Features Australia

Reasonable doubt about Pell

31 August 2019

9:00 AM

31 August 2019

9:00 AM

I want to remind readers of the Speccie 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 (and by ‘our’ I actually mean all the jurisdictions in the developed common law world).  Often this is referred to as Viscount Sankey’s ‘golden thread’ that runs through the English [and so Canadian, American, Australian and more] criminal law. 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 (e.g., no self-incrimination).

This seems to me, and I daresay to most others, to be a completely defensible and desirable trade-off or core premise to have lying at the heart of one’s criminal justice system. Of course, usually we tend to gild the lily as to precisely what the trade-off is. Most of us are prepared to see 10 or 20 or maybe 100 guilty accused go free, rather than that one innocent person go to jail. However, virtually no one is prepared to see a million or half a million or 300,000 (stop me!) guilty defendants go free, rather than that no innocent person ever be convicted. If that were the bargain you wished to strike then the standard of proof you would demand of the prosecution would be ‘absolute certainty of guilt’, which is probably almost never on offer, and at a minimum would mean convictions were few and far between. So given that our attachment to not convicting the innocent is not ‘absolutist’, we all know that on occasions it must be true that even in well-run criminal justice systems (that compromise to a high degree to avoid wrongly convicting the innocent) that nevertheless innocent people are sometimes convicted. It must and does happen. We know that innocent people must be in jail as we read this. That is certainly not the goal of our criminal justice system. Quite the opposite. Rather it is a core goal and explicit foundational premise to do what we reasonably can to avoid it. But it happens. Indeed, it is inevitable that it does.  All we can say is that it should never be the direct intention that it happen, merely an inevitable side-effect of any criminal justice system administered by fallible biological creatures, including those that explicitly go to great lengths to avoid convicting the innocent.

Nor is it some sort of knock-out argument to say ‘the courts have spoken’.  Judges are human. They err. In some jurisdictions they do so more than in others. When DNA evidence became widely available all sorts of convictions that had worked their way through court systems, up through all the appeals and left people in jail for ages, were overturned. They’d been wrong. The person convicted could not have done the deed. The stored DNA was not that of the convicted person. (As an aside, it turns out that the least reliable sort of evidence presented in court is eyewitness evidence. Professor Elizabeth Loftus in the US has shown it to be surprisingly easy to manipulate memories and to get things wrong.)


Some readers will see where this is going. Before it arrives let me say that as a rule I basically never sign any letters that aim to be presented to some politician or other under the sort of heading that goes ‘the following seven million distinguished law professors disagree with this, that and the other thing’.

First off, these are usually highly politically partisan (and not in line with my political instincts). Secondly, more often than not the so-called experts who append their names to such letters have no expertise in the matter. And thirdly, even when they do have expertise they can be wrong. Just think of all those top British academic economists who signed the letter warning that Maggie Thatcher’s economic reforms would be a disaster.  Wrong!

So I don’t do it. Well, except for one time when I worked in New Zealand. A young, gay man in the south island of New Zealand by the name of Peter Ellis was convicted for supposedly molesting young children in his care as one of several day-care workers in factual situations that required you to suspend the working of your brain. The police questioning was as close to ‘seeking the answers you want by asking leading questions’ as you can imagine. The trial judge’s conduct of the trial looked procedurally awful. A number of academics, not just a few legal academics but also world class professors of how memory works psychologically, plus members of the Skeptics Society (of which I was also a member), plus a whole lot of others, worked hard to try to get Ellis cleared. We failed again and again – firstly to have his conviction overturned on appeal and then to get him pardoned.  It went up the chain of appeals in New Zealand more than once. The judges simply were not prepared to reconsider the matter. (Put differently, they wouldn’t admit there had been an egregious error on their part.)

So unlike the famous Dreyfus case in France, Ellis never had his name cleared though I can tell you that plenty of Kiwis today think he was not just wrongly convicted (i.e. there were bucket-loads of reasonable doubt) but that he was actually innocent (as in, he did not do what was alleged).

For all the above reasons and more the Cardinal Pell case looks to me like one where there is clear and obvious reasonable doubt. This is only the second time in my career when I have felt this, that the legal system has patently erred against a defendant. (There is one other case in New Zealand from the city of Dunedin where I lived for 11 years where I feel there was a massive injustice the other way, that the courts let a patent murderer ultimately go free.)

Go and read the background, the initial DPP reticence and the trial procedures used against Pell and ask yourself if you have a ‘reasonable doubt’ as to Pell’s guilt, remembering this is the test not whether you think it’s more likely than not that he did. If you think there is reasonable doubt, and you want to live in a civilised society, then like me you think the Cardinal should be acquitted. Whether he will, though, is another matter.

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