Australia, Law, Religion, Top Stories

Pell’s Pyrrhic Victory

In an essay published on this site nearly two months ago, I analysed George Pell’s conviction for child sex offences alleged to have occurred in Melbourne, Australia, in December 1996 and February 1997. On Tuesday, Australia’s highest court unanimously ruled—along substantially the same lines as those explored in my argument—that Pell was wrongfully convicted. A short time later the 78-year-old was released from the maximum security prison in which he had been serving his sentence in solitary confinement.

The question for the High Court was the same as that presented to the Victorian Court of Appeal which rejected Pell’s first appeal: was it open to the jury, acting reasonably, to convict the accused based on the available evidence? Rarely for a case heard in the nation’s highest court, the judges were concerned principally with factual rather than legal matters. The court reviewed the evidence and concluded that a rational jury could not have convicted Pell on this basis, and that the Victorian Court of Appeal erred in failing to find this.

The accusations, briefly stated, were that Pell forced two choir boys to fellate him in the priest’s sacristy of St. Patrick’s Cathedral in Melbourne in December 1996. The timeline according to the complainant (known only as “A”) alleged that the Archbishop had rushed to the scene of the offence after mass, skipping the normal “meet-and-greet” with his parishioners on the steps of the Cathedral. This would have been unusual under normal circumstances. But the claim that they occurred on the alleged date was especially improbable because it was the first time Pell said mass as the new Archbishop of Melbourne and parishioners were eager to congratulate him.

The second alleged event was even more implausible. The complainant asserted that in the middle of a crowded procession inside St Patrick’s, the Archbishop cornered him and grabbed his testicles before leaving the area and never speaking to the complainant again. The High Court ruled that the Court of Appeal was wrong to accept A’s uncorroborated evidence and to disregard the testimony of several other witnesses whose credibility was unchallenged and whose accounts if accepted made the offending impossible. Indeed, the intermediate court not only preferred the complainant’s evidence but rejected the idea that the conflicting evidence should have raised reasonable doubt in the minds of jury members.

In particular, the Victorian Court of Appeal placed too much weight on the demeanour of the complainant in giving evidence in the High Court’s view. While two judges in the Victorian court were persuaded by the manner in which the complainant related his allegations, the third judge was not. This led the High Court to remark: “The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanour-based judgments.”

Another error identified was the weight the Court of Appeal placed on the complainant’s knowledge that the Archbishop was using the priest’s rather than the archbishop’s sacristy at the relevant time because of renovations, and could identify details about the room’s interior. This, as I argued, was not a question of incorrect emphasis or forensic impropriety but a straightforward logical fallacy. That the complainant knew details about this part of the church simply placed the complainant in the room but said nothing about where the Archbishop was at the relevant time.

Of the second alleged event, the High Court said:

The assumption that a group of choristers, including adults, might… fail to notice the extraordinary sight of the Archbishop of Melbourne dressed “in his full regalia” advancing through the procession and pinning a 13 year old boy to the wall, is a large one.

This objection was, again, readily appreciable by all rational observers, during and after the trial. Perhaps the jury failed to recognise it amid the media storm into which they were thrust. But one wonders how and why it did not occur to the majority judges on the Court of Appeal. Finally, there was persuasive evidence that the liturgical practice requiring a clergy member to accompany Pell at all times was followed in this instance, and Pell’s colleagues testified that they remembered where he was at the time of first alleged offence given the special nature of the occasion.

All of these factors led the Court to conclude that there was “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof.” This judgment is to be welcomed. But it was disappointing that it did not exhort appellate courts to exercise more care in reviewing cases like this one in future. Rights of accused persons have been gradually but significantly eroded over the last few decades in sex offence cases. And in this case in particular, the media’s influence was likely to affect the jury’s ability to reason objectively.

The Court of Appeal’s failure to appreciate this led to an elderly man against whom there was never any direct evidence spending far longer in prison than was necessary. Let us not forget that George Pell is a well resourced individual who received character references from former prime ministers and was represented by Australia’s most expensive lawyers. It is not hard to imagine what the result of this case would have been had the accused been of lower social standing. The name Lindy Chamberlain comes to mind.

Then again, Pell’s prominence was one of the key ingredients of his downfall. As the de facto leader of Australia’s Catholic church at a time when it was embroiled in one scandal after another, Pell became a public target onto which a deep well of private resentment—much of which was wholly irrelevant to his own conduct—could be directed when the opportunity arose. And when it did, implausible claims became an imperfect means to a righteous end. Like the mobs who targeted Alfred Dreyfus and Janet Horne, Pell’s detractors were never interested in the truth about his case. They had identified their quarry and would not rest until he was destroyed.

