Accepting that the Victorian institutions involved in getting Pell need reforming, this two part essay explores the uncanny parallels between the Pell case here and similar cases in the UK, and draws lessons from these in charting a course towards reform.
Since the Australian High Court’s legal exoneration of George Cardinal Pell, debates have taken off in many directions. The baying mob has spoken through graffiti and on social media. Media pundits have had their say. The Cardinal’s supporter groups online have been overjoyed but are still angry. International observers have suggested Australia’s justice system has dodged a bullet in having its reputation for the rule of law saved by the bell. Politicians and others where perennially grieve for victims of abuse have mumbled and grumbled. “We still believe you, indeed now, more than ever we believe you”, they chant.
Many want answers to the question – how did this happen in Australia? There are now increasingly audible demands for an inquiry, or inquiries, into the key arms of the legal system in Victoria. These demands are growing by the day.
Supporters of Cardinal Pell (and other commentators) in the media and among private social media groups have focused on three institutions in particular – the Victorian Police, the Australian Broadcasting Corporation, and the Victorian Court of Appeal. The first two are generally agreed to have been engaging in a witch hunt, while the third has been accused of, at best, and speaking very kindly, below par legal thinking and practice. The general competence of the police during the Pell case has been severely questioned by observers such as Frank Brennan, by no means a Pell defender. Brennan has referred to “Inspector Clouseau”, best to capture the bungling nature of the VicPol case, in what amounted to an evisceration on Sky News.
In addition, broader legal questions such as the current status of the presumption of innocence for those accused of historical sex abuse crimes have been canvassed widely.
The Victorian Problem
The Victorian justice system was caught in the crosshairs during the Cardinal’s own, classy interview with Andrew Bolt, with the suggestion that the corruption of justice in Victoria goes fairly high up (just like in the Vatican). The problem, in fact, goes all the way back to the mid-2000s, when previous Victorian governments undertook root and branch “reform” of the treatment of cases of historic sex abuse.
Many associated with child sex abuse cases believed that the old approach was too tough on complainants. The driving force for the changes was to make the system “more responsive to victims of sexual offences”, and the legislative reforms followed on from a lengthy consideration by the Victorian Law Reform Commission.
The creation in 2006 of this “trail blazing” Victorian operation and its associated systems, methodologies and priorities have a number of features:
- Routine consideration of “complainants” as “victims” (see under Graham Ashton’s repeated, public use of the term “victim” in relation to The Kid, aka Witness J in the Pell trial);
- The deliberate biasing of the process towards complainants;
- Feeling public pressure to achieve convictions;
- The prevention of defendants cross examining complainants and “other vulnerable witnesses” in open court;
- Making testimony via closed circuit television “routine”;
- Restricting access to a complainant’s possible counselling records;
- Emerging me-tooism as the default philosophy of the Court;
- The interwoven networks within the system – including sex crimes police, prosecutors, complainants’ advocacy lawyers and female politicians;
- The preponderance of women in the sex offences system.
Taken together with changes to the Victorian Jury Directions Act in 2015, which instructed judges to omit previous routine warnings to juries to take special care when considering complainants’ testimonies, the reforms are tantamount to a complete overturning of the presumption of innocent for those accused.
As noted by Piers Akerman:
In 2015, the Andrews government passed the Jury Directions Act which in Section 39, paragraphs 1-3, is not only contradictory but falls over backwards to give the testimony of accusers greater weight than that of their accused. The High Court Justices referred to this flaw in their 44-page unanimous 7-0 judgment.
Under the Act the judge is instructed not to suggest to the jury that the “victim’s evidence … be scrutinised with great care”.
Police force training and inculturation has, no doubt, changed too in synch with the justice system reforms.
The Victorian police force in particular, in line with the politics of the State, has established itself as beyond woke in relation to the recognition, nay the utter embrace, of every politically correct position going. Journalist Miranda Devine noted in 2016:
Crooks and thugs are free to run riot, while police obsess about gender, racism and LGBTI. Rapists prowl, gangs brawl, losers brazenly smoke bongs in CBD parks, drunk drivers speed away from booze buses, while police are busy cracking down on racial abuse on Facebook, or denouncing “language” crimes by Eddie McGuire that “demean women”.
