Who is justice really about?

Is justice about criminals or victims and their families? It is a question that has come to a head for me lately. We talk of bringing criminals ‘‘to justice’’ but also about ‘‘finding’’ or ‘‘getting’’ justice for victims. Do we – police, prosecutors, lawyers, politicians, media – skew too far towards the former at the expense of the latter?

It could have spared a lot of pain last week if a Brisbane detective had simply stopped at saying investigators had a responsibility to ‘‘keep a completely open mind’’.

But Detective Inspector Mark Thompson did not do that. In the context of the indescribably awful situation in which Rowan Baxter murdered estranged wife Hannah Clarke and their three children, Thompson caused outrage.

‘‘Is this an issue of a woman suffering significant domestic violence and her and her children perishing at the hands of the husband, or is this an instance of a husband being driven too far by issues that he has suffered, by certain circumstances, into committing acts of this form?’’

Sorry to repeat it. The second half looks even worse a week on.

The clumsy wording speaks of someone trying to think on his feet in the media spotlight, and getting it badly wrong. This is borne out by the comments of his boss, Queensland Police Commissioner Katarina Carroll. In announcing Thompson’s offer to stand aside from the investigation, she said he was ‘‘distraught’’ at ‘‘how it came out’’. ‘‘The phraseology was completely wrong, and the words and way it was said should not have been used.’’

Both Carroll, in effectively saying the same thing twice in a single sentence, and Thompson demonstrate a degree of linguistic clumsiness when put on the spot which gives me some sympathy for them. It is not easy expecting your brain to give you the right words as you are speaking.

But in one sense their verbal gymnastics is useful too.

Thompson would not have said what he did unless that was the way he was thinking. Which makes me wonder how the case would be discussed by a team of detectives at police headquarters.

This is not an attack on Thompson – I am wondering generally about how such an inquiry might proceed.

Would phrases that, if we heard them in public, would sound like blatant victim-blaming, be thrown around? Would someone ask what she might have done to bring this on, and if they did, would that be part of ‘‘keeping an open mind’’?

There seem so many opportunities for retraumatisation of victims and their families in the justice system.

Could Hannah Clarke’s family, processing indescribable, enduring grief, potentially have to negotiate some horrendously painful analysis of her too-short life at a coroner’s inquest? I hope not.

Echoes there of the distressing trial of Grace Millane’s murderer.

To me the very idea that there could somehow be extenuating circumstances for an act which caused the utterly terrifying deaths of a woman and her three young children is completely foreign.

Any skerrick of sympathy Baxter might have been due disappeared completely at the moment he chose the devastating path he took.

This week, I attended a public lecture at Canterbury University where a team of four researchers led by Professor Elisabeth McDonald launched an open access book through Canterbury University Press called ‘‘Rape myths as barriers to fair trial process’’. The 586-page book compares analysis of 30 adult rape trials, from 2010-2015, with a consent defence, with 10 cases from the Sexual Violence Court Pilot in 2018. A 40-minute lecture only scratches the surface but it was long enough to be instructive, and concerning, about what an ordeal a rape trial can be for a complainant.

The researchers are clear there can be no backing away from the absolute requirement for a robust, fair trial for a defendant but there are ways complainants can be better protected.

One change they argue for is a high threshold of relevance to the complaint for evidence sought from complainants by defence counsel.

That is at least partly to limit the potential for a complainant to be diminished in the eyes of a jury by questions of borderline relevance.

Sexual history is front and

‘‘The phraseology was completely wrong, and the words and way it was said should not have been used.’’

centre here. McDonald also gave the example of a complainant having to answer: ‘‘What do you do for a job?’’ with the fact she is unemployed, or having to tell the court she is a stay-at-home mum of a 2-year-old when the jury already knows she is 18. There is little obvious relevance to a rape complaint.

Then there is, as the book puts it, ‘‘reliance on defendants’ actions as being unlike that of a rapist’’ to establish they must have believed consent existed. There is a fascinating list of examples in chapter 9, used in defence closing statements.

It was clear from subsequent discussion involving the researchers and some prominent legal minds in the audience that genuine fears still exist about what anyone taking a rape complaint now would be subjecting themselves to, unless they were ‘‘articulate’’ and ‘‘robust’’ and had good support outside court.

That does not sound like accessible justice to me.

The media plainly has a role in that too. Some of the initial reports about the Brisbane horror had me shaking my head a little.

They were from overseas but I wrote angrily last year about the lazy ‘‘average Kiwi bloke who snapped’’ narrative framing of a horrific rape case here in New Zealand, and it was concerning to see some of the same regarding Baxter.

There probably has not been a better example here of the appropriate centering of victims than coverage of last year’s mosque terror attacks.

Hopefully we can learn from that and apply it better in future.