As Pell himself said in a statement issued after his release:

…my trial was not a referendum on the Catholic Church; nor a referendum on how Church authorities in Australia dealt with the crime of paedophilia in the Church. The point was whether I had committed these awful crimes, and I did not. The only basis for long term healing is truth and the only basis for justice is truth, because justice means truth for all.

In the end, Pell’s is a Pyrrhic victory. He is an elderly man who may have made mistakes but he is not the monster that he has been depicted to be. In mainstream outlets, he has routinely been referred to as the “disgraced former cardinal,” a label one doubts the media will have the humility to retract and apologise for. Justice has been done in this case. But the case offers a troubling reminder of our willingness to believe the worst about the wrongfully accused for reasons that have little to do with the facts at issue. The next scapegoat may not be as lucky as George Pell.

 

RJ Smith is an Australian writer and academic living in Paris. You can follow him on Twitter @always_polite.

Feature image: Australian Cardinal George Pell is escorted into the Supreme Court of Victoria in Melbourne on June 6, 2019. Asanka Brendon Ratnayake /AFP via Getty Images.

Comments

  1. In crimes of enormity there is a natural desire to see the perpetrator punished and for justice to be seen to be done. The publicity means that jurors will inevitably have read lurid stories and accounts of the defendants guilt before the trial and the two factors mean they can be primed to overlook flaws in the evidence of guilt and ignore exculpatory evidence. This is perhaps inevitable but what is new and not inevitable is the demonisation of men in all matters sexual, the campaign to believe ‘vicitims’ and the assertions that false accusations are rare.

    The propoganda that we live in a rape cultture, that sexual abuse by men is condoned by society as a whole, that the justice system protects abusers and that the sexula history of complainants is used unfairly against them is ubiquitous.

    All of this undermines the system of justice and the chance of a fair trial for the accused and none of it is true. The majority of men do not commit sexual crimes. Women in fact are responsible for perform the majority of child abuse albeit mostly not of a sexual nature but the majority of boith sexes are not abusers.The campaign to believe victims is a campaign to ignore evidence and assume guilt. The number of false accusation is unknowable but certainly not negligible, certainly higher than for any other type of crime and depending on the criteria used the majority of sexual accusations are false. Rape far from being condoned is universally condemmed and punished severely. The court system in the west handicaps the defence not teh prosecution by excluding some of the most relevant information relating to the relative plausibility and consistency of the accusers and defendants accounts.

    There is a continuing process which makes it more and more likely for men,and it is overwhelmingly men, to be convicted of sexual crimes they did not commit. The reality is that often a man accused of a sexual crime must proof his innocence beyond doubt and the prosecution must merely proof the possibility of guilt in order to convict. Most tellingly when it is proved that accuations are false the demand is no to maintain or strengthen teh protections for the accused but to exclude whateve revidence was used to prove innocence from future cases.

    Ched Evans in the UK was freed after being wrongfully convicted on literally no evidence at all of rape. The alleged vicitm had ni memory fo teh event and there was his account, a friend of his account that he was innocent as well as a video which supported his story. Despite this it was only because his ‘victim’ was named in social media (illegal and some of those that named her were prosecuted) and as a result testimony from a previosu sexual partner becaame available that showed that the women concerned had a history of behaving exactly as he claimed. There was a campaign to exclude such evidence in the future because, not despite, it resulted in the freeing of an innocent man.

    The John Ghomeshi trial in Canada was similar when evidence showed that his accusers had lied repeatedly and colluded in order to try to convict an innocent man the result was a campaign to exclude the evidence that proved his innocence from future trials.

    There is a continuing campaign to remove any chance of a man accused of a sexual crime from defending himself and it continues despite high profile cases which proof that false accusations do exist and that the traditional protections of the justice system are essential.

    We have already gone a long way down the road to prevent an effective defence. In cases which almost always will come down to a he said, in which the jury must decide which of the accounts they prefer the defendant is handicapped by being unable to introduce the most relevant evidence - past history of similar encounters and behaviour. The alleged victim’s anonymity is maintained so any evidence of relevant previous behaviour is in any case most unlikely to be found and there is the ubiquitous propoganda to believe the vistim and false accusations are vanishingly rare.

    The reality is in the modern world there is no stigma to having been raped and very little to sexual behaviour even of the most promiscuous kind. Justice requires that we remove the bogus protections for the accuser, when teh accused suffers far more, accept that testifying in court will never be a pleasant experience for any party but demand that in the interests of justice it is open with both parties named and that all relevant evidence is heard.

  2. I agree.

    And I would like to add that it would be helpful to have a law that, in cases where it turns out that the accused is innocent and the accusing person has deliberately lied, the latter would automatically face the same punishment as otherwise the innocently accused person.

