Reflections on some recent legal matters

Recent events concerning Cardinal Pell and the former justice, Heydon, provide an opportunity to reflect on the role of two institutions – the church and the law – in contemporary society

Traditionally a role of each has been to enforce a morality, although the authority of the Church has been greatly weakened. The great majority of people have a sense of 'Right and Wrong' but an opposing force is self-interest, and whether one gives in to this depends on the circumstances. I could avoid declaring certain income on my tax return, but what would stop me would be the embarrassment of being found out. The abhorrent child abuse behind the pornography on the 'Dark Web" reveals how depraved some people can be if they believe they will not be found out.

The legal system has the capacity to act when some individual transgresses what 'society', or those members of it able to exert influence, take to be morally right. Some cases are clear – murder – but others – opposing gay sex – were for a long time a case of the majority opposing the rights of a minority.

However, the authoritarian structure of churches and courts can also act as a cover for what would be considered by most to be immoral behaviour. They are both human institutions, subject to human failings. In both, in order to give weight to their deliberations, a ritual or sense of theatre was created by using hierarchy, setting, costume and rituals. The danger was always that by acting 'in the place of God' they could come to see themselves as gods.

Dyson Heydon

On October 17, 2017 the former Justice Heydon gave the inaugural P M Glyn Lecture on 'Religion, Law and Public Life' at the Australian Catholic University. This was reported in The Australian on November 4 under the heading "Attacks on Christianity strike at the protections enjoyed by today's society". According to Heydon, Patrick McMahon Glynn was the author of the words "humbly relying on the blessing of Almighty God" in the preamble to the Australian Constitution.

In his address Heydon attacked 'Modern elites [who] do not desire tolerance' and went on to say that since the turn away from Christianity:

In almost every way the past five or six decades have seen a massive decline in courtesy, civility and mutual respect. Seats are not given up to the pregnant, the elderly and the infirm on public transport, travellers are exposed to the private affairs of other travellers.

The attack by the older on a younger generation has been continuous since ancient times, and having a mobile phone conversation in public is hardly comparable to sexual harassment. Since the Justice referred to Christianity, it is worthwhile to quote the words of Jesus in Matthew 5: "You hypocrite! First take the plank out of your own eye, and then you will see clearly to take the speck out of your brothers."

Although at the time of writing, a case has not gone to court, an independent inquiry by Dr Vivienne Thom concluded that former Justice Dyson Heydon had sexually harassed six associates during his decade on the bench. In response, through his lawyers he made a statement that 'If any conduct of his has caused offence that result was inadvertent and unintended.' To be fair, we could take into consideration that such behaviour was common and the assumption was that it did women little harm. However the evidence from the women subjected to this was that it was a clear abuse of a position of power and damaging to their careers.

Cardinal Pell

The judgement of a court is just that – a judgement based on the quality of evidence presented, the fairness of the process and eventually a judgement of the probability of an offence having actually been committed. A 'guilty" verdict is a judgement on whether a person has committed an offence and not proof that an offence has taken place, although it is often treated as such proof, especially by the media.

Possibly the worst case of injustice was that around the death of Lindy Chamberlain's baby Azaria, when it was taken by a dingo in August 1980. Allegations were made that foetal haemoglobin was found in the front seat of the Chamberlains'scar when exactly the same reaction could be obtained from the sound deadener sprayed on the car, or even a child's chocolate milkshake. Despite appeals to the Federal Court in 1983 and the High Court in 1984 the original verdict was upheld. It was not until the accidental discovery of the baby's matinee jacket in 1986 that the verdict was overturned.

In the case of Cardinal Pell, he was at first found guilty of the crime of sexually assaulting two boys in Melbourne's St Patrick's Cathedral in 1996 and 1997, and this conviction was upheld by the Victorian Court of Appeal.

However, on April 7 this year, the High Court, in a unanimous decision, acquitted him on all charges. His supporters were overjoyed, claiming that there had been a 'witch hunt" while others expressed concern for the well-being of the complainant, 'Witness K'

In a summary of its decision the court stated that "on the assumption that the jury had assessed the complainant's evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the applicant's guilt in relation to the offences involved in both allegations."

The bench found that there was "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof".

Although it is sometimes hard to accept, it is still far preferable to apply the 'requisite standard of proof', even if a guilty person avoids conviction rather than have the situation, as in the Chamberlain case, where an innocent person is convicted.