Category Archives: Presumption of Innocence

“PELL DECISION SHOWS THE LEGAL SYSTEM IS WORKING, BUT IT IS NOT THE RIGHT SYSTEM”

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https://www.mondaq.com/australia/trials-appeals-compensation/927696/pell-decision-shows-the-legal-system-is-working-but–it-is-not-the-right-system

In freeing George Pell, the High Court did not change the law. It did not render jury trials meaningless. That is so, whether you agree or disagree with the factual conclusion it reached after imposing its own opinion about the evidence in place of the jury’s in Pell’s trial.

The court did, however, plant a flag firmly in the sand. Its emphatic declaration, made with the full force of seven judge unanimity, was this: the criminal law of Australia makes no special allowances for allegations of historical sexual violence against children. Sexual violence, whenever it happened, however frequently and insidiously and whoever were its victims, will be treated no differently from any other category of crime.

This is the watershed moment for our society. The highest court has confirmed, definitively, the status quo of the law. A person, powerful or not, accused of a sexual crime, is entitled to the identical protections as any criminal defendant. These are the presumption of innocence; the protection of the prosecution’s burden of proving guilt beyond reasonable doubt; and, most critically, the right to silence.

We knew this already, but now we can’t ignore it. The questions it leaves are these: are we content to continue with a criminal justice system which makes it almost impossible for victims of sexual violence, particularly those who come forward many years later, to see their perpetrators convicted? Is it satisfactory that most victims will never come forward at all, because they can see that it will be they who are put on trial?

These are uncomfortable questions. They are rooted in fact. Sexual crimes are massively under-reported; complainants are inevitably retraumatised by the criminal justice process; convictions are incredibly difficult to secure. None of these facts engage a conspiracy theory about the rich and powerful. They’re plain, incontrovertible facts.

If this is not okay, then we are wasting our time arguing over the minutiae of the movements of Monsignor Portelli on any given Sunday at St Patrick’s Cathedral. The system that ultimately freed Pell worked, within the parameters by which it has operated since it was invented. There was doubt, sufficient for the High Court anyway, and the conviction could not stand.

So forget that system; it doesn’t work. Not because the High Court got it wrong, but because the system’s design does not fit crimes of sexual violence, especially those committed by perpetrators exploiting a position of trust or authority.

Personally, I do not think the problem is with the criminal standard of proof. Beyond reasonable doubt is an extremely high hurdle, but it should be. Nobody should be punished for a crime if it is not satisfied.

Nor is the presumption of innocence the wrong way around. Like many advocates, I start from the position of believing every complainant who alleges sexual violence. It doesn’t follow, however, that the accused person should have to prove their innocence. Most assaults occur without witnesses or unequivocally damning forensic evidence, and the benefit of doubt must still fall in favour of not putting innocent people in prison.

I think the root of our problem is the adversarial justice system itself. There are many other issues — cultural, educational, police training, rules of evidence and the drafting of sexual violence laws. But what goes wrong at a fundamental level is the reality of who is on trial.

In the adversarial system, the burden is entirely on the prosecution to prove guilt. The accused has no obligation to play any role at all in their own trial, beyond pleading that they are not guilty (they don’t even have to declare their innocence). After the plea, they can sit back and let the prosecutor rip. If they can manage to raise a reasonable doubt and the prosecution can’t find a way to defeat it, then acquittal must result. And they can get there without saying a word.

Pell took that course, as was his right. He did not give evidence at his own trial; his version of events has never been revealed. All we know is what he said at a press conference, rather than under oath: that the crimes never happened.

No criticism of Pell; he was entitled to take that course and it ultimately succeeded for him. But there is an alternative we could consider.

If, instead of the adversarial system, we adopted an inquisitorial one, then the emphasis would shift from a one-side contest of proving guilt on a legal standard, to a singular focus on getting to the truth. In that type of system, all parties have the same role: to assist the court to get to the bottom of the matter, and determine what actually happened

In such a set-up, a person accused of a crime of sexual violence would maintain the protection of the presumption of innocence and still could not be found guilty except beyond reasonable doubt, but they would be stripped of their right to remain silent. They would be obliged to respond; to tell their side of the story, to face cross-examination, to have their credibility tested alongside that of their accuser.

