“Thank heavens for the jury system . . . (loud applause) … it’s the protector of everyone in this country, from people who hold high office to every member of the community.”
— Lionel Murphy, Labor politician and High Court judge, Canberra Times, April 29, 1986
Lionel Murphy was speaking in Sydney, outside the New South Wales Banco Court immediately after a jury had found him not guilty of attempting to pervert the course of justice. This was the conclusion of one of Australia’s great celebrity trials of the 1980s. Murphy, who had been Attorney-General in the Whitlam government, which appointed him to the High Court, had first faced trial in 1985 on two charges of trying, on behalf of a friend, to improperly influence a district court judge and a stipendiary magistrate. He was acquitted on one charge but found guilty on the other. He appealed and was retried in April 1986 when, after a brief deliberation, the jury found him not guilty.
At the time, I thought that although some of the evidence seemed incriminating, there was enough genuine doubt about Murphy’s intentions to get him off. I was surprised when the first jury found him guilty but thought justice of a rough kind had been done with the second trial’s verdict.
The reliability of juries, I had been taught, lay deep in our past. Reading English history at university convinced me that, in the legal system we inherited in Australia, juries really were the protectors of everyone, a backstop that worked most of the time to preserve justice when all else failed. E.P. Thompson’s The Making of the English Working Class argued that, in the late eighteenth century, when the English governing class was attempting to suppress the publication of the kind of liberal ideas they blamed for the revolution in France, many local political activists relied on juries to defend their right to speak:
the jury system did afford a measure of protection, as Hardy, Horne Tooke, Thelwall and Binns discovered. Wilkes was able to defy King, Parliament and administration — and to establish important new precedents — by using alternately, the law courts and the mob … Even in the 1790s, each attempt to introduce a ‘continental’ spy system, each suspension of Habeas Corpus, each attempt to pack juries, aroused an outcry beyond the reformers’ own ranks.
This was still a common belief of people of my generation and Murphy’s praise of juries in 1986 was a not unfamiliar theme. Despite a handful of much-publicised cases where juries got it wrong — Lindy and Michael Chamberlain, in particular — a unanimous verdict by twelve randomly selected members of the public was still widely regarded as about as fair a finding, from as fair a sample of the population, as was practically possible.
The decision in the George Pell case suggests that Australian juries are no longer what they once were. In this case, finding the defendant guilty of sexually assaulting two 13-year-old choirboys in Melbourne’s St Patrick’s Cathedral did not involve balancing competing scales of evidence and argument and delivering a finding beyond a reasonable doubt. Enough of this case has already been publicly discussed — the location, timing and intricacies of the incident concerned, the alibis given by those accompanying the archbishop at the time, the denial by one of the two boys in the case that he was ever sexually abused, and the complete absence of any corroboration of the alleged victim’s claims — to demonstrate that the Pell jury could not have come to its decision on the basis of reason and evidence alone.
Other influences must have made an impact on the jury. The two that stand out derive from comparatively new kinds of investigation. If these persist, they will ensure the conviction of George Pell is unlikely to be a one-off misadventure and that his fate will be a model for the persecution of others.
The first of these investigations is the Royal Commission into Institutional Responses to Child Sexual Abuse, which concluded on December 2017. Announced by Prime Minister Julia Gillard in November 2012, the commission was one of the most publicised social inquiries of our time, second only to the Australian Human Rights Commission inquiry into the Stolen Generations in the 1990s.
Following the precedent set by the Stolen Generations inquiry, a new type of state investigation examined historical social behaviour that was not necessarily criminal but was now judged to be immoral or politically incorrect. As well as the Stolen Generations inquiry, co-chaired by former High Court judge Ronald Wilson, the Senate Inquiry into forced adoptions was another model of this kind. It found the victims of a historically legal, but now disapproved, welfare policy had suffered “a lifelong legacy of pain and suffering”. It concluded with a public apology which then Prime Minister Julia Gillard delivered in Parliament.
Gillard obviously enjoyed her first taste of this and seized her next opportunity, an investigation of historical cases of child sexual abuse in institutions. “I came to the decision that it would offer more healing than its potential capacity for hurt,” she told the ABC. “That ultimately, for survivors, being listened to was the thing that they wanted.” This might or might not have been true but what Gillard herself wanted was pretty certain. She wanted a public exercise in social therapy that would stamp her as a committed crusader for social justice, boosting her personal popularity like Kevin Rudd’s apology to the Stolen Generations did for him.
Unfortunately for Gillard, the Royal Commission took another five years to finish its job, by which time she was long gone from the scene. Nonetheless its commissioners delivered what she wanted. They advertised for evidence of sexual abuse, and attracted no less than 9325 verbal and written accusations. It found 2562 of them, or 27 per cent, were suitable to report to the police. While this meant that three out of four claims could not be substantiated, it was still sufficient evidence to show that a number of institutions for children had attracted sexual predators in the past and that these institutions needed to lift their standards of surveillance and reporting, and pay compensation to the victims.
As it went along, the commission produced statistics that were selectively reported by a largely unquestioning news media, making it seem that those most responsible were Catholic clergy, and that most victims were altar boys and choristers in Catholic churches and schools. But as I showed in this column in March 2018, the commission’s final figures do not bear this out. The biggest single group of victims were inmates of church-run, out-of-home care institutions, that is, foster care households and homes for the disabled, orphans and homeless. In short, child abuse in institutions was primarily committed not in cathedrals or schools but by homosexual men preying on vulnerable and disturbed boys in welfare institutions.
