Shannon Deery writing in the Herald Sun on the subject of historical sex abuse cases tells us:
Next week marks one year since George Pell was acquitted of child sex crimes and freed from jail. The High Court decision sent shockwaves across the Australian legal community, with lawyers split about whether the court was right to overrule the jury that convicted the Cardinal.
I doubt very much that the High Court decision sent “shockwaves” or “split” the legal community, unless you regard the partisan reaction of a few woke lawyers as a split. A split would normally indicate a significant number, say at least 20 per cent. If there is such a split, those who bemoan the High Court’s verdict are keeping their opinions to themselves, at least as far as the public arena is concerned. I am not a lawyer and yet I was unsurprised that the High Court agreed to hear Cardinal Pell’s appeal and even more unsurprised that they upheld it. You see, I had devoted a fair amount of time studying the case, unlike most Twitterati commentators – from whom I suspect Deery derived his ‘split’ – who now seem to be regarded as the last word on public attitudes in Australia. The full extent of the legal and political machinations that contrived this grotesque miscarriage of justice can be read in Keith Windschuttle’s comprehensive The Persecution of George Pell.
The context in which Deery made this claim was a recent decision of the Victorian Appeals Court to overturn the conviction of a man jailed for the indecent assault of a child in 1962. Deery reports:
Upholding the appeal, the Court of Appeal said it was frustrated by the increasing number of historical sex cases being prosecuted. “We cannot conclude these reasons without expressing our disquiet at the apparently increasing frequency with which cases involving delays in the order of 40 to 60 years are coming before the court,” it said.
In this particular case, the conviction was overturned because of the long delay and the fact that the man had already defended prior civil proceedings:
The man appealed his nine convictions, in what turned out to be a move that even prosecutors backed as the right one, with the Director of Public Prosecutions conceding he had faced an injustice that came about in part because of delays in the case and the fact the man had already defended prior civil litigation.
The fact that there is a different, and much lower, standard of proof in civil matters makes subsequent criminal proceedings a vexed issue, particularly where guilt, albeit to that lower level, is established in a civil court.
The incurious reader might infer, from the wording above, that this was a case of double jeopardy. But that is not the issue here. The civil case was launched in October 2015 and the defendant, known as “Lucciano”, filed his defence in November 2015. In February 2016, the complainant then reported the matter to police. The civil trial took place in October 2016 and Lucciano was ordered to pay $215,000 in compensation. He was charged criminally in June 2017 and the trial took place in September 2019. According to the judgement of the Appeal Court which overturned the conviction:
At the civil trial in the County Court in October 2016, counsel for the complainant made statements to the Court, and to counsel for the applicant, which caused counsel for the applicant to understand that the complainant had not made a statement to police.
It cannot be doubted that, had the applicant been aware that criminal charges were imminent, he would have had a persuasive argument that the civil proceeding be stayed pending the determination of those charges. The prospect that civil proceedings may need to be stayed to avoid prejudice to criminal proceedings is not novel. If the issues and the circumstances relevant to both proceedings are substantially identical, it will be readily apparent that there is a risk of prejudice in the defence of the criminal trial. In effect, the civil proceeding would operate as a ‘dress rehearsal’ or ‘test run’ for the criminal trial.
A civil trial had been fought on multiple factual issues which were litigated again in a criminal trial, and the prosecution was afforded real advantages from that profound departure from the accusatorial system of criminal justice.
In our opinion, the presumptive and actual prejudice to which the applicant pointed, and in particular that arising from the prior conduct of the civil trial, for which he cannot fairly be held responsible, amply demonstrate that it was not possible for there to be a fair trial in this case. It is not necessary to repeat the details of that prejudice. It resides especially in the very fact of the prior conduct of the civil trial, amplified by the tangible advantages that gave to the prosecution.
The court also noted that, as a matter of practicality, civil proceedings should not precede criminal prosecution. I concede it is a moot point. It is generally acknowledged that proof of sexual assault is notoriously difficult. That being the case, a victim might assess the best chance of justice would come in the form of monetary compensation and public humiliation of the perpetrator, which can be obtained under the lower burden of proof – on the balance of probabilities – in a civil action. Or they might prefer to see the perpetrator found criminally guilty and appropriately punished. The dilemma for the victim is that if they fail in the criminal court, it makes a civil case that much more difficult to win. On the other hand, as happened in this case, a prior civil proceeding, has worked to render a subsequent criminal conviction unjust. But that is a decision for the victim.
In another Herald Sun article on the same story, Deery notes:
High-profile lawyer Ingrid Irwin, who has represented dozens of child sexual abuse survivors, said the court’s warning highlighted a significant difficulty for complainants. Ms Irwin said it was virtually impossible for survivors to prove guilt and called for an overhaul of the legal system … and for the burden of proof to be lowered in sex abuse cases.
Ingrid seems to be another lawyer educated at the Woke University Law School. The only thing that is special about sexual abuse cases is that they are hard to prove. So the question is this: is sexual assault so egregious (as opposed to all other crimes) that a fundamental principle of our criminal justice system, the burden of proof, should be overturned because sexual assault cases are difficult to prove? If we start down that slippery slope how long would it be before other difficult-to-prove crimes, like the newly fashionable ‘climate crimes’ the green left wishes to see on the books, are similarly classified and the standard of evidence commensurately lowered?
One way to increase the likelihood of a conviction would be for victims to come forward straight away. No doubt it is traumatic for them but if the reporting of a rape, even the risk of not being believed, is more traumatic than the crime itself, then I am forced to wonder if sexual assault, horrific and despicable as it is, is really in a category of its own.
In conclusion, I note that this story is essentially sympathetic to the plight of sexual assault victims. Deery again:
But a recent decision handed down by Victoria’s top judges has challenged that very concept, in a move that will make it much harder for victims of sex crimes to chase justice.
That, in itself, is fair enough comment. However, the article commences with an implication that Cardinal Pell may have been wrongly acquitted and it is preceded, at least in the online version, by a photograph of the Cardinal with a placard prominently displayed behind him saying ‘Justice for Witness J’. There is also another photograph of Pell in the body of the story. Cardinal Pell had no place in the newspaper’s account and analysis of Lucciano’s appeal, and his inclusion can only have incited readers to consider his High Court acquittal as an example of justice denied to sexual assault victims.
The Cardinal is an innocent man, as the record now states. However his punishment continues.
Order Keith Windschuttle’s The Persecution of George Pell here