Accusation as Proof: Uncorroborated Historic Sexual Abuse Allegations
Professor Dennis J. Baker, University of Cambridge, Cambridge
This paper examines the potential miscarriage of justice upheld in the Supreme Court of Victoria in Pell v The Queen. Firstly, the alibi evidence produced by the defence team was sufficient to make the probability of Cardinal Pell not having an opportunity to perpetrate the crimes a real issue. Once an alibi had been made an issue the Crown had to prove beyond reasonable doubt that there was no probability above 15 per cent that Cardinal Pell had an alibi — not rely on the defence submission that there was a 100 per cent probability of no alibi because of impossibility. The evidence at a minimal demonstrated that the alibi was at least probable: even a conservative estimate would allow a fact-finder to safely conclude that there was 35 per cent probability that Cardinal Pell could not have been alone with the complainant. It might be difficult to argue that it was more probable than not that Cardinal Pell had an alibi, but the evidence shows that the probability of Cardinal Pell having a valid alibi was too high (even if short of a 50 per cent probability) for the reasonable doubt standard of proof to be satisfied. Secondly, there was at a least 35 per cent probability that second sexual attack alleged by the complainant could not have been perpetrated in the circumstances described by the complainant. Thirdly, Ferguson, C.J. and Maxwell, P. did not apply the beyond reasonable doubt standard to these probabilities. Instead, they erroneously held that since what the complainant had alleged could possibility have happened as described by the complainant the Crown had proved beyond reasonable doubt that these things did happen. This was to misinterpret and misapply the law concerning the quantum of proof required in criminal cases. The fact that there was a real possibility that what the complainant alleged could have happened does not prove that there was an 85 per cent an above probability that it did happen, which is what the beyond reasonable doubt standard requires. It requires such strong evidence that any objective fact-finder reviewing the evidence would 85 times out of 100 conclude that they are sure that the person is guilty.
In this paper, I want to examine the issue of proof raised by the recent appeal to the Supreme Court of Victoria in Pell v. The Queen. 1 Following decades of child sex abuse scandals and the emerging culture of “accusation is proof,” some campaigners have argued for legal reforms to increase the number of convictions. The Guardian newspaper has reported that the Children’s Commissioner for England “has suggested lowering the burden of proof in cases of child sex abuse to the civil standard of balance of probabilities.”2 A balance of probabilities standard of proof would lead to many wrongful convictions. Given the current culture of accusation is proof, might the law now be powerless to prevent some innocent people from being convicted?
If accusation by convincing storytelling is all that is needed as proof in historic sex offences cases, then criminal justice risks adopting an approach of it is better to convict a few innocent people than let one guilty person go free. A convincing raconteur might convince even the most seasoned professionals of his or her lies. Carl Beech superlatively demonstrated the power of convincing storytelling when he convinced senior police, journalists, MPs, lawyers and others that Sir Edward Heath, Lord Bramall and Harvey Proctor MP, among others, committed sex offences against him when he was a child. Remarkably, the police said his allegations were credible and carried out an investigation over many years ruining the lives and distinguished careers of some of those who were subject to the false allegations. Politicians (including the current Deputy Leader of the Labour Party),3 journalists, police and other MPs all took his claims as very credible.4