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Dear Shadow Minister,

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Thanks for posting that interesting article by John Ferguson, associate editor of "The Australian". Because of the paywall, I was unable to access the full article but read most of it on the Australian Catholic Bishops Conference website, “CathNews”.

I fully agree that George Pell’s case puts our legal system on trial – not just at the state level as the article suggests – but at all levels, the whole hierarchy of our national judiciary, from top to bottom. Nothing should be excluded, no stone unturned.

In addition to the anomalies mentioned in the article, the ease with which Cardinal Pell obtained “special leave” from the High Court to appeal his jury conviction of paedophilia smacks of elite privilege – a sentiment reinforced by his subsequent acquittal not accompanied by an order of a retrial (which might have been expected under the circumstances).

With its pathetically low conviction rate of 13%, our criminal justice system for sex-related crimes is in an advanced state of calcification. Its inefficiency is notorious and a dissuasive factor in the reporting of sex crimes. The scales of justice are so heavily weighted in favour of the perpetrators that the majority are never convicted. It has been estimated that about 80% of sex crimes are never even reported to the police.

The problems are well known :

• Lack of material evidence
• No eyewitnesses
• Impossibility to prove lack of consent
• Most cases boil down to “my word against yours”

The Pell case highlighted the basic criminal trial rules :

1. Presumption of innocence
2. Right to silence of the defendant
3. Onus of proof on the prosecution
4. Proof defined as “beyond a reasonable doubt” (at least 95% certainty)

Given the gravity of the potential consequences for the defendant in criminal trials, the highest degree of proof (“beyond a reasonable doubt”) is indispensable in respect of all criminal charges, including charges of sex crimes.

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But given the special nature of sex crimes, there should be no presumption of guilt or innocence of either defendant or plaintiff. Nor should the defendant have the right to remain silent throughout the trial (as Cardinal Pell did). After all, it is the defendant who is on trial, not the plaintiff. The Pell case gave the impression it was the plaintiff, not the defendant, who was on trial. The defendant should be required to relate his version of events and be cross-examined by the prosecution if so required.

Plaintiff and defendant should be treated on an equal footing. Neither should be advantaged. The onus of proof should rest equally on both.

In its present form, our criminal justice is neither neutral nor fair in the manner in which it processes and judges sex-related crimes. Justice has been denied to far too many innocent victims far too long. The Pell case clearly illustrates the need for reform.

A federal parliamentary inquiry into our criminal justice system regarding sex-related crimes would be an appropriate first step in the right direction.

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Banjo,

You seem to have a feeble grasp of the judicial system, Special leave to appeal is given in cases of serious judicial error and as such is seldom given. In this case the dissenting appeal judge clearly stated that the evidence was not sufficient given that it was based solely on the evidence of a single involved witness. That it was granted is an indictment on the two appellate judges and the trial judge. In non legal terms it was a monumental cock up.

Secondly, while you are happy to throw out the basic foundations of justice for sex crimes, why not for murder, then attempted murder, fraud, etc.

Where sex crimes are immediately reported the conviction rates are far higher. The problem is that several decades later there is often no evidence. The answer is to convince victims to come forward at the time not to set up kangaroo courts.

Shadow Minister, so all you've got on the Greens is a bloke from 2012 who as I understand it was questioned and released some years later when he was not a party member. Please mister apologist is George Pell your endearing Catholic also a member of the Liberal Party like you?

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Dear Shadow Minister,

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You wrote :

1. « Special leave to appeal is given in cases of serious judicial error and as such is seldom given. In this case the dissenting appeal judge clearly stated that the evidence was not sufficient given that it was based solely on the evidence of a single involved witness. That it was granted is an indictment on the two appellate judges and the trial judge. In non legal terms it was a monumental cock up.»
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That is not what the law says, Shadow Minister :

[ Judiciary Act 1903 – Sect. 35A of the Commonwealth Consolidated Acts states as follows :

[Criteria for granting special leave to appeal :

[In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:

[ (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:

[ (i) that is of public importance, whether because of its general application or otherwise; or

[ (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

[ (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates. ]
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Also, Cardinal Pell’s application to the High Court was registered on 13 November 2019. There were 22 applications registered that day. They were all dismissed except Cardinal Pell’s application. It’s an odd coincidence but there’s no explanation as to why Cardinal Pell and nobody else was granted “special leave” to appeal to the High Court.

Here is the list of applicants:

http://cdn.hcourt.gov.au/assets/registry/special-leave-results/2019/13-11-19_Determinrevised2.pdf

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2. « … while you are happy to throw out the basic foundations of justice for sex crimes, why not for murder, then attempted murder, fraud, etc»

Australia’s homicide rate has been regularly declining for the past 30 years. It is a third of what it was 30 years ago. There were only 203 homicides in 2017. Whereas the number of sex crimes has been regularly increasing. There were 26,312 reported sex crimes in 2018.

It is estimated that about 80% of all sex crimes are not reported. The real number is closer to 125,000.

Fraud is an economic crime and while it occurs in epidemic proportions, it is not comparable to “crimes against the person” that are the most serious crimes in criminal law. Homicide, rape, assault and battery are all crimes against persons. These violent crimes have the potential to incur the heaviest punishment dealt out by criminal law, including the death penalty in some countries.

Sex crimes are among the most serious crimes. They are extremely numerous, constantly increasing and, for the reasons I indicated in my previous post, our justice system is totally unadapted to handle them.
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3. « Where sex crimes are immediately reported the conviction rates are far higher. The problem is that several decades later there is often no evidence. The answer is to convince victims to come forward at the time not to set up kangaroo courts »

That’s correct, Shadow Minister but, unlike other major crimes, very few victims report sex crimes immediately to the police for various reasons, in particular :

• the offender is a family member, friend, acquaintance, or priest

• vulnerable people (including minors and handicapped people) are too traumatised

• 87% of sex offenders are acquitted by the courts

• victims are punished twice : by the crime and by the judgment (they are stigmatised as vicious liars).

The ABS indicates that in 2018 :

• half the victims were aged between 10 and 19 years

• 84% were female

• 65% were assaulted at a residential location

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