A Certain Disease of the Law

One thing we’ve learned from the Cardinal Pell case is that unless the presumption of innocence is reaffirmed, even in cases involving sexual crimes, your conviction or mine might be next.

Cardinal George Pell gestures during an interview at the Vatican in file photo. (CNS photo/Robert Duncan)

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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About Dr. Douglas Farrow 8 Articles
Douglas Farrow is Professor of Theology and Christian Thought at McGill University, and the author, most recently, of Theological Negotiations: Proposals in Soteriology and Anthropology (Baker Academic, 2018).


  1. “…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.” Certainly, there was no “secret” bias. The bias was very public and is now obvious beyond any reasonable doubt. It has far more than the “ring of truth.” Far from turning “too quickly” to the issue of bias, we have not turned there quickly enough. The Australian court system is not a court of law, it is a Sondergericht pure and simple (you can google it. By that, I essentially mean a court where bias is not merely a factor, it is the one and only guiding rule, the one and only determining factor.) The High Court won’t go anywhere near this. Cardinal Pell will be miraculously lucky if he does not die in prison either naturally or by homicide, and I will not bet one nickel against the latter. Before that happens, the Vatican will laicize him. In 50 or 100 or 500 years, his clerical status will be posthumously restored. He may even be declared a saint. Until then, we best get back to our knitting.

  2. Devastating.

    The very pillars of our civilization are being undermined — the legal system, religion, the family, even language itself.

    It feels like we are approaching a dark point in human history.

  3. A certain disease of the law or a certain disease among the male clergy?
    The the archdiocese of Ballarat was a cesspool of pedophilic abuse. The church including Cardinal Pell covered up the abuse for years, shifted abusers around and protected them. Strategies of victim blaming and negating the claims of the abused where employed by the church. Of all the articles published here in The Catholic World Report relating to the conviction of Cardinal Pell that I have read, none mention the devastation the abuse epidemic in Ballarat, none have mentioned that Caredinal Pell’s denial of knowledge of the abuse, despite his role as Episcopal Vicar for Education in the Ballarat diocese, despite him living in the same house as the serial abuser Gerald Risdale, https://en.wikipedia.org/wiki/Gerald_Ridsdale
    In 1971 all male teachers at St Alipius Primary School where molesting children! And all you here can write about is your perception of injustice towards Cardinal Pell, your amplification of aspects of the trial that suit your argument and your refusal to acknowledge that the court process was stringent and legitimate.

    • The Cardinal was tried for a specific crime. Speculation about what he knew and did not know about priestly child abuse was not a charge at this trial. He should not be convicted of the latter at this trial except our biases as you have expressed unfairly enter the conviction process. Your reasoning is the same as convicting person of reckless driving because you suspect he speeds often. Let the Cardinal be tried for his alleged knowledge at a separate trial.

    • “A certain disease of the law or a certain disease among the male clergy?”

      Why not both? And perhaps by some strange chain the rot in the clergy led to the rot in the courts (though I suspect they have some other common cause). But in what way does considering one rot negate the consideration of the other? Or is your argument that a rotten court is needed to clean out a rotten church? How does rot clean rot?

      One conclusion I could understand: that a rotten court is a chastisement the Church will have to face for her failure to regard purity when the world needed to remember it most. That may well be. But it’s evil nonetheless, and it’s laudable to say so in a public forum.

      • The central assumption that the article was written on is nothing more than an untested convenient assumption in an attempt to discredit the legitimacy of conviction of Cardinal Pell of criminal offences. The Australian judicial system is not on trial here as the writer and Mr Weigel would have you believe, It was Cardinal Pell who was on trial.

        • Yes Cardinal Pell was the one on trial. From many articles I have read the only “evidence” against him was what one person claimed. Any, and all, facts of reason and the claims of the circumstances strongly give evidence that the claims of that person were lies. The 2 judges admitted that his testimony sounded like it could be true. Since when is sounding like something could be true mean it is true and sufficient to convict anyone of anything? Is Cardinal Pell guilty of other crimes? I have no clue. However, if I get stopped for speeding, 50 mph in a 25 mph zone, don’t try to convict be of running a red light. That makes the legal system corrupt!

