QED

What Happened to ‘Beyond Reasonable Doubt’?

SOME conversations that I’ve had around the Cardinal Pell case have convinced me that despite Perry Mason, Horace Rumpole and others of more recent vintage invading our living rooms, there is a sad lack of understanding among some of the system of justice based on English Common Law. I have attempted to set down some simple pointers. Legally-informed minds would undoubtedly be able to augment and refine them.

As an example, suppose I say that you assaulted me ten years ago and you deny it. There are three possibilities. The first is that I am telling the truth and you did assault me. The second is that I am a liar and no such thing happened. The third possibility is that I firmly believe it happened but it didn’t. This latter possibility might be due, say, to a false memory or mistaken identity or mental illness.

An independent observer would have no way of discerning the truth beyond reasonable doubt. If in fact I am telling the truth I would need to bring corroboration into play. That corroboration might take various forms; not all as powerful as others. It would be potentially powerful if, say, it took the form of credible witnesses to the event. It should go without saying that tittle-tattle impugning your character should be given no weight.

Our respective demeanours are not necessarily irrelevant but they should be discounted as reliable indicators of our veracity. They are too often misinterpreted by onlookers. For example, a practiced or pathological liar might well come across as sincere and credible.

Recall that Lindy Chamberlain’s demeanour of not being outwardly and sufficiently upset, as judged by the standards of her questioners, contributed to her false conviction. Cardinal George Pell has been accused of being “wooden”. A similar accusation was levelled at Brett Kavanaugh after he gave a TV interview prior to his hearing before the US Senate’s judiciary committee. This may well have led him to overcompensate and be more impassioned at the hearing than he otherwise would have been. For which, wouldn’t you know it, he was also criticised.

Once corroboration is brought into play there is room for debate about the validity of my accusation. Without corroboration my accusation is inconclusive (even if true) and you must be accorded the presumption of innocence and protected from vexatious prosecution.

All of us have the right not be hauled before a court unless the prosecution has a case which, on a fair assessment of the evidence, is likely to succeed in proving our guilt beyond reasonable doubt. Mounting a defence is likely to be extremely stressful, enervating and costly.

Finally, if charged, you have a right to a right to remain silent and this should not be held against you. You have no obligation to put yourself in a position where you might inadvertently damage your case or reveal incidental information of an embarrassing or incriminating nature. All of the onus is on the prosecution to prove its case beyond reasonable doubt. Our justice system errs on the side of freeing the guilty rather than incarcerating the innocent. Our very freedom depends on it.

It seems clear to me that the public needs to be better educated about our justice system. This might prevent ‘lynch mobs’ from forming. It might produce a more enlightened and balanced media. It might produce a better-informed population and, by extension, better informed juries and fewer miscarriages of justice.

34 comments
  • Doubting Thomas

    It seems to me that the Australian public just needs to be better educated. By our current standards, Peter FitzSimons can claim to be well-educated. However, if one did not already know that he possessed a BA from one of the country’s premier universities, or that he is the author of a number of popular histories, his column in today’s Canberra Times shows little evidence of his having gained anything much from that “education”.

    His column is such a piece of unmitigated closed-minded bigotry that it defies description.

    People with a strong stomach can find it here:

    http://www.canberratimes.com.au/national/-p51154.html

  • Tony Tea

    Pirate Pete and his vanilla histories.

  • lloveday

    I have seen in a number of media reports, and cited in Pier Akerman’s article in today’s Sunday Telegraph:

    His first appeal ground says.”The verdicts are unreasonable and cannot be supported, having regard to the evidence, because on the whole of the evidence, including unchallenged exculpatory evidence from more than 20 crown witnesses, it was not open to the jury to be satisfied beyond reasonable doubt on the word of the complainant alone,”

    I’m just a country boy, don’t have a LLB, and can’t fathom “Crown witnesses gave exculpatory evidence”. Surely the prosecutor would not call witnesses to give such evidence? The defence of course would, and did – from sacristan Max Potter to Monsignor Charles Portelli.

  • Davidovich

    Somebody may be able to enlighten me as I don’t understand why, in a criminal trial such as the one concerning Cardinal Pell, the Judge did not seek a plea of guilty or not guilty.

  • pbw

    Pell pled ‘not guilty’ at the end of the committal proceedings.

