A BLIGHT ON THE WHOLE CRIMINAL JUSTICE SYSTEM

Many powerful compelling pieces have been written attacking and deploring Cardinal Pell’s conviction for the sexual abuse of two minors. Noteworthy are Keith Windschuttle’s and Andrew Bolt’s demonstration that the alleged abuse was impossible given the complainant’s timeline. In his article below, retired lawyer Anthony Charles Smith raises frightening questions about Australia’s legal system and the competence of those on the bench. Like many others, he points out that the Pell conviction shows nobody is safe in Australia at the moment. The article appeared in the September issue of Annals Australasia.

A BLIGHT ON THE WHOLE CRIMINAL JUSTICE SYSTEM

By Anthony Charles Smith

I am not a Roman Catholic and don’t write this from any religious perspective but rather these days as a retired barrister very troubled by the charging and conviction of George Pell.

I spent nearly thirty years of my working life at the Bar to 2013, a substantial quantity of that practice was as a defence barrister. I have read the particulars of the allegations against the accused Cardinal George Pell and the circumstances in which they were made. I have also read Frank Brennan’s analysis of the evidence presented at the trial. I have read opinions on the trial such as that of the left-wing barrister Greg Barns and the author John Silvester in “The Age”. I have read the relevant portions of the Court of Appeal’s majority judgment and the dissenting judgment. I have also read Paul Kelly’s lengthy article in the “Weekend Australian” following the decision of the Court of Appeal.

In the 1980s and early 90s, I say without the slightest hesitation that these allegations would have been given short shrift by competent, experienced Crown Prosecutors. They lack any corroboration, are fanciful beyond rational belief and contain within them internal inconsistencies of an irreconcilable nature as to time, opportunity, practicality, place and circumstance.

To contemplate that approximately twenty years after the alleged offending, a complainant came forward following an advertisement by the police about St. Patrick’s cathedral defies every tenet of the maintenance of purity in the criminal justice system. That unprecedented process aligned the police with complainants whereas they must have a degree of separation in order to afford fair trials.

In advance of this debacle, in my legal experience, a political change developed in the late 80s and has continued up to this date when it comes to allegations of a sexual nature. Certain mandatory common law judicial directions, seen as protections for a fair trial, such as warning the jury that,”… it’s dangerous to convict on the uncorroborated evidence of a complainant”, that,”…allegations of a sexual nature are the easiest to make and the hardest to refute”, and “…in complaints of a sexual nature experience has shown that complaints are sometimes made for a reason and other times for no reason at all which is why the evidence of a complainant must be carefully scrutinised…” and the importance of “fresh complaint” (absent in most cases these days) have been abrogated by Statute. This despite the fact that due to the introduction of State-sponsored criminal compensation schemes (let alone church compensation packages and extending Limitation periods for civil actions), there are in modern times reasons of a financial nature that could prompt the making of such complaints.

These warnings were developed over hundreds of years by the common law not based on prejudice one way or the other but on actual experience. Underpinning them is Blackstone’s time-honoured dictum that it is best for ten guilty persons to go free than that one innocent suffers. The more so, as will be seen below, where prominent individuals and publicity are concerned.

In this case there was, for some years leading up to and at the time of his trial no more publicly vilified figure in Australia than Cardinal George Pell. At the outset, the question then had to be asked, ‘How could he get a fair trial?’ Experience in the United Kingdom involving allegations against Cliff Richard and prominent politicians bears out the need to be cautious rather than jumping in and accepting every allegation. It has happened in this country and elsewhere in common law jurisdictions.

As an example, here, after convincing the Canberra police her abuse occurred and her allegations of its continuance true and seeing her boyfriend incarcerated as well as ruining the lives and finances of his loyal parents, Sarah Jane Parkinson finally admitted a long and calculating calendar of false rape and abuse complaints against her ex-partner and his family. She is in jail at this moment for those crimes.

A notorious UK example is Carl Beech. He was recently sentenced to 18 years imprisonment for perverting the course of justice over several years of false complaints. He fooled many people with his bizarre allegations against Ted Heath and many other prominent politicians including Lord Brittan who died before his name was cleared. He fooled the Chief Constable of the London Metropolitan police. That organisation spent over two million pounds investigating his malevolent claims. The Deputy Leader of the Labour Party Tom Watson was a proud supporter and promoter of Beech’s ‘unimpeachable credibility’, as were many others including the BBC. Beech was described by the sentencing judge as: “…an intelligent, resourceful, manipulative and devious person who accused persons of the highest integrity of vile acts.” Who could doubt it? He received over $50,000 in ‘compensation’ for the ‘perversions’ committed upon him.

Historically, criminal trials were always conducted openly so as to allow the general public to see that the justice system is functioning properly and treating defendants fairly. The presence of interested spectators was thought to keep the judge, jury, and courtroom staff mindful of their responsibilities and actions. Of especial importance, the public nature of a trial made proceedings known to potential witnesses. Furthermore, existing witnesses were considered less likely to make false testimony at a public tribunal, in the presence of not only the court, but also members of their community.

The nineteenth century legal philosopher, Jeremy Bentham, in a passage embossed upon jurisprudence, stated: ‘Publicity is the very soul of justice…’ and U.S. Supreme Court Justice Louis Brandeis coloured it further with, ‘Sunlight is the best disinfectant.’

In The Queen v Pell, the proceedings were held in camera thus denying an accused the right to have material broadcast that might uncover other witnesses. Of course, that can cut both ways but so be it to maintain the purity of the streams of justice. Against this statutory, political and legal background, I found in the 90s and thereafter defending clients, predominantly, though not entirely, men accused of historical sex offences, had morphed into an inversion of the venerable onus of proof and thereby debrided the standard of proof required.