          • Adrian, can I put this to you and others to think through in honesty and rationally. The full testimony of the young man was only heard by those who were directly involved in the hearing and that aspect of proceedings is confidential. It can be argued that the evidence and testimony the young man presented contained details and was of such veracity that left the jury in a position of beyond reasonable doubt, details nobody else knows.
            Therefore all discussion by those who do not know these details of the case is purely conjecture.

          • “The full testimony of the young man was only heard by those who were directly involved in the hearing”

            The full testimony of the young man and of all the other witnesses was also heard by the three judges of the appeals court, and one of them says that it was unreasonable for the jury to say that the prosecutor met the standard of guilty beyond a reasonable doubt.

    • If Cardinal Pell is guilty of another crime you would employ justice and try him for that crime, but you do not convict any man of a crime for which he is not guilty in order to punish him for something for which you are unwilling to bring him to the court.
      Your reasoning here is as erroneous as what masqueraded as justice on 21 August. You and the Australian justice system and the media do not seek justice but vengeance. The question now is vengeance for what?
      Until recently gross sexual deviancy was justly perceived to be so appalling that people did not even want to think of it even when the reality stood before them. They employed denial. Today every manner of gross sexual concupiscence is regarded as a right – even profitable and entertaining. There is a certain appetite for “justice” which is similarly salacious.

    • This case is about whether this one man, Cardinal Pell, committed this crime.

      The possibility that he could have done so, given the layout of the cathedral, the routine of what happened after Masses, the venstments he wore, etc., is vanishingly small.

      Absolutely nothing in your post has anything at all to do with this particular case.

      Your version of justice seems to be “I want him to be punished for the actions of others and because I think he knew what was going on, so he should be convicted for this.”

      “none have mentioned that Caredinal Pell’s denial of knowledge of the abuse, ”

      Why should they, since it has nothing to do with this case? And if it did, it would then be incumbent on you to prove that he did have knowledge of the abuse; “Because I said so!” is not proof.

      • “…all male teachers…” Really? What are your sources? Name names. And what are they saying about YOU?
        Hi Mack, they probably don’t even know I exist.
        Regarding all the mail teachers, this also includes the chaplain. Here is the ABC’s article reporting on the Child Abuse Royal Commission …..i assume you and others are aware we had a Royal Commission, first the state of Victoria then National. I am saddened to inform you of this tragedy. I genuinely believe the Holy Spirit is grieving and the Body of Christ is wounded, and it is time to respond to the call of Jesus to seek healing.
        Please read:

        • Oh yes, let’s get the “healing” going… by crucifying a man for a crime he could not possibly have committed.

          • Timothy, a most unfair misrepresentation of perhaps the most important point I would like to come from my discussions here. My aim is to further understanding and seek unity in our church.
            I am prompted to share with you a song I wrote a few years ago. It is about the gospel story of the woman in the crowd who reached out to touch Jesus as he passed. It is a call for the bride of Christ to do the same. Please read in your Jerusalem Bible John Chapters 14 to 17 ( or if there is no bible handy; https://en.wikipedia.org/wiki/Farewell_Discourse )
            a link to the song:

    • Then let him be charged with the offenses you describe, and let him be tried on those counts, and let the prosecution prove him guilty beyond a reasonable doubt on those charges. The incidents you cite were not part of the charge.

      • They are relevant to the the article Mr Weigel wrote and central to his argument in that he attempts to convince his readers there is an unreasonable climate of anti Catholic sentiment, a pure and toxic anti Catholic onslaught. This is a simplistic and manipulative argument by Mr Weigel. That is the reason I address the very relevant back history to the media and the publics attitude to the Catholic archdiocese of Ballarat and Melbourne. You can’t have it both ways, allowing Mr Weigel to write such rubbish to convince the reader od a dynamic that is false then not accepting my clarification on the grounds that it has no bearing on the crime Cardinal Pell has been convicted of. Can you accept this? Yes or no? Be honest with me.

