. A shadowy “normal” portrait of Kelly painted by Nolan in 1946 is believed to be based on a photograph from an early jail record in 1873, when Kelly was aged 18 – but there is no known picture of the outlaw in a tie and jacket, as Nolan portrays him here.
Gija artist Freddie Timms depicts Kelly with square helmet and body armor, a series of dots representing the rivets joining the suit’s panels, representing the incorporation of Ned’s story into Aboriginal dreaming in north-western Australia.
Timmy Timms offers an abstract dot painting symbolising the alleged massacre of Aboriginal men at Bedford Downs in the 1920s. A small circle in the lower right hand side of the work represents the place where the men were poisoned and burned.
Here lies a central problem for art about true crime: how close is too close? How far is too far? Abstraction intellectualises the human suffering and the human depravity of a crime, distancing one from the horror. Explicitness, on the other hand, can seem exploitative, if not downright lascivious about violence. As for creating a work of beauty from acts of ghastliness – that, too, creates unease in the viewer, with its dilemma about the ethics of moral airbrushing.
In this exhibition, the work that many women found too confronting was Catherine Bell’s Soap, Slip, Slash (2006). It is a short, hypnotic piece of film in which Bell sits on a toilet while a semi-naked pregnant woman lies unconscious on the floor in front of her. Bell (dressed in fine silver chain mail to symbolise detachment from the crime) lathers the woman’s pregnant belly and shaves it with a sling-back razor.
The performance is based on an American murder in which a young woman strangled a pregnant mother and then removed her child from her uterus, later passing the baby off as her own.
Bell says female perpetrators inspire a special fear because they contravene the boundaries of what is meant to be their “normal” role, presumably as nurturers.
But the most perplexing and visually arresting work in this exhibition is Mark Hilton’s exquisite portrayal of the Lebanese gang rapes in Sydney, Champion returns (2006).
The viciousness of the attacks in 2000 on several “skip” girl victims by 14 Lebanese men on a racial rampage made for hideous reading. Here, though, Hilton has created a thing of beauty. The background colours are candy pink and pistachio green; the figures are dressed in jewel-coloured, magnificently detailed traditional Middle Eastern clothes (although several of the young men wear traditional baggy pants topped by Western clothing such as baseball shirts and caps, symbolising their struggle with their cultural identities in a new land).
The only brown-eyed woman in the picture stands to one side watching, her face and body swathed in a black burqa, her hand up in – what? Protest? Confusion? Dismay? Or just helplessness?
The panoramic is rendered in the formal, detailed style of Persian paintings of the 16th century – a mute comment on the richness and sophistication of Arab culture. The visual beauty of form and colour contrasts shockingly with the brutality of the scenes portrayed, which include the hosing-down of one young woman after her six-hour ordeal.
Perhaps there must always be discomfort in the art of darkness.
Karen Kissane is law and justice editor.
True Crime: Murder and misdemeanour in Australian art will be at the Geelong Gallery, Little Malop Street, until 1 February 2009.
Phone 5229 3645; geelonggallery.org.au.

First published in The Age.