The reality, however, was no match for the myth spawned by the commission’s hearings and publications. As it played out on the stage of public opinion, the myth’s great central drama became the struggle of innocent children crying out to be heard versus the determination of malevolent priests to protect their treasured institution by ignoring them. Which side in this drama would triumph was never in doubt.
At the same time, the Victorian police were deploying their own method of investigating this field. It was a technique new to Australia but not to police in the United Kingdom, who had been using it for social inquiries since the early 1990s. First known to British police as a “trawling operation” to see whether there were unreported serious crimes, the technique in Victoria was begun to see if there were real crimes to support the proliferation of child sex allegations found by the Royal Commission.
In 2013, the Victorian police launched “Operation Tethering”, their own trawling operation to investigate child abuse in the church. Even though they started with no complaints about Pell, and no evidence to go on, they decided to include him within the span of their inquiry. The police were thus defining into existence both crime and suspect. This was the reverse of normal police method, which starts with a known crime and then sets out to find and convict the criminal.
In the UK in the 1990s, the process began with allegations of historical cases of sexual abuse in “care homes” for children in Wales. When trying to trace former residents of the homes, police initially found the trail so indistinct that, as last resort, they advertised in newspapers for victims to contact them. The spate of allegations they received redefined their methods of detection.
However, the author of an expose of the process, English investigative journalist Richard Webster, in The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005), warned while the operations were still underway:
These investigations are often said to involve “children’s homes”. In fact they are usually residential institutions for troubled or difficult adolescents and, since the allegations of abuse usually refer back ten, 20 or even 30 years, those making them are not children at all. They are almost always adults, many of them with long criminal records. In a number of cases they make their allegations in prison or while facing serious criminal charges. It is here that the real dangers of police trawling operations become apparent – or ought to become apparent.
Webster described how the police found evidence to fit the charge.
If police officers interview hundreds of damaged young people with long records of deception and dishonesty, with the aim of gathering allegations of abuse against those who once cared for them, it would be surprising if they did not succeed — particularly when such allegations can result in thousands of pounds being paid out by the UK Criminal Injuries Compensation Authority.
Yet he notes that police forces throughout the UK continue their trawling operations with the full knowledge and implicit approval of Home Office ministers. Juries have become part of the same game. In these cases, Webster argues, they are now likely to reach a verdict of guilty not on the evidence but in response to the fear that they might acquit a guilty man.
Buoyed by the example of their UK peers, it is not surprising the police in Victoria could sustain a long campaign, which included taking out newspaper ads asking for stories about sexual abuse long before they had any complaints of their own. And it is not so surprising that a jury, uninformed of the full extent of these police procedures, could accept that such evidence was untainted, and find an accused man guilty.
It would be remiss not to mention a third factor that emerged quite coincidentally at the same time as Pell’s prosecution to influence public beliefs about prominent men and their sexual behaviour. The timing of the Pell case coincided closely with the outburst of accusations by a number of Hollywood and Australian actresses that they had been subject to unsolicited sexual approaches by certain film producers, directors and leading men. Pell was first charged in June 2017 and the #MeToo movement broke out in October 2017. Since then the anti-male variety of feminism had enjoyed its biggest revival in decades.
In fact, the day after Pell’s conviction, one of the clearest expressions of this feminist dogma was made by the sister of one of the of one of the allegedly abused boys. She accused all powerful white men of responsibility: “The public has sent the strongest of messages to these men of white privilege and power. You no longer rule our world.”
To its discredit, the legal profession itself has taken just as strong a stand in support of this ideology. In a submission to the Australian Human Rights Commission, the Law Council of Australia called for consolidation of sexual harassment provisions across jurisdictions and an end to the “culture of silence” in the legal profession itself. Law Council president, Arthur Moses SC declared:
Sexual harassment in Australian workplaces is pervasive and damaging, and the legal profession is no exception. The legal profession cannot deny the self-evident truth that sexual harassment is a problem within its own ranks.
Now, if a proposition is a self-evident truth, it does not need the support of any evidence or reasoning. It is simply true, a foundational premise, no proof required. And if the legal profession is prepared to say this in a public submission, and for good measure repeat it in a national release to the news media, as it did last week, then it is little wonder that members of the profession can argue in court, with a straight face, that accusations of sexual abuse do not need any corroboration or the support of plausible evidence — they are credible just by themselves.
Hence, it is not surprising that many representatives of the press take this proposition seriously. Nor is it remarkable that a random selection of twelve people to form a jury will probably include some members who believe it too, plus a few more who can be brought onside after sitting through a trial and the jury’s deliberations.
If this variety of irrationalism persists, we are in danger of losing not only the concept and practice of a fair trial but the very basis of morality. This way of thinking, once confined to ardent academics in Sociology 101 courses, abandons the principle that individuals are responsible for their crimes, and transfers blame to the imagined characteristics of the group to which the individual belongs.
That group is defined by the eye of the victimised beholder, be it a social class, a religious flock, a skin colour, or all members of the same sex as the accused. Not so long ago, this stereotyping of people was recognised for what it was and disdained as “tribalism”, “racism”, “sexism”, “anti-Semitism”, and the like. It has now snuck in through the backdoor of our mentality and is at work again undermining our institutional foundations.