    • If you can’t even get right the simple fact that the Diocese of Ballarat is not an archdiocese, then you are not in any way credible when it comes to who was in charge of what diocese and who covered up what abuse!
      I come from the Ballarat Diocese. Cardinal Pell is one very clear instance of a leader who emerged from the mess of compromised leaders and as soon as he had authority got cleaning in a very effective manner – there is no question about it.

      • Michael, thank you for posting. It is good to hear from someone from the Ballarat Diocese. I am also glad to hear your testimony that Cardinal Pell cleaned up the problems as soon as he could.

      • My mistake re the archdiocese label. I do not accept this mistake makes everything else i have said lack credibility. If you think so then so be it. That’s ok by me.

        Re who was in charge of what, the royal commission redactions regarding Ballarat will remain in place until after his appeal:

        from the article:
        Redactions relating to Pell are thought to relate to his role on the Consultors Committee, which advised bishops on administrative matters including priest appointments, as well as the way he handled direct complaints of child abuse.

        So we will know more when those matters covered by redactions are available for publication.

        Regarding your statement:
        “Cardinal Pell is one very clear instance of a leader who emerged from the mess of compromised leaders and as soon as he had authority got cleaning in a very effective manner – there is no question about it.”

        ……there are a lot of question about it with direct evidence I have cited in other discussion threads on this website regarding Cardinal Pell.

  4. One would expect a Kangaroo Court (pardon the pun) in a dictatorship like North Korea or Iran, not a supposedly liberal democracy like Australia.

  5. One small detail that is missing from this (and most other comments from the fundamentalist (neo-Calvinist) wing of the Roman Catholic Church,) is that Pell was charged with 3 counts. While the Right Honourable Mr. Justice Ferguson, did vote in dissent on 1 count, he voted with the majority on the other 2. Even without the split vote on the 1 count, by unanimous assent, Pell will remain where he belongs.

    Even if only for being pompous (and hypocritical) asses, one can only hope that many more hierarchs of similar disposition meet a similar fate.

    Randell Franklyn Busby

    • No; the *appeal* was based on three points, and the two that the justices agreed on were procedural matters.

      “They were unanimous in dismissing two other grounds, regarding procedural matters: one that alleged Pell’s arraignment did not follow protocol, and the other raising a complaint that an animation of the cathedral where Pell was alleged to have sexually abused to choir boys was not permitted to be shown during closing arguments.”

      So, you’re content that people should be convicted of crimes just because you don’t like their personalities. Your notion of justice is perverted beyond belief.

    • Randell,

      This is actually not correct: There were three grounds of appeal being tried by the Victoria appeals court, and “grounds” in an appeal are not the same thing as “counts” in a trial. Two of those three grounds were procedural: 1) one that alleged Pell’s arraignment did not follow protocol, and 2) the other raising a complaint that an animation of the cathedral where Pell was alleged to have sexually abused to choir boys was not permitted to be shown during closing arguments. All three justices rejected these two procedural grounds. The third ground was substantive: 3) regarding the question of whether the evidence presented against Pell was unreasonable and impossible. By itself, it would have been enough to overturn the verdict.

      P.S. No offense, but why do I have the feeling that pretty much every one of the 265 popes (or at least all those before Francis), and every single Doctor of the Church, would qualify in spades for your “neo-Calvinist wing of the Roman Catholic Church?”

  6. But the question at the trial was not whether the diocese was a cesspool, or whether Pell’s overall behavior contributed the the cesspool. The question was whether he had assaulted the boy. And as far as the legitimacy of the process is concerned, it was the entire point of the article to show that the process was NOT legitimate, that it went contrary to the established rule of law. I think the author made his case.