Ron Iddles of the Police Association agreed, writing in 2016:
Let us not mince words. Victoria Police and the state government have become too timid towards ethnic-based gangs. Their timidity is because of political correctness.
VicPol is especially attuned to gay rights activists. Former Commissioner Christine Nixon even marched in Melbourne gay pride events, just to make the point. VicPol is awash with LGBTIQ liaison officers across the State. As VicPol’s own website explains:
Victoria Police has appointed a number of lesbian, gay, bisexual, transgender, intersex and queer liaison officers (GLLOs) across the state. The GLLO Mission Statement is to contribute to the creation of mutual trust between police, lesbians, gay men, bisexuals, transgender and intersex persons so they have increasing confidence in police through the provision of fair and equitable policing service.
Victoria Police currently has one full time GLLO, and more than 230 portfolio GLLOs across the state. Portfolio GLLOs have GLLO duties additional to their operational role. The full time GLLO appears fortnightly on Joy94.9, sharing information and updates about the work of Victoria Police with LGBTI communities.
The GLLOs provide a contact point for LGBTIQ community members and provide advice, assistance and recommendations to Victoria Police on the policing needs of LGBTIQ people.
GLLOs demonstrate support for the community through attendance at a range of events. GLLOs are available to attend and present to social and support groups on the role of GLLOs and how police and the LGBTIQ community can work together.
In this context a prominent Pell supporter in the UK, Rev Nick Donnelly in the Diocese of Lancaster, has opined that:
… the real reason for the 30-year campaign of vilification against Pell was "because he upheld Church teaching about the immorality of homosexual acts and refused Holy Communion to LGBT militants."
There could be considerable truth in this view. George Pell painted a target sign on his own forehead in the late 1990s when he stood up in a very public fashion to the rainbow sash contingent. Doing this in Melbourne begged for trouble. And there is nothing so seething as a gay activist scorned. (Perhaps an ex-Catholic feminist might come close, as I and now Christopher Akehurst have argued in Quadrant).
While the evils of sex abuse are universally agreed, going after the Church has assumed a high priority among the woke. There has also been a particularly strong identification with victims’/survivors’ groups by VicPol. There is mutual dependency between groups like Broken Rites, victims’ lawyers, invested academics and the police. The shared abhorrence among these actors for paedophiles has cement-hardened into an industry with a unified and bitter resolve that has, as a result, diminished due process.
There has also been an uneasy relationship between the Archdiocese of Melbourne and the police, to say the least, ever since a dispute over the strength of VicPol’s own commitment to pursuing sex abusers, aired during a Victorian parliamentary inquiry in 2012.
Critiques of VicPol’s performance in relation to the Pell case have focused on several practices – the very establishment of Operation Tethering in 2013 in the first place; the advertisement for further “victims” to come forward; the leaking of the Pell investigation to the Herald Sun newspaper; the long delay in informing Cardinal Pell of the allegations; VicPol’s ignoring the initial advice of the Office of Public Prosecutions against proceeding with the charges; possible coaching of the complainant as his story shifted in significant ways over time; possible pressure on the complainant after the first trial to continue to pursue the case, despite his suggested misgivings; the refusal of police to interview many key witnesses; a far-too-cosy relationship with survivor groups and lawyers (see under Lawyer X in a separate context); and blatant bias against the accused.
It might be argued (correctly) that VicPol is only part of the problem in Victoria, that the deficiencies in the system go much broader and higher, and that meaningful reform of the system which delivered massive and manifest injustice to an innocent man must be undertaken root and branch.
Ultimately, it might well be argued that reform of the Victorian law enforcement and justice systems awaits the defeat of the current Government of Daniel “I believe you” Andrews, an extreme left wing progressive operative, enemy of George Pell and strong supporter of the current (and departing) Police Commissioner Graham Ashton.
