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George Pell sexual abuse trials and fresh investigation

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think positive Libra

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Joined: 30 Jun 2005
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PostPosted: Tue Apr 07, 2020 5:16 pm
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so he got away with it? hopefully he gets rightful judgement at the pearly gates - he can do a tight right and head down hill! its warmer there anyway!

for once David is exactly right - money gets you off

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Pies4shaw Leo

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PostPosted: Tue Apr 07, 2020 5:20 pm
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^ I think it is fair to say that the civil standard of proof ("the balance of probabilities", as distinct from "beyond reasonable doubt") will, even with the Briginshaw gloss, see him occupied in the County Court defending civil claims for some time, yet.
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stui magpie Gemini

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PostPosted: Tue Apr 07, 2020 5:21 pm
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Means, Motive and Opportunity.

Looking from the lens of the accused, I would not like to be convicted of a crime I didn't commit, based purely on the level of credibility an accuser can muster when I am able to provide what should be genuine reasonable doubt on one or more of those 3.

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David Libra

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Joined: 27 Jul 2003
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PostPosted: Tue Apr 07, 2020 6:30 pm
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Pies4shaw wrote:
David wrote:
Puzzled by this headline:

https://theconversation.com/how-george-pell-won-in-the-high-court-on-a-legal-technicality-133156

Quote:
How George Pell won in the High Court on a legal technicality


To my mind, and, I presume, most people’s, a legal technicality is something like a procedural error on the part of the prosecution, or some obscure law, that renders the whole case invalid. I don’t see how a rejection of a jury’s verdict (via a rejection of the Victorian appellate court’s decision to uphold it), can possibly be described as a "technicality", as opposed to a decision that strikes at the heart of the case’s merits.

(P4S, I’d be keen to hear your thoughts on this piece and whether you feel the authors’ characterisation of the ruling is accurate.)

I'm reluctant to engage in much detail with this because people seem to be focused on whether the decision is "right" or "wrong" according to their view of whether Pell "should" or "shouldn't" have been found guilty. By contrast, I am satisfied that the Court's decision is, in all relevant legal senses, incorrect, irrespective of whether Pell did or didn't do that of which he stood accused. Accordingly, I expect that what interests me and what interests the rest of you will pass like ships in the night.

That said, I've just seen your post and skimmed this piece. I don't know whether the language of "legal technicality" is apt or useful but I see that the author has, in substance, picked up the point I made in my reply to Jezza, immediately above.

Thus, the author writes:

[The Court] also found that despite the complainant’s credibility and reliability, the evidence of the witnesses required the jury, acting rationally, to have entertained a reasonable doubt as to Pell’s guilt.

It is difficult to reconcile this outcome with the fact this is exactly the conclusion the jury did make. The jury’s conclusion was further supported by the Appeal Court majority judgment’s careful and extensive evaluation of that same evidence.

The High Court has given claims about lack of opportunity an elevated technical legal status that outweighs the jury’s belief in the complainant’s testimony and their evident discounting of Pell’s claimed lack of opportunity. This appears perilously close to retrial by the court.

A jury found the cardinal guilty beyond reasonable doubt of five offences.

In doing so, the jury assessed the testimony and credibility of the complainant. They also considered the strength of the claims made by the cardinal about the timing of his whereabouts, who was with him at the relevant times and whether the offences could have happened.

The jury saw and heard all the evidence, in the context of the trial. It was their legal function to make this decision.

Careful analysis of the full reasoning of the High Court is required to fully assess it. But, for now, this extraordinary outcome is strange justice indeed.


That - in my respectful opinion - is why this case will be relegated to the status of a marginal-note in Australia's jurisprudence - every time an appellate court is presented with this authority in the future, the presiding judges are going to have to confine this decision to its facts because, otherwise, convictions will be at risk of being routinely overturned whenever there is a genuine contest of fact between credible witnesses.

Ultimately, the Court should not, in my view, have entertained the application. It routinely refuses to hear appeals from people who seem to have suffered the most egregious injustices on the basis that there is no sufficient point of general principle in issue. One can't help but wonder if it would have done so here if the case had concerned anyone of less celebrity or repute. Here, it seems to me, the Court has bent over backwards to find a point of principle to justify it entertaining the appeal and then has actually set about to re-try the case as if it were the jury. That isn't the High Court's job. It will, in my opinion, have to spend the next 20 or 30 years walking this one back.