  • Salome

    If the accused’s argument is that the story is substantially true, but that it didn’t exactly happen as described and that nothing that did happen was actually an offence, then the accused should probably explain himself. But if the whole story didn’t happen, what is the accused to say? Other witnesses could attest to such things as what went on in and around the sacristy after pontifical solemn mass, and what a fully robed archbishop would have been wearing. But what could the accused’s testimony have added in this case?

  • Necessityofchoice

    In an effort to impart some levity into this appalling miscarriage if justice, can I say that I have had many an upgrade in Sydney hotels on the mistaken grounds that my surname was Pell rather than the more pedestrian Bell. I guess that is now a thing of the past…

  • pbw

    Not only does this accusation fail on the basis of ‘beyond reasonable doubt,’ but it fails on the civil criterion of ‘on the balance of probability.’

  • lloveday

    Quote: The first is that I am telling the truth and you did assault me. The second is that I am a liar and no such thing happened. The third possibility is that I firmly believe it happened but it didn’t.

    A lawyer I know very well has an impeccable background for sussing out which of the 3 – police cadet, in charge of major accident investigations, desk sergeant responsible for rosters at a very large metropolitan station, police prosecutor doing an LLB part-time, private sector lawyer taking cases as diverse as Criminal, Native Title, and Family Law. He is in no doubt that some women, including my then wife, firmly believe the falsehoods they proffer in sworn evidence in custody cases (we did not discuss to what extent men may do the same, or what happens in courts other than the FCA). And this firm belief makes them appear to be truthful, reliable witnesses.

    Pell’s accuser may firmly believe that events happened as he said, but that alone, as PS makes clear, should not (must not?) be sufficient for a conviction (or for excluding fathers from their children’s lives).

  • Jody

    “Reasonable doubt” went out the window when jury members read this!!

    http://nymag.com/intelligencer/2019/02/andrew-sullivan-the-vaticans-corruption-has-been-exposed.html

  • sabena

    lloveday,the prosecution in a criminal proceeding is required to call all relevant evidence,whether or not that evidence establishes the accused’s guilt.This is in contrast to a civil trial where the plaintiff only has to call evidence which the plaintiff judges will assist their case.A breach of this obligation means the verdict will be set aside.
    As I understand it,the witnesses you referred to were both called by the prosecution,as the prosecution was required to do.

  • Edward Carson

    “Without corroboration my accusation is inconclusive (even if true) and you must be accorded the presumption of innocence and protected from vexatious prosecution.”

    That used to be the law in some jurisdictions but has since been dispensed with, and for good reason. How on earth could anyone prosecute an actual date rape case, where the two parties previously had consensual sex at the same location, if only the victim’s testimony was insufficient, especially if the accused was smart enough to not take the stand.

    “Finally, if charged, you have a right to a right to remain silent and this should not be held against you.”

    You certainly have the right to remain silent, but the jury should and will take that into account.
    If I am correct, the right to remain silent is for the sake of those not so good at being self-composed, less than average intelligence, and less able to manage their anger in the hands of a provocative cross examiner.
    When a highly intelligent, educated, and experienced media performer also claims the right it does not set a good image. One would think someone suffering a grossly unjust charge would want to shout their innocence from the rooftops.

    If you reveal incidental information of an embarrassing nature doing such surely that is incidental to a conviction for child molestation, and of an incriminating nature then the problem for the pursuit of justice is …?

  • Necessityofchoice

    If you believe you would be sure of the truth when you heard it, listen to this gentleman.

    https://youtu.be/pXLx5OY21Bk

  • PT

    Edward Carson, the right to silence is NOT explicitly to protect the unintelligent or uneducated as you claim. It is because authorities cannot compel people to incriminate themselves.

    Now regarding Pell, my understanding is that it was his barrister who kept him off of the stand. Pell can come off as aloof, even arrogant. As has been pointed out, the view that Lindy Chamberlain murdered her child is her “demure”, her lack of emotion etc. A huge section of the country was convinced of her guilt long before the forensic evidence was presented.

    Presumably the QC believed he had more than enough evidence to show the assault would have been most unlikely to have occurred as claimed, without running the risk of Pell putting jurors off with his “arrogance”.

  • Peter OBrien

    You certainly have the right to remain silent, but the jury should and will take that into account.

