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One of the most common misconceptions is that justice means getting what you want. It is a misconception that is not only wrong, but one that also carries the very real risk of perverting the course of justice. As the legal farce against Cardinal George Pell has proven: when such a belief is commonly held, it can lead to the imprisonment of innocent people and the disgrace of the entire legal system.
The Pell legal fiasco involved two trials and two appeals which culminated in George Pell’s conviction for historic child sex abuse being overturned by the High Court of Australia. The two trials began in August 2018 in the Victorian County Court. Pell pleaded not guilty to all charges. The first trial ended in a mistrial after the jury proved unable to deliver a verdict. The second trial ended in a guilty predict.
After his sentencing, Pell’s defence team appealed to Victoria’s Appeals Court. They argued that Pell’s conviction “could not be supported by the whole of the evidence” and that, therefore, no reasonable jury could have found him guilty. It was an unusual approach. Most appeals will attempt to overturn a jury verdict by arguing that the trial judge failed to properly instruct the jury. Pell’s defence team, on the other hand, were claiming that the jury itself made the error. In order to show that the jury verdict was “not open”, Pell’s defence team had to show that the evidence presented at trial “precluded a guilty verdict.” As the Court of Appeals stated:
“Where the unreasonableness ground is relied upon, the task for the appeal court is to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The inquiry which this ground requires is a purely factual one, rather than a discrete question of law where the agreement is that the trial judge has made an error. When the reasonableness ground is relied upon, the appeal court reviews the evidence as it was presented to the jury. The appeal court asks itself whether – on that factual material – it was unreasonably open to the jury to convict the accused.”
According to the Court of Appeal’s review, the prosecution’s case rested on the argument that the accuser was a credible witness upon whom the jury could justify a guilty verdict. This view was shared by both Chief Justice Anne Ferguson and Justice Chris Maxwell:
“Throughout his evidence, [the complainant] came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution. As might have been expected, there were somethings which he could remember and many things which he could not. And his explanations of why that was so had the ring of truth.”
Conversely, both Ferguson and Maxwell judged that there was justifiable reason to doubt the testimonies of the “opportunity witnesses” whose testimonies contradicted the prosecution’s case. Ferguson and Maxwell both found that “the evidence of the opportunity witnesses varied greatly in quality and consistency, and in the degree of recall, both as witnesses and within the evidence of individual witnesses.” They argued that the repetition of events combined with the lengthy passage of time had conspired to put the validity of their testimonies under question. Incredibly, both Ferguson and Maxwell were willing to accept the accuser’s testimony as a true and accurate version of events even though their reasons for discounting the testimonies of the opportunity witnesses could be applied just as easily to him as it could to the others.
The Victorian Court of Appeals upheld Pell’s conviction with a two-to-one majority. The lone dissenter, Justice Mark Weinberg delivered a two-hundred-and-four-page dissent statingthat “in light of the unchallenged evidence of the opportunity witnesses, the odds against [A’s] account of how the abuse occurred, would have to be substantial.” Weinberg did not believe that the prosecution had successfully discounted the testimonies of the “opportunity witnesses” and concluded that a reasonable jury would not have been able to reach a verdict of guilty beyond a reasonable doubt.
Unperturbed, Pell’s defence team applied to appeal to the High Court. It was granted because the highest court in the land believed there was sufficient argument to suggest that Pell had been convicted on insufficient evidence. Pell’s defence team based their appeal on the argument that Pell’s conviction could not be supported by the evidence and that the Court of Appeals had misapplied the legal test by requiring him to prove that the offending was impossible.
According to the High Court Summary, ‘A’ (the accuser is identified as ‘A’ in the High Court summary) testified that ‘B’ and himself had slipped out of the procession as it was approaching the metal gate to the toilet corridor. (A full description of both the layout of the Cathedral and the procession are contained within the High Court summary). From there they re-entered the Cathedral through the door to the south transept, made their way into the sacristy corridor, slipped into the Priest’s sacristy, and partook in a bottle of red communion wine. ‘A’ alleged that Pell caught them, exposed his penis, orally raped ‘A’, and forced his to remove him trousers so he could fondle his genitals. At this stage both ‘A’ and ‘B’ were crying and Pell is alleged to have told them to be quiet. ‘A’ further claimed that Pell re-assaulted him a month later by pushing him up against a wall and fondling his genitals.
