QED

Memo to Editors: George Pell is an Innocent Man

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.

And:

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.

And:

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

15 comments
  • Harry Lee

    I note that agents of the mainstream media, and their anti-Westernist allies in the law industry, and in the education systems, and in the Greens, and in the ALP, are all diligently ignoring the massive sexual predation, indeed violence, that is happening right now in:
    -the Aboriginal communities
    -the Muslim communities
    -the black African communities
    -and in several Asian communities.
    But White men in the Church and White men on the non-marxist side of politics are under extreme assault by (many fake/false) allegations of sexual bad conduct.
    It is clear that the public face (females of various ages and pathetic demeanor) of much of this campaign is being orchestrated by very capable, very vicious, very malign forces acting from the shadows.
    That is, PR people, lawyers, and other political operatives on the surging Left.
    Of course, some of this assault is being conducted by White men, many in the mainstream media and the education systems, still to get over the time in their childhoods when they had to go to Church, and/or their disappointment that society ain’t perfect as they self-righteously wish it to be, and have yet to grow up and let the past be the past, and form a mature view of the difficulties of Life-on-Earth.

  • Michael

    I commend to interested Quadrant readers Germaine Greer’s 2018 essay “On Rape”. Some of her notable points are also touched on in Peter’s article. Greer comments that yes, there are violent rapes crime, but the vast majority are not, and she discusses various types. Should we consider them all the same offence? She also outlines that civil proceedings for damages may be a better option than a criminal prosecution.

  • ChrisPer

    All true Harry, BUT no coordinated conspiracy is needed. The media-incited moral panic feed itself ; it offers rewards in publicity or cash, and teaches the potential accusers what elements the story needs to get a payoff.
    Just as the media behaviour in partnership with activists persuaded unstable people to run mass shootings, or day-care clown shows of interviewer-created sex abuse, they are creating the current sex and race moral panics.
    Its just as well that sharks don’t watch the ABC or we would have sky-sharks with frikkin’ lasers over the Liberal Parliaments.

  • Peter Smith

    I don’t know why Rupert allows his newspapers to print left-wing propaganda. Different views OK, but not deceptive malicious tripe. But he does. Look at his Australian newspaper flagship, ‘The Australian’. Standards of objectivity, fairness and decency are crumbling wherever we look.

  • lbloveday

    PS,

    Rupert is 90; I suspect his daughter(s)-in-law from hell have more influence these days than is healthy.

  • ChrisPer

    The far-left sh1t is just what grads bring with them these days. ALL grads. They have been taught propaganda, not scientific or fair-minded inquiry.

    A very bright grad just joined us who attached pronouns to her name in her email sig to the whole company. A sure sign that we hired a potential harassment lawsuit.

  • talldad

    ChrisPer, please refer to Vox Day “SJWs always Lie” (available via various outlets including online) for strategies to prevent said recruit from introducing the wokeness cancer to your organisation.

    Especially beware of any attempt to introduce a new “code of conduct” with expressions capable of altered definition (refer the experience of Dr Peter Ridd at JCU).

  • Sydgal

    Thank you Peter for the information on “Lucciano’s” civil case as reported by Deery. Deery covered Cardinal Pell’s case at the HCA quite well on twitter on 11 and 12 March 2020. Most journalists reduced their tweeting activity late morning on day 2. Melissa Davey (from the Guardian) said last year that she and Deery were the only journalists who covered both the RC and Cdl Pell’s trials. Re Complainant J – I recently read that he asked that the second trial not go ahead. Apparently journalists were not able to report this at the time. The placards outside Melb County Court seem to have been organised by a group prominent in the RC/Redress Scheme matters. There have been some reports about the Melb Press Club Quill Awards Dinner a week ago. How appalling that a cameraman who filmed Cdl Pell at a service station on his way from Vic to Syd on 8 April 2020 has won the award for TV Camera Work (Shot of the Year). Video on Melb Press Club website. I would have described the work as harassment with a lack of respect for social distancing rules in place at the time. 

  • Elizabeth Beare

    “A very bright grad just joined us who attached pronouns to her name in her email sig to the whole company. A sure sign that we hired a potential harassment lawsuit.”
    With luck the message will be taken from Minter Elison’s experience with their non-legal administrative CEO is that to hire without checking whether your future employee has fruitcake ideas is something of a mistake.
    If employers are to be pushed to increase their female numbers then they should at least ensure they get women who are not indoctrinated in the contemporary madness. Wherever they can can I suspect employers will eschew employing women in an effort to avoid the aggravations caused by modern indoctrinated feminism. Who can blame them? Not a good outcome for women in general though.
    As for the media and the Cardinal, what can one say except to wish him well and to hope he stays in Rome to continue his good work there. Australia is a poisoned chalice for him; the above is just another example of that. We should keep up the complaints about his ongoing vilification; but it is not an easy battle to win.

  • Mike O’Ceirin

    I was disappointed that Pell did not take up the cudgels against his oppressors. They should have been sued as now Porter is suing the ABC and Louise Milligan. As you say it is very difficult to get a prosecution for anything in the area when there are only two present and no physical evidence. The activist is working very hard to break our system of law and that is the most important thing to consider. They wish for the one that considers themselves to be the victim be able to be accepted as truth. The consequence is prosecution of those accused automatically. May they never get what they wish for but it is the road to hell if they do. Those that wish for this will also be victims of it if it were ever to come to pass.

  • Lewis P Buckingham

    This pressure to ressurect failed 40 year old cases may be impinging on the vigilante legal business model.
    No win no charge would end up in a stream of unwinnable loss leader cases that go straight to the bottom line.
    So ‘presto’ change the burden of ‘proof’ to the Pell case that those who have awoken desire, and ‘every case wins’.
    Bring in some actor capable of moving the audience ‘aka jury’, promote a twitter storm and an ABC Milliganesque deep investigative piece and the financial problems of a bespoke legal practice simply ‘go away’.
    Now what’s not to like about that?

