What does the High Court’s unanimous verdict upholding George Pell’s appeal against his conviction mean for the complainant, who was found to be a credible witness? How well does the criminal justice system serve those who suffer sexual abuse as children, asks Matthew Ricketson?
There is a famous legal principle, usually attributed to eighteenth-century English jurist William Blackstone, “It is better that ten guilty persons escape than that one innocent suffer.” How does that sit with historical cases where a cleric is accused of child sexual abuse?
Ascertaining child sexual abuse to the required standard of proof in a criminal trial — beyond reasonable doubt — is difficult. Three years ago the Royal Commission into Institutional Responses to Child Sexual Abuse released a 628 page report about the effectiveness of the criminal justice system in child sexual abuse cases; it listed four significant impediments:
- It is one person’s word against another’s. “Child sexual abuse offences are generally committed in private. Typically, there are no eyewitnesses to child sexual abuse offences. Often there will be no medical or scientific evidence capable of confirming the abuse….If the accused denies the complainant’s allegations then the criminal justice system is left with a ‘word against word’ case”.
- Willingness to proceed. The importance of the complainant’s evidence “puts a particular focus on elements of the criminal justice system that are difficult for victims and survivors, who are required to give accounts of the most personal and intimate details of the abuse and to be challenged on those accounts in cross-examination. It also makes support for victims and survivors particularly important”.
- Lengthy delays: “Many survivors take years, even decades, to disclose the abuse they suffered. They may need counselling and psychological care before they feel able to report the abuse to police and more support before they are willing to make a statement and agree to participate in a formal investigation. The delay can make it harder for them to give sufficient details of the abuse. It may also make an investigation more difficult”.
- Especially vulnerable witnesses: “Where there is no lengthy delay and the abuse is reported fairly soon after it occurred, the victims may be young children, who are particularly likely to face difficulties in giving evidence and being cross-examined. Where the victim is a person with disability which affects their ability to give evidence, they are also likely to face particular difficulties”.
They could have added that it is often the word of one person against another who is backed by a powerful, respected institution.
These problems came to mind after the High Court unanimously decided earlier this month to uphold George Pell’s appeal against his conviction for child sexual abuse. The judges found the charges against Pell had not been proved beyond reasonable doubt and that a significant possibility existed that an innocent man had been convicted. They didn’t assess the credibility of the complainant, identified only as Witness J in proceedings, as it was outside their role but the jury in the Supreme Court trial, following extensive cross-examination of J by Robert Richter QC, and two of the three judges in the court of appeal, did find him a credible and reliable witness.
Acquitted of the charges, Pell has spoken about his five year experience of the legal system in an interview with Andrew Bolt on his eponymous Sky News program. Urged on by his conspiracy-breathing interviewer, Pell took solid aim at the Victoria Police for “advertising for business” and “trawling” for complainants, and at the ABC for “betraying the national interest” by presenting a one-sided view of his case. He reminded viewers that the ABC is partly funded by Catholic taxes.
Asked about the complainant’s motivation, Pell said he didn’t know what it might be and wondered if the complainant had been used by someone. “Not even a credible witness can be in two places at once,” he said, pointing to a problem in the timing underpinning the complainant’s description of the alleged offences, before adding, “Something might have happened [to him] in some other place and it’s transferred to me. I don’t know what the poor fellow was up to.”
For his part, the complainant released a statement saying he accepted the High Court’s verdict. “I understand why criminal cases must be proven beyond all reasonable doubt. No one wants to live in a society where people can be imprisoned without due and proper process. This is a basic civil liberty.”
It is indeed, and few would advocate reversing Blackstone’s legal principle. If you want to see what that looks like, recall former American vice-president Dick Cheney’s trenchant support for torturing suspects after the 9/11 terrorist attacks. In an interview on NBC’s Meet the Press after the US Senate’s report on torture was released in 2014, Cheney was unfazed by the finding that 25 per cent of those detained by the CIA turned out to be innocent. “But the problem I have was with all of the folks that we did release that end up back on the battlefield,” he said. “I’m more concerned with bad guys who got out and released than I am with a few that in fact were innocent… I’d do it again in a minute.”