The Court of Appeals had found ‘A’ to be a credible witness, partly because he had knowledge of the interior layout of both the interior of Saint Patrick’s Cathedral and the Priest’s sacristy. (Clearly it didn’t occur to them that he could have attained such knowledge without being abused). There are, however, two problems with ‘A’s testimony. The first concerns the lack of opportunity Pell would have had to commit the crime without being caught. If ‘A’, the prosecution, Ferguson, and Maxwell are to be believed, Pell was a brazen enough offender to molest two choir boys directly after Sunday Mass when the chances of getting caught would have been extremely high.
The second concerns the time of the offending. The prosecution placed the date range for the alleged offending between December 15th and 22nd 1996 for the first offence and February 23rd for the second offence. Saint Patrick’s Cathedral was closed for renovations between Easter and November 1996. After it was reopened, Pell officiated two Sunday masses there – December 15th and 22nd December and presided over, though he did not celebrate, Sunday solemn mass on February 23rd, 1997. During this time, renovations to the Archbishop’s sacristy forced him to use the Priest’s sacristy, further enhancing the likelihood of getting caught.
It should come as little surprise that High Court found major inconsistencies between the way the Court of Appeals regarded the accuser’s testimony and the way they regarded the testimony of the “opportunity witnesses”:
“The Court of Appeal majority’s treatment of what their Honours rightly identified as the critical issue in the case was wrong for two reasons. First, Portelli’s evidence was unchallenged. Secondly, their Honours were required to reason in a manner that is consistent with the way in which a jury would be directed in accordance with the Jury Direction Act 2015 (Vic). Their Honours were required to take into account the forensic disadvantage experienced by the applicant arising from the delay of some 20 years in being confronted with these allegations. Their Honours, however, reasoned to satisfaction of the applicant’s guilt by discounting a body of evidence that raised lively doubts as to the commission of the offences because they considered the likelihood that the memories of honest witnesses might have been affected by delay.”
The testimony of Monsignor Charles Portelli, the former Master of Ceremonies, was of particular interest to the High Court. As Master of Ceremonies, Portelli’s duties included meeting Pell when he arrived at the Cathedral, assisting him with his vestments, and so on. Portelli testified that the two occasions Pell celebrated Mass in December 1996 were memorable because of the large number of people who wanted to meet Pell. He recalled standing beside Pell during the procession and seeing Pell hand his mitre and crosier to two altar boys whilst he stood at the west door greeting congregants. During the cross examination, Portelli stated that whilst it was possible that Pell only remained at the west door greeting people for a couple of minutes, he did not remember it. Furthermore, Portelli testified that even if he had, Pell would have been accompanied by Max Potter or another Priest.
Sacristan Max Potter concurred with much of Portelli’s testimony. Potter claimed that Pell spent twenty minutes to half-an-hour greeting congregants. When asked he stated that whilst it was possible for Pell to have left earlier than normal, it would have been unlikely at first because “it took him [Pell] a while to readjust, and [he] stayed in there welcoming people for a couple of months in the Cathedral.” Potter also backed up Portelli’s assertion that Pell would not have returned to the Priest’s sacristy to remove his vestments alone. Furthermore, Potter stated that he unlocked the Priest’s sacristy as the procession was making its way down the centre aisle and that he gave congregants five to six minutes to pray in the sanctuary before he and the altar servers removed the sacred vessels, a task that generally took around a quarter-of-an-hour.