Step away from the facts of this or any other case and ask yourself this question: "If (a) a jury preferred the evidence of the complainant to the evidence of all other witnesses; and (b) it was logically open to the jury to do so; and it is not the High Court's task to re-open a jury's assessment, precisely how could the High Court reach a decision rejecting the jury's conclusion?"

It may well be that the original conviction was incorrect. It is not the High Court's constitutional function to overturn incorrect verdicts. It's task is to declare the law. Yet, no point of principle was decided here, at all.


Thanks, that helps me understand the argument a little better. Seems there should be some mechanism for appealing High Court decisions! I guess the merry-go-round has to stop somewhere, though.

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stui magpie Gemini

Prepare for the worst, hope for the best.


Joined: 03 May 2005
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PostPosted: Tue Apr 07, 2020 6:48 pm
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John Silvester, very experienced crime reporter for the Aged wrote an excellent article 12 months ago about the Pell conviction. This one is nearly as good.

https://www.theage.com.au/national/victoria/high-court-takes-the-high-road-on-question-of-passion-or-precedent-20200407-p54hwn.html

Quote:
Not since Lindy Chamberlain lost her baby to a dingo at Uluru 40 years ago has a criminal case so polarised the community as Cardinal George Pell’s arrest, conviction and acquittal.

Both camps say Pell has been treated differently. His supporters say he was targeted because he was a high profile Catholic while his detractors believe his perceived power influenced the seven judges at the High Court to quash his conviction.

Arrant nonsense. Passion is replacing legal precedent.

The decision to overturn the Pell conviction is not about what happened inside St Patrick’s Cathedral in 1996 but what admissible evidence was available to prove what happened inside St Patrick’s Cathedral in 1996.

The High Court found that on the evidence put to the jury it should have found there was reasonable doubt. It did not find that Pell didn’t do it, nor that the complainant was a liar. It found there was sufficient doubt to demand an acquittal.

To overturn a jury decision is a huge call as it is the basis of the trial system. To do so means the High Court found the conviction a massive miscarriage of justice that had to be righted.

This was not one man’s word against another. In a criminal trial the allegation must be proved and without compelling corroboration it is simply impossible.

And that is the system. All crimes, no matter how heinous, are treated equally. Terrorism is an international scourge. So, do we drop the evidentiary bar there? Make it 70 per cent sure rather than really sure. Or better yet, don’t have any trials at all.

The system works because the accused is judged on the evidence, not on the nature of the crime. The system works because the courts make decision on the basis of the law not on the basis of popularity. We demand beyond reasonable doubt even in unreasonable crimes.

In the court of public opinion Pell would get life, which is why judges are appointed and not elected – to do their job without being swayed by external noise.


People are not found guilty because we want them to be found guilty.

Pell presided over a church that failed dismally to protect the vulnerable, covered up crimes and shifted paedophile priests to areas where they could continue to offend. Internationally the Catholic Church destroyed the lives of thousands of its own followers. If there is a God, then they will be called to account.

None of that is remotely relevant to whether Pell molested two boys (one who has since died) 24 years ago.

Between the accuser's version and the accused’s version is the no-man’s land that is reasonable doubt. The prosecution must find evidence other than the complainant’s testimony to prove guilt. In the Pell case it did not exist.


The police record on these cases is lamentable. For many years rather than do their job there was a key group of senior police who actively sabotaged prosecutions against priests and tried to destroy the careers of the officers brave enough to stand up to them.

In recent years there has been a shift. Police are told they should believe complainants in sex crimes, particularly historical ones. These days they have a joint welfare and investigatory role.

Sometimes that can come at the cost of objectivity.

Surely a prosecution can only be justified when three measures are met: 1) Was there a crime? 2) Do we know the identity of the offender? And 3) Can we prove it?


The standard has always been, is a conviction more likely than not? The standard has never been that the victim has a right to their day in court, or let’s give it a run and see how it goes.

The trouble with these sort of cases is there are always problems. A lack of corroboration, forensic proof and accurate memories.

Sometimes that can be overcome by finding multiple victims that establish a pattern. In the Pell case there was only one who could give evidence.

