Grounds for suspicion

There is nothing unbelievable about a Prince of the Church being a thoroughly corrupt criminal.

People who claim to be in direct communion with supernatural beings and and make a living from interceding with them on behalf of petitioners are widely regarded as dishonest or delusional. They used to be generally trusted and many still trust them. But many more don't.

Being a Cardinal is now, in itself, grounds for suspicion. Perhaps also grounds for suspicion of a sense of invulnerability that might explain implausibly brazen attacks rather than the more usual furtiveness of corrupt criminals. Knowing that one is both untrustworthy and trusted could explain a lot.

But grounds for suspicion and grounds for conviction are quite different matters.

It is a crime under s316 of the NSW Crimes Act s where a person "knows or believes" that a serious crime has been committed, and fails, without a reasonable excuse, to inform the police.

An Archbishop convicted by a jury for failing to report child abuse under s316 was quite recently acquitted on appeal. The court held there was a reasonable doubt as to whether he believed the allegation.

There was no widespread dismay or enthusiasm about that Archbishop being charged and found guilty, nor at the subsequent acquittal.

That is because both the prosecution of the Archbishop and the appeal made sense and it is the normal function of courts for some jury convictions to be held unsafe on appeal.

But public reaction to the recent conviction of a Cardinal is much deeper and will not end with either result from the appeal.

What does not make sense is that there has been no regular flow of such cases, with both convictions and acquittals since the Royal Commission on Child Sexual Abuse documented the extent of deliberate concealment of abuse by institutions supposedly caring for children, especially by religious institutions and most notoriously by the Catholic Church.

The Cardinal's case is viewed quite differently because he was not charged with an offence that actually made sense.

The Royal Commission recommended codification of an offence similar to that now in s49o of the Crimes Act Victoria. This provides 5 years imprisonment for "Failure by a person in authority to protect a child from a sexual offence".

The offence requires a substantial risk existing, knowing of the risk, being in a position with power and responsibility to reduce or remove the risk and negligently failing to do so, that is, "falling short of the standard of care that a reasonable person would exercise in the circumstances."

http://classic.austlii.edu.au/au/legis/vic/consol_act/ca195882/s49o.html

That seems a pretty good codification of the crimes that George Pell and his colleagues have been accused of but have not been charged with.

Does recent codification of the offence preclude charges based on crimes committed before the codification?

In what barbaric society has it ever not been a crime for people responsiible for taking care of children to neglect protecting them? Has the moral panic about child sexual abuse obliterated memory of the mandatory protection of children from harm in general that predates civilization and has nothing to do with either sex or police? "Little Children are Sacred".

George Pell was convicted of raping two children because nobody from the Church he leads has been charged with notorious crimes of failing to protect children.

Retribution is an important element of criminal law enforcement quite separate from deterrence and rehabilitation. If you allow impunity for notorious crimes you can expect far worse than unsafe prosecutions on some pretext or other. Sacrifice of scapegoats may or may not catch a guilty scapegoat. But its most likely result is to satisfy the instinct for retribution while letting criminals escape justice.

Historically children complaining of abuse have often not been believed, not only by priests, and especially when the complaints are made decades after the event. That has made it necessary to relax rules of evidence regarding corroboration, tendency evidence and joint trials and to instruct juries that it is not uncommon for an adult to come forward with a complaint decades after the event and to be inconsistent about the details.

There was a history of police collaboration with authorities accused of child abuse, especially catholic police with church authorities. That had to be reversed by training police as well as social workers to side with and believe the accuser.

These changes are intended to increase the proportion of successful convictions and necessarily create a very real danger of wrongful convictions. There are good reasons for the opposite policies to be followed for most serious crimes. We prefer to risk guilty people being acquitted than innocent people being convicted.

The exception that has been made for child sexual abuse puts a heavy onus on prosecution authorities to determine whether a prosecution would be unsafe. They can make that decision more objectively at a distance. Police and social workers can still comfort and side with the victim despite the prosecutor's decision not to put both accused and accuser through a trial that should, if it results in a conviction, ultimately be overturned as unsafe on appeal.

