This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.

You can find the current article at its original source at http://www.guardian.co.uk/law/2013/jan/23/australian-transgender-warrior-miscarriage-justice

The article has changed 2 times. There is an RSS feed of changes available.

Version 0 Version 1
Was Australian 'transgender warrior' a victim of a miscarriage of justice? Was 'transgender warrior' a victim of an Australian miscarriage of justice?
(about 1 hour later)
If you go into the lord chief justice's court at the Royal Courts of Justice in London, you may notice a pair of rather shabby red velvet curtains, to the left and right of the presiding judge's chair. Each curtain is suspended from a horizontal brass rod, which is hinged so that it can sit flat against the panelled wall when not required.If you go into the lord chief justice's court at the Royal Courts of Justice in London, you may notice a pair of rather shabby red velvet curtains, to the left and right of the presiding judge's chair. Each curtain is suspended from a horizontal brass rod, which is hinged so that it can sit flat against the panelled wall when not required.
Although court 4 is regularly used for ceremonial occasions, such as the swearing-in of senior legal figures and the extraordinary 800-year-old quit rents ceremony, I have never seen the curtains swung out for use. I had always assumed they were Victorian draught excluders, made redundant by improvements to the central heating system since the courts were opened in 1882.Although court 4 is regularly used for ceremonial occasions, such as the swearing-in of senior legal figures and the extraordinary 800-year-old quit rents ceremony, I have never seen the curtains swung out for use. I had always assumed they were Victorian draught excluders, made redundant by improvements to the central heating system since the courts were opened in 1882.
That was until this week, when I read a chilling account of a woman being sentenced to death. This was not an Indonesian court sentencing someone for drug trafficking but an Australian court sentencing a defendant for murder.That was until this week, when I read a chilling account of a woman being sentenced to death. This was not an Indonesian court sentencing someone for drug trafficking but an Australian court sentencing a defendant for murder.
The year was 1920. After hearing the jury's verdict and inviting the defendant to address the court, the chief justice of New South Wales "gave an almost imperceptible nod to the sheriff's officer who was waiting in the body of the court". The official knew exactly what the gesture meant.The year was 1920. After hearing the jury's verdict and inviting the defendant to address the court, the chief justice of New South Wales "gave an almost imperceptible nod to the sheriff's officer who was waiting in the body of the court". The official knew exactly what the gesture meant.
He walked to the front of the court, mounted the stairs to the bench, walked around the back of the judge to the two, large, hinged curtain rods that were normally flush on the wall behind the bench, each rod carrying a black velvet curtain, and swung them forward to a position on either side of the judge. By ancient tradition, this signalled that a death sentence was about to be handed down. This quaint practice symbolically isolated the judge from all side distractions and influences and focussed his attention on the prisoner directly in front of him, so as to assist him in discharging the distasteful task at hand.
He walked to the front of the court, mounted the stairs to the bench, walked around the back of the judge to the two, large, hinged curtain rods that were normally flush on the wall behind the bench, each rod carrying a black velvet curtain, and swung them forward to a position on either side of the judge. By ancient tradition, this signalled that a death sentence was about to be handed down. This quaint practice symbolically isolated the judge from all side distractions and influences and focussed his attention on the prisoner directly in front of him, so as to assist him in discharging the distasteful task at hand.
Before I explain the remarkable background to this case, I should say that — as far as I know — nobody has ever been sentenced to death in court 4 of the Royal Courts of Justice, although the court of criminal appeal certainly used to hear appeals in capital cases there. Perhaps there is a legal historian who can tell me whether the courtroom curtains in London were ever deployed in the way they were in Sydney.Before I explain the remarkable background to this case, I should say that — as far as I know — nobody has ever been sentenced to death in court 4 of the Royal Courts of Justice, although the court of criminal appeal certainly used to hear appeals in capital cases there. Perhaps there is a legal historian who can tell me whether the courtroom curtains in London were ever deployed in the way they were in Sydney.