    • And the assumption the article is built on is a false assumption. It is a clutch at a straw and what follows is a well written argument with lots of fancy intelectual truths about the law etc etc but the author fails to establish that the legal process was NOT legitimate! What follows is built upnon a house of cards. This my good friends is critical thinking, something that is profoundly absent from most of these discussions.
      The whole defence regiment from who can be called the defenders of Cardinal Pell is built upon wishfull thinking, deliberate misinformation from half truth telling and most of the ensuing comments in the echo chamber of ignorant agreement display profound ignorance. Who is the Good Shepheard? Jesus. Who are those who walk in his footsteps? Our Priests and Bishops and Cardinals! There where wolves attacking the little children. What shepheard allows the wolves to continue??? This is the most simple and yet profound gospel narrative. The most basic follower of Jesus will know how to act and protect his flock! Many here are profoundly blinkered in their discourse regarding the trial and the legal process, accentuating assumptions that suit their agenda, believing what they want to believe because of what I have been accused of in other discussions, ideology and in my case, being a Lefty. My faith is in Jesus alone not politics, nor in any man woman or institutioin. I believe in Jesus I am a member of the Catholic Church. As a follower of Jesus I am called to love Cardinal Pell, pray for him and seek the truth. I am also called to represent the truth as clearly and honestly as i can. These article’s so far on this website are not in any honest measure regarding integrity attempting to be wholly truthfull.

      • Address the issue of “reasonable doubt,” which you constantly avoid as you practice misdirection. Reasonable doubt. Do you or do you not believe that criminal defendants should be proven guilty beyond any reasonable doubt, or where there is reasonable doubt, should be acquitted? Yes or no. If you set out to frame a defendant with false evidence, the fact that the defendant may in fact be guilty as charged does not exonerate you of a grave sin against justice and a desecration of the law. It also is no justification that the defendant, although innocent of the charge which you unjustly bring, is nonetheless guilty of other serious charges, not brought. Even if these two postulates regarding the defendant’s moral guilt are accurate in fact, and not a product of your own prejudice, you have still committed an unconscionable act for which you will answer to God, and which corrupts the judicial system to the detriment of all citizens. Rant all you want about how much the cardinal may deserve this. But you are only proving our point: namely, that he is guilty because “they’re all guilty!” That’s just affirming my argument through a different form. It’s known as a “lynch-mob atmosphere.”

        • Regarding the issue of beyond reasonable doubt ; the only people who heart the evidence in its fullness where the jury, the judge the prosecution and the defence. No one outside the court proceedings have heard the evidence in totality. Therefore you nor I can make an informed decision as to Cardinal Pells Innocence or guilt. I have maintained this position all along. Secondly can I inform you that my reason for citing the abuse that has taken place in Ballarat and Melbourne was NEVER to link this to the crime the Cardinal has been convicted of. The sole purpose was to inform the reader that Mr Weigel has misrepresented the social climate, the media and the so called anti Catholic toxicity in Australia.

  7. Your article is a well thought examination of the burden of proof–and how to reverse it when deemed necessary for a ‘higher’ purpose. Poor +++Pell was always guilty until proven guilty. People in the USA need to know that the hostility towards +++Pell is widespread in Melbourne, at least, venemous, and incapable of rational thought. On the other hand, however, the Victoria Police force is embroiled in a particularly juicy scandal of its own making, pertaining to cultivating a criminal defence lawyer to inform against her own clients. Possibly more than a few convictions could be overturned. Finally, if Pell is guilty, then he will be where he deserves; if he is innocent, he may do the most valuable work of his life as a priest while standing as a witness to Christ in that same prison. God alone can judge.
    Thanks for a great article.

