A new book just out by David Pierre casts fresh light on one of the scourges of modern legal practice. This is the new curse of guilt by accusation. Nothing is less likely to eradicate the heinous crimes of child sex abuse that the attacks by the mob on the innocent.
Following the exoneration of Cardinal George Pell by the High Court of Australia and the recent British television documentary on the highly questionable conviction of Bradley Murdoch (in 2005) for the murder of Englishman Peter Falconio and the attempted abduction of Falconio’s partner Joanne Lees, Australia’s jury (and justice) systems are again under the spotlight.
These cases are but two among many where the Australian system of justice has been found wanting. Where the innocent may well have been punished without cause. Luckily, justice is sometimes finally delivered to those previously denied it. But not always. Many fights by, and on behalf of, the innocent and the wrongly convicted are still ongoing. These need to be brought to the attention of the wider Australian community in the same way that high profile instances of injustice have been. Naturally, the media focus on “celebrity” cases. The ordinary folks wrongly convicted or otherwise denied justice battle on, alone and with few resources, without the massive boost provided by media exposure and a concerted public campaign.
There is little doubt that there is increasing concern about many aspects of the criminal justice system in Australia – about slack and sometimes vindictive police methods, even police corruption; about the capacity of juries to get things right; about the competence of judges; about the politically correct ideology of #MeTooism and “always believe the victim”; about the toxic anti-Catholic culture through which recent police witch hunts have been enabled. Have things swung too far in correcting the manifestly mistaken past practice in sex abuse cases of “never” believe the victim?
Cardinal Pell’s appalling initial conviction itself had some connection to two other notorious failures of the justice system, one in the United Kingdom (Carl Beech) and the other in the USA (Billy Doe). In particular, the case of Carl Beech, a liar and fantasist who claimed over some years that high level British political and other figures were engaged in paedophile rings and murders. It was a fantastic, scarcely believable story. Yet it was believed, in the media, by very senior politicians, and, most appallingly, by the British police. Lives and reputations were destroyed. There are lessons for Australia, and some uncanny parallels.
Operation Midland in the UK, conducted by The Met, was an embarrassing example of “believe the victim always”, now sadly embedded in both police practice and in sex abuse legislation in the various Australian states and territories. The courts are utterly caught up in what amounts to a complete modern reversal of the onus of proof for those accused.
Operation Midland was also an example of police “trawling”. This involves the identification of a target for investigation BEFORE any complaints have been made, and/or the pursuit of further complainants after an initial complainant has come forward. The purpose of the latter is to lock in a perception of guilt by making it appear that the accused is the subject of multiple complaints, aka “pattern evidence” or “tendency evidence”. Make them look like serial offenders, and therefore guilty of the specific case under investigation. Police trawling, like “believe the victim”, is now par for the course in Australia. Taken together, and implemented by degraded legal institutions now utterly consumed by political correctness and compromised by the need for reputation enhancement before the gaze of the woke chattering classes the powerful survivors groups’ cartel, now endlessly baying for the blood of presumed sexual predators, these twin evils have helped to transform our justice system into one that is ramshackle at best.
Luckily, both the Carl Beech and Billy Doe cases were ultimately shown to be based on false claims, and overturned. The “victims” turned out to be the “perpetrators”. Beech is now serving eighteen years. And the Met was excoriated in an independent review of Operation Midland. In each of these cases, though, innocent lives were damaged, sometimes beyond repair, and at least one life was lost as a result of what the distinguished legal academic David Flint, the US attorney Allan Dershowitz, and others, have termed “guilt by accusation”.
Allan Dershowitz, described as “one of America’s most respected legal scholars”, has been himself a victim of guilt by accusation. He has also written a book with the same title.
Many of these notorious cases were built upon police and jury gullibility in the face of the lies and fantasies of complainants deemed to be “credible”. Entire cases can now be built, it would seem, on the theatrics of the performance in the witness box of a complainant, rather than on the formerly sacrosanct rules of evidence. Does this sound familiar?
Research in the UK by the late Richard Webster, an outstanding investigative journalist, into cases of sexual abuse in North Wales care homes earlier this century, and many other cases of alleged institutional sexual abuse across the UK, revealed dozens of outrageous examples of what amounted to nothing more than witch-hunts conducted by police determined to obtain convictions, whatever the “evidence”. Webster in particular zeroed in on trawling.
