Introduction

After the High Court’s (HCA) decision in the appeal of Cardinal Pell, I wanted to write a few lines that might help all our dear parishioners navigate some of the complexities that have been highlighted in recent media coverage. I know that the mainstream secular press has not always been the most reliable in this current matter, so I thought some of you might find the following helpful if you are challenged about the issues. There are two main lines of argument that are run in order to cast doubt on the justice of the High Court’s decision.

A Technicality

The first question is usually put like this: “the High Court of Australia has acquitted a person who has been found guilty by a unanimous jury verdict, and thus the acquittal was made on the grounds of a technicality.” Put simply “Pell got off because of a trick.” It is phrased in different ways, but the essence is the same- justice was denied because of some “lawyer trick”. Lawyer tricks are usually the refuge of people who fail to understand an issue with sufficient depth or clarity. Not that lawyers can’t be tricky, it is however unlikely that the High Court of Australia fell victim to such tricks. Not all seven justices anyway.

The essence of the Common Law is that it is a “bottom up” system of justice. That is, the Common Law arises as a response to the questions of justice of the common man. It is perhaps the crowning achievement of the English and it is the system of justice established in this country. The essence of this system is that it responds to the needs and concerns of the common person. It is not a ‘top down’ system of justice that is imposed by those who rule and govern. Rather it is an attempt to bring justice among men from the common experience of men- hence the Common Law. This system is essentially a Christian invention. The biblical idea that we are each created in the image and likeness for God means that each person, no matter who he is, his station in society and even the crimes of which he is accused, does not lose this dignity. You are not more like God because of what you own or who you are. The King and the commoner are both equally made in the image of God, although one be more King, nether are less divine.

This then is the basis of a jury trial. A jury trial is that institution of the Common Law that upholds the inherent quality of the divine amongst men. It is not a system whereby one man judges another, which is a system of preference governed by a system of superiority of one man over another. Rather, it is a system whereby you are judged not by one peer, who could be mistaken for you superior, but rather a cross-section of you peers, so that only the image of God judges the image of God. That is the essence of our jury system.

However, being a Christian invention, we are well aware of the fickleness of the human condition. Any Christian system must deal with the fact of original sin. Although each of us equally bears the image of God, we do not bear that image perfectly and without the stain of sin. Hence, although the jury system is foundational to the Common Law, it is not the infallible and exclusive arbiter of the Common Law. Hence, we have a system of appeals. I will not address some of the more technical aspects of the appeal process, suffice it to say, it is a check and balance that seeks to mitigate the effects of sin. To give an example. If you have posted anything online, you know some of the comments you get give you an insight into how some

of your peers understand the world and the things you post. This cross section of the populace is also from where a jury of your peers is drawn. I bet you are glad that your fate is not decided by that cross-section of your peers in the comment’s section. The jury system is a marvel, however it is not an infallible one.

Essential to the jury system of Common Law is the presumption of innocence. This institution of British Justice is the golden thread of the Common Law. Again, it is to safeguard the divine image imprinted on the human soul. We do not ascertain guilt or innocence by how we prefer the accused party. If we like him- he couldn’t possibly be guilty. If we detest him- he couldn’t possibly be innocent. There is a strong gravitational pull on the fallen human heart to prefer one person over another. Hence our system of justice requires the presumption of innocence and the establishment of guilt beyond a reasonable doubt. The prosecution must always prove its case beyond a reasonable doubt. What a reasonable doubt is will depend on the case, the facts and the accusation. It is not a static reality. However, that is the purpose of a criminal trial- that twelve people will not be left with a reasonable doubt at its conclusion about the guilt of the accused. Given our fallen nature and tendency to prefer, the appeal process is mean a to safeguard against preference. There are those cases where a conclusion will be formed about an accused before the trial begins. Especially in our social media, gossip driven world. Hence, a lengthy appeals process that respects these institutions and always seeks to protect their integrity by being a corrective to their fallen tendencies. We certainly do not have a perfect system of justice, however in theory, that is how it is meant to function. And I argue that it did so in the case of Cardinal Pell.

Acquittal

The second question is that acquittal does not mean innocent. The media love to report that the HCA did not find the cardinal innocent- just not guilty. This is a disingenuous way of putting the outcome. Not guilty in a court of law is innocent. “Acquittal” is the finding of not guilty in an appeals process. I will not give a lengthy explanation that involves a bit of philosophy about how proving a negative proposition is actually a torturous task and practically impossible. However, what I will do is just explain how the legal system in Australia operates. Those who say that acquittal does not equal innocent are misleading you. Here is what the legal system in Australia says about acquittal:

R v Darby (1982) 148 668; 40 ALR 594, Murphy J said Once a verdict of not guilty is returned, judgment of acquittal is entered and that judgment

is decisive of innocence.

Further at [683], [605]:

Previously this Court has made it clear that an accused is to be taken as entirely innocent of any charge of which he was previously acquitted (see Garrett v The Queen (1978) 139 CLR 437 and R v Storey (1978) 140 CLR 364)…[The only justification for this is that acquittal is a judgment of innocence]… In Australia there are no degrees of acquittal. As between the State and the accused, either every judgment of acquittal is conclusive of innocence or none is. The doctrine that acquittal does not mean innocence is unacceptable in a free society.[1]

An acquittal is a finding of innocence. In

at [682], [604]:

See also Gibbs J and Jacobs J in R v Storey (1978) 140 CLR 364. Grdic v The Queen

There are not different kinds of acquittals and, on that point, I share the view that “as a matter of fundamental policy in the administration of the criminal law, it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence”…To reach behind the acquittal, to qualify it, is in effect to introduce a verdict of ‘not proven’, which….has never been…part of our law.

Grdic v The Queen (1985) 1 SCR 810 was applied in R v Arp (1998) 3 SCR 339: A verdict of acquittal cannot be challenged in a subsequent trial, except in jurisdictions which have introduced exceptions to the double jeopardy principle.

I hope this helps you. If you are a bit overwhelmed by it all, just print it out and give it to the person for their reflection. I have tried to make this a resource to help you be the Apostles of truth the Lord is calling us to be. It is not an easy task. If it were, almost everyone wold do it.

God bless you all this Easter.