Potter was suffering memory issues during Pell’s trial. In particularly, his testimony makes it unclear as to when exactly he unlocked the Priest’s sacristy. Other witnesses, however, also testified in Pell’s favour. Both Doctor Cox, the assistant organist, and Peter Finnigan, the choir marshal, recalled the Priest’s sacristy being a “hive of activity” following the Mass. Likewise, Jeffrey Connor and McGlone, both of whom were altar servers at the time, stated that they could recall no occasion in which the Priest’s sacristy had been left either unlocked or unattended. They testified that Potter had been waiting to unlock the Priest’s sacristy so they could bow to the crucifix and complete their duties.
Connor wrote of Pell’s “invariable” practice of greeting congregants on the steps of the Cathedral in his personal diary. Connor testified that he had never seen Pell alone whilst wearing his vestments, and that if he had the event would certainly have been memorable. McGlone concurred with Connor’s version of events testifying that he understood the Archbishop’s vestments were sacred and that certain prayers had to be said as they were being donned or removed. McGlone recalled he and his mother having a brief interaction with Pell.
The High Court unanimously concluded that no reasonable jury, working to the standard that guilt must be proven beyond a reasonable doubt, could find George Pell guilty. They found that the possibility of reasonable doubt arising from the unchallenged evidence of multiple witnesses should have prompted the jury to entertain the possibility of reasonable doubt. As a result, they overturned Pell’s conviction.
It is not difficult to see Pell as a casualty of the broader culture war – the ideological conflict over the fate of western culture – that has enveloped modern society. Pell’s outspoken traditionalism and fervent Catholicism combined with his contentious views on gay marriage, the morning-after pill, and the ordination of women has made him persona non grata for many social groups. Combine this with the Catholic Church’s admittedly abysmal response to child sex abuse allegations, and it isn’t hard to see why Pell was targeted. It is as though they thought they could punish the Church by convicting Pell.
It should go without saying that the sexual abuse of a child, whether it is committed by a stranger, a scoutmaster, or a Catholic Cardinal is abhorrent. It is more than reasonable to hold child abusers accountable for their crimes. However, it is more important to uphold those principles upon which our legal system is based. It is these principles that have allowed us to live in freedom and (relative) prosperity for as long as we have.
Although most people recognise the necessity of legal protections against miscarriages of justice, many do not believe that these protections should extend to people accused of sex crimes. There is an alarming trend where politicians attempt to use the spectre of child abuse to curry favour with the public. In many cases, these attempts involve violating time honoured legal principles. The Royal Commission into Institutional Responses to Child Sexual Abuse, for example, has made several recommendations that state governments have only been too eager to lap up. Among the Royal Commission’s recommendations have been the abolition of statutory limitations on child sex abuse allegations and reformations to evidence law so juries can learn more about a defendant’s past.
In 2020, Victoria’s Attorney General, Martin Pakula introduced the Limitations of Actions Amendment (Child Abuse) Act 2015 which exempted cases where injuries had been acquired from the psychological, physical, or sexual abuse of a minor from the usual statutory limitations. Similarly, the Conversation reported in February 2020 that the New South Wales government had introduced a new would that would “make it easier for a jury to be informed about the prior convictions of a person on trial for a sex offence.” Similar laws are expected to be introduced in Victoria, Tasmania, the Northern Territory, and the Australian Capital Territory.
These blatant violations of western legal jurisprudence have emerged from a pernicious belief that all who claim to have been sexually abused must be telling the truth. Pell’s lone accuser perfectly summarised this view in his statement following the High Court’s decision:
“I respect the decision of the High Court. I respect the outcome. I understand their view that there was not enough evidence to satisfy the court beyond all reasonable doubt that the offending occurred.
No one wants to live in a society where people can be imprisoned without due process and proper processes. This is a basic civil liberty. But the price we pay for weighting the system in favour of the accused is that many sexual offences against children go unpunished.”
Merely being accused of a crime does not make someone guilty. Our legal system requires that guilt be proven beyond a reasonable doubt Weighting the system in the favour of the ‘victim’, as Pell’s accuser is suggesting, is no different than weighting the system in favour of the state. Under such circumstances a defendant would have no chance of defending himself against any charge brought against him.
