ELITISM NO ANSWER TO JUSTICE
16.07.1999
Elitism no answer to
question of justice
Tony Koch
chief reporter
JUSTICE Richard Chesterman's defence of the Mental Health Tribunal's handling of Claude John Gabriel, who stabbed teenager Janaya Clarke to death last year, is a welcome public insight into this aspect of our justice system.
However, contrary to the judge's assertion, the article referred to did not ``deplore the Queensland justice system''. It set out the facts.
They were that Mrs Robyn Clarke was distraught because Gabriel had murdered her 17-year-old daughter and would never face trial. Instead, he would be treated in an institution for his schizophrenia, and could reasonably be expected to be released once doctors diagnosed he was cured.
Previous murderers dealt with by the Tribunal have been allowed, during their treatment, to leave the hospital to play indoor cricket, and have even escaped when attending a suburban movie theatre.
The article spelt out why, under legislation unique to Queensland, Gabriel was dealt with in this manner. In accordance with the governing legislation, Justice Chesterman alone constitutes the Mental Health Tribunal. He is assisted by two psychiatrists, but is not obliged to accept advice they give.
Justice Chesterman asserts that he, as the Tribunal, ``is no less qualified than a jury to make the appropriate determination'' and that it does so earlier and at less cost than if the matter is put before a jury.
That assumes a judge is better able to make a decision based on evidence, than are 12 citizens. That he is assisted by two psychiatrists does not lend greater weight to his argument, for psychiatry is an inexact science.
What seems to have escaped Justice Chesterman in his reading of the article is that justice is meant to cater for more than just the accused person.
It is of little consequence or import that a certain course is cheaper or more expedient than another.
Mrs Clarke questions the ``justice'' she and her remaining three children received. She posed that question to every Queensland MP in a letter in which she wrote:
``Our family was given no consideration in the Mental Health Tribunal proceedings. We had no input and found particularly disturbing the absence of any acknowledgment by the Tribunal of this heinous offence _ and that Gabriel committed the act.
``What transpired was the man who took Janaya's life has been found not responsible due to mental illness. We were not permitted to prepare a victim impact statement as occurs in the criminal justice system.
``It would have allowed our family to have public acknowledgment of who Janaya was, what she meant to us and how we are affected by her murder.
``Gabriel as a `patient' is granted a range of rights and privileges including the right to privacy. We are denied access to any information about him, including where he is being held, any reviews of his confinement, any applications for leave.
``Our family's grief and distress over the murder of our beautiful girl has been heightened by our experience of Queensland's system of dealing with murder committed by someone deemed mentally ill.''
Justice Chesterman accuses those who question his jurisdiction of suffering from ``cultural cringe'' and adds that it was erroneous to state that a patient determined to be insane ``will be released when doctors decide he is cured''.
That decision is made by the Patient Review Tribunal. One assumes the members of that body would rely heavily on medical opinion in making any decision. If that is not so, then the situation is more serious than ever imagined.
In referring to the ``compassion'' of Queenslanders, the ``cultural cringe'' of iconoclasts, and the assumed superiority of judicial deliberation when compared with that of a jury of citizens, Justice Chesterman depends for effect on assertions unworthy of a person of his legal standing.
Indulging in such elitist references does little to advance the debate, merely serving to reinforce the public perception that the judiciary is far removed from the public it serves.
