A Welcome To Country Like No Other

THE only thing missing was the smoke (and possibly the mirrors). By any customary definition, the foreign-born cannot be indigenous. They can be citizens in certain well understood circumstances. Whether or not genuine Australian Aborigines can be aliens is a separate, more straightforward issue. Answer: no, they cannot be. By conflating the questions so as to abracadabra into existence a new human right for a privileged minority, the High Court – sitting as the Vibe Court – has once again placed itself above legislatures and the Constitution to canonise something a majority of its members believe ‘feels right.’ With few exceptions – or, more accurately, none – what feels right to the High Court are fashionable left-wing causes. New Zealand-born Brendan Thoms and Papua New Guinea-born Daniel Love both have only one Aboriginal parent. They did not seek to become, and are not, citizens of Australia. Their lawyers and the Victorian government have made various arguments – successfully, as it happens – linking their plight and its amelioration to Mabo. The High Court accepts that their part-Aboriginal blood gives them an inextinguishable bond to the land and waters of Australia. The truly galling thing – apart from the court’s bombastic arrogation of law-making power to itself – is the fact that Thoms and Love are not ‘great cause’ campaigners motivated by principle or the suffering of others. They are two convicted criminals cynically using aboriginality to improve their lifestyles.


IT is a concern that the same Victorian government has put equally novel and ridiculous arguments to the High Court about the guilt of Cardinal George Pell. RJ Smith at Quillette concludes his summary of the looming Pell appeal by reminding us that the entire case would never have been pursued but for various vibe-innovations the High Court must itself now examine in relation to the (non-existent) evidence. At Quadrant, indefatigable lead investigator for the defence – Keith Windschuttle – uncovers a suspicious zombie legal argument the Victorian government has tried to sneak back into its High Court appeal.

This entry was posted in Cultural Issues, Politics of the Left. Bookmark the permalink.

100 Responses to A Welcome To Country Like No Other

  1. H B Bear

    Dennis Denuto the court will hear you now.

    Dark days.

  2. FelixKruell

    A poor decision. Kiefel had the more cogent argument.

    It was also clear which way the court wanted to go, when they started suggesting arguments to one side.

  3. candy

    I can’t see the High Court chaps and ladies have any other option here. They would up against a most tremendous wall of hate and being called racists by certain quarters.

  4. Lee

    RJ Smith at Quillette concludes his summary of the looming Pell appeal by reminding us that the entire case would never have been pursued but for various vibe-innovations the High Court must itself now examine in relation to the (non-existent) evidence.

    Smith says that: “During his first clerical assignment in Australia in the early 1970s, Pell’s housemate was Gerald Ridsdale, the man now recognised as Australia’s worst paedophile priest.”

    My memory may be playing me false, but I thought that they were not living together, but in fact Paul Bongiorno most certainly was living with Ridsdale.

    In any event, Pell was/is excoriated for claiming to not know what Ridsdale was up to (as if a serious sex offender is going to go blabbing about his exploits around the seminary), while on the other hand Bongiorno’s word that he also didn’t know is accepted without a word of criticism or demur.

    The fact that Pell is conservative, and Bongiorno hard left explains everything though.

  5. Lee

    I can’t see the High Court chaps and ladies have any other option here. They would up against a most tremendous wall of hate and being called racists by certain quarters.

    I can’t really see that happening, and in fact even some left wing lawyers and legal types disagree with the Pell guilty verdict.

    It’d be an extremely sorry and disgusting day if the highest court in the land throws up its arms and gives in to the lynch mob and the bigots.

    In any case, the vast majority of Australians couldn’t name even one member of the High Court, anyway.

  6. Ceres

    “New Zealand-born Brendan Thoms and Papua New Guinea-born Daniel Love both have only one Aboriginal parent.”. My understanding is one had an aboriginal grandparent and the other had an aboriginal great grandparent.
    This social engineering by the High Court must be reversed either at a referendum or by the High Court. Two of these High Court judges who voted to keep these criminals here, are due to retire, one in December and the other early 2021 so the opportunity exists for Scomo to install true conservative judges who understand their role and reverse this dangerous decision.

