GERARD HENDERSON’S MEDIA WATCH DOG
ISSUE – NO. 495
8 May 2020
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The inaugural issue of “Gerard Henderson’s Media Watch” was published in April 1988 – over a year before the first edition of the ABC TV Media Watch program went to air. Between November 1997 and October 2015 “Gerard Henderson’s Media Watch” was published as part of The Sydney Institute Quarterly. In March 2009 Gerard Henderson’s Media Watch Dog blog commenced publication.
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Stop Press – Some observations on media responses to the Royal Commission’s unredacted findings; A verbal punch-up on Paul Murray Live
Editorial – Paul Fletcher v Paul Barry re ABC funding
Can You Bear It? The Age’s Wendy Tuohy on happiness in lock-up; Dr Norman Swan on the origins of COVID-19; Niki Savva on Insiders panellists critiquing the ABC
Media Fool of the Week – Mike Carlton proves Godwin’s Law
Bush Lawyers v The Common Law – Starring Justin Smith, Barrie Cassidy, Jon Faine etc.
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THE ROYAL COMMISSION’S UNREDACTED FINDINGS – SOME OBSERVATIONS
It’s interesting to note how so many members of the Anti-Pell Media Pile-On have enthusiastically embraced the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse with respect to Case Study 28 (Ballarat) and Case Study 35 (Melbourne) – the un-redacted versions of which were released yesterday.
MWD will examine the case studies in due course – after checking what has been unredacted and what was in the original reports. In the meantime a few comments are warranted.
۰ Peter FitzSimons’ Legal Howler and the (then) Peter McClellan QC’s 1991 Misgivings
Last night Nine Newspapers’ Peter FitzSimons sent out this tweet:
Can my legal friends in this field tell us, please? Does the scathing judgement by the Royal Commission of Pell, make it more likely that civil suits will get up against him? Or is it immaterial?
— Peter FitzSimons (@Peter_Fitz) May 7, 2020
This is hopelessly wrong. Royal commissions do not make judgments – they make findings. They are not a court of law – consequently there is no appeal against their findings.
In fact royal commissions have their limitations. This was pointed out by Peter McClellan QC in the years before he became Justice McClellan of the NSW Supreme Court and, later still, chair of the Royal Commission into Institutional Responses to Child Sexual Abuse.
Writing in Current Issues in Criminal Justice in 1991 Peter McClellan criticised the operations of the NSW Independent Commission Against Corruption (ICAC) and extended his comments to cover royal commissions in general.
Mr McClellan wrote “In recent years there has been an increasing trend in government to invoke royal commissions of inquiry to investigate particular problems. The frequency of such inquiries and the sensational reporting which they have attracted has tended to create a belief in some people that this is an appropriate method of handling any matter of public controversy. This is a view expressed by the press.”
While recognising that “royal commissions may affect great community good”, he argued that they might “cause considerable harm to persons unfairly trapped by the blaze of sensationalist publicity which can be created”. The QC concluded by maintaining that commissions – including Royal Commissions – of inquiry should accept “that persons should only be convicted after due process in the relevant court”.
Quite so. Peter FitzSimons please note.
۰ Victoria Police’s Failure to Arrest Pedophile Priests John Day and Gerald Ridsdale
Those who followed the media reports of the Royal Commission’s findings yesterday could have got the impression that Fr George Pell (born 1941) was primarily responsible for the fact that in the 1970s notorious pedophile Catholic priests Monsignor John Day and (then) Fr Gerald Ridsdale continued their crimes in the Ballarat diocese. And that they would have been arrested if only Pell had acted on what he was found by the Royal Commission to have known at the time about their crimes.
This is ahistorical – as those who have read Unholy Trinity (Allen & Unwin, 2013) written by Denis Ryan and Peter Hoysted (aka Jack the Insider). The authors point out that the crimes of Day and Ridsdale were known to Victoria Police in the early 1970s. Denis Ryan lost his job in Victoria Police for attempting to act against Day. For a summary see Jack the Insider’s article: “George Pell appeal: Don’t accept sanitised history of clerical abuse” in The Australian Online, 9 April 2020.
