Flat White

The Pell ruling: imperfect, but if you want moral police and moral courts try Iran

9 April 2020

2:55 PM

9 April 2020

2:55 PM

On Tuesday, the High Court of Australia unanimously granted Cardinal George Pell leave to appeal to the High Court and then proceeded to quash a number of convictions against him for child sexual abuse.

The basis of their ruling was that a jury, acting rationally, ought to have entertained reasonable doubt as to Pell’s guilt in relation to the offences involved in both alleged incidents. That is, there was a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof.

So, what does it mean?

It means that the evidence given at trial was not sufficient to meet the threshold of ‘beyond reasonable doubt’, and accordingly, a guilty verdict should not have been returned. One of the great tenets of our legal system is that we are all presumed innocent until proven guilty. The burden of proof rests with the prosecution, and if they don’t discharge that onus, the accused walks free.

In actuality, a finding of not guilty doesn’t necessarily mean an accused is innocent, rather the checks and balances in our legal system mean that only proven crimes, as opposed to all crimes, result in prison sentences. It’s the legal equivalent of herd immunity. And while it isn’t ideal, I’m not at all enamoured by the idea of being guilty until proven innocent or lowing the threshold to allow reasonable doubt to creep in. Those are the alternatives.

More broadly, the High Court has reaffirmed our right to a fair trial and has overturned a precedent that curtailed longstanding procedural fairness. Some people will call these principles ‘technicalities’, but in reality, these procedural rules protect citizens from state overreach. It gives citizens the benefit of reasonable doubt when they are prosecuted by the state. And while the criminal burden of proof may not be a perfect principle, it’s the principle most compatible with our quest to maintain a free and civil society. We shouldn’t desperately pursue and applaud the defilement of our collective rights at any time and certainly not out of blind hatred towards one individual.

Cases of historical sexual abuse are typically hard to prove. Often crimes are committed in secret, without witnesses. Memories fade over time. Evidence either can’t be collected, or is lost or destroyed. And I don’t seek to belittle the suffering or trauma of sexual abuse victims because there are plenty of cases where institutional child abuse did occur. Unfortunately, it’s not the outlier of human behaviour that we wish it was.

Throughout these proceedings, we have heard about the complainant’s suffering at being put through this process as well as that of victims of sexual abuse more broadly. No doubt that concern has merit. But there is little point directing anger towards the system, the judiciary or the accused. Every accused person has the right to a fair trial and the right to hold their accuser to proof. And the Courts are merely the instrument of government that adjudicates the merits of criminal matters. Ultimately, the responsibility for bringing this case rests with the Victorian Police and Department of Public Prosecutions. They collected the evidence, they proofed the witnesses, and they weighed up the merits of the case before bringing charges. The fact the evidence was found to be so noticeably wanting ultimately rests with the DPP — they need to take some responsibility for the rollercoaster they have taken people on in this, ultimately, futile attempt to secure a conviction.

Since the delivery of the High Court decision, the cesspit that is the Twittersphere has parroted the narrative that private citizens have no chance at receiving justice because they can’t compete with the Catholic Church’s power and deep pockets. That argument may hold some water in civil proceedings but it’s not the case in criminal proceedings despite what the anti-Pell activists would have you believe. In this case, Pell is a private citizen defending himself against the state. And the state will always have the most power and the deepest pockets which is why robust principles of procedural fairness are a necessity. You only need to peruse the second page of the High Court judgment to see that Pell was represented by one QC and a junior barrister whereas the state was represented by two QCs and a junior barrister. So let’s park the ‘deep pockets’ fallacy to one side.

The baying mob on the Twatters also tell me that, regardless of the law, the High Court decision is immoral and unethical.

Sorry, what?


Morality is fashionable again, is it?

Whenever a conservative suggests immorality in someone’s conduct, they invariably get shouted down as intolerant and xenophobic. But now that morality is cuddled up with self-interest, the lovelies are suddenly proponents of it. Well, I’m sorry — we are a secular society. Criminal proceedings are adjudicated by courts of law. If you want moral police and moral courts may I suggest a stint in Iran to disabuse you of the notion that moral rulings are a good idea. And to those who consider lowering the burden of proof as a way to shoehorn in more convictions, we might as well go the full feral and recommence actual, instead of merely figurative, witch hunts.

In the wash, neither of those options will have constructive results. Rather the level of injustice will likely outweigh the injustices already apparent in our legal system.

Back to the High Court decision.

After a hung jury, Pell was convicted by a second jury and then lost on appeal in a majority judgment. The High Court was unanimous in quashing the convictions and exacting in its criticism of the Victorian Court of Appeal. Usually in legal proceedings there are winners and losers. On the surface, this looks like a resounding win for Pell. But, in some very sad cases there are actually two very battered and bruised losers.

I fear this is one such case.

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