The alternative of putting every accusation before a jury that police trained to believe accusations find credible, would inevitably result in unsafe convictions.

No prosecution could be more manifestly unsafe than that of a rightly despised and reviled Prince of a Church whose leaders are widely known to have escaped trial for serious crimes of omission and concealment based on a single individual's accusation about events two decades ago with no supporting evidence whatever.

George Pell could not give evidence himself because his credibility would have been ripped to shreds with questions about his behaviour in protecting the racket he works for instead of the children placed in their care. Putting him in the witness box would have presented the jury with an unsavoury character who deserves some sort of punishment for something.

The police actively solicited complaints against Pell. That is an understandable reaction to the impunity with which the Church he led has obstructed justice instead of rescuing children in their care from predators on their staff. The widespread enthusiasm and relief with which the verdict was greeted clearly reflects the same reaction. It has nothing to do with the specific charges and is openly proclaimed to be therapeutic for victims of the church generally. The coverage screams that it is sacrifice of a scapegoat.

I don't agree that there was an atmosphere of hysteria that would have made a fair trial impossible.

It was quite possible that a jury could have concluded there was a reasonable doubt. A previous jury failed to agree. Perhaps that was what the prosecutors expected would happen. They just didn't want to cop the blame for not locking up a creep like Pell themselves and preferred to leave it to a judge and jury who would be less likely to be accused of covering up.

Fear of such accusations would have had a real basis. Just look at the complaints from the Premier of Victoria and the likely next Prime Minister of Australia at the friends of Pell who showed "bad judgment" in standing by him with character references. It doesn't take much courage for friends to not desert each other and it doesn't take much courage for prosecutors to put up with accusations. But it takes utter shamelessness to parade one's good judgment in shunning friends that are in trouble and demanding that others behave the same way.

I am no friend of George Pell, but I do know he should not be made a scapegoat just because the police wanted to look like they were doing something about the impunity and obstruction and the prosecution authorities didn't want to be suspected of covering up church crimes. So do the shameless opportunists celebrating and denouncing.

So do Pell's friends and referees. If he is eventually convicted of failing to protect children they may not agree but they won't be able to convince themselves, let alone anybody else, that he was purely a scapegoat rather than legitmately accused and necessarily tried.

Pell's conviction for raping children was manifestly unsafe because the prosecution was manifestly unsafe.

It is not enough for the conviction to be overturned and for genuine crimes of failure to protect to be tried. There are grounds for suspicion that there should also be another much more significant trial.

By offering a scapegoat the prosecutors were effectively avoiding difficult trials for real crimes. If that was done intentionally it was a direct attack on the rule of law by the authorities responsible for maintaining the rule of law. Whether it was done intentionally should be impartially investigated by an independent prosecutorial authority from another State, considering prosecution of the Victorian prosecutors for misconduct in public office.

Eventually a lot of people from a lot of institutions will need to be put on trial. For the Catholic church it is a world wide problem. Civil reparations throughout the world will require records from the Vatican and sale of the valuables in the Vatican. That first requires ending the pretence that it is an independent sovereign absolute monarchy as established by a treaty with the Italian fascist dictator Mussolini.

This Royal Commission quote from Pell looks to me like an admission of guilt for proceediings based on "command responsibility" and "criminal failure to take action to prevent foreseeable harm to children". Many others would be joined in the same proceedings.

"If the truck driver picks up some lady and then molests her, I don't think it's appropriate, because it is contrary to the policy, for the ownership, the leadership of that company to be held responsible," Cardinal Pell told the commission via video link from Rome.

Commission chair Justice Peter McClellan said priests got access to children with the parents' consent, unlike truck drivers.

"The relationship between the priest and a child is quite different to that between the truck driver and the casual passenger, isn't it?" he asked Cardinal Pell.

"Yes, I would certainly concede that," Cardinal Pell responded."

The "ownership, the leadership" of the flock may view their role as shepherds preparing their flock for fleecing the same way other corporate criminals do. But our society is less tolerant of failure to protect children from abuse than of the usual run of corporate crime such as bankers stealing from dead clients.

I am not a prosecutor so it isn't up to me. But Victoria urgently needs competent prosecutors with integrity.