The essence of conservative philosophy is the preservation of things that aren’t broken: the societal institutions and traditions that have endured and served, more or less, well. Of these, none is more important than the rule of law. So it comes as a surprise (not really) that, in the aftermath of the conviction of George Pell, the most dramatic consequence has been a full-scale assault on the rule of law by self-described conservatives.
Andrew Bolt was first out of the gate, declaring that Pell had been “falsely convicted”; this was his “opinion, based on the overwhelming evidence”. He doubled down on Sky: “I just can’t accept it”.
Miranda Devine was close behind, writing that the verdict has made “a martyr of an innocent man”, who she personally doesn’t “believe” could be guilty.
Out on the conservative fringes, the news broke that Pell had been blessed with a personal character reference from John Howard. Then there was Professor Greg Craven, Vice-Chancellor of Australian Catholic University, who wrote a piece in The Australian savaging the verdict but forgot to disclose that he had also provided Pell with a character reference. And, never one to miss an opportunity to be on the wrong side of history, Liberal backbencher Craig Kelly tweeted that there had been a “miscarriage of justice”, based solely on what Andrew Bolt said.
The death blow came from a lawyer. Father Frank Brennan AO — Jesuit priest, academic and human rights lawyer — dropped into the ABC’s 7.30 to deliver a carefully calibrated effort which he backed up in an opinion piece for the Jesuit publication Eureka Street. After a lengthy recitation of the prosecution case, Brennan set about his task:
Richter [Pell’s defence counsel] criticised inherent contradictions and improbabilities of many of the details of [the victim’s] narrative … I found many of Richter’s criticisms of the narrative to be very compelling.
Brennan went on with his forensic analysis of the evidence. He found it “most unlikely” that a bishop would have left a recessional procession to “retreat to the sacristy unaccompanied”, as the victim had testified Pell had done before his first sexual assault. Further — “it was impossible to produce an erect penis through a seamless alb [the robe worn by a bishop]”. Thanks for that, Frank.
Brennan was sure of his findings:
My only conclusion is that the jury must have disregarded many of the criticisms so tellingly made by Richter of the complainant’s evidence … Although the complainant got all sorts of facts wrong, the jury must have believed that Pell did something dreadful to him. The jurors must have judged the complainant to be honest and reliable even though many of the details he gave were improbable if not impossible.
Bolt and Devine had likewise discussed the evidence and their assessment of its improbability.
Not one of these judges sat through Pell’s trial. Nobody — not the media, not the public — apart from the judge, jury, accused and counsel, saw or heard the evidence of the victim. Pell himself did not take the stand. So, what exactly have Brennan, Bolt and Devine been analysing? Essentially, a summary of the factual elements of the prosecution case. What they were doing was the very thing they claimed had made Pell a victim: conducting a trial by media.
It’s acutely obvious that their refusal to accept the verdict of a jury is the height of screaming hypocrisy. The reasons why Pell’s most ardent defenders keep going, well beyond rationality, are equally obvious: Pell was one of the demi-gods of Australia’s conservative establishment; his fall is so devastating, so definitively destructive of the Catholic Church’s last shreds of moral authority, that it just cannot be allowed. So, they risk their own standing by continuing to defend a convicted paedophile.
Consider the consequences for the law. The criminal justice system is a construct, built on foundations of principle. The rule of law requires our agreement to obey its strictures, respect its courts and accept its verdicts. In criminal law, principle starts with the presumption of innocence, in pursuit of which the system bends a long way in the accused’s favour. Guilt can only be determined by an extreme standard: beyond reasonable doubt. Once that has been established, the verdict is beyond reproach. The right of appeal does not change that.
Lawyers are sworn to preserve and protect the rule of law. We do not — we may not — take it upon ourselves to publicly prefer our personal opinions to the verdict of a court, whether delivered by jury or judge. If we do, we undermine public confidence in the criminal justice system.