  8. ‘ I saw you under the fig tree’ – our Lord to Nathaniel/ St.Barthelomeow , sharing may be His delight , about this ‘true son of Israel ‘ , even in spite of the initial doubts the Apostle has about The Lord , as one being from Nazareth .
    Our Lord , His pure Heart could see the goodness in His disciple , even from a distance .
    The reverse too , very much present in our times – unlikely there is any one who has been spared the experience of the lies through the wounded memories of others or even as a result of the falsehoods in their religion itself , to use lies against others .
    The joy too of being given the mercy of seeing them see their error as well , to rejoice together in the truth .
    The whole realm of the enemy manifesting and impersonating real persons – no dearth of such instances , as mentioned in the lives of saints of recent history as well .
    In our times so much afflicted by torrential evils , manifested by even little kids falling for the horrendous lies about doubting own identities , courts supporting their confused decision to allow related mutilations even !
    Let us hope that The Church would be blessed to look with more vigor into all these realms, benefiting from those who are gifted with special charisms , even considering the regular use of their help , in all similar cases world over ,
    including the victims of lying memories / identities as well ,esp. the children .

    Let us hope that such would be the good outcome of this and many other such cases .

    St.Barthelomeow , consecrating us all to you and all Holy Apostles , through the Sacred and Immaculate Hearts , for your Fatherly blessings and protection in all aspects of our lives and relationships , free of all duplicities and its wounds , to contemplate the goodness of The Father , in peace and tranquility – https://www.oneforisrael.org/bible-based-teaching-from-israel/figs-in-the-bible/

  9. I am afraid that much of the commentary on this case is confused and confusing. The main reason for this is that the trial proceedings were conducted under a great cover of secrecy. The media was not allowed to report on the trial. So the only things we really know about the trial are the things that we learned in the Appeals Court decision.

    Because the purpose of the appeals court is quite different than a trial court, many have been confused about the standards that apply in each. Suffice it to say that they are different, and that they must be different. Furthering the confusion is that Australian appeals standards seem to differ slightly from the standards that the rest of the Anglosphere follows, in that Justices are, under statute, supposedly allowed to, sort of, kind of, to substitute their judgment on the facts for that of the jury. However, some High Court cases in Australia seem to reign that freedom back and try to impose a more regular standard. The standards used in this area of Australian law seem fairly flexible, and can be manipulated to go either way. Weinburg’s opinion seems to me to be designed primarily to reveal to the entire world the nuts and bolts of the testimony that was given at trial – the very stuff that was never supposed to be revealed under the bizarre Australian gag laws. Those gag laws seem to have been perverted to hide the disgraceful treatment of Pell by the Australian justice system – not to protect either Pell or the supposedly abused kid.

    In short, overturning a jury verdict is relatively rare, and people should not hope for too much. The two justices who upheld the verdict seemed to be saying “Well, it was possible that a jury could convict on these facts. It is not our role to overturn jury verdicts that were possible, even if based on a rather unlikely chain of events. We must respect the jury’s decision” Weinberg, on the other hands, said that 13 very unlikely things must have all happened for Pell to be convicted. He believes that the likelihood of all 13 of those unlikely things happening is so remote that he would have overturned the jury decision. I think he has the better part of the argument, but of course, he sort of admits he is merely replacing the jury’s judgment of the facts with his own impression of it.

    The author of this article takes the position that we have erred in giving abuse victims the advantage, in that one allegation may convict, without supporting evidence. But the fact remains that lots of abusers would go unconvicted if we did not do this. The fact is, that this is a very complex subject, and if we go one way, we let abusers go. If we go the other way, we let false allegations convict innocent men. There is no good way to fix this problem.

    Perhaps we should, therefore, do as society used to do – we allowed no sexual perversion, no sexual revolution, no free love or sexual license. We had a traditional morality that seemed to insulate us from constant perversion and depravity. It might have been more severe, but it worked. A society that allows sexual perversion seems to be locked into permanant fighting and elaborate legal and social unworkable solutions that attempt to stop abuse of sexual freedom.

  10. Here is the mistake you make: this is an appellate case. In countries based on the English Common Law tradition, an appellate court is not a trier of fact; that is the role of the jury. In fact (no pun intended), in United States appeals, the court often specifically states, “questions of fact are for a jury”, and “a reviewing court may substitute its judgment for that of the jury only where the evidence supporting the defendant’s guilt is uncorroborated and so highly implausible as to be unreliable.”

