Witness of truth
In the matter of George Pell v. The Queen, “Justice Maxwell and I accepted the prosecution’s submission that the complainant was a compelling witness, was clearly not a liar, was not a fantasist and was a witness of truth.” That is how Justice Ferguson of the appellate court in Victoria, following the prosecution, describes George Pell’s accuser. Not as “a truthful witness,” but as “a witness of truth.”
It is an interesting expression, especially in this context; for Pell is a cardinal of the Catholic Church, which purports to know and give witness to the truth. The truth here, according to his accuser, the prosecution, the second jury, and the two justices in question, is that he is a violent sexual abuser; indeed, a vile sexual deviant (can we still say that?) and, by implication, a blasphemer of his own Catholic faith and of its chief sacrament.
With this judgment, Operation Tethering has now come to a successful conclusion, unless and until the High Court intervenes to cut the tether. Cardinal Pell, a man for whom the police sought out a crime, rather than a man arrested to answer for a crime they were trying to solve, is back in jail where he belongs. He will serve out his sentence. He will bother no one in Rome or at the Vatican Bank any further. And he will help satisfy the local lust, indeed the international lust, to proclaim the truth about the vileness of the Catholic Church.
High-fives all round, then. Except for Justice Weinberg, of course, who carefully examined the facts, examined his conscience, and declared that he must stand by his dissent—a dissent that in point of detail and in force of reasoning puts the majority opinion in the dock and finds it anything but compelling, no witness to truth. But who will read Weinberg’s 200 pages in dissent besides a few lawyers and dedicated Pellophiles?
Well, say I—not without apologies to the good judge for a framing at which he will doubtless cringe: let it be noted in my defence that I am exercising the liberty of a layman—I hope that many students of the law will read them. I even dare hope that many who care not one whit for Cardinal Pell, but do care about the law, will read them. I hope they will read the entire judgment and discover in it a certain disease of the law about which I will venture, even as a layman, to speak.
Ignoring the devil
This disease lies in erosion of the presumption of innocence; which is to say, of that fundamental common law principle that goes back to the Justinian code, expressed in the maxim Ei incumbit probatio qui dicit, non qui negat, which puts the burden of proof on the accuser not on the accused.
One major factor inducing this disease is the prevalence of sexual offences and our natural concern for the vulnerability of victims and distress at the advantages of offenders, especially powerful offenders like the ones that have been much in the news. Since most offences take place in private, not (as alleged in the Pell case) in public, it has become increasingly common to approach the testimony of a putative victim with a certain presumption of authenticity. Only a prima facie presumption, to be sure, but a presumption very much in tension with the presumption of innocence that has always attached to the accused.
This presumption of authenticity tends in turn to mitigate the requirement for corroboration. Uncorroborated testimony by the accuser is now deemed sufficient in some cases to warrant conviction of the accused. One senior jurist (not an Australian) tells me that “corroboration went away chiefly because most sexual assaults are committed in circumstances designed to be private and to evade detection.” Since justice requires a decision, “he said, she said” cases come down to credibility.
That being the situation, why do I speak of a disease? The presumption of innocence must be testable, as my interlocutor points out, and credibility may be the only means of testing available. Credibility was certainly at stake in the Pell case. Two of three judges found the accuser more credible than the accused—whose lawyers failed to put him on the stand: almost surely, in hindsight, a major mistake—and up to two-thirds of jurors likewise. What’s the matter with that?
Nothing, perhaps, if one approaches a case the way Justice Weinberg approached this one; viz., with patient, detailed examination of all the circumstance and testimonies. For, as he said, “the devil is in the detail” (par. 1101). At more than one place (see par. 639, for example, and fn. 222) Weinberg indirectly chides his colleagues for ignoring the devil.
A sure foundation
But why do they ignore the devil? And how do they justify ignoring the devil? It may or may not be true, but in any case it will not suffice, to say that the majority justices entertained some secret bias against the accused. That is an explanation to which some supporters of Pell (I do not say Pell himself) too quickly turn. Bias or no bias, there is, I maintain, a disease of the law that shows itself in the majority’s lack of concern for corroborating evidence, its neglect of exculpatory evidence, and its elevation of an existentialist “truth”—their own response to a witness—over objective facts that lie in the public domain.