    This would increase fairness and could help to reduce the number of false accusations (and thereby also help the real victims of sexual violence).

  3. All of these factors led the Court to conclude that there was “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof.” This judgment is to be welcomed. But it was disappointing that it did not exhort appellate courts to exercise more care in reviewing cases like this one in future.

    Disappointing to the public, of course, but despite the fact that the High Court is using language such as “a significant possibility”, this is merely window dressing.

    The justices of the Court Appeals assuredly understand the real message, here: that they knew what the law required, knew the standards by which evidence must be weighed, and nevertheless upheld the conviction of a man they had to have known was probably innocent.

    No one should be in any doubt that the High Court has accused the Court of Appeals of having done evil.

  4. This is all deeply troubling. It is precisely in the most emotive of cases, where our repugnance for the alleged crime exposes us to the deepest of biases, where due process of Law is needed most and seen least.

    Well done to Quillette and the author of this article for daring to voice objections, when the mob demands complicity.

  5. Well, sadly, a lot of rape trials have become farcical and bizarre. I’d point to the Harvey Weinstein case, in which virtually no one, besides his lawyers, has even dared come to his defence. Of all claims made against him, which involved over 100 women, only 2 charged him. They were Jessica Mann and Miriam Haleyi. Mann said she was raped by Weinstein, the dived into an on and off consensual sexual relationship with him that lasted for years, then was raped again by him, but hey, this didn’t stop her from once again resuming a consensual sexual relationship with him again. Don’t worry this all totally normal behavior, according to the quack psychologist the prosecution brought in. Mann not only routinely sent Weinstein flirtatious messages and asked him for favors (rapists are apparently very dependable, stand up kinda guys) but even asked him to take her out to dinner after she broke up with boyfriend (what could soothe a broken heart more than a night out with your rapist?) She also told the jury that his cock was deformed, like it had been cut off and sewn back on. A picture of a naked Weinstein was passed around to the jury. Can you imagine a rape trial, in which the defence, in the interest of serving justice, passed around a photo of the accuser’s vulva? Haleyi said she was raped by Weinstein, although the “rape” consisted of oral sex. I’d like to point out that though law varies generally rape involves a penis, because a penis is a) more invasive b) can impregnate and c) can infect with disease. Also,does anyone else find it weird that a rapist would stop at oral sex? Cunnilingus isn’t that physically gratifying to give. If the woman is powerless and the two are alone, why would a rapist hold back, and stop there? “Sorry, I don’t want to put you out. You’ve been through enough. I’ll just finish myself off. Ooh, look a potted plant!” In any event, you guessed it, Halyi proceeded to have consensual sex with him later. She also milked him for hotel stays, flights, and limo rides. Weinstein has been handed 23 years for this nonsense.

  6. This absolutely is not an issue where there is any difference between left and right wing politicians it least in the UK. They all fight to outdo each other in how far they can push the boundaries of what used to be considered due process to make it easier to convict sex ‘offenders’. No one is willing to speak out because they know it would be met with a barrage of abuse and public villification with no chancs to present the arguments.

    Honestly I can’t think of a solution. When a high profile case of false accusations occurs even when it has resulted in the imprisonment of a clearly innocent man then the call is not to try to prevent such injustices but to try to close the ‘loophole’ that allowed them to prove their innocence. Perhaps the large scale imprisonment of the sons of feminists? I am not convinced that even this would be enough to return to a reasonably equitable system of justice.

    Harvey Weinstein is an example of what we face. I have discussed his case with quite a few people men and women. They all think it sis quite clear that he had sex with actresses as a quid pro quo for boosting their careers. No one thinks he actually raped anyone but rather thaat he pressured people into consenting and that those concerned regretted and resented it. However everyone is happy he should be jailed for this non-crime as someone who exploited his position. That is what we face, a complete indifference as to whether a crime is committed if a man is considered to have acted in a sordid way and a double standard whereby the man is responsible for actions for which men and women are logically jointly responsible.

  7. @ajohnson I understand your points and agree with most of them. However in my experience there is a massive difference between maybe not the left and the right but between the “new left” and everyone else in terms of how these matters are viewed .

    There was a high profile rape case in my country recently and the views of the people I spoke to in relation to it divided pretty neatly along “ new left” and the rest lines . This even applied to people with legal backgrounds . If the lawyer was woke or identified as a feminist the presumption of innocence no longer applied.

    I also noted that there was a difference between what some people would say in private and what they would then say in public in order to not draw attention.

    The old left arguably fought hard for fair procedures in criminal matters. You have to ask why fair procedures are now denied by the new left and those who are not of the new left but are scared of the new left . What I have noted based on my experience of conversations with people who deny fair procedures in these types of cases is that they do not deny fair procedures per se. They only deny it if the allegations are of a sexual nature .