    Edward Carson, that is the complete opposite of the truth. The judge should have instructed the jury that they can make no inference of guilt based on the accused declining to testify. I do agree that some jurors may make that inference but if they based their verdict on that fact, the verdict would, in theory, be tainted.

  • lloveday

    Thanks sabena – I knew the prosecution was not allowed to withhold relevant facts, but not that the prosecution would call witnesses to give exculpatory evidence, presuming that would be done by the defence. I did search, obviously unsuccessfully, for the answer from Dr Google.

    Maybe their police statements/stat decs were tendered as evidence and accepted without them taking the stand, as I have seen done in traffic and FCA trials.

  • Edward Carson

    “Presumably the QC believed he had more than enough evidence to show the assault would have been most unlikely to have occurred as claimed, without running the risk of Pell putting jurors off with his “arrogance”.”

    PT. As long as the defendant can express himself, as mentioned above, and confident he is in the right, he should, dare I say it, put his trust in his lord, get up there front and centre, and let the prosecutors do their best. When you take into account your “arrogance”, or your facial expressions, or your dress, or who you can get to be seen with you and giving support, etc, it gives the impression that you are merely playing the game and putting yourself in whatever position the experts believe will optimise your chances, something the guilty would obviously always do.
    For every Lindy Chamberlain there is also a John Gotti; someone acquitted in his penultimate trial when the jury simply didn’t see sufficient evidence to convict the very well-known gangster.
    If Pell had been smart, and brave enough, to follow the example set by Mick Gatto in specifically ignoring Richter’s advice in remaining silent, he very well may have impressed the jury by standing tall, looking his prosecutors straight in the eye, and taking on all questions.

  • lloveday

    Murphy J followed his own advice and gave evidence in his first trial and was found guilty.
    He followed Tom Hughes’ advice in the second trial and was found not guilty.

  • Peter OBrien

    Edward Carson,

    “…it gives the impression that you are merely playing the game and putting yourself in whatever position the experts believe will optimise your chances, something the guilty would obviously always do.”

    I’m thinking someone wrongly accused might also want to optimize his chances. As I said before, if any juror inferred guilt based on Pell declining to testify, his verdict would be tainted. That is why the prosecution can never imply that failure to testify suggests any degree of guilt on the part of the defendant.

    “If Pell had been smart, and brave enough, to follow the example set by Mick Gatto in specifically ignoring Richter’s advice in remaining silent, he very well may have impressed the jury by standing tall, looking his prosecutors straight in the eye, and taking on all questions”

    What might those questions have been?

  • PT

    Edward Carson, what a presumptuous comment! Have you ever been involved in ANY kind of legal action? I suspect not from your comment. You have to rely on your legal advice – they’re the experts, not only in the letter of the law, but also in the functioning of the courts. If you think you know better, why bother to hire them?

    Furthermore, the alleged offences were in 1996. If the incident never occurred, why would Pell remember the specifics of where he went and what he did in the few minutes after mass? I’m sure you’d claim it was bogus if he did make such a claim!

    As for “demure”, the jury never got to see that of the complainant. They saw a video recording from the earlier trial. Bear in mind the accuser isn’t 13 anymore, but 35! So he didn’t really take the stand either. Having “broken his silence”, why not take the stand a second time? And if not, why allow this evidence, since it was the only evidence! Is it not vital to see the accuser in person? They could see Pell in the dock at any rate!

    I’m not sure what you’re getting at here. It’s possible that not taking the stand led some jurors to conclude he had something to hide. Are you arguing that this is the case, or that he shot himself in the foot?

    I say again, if you think you know better than a QC, then why hire a legal team?

  • PT

    Also Gatto claimed he DID kill the hit man he stood trial for murdering. Just that it was self defence. Should Lindy Chamberlain have said it was “post natal depression”? What possible “excuse” is there for what Pell is alleged to have done? A very different set of circumstances. And not involving detailed recollections of more than 20 years ago where the defence is that “nothing unusual happened”.

  • PT

    BTW Mr Carson. You think Pell’s guilty. The “not taking the stand” is being pushed out by you to “prove” it.

    I’ve never been to Melbourne’s RC Cathedral, much less the sacristy etc. But a Cathedral is not a parish church. The Archbishop does not normally attend there, and there a numerous other clergy etc around.

  • PT

    I’m also troubled by your “date rape” stuff!