Justice Ferguson again, answering the charge that the prosecution case rested on the mere possibility that Cardinal Pell had opportunity to commit the crimes in question: “The Crown case was not based on mere possibility. As the judge instructed the jury, mere possibility ‘is clearly not enough’. On the contrary, the prosecution argued that the account given by A was so obviously truthful that the jury could be satisfied, beyond reasonable doubt, that the events had occurred as he described them. A’s evidence was said to provide a sure foundation for guilty verdicts” (par. 149, emphasis added).
This answer is very telling. The presumption of authenticity that attaches to a “compelling” witness trumps the presumption of innocence that ought to attach to the accused. The uncorroborated testimony of a compelling witness, the “obviously truthful” testimony that requires no corroboration, permits the jury and the judges to set aside the reasonable doubt that arises not only from the contrary testimony of the accused—whose own credibility in this case was not critically examined—but also from the evidence mounted by the defence that what the prosecution called “possibilities” were nearer in fact to practical impossibilities.
This power to set aside is indicative, if I may say so, of a new legal fundamentalism in which “the ring of truth” (par. 86 and 91) makes unnecessary close examination of the salient facts, even though detection of that ring by its very nature is a subjective process. The operative corroboration at work here is the testimonium internum in the jurist’s own spirit.
Now, in the Church, I hasten to add, such subjectivity is highly appreciated. It is a connected to a posture of receptivity called faith. It is not viewed as mere subjectivity, because it is said to be grounded objectively in the work of the Holy Spirit who enables it and who also gives many other convincing displays of his presence and power by objective or external means. But here? Here we are indeed talking about something very close to pure subjectivity, about a mere “leap of faith.”
What Justice Weinberg criticized in his colleagues, ever so gently but with great cogency, was their refusal to test their subjective response to the accuser’s testimony by the internal and external contraindications that call it (and him) into question. The majority was beguiled by the complainant, and there was an end to it.
One does not need to question a sure foundation. If one does, it isn’t yet regarded as “sure.” But it was regarded as sure. “Both the content of what he said and the way in which he said it … appeared to us to be entirely authentic,” said Ferguson and Maxwell (par 94). And they proceeded from there to dispense quite summarily with the contraindications.
They acknowledged that “there was, of course, no witness who could independently verify any aspect of A’s account of the alleged assaults” (par. 95). They acknowledged that some aspects did seem rather far-fetched. But they were quite certain he was a witness of truth who spoke with the ring of truth, and that was enough. They could “readily picture two choirboys deciding on the spur of the moment to break away from the procession once the pressure of public performance at Mass was released, and venturing into an area which was strictly out of bounds.” Indeed, “the ‘swigging’ of the altar wine seems to us to be just the kind of thing which might occur in an adolescent escapade” (par. 110).
No need, apparently, even to ask why a lad so concerned with preserving his scholarship as to be altogether “focused on being, um, doing the right thing as a choirboy” would be sneaking off to drink communion wine in a very likely busy sacristy where “a horrible incident happened to me” (par. 92). A sure foundation is, after all, a sure foundation, and the majority justices were sure they had one.
That shifting burden
This subjective turn represents something more than a peculiar weakness in the majority opinion. It is a sign of a growing disease of law, of a contest—a quite astonishing and destructive contest, as the Pell case illustrates—between what I am calling the presumption of authenticity and the far more fundamental presumption of innocence.
Witness the shifting onus or burden of proof. Confusion about onus is rampant in the majority’s reasoning. At par. 129 they affirm that the onus is to remain on the prosecution “at all stages.” Quite so. But in the following paragraphs it shifts over and over again to the defence.
The prosecution, they say, “bore the burden of proving beyond reasonable doubt that the particular sexual acts took place.” Trouble is, the only “proof” the prosecution could offer offer was A’s testimony. Which had the ring of truth. Blessed with that ring there was little else the prosecution needed to do. It was the defence that would have to do something. It was the defence that would have to do almost everything.