As a result, the old, previously rock-solid legal principle, “innocent until proven guilty”, has been turned on its head for many of the falsely accused. In the age of #MeTooism and of the moral panic occasioned by increasing exposure of crimes of sex abuse against both adults and minors, where accusations of all manner of sexual impropriety are thrown around, no one is safe. Men, especially, are not safe. Men in the public eye are fair game. The cases of Geoffrey Rush and John Jarratt (settled in favour of the accused actors) and that of Craig McLachlan (ongoing) are instructive here. They and similar cases are often the result of police being taken in by both the offended and the opportunistic.
God help men of the cloth, too. Especially Catholic priests. The McClellan Royal Commission into Institutional Responses to Child Sexual Abuse , whatever its specific initial motivations, made little attempt to conceal its ruthless targeting of the Catholic Church, it determination to make the Church “pay” and its manifest bias against George Pell in particular. The Royal Commission’s approach has set the tone for the atmospherics surrounding this issue, within the justice system, among the ruling elites, including the media, and in the community. These atmospherics have proven lethal for Catholic clergy and religious orders especially.
In the view of the solicitor of the now released, but earlier convicted, Brother John Tyrrell, the public outrage over the revelations of the Royal Commission “… has placed police and prosecutors under enormous pressure to proceed with even the shakiest cases”.
My view is that, in the current climate, defendants have a strong chance of being convicted in these cases whether they are guilty or not. It takes a brave prosecutor to say, “this doesn’t add up”. The prevailing attitude seems to be to prosecute and let the courts sort it out, but many juries are making decisions based on emotion and preconceptions, not evidence or facts.
And, as we see in the case of John Fleming, it isn’t only juries, but, alas, judges as well, who fall prey to the zeitgeist. It doesn’t help when they themselves are legally incompetent, as was demonstrated amply in both the Pell appeal and in the Fleming trial and appeals.
A former police prosecutor says, “It’s our job to believe the victim and let the courts decide”. The police are trained now to believe all except the accused. Judges equally feel compelled to believe all except the accused. Juries are simply caught up in the toxic atmosphere of moral panic and the belief that paedophiles are all about us, especially in the Church. Note even the lazy and inaccurate use of the word “victim” here. This is, in itself, a very powerful “oops”. As we shall see in the Fleming case, not even the police believed the complainant. Yet the judge did, unaccountably.
Recently, the excellent Catholic journalist Monica Doumit suggested that “there’s no media frenzy aimed at non-Catholic institutions”. She noted in particular the relatively unreported though proportionally far greater (than Catholic) sex abuse crimes among the Jehovah’s Witnesses as but one example of an out-of-proportion focus on the Catholic Church. (It perhaps still needs to be said that most Catholics are more appalled than anyone else at the sexual sins of priests and the disgusting coverups by the Church associated with these sins).
In his 2011 book, Catholic Priests Falsely Accused: The Facts, the Fraud, the Stories, David J Pierre Jr outlined dozens of cases where the accusations of sexual abuse levelled at American priests innocent of the crimes over which they were accused. He revealed the harm done to these innocent priests, the cost to their reputations, the false incarcerations, the denial of their priestly faculties, the wicked lies told against them. Pierre also spoke of the proportion of accusations of sex abuse that turn out to be false, or at least unproven. Some law enforcement officers he interviewed for his book suggested the number is quite high, around twenty per cent. The estimated numbers of false accusations vary widely among researchers who have examined the issue, and the exercise of determining how many accusations are false is highly problematic. Nor does the estimation of the likely number prove anything about the likelihood of specific accusations being true, or not.
David Pierre’s earlier book was titled Double Standard, and speaks of the issues raised by Monica Doumit.
The harm done to all victims of false accusations is invariably massive. In the Carl Beech case, people of previously impeccable reputation died with their reputations shot. Some already deceased had no chance to defend themselves. People went to prison. Families were destroyed.
The legal practice Sydney Criminal Lawyers states it bluntly – “false sexual assault accusations ruin lives”. Reputation. Career. Freedom. Bank balance. Family.
The group also notes:
Those who consider the percentage of false allegations to be high also highlight the fact that police do not act upon all accusations, and those which they view as entirely unsupported or contradicted by other information may not be picked up by the statistics.