۰ Paul Bongiorno’s Omissions
Then there is The Saturday Paper’s Paul Bongiorno’s tweet of this morning:
The hidden findings on George Pell are now clear: he could have protected children from abuse. He didn't https://t.co/mgszmyLXHx
— Paul Bongiorno (@PaulBongiorno) May 8, 2020
Mr Bongiorno did not remind his readers that, like Pell, he once shared accommodation with Ridsdale for a year in a Catholic presbytery. Like Pell, Bongiorno said he was not aware of Ridsdale’s crimes – there is no reason to doubt this.
Nor did Mr Bongiorno (as he now is) advise his Twitter followers that he is mentioned in the Royal Commission Case Study 28 re which see pages 54-55, 170-173 and 241-242.
۰ Ray Hadley’s Rant
On 2GB this morning, Nine Newspapers’ Ray Hadley claimed that Pell once gave “a reference” for Ridsdale when he was charged with child sexual abuse. Hadley just made this up. In fact, Pell refused to give Ridsdale the reference his defence counsel wanted when he was first convicted of pedophilia.
A VERBAL PUNCH-UP ON PAUL MURRAY LIVE AS THE LAUGHING COMRADE GETS STUCK INTO CONSERVATIVES
These days many ABC panels are oh-so-bland. In a sense this reflects a long tradition where, on ABC panels, virtually everyone agrees with virtually everyone else on virtually everything in a left-of-centre kind of way. But there is also the contemporary view in the taxpayer funded public broadcaster that panellists should not disagree with each other too much. Indeed, as avid MWD readers will know, this love-one-another ethos was announced by The Drum co-presenters Julia Baird and Ellen Fanning a couple of years ago.
So it’s good that, every now and then, a Sky News panel gets involved in a verbal punch-up. Like on Paul Murray Live last night when Queensland LNP leader Deb Frecklington squared up against former Labor Party operative and Melbourne University academic Nicholas Reece.
The Queensland opposition leader made the reasonable point that, in these current difficult times, Queenslanders “need a budget we can scrutinise”. She then complained that Queensland premier Annastacia Palaszczuk has decided not to have a budget before the state election in October. Ms Frecklington said that this situation was unacceptable. Paul Murray concurred. And then it was over to an excited Comrade Reece who fired-up. Let’s go to the transcript:
Nicholas Reece: Hang on a second guys, are you outraged that the Federal government has pushed their budget back to October?
Paul Murray: They’ll have one this year. They’re [Queensland’s] not having one at all Nicholas.
Nicholas Reece: Queensland is just doing the same thing that every other government in the country has done.
Paul Murray: No, they’re not having one at all.
Deb Frecklington: Not one budget for the —
Nicholas Reece: That’s because the election is in October, Paul and Deb. I don’t know if you know Deb, but you’re going to the people in October. And like every other government in Australia, the budgets have been pushed back to October.
During his interjection, your man Reece burst into continual loud laughter when alleging that the Queensland opposition leader did not know when the State election will be – despite the fact that she had already acknowledged this.
It’s possible that they don’t teach manners at Melbourne University. As those who have attended MWD’s Courtesy Classes will know, it’s rude to use laughter as a form of disagreement. What’s more the fact remains that Queensland is the only government in Australia not to bring down a budget before the next election. No laughing matter there.
THE ABC’S FUNDING: PAUL FLETCHER v PAUL BARRY
If the ABC wants to have a fair and balanced media program – it would do well to learn from Rupert Murdoch. Instead the ABC TV Media Watch, which commenced in 1989, has always had a left-of-centre or leftist presenter – currently Paul Barry – who preaches from a secular pulpit in a fashionable leftist kind of way.
Not so on Fox News in the United States. Fox News’ MediaBuzz, presented by one-time CNN journalist Howard Kurtz, believes in pluralism. Viewers of MediaBuzz, which airs on Foxtel in Australia, get to know Kurtz’s views. But he doesn’t preach – and is fair to both Democrats (or liberals in the North American sense of the term) and Republicans (conservatives). It’s much the same in Australia with Sky News’ Kenny on Media. Presenter Chris Kenny presides over a media panel which includes on occasions such left-of-centre types as Quentin Dempster, Amanda Wilson and Peter Fray.
