Justice Compromised

Cardinal George Pell was denied the presumption of innocence, a deeply Christian principle. By Henry Ergas.

No matter how dramatic its ­current impacts, the COVID-19 pandemic may, 10 years from now, seem like a seismic shock that strikes, devastates and then recedes, allowing reconstruction to begin.

The case of Cardinal George Pell, on the other hand, highlights a sickness in the body politic that is all the more dangerous for being ongoing, widespread and deeply entrenched.

After all, more than a month has passed since the High Court quashed Cardinal Pell’s conviction, reversing the decision of Victoria’s highest court of appeal. That the Victorian Court of Appeal made grievous errors of law is undeniable. It is, moreover, every bit as certain that those errors capped a long series of missteps, stretching from the initial investigation to the decision to prosecute.

Yet the Victorian government has not launched, and does not intend to launch, an independent inquiry into a miscarriage of justice that led to the conviction and ­prolonged imprisonment of an innocent man.

Had Cardinal Pell not been who he is, it is unlikely that the state government would dismiss such manifest flaws as if they were minor mishaps. But even ignoring the further injustice that involves, the state government’s refusal to investigate can only increase the likelihood that the errors will recur. Nor could anyone describe those errors as trivial. On the contrary, they strike at the pillars on which our system of justice stands: the presumption of innocence, the right to a fair trial and the requirement that guilt be established ­“beyond reasonable doubt”.

However, those pillars are not only the fundamental principles that shield us from the horrors of arbitrary imprisonment; they are also among the greatest achievements of the Christian tradition.

To say that is not to ignore their pre-Christian antecedents. For example, the Babylonian Code of Hammurabi, which dates from around 1790BC, embraced the presumption of innocence. And Roman law repeatedly stated that the burden of proof falls on the ­accuser, with the dictum “Actore non probante, reus absolvitor” — when the plaintiff does not prove his case, the defendant is absolved — enjoying near-constitutional status.

But those principles would never have acquired their contemporary role and substance had it not been for the great renewal of canon (that is, church) law that began in the 11th century.

At the heart of that renewal were the moral terrors of judging at a time when punishment almost always involved death.

Jesus himself, faced with accusers intent on stoning an adulterous woman to death, had warned that it was those who were without sin who should cast the first stone. As if that were not enough, it was clear to the canon lawyers that St Matthew’s admonition — Judge not, lest ye be judged! — meant that convicting an innocent defendant was a mortal sin.

Its price was correspondingly steep: as a 13th-century book of laws put it, the judge who committed or connived in that sin built for himself “a mansion in Hell”.

In a world pervaded by the fear of damnation, the result was that the conscientious judge, witness or juryman had to approach his task wracked by “fear and trembling” lest he be “guilty of (the defendant’s) Murther”.

Preserving one’s immortal soul from that risk required accepting that the accused was, in the ­famous words the canonist Johannes Monachus coined on the basis of a papal instruction issued in 1207, “innocent until proven guilty”. Additionally, as the leading canonists Raymond de Penafort and Aegidius Bossius explained, it required “keeping strictly to the order (ie, the procedures) of the law” and doing so entirely free of interest and passion, for if a judge “glories in the death of a man, as no small number do in our age, he is a murderer”.

Finally, it was the utmost responsibility of a Christian concerned about the salvation of his soul to seek “moral certainty”; that is, certainty of the highest degree, before finding a defendant guilty.

Punishments could only be administered once guilt had been established through proofs that were ‘‘luce meridiana clariores” — ‘‘clearer than the light of the midday sun”.

And when those proofs were lacking, the rule of “in dubio pro reo” — “in doubt one must decide in the defendant’s favour” — defined the “safer path” Christians were enjoined to pursue.

None of that implies that the canonists, or the common law scholars who developed the principles the canonists had elaborated into their current form, applied those precepts in a manner we would regard as acceptable. There is a chasm between the harsh and often savage justice they administered and that which we demand and expect.

But as Harvard’s Howard Berman showed years ago, in an analysis recently confirmed by Yale’s James Whitman, an even greater chasm separates our view of the law as primarily an instrumental exercise in fact-finding from the canonists’ realisation that adjudication is a profoundly moral enterprise, carried out by human beings whose innermost conscience ought to quake at the ever-present possibility of error.

To say that realisation was lacking in the witch-hunt leading up to Cardinal Pell’s conviction would be an understatement. If there was any certainty, it was that of the mob howling for vengeance, as if the cause of justice for the victims of child sexual abuse would somehow be served by sending an innocent man to jail.

Nor has the slightest awareness of the risks of error been apparent in the uncritical reception of the previously redacted statements of the Royal Commission into Institutional Responses to Child Sexual Abuse. Whether those statements are accurate is an open question: there is a long history of royal commissions, which are not bound by the ordinary constraints imposed on judicial proceedings, making serious mistakes of process, fact and inference. But even were they accurate, they could hardly justify or excuse imprisoning Cardinal Pell for a crime he did not commit.

Perhaps those outrages are the price we pay for living in a society that has entirely forgotten the ­religious origins and meaning of the principles it claims to cherish. It is not faith that it has abandoned; rather, drenched in a dogmatism worthy of the Inquisition, it is any understanding of doubt and of human fallibility, along with an appreciation of their implications for the design of tolerable ­social institutions.

“Justice?” asks William Gaddis in the first sentences of A Frolic of His Own. “You get justice in the next world, in this world you have the law.”

If grave wrongs, such as that inflicted on Cardinal Pell, are quietly allowed to fade into the past, it is merely a matter of time before we get neither.