Where, on the other hand, does the High Court’s verdict leave witness J, not to mention victims and survivors of child sexual abuse who might have been considering legal action? An unfortunate element of the Pell trial is that a single case has been conflated with the whole issue of the Catholic Church’s mishandling and suppressing of child sexual abuse by clerics, in much the same way that the case against Hollywood film producer Harvey Weinstein has carried the burden of all those identifying with the #MeToo movement.
As Jeremy Gans showed recently in Inside Story, criminal trials are not good arenas for airing and debating complex issues, and the patchy success of various legal actions brought in Australia by women accusing men of sexually harassing them backs up that point. But the key difference is that Pell has been a central, controversial figure in the debate about how the Catholic Church in Australia responded to allegations of clerical abuse of children.
Sections of the royal commission’s final report that have been redacted until legal actions against Pell have concluded are likely to be published now at the direction of federal attorney-general Christian Porter. When that happens, the royal commission’s findings about Pell’s role will be known. He told Andrew Bolt that he would be surprised if “there are any bad findings against me,” though the ABC’s Louise Milligan, author of an award-winning book about Pell, is among those who believe that the commission is likely to make several adverse findings against Pell.
The capacity of the criminal justice system to provide justice for complainants as well as for the accused has been the subject of intense study and debate. Bret Walker SC, who represented Pell in the High Court, told Radio National Breakfast that the issue may indeed be complex but that the criminal justice system should not be changed for child sexual abuse cases. “It’s never to be forgotten that in a murder case, the victim’s dead and can’t give evidence, and there are often no direct witnesses to a murder,” he said. “The best protection is that we preserve the onus on the prosecution to prove a case beyond reasonable doubt.”
The best protection for whom? There is a chasm between the “countless thousands of children” the royal commission judged to have suffered sexual abuse in institutions and the low rate of convictions, whether historical or current.
In her doctoral research on Victorian cases, Judy Courtin, a lawyer and victims advocate, reported the finding of a 2004 Victorian Law Reform Commission (VLRC) study that “it is estimated that about 10 per cent of child sexual assault victims report their crimes to the police. Of these reports, there was a 6.5 per cent conviction rate.” This low conviction rate partly reflected “a very high attrition rate — 80 per cent of cases before trial, mostly due to complainants withdrawing their case.”
Responding to the VLRC’s report, the Victorian government introduced a raft of reforms to the criminal justice system, including: amending legislation to clarify jury directions about consent and delay in reporting; setting up specialist sex offences lists in the Magistrates’ and County Courts; providing CCTV, screens and support people for child witnesses, and creating Sexual Offences and Child Abuse Investigation Teams (SOCIT’s) within Victoria Police.
Judy Courtin’s PhD research, published in 2015, found that despite the attention and substantial effort put into improving the system, “it appears that not much has changed in terms of reporting, attrition and conviction rates”.
Courtin was one of many who made submissions to the royal commission during the years it ran, from 2013 to 2017. She argued those who suffer abuse remain “tethered” witnesses. “To more comprehensively address the justice needs of victims of institutional sexual and other abuse, and especially the finding of the truth, a far greater degree of victim participation in criminal trials is imperative,” she writes. “The role of the victim needs to be augmented from that of a ‘protected witness’ to that of a ‘participating witness,’ in which the victim can exercise agency, express the impacts of the crimes and meaningfully participate in decision-making throughout the criminal trial.”
The royal commission, in its report on the criminal justice system, found that many survivors of sexual abuse felt the system was weighted in favour of the accused. “Some survivors who have participated as complainants in prosecutions have told us that they felt almost incidental to the criminal justice system and that they had little control over matters that were very important to them.”
Material provided to the royal commission from a range of sources including academic researchers and the Australian Bureau of Statistics (ABS) showed that in cases of child sexual abuse reporting rates continued to be lower, attrition rates higher, charging and prosecution rates lower and there were fewer guilty pleas and fewer convictions.
Citing statistics across a range of offences for New South Wales in the period 2012–16, the royal commission reported a conviction rate for illicit drugs was 94 per cent, for robbery 73 per cent, for assault 70 per cent and for child sexual assault, 60 per cent.
The rate for child sexual assault is lower than for other categories of offence but not dramatically. The 60 per cent conviction rate, however, is only for matters that have been decided in “a defended hearing” in court. It does not include those that were abandoned or not prosecuted.
In its final report, the royal commission grappled with the adversarial nature of the criminal justice system. The first of its eighty-five recommendations was that the criminal justice system needed to be reformed so that it “operates in the interests of seeking justice for society, including the complainant and the accused” — an explicit acknowledgement that it hadn’t done so in the past.