Shortly after he was convicted, Anne Manne wrote in The Monthly that Pell’s conviction “enacted the dignity and power of the rule of law.” In reality, precisely the opposite happened. The rule of law is defined by the Australian Constitution Centre as “the idea that every person is subject to the laws of the land regardless of their status. It is the idea that you cannot be punished or have your rights affected other than in accordance with a law, and only after a breach of the law has been established in a court of law.” George Pell was treated with a special kind of vindictiveness because he was a Catholic Cardinal. He was not treated like everybody else.
The Rule of Law is supposed to be the opposite of the rule of power. It recognises that whilst it may be necessary to have leaders, no one individual ought to be master over his fellows. As Clive Staples Lewis once noted: “Aristotle said that some men were only fit to be slaves. I do not contradict him. But I reject slavery because I see no men fit to be masters.” The Rule of Law is supposed to reflect the fact that Australia is a nation governed by law, not by rulers. The Australian legal system has tainted this principle by treating George Pell differently just because he is a Cardinal.
The George Pell legal fiasco has revealed deep corruption inside the Victorian legal establishment. When one considers the Supreme Court of Victoria and the Court of Appeals proclivity to ignore evidence that did not support the prosecution, the weakness of the prosecution’s case, and the relentless media witch hunt, it is hard not to think of the Pell trial as anything less than a calculated attempt to silence an outspoken conservative Cardinal. When cases like Pell’s come along, we should remind ourselves of that old Latin maxim: “let just be done though the heavens fall.”
Priests and Ministers of Religion in South Australia will be required to report child abuse confessed to them under new laws that come into effect in October.
The Children and Young People (Safety) Act 2017 has replaced the Children’s Protection Act 1993. The Attorney General’s Department has claimed that these changes will “better protect children from potential harm, and align with the recommendations of the recent Royal Commission into Institutional Responses to Child Sex Abuse.”
These new laws represent a disturbing phenomenon. Namely, the use of a highly emotive issue as a means for undermining the rights and freedoms of others. This law, and others around Australia (the ACT Parliament has passed similar laws with almost universal support), blatantly violates both religious liberty and the right to privacy.
Confession is one of the most important aspects of the Catholic Faith. Comprising one of the seven sacraments (the others being Baptism, Eucharist, Confirmation, the anointing of the sick, and Holy Orders), Catholics believe that an individual who confesses his sins is speaking directly with God. Whatever is confessed remains between that individual and God.
The privacy of the Confessional is known as “the Seal.” The Vatican has had strict rules on the privacy of the confessional since 1215 and Priests are bound by a sacred vow not to break the seal. A Priest who breaks the seal, even after the penitent has died, faces excommunication.
Some critics have accused the supporters of these new laws of undermining religious liberty and of targeting the Catholic Church. The Archbishop of Canberra and Goulburn, Christopher Prowse, criticised the law, say: “The Government threatens religion freedom by appointing itself an expert on religious practices and by attempting to change the sacrament of confession while delivering no improvement on the safety of children.”
Some priests have even claimed that they would rather go to prison than break the seal of the confessional.
At some point, people are going to have to realise that children are not the centre of the universe. They are going to have realise that their safety is not so important that it trumps the rights and freedoms of everybody else. The laws passed by the Parliament of South Australia are an absolute violation of religious liberty and the separation of church and state.
Countries like Australia have had a great tradition of separating politics from religion. Now it seems that this distinction only goes one way. It is seen as totally unacceptable for the Church to use its power and influence to affect politics, but for some reason it is seen as perfectly acceptable for the state to interfere in religion.
One cannot help but cynically suspect that politicians in South Australia are using children as a backdoor method for allowing the all-seeing eye of the state into relationships that were once deemed absolutely private. That which is confessed to a Priest ought to remain absolutely private. The contents of my conscience (or anyone else’s, for that matter) are none of the state’s business.
Those who support this blatant attack on the rights and liberties of others should ask themselves what their opinion would be if the law violated their private relationship with their doctor, lawyer, or psychiatrist.
