Cardinal George Pell’s recent acquittal in the High Court of Australia hardly made the news here in New Zealand. On the face of it, this is strange when you consider how much media attention was given to the Royal Commission’s findings over there, the charges laid against Pell, his trial and conviction and the failure of his appeal to the Victorian Court of Appeal (in the Supreme Court of Victoria). These events were all big news, reported on heavily, even gleefully.
Of course, it’s only strange “on the face of it”: once you take into consideration the deep and heated anti-Christian prejudice in the New Zealand media, the silence about Pell’s acquittal is hardly remarkable. Perhaps they hoped New Zealanders wouldn’t even know about the acquittal. Perhaps they’re right.
It’s been more difficult for the Australian media to squash the story, so the focus has been on such petulant nit-picking as, “They didn’t find him innocent”. Never mind that courts never find people “innocent”. They don’t need to. We are presumed innocent until a court says otherwise. Pell has been returned to that state of presumed innocence, which is the same legal state that you and I occupy. In the law, that’s as innocent as it gets.
Petulance is the grief response of the bitter and immature.
Pell was hung, drawn and quartered in the Australian media for several years. Every time a complainant made a statement or gave an interview, there was a frenzy of reporting. No analysis, though. No critique. Just strident repetition.
The public was not given much of an idea about the strength of the case when charges were laid by the police, when the Magistrates’ court referred the matter to trial, when the Office of Public Prosecutions filed its indictment, when the trial judge charged the jury, when the jury gave its verdict, when Pell appealed the verdict or when that appeal failed. And now we know why.
The recent decision of the High Court of Australia – a joint unanimous judgment of the Full Bench (7 judges) – is the first time the case against Pell has been laid out in all its dubious glory. The HCA’s conclusion:
“there is a significant possibility in relation to charges one to four that an innocent person has been convicted”.
This seeming understatement is as damning a conclusion as can be reached in the upper echelon of the criminal justice system.
The HCA decision can be read here:
Reading the judgment, you know immediately that whatever drove the Police, the OPP, the trial judge and the Victorian Court of Appeal, it was not the evidence.
The Police and the OPP might be forgiven if it were to emerge that the aggressively anti-Christian (sorry, “progressive”) Victorian Government pressured them into laying charges and launching the prosecution. However, the members of the Victorian Court of Appeal have no such excuse. The majority should have been above faddish cultural ideology, and they weren’t: they swallowed it whole.
It’s very disturbing to see just how high the rot has risen in the Victorian criminal justice system. I say “rot” because a weaker word won’t suffice. The majority of the Victorian Court of Appeal strayed so far from first principles that it is still hard to believe it happened.
The HCA decision reveals that the prosecution, trial and appeal were wrong at the most fundamental level. Anyone who’s ever worked in prosecution knows that the prosecution has to prove the offence beyond reasonable doubt. We know this means that, if the available interpretations of the evidence include one that is reasonably consistent with innocence – if there is, you might say, a reasonable (not fanciful) possibility of innocence – then acquittal must follow. And we know this analysis applies to the whole body of evidence, taken together.
Here, the onus was shifted, and not just slightly. It seems that the majority of the Court of Appeal were so impressed with the demeanour of the primary complainant that they decided to accept his evidence as prima facie true, and then looked at the rest of the evidence critically to assess its impact on that truth. They concluded that the evidence of the many witnesses who gave evidence of the after-Mass movements of Pell and others on the day in question (the “opportunity witnesses”), although also persuasive, still left a possibility of the complainant’s evidence still being true – a possibility of guilt, in other words.
This completely inverts the proper reasoning. They decided at the outset to rank the evidence (and the witnesses who gave it), rather than analyse and evaluate the whole body of evidence.
Why would they do such an outlandish thing? It seems that their methodology was very like “Believe the victim” – let’s say, “Believe the victim if he presents as believable”. They appear to have been powerfully influenced by the ludicrous “Believe the victim” of #MeToo. I don’t know how else to explain their wayward reasoning.
Whatever the solution is to the real and significant problems #MeToo has unearthed, “Believe the victim” is not it. The Victorian Court of Appeal only met #MeToo halfway and still produced a gross injustice.