The fate of a judge who compared incest and paedophilia to homosexuality is set to be decided by a three-member panel that includes his former District Court colleague.
When the NSW Judicial Commission begins a two-day public hearing into the conduct of Judge Garry Neilson on Monday, one of the presiding members will be Justice Nigel Rein, a Supreme Court judge who worked alongside Judge Neilson in the NSW District Court from 2002 to 2008.
Sitting alongside Justice Rein will be Roger Boland, the former president of the NSW Industrial Relations Commission and Rosemary Sinclair, a parliamentary appointee from outside the judiciary.
Judge Neilson was stood down from hearing criminal matters and referred to the judicial commission last year after he expressed the opinion that the community may no longer see sexual contact between siblings, as well as between adults and children, as "unnatural" or "taboo".
The experienced judge made the comments in April during the case of a 58-year-old man who was charged with repeatedly raping his younger sister in the family's western Sydney home in 1981.
They were part of his justification for refusing to allow the jury in the case to be told that the accused, known as 'MRM', had earlier pleaded guilty to sexually assaulting his sister in the early 1970s.
The comments included the opinion that, just as gay sex was socially unacceptable and criminal in the 1950s and 1960s but was now widely accepted, "a jury might find nothing untoward in the advance of a brother towards his sister once she had sexually matured, had sexual relationships with other men and was now 'available', not having [a] sexual partner".
He also said the "only reason" that incest was still a crime was because of the high risk of genetic abnormalities in children born from consanguineous relationships "but even that falls away to an extent [because] there is such ease of contraception and ready access to abortion".
The Court of Criminal Appeal overturned Judge Neilson's ruling and the case was sent back to the District Court where the accused was convicted of carnal knowledge and incest and given a two-year suspended sentence and community service.
Following public outcry by the comments, the then attorney-general Brad Hazzard referred Judge Neilson to the NSW Judicial Commission, which examines complaints against judicial officers.
Fairfax Media understands that Judge Neilson will be represented by high-profile Sydney barrister Phillip Boulten, SC, who has previously represented magistrates Pat O'Shane, Jennifer Betts and Brian Maloney before the commission.
Counsel assisting the commission will be fellow silk Philip Strickland, SC, who is briefed by the office of the NSW Crown Solicitor.
Exhibits from the trial of MRM may form part of the evidence put forward by Judge Neilson in his defence.
A judge can be removed only by the Governor of NSW after a joint sitting of state Parliament, on the grounds of proved misbehaviour or incapacity.
