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Legal experts discuss Governor-General's civil rape case.

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Tuesday 13 May 2003

Legal experts discuss Governor-General's civil rape case.


HAMISH ROBERTSON: Australian legal and constitutional experts say they expect Dr Peter Hollingworth to ap pear in person to give in person to give evidence in a civil rape case against him in the Victorian Supreme Court.  


The now stood-aside Governor-General has strongly denied the allegations brought by the estate of the now deceased Annie Jarmyn. But a Directions Hearing set down for next week is set to consider whether the case can proceed. If the case does progress legal experts say the courts will be entering uncharted waters, as Louise Willis now reports. 


LOUISE WILLIS: Legal experts agree that the case against Dr Hollingworth appears to have some very large hurdles to overcome in order to proceed. Firstly it's claimed that the alleged incident took place nearly 40 years ago, and secondly the plaintiff, Annie Jarmyn, took her own life three weeks ago. 


The Brisbane-based lawyers acting for her estate, Shine, Roche, McGowan, declined to speak to PM on how they intend to tackle the case. But a prominent plaintiff lawyer with links to the firm says he expects the lawyers to battle strongly to ensure it proceeds. 


Damian Scattini.  


DAMIAN SCATTINI: I know this, that the motto of the law firm involved is "a tough case, we're tougher," so it looks like they've got a tough case. 


LOUISE WILLIS: If you were solicitors for the alleged victim in this case, would you want Dr Peter Hollingworth to give evidence in person? 


DAMIAN SCATTINI: Dr Hollingworth, I presume, will be supplying an affidavit on the initial application. Then I would imagine that the plaintiff side would want to cross-examine on him and on that for sure. 


LOUISE WILLIS: Brisbane plaintiff lawyer, Damien Scattini.  


Constitutional expert from the University of NSW, Professor George Winterton, agrees Dr Hollingworth could appear in person to give evidence in the case. 


GEORGE WINTERTON: There are questions concerning the ability of the Queen to give evidence in cases, although even that is questionable. She can't be a defendant of course in a criminal prosecution because she'd be prosecuting herself, but that doesn't apply to the Governor-General. There's no reason why he couldn't give evidence, be cross-examined, just like any other citizen. 


LOUISE WILLIS: Would we be in uncharted waters there, though? 


GEORGE WINTERTON: Certainly I don't recall any case where a Governor-General has either been defended in a case, while in office, or been a witness. 


LOUISE WILLIS: Professor George Winterton. 


Justice Bernard Bongiorno of the Victorian Supreme Court is the man who will decide whether this case can proceed, and someone who might shed some light on that decision is George Hampel QC, a now retired justice who served in that court for more than 17 years.  


Professor Hampel says he expects Justice Bongiorno would be careful to ensure no special treatment is given to Dr Peter Hollingworth because of his position. 


GEORGE HAMPEL: We start with a proposition that everyone's equal before the law, and I don't think we start off with the idea that the case is any different.  


But on questions such as, as to whether there should be an expedited hearing and whether there is a need in the public interest or in the interest of justice to have the matter disposed of early or earlier than other cases, it may be that that is a relevant consideration and the judge always has the ability to order an expeditious hearing - in other words to place the case in the list ahead of other cases - if the circumstances are justified. 


HAMISH ROBERTSON: Former Supreme Court judge, George Hampel QC, speaking to Louise Willis.