Before the howls of outrage begin, remember two things: first, what victims consistently say is that they want to feel heard. That does not happen when the only person being questioned, tested, challenged and disbelieved, throughout the entire process, is them. A justice process that causes more trauma to the victims it means to protect is not just.

Second, what I said before. What we have doesn’t work. Unless we don’t particularly care about delivering justice for the legions of victims of sexual violence among us, then something has to fundamentally shift.

If it ain’t broken don’t fix it? Well, it’s broken.

We do not disclaim anything about this article. We’re quite proud of it really.

AUTHOR(S)

Michael Bradley
Marque Lawyers

POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from Australia

George Pell not guilty of child sexual offences, High Court finds

Sydney Criminal Lawyers

The justice system has worked effectively in finding insufficient evidence to find him guilty beyond reasonable doubt.

“The battle against corruption is very important, but it can’t come at the expense of the battle for human rights and the right of defendants. We have to educate ourselves as a society that a person cannot be penalized before he is convicted by a court. A presumption of innocence is one of the most important principles of criminal law”

~ Prof. Menachem Mautner, a leading expert on Israel’s constitutional law and the author of a book on Liberalism in Israel

 

“At the core of this basic premise of human rights is that every person accused of a crime is presumed to be innocent unless and until his or her guilt is established beyond a reasonable doubt. The idea of innocence is not dialogue written for a series based on the law. It is law.  It is the job of the accuser, or the prosecutor, to prove that the crime was committed.  That the accused is guilty of committing that crime”

~ Jacquie Kubin

 

“In America, everyone who is accused of a crime has the right to be presumed innocent.  It’s also true that accusations of criminal behavior are investigated. That should be done with every case of sexual harassment, sexual abuse, sexual assault, or rape.  Every single one.  It starts with believing the survivor, but does not end there.  To suggest that believing them means convicting the accused overlooks legal protections beginning with the presumption of innocence and going on to the right to confront your accuser and evidence offered and so on.

Me Too became a thing because mostly privileged men pretty much had immunity from prosecution for rape and other sex crimes.  Then we saw some high profile convictions, such as those of Bill Cosby and Harvey Weinstein.  Jeffrey Epstein was awaiting trial he died in prison.  The survivors in all these cases had to fight decades just to get their day in court.

And yet, as Christine Pelosi pointed out in a thread on Twitter, the process for investigating alleged sexual misconduct by members of the Senate or the House is broken.

– Adalia Woodbury

“THE LEGAL CASES OF CARDINAL GEORGE PELL AND BISHOP GEORGE BELL ARE VERY DIFFERENT, BUT THERE ARE PARALLELS WHICH CANNOT BE IGNORED – SUCH AS THE CRITICAL IMPORTANCE OF PRESUMPTION OF INNOCENCE IN THE ENDLESS QUEST FOR JUSTICE AND FAIRNESS” ~ Richard W. Symonds

“The legal cases of Cardinal George Pell and Bishop George Bell are very different, but there are parallels which cannot be ignored – such as the critical importance of Presumption of Innocence in the endless quest for justice and fairness”

Richard W. Symonds – The Bell Society

April 20 2020 – “Cardinal Pell: Natural and Inalienable Rights” – ‘Philosophical Investigations’

 

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Monday, 20 April 2020

Cardinal Pell: Natural and Inalienable Rights

by Richard W. Symonds

The Church of St Cyriac, Lacock, by GB_1984

The principle of the presumption of innocence is of extreme importance, and the case of Cardinal George Pell has implications for the respect for—and security of—this principle.That one is considered innocent until proven guilty is a vital pre-condition for our survival and well-being within a civilised society. Undermining such jurisprudence can lead to catastrophic miscarriages of justice which ultimately threaten our humanity—in fact, yours and mine.

The accused is not required to defend or prove their innocence—it is for the accuser to prove guilt—beyond reasonable doubt. It is one of the foundational legal principles—a bedrock of our civilisation: ‘The burden of proof is on the one who declares, not on one who denies’. Or Ei incumbit probatio qui dicit, non qui negat in the ancient Latin.

Presumption of innocence is a legal right of the accused in a criminal trial, and an international human right embodied under Article 11 of the UN Universal Declaration of Human Rights.