    Medical evidence can show force (thus demonstrating lack of consent). But you agree with dispensing any need for corroboration. This is good (maybe) for rape victims. But what about malicious or vindictive claims? I don’t like someone, so I’ll accuse them of rape or sexual assault, and I’ll be believed. Right? The Brett Kavenaugh case has a strong stench of that (and feminists clearly feared he’d be “the vote” to overturn Roe vs Wade – so some would “take one for ‘the team'”).

    Men, in this day and age, should only have superficial (and witnessed) contact with women at work. Only when the pushback against this comes from women will any redress begin, and it’s only when “left leaning, progressivist career-women” start seeing that this “guilt by accusation” mentality hurts their careers and progression will they do so!

    Women have, in the past, alleged rape, or harrasment from men they’ve never met. See Errol Flynn’s rape trial for example, or restraining orders taken out on musicians. This isn’t a “woman thing” – delusion, suggestiveness etc isn’t gender specific. But at present we licence it amongst women (whilst decrying men who claim unwanted homosexual advances as homophobes or criminals preying on them – as many no doubt are).

    Also authorities seem “selective” in applying this Mr Carson. Gillard was claimed as being “exonerated” by the Royal Commission because no prosecution against her was recommended. Yet they found “credible” the allegation she and Wilson were counting out the ill gotten cash on a table. The “he said/she said” wasn’t enough to warrant prosecuting her!

    Can you even see the problem here? I have a nasty feeling you don’t.

  • Jody

    I’ll quote the ever-empathetic and sensitive Pell, “Oh, stop it”.

  • Doubting Thomas

    Jody, enough of this spiteful vindictiveness, please.

    You still haven’t answered my question in the other thread. Just precisely how do you believe Pell should have reacted to the accusations being put to him during the police interview?

    And remember that the police started investigating Pell more than a year before any complaints against him had been made. Theirs was a fishing expedition from the very start. Why?

  • Jody

    OK; how’s this for a reaction: “The last thing I’d ever want to do is hurt anybody – let alone a child; it’s deeply distressing to me to even hear these questions. I’m not guilty but I feel I’m being accused because of the collective guilt of the church. I’ve worked with altar boys and young people through my entire religious life and I cannot imagine where this fabricated story has come from”.

    Instead: “Oh, stop it. Absolute rubbish…..” yadda yadda. Either that or a dignified NO COMMENT. For what it’s worth, police are never going to respond to “Oh, stop it”.

  • Edward Carson

    PT
    “You have to rely on your legal advice – they’re the experts, not only in the letter of the law, but also in the functioning of the courts.”
    Fortunate for Gatto that he didn’t.

    “If you think you know better, why bother to hire them”
    You obviously need them for cross examination of Crown witnesses and to raise objections where needed during your own examination, but you must retain your own common sense where the legal advice seems questionable such as making you look guilty.

    “…why not take the stand a second time? And if not, why allow this evidence, since it was the only evidence! Is it not vital to see the accuser in person?”
    Fair point, considering he was no longer a sensitive teenager.

    “It’s possible that not taking the stand led some jurors to conclude he had something to hide. Are you arguing that this is the case.”
    Yep

    “You think Pell’s guilty. The “not taking the stand” is being pushed out by you to “prove” it.”
    Definitely not compelling, but just a small piece of circumstantial evidence to throw on the scales with all the rest.

    “I’m also troubled by your “date rape” stuff!… Can you even see the problem here? I have a nasty feeling you don’t.”
    You got that right.
    It is one thing for a committal hearing judge to say there is insufficient evidence on hand for a prosecution to go forward, but another for a law to declare outright there cannot be a prosecution despite what might appear to be relatively good evidence. What if the accused has a criminal history of similar type crimes? What if the alleged victim is a person of apparent exceptional integrity and honesty? Also, would it not give extra inducement to those with felonious intent, knowing that if it comes down to only their word, they have already won.
    “But what about malicious or vindictive claims?”
    Liars have to have good memories and last a day or longer in the witness box without breaking. A lot tougher than someone who only has to tell the truth. Practically nothing Christine Blasey Ford said could be corroborated and some was specifically denied by witnesses. But true, it is not a fault free situation. What doesn’t help in the current Australian judicial MO is the extreme reluctance for the state to prosecutor perjurers, not just in criminal trials, but also civil and family law matters. I have heard anecdotal evidence that in child custody cases no one is ever punished for telling porkies. Thus the message emanates that wherever you are in the judicial system fibs are tolerated. But two wrongs don’t make a right: we shouldn’t excuse liars and then to balance it out deny he said/she said prosecutions. Perhaps lock up for a good ten years someone perjuring themselves in the witness box, and then we might see a drop in vexatious claims.

