The Burden of Proof and the Pell Case

The conviction of the guilty is just; it is the unremarkable business of a just criminal jurisprudence; but the conviction of the innocent strikes at the heart of justice. If it happens through error or negligence, it is bad enough; when it happens by design, it is an abomination that corrodes trust in the law itself.

Maimonides in the twelfth century, in his commentary on Exodus 23:7 (“Keep far from a false charge, and do not kill the innocent and righteous, for I will not acquit the wicked”) concluded, “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way”.

Practical men, especially those who reasonably expect never to suffer the consequences of flawed jurisprudence, have taken a more pragmatic view than Maimonides. So English Chief Justice John Fortescue, in 1471, revised the number drastically. “Indeed I would rather wish twenty evil doers to escape death through pity, than one man to be unjustly condemned.” Later still, Lord Blackstone in the late 1760s widened the scope to all crime and punishment, writing, “Better that ten guilty persons escape than that one innocent suffer.” This last has become a fundamental maxim of common-law criminal justice, generally known as Blackstone’s Ratio.

Statesmen, and the secret police, can have their own sense of the practical. Otto von Bismarck supposedly remarked that “it is better that ten innocent men suffer than one guilty man escape”. Felix Dzerzhinsky, founder of the Cheka, perpetrator of the Red Terror, head of the OGPU/NKVD, was more to the point: “Better to execute ten innocent men than to leave one guilty man alive.” One of his successors, Nikolay Yezhov, restated his argument: “Better that ten innocent people should suffer than one spy get away.” What he meant by “suffer” was illustrated when he fell foul of the Great Purge which he had orchestrated: he was executed in 1940.

The line between good and evil, in Solzhenitsyn’s formulation, runs through every human heart. It is there the decision is made to model Maimonides or Dzerzhinsky, Blackstone or Yezhov, or any of a myriad gradations of good and evil which fall on either side of that line. Those who police the law, and even more, those who adjudicate the law, bear a heavy responsibility, not merely for the integrity of their own decisions, but for the integrity of the society as a whole.

Hence the importance of the presumption of innocence; the presumption that the accused is, at worst, one of Blackstone’s ten. Many of the processes of criminal courts are informed by this imperative. The burden of proof rests on the prosecution. Aside from the logical problems of proving, even to the standard of on the balance of probabilities, that a defendant has not committed a crime, the presumption of innocence throws onto the prosecution the whole burden of proving beyond reasonable doubt that the defendant is guilty of the crime.

These lessons, and more, have been learned over centuries of common-law practice, and have been encoded in the manner in which trials are conducted.

In most criminal trials, potential jurors are very unlikely to be aware of any previous convictions of the defendant. It follows that they cannot have prejudged him. As the public profile of cases increases, so does the probability that jurors will have heard about it, and will have some opinion about the guilt or innocence of the accused. However, provided the accused does not have some long-running notoriety, and provided that members of the public are not expected to carry some deep-seated grudge against him, we can reasonably expect that an otherwise disinterested juror will attend to and assess the actual evidence presented.

Occasionally, however, a majority of the population of the country carries just such a deep-seated grudge against a defendant. Fortunately, these occasions have been rare. Until our own benighted time, the most glaring example was Lindy Chamberlain. Only two men stood against the public mood. The coroner who conducted the original coronial inquiry found that there was no case for the Chamberlains to answer. This did not satisfy the public craving for a sacrifice, or the politicians who saw the advantage in giving it to them. Then, when the appeal finally went to the High Court, Justice Deane expressed a dissent from the majority rejection which was extensively quoted when Justice Weinberg drew to a close his own dissent in the Pell appeal.

The vituperation towards Lindy Chamberlain was as nothing compared to the campaign against Cardinal Pell.

By the time of his trial, Pell was the single most widely loathed person in the country. He had been subjected to a concerted campaign of calumny since he became Archbishop of Melbourne in 1996, and the intensity of that calumny reached a crescendo during Julia Gillard’s Royal Commission. It was, as Justice Thomas described the hearings for his elevation to the US Supreme Court, a high-tech lynching. It was conducted in the finest contemporary manner of postmodern contempt for truth, and in the immemorial tradition of the pharmakos, the sacrificial victim to heal the city of its afflictions.

Not only did potential jurors have prior knowledge of the case—thanks to the ABC, Melbourne University Press, and radio and television hosts across the political spectrum—but they were convinced that he was a monster who covered up for serial paedophiles and was probably one himself. This attitude was common amongst non-Catholic conservatives. Has the ABC ever broadcast any libel so grievous as when Tim Minchin called Cardinal Pell “scum”, “pompous buffoon” and “coward” in a song broadcast before Pell was to be questioned, again, by the Royal Commission? This at a time when Victoria Police was planning to arrest Pell—not to charge him, but for questioning—when he returned to Australia to appear before the commission.

In these circumstances, some asked whether Pell could get a fair trial. Was a hung jury the best he could expect? We now know the answer, and we can see the reasons for it; some of the reasons, at any rate.

The conduct of the trial itself, when its processes were finally revealed, was also a revelation to many. In the event, the accuser was not required to appear in person to confront Cardinal Pell with his testimony. He gave his evidence, and was cross-examined, by video link. In the second trial, the accuser was not required to appear at all. The jury was shown a video recording of his testimony at the first trial. The defence was thus denied the opportunity to probe for further contradictions and weaknesses in his testimony.

These constraints did have the unexpected consequence that, on appeal, the prosecution could not argue that the jury had an advantage over the appeal judges in being able to observe the witness in the context of the trial: the appeal bench saw exactly what both juries saw of the complainant.