    It is therefore very hard for me not to see this as a feminist / woke / those to scared to object to the woke phenomenon. “ For with what judgment ye judge , ye shall be judged”. This is why I sarcastically suggested that the only way to ameliorate the position somewhat is to have those who support these standards of proof or their loved ones to be judged by these same standards.

    A critic of the current system will be labeled a sexist and his opinions will be void ab initio regardless of content. This is why the criticism needs to come from a woman or a leftist preferably a minority. This criticism is more likely to come if they themselves are affected by it .

  8. To be honest, plenty of left wing people have been charged with sex crimes. Weinstein was left wing. I’m not a part of the modern left, but I don’t want more heads on pikes. There has been enough.
    I think the main problem is social justice has replaced justice. I’d like justice back. Verdicts need to be backed by evidence not emotion, reasonable doubt and the presumption of innocence must prevail. Accusation must not be seen as proof.

  9. I’m having a problem with using the term Pyrrhic Victory used here to describe Pell’s trial. Pyrrhus disastrous loses are typically used as a caution to those planning an aggressive campaign that even if they achieve victory, the cost may be too great. In this case Pell’s battle was not one of his choosing and his was defensive struggle. Pyrrhus had the opportunity to stay home and not engage in the bloody battle with Rome, Pell had no such choice.

  10. The women concerned wanted to gain an advantage over their rivals and used sexual favours to try to achieve that. Is it acceptable for women to offer bribes in order to gain a business advantage?

  11. Weinstein took advantage of his position to get what he wanted in a reprehensible way. On the other hand, as @ajohnson and @Kapeth mentioned, the women who accepted his “offer” also got what they wanted: An unfair advantage over all their competitors. In my view, the only heroes (or rather heroines) in this story are the women who found themselves in this situation and rejected it.

    The point in question is not whether Weinstein’s behavior should be acceptable or excusable (let alone whether “it should be ok for all employers to set these conditions”), but whether what he did should be punished as rape.

    In my opinion, Weinstein’s behavior was disgusting and condemnable; he should have lost his position and reputation decades ago, and he should definitely be kicked out of civil society. But that should be punishment enough.

  12. Weinstein was clearly an unpleasant man who was happy to take advantage of his position in order to have sex with a large number of attractive women. This is disgusting and immoral however the are two issues I was trying to highlight.

    First the evidence in at least the cases he was convicted in were that the women consented and not only consented but continued to consent and seek him out following the alleged rapes. The evidence of his innocence and consent was overwhelming. Yet he was still convicted. That unpopular men, and it is only men, can be convicted of sexual crimes despite overwhelming evidence of innocence is a major concern.
    The second issue is that the women concerned were just as guilty of reprehensible behaviour as he was. It is quite clear they actively set out and were active partcipants who sought out the opportunity to use sexual opportunities as bribes to gain advantage over other women. That those who were equally responsible can at a future date legally destroy their partner in these actions without suffering any consequences shows an enormousdifference in the standards applied to men and women. Men are punished far beyond the crime committed while women who are equally as guilty suffer no consequences whatsoever.

    Lastly it may be a pedantic point but I don’t believe Weinstein was ever an employer of any of these women. He was someone who was very influential and could influence whether they were engaged to perform in major films.

  13. Nature abhors a vacuum.

    If a powerful man isn’t offering favors in return for sex, an ambitious young woman will come along and pitch the deal.

  14. You need a different example. Offering a bribe to a police officer is a criminal offense. The officer is committing one too.

    Sleeping with the boss to get ahead in the firm may be a violation of company policy, but it’s not a crime.

  15. The actions of Victoria police needs to be thoroughly investigated.
    It’s very clear that Victoria Police was out the get Pell from the outset.
    From starting an investigation without any complaints then advertising for complainants only to find a litany of hearsay and he looked sideways in the changerooms at me complaints, the police investigation was a bust. Until two years after starting Operation Tethering and complainant came forward with not one but two fantastic stories. Stories so improbable that the DPP twice refused to proceed with a prosecution. Not deterred, the Victorian Police charged Pell themselves via summons, forcing the case to court.
    The whole case stinks of Police corruption, I am convinced that the complainant was manufactured by the Police, the police banking on the strong public sentiment against Pell over the child abuse that occurred in the Catholic Church and the #metoo movement where the “victim” must be believed forged ahead with a prosecution that was at best improbable and worst complete fantasy setup by the Police to get their man. Even more scary is the man who headed the operation Shane Patton is now in line to be the next Police Chief Commissionaire of Victoria. How can Victorians trust the Police when such vital questions about Police behaviour go unanswered?

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