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The Precedent Set

With the acquittal this week (Tuesday 7 April 2020) of Cardinal George Pell, many words will be written, both in published media and in social channels. Many people will be appalled by the decision and personally offended that the Cardinal will walk free. For many people, victims of abuse and families of victims, this will come across as a further blow in a society where the odds are already rigged against them. Yet this decision is the only way that justice, in this case, could have been served, and it redresses a terrible travesty of jurisprudence and a frankly horrifying legal precedent.

The case against George Pell has been found insupportable in the High Court of Australia. On the basis of the evidence presented in the trial, the seven judges of the High Court found unanimously that it would be impossible for an unbiased person to dispel all reasonable doubt as to Pell’s guilt.

The prosecution built their case on the sworn testimony of a single victim/witness. Testifying over multiple days, undergoing cross-examination and providing a level of detail the judges and jury found believable and credible, the victim’s statement was damning.

Against that, the defence arrayed a formidable collection of testimony, evidence and witness statements casting doubt on every aspect of the prosecution’s case. From the physical ability to commit the alleged crime, to the opportunity to do so (was Pell really alone with the boys for any length of time after a Sunday service, when his attested habit was to meet-and-greet parishioners on the front steps, and when he was always attended while in robes), right through to personal character references.

By most accounts, the prosecution in the case spent their time explaining why the crime was possible, in the face of this defence evidence, rather than showing that the crime was committed, based on prosecution evidence. According to the statement released by the High Court, the defence evidence was “uncontested” by the prosecution.

It is not the job of the defence to prove that their version of events is true. Which makes it remarkable that the prosecution spent their energies introducing “reasonable doubt” about the defense testimony. It was uncontested, for example, that the Cardinal was in the habit of greeting parishioners on the steps of the cathedral after a Sunday service. All the prosecution could do was argue that it was possible that on this occasion that habit was not followed.

In our modern system of jurisprudence, the accused is considered “innocent until proven guilty”. It is the job of the prosecution to show how and why the accused committed a crime, and provide evidence to support the contention. The defence has the job of casting doubt upon the evidence presented with their own, contrary evidence. The prosecution must then disprove the defence evidence beyond reasonable doubt.

The High Court has concluded that the prosecution in Pell’s case did not do this. Showing that a particular event is possible is not equivalent to proving that it happened, or even is likely. Proving that commission of a crime is possible does not constitute proof that it happened.

A criminal trial rests on one equation and one only: does the evidence for the prosecution outweigh the evidence for the defence? If not, reasonable doubt must remain.

In the case of Pell v The Queen, every piece of evidence tendered – excepting the testimony of Witness A – was provided by the defence. The High Court has adjudged that the prosecution did not adequately disprove that evidence, such that an unbiased jury could dismiss it out of hand. The High Court case was not a judgement on the guilt or innocence of Pell, or the honesty or otherwise of the witness, but a reflection on the flawed processes of the earlier trials. Simply put, the prior trials convicted George Pell on the strength of one person’s testimony and ignored all the evidence to the contrary. The precedent this sets, should it have been allowed to stand, is monstrous.

The requirement for evidence protects us all from abuse by those who would do us harm. The presumption of innocence protects us from being judged before the evidence has a chance to convict. Arguably it has failed George Pell, perhaps because too many people look at him with a presumption of guilt, due to his history, his involvement in church cover-ups, or merely the fact he is a Catholic priest. Pell’s history, his sordid past protecting abusers in the priesthood, his faith and his personal arrogance are irrelevant to the case at hand: was there evidence that he committed the crimes of which he was accused? And does that evidence outweigh the evidence from the defence?

When a citizen is prosecuted for a crime, evidence is required. To successfully make a case, there must be cause to believe the accused person committed the crime. Convicting them in the absence of such evidence is something we have colloquial terms for. Kangaroo Court is one. Witch-Hunt is another. The trial against George Pell edges perilously close to being a witch hunt, and as multiple commentators have noted should never have come to trial. The prosecution did not have evidence to support their case, and could not adequately dispute the evidence that supported the defence.