The commissioners noted that historically an accused person had the right to remain silent in their trial and for the onus of proof to be on the prosecution; these were seen as a necessary balance to the resources that could be mustered by the state against an individual. Their recommendations were aimed at providing a range of support and encouragement to complainants, many of which focused on how police procedures for dealing with allegations could be made less foreboding and more solicitous of the complainant’s needs.
Whatever the shortcomings of the adversarial system, the commissioners did not want to change its core elements. “While increasing recognition is given to the interests of victims and the community, the fairness of the criminal proceedings for the accused will always be of central importance. An accused person is entitled to the presumption of innocence, and the primary role of the criminal proceedings is to establish the guilt of, or to acquit, the accused”.
It is probably too early to tell whether the royal commission’s recommendations — made in 2017 and largely accepted by the federal government the following year — have improved the criminal justice system’s handling of child sexual abuse cases, according to Professor Judy Cashmore, who has published widely on these issues and was among those who prepared research reports for the royal commission.
Her most recent academic article was published earlier this year in Child Maltreatment. It analysed historic data, from 2003 to 2016, but Cashmore, along with her co-authors, Professor Patrick Parkinson and Dr Alan Taylor, still felt able to describe child sexual abuse as a crime “widely recognised by police, prosecutors and legal commentators as one of the most difficult crimes to investigate and prosecute. It is a crime that is almost always committed in secrecy and without witnesses. The main evidence, and in many cases the only evidence, is the child’s account of the offense. Children may be unwilling to disclose the abuse or have difficulty recounting the events. Delays in reporting are common, and many victims do not report it until well into their adult years.
“There have been consistent and strong concerns across jurisdictions about the attrition of cases as they move through the system. Research over several decades in Australia, Canada, England and Wales, Scotland, and the United States indicates that when complaints of child sexual abuse are reported to the police, only a small proportion result in prosecution and conviction, with a substantial drop-off at each stage of the criminal justice process.”
Michael Bradley, a lawyer and commentator for Crikey, is one of those who argue that child sexual abuse cases should be tried not according to the adversarial legal system but instead using inquisitorial methods. “The emphasis would shift from a one-side contest of proving guilt on a legal standard, to a singular focus on getting to the truth. In that type of system, all parties have the same role: to assist the court to get to the bottom of the matter, and determine what actually happened.”
Under the inquisitorial system, a person accused of a crime of sexual violence retains the presumption of innocence and is only convicted once an allegation is proved beyond reasonable doubt. But they are “stripped of their right to remain silent. They would be obliged to respond; to tell their side of the story, to face cross-examination, to have their credibility tested alongside that of their accuser.”
The inquisitorial system has its critics as well as adherents; it is possible to support some its elements – removing the accused’s right to silence – in child sexual abuse cases while not extending it to other parts of criminal justice administration. Cashmore argues it is necessary “to find some alternative approaches that satisfy the needs of complainants for a less delayed and difficult process and also protect the rights of those who are accused”.
As is well known, George Pell exercised his right to remain silent at his trial and, for that matter, his right to speak out publicly once his appeal was upheld. If some thought that looked unseemly, provocative even, well Pell has been an ardent culture warrior for decades.
Which brings us back to Witness J, who in his limited public statements has shown himself to be anything but a culture warrior. “I would hate to think that one outcome of this case is that people are discouraged from reporting to the police. I would like to reassure child sexual abuse survivors that most people recognise truth when they hear it. They know the truth when they look it in the face. I am content with that.”
It’s to be hoped that his words spur those responsible for the criminal justice system to find a way to give victims and survivors the justice they deserve. Otherwise, Blackstone’s dictum may need to be rephrased to describe how the system deals with child sexual abuse cases: “It is better that ten innocent victims suffer than that one guilty man escapes.”
- Call 1800 RESPECT (1800 737 732) for confidential information, counselling and support on sexual assault, domestic or family violence and abuse. You can chat online and find services in your area.
- Kids Help Line – 1800 55 1800 – Australia’s only free, private and confidential, telephone and online counselling service specifically for young people aged between 5 and 25.
- Lifeline – 13 11 14 – Anyone across Australia experiencing a personal crisis or thinking about suicide can contact Lifeline.