Last Sunday morning (US time) the MediaBuzz panel comprised three commentators – Matthew Continetti (conservative), Jessica Tarlow (liberal) and Gillian Turner (conservative). Later on in the program the views of Joe Biden supporter Leslie Marshall were heard. It is the kind of informed and contested debate and discussion which has never been witnessed on Media Watch in Australia in over a quarter of a century. Despite the fact that Fox News is privately owned subscription television and the ABC is funded by the taxpayer.
As watchers of Media Watch and followers of Paul Barry’s Twitter feed will be aware – the Media Watch host is an activist journalist who attacks his conservative political enemies and goes generally soft on his leftist mates, including ABC work colleagues. He was at it again this week tweeting his criticism of the Coalition’s funding of the ABC – as told in a report by GetUp! and the leftist think tank Per Capita and covered by Amanda Meade in the leftist Guardian Australia on Monday:
Remind me. What did Tony Abbott say in 2013? 'No cuts to the ABC or SBS'. … So what happened? … 'ABC loses $783m funding since 2014 when Coalition made its first cuts – report' https://t.co/OI3OxxbtFG
— Paul Barry (@TheRealPBarry) May 4, 2020
So there you have it. Paul Barry, who earns around $200,000 a year for presenting some 15 minutes of television with a back-up staff of around ten, reckons that the ABC is doing it tough on a mere $1.1 billion a year. Really. It speaks volumes for Comrade Barry’s lack of self-awareness that he should put out this tweet at a time of pandemic and near recession – which has led to many, many job losses in the commercial media sector but none so far at the taxpayer funded public broadcaster.
Moreover, Comrade Barry got it wrong. On Wednesday, Communications Minister Paul Fletcher, who is not a public critic of the ABC, told the Daily Telegraph’s Matthew Benns that Per Capita’s report about ABC funding was simply false. This is what the minister had to say:
It is deeply regrettable when factually inaccurate claims are made about ABC funding. To claim the ABC has been “defunded” is at odds with the facts. The numbers show that ABC funding in 2019-20 is higher than in 2013-14 and will be higher again in 2021-22.
These numbers are not a secret, they are published in the budget papers. The Government’s investment in the ABC gives it more financial certainty than any other media organisation in Australia.
The ABC and its journalists enjoy a level of security that private sector businesses and employees can only dream about.
So there you have it. Media Watch presenter Paul Barry – an activist journalist – has identified himself with a report by a left-wing think thank which Paul Fletcher maintains is inaccurate. And ABC management has gone into “no comment” mode and will not respond to questions from the Daily Telegraph.
MWD will analyse the Get Up!/Per Capita document – which Paul Barry endorsed – next week. Here’s a news flash – it contains financial howlers along with a go at “The Murdoch Press” (yawn) plus some push polling and so on. [I can barely wait – MWD Editor]
THE AGE’s WENDY TUOHY – HAPPY IN THE VICTORIAN LOCK-UP IN SPITE OF THE VEGEMITE CRISIS
There was enormous interest in last week’s coverage about how the Herald-Sun’s James Campbell was surviving the current lock-down in Daniel Andrews’ Socialist State of Victoria. Well, as it turned out, he’s doing okay – according to what your man Campbell told his readers on 28 April. He wrote that “in the years to come this will be the time that we look back as the happiest”. It seems that the Herald-Sun’s columnist is enjoying life at home with the wife and kids and dog. However, he did acknowledge that his best of times coincide with the worst of times for others.
It seems that Nine Newspapers’ Wendy Tuohy has a similar view to that of James (“I’m a Melbourne Grammar man”) Campbell. In last weekend’s Sunday Age she wrote about life working from home – surrounded by domestic mess.
Talk about a crisis. The dishwasher is broken down and can’t be repaired due to the virus. And “people are putting butter and Vegemite on their toast using the good bread knife”. It’s a case of “Call the SES”, surely.