In a bid to find justice for victims who have been ignored we risk damaging the very system we trust to deliver it.

There is pressure to leave it to the courts rather than say to a victim, “I believe you, but we just don’t have the evidence.”

This is a two-tiered justice system where sex crimes are treated differently. There are plenty of murder cases where police are convinced, they know the identity of the killer but lack corroboration and charges are not laid. Who decided that sex crimes are different?

Prosecutions have been launched in historic sex crimes without compelling corroboration. Tuesday's quashing of Pell’s conviction may bring an end to those sort of cases.

The High Court decision will be deeply unpopular to many and devastating to the many victims of the Catholic Church.

But it was the right one.

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Pies4shaw Leo

pies4shaw


Joined: 08 Oct 2007


PostPosted: Tue Apr 07, 2020 7:15 pm
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^ I am really very tired, indeed, of people who have no idea what the job is expressing a view about whether the Court got it "right" or "wrong". His comments are ignorant and stupid. He can have any view he likes about the outcome. He can offer, it would seem, no intelligent view at all about the Court's process.
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Pies4shaw Leo

pies4shaw


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PostPosted: Tue Apr 07, 2020 7:28 pm
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David wrote:
Thanks, that helps me understand the argument a little better. Seems there should be some mechanism for appealing High Court decisions! I guess the merry-go-round has to stop somewhere, though.

Yes. It always has - in the old days, it was with the Privy Council, now with the High Court. The High Court usually doesn't take up such trivial cases (the only important thing about this case was the defendant). This decision is just an outlier made on an appallingly bad day for the Court.
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stui magpie Gemini

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PostPosted: Tue Apr 07, 2020 7:28 pm
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And how is it that, with respect, a contract lawyer can offer significant insight into the High Court's workings on a Criminal case?
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Pies4shaw Leo

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PostPosted: Tue Apr 07, 2020 7:30 pm
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That might not just be a smart-arse comment if there was any difference at all in the way special leave and appellate process is handled in the High Court as between civil and criminal cases.

Cheap shot. Put the pop-gun away now, Stui.
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stui magpie Gemini

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PostPosted: Tue Apr 07, 2020 7:35 pm
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Wasn't intended as a cheap shot nor a smart arse remark.

Sorry you incorrectly interpreted it that way.

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Tannin Capricorn

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PostPosted: Tue Apr 07, 2020 8:34 pm
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stui magpie wrote:
And how is it that, with respect, a contract lawyer can offer significant insight into the High Court's workings on a Criminal case?


Not nearly as much experience or insight as a bloke who works in the pay office, obviously.

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stui magpie Gemini

Prepare for the worst, hope for the best.


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PostPosted: Tue Apr 07, 2020 8:46 pm
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Tannin wrote:
stui magpie wrote:
And how is it that, with respect, a contract lawyer can offer significant insight into the High Court's workings on a Criminal case?


Not nearly as much experience or insight as a bloke who works in the pay office, obviously.


Really? I thought you worked with a chainsaw these days. How did you end up in a Pay office?

If by some chance that was intended as a slap at me, it is seriously misguided for 2 reasons.

Firstly, people who work in payroll are more valuable than lawyers, they actually achieve something, they get people paid.

Secondly, I've never worked in the pay office in my life. I did for a time have a pay office reporting into me, along with a number of other "offices" but now I have zero to do with them.

But by all means, feel free to provide your critique of the article I posted, by a well credentialed long term crime reporter who certainly does have a clue what he's writing about

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Wokko Pisces

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PostPosted: Tue Apr 07, 2020 9:41 pm
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David Libra

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Joined: 27 Jul 2003
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PostPosted: Tue Apr 07, 2020 10:08 pm
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As the editor of a film magazine, all I can say is I’ve watched more fictional courtroom scenes than any of you*, and boy do those judges love banging that gavel!

*probably not actually true

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Tannin Capricorn

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PostPosted: Tue Apr 07, 2020 10:34 pm
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I read that article when it first came out and, like you, found it persuasive. However, when it comes to matters of law, I'll listen first to a contributor who has formal training in the field and a lifetime of experience.

Yes, it was a slap at you. Or rather, it was in defence of the poster you were disparaging so unfairly. (Not that he needs me to defend him, he's long since out of short pants.)

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