This will not be a popular opinion. For many, the knowledge that a victim will not get justice rankles. More, it points to the continuing imbalance of power: when those in positions of authority abuse their trust, it can be nigh impossible for the powerless to obtain redress. In cases of sexual or other abuse, there is often no trial-ready evidence available, and in the current system this means that some victims will never receive justice.

Are there only two ways to handle this kind of crime? Either unquestioning acceptance of an accusation, or rigid adherence to a system that makes a conviction nearly impossible in all but the most egregious of cases, the worst of offenders? There ought to be a middle path, where the wronged can be heard and redress made, but the accused sinner might only have their life irrevocably ruined when there is enough proof to convict.

The National Redress Scheme goes some way to accomplishing this middle way, but it will not suit all cases. The shift in public opinion and the way such cases are treated will also have some effect. We now treat allegations of abuse with the importance they deserve and we are not so quick to dismiss or belittle them. We are able to believe the testimony of a victim without necessarily being in a position to bring their abuser to justice.

The fact remains that for many victims the only proof they have is their word, against which can be arrayed an army of evidence and cabals of powerful men. In many cases – maybe even most – it is not worth bringing a case to trial. And this means that many victims will never have their day in court, and that some offenders will never face justice.

Nevertheless, George Pell’s acquittal was the right decision, and should give every Australian some comfort that they, too, cannot be convicted of a crime where there is no evidence to support it. If there is to be any silver lining found in the court’s decision, it is here.

Perhaps a guilty man went free, but that’s a better system than one where the innocent person can be convicted.

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39 comments

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  1. calculus witherspoon.

    The usual mistake, concentrating on the esoterica of a single case whilst ignoring all those decades of studied indifference toward victims that involved the prelate as willing accessory.

    The brothel keeper- maybe- didn’t perform the actual act, but really, how innocent is he in real terms; where is the grace in persecuting unwilling victims as somehow, culprits, which is basically what happened during Pell’s era in authority.

    The illusion does not obscure a dirty grey reality.

    This writer finds the disingenuousness implicit in the piece disturbing.

  2. Kaye Lee

    In my experience, money, not justice or even evidence, is what determines the outcome in way too many court cases.

    One witness swears on oath: this is what happened to me at this place on this day. Other witnesses say: I do not know what happened on that day but that is not what usually happens – and that creates a doubt and voids the conviction.

    “Back in those days, they were entitled to think of paedophilia as simply a sin you could repent of,” Cardinal George Pell told The Australian in 2012.

  3. Matters Not

    What ozfrenic wrote!

    The court upheld principle(s) but that doesn’t mean that principles themselves (the meaning given to same) are everlasting and unchanging. In the United States for example a particular case (Plessey versus Ferguson) established the principle/doctrine of separate but equal which meant that blacks could be forced to designated ‘seats’ (locations) on buses, ferries, trains etc as well as cafes and the like. The ‘separate but equal’ doctrine also ‘justified’ different schooling. Separate schools for whites – no blacks allowed. Blacks had separate schools. Separate but equal. Schools for all.

    In short, that doctrine lasted to 1954 when the US Supreme Court declared that: separate educational facilities for white and African American students were inherently (by their very nature) unequal. Hence a new principle was established.

    Case was successful because of the mountain of sociological evidence provided. The effective outcomes. Not the supposed intentions.

  4. Jack Cade

    I despise Pell. I despise almost all church people. And I think justice cannot be seen to have been done. But I am forced to say, against my instincts, that the High Court is right; I don’t see how the jury could have arrived at a guilty verdict ‘beyond reasonable doubt’. I could not have sat on the jury and nobody I know could have, because we could not have been objective about the case. We would not have given him a fair trial.
    I assume that the matter is not over. There are other cases, and maybe a trial based on ‘the balance of probabilities’ may still be a possibility.
    As I have already posted, I no longer have any confidence in the governance of any aspect of Australian affairs.

  5. HumeAndTwain

    I agree with the author of the article … if the underlying principles of the whole jury system are cast out because of the persona of one person (or even due to the heinous nature of a crime) it opens us all to the threat of a return to the pre-18th century (if not earlier) nature of trials. There has to be sufficient corroborating evidence to convict “beyond the shadow of a doubt”.