The court’s reasoning is viciously circular. Over against A’s testimony, naturally, were Pell’s denials. “These were, plainly enough, emphatic denials.” Justice Weinberg, for his part, opined that they were also convincing denials. “It does not follow, however,” said Ferguson and Maxwell, “that they obliged the jury to have a doubt about A’s allegations.” “The jury had, of course, to give appropriate weight to the denials but it was of the very essence of their task—as it is in every contested trial—to decide whether the evidence led by the prosecution established the guilt of the accused, notwithstanding the denials” (par. 183). And what evidence was that? Never anything other or more, as Weinberg pointed out, than A’s uncorroborated testimony, which his colleagues deemed sufficient.
Once the circle is established by endowing the complainant with the ring of truth, the complainant can only be refuted by hard proof that his claims are quite simply impossible. Otherwise, for the defendant, the jig is up. It always was.
Pell’s counsel at the trial stage, Mr Richter, was roundly criticized for using the language of “impossibility,” an exaggeration that by raising the stakes ran the risk of actually lowering the state’s burden of proof, which is not to show that the offence was possible, or that it has not been proven impossible (there again is that shifting of onus), but to show beyond a reasonable doubt that it actually occurred. I suspect, however, that Richter’s exaggeration was not merely for rhetorical effect. Consciously or subconsciously, it may well have been a recognition of the inexorable logic of the circle. Where the ring of truth is invoked, only impossibility will do. And that, alas, was just beyond reach.
In evidence of the fact that the burden of proof had indeed shifted to the accused, and that only impossibility would do, I call Ferguson and Maxwell at par. 141: “It was never submitted by the defence—nor conceded by the prosecution—that an acquittal must follow if the opportunity evidence left open a ‘reasonable possibility’ that Cardinal Pell stayed on the steps at length after both Sunday Masses in December 1996.” Otherwise put, the prosecution did not have to prove beyond a reasonable doubt even opportunity to commit the crime, to say nothing of means and motive, etc. And the defence, even if it demonstrated a reasonable doubt that the opportunity existed—even if it demonstrated, as it did, the great unlikelihood that opportunity existed—got itself exactly nowhere. It was impossibility or bust.
Par. 151, though it speaks again of an onus on the prosecution, only underscores the point that, under the spell of the ring of truth, innocent until proven guilty has become guilty unless proven innocent. For the onus on the prosecution there goes no further than preventing the impossibility argument from succeeding.
The spell of the ring
Mr Richter seems in some measure to have fallen himself under the spell. At one point, we are told, he spoke thus to the jury: “What is on trial is A’s evidence and the extent to which you are prepared to accept it beyond reasonable doubt because it is his evidence, and it is his evidence not supported by other evidence, and that is something of considerable significance” (quoted at par. 118; emphasis added).
Really? Surely what was on trial, or rather who was on trial, was George Pell. A’s testimony was also on trial, yes, and should have been tried in the rigorous fashion of Weinberg rather than in the existential fashion of Ferguson and Maxwell. But it was on trial only and precisely because it impugned George Pell and in consequence threatened his incarceration. If we can forget, even for a moment, who primarily is on trial, we can also forget where the presumption of innocence applies (it applies to the accused) and where, conversely, the burden of proof lies (it falls squarely on his adversary).
And why was George Pell on trial? He was on trial because the prosecution brought charges on a solicited complaint from A in Operation Tethering, backed, as all agree, by no corroborating evidence whatsoever; and because the law now permits a prosecutor to do so and makes ample provision for his success in doing so by way of an exaggerated presumption of authenticity. That indeed is something of considerable significance!
Mr Walker on appeal, and especially Justice Weinberg in dissent, demonstrated that it is possible to avoid the spell of the ring of truth and the trap of the sure foundation, to let reality and common sense intervene on behalf of the accused. It may be hoped that the High Court will do likewise. But unless, as Justice Weinberg argued in his own way, the very idea of a sure foundation—an idea that occurs in that phrasing but once, but which governs the whole decision—is clearly repudiated, to Cardinal Pell’s unsafe conviction will be added a great many others in years to come. Unless the presumption of innocence is reaffirmed, even in cases involving sexual crimes, your conviction or mine might be next.
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