Cardinal George Pell arrives at County Court on February 26, 2019 in Melbourne, Australia (Photo by Michael Dodge/Getty Images)

Breaking the Cardinal Rule

A disturbing miscarriage of justice reveals Australia’s judicial system is in poor shape

Artillery Row

Cardinal George Pell, Australia’s highest ranking prelate in the Catholic Church, was this week freed from prison after the High Court of Australia dismissed the convictions against Pell in a unanimous judgment of the court. Cardinal Pell is Pope Francis’s former finance minister and back in 2018 he had been convicted of sexually abusing two 13-year old choirboys in a back room of a Melbourne Cathedral immediately after a Mass back in 1996. The trial judge sentenced Pell to six years in prison. The Cardinal’s first appeal to the State of Victoria’s Court of Appeal was dismissed, 2-1, with a rather stinging dissent by that court’s leading criminal law expert. Australia’s top court, the High Court, in a very unusual procedural move, agreed to hear the Cardinal’s leave to appeal and his actual substantive appeal concurrently. A few days ago the entire seven member High Court ruled unanimously that the appeal had succeeded and that Pell was to be released immediately.

That is the basic history. But this is a case that has attracted world-wide attention and that has split Australia more or less down the middle. At the risk of over-generalising you could say that this country’s public broadcaster the ABC, the progressive elites in the universities and elsewhere, and many secular anti-Catholics have been lined up against Pell while many (not all) Catholics and conservatives more widely have been in his corner. So in the light of that, and also of the current trend to see everything these days through the lens of identity politics – which amounts to a sort of massively over-reductionist framework under which the sole thing that matters about anyone is the group to which he, she, it, etc belongs, the idea being that your group identifies everything important that matters about you – let me start by telling readers that I am not now, nor have I ever been, a Catholic. I was raised an atheist. Both my parents were Scots-Canadians. Both sides of my family were Calvinist Presbyterians, of the fire and brimstone variety not today’s guitar playing Kumbaya sort. You would not have to go back very many generations in my family to find that all my relatives referred to Catholics as Papists.

It is for the prosecution to prove guilt beyond any reasonable doubt; it is not incumbent on the accused to prove anything

I say all that to make clear to the usual identity politics crowd that my defence of Cardinal Pell cannot plausibly be sloughed off as a sort of ‘Catholics defending their own’ gambit, as many defences of him are being categorised at the moment. You see it’s clear to me that Cardinal Pell should never have been convicted; should never have had to spend some 400 days in jail until freed this week by the High Court; and that a sort of mob hysteria (sound familiar in these coronavirus times?) developed that luxuriated in the warm bath of guilt by association thinking.

To be clear then, my defence of Pell is premised on my belief that when you look at the evidence that led to his conviction at trial, and at the Victorian Court of Appeal’s upholding of that conviction, both were grave and disturbing miscarriages of justice. And to be doubly clear I said as much, in print, before the High Court ruled in that same vein a couple of days ago.

To see the core problem with everything that happened to Cardinal Pell, and why his conviction was a miscarriage of justice, pure and simple, I want to remind readers of a key premise – really it is a trade-off that we are prepared to make – that lies at the heart of our criminal law procedures and presumptions. Often this is referred to as Viscount Sankey’s ‘golden thread’ that runs through the criminal law in the common law world. This is the idea that it is for the prosecution to prove guilt and to do so beyond any reasonable doubt; it is not incumbent on the accused to prove anything. And behind that lies the further premise – I would say consequentialist trade-off – that it is better that a good many guilty people go free rather than that an innocent person be convicted and go to jail. The standard or burden of proof in criminal trials is premised on an acceptance of this trade-off, as are aspects of the law of evidence and other elements of criminal procedure.

That’s a long-winded way of explaining why there is a different standard of proof in criminal trials than in all the other sorts of trials you would find in a courthouse – ones involving lawsuits over contracts, negligent behaviour, property disputes, administrative over-reach, what have you. When I sue you over an alleged breach of contract, the non-criminal standard of proof boils down to the preponderance of probabilities, or which side’s case was more likely. If mine is judged to be 51 percent likely and yours 49 percent, I win.

Not so in criminal cases. There, for all the civilised reasons noted above, the accused is never to be convicted if there is any reasonable doubt, full stop. And when you read the High Court’s unanimous judgment in the Pell case, it amounts to little more than a discussion of this standard of reasonable doubt with implicit criticisms of the Victorian Court of Appeal for not grasping what it means. Given the evidence the Crown produced at Pell’s trial – which was nothing more than the testimony of one complainant against nearly two dozen defence witnesses, none of whose evidence was challenged and whose evidence meant that at most Pell would have had a five minute window immediately after Mass to attack the boys, with people all about and any of them possibly coming into that room at any time – if there were ever a set of facts that screamed ‘reasonable doubt’ these were they. That two of the three Justices on the Victorian Court of Appeal could not see this, and went off on a tangent talking about what was possible, does not give one much confidence in the State of Victoria’s justice system.

Let me go further. When you looked at the exiguous evidence the Crown was able to present it seems (and seemed) patently clear to me that even on the civil standard of proof, the preponderance of probabilities or which side’s case was the more likely, Cardinal Pell would have won on that basis too. Yes, yes, yes I know that ‘not guilty’ is not equivalent to ‘innocent’. So, yep, I’m saying that I think the Cardinal was innocent, not just entitled to a reasonable doubt. I think the evidence presented against Pell was so weak that in a world of limited biological creatures without God-like knowledge who judge matters on the evidence presented to them that Cardinal Pell was not just ‘not guilty’ (because there was plainly and abundantly and undeniably a reasonable doubt here) but also ‘innocent’ (as in the case for him not having done it was stronger, I’d say a lot stronger, than the case that he did do it).

The jury was not told that the complainant had a history of psychological problems

Careful readers of the High Court of Australia decision will notice that the seven justices also hint at this; they come as close to it as judges in today’s world ever will when they say that with Pell’s conviction there was ‘a significant possibility that an innocent person was convicted’. That is the roundabout way in which a top court leaves no one (well, no one who cares to listen) in any doubt that Cardinal Pell has been the victim of a serious miscarriage of justice, having had to spend over 400 days in prison after being wrongfully convicted.

It gets worse. The State of Victoria has legislation that meant the original Pell jury was denied the full story about the man who claimed to have been assaulted by the Cardinal. The jury was not permitted to be told that the complainant had a history of psychological problems that required treatment. Nor was the jury told that Pell’s defence team had been rebuffed in its attempts to get access to the complainant’s history of psychological problems. All but the most fanatical of the ‘always believe accusers’ crowd would consider this relevant information. The pendulum in the State of Victoria, and in many other jurisdictions too, has plainly swung too far back the other way in terms of shielding complainants at the expense of undermining the presumption of innocence and fair trials.

There are also questions for the police to answer – and this will sound familiar to British ears – as they effectively advertised for complaints against the Cardinal. Ditto the public broadcaster, the ABC, which seemed never to give Pell any benefits of any doubts or show any scepticism as regards any accusations during the whole two year period. If Pell had been a refugee with strong religious beliefs of a non-Catholic persuasion every sentient being knows the coverage would have been, shall we say, somewhat more open-minded and favourable.

At any rate the decision by the High Court has stopped this from being Australia’s equivalent of the Dreyfus affair. But only at the final safeguard hurdle. And at a very big cost to Cardinal Pell. All in all Australia’s justice system, at least in its second biggest State, has not looked good throughout this saga.

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