But that’s not all. Such is the COVID-19 induced mayhem in the Tuohy abode that the dogs “are being fed slices of that $10 cheddar” while the cat “is enjoying the taste of saucers of Zymil”. Go on. Alas, she did:
The extraordinary thing is, none of this bothers you one bit. Contrary to every order-loving instinct imprinted on your soul up until about March 13, you have, in fact, let go. All the important stuff gets done: the work, the school work, the uni kids’ Zoom classes that count…. It’s been messy, and downtime has been thin, but by absolutely no means has this oddness been all bad.
Sure, Ms Tuohy has trouble getting to sleep due to “the horrible images on the news” concerning COVID-19 and all that. But she has complied with the lockdown and “stayed inside” – so a contribution is being made by the Tuohy clan.
However, The Age’s senior writer showed scant awareness that there are others in the Melbourne community who are leading lives of quiet desperation. Some live alone – without school or uni kids. Some cannot afford computers or iPhones – so cannot access Zoom. Some cannot home-school children of any age. Some have children with disabilities who find life confined to a small house or flat more difficult than usual. Some, indeed, cannot afford $10 cheddar and do not know what Zymil is. Others still have lost their jobs and cannot afford to do a Tuohy and partake of “discount chilli and lime chips…at Aldi”. Not even at Aldi.
And yet Ms Tuohy reckons that Victorians, who experience the toughest lockdown provisions in Australia, should be “grateful” for their lot. The Age’s senior writer is a highly-educated employed journalist. Can You Bear It?
NORMAN SWAN’S (APPARENT) “SCOOP” – NAMELY THAT THE WET MARKET IS NOT THE ORIGIN OF THE VIRUS
There has been enormous interest in MWD’s coverage of ABC medical reporter Norman Swan’s views on the novel coronavirus. Dr Swan while medically qualified, is not an expert on disease control but has been the ABC’s go-to person on matters COVID-19 since the taxpayer-funded public broadcaster discovered this matter sometime in February.
So far his predictions have not been all that successful. On 21 March Swan predicted that Australia would have between 7000 and 8000 known infections by the weekend of 28-29 March 2020. The current figure is 6896 as of 7 May. Note that at the time Dr Swan made his prediction Australia had already closed its borders to everyone but citizens and residents and placed level-four travel restrictions on all overseas travel, among other measures. On 25 March, 4 days after his prediction, Australia’s daily growth rate of new cases fell below 20%, by 28 March it was below 10%. Given that there is a well-established delay between changes in policy or behaviour and resulting changes in the growth of cases, it is clear that at the time of Dr Swan’s prediction he was already hopelessly wrong about the trajectory of COVID-19 in Australia.
And then there was your man Swan’s appearance on the ABC TV Q&A on 23 March. As viewers will recall, he compared Australia on 23 March 2020 with the British Army on the first day of the Battle of the Somme on 1 July 1916 – during which it suffered some 60,000 casualties before lunch. Another false prophecy – which seriously challenged Fran Kelly’s alarmist prediction on 25 March that ICU beds would be overwhelmed by mid-April 2020 in the hyperbole stakes. They weren’t. On Q&A your man Swan also said that closing schools “had the biggest effect” on flattening the COVID-19 curve. Another howler not supported by his source.
However, Dr Swan, who seems to do more interviews on the virus than Commonwealth, State and Territory Health ministers combined, is still lecturing at large on the topic. On Monday, he told Michael Rowland (ABC TV News Breakfast) that “the wet market is almost certainly not the origin of the virus”.
Really. How would the ABC’s COVID-19 “expert” know this? MWD cannot find any expert who has ruled out the wet market – where a variety of wildlife and exotic animals are sold – as a source of COVID-19.
Research has overwhelming concluded that COVID-19 originated in wildlife – likely bats – and passed to humans through an intermediary animal. The wet market is still considered a possible source for this transmission. Many early cases were linked to the wet market and wet markets were implicated in the SARS outbreak.
This week Prime Minister Scott Morrison said that a wet market was “most likely” the source of the pandemic. Perhaps Norman Swan can share his evidence that this is not the case with the Prime Minister. Can You Bear It?