What is so extraordinary about this moment is that this pillar of civil society is being attacked by so-called conservatives. Their refusal to accept Pell’s conviction is not merely a reactionary whinge; it is dangerous. These people are pointing to a world in which the law has no entitlement to decide rights and wrongs. That’s the definition of anarchy.
Pretty ironic if the people who end up burning down the temple are the high priests themselves.
The right-wing hasn’t been conservative in the old sense in a long time, really. They stand for the proposition that they are the people who should be in power, and to preserve the status quo (the rich stay rich, the powerful stay powerful, the persecuted stay persecuted- back in your boxes minorities and women!).
The justice system is great when it supports them and horrible when it doesn’t. The same goes for all other institutions. Freedom of speech and the media is fantastic when the media is Bolt or Fox News and full of dangerous lefty rubbish which should be censored when it doesn’t go their way.
As I was expressing in response to Guy Rundle’s piece yesterday, an independent judiciary and the rule of impartial law, even if it makes mistakes sometimes, is THE defence that the powerless have against the powerful, the thing which stands between democracy and tyranny. It is not a conservative bulwark to be feared, it is a key part of our democracy to be celebrated, and it’s sad that someone like Rundle can only see it as an arm of the government- which it might be in some countries, but presently is not in Australia, as long as we can preserve it from “conservatives”.
Ironically, it is the decades of wily cashed-up institutional cover-ups and legal technicalities that have in the end produced a putrid dodo’s egg.
That’s why conservitives do all can to stack every institution including the courts.
Notice that to them the process was wrong because it produced the “wrong” result. They’d have kept mum if it had returned not guilty.
Interestingly, in his appeal submission, Richter is now using phrases like “once-off offender”, “non-premeditated” & “Vanilla Sex Act”. Hardly words of someone that believes their client is innocent.
No, that’s his submissions in mitigation of sentence, which is distinct from an appeal against conviction. Once an accused becomes a convicted offender as a result of the jury verdict, defence counsel have to proceed on the basis that the facts were as the jury found them. So it’s not evidence he doesn’t believe in the innocence of his client (whether he does or not – so what? That’s for the jury to decide – his lawyers’, The Bolta’s, my opinion on his guilt or otherwise is irrelevant) or is making an admission on Pell’s behalf. He’s saying, “The jury convicted him of these offences. In my submission, these are the reasons the court should regard them as less serious than other offences of the same kind and therefore give my bloke a shorter sentence.” When the client maintains he’s innocent in the fact of a finding of guilt, defence lawyers don’t often have a lot to work with. His” vanilla” description – unfortunate and crass as it was – won’t undermine his arguments on appeal.
Also, make no mistake. If the defendant had been a Muslim, or a person of Sudanese/Somali background, these same “conservatives” would not only be cheering the decision, but would even now be using it as a hobby horse to push, again, for deportations & restrictions on Immigration from non-white Countries.
good on you Crikey. Michael Bradley’s article today shows the other side of the coin to Guy Rundle’s article yesterday. I’m with Michal.
Likewise LG. Rundle’s sophistry and those who supported him were depressing and alarming at the same time; not good for blood pressure and atherosclerosis.
C’mon people, let’s not be unidimensional simpletons like the Bolt’s and Devine’s. Both Guy and Michael are painting useful perspectives on a complex issue.
A reasonable reading would see that the two articles were not in conflict at all. I’m quite concerned at the lack of analysis and appreciation of nuanced argument shown by my Crikey brothers mostly.
Here, here DB
Woof. Both arguments were so chunky, you could carve them.
Indeed.
Brothers and sisters please Dog’s Breakfast
thank heaven for DB’s perspicacity.
Agree, agree, agree!
The reaction of the reactionaries seems to be that they see themselves above the law. It is clear also that the Catholic Church has learnt almost nothing from the years of institutional abuse it has harboured. No wonder they longer have much moral authority left.
The sooner they have none at all, the better in my view.
The entire construct is a monstrous waste of time and energy, with millions of deluded followers and abused kids (even the ones that escape sexual abuse still cop plenty of mental abuse with torments of hell and other idiotic control mechanisms).