The theatre of the courtroom is eloquent in expressing intent and expectations—the elevated position of the judge, the ranks of the jury, seated like privileged spectators at the unfolding drama, the accused in the dock attending to every exchange, and the focus for the most part on the witness box. “Court” is the place where majesty reigns, and hears petitions for justice or mercy. The majesty now is the majesty of the law, but reminders of its lineage are in the forms of dress and address. They proclaim, “This is no ordinary meeting, no ordinary proceeding. It echoes down the centuries. Comport yourself and focus your thoughts with these things in mind.”

On this stage, then, what message is sent to the observer and the juror by the lengths to which the court goes to protect the accuser from any exposure to the accused; and by the fact that the accuser is not even required to attend a second trial? Does this procedure convey a presumption of innocence? Or does it speak to the victimhood and suffering of the accuser, and to the guilt of the accused?

Another bizarre aspect of the trial was the relative treatment of the reputations of accused and accuser. Pell’s “conviction” in the court of public opinion for his imagined crimes has been discussed. What of his accuser?

In the trial of the murderer of Daniel Morcombe, for example, the defendant’s history of child sex offences was not admitted. The defence tried to cast suspicion on one of the witnesses called by the prosecution, by reference to the witness’s own criminal history. The witness was greatly offended by this, both because he knew the defendant’s history, and because of the attempt to implicate him using sources denied to the prosecution.

Other aspects of a witness’s or complainant’s background and character might also be raised by the defence. One might expect, for example, that a witness’s history of mental illness, which called his stability or probity into question, would be important as an indicator of reliability and probity.

In Cardinal Pell’s trial, such was not the case. All parties, except the jury, were aware that the accuser had a history of psychological problems. As Cardinal Pell’s counsel put it in the application for leave to appeal to the High Court (emphasis mine):

The majority do not refer to the fact that the applicant was not permitted to ask questions about or subpoena the complainant’s psychological history. Nor that the applicant could not tell the jury that the complainant had had psychological treatment and the applicant had been denied the ability to obtain the records of it. 

Counsel referred to the relevant Victorian legislation (emphasis mine).

Section 32C of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) limits access to and use of any confidential communications with a medical practitioner or counsellor unless, inter alia, the applicant can establish (without having seen the material or having been permitted to ask any questions about it) that it has substantial probative value and the public interest in preserving confidentiality is substantially outweighed by the public interest in admitting it.

In his pleading, he laid out the issue at stake, not merely in Cardinal Pell’s trial, but for Australian jurisprudence as a whole:

Rigid application of the onus and standard of proof in 21st century sexual assault trials in Australia is of particular importance. Over the last two decades … the laws of evidence and procedure have been modified by Australian parliaments … making it more difficult to test allegations of sexual assault. Those … accused, including by a complete stranger making decades old allegations, cannot, for example, investigate a complainant’s psychological history in the hope of uncovering a reason why a seemingly credible person is accusing them … an accused is heavily reliant on the presumption of innocence and the requirement for juries and appellate courts to apply … reasoning which accord[s] with the onus and standard of proof.

Counsel refers, without apparent irony, to these changes as “reforms”. Have the various bar associations and the Law Council not appreciated the consequences of these changes? Perhaps they have, and perhaps within the profession they have expressed their opposition. If so, it has been signally ineffective. All, or almost all, of these changes will have received the imprimatur of the various state and national law reform commissions, with reference no doubt to “international best practice”, part of the standard camouflage of the modern ideologue.

The arguments, as fundamental as they are, are being made to the highest court in the land. They have been implicit at every stage of the legal persecution of Cardinal Pell: Operation Tethering, the character assassination by leak and innuendo, the committal hearing, the first trial, the second trial, and the appeal—and have not diverted the juggernaut. The effect of the “reforms” on the integrity of judicial processes must now be clear, even to members of parliament.

In respect of Section 32C, Justice Weinberg wrote: “I make no criticism of [the Act]. This is a matter for the Parliament, and for no one else.” This is the view from the bench of the relationship between the branches of government. Disturbingly, it also corresponds with the reality seen from the suburbs. These are matters for the Parliament, and for no one else. At least, no voters watching events unfold on their televisions have been consulted on any of this. If they were disturbed by it, what good would it do? Such matters do not rise to the level of concern to, or differentiation between, the major political parties. Their care and cultivation fall to the administrative state, with its army of policy-makers and propagandists, commissions and quangos.

Even when the government has a philosophical commitment to conservative and traditional values, experience has shown that the scope of ministerial discretion is severely limited. This would come as no surprise to devotees of Yes, Minister, but it is no laughing matter. The tragedy is that these “reforms” that have passed through the inscrutable bowels of the administrative state can only be undone by a parliament and an executive with the courage and conviction to unwind them.

There can be no discovery of a baby’s clothes in a dingo’s lair to shame today’s mob, and there is no broadly-based movement to re-educate Australians in the foundations and tenets of our criminal justice system. When most of today’s lawyers are ignorant of those principles, what hope for the lay person? However, supposing that the electorate recovers a traditional sense of a fair go, along with a sense of shame where a fair go is denied, can the legislative abuses of due process be reversed?

Given the refusal of the administrative state and half the US electorate to accept Donald Trump’s election, and given the determination of the prior UK parliament to thwart Brexit, and given the inability of Tony Abbott to persuade his cabinet even to rescind Section 18C, it might rather be appropriate to inscribe, over the polling booths of the Western democracies, Dante’s grim advice at the gate of Hell: Abandon hope, all ye who enter here.

Peter West is a retired computer programmer. He contributed “The Willing Suspension of Disbelief” to the April 2019 issue.


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