  6. Win Jeavons

    Maybe some situations call for the third choice, as used in Scotland? Not proven. Too many rape or assault cases depend on 1 person on each side ,no other witnesses( bullies are often cowards), means thare is sometimes no clear verdict, and an offender can claim innocence, then going on to to repeat offend. Sometimes far worse.

  7. Kaye Lee

    They got Al Capone for tax evasion. Whilst it may be impossible to prove the guilt (or innocence) of Pell in this instance, that may not be the end of it. There is a cavalcade of witnesses who can attest to Pell’s coverups.

    The Catholic Church is well versed in intimidation and dirty tactics.

    “Mr Ellis spent more than a decade seeking compensation but lost the case on a technicality in 2007 when the Court of Appeal ruled the Catholic Church was not an entity that could be sued.

    The commission heard that the church spent more than $1 million over 12 years fighting Mr Ellis’s claim, denying in court that the abuse had happened and threatening him with court costs for several years.

    The commission’s report also outlined how the church initially acknowledged Mr Ellis had been abused but went on to “vigorously defend” itself, including denying the abuse had occured and forcing Mr Ellis into days of upsetting cross-examination.

    The church also failed to disclose that a witness to Mr Ellis’ abuse and another victim of Father Duggan had come forward during the litigation process.

    The commission found the church did not tell Mr Ellis it had decided not to pursue him for legal costs of more than $500,000 for more than a year after that decision was made, a length of time that had an adverse effect on his health.”

    https://www.abc.net.au/news/2015-02-11/royal-commission-condemns-george-pell-for-treatment-of-victim/6086194

    It seems to me that “justice” is a very one-sided affair.

  8. Matters Not

    Courts are first and foremost about The Law.

    With Justice being an optional extra or an incidental by-product – on some occasions..

  9. Dave G.

    Interesting that Kaye Lee quotes Pell’s thoughts on paedophilia from 2012.He now constantly says he is innocent of this abhorrent crime.Being an unbeliever myself & ignorant of Catholic Dogma but is it possible that at some stage he went to Confession was cleared of all that had gone on before & therefore thinks he is now “innocent”.Is this a possibility?

  10. Claudio Pompili

    Hmmm, yes I concur with the author on the need of the High Court to protect “innocent until proven guilty” principles and accept the arguments put forward in the presentation of evidence by the prosecution/defence.

    However, in reflection on the closing paragraphs,

    “The fact remains that for many victims the only proof they have is their word, against which can be arrayed an army of evidence and cabals of powerful men. In many cases – maybe even most – it is not worth bringing a case to trial. And this means that many victims will never have their day in court, and that some offenders will never face justice.”

    I wonder how this might apply to any egregious human interaction giving rise to a process of judgement and redress but separated by large amounts of time. For example, the many instances of injustice and murder of First Nations people/tribes/communities subsequent to first contact, and the modern-day judgements of redress, such as in Mabo determinations. Or in the ‘killing sites’ identified by written evidence (newspapers, journals etc) and oral history passed down to present descendants of survivors. All the foregoing denied, rejected, ridiculed, and attacked by “cabals of powerful men.”

    In these and many other cases, do we accept, begrudgingly, that “offenders will never face justice”, but that’s OK because we in Australia have preserved the sacrosanct principle of “innocent until proven guilty”? There are many other human constructs of justice, such as “guilty until proven innocent”. I wonder, if that had been the principle underpinning the Pell case, how the defence evidence would have stood up to prove Pell’s innocence against the prosecution’s Witness A statements?

    The author’s concluding sentence, “Perhaps a guilty man went free, but that’s a better system than one where the innocent person can be convicted.”, gives rise to distinct discomfort in its glib, if not trite/cliched, summary.

    Clearly to my mind, this, and many other cases, demonstrate that our system of justice is broken. Witness A is just one of many, many victims of child sexual abuse, as corroborated by endless amounts of evidence examined by royal commissions and official inquiries.