NIKI SAVVA REMEMBERS AN INSIDERS’ CRITIQUE OF THE ABC BY “A FEW PANELLISTS’ – WHICH NEVER HAPPENED
Did anyone see the concluding “Observations” segment of Insiders last Sunday? This is what The Australian columnist Niki Savva – who claims to be a conservative leftie, whatever that might mean – had to say:
Niki Savva: So a few [Insiders] panellists lately have been critiquing the ABC which is fair enough – free country. But all media in this country needs to be freer and safer. So no matter where you sit on the political spectrum, please encourage the government to enact legislation to safeguard media freedom. So that journalists like Annika Smethurst from News Corp [and] Dan Oakes and Sam Clark from the ABC don’t have their home raided and don’t have their offices raided by police simply by reporting what Australians need to know.
Quite so, to a point. MWD sees little benefit in Federal, State or Territory police raiding the homes and/or offices of journalists – unless a serious crime (murder, assault, theft, drug offences, etc) is alleged to have been committed. Which is not the case with respect to Ms Smethurst or Messrs Oakes and Clark. Now let’s critique what Insiders’ very own conservative/leftie had to say about the ABC.
In fact, “a few panellists” have not been critiquing the ABC lately on Insiders. Only one did. Namely, Greg Sheridan – who put his head over the tax payer funded parapet on Sunday 19 April. Only to have it blown-off for having done so – by the formidable trio of Virginia Trioli, David Speers and Peter van Onselen – the following Sunday (26 April) – see MWD Issue 494. But Ms Savva reckons that “a few panellists” have been doing-a-Sheridan on Insiders lately. Not so – or, rather, Fake News. Just the lonely Greg Sheridan. Perhaps Ms Savva doesn’t watch the show when she’s not on it. Or perhaps – like ABC TV Q&A presenter Hamish (“I don’t watch telly”) Macdonald she does not own a TV. And there’s another possibility – perhaps the conservative leftie fell asleep while watching Insiders on 26 April.
As to Ms Savva’s plea for her journalistic colleagues – fair enough. But perhaps she should have declared that Sam Clark is the executive producer of Insiders – and who decides who will be on the panel each week. Especially since Comrade Clark is an advocate of full disclosure with respect to perceived conflicts of interest of others. But not, apparently, with respect to himself. Can You Bear It?
MIKE CARLTON’s GODWIN’s LAW MOMENT
It was early morning up on Avalon Beach yesterday when Mike (“I’ll pour the gin”) Carlton posted this tweet with reference to a column by Janet Albrechtsen:
Certainly the Nazis accepted that. Lives of lesser value were packed off to Auschwitz, Dachau… pic.twitter.com/NFDFxADguT
— Mike Carlton (@MikeCarlton01) May 6, 2020
Godwin’s Law is an internet adage coined by the American author Mike Godwin which states that “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1 [100%]”. Apparently, discussion of the COVID-19 lockdown on Twitter has reached such a point for The Sage of Avalon Beach. Nevertheless, this former ABC and Fairfax Media journo must be running out of ideas if he looks at the mild-mannered Dr Albrechtsen and see the likes of Hitler and Goebbels.
Mike Carlton: Media Fool of the Week.
BUSH LAWYERS v THE COMMON LAW
STARRING JUSTIN SMITH, BARRIE CASSIDY, JON FAINE ETC. WHO DO NOT UNDERSTAND THE PRESUMPTION OF INNOCENCE
There is a principle in common law that an individual is innocent until proven guilty. It’s called the Presumption of Innocence. This is defined in the fifth edition of the authoritative LexisNexis Butterworth’s Concise Australian Legal Dictionary (general editor Ray Finkelstein QC) as follows:
presumption of innocence A rule of the criminal law that every person is presumed innocent of a criminal charge until proven guilty. The presumption can only be rebutted if the prosecution discharges the general burden of proving guilt beyond reasonable doubt….
That’s pretty clear, then. Every person is presumed innocent of a crime – with an emphasis on every – until proved guilty beyond reasonable doubt. Except when it comes to some of the participants in the media pile-on against Cardinal George Pell (re which see MWD Issues 492 and 493) it seems.
