Published9 June 2018
Published22 May 2018
Published5 February 2018
Published31 January 2018
Published12 January 2018
Published21 March 2015
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.’
Martin Cohen said…I think the presumption of innocence is particularly important with events so far off and subject to distorted memories and recall. In particular, witness evidence is even more prone to confused recollections than shortly after the event, while someone who is accused will have great difficulty defending themselves with regard to what “they did” when (if innocent) they can hardly be expected to remember much. Ironically, a guilty person has much more reason to remember events and be able to produce a coherent but false narrative…
Indeed, “the presumption of innocence is particularly important with events so far off and subject to distorted memories and recall…”. And now there is a fresh abuse allegation against Cardinal Pell which has come just after his acquittal – alleged to have taken place over 40 years ago “back in the 1970s”.
In our complex societies, we ‘prioritise the principles of social life’, as Yves Simon put it. Together with procedures which support those principles, this removes passions and prejudices as the basis for the system — rather artificially, one might add.
I asked myself how plausible it is that someone should bring false charges against a Cardinal. Does that really happen? Indeed it does, and it has been proved. See The Australian, ‘Cardinal George Pell convicted for a lacklustre display of empathy,’ by Angela Shanahan. Which is not to say that all charges are false, including those where there is acquittal.
This past week, my neighbour was taken from his home and jailed. When we checked, the police had failed to follow Standard Operating Procedure. For instance, they failed to ask him for a statement, and it looks as though there wasn’t a valid statement against him. Here is an example of what happens where passions and prejudices are allowed any room.
“I asked myself how plausible it is that someone should bring false charges against a Cardinal. Does that really happen? Indeed it does…”
Yes, indeed it does. In the case of the Southampton football manager Dave Jones, falsely accused of abusing his children [recounted in his autobiography ‘No Smoke, No Fire’ – 2009], the police were forced to ‘trawl’ in prisons to find inmates to come forward to back up the accuser’s story. The presiding judge – Judge David Clarke – concluded: “No doubt there will be people who are going to think there is no smoke without fire. I can do nothing about that except to say such an attitude would be wrong”
The Bell Tower is situated immediately adjoining the Queen’s House. The tower was constructed to reinforce the defensive wall of the inner bailey and was built during the late twelfth century, making it the second oldest tower after the Norman White Tower and may have been built on the orders of King Richard the Lionheart (1189-99).
The Bell Tower derives its name from the small wooden turret situated on top of the tower which contains the Tower’s ‘curfew bell’, used to inform prisoners given the liberty of the Tower that it was time to return to their quarters. Today it is sounded at 5.45pm each day, to warn visitors that the Tower is about to close.
Several famous prisoners were held in the Bell Tower during Tudor times, including Sir Thomas More, Bishop John Fisher and the Princess Elizabeth. More and Fisher were sent to the Tower by Henry VIII for their refusal to subscribe to the Act of Supremecy, which made the monarch Head of an English Church which was divorced from Rome. The situation had arisen through Henry’s desire to divorce his first wife, Catherine of Aragon to enable him to marry Anne Boleyn. The Pope could not grant Henry the required annulment, as Catherine’s nephew, Charles V, the powerful Holy Roman Emperor and King of Spain held him in his power.
The brilliant Sir Thomas More (pictured), King Henry VIII’s Lord Chancellor and the author of Utopia, spent a period of incarceration in the Bell Tower. The staunchly Catholic More refused to take the Oath of Supremacy and swear allegiance to the King as Supreme Head of the Church in England for which on 17th April 1534, he was imprisoned in the Tower.
At first, More’s imprisonment was not overly harsh. His family were allowed to bring drink and warm clothing, and his wife Alice and daughter, Margaret Roper, were allowed to visit him. However as More continued to refuse to be persuaded to sign the oath, the fire in his cell, then his food, warm clothing, books and writing implements were all removed. On 1st July 1535, More was tried at Westminster, charged with high treason and sentenced to death. More was executed on Tower Hill on 6th July, 1535. He is buried in the nearby tower chapel of St. Peter ad Vincula.
Imprisoned in the Tower on 16th April 1534, the Catholic martyr John Fisher, Bishop of Rochester, is believed to have been lodged in the Upper Bell Tower, directly above More’s lodgings.