The Royal Commission into the banking and finance sectors has uncovered damning evidence of inappropriate conduct among Australia’s top banks. The Commonwealth Bank was found to have charged fees to a client despite knowing that they had died in 2007. Anthony Ryan confessed that AMP had essentially stolen client’s money by charging fees for no service (a practice the Commonwealth Bank was also found to have engaged in).
And then there were the instances of dishonesty, the falsification of documents, and the handing out of irresponsible loans uncovered by the Commission.
As one may well imagine, the fallout from the Commission has had a largely negative effect on the banks. AMP has rejected criminal charges. But their CEO, Craig Mellor resigned in the middle of April, and they have replaced their Chairman, Catherine Brenner, with David Murray. Similarly, the Commonwealth Bank agreed to pay twenty-five million dollars in legal settlements after ASIC brought legal action against them over bank bill swap rates.
Analyst Morgan Stanley expressed concern over the outlook of the 2019 financial year, according to a report by Business Insider. Mr. Stanley has argued that the “negative stance” on the major banks reflects a more bearish economy.
Similarly, Financial Review reported that foreign investors had taken a negative view towards Australia’s banking sector, and the financial services firm AMP. The Chief Investment Officer of Credit Suisse Private Banking in Australia, Andrew McAuley commented that “our intel is telling us that banks are being shorted by overseas investors.”
And, by extension, there is a clear and present danger that Canberra will act in a knee-jerk reaction and vote for more stringent regulations on banks. The kind of regulations that will make it harder for the banks to operate effectively.
Despite all this, it would foolish to write off Australia’s top banks. The finds of the Commission, though damning, does not change the fact that banks play an integral role in Australia’s economy. Banks provide a place for people to store and protect their money, facilitates loans, and helps people invest their wealth. And in a culture that seems more interested by which overgrown monkey will kick the most goals in a football game, or which brain-dead contestant on The Bachelor will break down into tears first, it is very likely that the banking scandal will be forgotten rather quickly. Australia’s banks may be wounded, but they have not been slain.
The rise to power of Nationals leader and Deputy Prime Minister, Barnaby Joyce has come to a dramatic halt as news of his marital infidelity dominates the headlines.
The political fallout has been immense, but predictable. On Thursday, the Senate passed a motion that called for Joyce for to relinquish his post as Deputy Prime Minister. Greens leader, Richard Di Natale called on Joyce to resign and even demanded that the Nationals fire him if he refuses.
The Prime Minister, who commented that Joyce had made a “shocking error of judgement”, responded to the scandal by changing the ministerial code of conduct to prevent Federal Ministers from having sexual relations with members of their staff.
Joyce’s shocking lack of moral fibre has jeopardised any real political power conservatives in Australia have, and has threatened the delicate balance of power between the right-wing and left-wing factions of the coalition Government.
Following the usurpation of the conservative Prime Minister, Tony Abbott by Malcolm Turnbull – a prominent voice of the left-wing faction of the Liberal Party – many on the right hoped that a Joyce-led Nationals would be able to counteract the centre-left leaning Liberal Party with their brand of traditionalism.
Naturally, Barnaby Joyce’s marital infidelity and dishonesty puts the trustworthiness of politicians in question.
A large part of the fury over Joyce’s affair is not the sexual infidelity, but the fact that he dipped into the public purse to finance the charade. As the political scientist and commentator, Jennifer Oriel stated in her article, “Barnaby Joyce’s Greatest Sin is Being Conservative”, the combination of corruption and marital infidelity violates the most basic codes of common decency.
Barnaby Joyce’s behaviour is precisely the reason Australians are cynical about politicians.
The idea that people ought to be cynical about politicians is hardly news to anyone with any real knowledge of history, politics, or human nature.
The reason countries like Australia place so many checks and balances – separation of powers, the Constitution, an independent judiciary – on those in power is that power tends to have a corrupting effect on the human soul.
As Lord Acton famously put it: “Power tends to corrupt, and absolute power corrupts absolutely.”
