Cardinal Pell convictions quashed

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PELL v THE QUEEN [2020] HCA 12

Today, the High Court granted special leave to appeal against a decision of the Court of Appeal of the Supreme Court of Victoria and unanimously allowed the appeal. The High Court found that the  jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted, and ordered that the convictions be quashed and that verdicts of acquittal be entered in their place.

The applicant sought leave to appeal against his convictions before the Court of Appeal. On 21 August 2019 the Court of Appeal granted leave on a single ground, which contended that the verdicts were unreasonable or could not be supported by the evidence, and dismissed the appeal. The Court of Appeal viewed video-recordings of a number of witnesses’ testimony, including that of the complainant. The majority, Ferguson CJ and Maxwell P, assessed the complainant to be a compelling witness. Their Honours went on to consider the evidence of a number of “opportunity witnesses”, who had described the movements of the applicant and others following the conclusion of Sunday solemn Mass in a way that was inconsistent with the complainant’s account. Their Honours found that no witness could say with certainty that these routines and practices were never departed from and concluded that the jury had not been compelled to entertain a reasonable doubt as to the applicant’s guilt. Weinberg JA dissented, concluding that, by reason of the unchallenged evidence of the opportunity witnesses, the jury, acting rationally on the whole of the evidence, ought to have had a reasonable doubt.

On 17 September 2019, the applicant applied to the High Court for special leave to appeal from the Court of Appeal’s decision on two grounds. On 13 November 2019, Gordon and Edelman JJ referred the application for special leave to a Full Court of the High Court for argument as on an appeal. The application was heard by the High Court on 11 and 12 March 2020. The High Court considered that, while the Court of Appeal majority assessed the evidence of the opportunity witnesses as leaving open the possibility that the complainant’s account was correct, their Honours’ analysis failed to engage with the question of whether there remained a reasonable  possibility that the offending had not taken place, such that there ought to have been a reasonable doubt as to the applicant’s guilt. The unchallenged evidence of the opportunity witnesses was

inconsistent with the complainant’s account, and described: (i) the applicant’s practice of greeting congregants on or near the Cathedral steps after Sunday solemn Mass; (ii) the established and historical Catholic church practice that required that the applicant, as an archbishop, always be accompanied when robed in the Cathedral; and (iii) the continuous traffic in and out of the priests’ sacristy for ten to 15 minutes after the conclusion of the procession that ended Sunday solemn Mass. The Court held 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 alleged incidents. With respect to each of the applicant’s co  M v The Queen  (1994) 181 CLR 487 at 494, “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.
  • This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.

 

Bill to wipe historical homosexual convictions introduced

Signalled earlier in the year by the Government, Justice Minister Amy Adams has introduced a Bill to Parliament that “will allow men convicted of specific homosexual offences decriminalised by the Homosexual Law Reform Act 1986 to apply to have the convictions wiped from their criminal record”.

This was initiated by a petition presented to MPS last year – so sensible petitions can be effective.

The Criminal Records (of Convictions for Historical Homosexual Offences) Bill was introduced to Parliament today.

“The tremendous hurt and stigma suffered by those who were affected can never be fully undone, but I hope that this Bill will go some way toward addressing that,” says Ms Adams.

“This Bill introduces the first ever expungement scheme in New Zealand.

“Allowing historical convictions for homosexual offences to remain on a person’s criminal record perpetuates the stigma which such convictions carry. A person can be further disadvantaged if they are required to disclose their conviction or it appears on a criminal history check.”

Ms Adams says the scheme will be open to applications from men with convictions for specific offences relating to sexual conduct between consenting men 16 years and over, or by a family member on their behalf if the person is deceased. The application process will be free for applicants.

“The scheme requires case-by-case assessments of the relevant facts to determine whether the conduct a person was charged with is still unlawful today. The decision will be made by the Secretary for Justice, without the need for a court hearing or for applicants to appear in person,” says Ms Adams.

“If a person’s conviction is expunged, the conviction will not appear on a criminal history check for any purpose and they will be entitled to declare they had no such conviction when required to under New Zealand law.”

Copy of the Bill:  www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_74442/criminal-records-expungement-of-convictions-for-historical

It’s taken a long time but it’s good to see this being dealt with. It was abhorrent law in the not very distant past and the least that can be done now is to wipe any convictions.

Some history:

Male homosexual sex became illegal in New Zealand when the country became part of the British Empire in 1840 and adopted English law making male homosexual acts punishable by death.

The Offences Against The Person Act of 1867 changed the penalty of buggery from execution to life imprisonment. In 1893 the law was broadened so that sexual activity between men constituted “sexual assault” even if it was consensual. Penalties included life imprisonment, hard labour and flogging.

Sex between women has never been legally prohibited in New Zealand.

In 1961 the penalties for male homosexual activity were reduced, reflecting changing attitudes towards homosexuality.

In 1968 a petition signed by 75 prominent citizens and calling for legislative change was presented to (and rejected by) parliament.

The Act was introduced by Labour MP Fran Wilde in 1985. Originally, the bill had two parts – one decriminalised male homosexuality, while the other provided anti-discrimination law protections for lesbians and gay men.

The first part passed narrowly (49 Ayes to 44 Noes) on 9 July 1986, after an attempt by opponents to invoke closure and end debate was defeated by one vote the previous week; the bill might have failed if a vote was taken then as several supporters were kept away from Wellington by bad weather. Three National MPs voted for the bill, and other National MPs (including Doug Graham) would have supported the bill if it had been in danger of defeat.

The second part failed, but was incorporated into a supplementary order paper added to the New Zealand Human Rights Act 1993.

https://en.wikipedia.org/wiki/Homosexual_Law_Reform_Act_1986

This is one example of a number of awful laws and prejudices of the not very distance past that have changed significantly in a more tolerant and sensible society.

As a civil society we’re not perfect yet, but this is another good step forward.

Stuff from last year: Homosexual Law Reform 30 years on – what was life like for the gay community pre-1986?

Big increase in sexual assault convictions

Radio NZ reports:

Latest figures from Statistics New Zealand show sexual assault convictions have jumped by 27% since 2007, while convictions overall dropped by 7% in that time.

Last year, 2,223 people were convicted of charges relating to sexual offending last year, up 1,748 in 2007.

It’s not known what the reason for this increase is – it could be a combination of more successful prosecution levels, an increase in reporting of offences, and an increase in the number of offences.

The report also said that it’s thought that only 10% of sexual assualts are reported.

There are a lot of victims involved and in the more severe cases this can seriously affect their lives and the lives of people associated with them.

While some of those convicted are simply cretins some will also have been pinged by little more than moment of madness, or thinking that what they were doing was fair game (if they could get away with it) – but regardless, the convictions can also have a major impact on the offenders and often their families.