Just after 10 am on Tuesday 7 April 2020, Chief Justice Kiefel announced the unanimous decision of the High Court of Australia to quash the conviction of Pell for historical child sexual assault. Shortly after the Chief Justice announced the High Court finding, the reasons for judgment were released. The judgment consisted of 43 pages. It took around 30 to 40 minutes to read.
The High Court’s decision had barely landed on computer screens when members of the Anti-Pell Pile-On proffered their view that Pell was not guilty, but certainly not innocent. Thus dismissing the Presumption of Innocence which applies to all Australians. Here are some examples starting with Nine’s Justin Smith:
Not guilty. But far from innocent.
— Justin Smith (@JustinSmith3AW) April 7, 2020
Then the ABC’s Barrie Cassidy, a long-time Pell antagonist, weighed in:
The High Court has found there was not enough evidence to convict. It did not find him innocent. You are then entitled to maintain your view and you are under no obligation to apologise for holding those views.
— Barrie Cassidy (@barriecassidy) April 7, 2020
The views of Smith and Cassidy are simplistic in the extreme. No court anywhere in the common law system of justice finds anyone “innocent”. There is no such verdict. In any event, there is no need for such a finding since the Presumption of Innocence prevails. As to Cassidy’s statement that, in spite of the decision of the High Court in Pell v The Queen, everyone is entitled to maintain “their views on the case and is under no obligation to apologise for holding those views” – well, this is simplistic in the extreme. Whoever argued to the contrary?
It is not clear whether, by 10.33 am and 10.53 am respectively, Smith and Cassidy had time to read the whole judgment in Pell v The Queen which contained the following statement:
For the reasons to be given, it is evident that there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.
The words in quotes were those used by Justice Deane when he dissented in Chamberlain v The Queen (1984). Bill Deane was one of the two justices who believed that the jury verdict that Lindy Chamberlain had murdered her infant daughter was unsafe because it should have found that there was a reasonable doubt as to her guilt.
There followed some later articles by commentators who clearly had read the judgment in Pell v The Queen – not that this necessarily made them better informed.
First up was the article by Ben Mathews (Professor, School of Law, Queensland University of Technology) and Mark Nicholas Bernard Thomas (Senior Lecturer, QUT) which was published in the taxpayer funded The Conversation at 12.23 pm on 7 April 2020. They advanced two propositions – here they are:
For many, it will be impossible to understand how the unanimous jury verdict of guilty, further supported by a Court of Appeal majority of two judges, can now be overturned. The High Court decision may undermine confidence in the legal system, especially in child sexual abuse prosecutions.
This is nonsense. It is not uncommon for courts of appeal to overturn jury verdicts of guilty, even in child sexual abuse prosecutions. In M v The Queen in 1994, the High Court overturned a unanimous jury verdict, which had been upheld by a unanimous NSW Court of Appeal decision. M had been found guilty of child sexual assault. In Pell v The Queen the High Court followed the precedent of M v The Queen. Also, The Conversation’s authors seemed unaware that the High Court in recent times has overturned jury decisions which were upheld by a unanimous decision by courts of appeal judgments. Namely, Fennell v The Queen and Coughlan v The Queen.
Mathews and Thomas concluded their article as follows:
Careful analysis of the full reasoning of the High Court is required to fully assess it. But, for now, this extraordinary outcome is strange justice indeed. Pell has won today on a legal technicality, but he will continue to be assailed by multiple lawsuits. In contrast, the complainant has been believed by a jury, by a majority judgment and by a substantial body of public opinion.
More nonsense. Cardinal Pell’s conviction was not quashed by the High Court on a legal technicality. Rather, seven judges out of seven found that a jury, acting rationally, should have not been convinced beyond reasonable doubt that the crimes, claimed by the Victorian Director of Public Prosecutions, had been committed.
Moreover, the Mathews/Thomas comment that Pell “will continue to be assailed by multiple lawsuits” is totally irrelevant to the decision in Pell v The Queen. In any event, the authors do not know whether this will be the case.