No one to watch over him

On the night Bayden Smith took his own life, health workers sent him home, convinced he was not at risk. An inquest into the matter is attempting to discover how such a tragic miscalculation was made.
BAYDEN Smith was a blokey kind of bloke. For most of his working life he was a butcher. He liked to sink a few Cougars watching car races on TV with his mates. He loved to ride motorbikes and to hunt – he’d shot buffalo in the Northern Territory – and owned six rifles.
They got him into trouble, those rifles. On a trip to Deniliquin, he shot a few protected birds. He was caught with them in the back seat of his car and was told he could face thousands of dollars in fines.
It preyed on his mind. He was already struggling financially; somehow, his once-steady work history had degenerated into a string of casual jobs – four in a month, at one point. He started drinking heavily. “To keep up with his job status was a pretty big challenge,” his son, Bayden junior, told the Coroner’s Court this week. “I knew he was having days off here and days off there.”
His friends saw Bayden senior as happy-go-lucky but his son, who continued to live with his dad in a rented house in Greenvale after his parents’ divorce three years earlier, knew better. His father was a bottler who hid his troubles behind a bright social veneer: “He put on a very good show that he was happy. But when nobody else was around, when he was at home, he was sad and depressed … My Dad, if he was feeling something, he didn’t want to show people he was feeling it.”
On the last night of his life, the people from whom he hid his true feelings came to include two workers from an emergency mental health team called to a police station to assess whether he was suicidal. They found him cheerful and relaxed and were convinced that he was no danger to himself or anyone else. They released him. He was taken home by a friend who left after having a soft drink with him.
Smith’s then 18-year-old son found him dead the next day. He had shot himself with an unregistered handgun, the existence of which he had hidden from police and from his son. He was 47.
The decision to send him home is now being scrutinised by State Coroner Jennifer Coate. Her inquiry this week turned a spotlight on the workings of the mental health Crisis Assessment Teams that attend anyone who appears to be having a serious breakdown or psychotic episode to decide whether they need treatment and whether they are at risk of harm.
The central questions about that night are whether the CAT workers placed too much weight on what Smith told them and too little weight on the dire circumstances in which police found him; whether they should have sought out his family or close friends, who would have told them the truth about his state of mind; and whether they should have confirmed for themselves that someone would stay with him that night rather than taken his word for it.
Coate has also been trying to establish how the CAT system works and how it is overseen: are there system-wide manuals and guidelines telling workers how to assess risk? Is there central oversight and investigation of tragedies such as Smith’s? Does the psychiatric system keep detailed statistics on what the teams do and assess how effective they are?
The answers so far have been no, no and no. On the night of October 17, 2006, Bayden Smith came home to an empty house. He was upset. He and his son had had a row the week before and his son, fearing his father might become violent, had called police. The officers suggested Bayden junior move out for a few days to allow things to settle.
Although they spoke on the phone at least every day that week – seven times on one day – Bayden senior was feeling abandoned. He later told the CAT team that he felt his son had rejected him the way his wife had. He was also having problems with his 21-year-old girlfriend. He sat down in his lounge room, took off all his gold jewellery and wrote a suicide note.
But he also phoned several friends to tell them what he was doing, and one of them called police. When they arrived, one officer told the court, it was clear that Smith had been weeping. Police took his registered guns and made him walk them through the house to search for more before driving him to Broadmeadows police station and calling the CAT team.
The two workers rostered on with the North-West Mental Health Service were Kok Lim, a psychiatric nurse, and Quan Nguyen, a social worker. In an ideal world all crisis assessments would be done by a psychiatrist, North-West clinical services director Dr David Muirhead told the inquest, but “there simply aren’t enough psychiatrists to be able to do all of these assessments, even if you had the money to employ them”.
By the time the workers arrived at the station Smith had pulled himself together. He told them his mood was “good, happy” and their notes record his “affect”, or apparent emotional state, as “bright”. He told them he had just had an angry moment when he was writing the suicide note, that he did not intend to harm himself and that he had to be up at 4.30 the next morning for work. He agreed to talk to them on the phone the following day.
He was so relaxed and so apparently co-operative, Nguyen told the inquest, that there seemed no need to verify what he was telling them.
The workers were also reassured by the fact that the police had taken his guns. “The initial threat of death by shooting, at the time we sent this man home, was no longer there …” Lim told the court. “The central risk and central means of suicide had been removed at a stroke.” The final assessment: Smith was “low-risk”.
Smith rang his friend Charlie Mazza and told him he was allowed to go home as long as a friend was with him. Smith told the CAT team Mazza would stay with him that night. Mazza told the inquest that he had never agreed to stay the night – he had to be up for work at 4am himself – and that he was worried about Smith being released into his care.
“I never spoke to anyone from the CAT team,” he said. “To be honest, I was really disturbed that they released him in my care. I am no professional. Common sense tells you that if a person has written a note and is about to do himself in there should be a bit more support there.”
Coroner Coate asked Nguyen whether the CAT team had turned their minds to the possibility of a “classic trap” described by an expert witness, past professor Dr Richard Ball, director of psychiatry at StVincent’s Hospital.
Reviewing the case, Ball wrote: “There is a classic trap as outlined by Stengel and others very long ago, and that is a paradoxical state in which someone who has been depressed, and has possibly thought of suicide, becomes calm, relaxed, overtly not distressed and overtly co-operative and not ill because the die is cast. The decision has been made to die and the means is already planned. Maybe this was the situation with this man.
“It has occurred on numerous occasions, is very dangerous and can easily throw people off the track.”
Nguyen told the court that they had not seen it that way. Muirhead defended the workers and their decision. He said they made the right call on the information that was available to them at the time. “Unfortunately the right decision can have the wrong outcome.”
He said it was regrettable that they had not checked personally that Mazza would be staying with Smith but denied that it was common practice to discharge seriously disturbed people back into the care of friends or family.
“You wouldn’t usually expect that family members or friends should conduct some kind of suicide watch,” he said. Mazza’s presence would simply have been intended to help protect Smith against feeling alone and desperate, he said.
“Would it have been helpful for Mr Mazza to have had some understanding of that?” asked Senior Constable Greg McFarlane, for the coroner.
“Yes, it would have been,” acknowledged Muirhead.
Muirhead told the court that between August 2007 and July 2008, his service had provided 1044 new CAT assessments. Of the 204 assessments initiated by police, 87resulted in people not being admitted, a rate of 42.6%. Muirhead said he did not believe any of those 87 non-admissions had ended in death.
He said there was no manual with guidelines for CAT workers because they dealt with such a wide range of experiences it would be impossible to compile a manual and because practical education was more important than manuals “that would gather dust on a shelf”.
Victoria’s Chief Psychiatrist, Dr Kuruvilla George, was asked whether he was concerned that there seemed to be little in the way of written policies relating to CAT teams.
He said: “I agree that there are probably no policies or procedures (written down) on a CAT team, because there are so many teams. But … I would be very surprised if health services didn’t have policies for assessments.”
George said that since the decentralisation of mental health that had followed the closing of Victoria’s last asylum in 1997, individual services were largely responsible for developing their own guidelines and investigating most of their own adverse incidents. The exceptions were incidents relating to in-patient deaths, electroconvulsive therapy and the practices of seclusion and restraint.
He said there were better statistics on these matters than there were on CAT teams, which had not been openly and independently assessed since they were set up in the 1990s. “There’s a capacity for drilling in but that’s not done by the department.”
The inquest is due to resume on December 2.
Karen Kissane is law and justice editor.
For help or information visit www.beyondblue.org.au, call Suicide Helpline Victoria on 1300 651 251, or Lifeline on 131 114.

First published in The Age.