    Here then is an opportunity to consider a new or improved system, either by way of tabula rasa, or root and branch revisions. In light of the existential threats of anthropogenic climate change and pandemics, no better place to start would be a new Constitution, that includes a bill of rights and first nations’ people recognition. From that lens, a new system of justice should be constructed from the ground up. Yes, a daunting task, but not impossible.

    The aim and outcome, at the very least, would be that guilty men/women don’t walk free, that the innocent aren’t convicted, and that their grievances are redressed and justice served. We can do this.

  11. RosemaryJ36

    I agree with Jack Cade. People always expect justice from the law but upholding the law does not always result in an equitable outcome.

  12. paul walter

    Agree with Kaye Lee, the behaviour of the high ups in churches has been similar to the responses of the “organisation” people trying to cover up for their banks behaviours at last years RC into the banks and their cold blooded practices.

    Firstly, don’t think people haven’t died because of banks behaviours toward customers through grievous breaches of trust and ethics.

    But, the thing is, there is a certain (corporate) mentality that puts loyalty to the organisation, including its finances and bottom line, that comes prior to the needs of clients (kids, parents re churches?). As an apparatchik, Pell was worried about the increasing reputational and financial damage done his church and it was actually a real issue.

    But if he had acted earlier and decisively all that has followed over the last, say, forty or fifty years, would not needed to have happened.

    As Kaye Lee just pointed out, big orgs can be ruthless in protecting their own interests, right or wrong and this is a factor many conservative Catholics won’t acknowledge. Had Pell been as ruthless rooting out corrupted priests and settling financially and fairly with victims before costs accelerated out of control; less lazy and callous, this mess would not be here today.

    In his monastery, George Pell will have ample time to contemplate his responses over time both on humane grounds and on practical grounds.

  13. Aortic

    Comment from one father or brother or whatever on Sarah Fergusons ” Revelation” on the ABC. ” Of course paedophilia in days gone by was not viewed as seriously as it is in the present day.” My chin is still on the floor. 112 graduates from St. John of God 40 percent paedophiles. And this is a ” church” that claims to be the only true voice. Yeah Right. The people I really feel for are those who believe this and are constantly being let down by their hierarchy. It must truly test their beliefs.

  14. Peter F

    Kaye .’Dr Pell told his audience of World Youth Day’…. recalling Mandy Rice Davies….. “well, he would, wouldn’t he”.

  15. Terence

    Kaye Lee/Dave G

    I agree with the author and commend them on a good article.

    However, I lose no sleep that Pell spent just over 400 days in jail. Let’s not forget during the Royal Commission, when asked if it was “common knowledge” that Ridsdale abused children. Pell replied

    “It’s a sad story and it wasn’t of much interest to me.”

    Just think about that for a second. Here is a man of the cloth, supposed to be au fait with morality, decency and the word of the Lord, yet he basically said that he couldn’t give a flying F about children being abused. Of course the Catholic spin doctors must have had a coronary when he uttered those words and then proceeded to slap him around all night making sure he remembered to utter these weasel words at the first opportunity:

    “I remember messing up the sequence completely. I regret the choice of words. I was very confused. I responded poorly.”

    Other professions can serve up to several years in jail for not reporting suspected child sexual abuse. So the fact that he was in a position of power and he could have done something but didn’t, then 400+ days in jail seems like a bit of justified Karma.

    Ain’t it a bitch

  16. Michael

    “Nevertheless, George Pell’s acquittal was the right decision, and should give every Australian some comfort [?] that they, too, cannot be convicted of a crime where THEY HAVE NO MONEY AND there is no evidence to support it.

    If there is to be any silver (?) lining found in the court’s decision, it is here.” ?

  17. Michael Taylor

    Courts are first and foremost about The Law.

    With Justice being an optional extra …

    MN, allow me to say … BRILLIANT. 😀

  18. A Commentator

    It’s clear that there was insufficient evidence to support the charges, but it is surprising that there aren’t charges available for his workplace and management negligence.

  19. Peter F

    Three people knew the truth. One is dead. Now two know the truth. They both have to live with it.

    I feel for any victim of molestation.

  20. Matters Not

    Having agreed that the High Court decision was the right one, this should not be taken to mean that it was also a good one – at least in terms of moral philosophy or ethics (if you like). Right/wrong decisions flow from a deontological perspective while good/bad decisions come via a teleological lens.