  • norsaint

    The wholesale corruption of the law isn’t surprising when you consider a couple of things. The introduction of taxpayer legal aid by Whitlam led to an explosion in lawyers infesting society. It provided them with easy access to government coffers. Of course with so many more lawyers to support, governments had to create more “laws”, so these credentialed ambulance chasers could get an earn. It was easily done, given the preponderance of lawyers who gravitate towards various parliaments.
    In Victoria, the egregious former Attorney General “Rob” Hulls has been given a cozy sinecure and runs what he calls an Innovative Law School. Innovative is basically a euphemism for feminist jurisprudence, overthrowing many Common Law tenets.
    And of course, one should never forget the magnificent observation of Charles Dickens in Bleak House.
    “The one great principle of the English law is to make business for itself. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.”
    The late journalist Evan Whitton wrote a few books on the law and its Inquisitorial basis. He summed it up more succinctly, saying the law always did what was in its best interests. Hence these horrific decisions made by Magistrate Wallington and Supreme Court flunkeys Feguson and Maxwell are in fact “good” decisions. They ensure plenty of continuing work for their colleagues further on up the line.
    As for the rest of us, Pell included, we’re collateral damage.

  • call it out

    “Collateral damage”? Having seen the hungry hordes of sex discrimination officers, lawyers for and against, and low grade so-called judges in action, signalling through a claim of assault the police wouldn’t touch, I can also testify to the long tail of damage to all involved. I swore I would avoid the legal mob if at all possible.
    Of course Pell had no such option, and I guess in the end he was served well. But cut short his journey at any step before the last, and his treatment was nothing short of a persecution, too.

  • Sydgal

    Norsaint – Interesting comments in light of some of the landmark cases I’m reading about in a first-year law textbook. Regarding Cardinal Pell’s case, it is difficult to understand what happened at the Committal, particularly when details became available in documents on the HCA website and at the High Court on 11 and 12 March. One legal commentator told journalists at the High Court that he was not aware of the detail, yet he had written numerous media articles on the case! In the video of K Judd on 12 March, the section relating to where the complainant found the wine is very confusing as 2 different places seem to be given in the course of 30 mins or so – wood panelled storage area to the left, but then alcove area in the corner, eg Judd: “He says he saw the wine in that alcove area when he was poking around in there”.

    The complainant’s statement read out in the 42 minute Rome interview was that he found the wine in a storage area with a wood panelled door immediately to the left of the door into the room. Cdl Pell tells the police this was a wardrobe to store vestments not a place where wine was stored:
    Detective Reed: Yep. Okay, they’ve walked in, and there was a wood panelled door – it’s
    been described to a storage area within the room. To your recollection, does the Sacristy have any area such as that within it?
    Cardinal Pell: Well, for vestments and things.
    Detective Reed: Ah, I don’t know what was ever held in there.
    Cardinal Pell: Yeah, well a lot of the vestments were kept there. The Archbishop’s vestments.
    Detective Reed: Yes, okay, immediately on the left as you walk into the room.
    Cardinal Pell: Now, are we in the Archbishop’s Sacristy or the Priests’ Sacristy?
    Detective Reed: I presume from these gentlemen it was the Archbishop’s Sacristy….set up wise.
    Cardinal Pell: And what was supposed to be in these cupboards?
    Detective Reed: The found some wine in there.
    Cardinal Pell: Yes, that’s right well that’s not in my, in the Archbishop’s Sacristy.
    Detective Reed: Okay, yes.
    Cardinal Pell: Ah, there is a formidable safe which is in the Priests’ Sacristy where the wine was locked. When the Sacristy was opened it was always supervised by the Sacristan or his assistant”.

    And later when there is further discussion on the busy activities after Mass, it is interesting that the interview seems to be wrapped up quickly:
    “…Cardinal Pell: The rings and the pectoral crosses and that were kept there. Ah – the Sacristan would stay around and lock the Sacristy. Sometimes there were Baptisms then, sometimes there were Baptisms early afternoon. Sometimes there were ceremonies. So the Sacristan would be around for as long as
    these were on and then the place would be locked up. You could scarcely imagine a place that was more unlikely to be committing paedophilia crimes than the Sacristy in the Cathedral after Mass. So err, it was a big operation, it was a solemn operation, loads of people around and most of them keen to get off to dinner if they could. And certainly the parents of the choirboys they wanted them out, the choir
    master or his assistant wanted them away. They wanted to lock up the Sacristy so that they could have lunch or keep it open to do other things. And so I was never ever walking along any corridor with choirboys to one side. They didn’t, err, as I said I was always out the front and by the time I’d got around they were long gone. I just wanted to..
    Detective Sheridan: Yeah, no problem, thank you. Anything? I think we’ll conclude now.
    Detective Reed?: I think we’ll call it a day. If no one has anything further…”

  • norsaint

    Sydgal: disgusting isn’t it. With the Inquisitorial Legal System as practiced in France for example, the whole point of the exercise is to discover the truth. Not necessarily very exciting but there you have it. With the Adversarial, the point is to win That’s whey there are all these ridiculous points of order and pieces of evidence that can’t be heard. It’s also why courtroom dramas are such a staple fare of tenth rate television shows. Whitton was very good on coursing through how we got to this point and basically it all got back to the process being hijacked by self-serving lawyers. The fact that truth is incidental to a justice system makes a mockery of the whole exercise.
    Good luck in your endeavours to become a qualified vulture!

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