Fisher was the only English bishop who had refused to take the Oath of Supremacy, although captive in the same tower, they communicated by means of messages delivered by their servants. The Pope promised to create Fisher a cardinal, to which the enraged Henry famously declared that Fisher would have no head to wear his cardinal’s hat on. Bishop Fisher’s trial took place on 17th June, he was found guilty, and executed on 22nd June 1535.
Princess Elizabeth (the future Elizabeth I) also suffered a term of imprisonment in the Bell Tower at the age of 21, during the reign of her elder sister Mary I. Suspected of underhand involvement in the Wyatt Rebellion, Elizabeth was arrested and taken to the Tower of London by boat, landing at Traitors Gate, the princess angrily proclaimed that she was no traitor. During a heavy down pour of rain, Elizabeth had no choice but to enter the Tower. She passed under the arch of the Bloody Tower where she may have seen, across the inner ward, the scaffold left over from the execution of Lady Jane Grey, who was also implicated in Wyatt’s Rebellion.
In the spring of 1571, Baillie was about to leave Flanders with copies of a book by the bishop of Ross in defence of Queen Mary, which he had got printed at the Liège press, when Roberto di Ridolfi, the agent of Pope Pius V, entrusted him with letters in cipher for the queen, and also for the Spanish ambassador, the Duke of Norfolk, the Bishop of Ross, and Lord Lumley. They described a plan for a Spanish landing on Mary’s behalf in the eastern counties of England. As soon as Baillie set foot on shore at Dover, he was arrested and taken to the Marshalsea. The letters were, however, conveyed in secret by Lord Cobham to the bishop of Ross, who, with the help of the Spanish ambassador, composed other letters of a less incriminating nature to be laid before Lord Burghley, Queen Elizabeth’s chief advisor.
The scheme might have been successful had Burghley not made use of a traitor, named Thomas Herle, to gain Baillie’s confidence. Herle described Baillie as “fearful, full of words, glorious, and given to the cup, a man easily read”. Herle had also gained the confidence of the bishop, and a complete exposure of the whole plot was imminent when an indiscretion on Herle’s part convinced Baillie that he was betrayed. He endeavoured to warn the bishop by a letter, but it was intercepted, and Baillie was conveyed to the Tower of London, where he refused to read the cipher of the letters, and was put on the rack. The following inscription, still visible on the walls, records his reflections inspired by the situation: “L. H. S. 1571 die 10 Aprilis. Wise men ought to se what they do, to examine before they speake; to prove before they take in hand; to beware whose company they use; and, above all things, to whom they truste. |— Charles Bailly.”
One night, the figure of a man appeared at Baillie’s bedside. He claimed to be John Story, whom Baillie knew to be in the Tower awaiting execution. In reality the figure was that of a traitor of the name of Parker, but Baillie fell into the trap with the same facility as before. On Parker’s advice he endeavoured to gain credit with Burghley by deciphering the substituted letters of the bishop of Ross. He revealed also the story of the abstracted packet, and sought to persuade Burghley to grant him his liberty by offering to watch the correspondence of the bishop of Ross. That he gained nothing by following the advice of his second friendly counsellor is attested by an inscription in the Beauchamp Tower as follows: ‘Principium eapientie Timor Domini, I. H. S. X. P. S. Be friend to no one. Be enemye to none. Anno D. 1571, 10 Septr. The most unhappy man in the world is he that is not pacient in adversities; for men are not killed with the adversities they have, but with ye impacience which they suffer. Tout vient apoient, quy peult attendre. Gli sospiri ne son testimoni veri dell’ angolcia mia, aet. 29. Charles Bailly.’
On 4 April 1945, the diaries of Admiral Wilhelm Canaris, head of the Abwehr, were discovered, and in a rage upon reading them, Hitler ordered that the Abwehr conspirators [those who had plotted for Hitler’s assassination] be destroyed.
Bonhoeffer was led away just as he concluded his final Sunday service and asked an English prisoner, Payne Best, to remember him to Bishop George Bell of Chichester if he should ever reach his home: “This is the end—for me the beginning of life.”
Bonhoeffer was condemned to death on 8 April 1945 by SS judge Otto Thorbeck at a drumhead court-martial without witnesses, records of proceedings or a defense in Flossenbürg concentration camp. He was executed there by hanging at dawn on 9 April 1945, just two weeks before soldiers from the United States 90th and 97th Infantry Divisions liberated the camp, three weeks before the Soviet capture of Berlin and a month before the surrender of Nazi Germany.