Andrews’ now infamously stated (inevitably on Twitter) and emetic response to the High Court decision would be familiar to many:
I make no comment about today’s High Court decision. But I have a message for every single victim and survivor of child sex abuse: I see you. I hear you. I believe you.
In fact he was making a very loud comment on the Court’s decision, through a megaphone. No dog whistling here.
Daniel Andrews is deeply invested in the legislative supports for Church sex abuse victims/complainants implemented both on his watch and by previous leftist Labor governments, and it is not remotely likely that he would accede to ANY investigations of VicPol or of the Victorian justice system. Andrews’ commitment to the system as it is and to MeTooist “we always believe you” ideology and the sheer embeddedness of the victims’ networks in enforcement agencies both militate heavily against reforms that would re-instate the rights of the accused.
The Victorian Opposition Leader has been encouraging if, as ever is the case with the Liberal Party of Victoria, understated:
The unanimous High Court verdict in the Pell case is an embarrassment to Victoria’s legal system. How could police, prosecutors and judges have got it so wrong for so long?
This comes on the heels of the unanimous High Court decision in the Lawyer X case which called out “reprehensible conduct” in Victorian prosecutions. Daniel Andrews wants to ignore the High Court’s clear message — Victoria’s legal system needs to be cleaned up.
While Victoria awaits system level reform, there still is merit, however, in focusing upon specific problems within VicPol as an initial step in the long road back to health for Victorian justice, and to restoring public confidence in the system. Both the Pell case and the Lawyer X fiasco provide ample fodder for consideration. And there are two essential points of reference for those wishing to engage in an “Operation Restore VicPol” – first, the UK experience in relation to historic allegations of sex abuse, specifically the North Wales fiasco and the Henriques Inquiry into Operation Midland; and second, the late 2019 testimony of former senior VicPol officer Sir Ken Jones to the McMurdo Royal Commission into Lawyer X.
The UK case studies shine a light on some of VicPol’s most dangerous practices in, and assumptions about, historic sex abuse cases, and suggest key areas and even vehicles for reform. The Jones testimony reveals more general problems of culture in the Victorian Police Service, with a focus of the abominations associated with Lawyer X. These also have relevance to the Pell saga and to the need for comprehensive reform.
The North Wales Cases and Police Trawling
Two events over the last twenty years of direct relevance to the Pell case cast long shadows over the British justice system. The first was the emergence and widespread use of “trawling” by UK police services from the 1990s, in particular (but not limited to) its use in investigating, then prosecuting cases of alleged sex abuse in children’s homes in North Wales, and the second was Operation Midland, a Metropolitan Police Service (Met) investigation of accusations by one Carl Beech of a paedophile ring which was said to include high profile figures.
The late Richard Webster, a much published writer, was a key figure in analysing and describing the police methods used in relation to cases of historic alleged child sex abuse. Two books in particular by Webster, The Great Children’s Home Panic (1998) and The Secret of Bryn Estyn: The Making of a Modern Witch Hunt (2005), focused on the inadequacies and dangers of police trawling methods for those accused of historic sex abuse allegations and the false allegations made against teachers and carers in the UK.
In his various researches, Webster discovered that:
- Many of those convicted of historical sex abuse crimes were innocent;
- Often false accusations were made in the hope of gaining financial compensation;
- Trawling of witnesses and potential victims was widespread, indeed “massive” and incurred vast public expense;
- Police trawling was enabled by case law changes in relation to “similar fact” evidence, in particular the lowering of the threshold against admitting multiple accusations, to the cost of the innocently accused (similar fact evidence was weaponised by Louise Milligan in her anti-Pell crusade, of course);
- Police trawling grew “exponentially” in the UK from the early 1990s;
- The Tony Blair Government rejected parliamentary committee findings to correct the practice of trawling on the back of “similar evidence” changes, thus embedding miscarriages of justice in the system (see the ironically named 2002 White Paper And Justice for All); it should be noted that there were close encounters between leftist ALP politicians and the Blair Government;
- Police process and behaviour often led to, indeed, encouraged false accusations;
- Police often planted suggestions in the minds of witnesses and complainants;
- Police often did not recognise complainants’ “confabulations”, that is, inserting bits into the narrative that didn’t happen.
