Issue 6, Volume 17
Content Warning: This article discusses sexual assault.
“It is better to allow ten guilty men to escape than allow one innocent man to suffer.”
Our criminal system is based upon a lofty premise: that depriving an innocent person of their liberty and freedom is worse than allowing a presumably guilty person to roam free. Unfortunately, today we probably witnessed the unfortunate turn of events where we allowed a guilty individual to escape. An overall injustice has more than likely occurred. George Pell’s accusers deserve our belief, and it is important to remember that George Pell is not necessarily innocent, but merely acquitted.
Despite all this, and this is no comfort at all to those who have suffered sexual violence, procedural justice has been achieved. This is a thoroughly unpalatable outcome; however, it is processes and reasoning like these that keeps our criminal justice system to a high moral standard. The flaws here do not lie with the courts and the law, but perhaps more with the prosecution case that failed to challenge large amounts of evidence that indicated that it would have been impossible for George Pell to have performed the depraved acts at the time and place that they were alleged. Basing the entire case upon the persuasive and convincing video evidence of the survivor is probably not best practice. The fault also lies with a society that has allowed for sexual abuses to be covered up and left undiscovered until so much time has passed that proving that the abuse has occurred is a gargantuan task.
The concepts that have today allowed Pell to be acquitted should not be belittled by this occurrence, however we are already beginning to see the media do so. The public perception of the legal system is already not in a good place, and a result like this will surely cause faith to decrease even further. It is incredibly unlikely that members of the public will read the summary of the judgment, let alone the judgment itself. Instead it just appears that the High Court of Australia has decided to let a paedophile walk free, perhaps on a whim, and not because of evidence to the contrary. Magda Szubanski has tweeted that “reasonable doubt is the paedophile’s best friend” with 2,400 likes and counting. Reasonable doubt is a concept that has protected and saved countless innocent people from death and imprisonment throughout the years and is not something that should be demonised at all. The Betoota Advocate, which despite being satirical now wields an immense amount of power in shaping popular opinion, has released an article denouncing the High Court and the legal process. Betoota’s article was released before the author of this article had even finished reading the full judgment of the HCA, and solely makes reference to the summary. The Betoota should not be taken seriously at all times but the lack of research and knowledge exhibited in this article borders on being classed as Fake News. Clementine Ford tweeted to her mass of followers that she doesn’t care what “the High Court and his high profile pedo friends have to say”, which set off large accusations in the replies that the High Court was corrupt and hell, probably in on it.
What is probably worse than the emotionally charged reactionary spin from the above commentators, has been Andrew Bolt’s response. Bolt has already claimed that Pell is “innocent”, the investigation was a “witch hunt” and that Pell’s conviction at trial, and VCA appeal is “the greatest miscarriage of justice in Australian history”. Andrew Bolt would do well to avoid spreading misinformation and note that acquittal and ‘not guilty’ do not share the meaning of the word ‘innocent’. He should also recognise that serious allegations of sexual abuse deserve thorough and comprehensive investigations, and hopefully a judicial process that uncovers some semblance of justice. That does not a witch hunt make.
I have also seen that many on the annals of Twitter and Facebook are outraged at the High Court’s audacity to overturn a ruling by jury. It is easy to see why – being judged by a panel of your peers has been a cornerstone of the English system since Magna Carta. But juries need oversight, especially in high profile cases. Time and time again the jury system has been manipulated, and time and time again juries have erred. To argue that the High Court’s judgment here is flawed because it discounts the jury verdict is a weak argument. To disallow judicial review would cause far more problems than allowing such review.
We have every right to be frustrated – on its face this is a rather disappointing decision. Yet it is a procedurally fair one. The High Court has made its decision, and this is not to take away how demoralising this must be to sexual assault survivors, however, as law students we should not lose sight of what makes the process fair and hopefully more often than not, just.
Harriet Baker-Jones is the pseudonym of a third year JD student.