Also they seem unaware that justice in the Australian legal system is not determined by “a substantial body of public opinion”. If this were the case, it would make sense to drop trials and determine guilt or innocence according to opinion polls. The authors also overlooked the fact that ten senior appeal court judges examined the case and eight out of ten believed that the jury verdict in this case was unsafe.
Then on 8 April 2020 The Age published an article by former Melbourne Radio 774 presenter Jon Faine, another long-term Pell antagonist. This is how it commenced:
The High Court decision to allow the appeal of Cardinal George Pell will send shivers through the entire Australian criminal justice system. Their Honours have given hope to anyone who has been convicted by a jury. They have effectively said that doubt can be entertained even when the principal witness in court is unshaken in their testimony.
The scales of justice are being re-calibrated. The balance has shifted. Trials will be different and appeals as well. It has never before been the role of an Appeal Court to substitute their view for the jurors. Now it is.
This is hopelessly wrong – especially for someone with a law degree who briefly practised his profession in Melbourne.
The fact is that appeal courts – in this instance the Victorian Court of Appeal and the High Court of Australia – among other functions, exist to hear appeals from jury decisions. Faine would be aware of this if he had known about recent High Court decisions in Fennell v The Queen and Coughlan v The Queen.
Moreover, Faine seems unaware of the fact that “the principal witness” against Pell was in fact the only witness. The High Court found that the complainant’s evidence was inconsistent with that of some 20 other witnesses. And then there is the fact that the complainant’s evidence was at times inconsistent – this was referred to in Justice Weinberg’s dissent in the Victorian Court of Appeal.
After his introductory first two paragraphs, Faine made a point that was irrelevant to the case:
No one in Australia has ever spent so much money trying to undo the sworn evidence of a single witness. Millions of dollars were invested – no stone left unturned. Legions of lawyers, researchers and investigators trawled through every possible source to discredit one man telling what he alleges happened all those years ago. But in the end, none of that investigatory effort into the complainant was what made the difference. Instead, it was the evidence of witnesses on the periphery that swung the case.
The overwhelming majority of criminal trials before our courts are funded by legal aid. In every trial, pragmatic corners are cut, compromises are made. Not every point can be pursued, not every possible doubt explored. Now, with Pell’s case, we can all see what can happen when you do have the money, the backing to chase every possible angle.
This is an intellectually shoddy argument. If “the money” is capable of determining the outcome of criminal law cases – then Pell would have been acquitted at the first trial (which had a hung jury) and also in his second trial (in which there was a unanimous jury decision) as well as in his appeal in the Victorian Court of Appeal (in which there was a two-to-one majority decision against the applicant). It didn’t happen.
Yet Faine wants to have it both ways: “The money” (as he terms it) can lead to acquittals in the High Court but not in the Victorian Court of Appeal or in the County Court of Victoria or, indeed, the Victorian Magistrates’ court.
Also Faine overlooks the fact that, due to his high profile, it was inherently unlikely that Pell could receive a fair trial. Especially in view of the hostility of the Anti-Pell media pile-on which had been active for at least a decade before he went to trial in the County Court of Victoria – in which Faine himself was a player. In view of this, is there any wonder that Pell’s supporters decided to help finance his defence? In the end, they were vindicated by the High Court’s unanimous decision.
The fact is that if Cardinal George Pell were a mere Mr John Doe it is unlikely that the charges would have brought against him. Indeed this was the position advanced by John Silvester (who is not a Catholic and who has no associations to the Catholic Church) writing in The Age on 24 May 2017 before Pell was charged.
In fact, despite the fact that an innocent man spent 405 days in prison, in the end the Australian judicial system worked in this case. Unlike the case of Colin Campbell Ross who, in 1922, was found guilty of murdering a 12-year old girl in what would be now called the Melbourne CBD.
There was a media pile-on against Ross before his trial. Ross, who emphatically proclaimed his innocence, unsuccessfully appealed the verdict to both the Full Court of the Supreme Court of Victoria and the High Court of Australia. He was hanged at Melbourne Gaol in 1922 and pardoned by the Victorian government in 2008. Which demonstrates the point that juries do not always get it right. Messrs Smith, Cassidy, Mathews, Thomas and Faine – please note.
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Until next time.
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