Bonhoeffer was stripped of his clothing and led naked into the execution yard where he was hanged, along with fellow conspirators Admiral Wilhelm Canaris, Canaris’s deputy General Hans Oster, military jurist General Karl Sack, General Friedrich von Rabenau, businessman Theodor Strünck, and German resistance fighter Ludwig Gehre.
Eberhard Bethge, a student and friend of Bonhoeffer’s, writes of a man who saw the execution: “I saw Pastor Bonhoeffer… kneeling on the floor praying fervently to God. I was most deeply moved by the way this lovable man prayed, so devout and so certain that God heard his prayer…In the almost fifty years that I worked as a doctor, I have hardly ever seen a man die so entirely submissive to the will of God.”
Bonhoeffer’s life as a pastor and theologian of great intellect and spirituality who lived as he preached—and his being killed because of his opposition to Nazism—exerted great influence and inspiration for Christians across broad denominations and ideologies, such as Martin Luther King Jr. and the Civil Rights Movement in the United States, the anti-communist democratic movement in Eastern Europe during the Cold War, and the anti-Apartheid movement in South Africa.
Bonhoeffer is commemorated in the liturgical calendars of several Christian denominations on the anniversary of his death, 9 April. This includes many parts of the Anglican Communion, where he is sometimes identified as a martyr.
Officials in Gdansk have ordered the removal of a monument to a Catholic priest linked to the Solidarity movement amid accusations that he was a paedophile, as the country’s bishops take new steps to combat clerical abuse.
“We’ll probably never know the truth, since this key figure is no longer alive,” explained Aleksandra Dulkiewicz, Gdansk’s newly elected mayor.
“While I value the presumption of innocence principle, there can only be one decision, given the current level of emotions.”
The mayor spoke as the city council voted to demolish the statue of Fr Henryk Jankowski (1936-2010), an associate of Lech Walesa and other Solidarity leaders, who was rector of Gdansk’s St Brygida parish during the 1980’s strikes at the nearby shipyards.
The vote, also stripping the priest of his honorary citizenship, was boycotted by officials from Poland’s governing Law and Justice party (PiS) and criticised by Solidarity members, who said the accusations against Fr Jankowski were unproven.
Besides celebrating shipyard Masses during the Solidarity protests, Fr Jankowski organised aid for families of imprisoned union activists, but provoked complaints from Jewish organisations for controversial sermons after the 1989 collapse of communist rule.
He was finally dismissed as St Brygida’s rector by Archbishop Tadeusz Goclowski, who told clergy in a 2004 letter that Fr Jankowski had created “an unChristian climate”, while stoking “alarming media suspicions” by “receiving boys in his presbytery”
However, the priest told supporters he would not give in to “lies, hypocrisy and infamy”, and continued living in his parish house until his diabetes-related death aged 74.
The statue of Fr Jankowski, erected in a square named after him by a civic committee in 2012 [he died in 2010 – Ed], was toppled overnight in late February by a group complaining that it represented “a presence of evil in the public sphere”. This took place two months after abuse accusations were detailed against Fr Jankowski in the Gazeta Wyborcza.
Although the statue was restored to its plinth under Solidarity protection, Gdansk council noted during its meeting that legal investigations into the priest’s alleged crimes would be impossible in the current atmosphere, and ordered its removal and the renaming of the square.
The move came as Poland’s 157-member bishops’ conference launched an abuse report at its plenary assembly, attended by the Vatican’s Secretary of State, Cardinal Pietro Parolin, and bishops from 11 other countries.
The report listed 382 cases of sexual abuse between 1990 and 2018, and said canonical procedures had been followed by the Church in 95% of instances, with three-quarters brought to completion.
However, it conceded that there had been “a certain ignorance” of Church rules on abuse, and there were “differences of reliability” between Polish dioceses and orders, in responding to enquiries.
THE TABLET – LETTERS – MARCH 16 2019 – “PIUS XII WAS NO FRIEND TO HITLER”
In his article “Unsealing the secrets of the wartime pope” (9 March), John Cornwell writes: “The central accusation is undeniable: that … Pius neither condemned Hitler and the Nazis by name, nor mentioned the victims – the Jews – by name.”