The woman sentenced to death in New South Wales had been convicted of murdering Annie Birkett, a woman who had believed she was the defendant's wife. Eugenia Falleni had lived as a man for 22 years and, during that time, had taken part in two ceremonies of marriage with women who each believed that they were marrying a man. The second woman even persuaded herself she had become pregnant by Falleni.The woman sentenced to death in New South Wales had been convicted of murdering Annie Birkett, a woman who had believed she was the defendant's wife. Eugenia Falleni had lived as a man for 22 years and, during that time, had taken part in two ceremonies of marriage with women who each believed that they were marrying a man. The second woman even persuaded herself she had become pregnant by Falleni.
Eugenia, the new biography of Falleni from which I have taken the passage above is, written by Mark Tedeschi QC, senior crown prosecutor for New South Wales. He believes that Falleni was wrongly convicted on the basis of "fallacious scientific evidence, unreliable sighting witnesses, dubious police practice and an avalanche of prejudicial publicity".Eugenia, the new biography of Falleni from which I have taken the passage above is, written by Mark Tedeschi QC, senior crown prosecutor for New South Wales. He believes that Falleni was wrongly convicted on the basis of "fallacious scientific evidence, unreliable sighting witnesses, dubious police practice and an avalanche of prejudicial publicity".
Tedeschi demonstrates all too clearly how a more experienced defence counsel could have secured an acquittal or, at worst, a manslaughter verdict. It is a message that the justice secretary, Chris Grayling, should take to heart. And the authorities in Indonesia might care to note that, as long ago as 1920, Australian politicians were not prepared to see someone they regarded as a woman going to the gallows. No women had been executed in New South Wales for more than 30 years. The sentence was commuted to life imprisonment and Falleni was released on licence in 1931, only to die in a road accident in 1938.Tedeschi demonstrates all too clearly how a more experienced defence counsel could have secured an acquittal or, at worst, a manslaughter verdict. It is a message that the justice secretary, Chris Grayling, should take to heart. And the authorities in Indonesia might care to note that, as long ago as 1920, Australian politicians were not prepared to see someone they regarded as a woman going to the gallows. No women had been executed in New South Wales for more than 30 years. The sentence was commuted to life imprisonment and Falleni was released on licence in 1931, only to die in a road accident in 1938.
Born in Italy in 1875 and brought up in New Zealand, Falleni went to sea at the age of 21. The following year, Falleni was raped by a sea captain who discovered that he and his crew had been deceived by the young sailor. Falleni became pregnant and gave birth to a daughter, who went on to have a family of her own.Born in Italy in 1875 and brought up in New Zealand, Falleni went to sea at the age of 21. The following year, Falleni was raped by a sea captain who discovered that he and his crew had been deceived by the young sailor. Falleni became pregnant and gave birth to a daughter, who went on to have a family of her own.
It was in 1913 that Falleni, then known as Harry Crawford, went through a ceremony of marriage with Birkett. What strikes the modern reader as extraordinary was that Birkett, who had been widowed some seven years earlier and left with a young son, took more than four years to realise how she was being deceived by Falleni, despite several tell-tale signs.It was in 1913 that Falleni, then known as Harry Crawford, went through a ceremony of marriage with Birkett. What strikes the modern reader as extraordinary was that Birkett, who had been widowed some seven years earlier and left with a young son, took more than four years to realise how she was being deceived by Falleni, despite several tell-tale signs.
Tedeschi explains how Falleni used a dildo and always wore a loose-fitting undershirt during lovemaking. Eventually, Birkett confronted Falleni, but Tedeschi's account of their falling out makes it clear that Birkett's death could have been an accident.Tedeschi explains how Falleni used a dildo and always wore a loose-fitting undershirt during lovemaking. Eventually, Birkett confronted Falleni, but Tedeschi's account of their falling out makes it clear that Birkett's death could have been an accident.
In his highly readable biography, Tedeschi concludes that Falleni was a "transgender warrior at a time when there was no understanding of her condition and no support for her cause". He says "the most acceptable term today for Eugenia Falleni's condition is 'gender identity disorder', which is synonymous with transsexualism".In his highly readable biography, Tedeschi concludes that Falleni was a "transgender warrior at a time when there was no understanding of her condition and no support for her cause". He says "the most acceptable term today for Eugenia Falleni's condition is 'gender identity disorder', which is synonymous with transsexualism".
But Tedeschi writes as a lawyer, not as a psychologist. His main concern is to expose a miscarriage of justice for which one of his predecessors was largely responsible. An honest prosecutor never regards an unjust conviction as a successful outcome.But Tedeschi writes as a lawyer, not as a psychologist. His main concern is to expose a miscarriage of justice for which one of his predecessors was largely responsible. An honest prosecutor never regards an unjust conviction as a successful outcome.