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.