Thus, when a trial started and the Crown opened, my client had an evidentiary onus to rebut a presumption that had arisen that he was guilty despite every warning to the contrary, (viz. ‘all complainants must be believed’). Then, if he wasn’t a good witness, as most defendants, even competent lawyers, aren’t, it became a ‘toss-up – who do we believe’ scenario rather than, ‘if there is any doubt whatsoever, that is if having weighed the evidence, you as a jury retain a reasonable doubt, your absolute duty is to acquit.’

And another notorious fact is that many complainants are very persuasive especially in historical sex abuse cases. Just think of it for a moment: how much more articulate are people as they mature? That doesn’t necessarily mean that they are lying about the past, but it can mean in cases of false complaints that they might be far more compelling. The worst example in my practice almost gutted me coming near the end of my time at the Bar before serious heart disease struck me down.

It involved a professional man who was accused of raping his young daughter. Just before the trial commenced, the Prosecutor approached me acknowledging that his case was, “weak” and offered a deal whereby if my client pleaded to indecent assault, he would most certainly have avoided prison. To his eternal credit, my client rejected this offer out-of-hand and was subsequently convicted. Two appeals, tens of thousands of dollars and three trials later had him exonerated of all charges. Indeed, by the third trial the Crown offered to drop the charges, but he insisted on a public exoneration by a jury. They finally delivered it. For his protestations of innocence of any offending, he spent three years in Long Bay Jail, lost his good name and livelihood and of course his family.

In the case of The Queen v Pell, the accused had little prospect of getting a fair trial before a jury. I have never seen a clearer illustration of pre-judgment than was there demonstrated. An avalanche of adverse publicity, a Royal Commission, even a book judging his guilt, led up to his day in court. Two juries have heard this case. The first couldn’t agree on a verdict. The second took five days to reach one. Three judges considered the evidence. Two said a guilty verdict was not unreasonable and one said it was both unreasonable and inconsistent with the evidence. On that history, any call for no more debate or for silence of those who might be minded to heed Justice Weinberg’s powerful dissent seems to be, by inference, premised on the basis that there was only a slight probability of a gross miscarriage of justice, which the first jury’s impasse and Weinberg’s analysis far from suggest. And never forget Lindy Chamberlain.

Juridical evisceration of the majority judgement by professor emeritus Oxford University John Finnis AC, QC, warrents a brief evaluation of the judges’ criminal law experience. Their experience of the criminal law is starkly limited. The Chief Justice wasn’t even a practising barrister and never conducted a jury trial for the defence. Maxwell was a competent civil barrister without criminal trial pedigree. When measured against Weinberg’s profound knowledge and experience of the criminal law, there is simply no comparison. This shows in the approaches of the respective judgments; a meticulous analysis by Weinberg of the evidence and on the other hand a focus by the majority on demeanour and persuasiveness of the complainant.

In my opinion, the administration of justice is now in absolute disrepute in respect of this case. The precedent set is too terrible to contemplate. It’s nothing short of a blight on the whole criminal justice system. What I further ask is, who will be next in line, irrespective of the outcome of any application for Special Leave to the High Court? No one is immune from suffering under this kangaroo process; not me and not any friends, nor my four sons and two grandsons. I fear for them. I fear for our society.

And in this accusatory milieu, we would also do well to heed the warning of a celebrated 19th century judge Knight-Bruce V-C who wrote: ”’Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much.”

All my working life I have fought for justice, especially at the frontline of jury trials and for the underdog. There were three instances in my professional career in which I felt terrible injustice was done to my clients, one of which I have mentioned above. They all paid severely for it. Yes, it is true that some who committed offences were acquitted. No right-thinking person wants that to happen but that is the price for securing a trial that is fair and doesn’t have people trying to prove their innocence. In historical sex abuse cases, subtly, the onus of proof has been reversed and the prejudice in some notorious cases is insurmountable.

The worst I have ever seen is The Queen v Pell. It curdles my stomach. The evidence, looming as so weak and bordering on the preposterous, may have induced Pell’s defence team into raising the “impossibility list”, thereby undertaking an evidentiary task that has no place for an accused and thus accepting, sub silentio, a reversal of the onus of proof. Pell may have unwittingly set out to prove impossibility in the various respects. In such a case, the whole process could have become flawed and misconceived. Justice miscarried.

Aside from that, the question remains, why have we rushed into a minefield wearing dark glasses?

One answer I suggest is that there exists a political and quasi-political milieu out there with a powerful, almost overwhelming voice. At times it behaved like a sinistrous mob baying for Pell’s blood as head of the Catholic Church in Australia. Its influence is ubiquitous even sullying a media which should always be sceptical. Together, they, like a frenetic posse in an old-fashioned western, had the rope in their saddle bags and were willing to hang the nearest likely-looking customer, no questions asked.

The words of Thomas Paine come to mind especially as the context of this matter has Pell aligned with past sins of the Catholic Church and individual priests, (a tiny minority, indeed much fewer per capita than the Uniting Church) thereby regarding his conviction as justifiable on that account alone and forget all else:

‘He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach up to himself.’

ANTHONY SMITH was a marine engineer before being admitted to the Bar in 1982. He practised law as a private barrister between 1983 and 2013. Mr Smith is now a writer. His first novel. Deeply With The Sun In Our Eyes will be published by Aurora House later this year. He and his wife Anna live at Ferny Hills in Qld.