    So, therefore, the problem is that Dr. Farrow appears to be substituting the appellate court’s mandate that it is not permitted to review the factual and credibility determinations made by the original trier of fact (jury), with the presumption of innocence made in the criminal trial. Under the standards in the United States, “the defendant who attempts to reverse his conviction based on the insufficiency of the evidence takes on a nearly impossible task.” The appellate court must assume that every prosecution witness is credible, every defense witness is not credible, and every inference and doubt must be resolved in favor of the prosecution. Then, a court must sustain the conviction if ANY single juror could have found the defendant guilty based on that view of the evidence (every inference, doubt, and credibility determination resolved in favor of the prosecution).

    Again, the standards for the defendant who wishes to overturn a conviction are far different than for the defendant during trial. The English Common Law tradition values finality of verdicts over correcting errors. I would point out that Justices Scalia and Thomas have said in several opinions that the fact a defendant is innocent is not grounds for reversing a conviction in the Untied States.

    There is ample reason to demand a change in the U.S. legal system so that “reaching the correct result” is valued more than “finality”; but Cardinal Pell’s failure at the appellate court is not unusual; the same result would have been reached before a United States Court.

    • An exhaustive 5 year long Royal Commission. An entire week or more was spent examining St Alipius primary school Ballarat. The teachers were Br Dowlan, Fr Ridsdale, Br Best. It really was very bad place to be a kid.

    • You are wrong about the appellate court’s disability to review facts. If that were the case, why did the majority opinion reference testimony and credibility at all? Please read the dissenting opinion. The point is that the defense presented evidence sufficient to create a reasonable doubt (actually, many reasonable doubts), thus demonstrating that the prosecution had not met its burden of proving guilt beyond a reasonable doubt. This should have led to acquittal. The only way around this is to take the position that Prof. Farrow identifies in the majority opinion: we believe the complainant, no matter what. So reasonable doubt isn’t enough. Now the defense has to prove impossibility. That is the shifting of the burden of proof to the defense: the accused is no longer innocent until proven guilty: he is guilty until he proves himself innocent.

      • You are confusing the standards for appellate review; every credibility determination and every inference from the evidence must be resolved in favor of the prosecution. Then, based on that, to REVERSE the conviction, the question the appellate court asks is, “If we resolve every credibility determination in favor of the prosecution, and draw every inference in favor of the prosecution, could ANY juror have voted to convict.”

        An appellate court does not sit as a second jury. They cannot substitute their view of the facts for that of the jury. The fact that there was not proof “beyond a reasonable doubt” does not come into play in a criminal appellate proceeding. The only question is if there was ANY evidence that could support guilt; if there is ANY evidence, then the verdict must be upheld. That is the way Common Law courts work. To quote from the controlling opinion in my state, “The man who seeks to overturn his conviction based on insufficiency of the evidence takes on a nearly impossible task.”

        It is also important to point out that in the “internet age” courts make a lot more effort to explain their opinions, and to review the evidence far more than necessary in an effort to uphold the integrity of the courts. Fifty years ago opinions were a couple of paragraphs, today they are 50 pages; that doesn’t mean the standards have changed.

    • That’s available. The real question is where is the court transcript of the accuser’s cross examination – this is suppressed by the court. Is is suppressed (under cover of shielding the accuser) to prevent independent scrutiny? Certainly video of the cross examination would be a gold mine for experts looking at the case. It is said that psychologists can spend one hour reviewing one second of video, played repeatedly, looking for signs of subliminal signs of deception.

  11. This trial had zero, nada, nothing to do with said incident at the Melbourne Cathedral. It was a judgment about Ballarat. The scuttlebutt of truth knows that.

    Yes, am quite aware of the legal record of the Ballarat charges. The legal manoeuvrings of that case is NOT the history of events (no legal proceedings ever is). That history includes the smug response to the clerical homosexual predation within the Catholic community of the State of Victoria. Pell was part of that culture of abuse: in his own predatory behavior and his covering-up of sexual abuse of those under his authority.