On the subject of complainant motivations, Webster states:
What is not generally understood is that the act of making a false allegation of abuse can and often does bring a feeling of psychological satisfaction. … People who have previously felt overlooked and insignificant may suddenly find themselves the centre of attention, concern and sympathy. At the same time the idea that they are now engaged in a battle against evil, in which many other people, including counsellors and social workers, are fighting alongside them, can be a source of great emotional energy. It may give people both a raison d'être and a feeling of strength and solidarity which they did not previously have.
On the question of trawling by police institutions, Webster uncovered the following case of a UK prison advertising, on behalf of a personal injury firm, for complainants to join an action for compensation against a care home:
NOTICE TO PRISONERS
Ref. No.: 78/2002
Subject: Tennal Assessment Centre, Birmingham
Originating Department: Health Care
Text: Would any prisoner who lived at Tennal Assessment Centre and Community Home during the 1960s, 1970s or 1980s, who wishes to join a group compensation action against the Home, contact Richard Scorer, Molly Whittal or Suzanne Heald at Pannone and Partners, Solicitors, 123 Deansgate, Manchester, M3 2BU.
Any prisoner who is uncertain over what to do can apply to the Senior Medical Officer.
Signed: J. Slater, Governor
Date: 5 December 2002
This is astonishing, and very reminiscent of VicPol’s advertisement in December 2015 for complainants to come forward and give evidence against George Pell, an action unparalleled in Australian law enforcement history and leading to the most gross miscarriage of justice imaginable. It is a case of the institutions of the State feeding a compensation culture.
What, then, is trawling? According to one UK definition:
“Trawling” is not a technical term, rather it is a convenient label used to describe the police practice of making unsolicited approaches to former residents from many of the institutions under investigation. In any investigation, including those into past institutional abuse, the police will contact persons named by the complainant in his or her statement of complaint. Trawling, as we understand it, refers to the process when the police go one step further and contact potential witnesses who have not been named or even mentioned. In a trawl, the police will contact all, or a proportion of, those who were resident at the institution under investigation during the period when the abuse was alleged to have occurred.
Richard Webster sees trawling as a quite deliberate strategy by police forces everywhere to get their man by using short cuts and stacking the legal odds in their own favour:
In response to the realisation that multiple allegations of abuse almost always lead to convictions, an entirely new form of police investigation has evolved. Instead of waiting for allegations to be made spontaneously, police forces up and down the country are now actively looking for them. They are doing so through massive trawling operations in which they deliberately seek out former residents of care homes and invite them to make complaints – sometimes against specific workers. Thousands of young men and women have already been contacted and many of them have made allegations of serious physical or sexual abuse.
Here is Webster speaking about a particular case in Wales:
The evidence against Johnson was collected during a new form of police inquiry which has developed only in the past ten years: the trawling operation. First used by Leicestershire police in the Frank Beck case in 1990, the method spread to North Wales, Cheshire and Merseyside. Now it has been used by as many as two-thirds of the country’s police forces to convict dozens of alleged abusers.
Detective Superintendent John Robbins, of the Merseyside police, has described this new kind of investigation as ‘the reverse of normal police methods’. Instead of starting from a crime and setting out to find the criminal, the trawling procedure starts with the suspect (or an allegation) and then attempts to find the crime. Police officers trace and interview former residents of care homes and, during these interviews, more evidence against the original suspect, or against other care workers, almost unfailingly emerges.
A trawled complainant normally well understands the link to compensation. It might be argued that this is the precise modus operandi of Broken Rites in Australia.