    Yes decisions can be right but not good while wrong decisions can also be good decisions. Witness J seems to understand that complexity. Probably one of the reasons the DPP chose to proceed with his case and not a multitude of other possibilities.

  21. Brandane

    I have been on a couple of juries in serious and long cases and I found that jurors from a varied background take things very seriously and get it right. Small sample I know but Pell had the best defence barrister at huge cost to defend his case. As part of this he grilled the victim for days. He also expertly presented all the evidence for doubt, reasonable or not. All the evidentiary problems noted by the High Court was made know to the jury at the time and still they found him guilty.
    This decision seems an insult to jurors.
    I have the uneasy feeling that Pell ,and therefore the Catholic Church in Australia, was just too big to bring down.
    All the institutions where victims were sourced/and or abused were subsidised from the Public Purse and a Church facing financial ruin will not go quietly or alone.

  22. Phil

    The story in a nut shell. Rome has much influence. Papa rang Morrison, Morrison rang the High Court, the High Court rang Pell’s lawyer, Pell’s lawyer rang Pell, Pell rang for a taxi. The end.

  23. Matters Not

    Brandane re:

    decision seems an insult to jurors.

    Can reasonably be seen that way. Certainly, it proceeds on the understanding that some jurors (in this case 7 High Court Judges – the entire Bench) are better qualified to make legal judgements than other juries. What do you think?

  24. Kaye Lee

    Of course high court judges are more qualified to make legal judgements. Are they better able to determine the truth? I think not. Truth is irrelevant in legal argument as exemplified by the Ellis case. Which is probably why we have juries in the first place.

  25. Jack Cade

    Matters Not.

    As you have pointed out, the courts dispense the LAW, not justice. Anybody who goes into a court expecting JUSTICE will first need to determine that the justice they seek is justice under the LAW. Many laws are unjust, and under conservative governance more laws are unjust than are just. Pell’s case has been decided under the law; justice didn’t come into it.
    As for religions, JUST laws would treat them as corporations and tax them accordingly: for corporations is what is what they really are.
    I doubt very much that the majority of their ‘employees’ even believe in the God they represent.
    And as for the Catholic faith – celibacy is the ultimate sexual perversion, and an enormous number who have taken a vow of celibacy clearly break their vows, and probably never intended to keep them anyway. Many more than we know about, because we only know those who have been caught out.

  26. pierre wilkinson

    Gerald Ridsdale
    Pell’s cpmments re: paedophilia is a lesser crime than abortion
    a huge organisation, heaps of funds, waiting until all but one of the accusers have died,
    old PMs, themselves religious hypocrites
    and a cast of thousands to testify that even if he did do it, it was really quite trivial
    anjd we call it justice?
    shame on you, ozfenric, shame on us

  27. Jack Cade

    Brandane

    You have put your finger on the monumental flaw in our legal system. Pell got the best decision money could buy. Under our system, the big cases are won by the best actors – barristers who pose and preen and blend the jury with their eloquence – the facts don’t come into it. But in the Pell case, the ‘best, most expensive barristers’ could not persuade 12 people.
    If every decision goes to appeal ( and it enrages me that some of the most obvious guilty verdicts are appealed in Australia – it seems automatic these days), then judgment by 12 of your peers, which is the cornerstone of the British criminal system, is dead and buried.

  28. Peter F

    @A commentator “It’s clear that there was insufficient evidence to support the charges”. No, it is not clear. 12 jurors decided that there was. Seven judges decided that there was wriggle room.

  29. Matters Not

    Jack Cade, I agree that significant dollars are needed to buy the best legal representation and that many laws are unjust, but I am not sure that ‘fact’ can’t also be applied to other sectors of society. Agree also that barristers pose and preen .. etc when making their case. Or as I would argue – construct a particular (alternative) reality and then invite (convince) members of that jury to adopt same.

    KL re

    Truth is irrelevant in legal argument

    Maybe so. Perhaps this ‘truth’ of which people speak mightn’t be a holy grail – given that scientists never claim ‘truth’ and the Pope praised Pell: for having waited for the truth to be ascertained.