    Yes, the Vatican is delighted with the outcome. The man will not be around to tally the billions of misdirected funds of the Vatican Bank. But that’s another story – and one where Pell’s hands may not have been all that clean. The discovery of such misappropriated funds also comes with its historical blackmail uses and its future potential.

    Still, poor, poor Ballarat, never got its day in court.

  12. Is the Author aware of The Royal Commission into Institutional Responses to Child Abuse that we had in Australia? The report contains information regarding the law and cases of child abuse that is in my opinion esential reading for Church leaders. Here is a link to the final report although the Redactions regarding Ballarat involving Cardinal Pell remain until after his appeal:
    Volume 16 pertains to Religious Institutions:

  13. Vandalia, are you quoting Australian law? What you have written doesn’t sound right for Australian law. The appellate court asked whether there was any doubt the jury would have been bound to have had from the evidence. If they must have had a doubt in the view of the judges, the verdict can be overturned. In that sense the judges replace the jury’s judgment with their own.

  14. First said this discussion is a learning session that hopefully results in just resolution for all. A response. Presumption of Innocence is a legal, even moral standard since Justice by its very nature speaks to what is right and just. Historically found in the Roman Codex appealed to by the Apostle. The Roman Codex: Justinian Codes and consequent English common law holds as inviolable the principle that the accused is presumed innocent unless the prosecution presents a high level of evidence. “Exaggerated presumption of authenticity” is the practiced Australian standard delineated by Prof Farrow. Its exaggerated to the extent that it permits the testimony of one witness as the irrefutable truth even when no corroborating evidence exists. Christopher Hallam holds to this conviction. He stated as a hypothetical that the substitute for corroborating evidence is that the Plaintiff likely provided convincing details in secret session with the Jurists. Nevertheless where did the Australian legal system find this legal procedure? Nowhere in the civilized world except perhaps in China and Turkey [although despotic Turkey is an exception Islamic law holds the principle that the onus of proof is on the accuser or based on a hadith documented by Imam Nawawi]. It’s an invention of convenience to ensure that the State can exercise its will regardless of well reasoned Laws of Justice. The argument by C Hallam perhaps unwittingly is that presumption of guilt is actually Australia’s judicial standard for conviction based on guilt by association, hearsay, suspicion, and apparently in Australia Catholicism.

  15. Many of the above comments exhibit a serious ignorance of the facts, and also a serious lack of self-awareness about that ignorance. Nearly two weeks after the Appeal Court’s judgement, and still no scholarly or qualified support has been published in defence of the Majority Opinion, while there has been an on-going, and continuing flow of high-level criminal law and senior lay commentary for the Minority Judgement. The stink will grow and grow because this persecution – like the Dreyfus Affair – did not come “out of the blue”. And no notice should be taken of the Report of The Royal Commission into Institutional Responses to Child Abuse, without also reading the forensic criticisms of that prejudiced and politicised operation, notably by Gerard Henderson’s Mediawatchdog blog. That process was a further sign of the degradation of regulatory abuse in Australia.

    • Gerard, I’ve found some of the criticism of the Appeal Court’s judgment, but are there any commentaries in particular that you would recommend?

      “And no notice should be taken of the Report of The Royal Commission into Institutional Responses to Child Abuse, without also reading the forensic criticisms of that prejudiced and politicised operation, notably by Gerard Henderson’s Mediawatchdog blog. ”

      I wondered about that Commission – for example, whether the people who made statements and accusations were under oath and subject to cross-examination by the people whom they accused. I shall go off and read the blog you recommend. Thanks!

  16. I did a google search on the phrase “a witness of truth”. It appears to be legal jargon which means that the prosecutor has put forward a witness for the prosecution.
    The prosecutor is not to do this unless they believe that the witness is probably telling the truth.
    In the media, (and perhaps also in the court), the phrase “a witness of truth” is being used as deceitful rhetoric to convince the lay person (e.g. the naive juror) that the witness is telling the truth.
    In other words, the phrase “witness of truth” is being introduced as false evidence against Pell. Richard Mullins portal1943@gmail.com

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