According to investigative journalist David Rose, “trawling is almost tailor made to generate false allegations”. The ultimate aim is to obtain “corroboration by volume” or similar fact evidence. The Get Pell Operation Tethering was textbook trawling, as was VicPol’s infamous advertisement for victims and witnesses in December 2015.
On the issue of multiple complaints – very relevant in the pursuit of Pell and in particular relevant to Louise Milligan’s strategy – Webster had this to say:
In fact, the sheer quantity of allegations does not prove anything. But this method continues to be used because it works; it usually results in convictions. By launching trawling operations, and piling up huge numbers of allegations against individual care workers, police forces have found a way of destroying the presumption of innocence and obscuring the weakness of individual complaints. Whenever this happens justice itself will almost inevitably fail.
What Webster has uncovered, then, is a lethal combination of empowered, motivated complainants and police and cognate institutions wilfully neglectful (at best) of the normal procedural checks and balances which keep tendencies to bias under control. At worst, these institutions are complicit in an activist and seemingly coordinated campaign joined by victim groups and priest chasing lawyers to mow down the guilty and the innocent alike.
We are, in short, in the midst of a witch-hunt of unprecedented intensity. If most people remain unaware of this, it is largely because the watchdogs of our freedom and our liberty, the British press and the British media, have themselves been partly responsible for launching the witch-hunt, and sustaining and increasing its intensity …
For “British press”, read “Australian press” in relation to George Pell. Especially the ABC, as I have previously argued.
Another, more recent study, undertaken by Oxford University researchers (Hoyle, Speechley and Burnett), found that difficult cases are prone to errors of bias; that victims’ voices and “narratives” have emerged as powerful influences in recent decades; that there is a tendency to abandon the need to obtain corroborating evidence following an accusation; that there is a belief that these crimes are “rife”; that there are political and moral imperatives to convict, leading to an increased likelihood of miscarriages of justice; that there has been a weakening of safeguards for the accused; and that false allegations are made for a range of reasons.
Evidence is inevitably contaminated in these circumstances, as one experienced defence lawyer has described:
After the first allegation the trawl will then commence almost uniformly… The witnesses will find themselves appointed a Liaison officer who will also act as a conduit for information they should not receive. Most significantly the evidence of one complainant will be introduced into the evidence of the next, either in a purposeful action but most probably by innocent contamination. Think about it: if one officer is told a sexual offence took place in a certain way it is almost human nature when he or sees another witness to enquire or direct the questioning to see if the same happened to this person. The act of contamination has been committed and is then perpetuated as the enquiry continues. [Later, without knowing how they arose, it is possible for the Prosecution and] the Judge to make those sort of comments we have all heard to the jury, suggesting that it is implausible that all could come up with allegations which share the same features.
The study was titled The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victims’ Voices.
In 2002 – ironically the year in which allegations (by Phil Scott) against George Pell first arose – the UK Parliament’s Home Affairs Committee undertook an investigation into the conduct of investigation into past cases of abuse in children’s homes. The Committee’s inquiry came on the back of the formation of an all-party MPs Group for Abuse Accusations. One staggering statistic – one of many – to emerge during the Committee’s inquiry was that 79% of institutional abuse cases referred by UK police to the CPS, Britain’s prosecutions agency, were rejected! Just as Victoria’s OPP initially rejected the VicPol case against Pell.
According to one falsely accused man:
History is full of innocent men and women who have been sent to jail for crimes they did not commit. I am not too naïve to realise that it could easily have happened to me. Before my trial began, relatively few people could understand how a former care worker could possibly be facing more than 20 counts of physical and sexual abuse from four separate accusers, and claim he was innocent and that all the allegations were false. By the time the trial had collapsed, practically everyone knew the explanation.
It perhaps is not surprising that this was a common view, even among elites:
It may be that innocent people are being convicted, but we ought to be more worried about the guilty who might get away.
Those interested in examining the trawling for sex abuse victims in Australia should note that our very own Royal Commission itself did a spot of trawling for victims, as noted here. So VicPol isn’t alone in antipodean witch hunting.