    Perhaps ‘truth’ might be more in the eye of the beholder that most people realise – more subjective than generally conceded in the everyday world.

  30. Brandane

    Matters Not.
    I felt at the time of the trial, or the revelation of the trial, that the Defence had the best defence team money could buy, seems to be the go to team favoured by Catholics accused of paedophilia eg St Kevin Sports Master, the Defence had thrown the kitchen sink at the case even had one witness grilled for days, that is the victim – even though Pell, the other witness was not subject to cross examination.
    No stone was left unturned.
    The Jury was convinced and took their time about it.
    There was no where to go for Pell.
    This is the worst outcome, acquitted on a technicality, even though the High Court found the Victim’s testimony credible.
    The Church is crowing for the Vatican down, no sign of contrition, no effort to find the priest who molested the victim if it wasn’t Pell.
    The only way the law can protect children from predatory priests is to ban all contact between the Roman Catholic Organisations and children.

  31. Matters Not

    Re – the claim you made: acquitted on a technicality. Legal people (and I’m not one) might argue that it’s much more than a technicality. Indeed it’s seen as a principle central to the criminal justice system in contrast to lesser (civil) charges.

    Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the balance of probabilities. That is, the case must be proved to be more likely than not

    You can read further here.

    https://www.burnetts.co.uk/blog/on-the-balance-of-probabilities

  32. Jack Cade

    I don’t think he was acquitted ‘on a technicality’. He was acquitted on insufficient evidence as to persuade twelve of his peers that he was guilty. I happen to believe that the 12 peers got it right in the first place, but I also feel
    there was insufficient evidence.
    As someone posted earlier, there should be the Scottish option of ‘not proven’, which more or less means ‘we Ken yer dunnit, yer twat, but we havenae proved it.
    Not yet…’

  33. Wam

    Surely when the defence is that events could not occur demonstrating that it could is relevant to the jury?

    ps matters not, be careful rashomon is 70 years old and lord still believes in ‘the truth’ and it is his truth.

  34. Peter F

    MN, It seems that enough evidence was given by those who thought ‘it could not have happened’ to cast doubt.
    It was what any defence should have mounted in such a case.

    The complainant ‘s evidence could not be destroyed by the expert barrister employed by the church.

    This meant that doubt had to be introduced from a separate source or sources.

    Had Pell subjected himself to the same level of rigorous examination, the level of doubt might have been altered. This did not happen.

    The question for the appeal courts was whether or not there was a LEGAL error in the outcome of the criminal trial.

    There are various opinions on this, and they will remain.

    Only Pell and the complainant know the truth. We have been given one version in detail, and a flat denial in response.

  35. wam

    Surprise surprise Michael, it is not only hockey and cormann who work in a closed shop and can have a cigar and port before during and after making decisions., such arrogance and self aggrandisement is rife in closed shops like pollies, lawyers and boards
    The only thing the frogs have done right is their judicial system where there is involvement of the courts and judges.
    If royal commissions weren’t so devalued by the rabbott one into lawyers and judges would expose some awful injustices
    ps
    Jubelin conviction elicited ‘We used this and entrapment tactics many times and sometimes got a telling off from the boss’ from the retired coppers whose frustration was illustrated by my only jury experience where the obvious hard work by the police was undone. by the appearance and accent of the victim and by the smarmy convincing bullshit of the silk every body in the jury room laughed at the foreman’s ‘wow if I am in trouble I want him defending me” and he was right because witnesses to the goading over sexuality on the night and leading up in the weeks before culminating when even cctv showing a huge security holding the victim and the accused punching the defenceless victim was brushed aside by the use of “doubt”.
    That said our system needs the juries rather than a judge alone.
    pps trump has announced he will keep deaths under a 100k perhaps he is competing against the world??

  36. John

    Curiously the Author of this torturous apology for judicial savagery never once mentions the Jury. Or the Vatican. Or the $$$$ Money!!!! Also the Author appears completely tone deaf as to the distinction between Justice and The Law.

    “I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.”

    ― Henry David Thoreau, Civil Disobedience and Other Essays

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