And the number of false accusations appears to be increasing, driven by many and varied unedifying motivations.
David Pierre has shone a light on the motivations of one self-interested group in particular:
… the group SNAP (Survivors Network of those Abused by Priests) – whom the media has called upon repeatedly over the years as a reliable voice to bash the Catholic Church over its handling of the sex abuse crisis – was actually nothing more than a front group for contingency lawyers and was driven by a deep ideological animus against the Church.
This is merely one of the many legally well connected, so-called “survivor groups” like Broken Rites, whose core business could reasonably be argued to be to destroy the Church by first destroying the reputations of its priests, under cover of protecting.
The connections between priest chasing lawyers, investigating police officers and survivor groups are highly integrated, even sinister. Here is Pierre again:
… as Hammond [a SNAP whistle blower in the USA] became more familiar with the inner workings of SNAP, the more she became concerned that SNAP was not simply an innocent “victim advocacy group.” She was especially troubled by the group’s cozy relationships with Church-suing lawyers and the “donations” that poured in from them.
Richard Guilliart, in a recent article in The Australian titled “Reasonable Doubt: Why Sex Abuse Convictions are Being Overturned”, took a very balanced approach to the controversy surrounding these issues. In the article it is clear that police now think they always have to believe the victim. Survivors groups are locked in to regarding all “victims” as, well, victims. Instances of false accusations are shown to be not uncommon, and can even be made on the basis of a joke or a dare. Some legal figures implausibly deny that there has been an increase in implausible cases of sex abuse accusations. They are staunch defenders of the “reforms” of the early 2000s which have effectively upended the presumption of innocence for the accused and have stacked the odds in favour of complainants.
Is there a real opportunity now for a re-examination of the unfortunate changes to the legal system and the legal culture to which they have led? There are a number of straws in the wind. A recent report by Gavin Silbert QC on the Victorian Court of Appeal under the leadership of Justice Chris Maxwell (a member of the now notorious panel of judges who heard the Pell appeal), reveals a shameful record.
The Australian newspaper put it thus:
Victoria’s Court of Appeal savaged in landmark legal study.
Another report noted:
"The first 10 years of the Court of Appeal in its criminal jurisdiction saw its judgments affirmed on 10 occasions and reversed twice by the High Court which disapproved of two authorities," Mr Silbert said.
"The next 14 years have seen the Court of Appeal's judgments reversed 16 times and affirmed on six occasions, with a large number of its decisions criticised, particularly in the area of sentencing."
The report states that between 2006 and June 2019 there were 216 applications for special leave to appeal to the High Court from the Victorian Court of Appeal of which 37 were granted.
This is, by any standard, an astonishing fail rate.
Speaking of Victoria, the appalling practices by Victorian police related to the Lawyer X affair have been exposed during the McMurdo Royal Commission as deceitful, corrupt, illegal and damaging both to individual criminal prosecutions and to the State’s entire justice system, whose reputation post-Pell is in tatters. That the now suddenly Covid-embattled Premier of Victoria has done nought to address the blatant and systemic police corruption and deceit in his state speaks volumes for his own standards of propriety and decency. And for the apparent hold that those who control the justice system in Victoria have over Daniel Andrews.
Hence all Victoria’s manifest legal problems continue. But for how long can they be ignored?
Sadly, though, it is not only Victoria that has issues with its justice system. The appalling Federal Court decision this month in relation to the sacked James Cook University academic Professor Peter Ridd demonstrated the justice system’s contempt for freedom of speech. But this is merely one recent example of judicial bungling. The need for an inquiry into Australia’s justice systems grows by the day.
Yet not all cases of justice denied make the national papers.
Pell’s case was generously funded by Catholics and non-Catholics and rich and poor alike. It garnered massive and continuing international interest because of Pell’s ecclesial seniority and fame (or, to many, notoriety). Yet this is the exception. What about all the cases of wrongful accusation which go to trial, and find against the accused, as well as the cases where allegations which do not necessarily go to trial are sprayed across the media without the accused having the remotest opportunity to have the claims tested and defended? Or the cases where the allegations made against someone are the subject of a civil trial, with its own substantial risks of unjust outcomes?