The greatest measure against tyranny is the establishment of a political and legal system that places restrictions on power. We should be thankful that Barnaby Joyce’s biggest transgression was marital infidelity, and not much worse besides.
(This is derived from an old essay I wrote for university)
The size of government is an important yet seldom discussed issue. This is a peculiar phenomenon as the size of government is integral to our freedom. When government power is not limited those with power are able to encroach upon the freedoms of the people. However, when the powers of government are limited people are able to live in peace, freedom, and prosperity.
The Age of Enlightenment (c. 1685 – c. 1815) represents a period in history where the principles of the old world were replaced by new ideals. It was during the Enlightenment that the concepts of modern democracy (democracy originated with the Ancient Greeks, albeit in a rather primitive form), liberty, and inalienable rights began to emerge. One of its key concepts, limited government, came about during the High Enlightenment (c. 1730 – 1780). The English philosopher John Locke (1632 – 1704), perhaps the greatest defender of limited government, believed civil power should be derived from individual autonomy and that the separation of powers was necessary to protect people from tyranny.
Limited government works on the idea that governments should have a little interference in people’s lives as possible. Supporters of small government believe that big government destroys human creativity and innovation because. As the Austro-Hungarian philosopher, Friedrich Hayek (1899 – 1992) stated: “the more the state plans, the more difficult planning becomes for the individual”. Numerous supporters of democracy and liberty had held limited government as an important, and necessary, ideal. The American statesmen, founding father, and President, James Madison (1751 – 1836) sought institutions which would limit the scope of government and give more rights to the individual. Similarly, the Australian Prime Minister, Malcolm Fraser (1930 – 2015) argued that “the power of the state should be limited and contained”.
In no other area is this been clearer than the economy. The economist, Adam Smith (1723 – 1790) argued that regulations on commerce are not only ill-founded but also counter-productive as countries depend on capital accumulation . According to James Madison, guarding persons and property would: “encourage industry by securing the enjoyment of its fruits.” Nations with small governments create their own fortune by allowing the people to participate freely in the marketplace.
Small government makes them master of their own destinies rather than making the government master of them. The people should never forget, as Ronal Reagan put it, “we the people are the driver, the government is the car.” Only small government can continue to survive into the future, only small government can protect the rights of the individual, and only small government celebrates human achievement. This is why small government matters.
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The belief that anyone can “have it all” is one of the most destructive falsehoods of our generation. In an interview with the Sunday Bulletin in 2013, the Australian deputy opposition leader, Julie Bishop (1956 – ), stated that she believed women could not have it all. “I’m in the Anne-Marie slaughter school”, Bishop said, “women can’t have it all. They can have plenty of choices, but at the end of the day, they choose something which means they can’t have something else.” In a later interview with Sky News, Bishop reiterated her point by stating: “if you make choices you rule out other alternatives.”
The problem with the ‘you can have it all’ philosophy is that it does away with the very necessary doctrine of sacrifice. The psychology of sacrifice is based on the law of opposites: the idea that a conscious experience has an opposite unconscious experience. Put simply, it is the discovery of the future. Society is set up in such a way that people are encouraged to make sacrifices for the benefit and betterment of the community.
The truth is that we live in a world of scarcity. Every decision has a price. This occurs for two primary reasons. First, nature imposes limitations on us. One of the greatest errors of the animal’s rights movement is the belief that human beings are able to “share” resources with animals. This ignores the simple fact that survival requires competition between species. And second, society imposes limitations upon the individual. If the individual wishes to be successful in a particular endeavour, for example, it is necessary for them to learn to distinguish the value of one activity over another and prioritise their time accordingly.
The ‘you can have it all’ message denies a simple fact of existence: in order to have one thing, you must be prepared to give up something else. And, needless to say, functioning societies are set up so those sacrifices are met with reasonable rewards. The person who works in a job they dislike at least has the benefit of knowing that they will earn an income and may possibly be able to buy a house and raise a family. The fact is that you can’t “have it all”, not by any stretch of the imagination.