A just law must be a fair law, which punishes the guilty, not the innocent. Presumption of innocence is an immunity against unjust accusations.

In the case of Cardinal George Pell, a disturbing and dislocating miscarriage of justice has been exposed within Australia’s justice system—and presumption of innocence was almost lethally compromised and undermined.

A basic history of events—a timelined chronology if you will—would help:

• July 16 1996 — Bishop George Pell is appointed Archbishop of Melbourne. A former choirboy later testifies that the bishop molested him and his friend—both aged 13—in the vestry of St. Patrick’s Cathedral in Melbourne that year, after Mass.
• March 26 2001 — Archbishop Pell becomes Archbishop of Sydney.
• October 21 2003 — Pope John Paul II makes Archbishop Pell a Cardinal.
• February 25 2014 — Pope Francis appoints Cardinal Pell as his Finance Minister — Prefect of the Secretariat for the Economy.
• April 8 2014 — One of the choirboys dies aged 31, of a heroin overdose, without alleging the molestation by Pell, in fact telling his mother he had not been abused by Pell.
• August 5 2014 — Victoria police establish a task force to investigate how religious and other non-government organizations [NGO’s] deal with abuse accusations.
• June 18 2015 — The surviving choirboy gives his first statement to the police, claiming sexual abuse by Cardinal Pell.
• December 23 2015 — The Victoria Police task force appeals publicly for information relating to allegations of sexual abuse while Cardinal George Pell was Archbishop fo Melbourne.
• March 1 2016 — Cardinal Pell testifies by video link from Rome, to the Australian child abuse inquiry. Pell is critical on how the Church has dealt with paedophile priests in the past, but *denies he had been aware of the extent of the problem.
• October 19 2016 — Victoria police go to Rome to question Cardinal Pell, who hears details of the choirboy’s abuse allegations against him for the first time.
• June 29 2017 — Police charge Cardinal Pell with multiple counts of historical sexual abuse. This makes him the most senior Catholic cleric to be charged in the Church’s abuse crisis. Pell denies the accusations and takes leave of absence from the Vatican to return to Australia to defend himself.
• July 26 2017 — Cardinal Pell makes his first court appearance on charges that he sexually abused multiple children in Victoria decades earlier. Details of the allegations are not made public. Pell vows to fight the allegations.
• May 1 2018 — A Magistrate commits Cardinal Pell to stand trial. He pleads not guilty to all charges.
• May 2 2018 — A Judge separates the charges into two trials; the first dating to his tenure as Archbishop of Melbourne, and the other when he was a young priest in Ballarat during the 1970’s.
• December 11 2018 — The jury unanimously convicts Cardinal Pell on all charges in the Melbourne case.
• February 26 2019 — A suppression order forbidding publication of any details about the trial is lifted. Prosecutors abandon trial on the Ballarat charges.
• March 13 2019 — The judge sentences Cardinal Pell to six years in prison, on five sex abuse convictions, in which he must serve 3 years and 8 months before he is eligible for parole.
• August 21 2019 — Victoria Court of Appeal rules 2–1 to uphold the convictions, but there is ‘stinging dissent’ by that Court’s leading criminal law expert.
• The High Court, Australia’s top court, in an unusual procedural move, agrees to hear Cardinal Pell’s leave to appeal, and his actual substantive appeal, concurrently.
• April 7 2020 — All seven judges of the High Court of the Australian Court of Appeal quash the conviction of Cardinal George Pell. In a volte-face, they unanimously agree the appeal has succeeded, dismiss all convictions, and release Cardinal Pell immediately—after he spent 13 months in high-security prisons. 

In overturning the jury’s decision of December 2018, the seven High Court judges said the jury, ‘acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted’.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’. The High Court referred to what it called ‘the unchallenged evidence of the opportunity witnesses’ at the 2018 trial, which suggested there was cause for doubt.

This case has attracted world-wide attention for good reason.

What lies at the heart of our justice system is Lord Sankey’s ‘golden thread’ which runs through criminal and common law: Guilt must be proved by the accuser’s prosecution beyond any reasonable doubt. This undoubtedly did not take place in before the High Court judges intervened this April 2020 to make just the injustice.

It is better many guilty go free rather than one innocent is wrongly convicted and jailed for a crime they did not commit.