  • Edward Carson

    lloveday – 5th March 2019 “Murphy J followed his own advice and gave evidence in his first trial and was found guilty.
    He followed Tom Hughes’ advice in the second trial and was found not guilty.”

    Precisely. Which leads to the maxim:
    If you are guilty, do whatever your lawyer suggests.
    If you are innocent and have a reasonable confidence in your self control and ability to explain yourself, always take the stand.

  • Peter OBrien

    Robert Richter has defended many people. Unless they pleaded guilty he never really knew whether they were innocent or not, even the ones whose innocence seemed plausible to him. And he never knew what nasty surprises might eventuate should he put them on the stand. Richter’s duty is to defend his client to the utmost of his ability, short of breaches of law or ethics. Once a client testifies, Richter loses control. As a matter of tactics he would not recommend a client testify unless it was absolutely necessary for his defence. Richter clearly thought that the rebuttal evidence he had amassed would put the matter well within reasonable doubt without Pell having to testify. There were no questions Richer could ask Pell that would advance his defence so why expose him to cross examination other than to project some kind of ‘take your best shot’ bravado onto the prosecution. If I were Pell and I were innocent, in view of the prolonged my persecution by the media and the realization that the system had brought me this far on only the word of a single complainant (no corroboratory evidence), i.e, a case based on a witch hunt that actually sought complaints against me before any were raised, I think my trust in ‘the system’ might be severely dented and I would take the advice of my barrister.

  • Peter OBrien

    Edward Carson,

    Further to my last. Exactly what form would ‘explain myself’ take?

  • lloveday

    National Civic Council/News Weekly will have a live online briefing “Cardinal Pell Trial – The Implications” on Wed 13 March, 8-9PM AEDT.

    Presenter: Peter Westmore – former NCC President who attended both trials and the sentencing hearing.

    A 30 minute Q&A will follow Mr Westmore’s 30 minute presentation and NCC National President Patrick Byrne will chair the session.

  • lloveday

    Quote”… the extreme reluctance for the state to prosecutor perjurers, not just in criminal trials, but also civil and family law matters. I have heard anecdotal evidence that in child custody cases no one is ever punished for telling porkies”

    On 30 June 2018 the Courier Mail reported:

    “In the last three years we have received no referrals from the Family Court relating to perjury,” an AFP spokesman said yesterday.

    A friend spent $500,000 around 15 years ago to prove he did not molest his 2yo daughter, which his wife accused him of doing in an attempt to get 100% custody of the girl, child support and a bigger slice of the property settlement. The lying, perjuring mother broke down in the witness box and said it was all made up, signed a declaration to that effect and shared parenting, 50 – 50, was ordered.

    There cannot be a clearer case of perjury, can there, than a witness admitting lying in court and signing a stat dec to that effect, yet no charge was laid, and no costs awarded, which is incredible to me despite the general principle that in Family Law matters, each party is required to pay their own legal costs regardless of whether they “win” or “lose”.

    If costs were not awarded when the father incurred expenses occasioned by the mother’s admitted perjury, when are they? I’m the only person I know who was awarded costs, albeit a small amount.

  • talldad

    It might produce a more enlightened and balanced media.

    But I won’t be holding my breath waiting for it!

  • Bernie Masters

    Largely spurious arguments here. “Cardinal George Pell has been accused of being “wooden”.” I wasn’t aware the jury made this comment.

    “All of us have the right not be hauled before a court unless the prosecution has a case which, on a fair assessment of the evidence, is likely to succeed in proving our guilt beyond reasonable doubt. Mounting a defence is likely to be extremely stressful, enervating and costly.” I have an expectation that people who are accused of committing a serious crime will be brought before a court if there is reasonable evidence available to support the accusation. In the Pell case, two people accused him of a crime, so the case needed to proceed.

    “…if charged, you have a right to a right to remain silent and this should not be held against you.” Did Pell remain silent? I don’t believe he was silent so I fail to see the relevance of this point.

Post a comment