The Cardinal is entitled to be presumed innocent because that is what the Presumption of Innocence is all about—innocent until proven guilty.

Beware the spirit of the age. Alan Ryan, a professor of politics at Princeton University, sounded the alert thirty-two years ago: ‘Natural and inalienable rights to life, liberty and the pursuit of happiness have fallen into disrepute, along with a faith in reason and reason’s dictates.’

Comments 8

Peter Hitchens

April 21 2019 – Peter Hitchens on Liberty, Justice and the decline of the Jury – and the Presumption of Innocence

Excerpt

In 1907, when the English Court of Criminal Appeal was first set up, there were warnings that it would undermine the authority of the jury, since it could overturn a guilty verdict (though not an acquittal). And it is easy to see why some defenders of juries were worried. A principle can be undermined from more than one direction. But as it happened, the danger to juries came from a different source—from the increasing egalitarianism of society itself, and the resulting politicization of so many trials. Judges became less elitist and more political, as did prosecutors. The sexual revolution created a whole new class of crimes, and created a whole new set of procedures to try them. It granted anonymity to accusers, a change that met with surprisingly weak opposition. 

I did not really understand the force of this until I found myself unexpectedly defending the long-dead Bishop George Bell against ancient charges of child sex abuse. Bishop Bell could not be tried because he was deceased. But the Church of England’s treatment of his case very much reflected the new arrangements. He was more or less presumed guilty. His unnamed accuser was designated a victim and a “survivor,” not an alleged victim, before any inquiry began. The procedure that adjudged him guilty, in private, did not follow the presumption of innocence and made no serious effort to discover if there was a defense (there was). I found to my shock that an inaccurate claim—that he would have been arrested if alive—persuaded many apparently fair-minded, educated, and intelligent people of his guilt, though an arrest is evidence of nothing at all. Thanks to some truly dedicated and determined work by many selfless people, and some very good legal work as well, the thing was more or less set right. But a grudging Church of England has yet to make full restitution. 

So when I saw the case in Australia against Cardinal George Pell, it was not just the similar name that aroused my interest. I knew from a recent visit to Sydney that Australia had undergone an anti-religious revolution. I knew very well how powerful allegations of child abuse had been in weakening the Church. My instincts were to believe that George Pell, who behaved like an innocent man, had been wrongly accused. But what if this was just bias? I sought to keep an open mind. I would presume the cardinal was innocent, but would not let my Christian sympathy close my mind to serious evidence against him. I had taken the same view in the Bell case. I resolved at the beginning never to be afraid of the truth. If the evidence against George Bell was convincing beyond reasonable doubt, then I would have to change my view of a man whose brave and selfless actions I had much admired. I would have to accept that the world was a bleaker, worse place than even I had feared. I knew well enough that there were pedophile priests. The same had to apply to Cardinal Pell. 

And then a strange silence fell over the trial. I know that there were valid legal reasons for this silence, but it still seems to me that some way should have been found for a case of such moment to be heard openly and reported openly, while it was going on. When Pell was convicted, I felt I had to accept the verdict because I was in no position to dispute it, and had not heard what the jury had heard. But the whole sky darkened at the news. If such a man was guilty of such a filthy thing, and a jury had agreed upon this after a fair trial, then the forces of goodness were in rapid and frightening retreat.   

And then, amid the dismal suppression of freedom and the economic lunacy now gripping the world, came a sudden shaft of light. The High Court of Australia overturned the verdict and freed Cardinal Pell. And then I read what they had said. It was startling and disturbing, not because there was any ambiguity in it, but because of something else. A court statement declared, 

The High Court found that the jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted, and ordered that the convictions be quashed and that verdicts of acquittal be entered in their place.

 The judges ruled: 

On the assumption that the jury had assessed the complainant’s evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the applicant’s guilt in relation to the offences involved in both alleged incidents. 

This seems to me to be a very polite way of suggesting that the jury did not entertain that reasonable doubt. I may be very grateful that the High Court took this view, because it seems to me that justice was done when George Pell was freed. But will there always be such High Courts, and will most people be able to reach them? In this egalitarian world, in which a series of inglorious revolutions has wholly changed the nature of justice, I am not sure that the old English jury is much of a defense anymore. And I cannot begin to say how sad this makes me.

Peter Hitchens