  7. Perfidious Albino

    Perhaps this decision may lead to a factual (biological) validation of Aboriginality for legal purposes going forward?

  8. Up The Workers!

    What else can you expect when the “Crims’ Party” appoints most of our Judiciary and Police Farce Chiefs to do their bent bidding?

  9. Iampeter

    what feels right to the High Court are fashionable left-wing causes.

    You mean like the screaming for special human rights by conservatives when Folau got sacked?
    So much so that laws are being tabled not all that different in principle from what you’re opposing here.
    As usual, you haven’t got a leg to stand on.

  10. Chris

    Proof of Aboriginality should require DNA test results

  11. Robber Baron

    The abbariginal welfare/benefits system must be so awesome that crims born in other countries are prepared to go to the high court to get on board.

    If you defund all abbariginal welfare/benefits I will wager big dollars that the next census will have less people claming to be abbariginals than the previous one.

  12. Elizabeth (Lizzie) Beare

    the opportunity exists for Scomo to install true conservative judges who understand their role and reverse this dangerous decision.

    We can only hope that ScoMo has his eye on how Trump has saved America.

    And that one day, a Liberal Party with some guts will see fit to ensure an award of AO to Keith Windschuttle for his untiring work on Quadrant holding the fort against some of the anti-intellectualism of the left and against the Constitutional and historical lunacies of the day.

  13. Pyrmonter

    @ CL

    This notion that there is no evidence against Pell is a lie. There is the evidence of the complainant. Sworn evidence, on which he was cross examined by one of the highest profile, and I gather, best regarded criminal silks in the country.

    None of us has seen it, and nor, for good reason, are we likely to (if you doubt that policy, ask how comfortable you would be for your mother’s evidence, your sister’s evidence or your wife’s evidence of such a complaint to be given the Daily Mail treatment). The trial jurors, the trial judge and the appeals court have.

    You undermine the case for uncertainty in respect of Pell’s conviction (where, on balance, I think Weinberg’s misgivings are cogent; and where I think there is a reasonable prospect that the High Court may agree with Weinberg) by repeating nonsense perpetrated by Pell’s chief apologist, George Weigel, who has repeatedly got simple facts wrong.

  14. Tom

    Only one of the four High Court justices who went off on this mad anti-democratic frolic was a Labor fruitloop — the Rudd-appointed lesbian from New South Wales, Virginia Bell. The rest of them are lazy fellow activists who would never have the courage to run for parliament and now want to legislate from the bench.

    Veteran court reporter Chris Merritt, legal affairs editor at The Australian, gave them both barrels:

    The lunacy at the heart of the latest­ decision by the High Court comes down to this: this is pure racism­ built upon an illegitimate exercise of judicial power.

    By the narrowest of margins, the nation’s highest court has elevat­ed a racial distinction to a position of constitutional privil­ege that would never be accepted if such a question were put to the people at a referendum.

    Four of the court’s seven judges have pre-empted the people of this nation by injecting a new ­racist concept in the Constitution that can only be overturned by referendum or a future High Court.

    This shameful ruling has punched a hole in the principle that everyone is equal before Australian law and has eroded the federal government’s ability to protect the community from foreign­ criminals who have never tried to become citizens.

    Even when born overseas and holding the citizenship of another country, foreign criminals with Aboriginal ancestry can no longer be treated as aliens for the purposes of migration law.

    There will be those who will say the impact can be confined to the specific facts of the case. But a dreadful precedent has been set.

    In this case, the High Court majority has effectively created a new right for foreigners that comes at the expense of Australians who expect their governments to protect them from criminals, regardless of their race.

    The majority has decided that foreign citizens with Aboriginal ancestry have such a special connection with Australia that it would be inconsistent with that special connection to treat them as aliens for the purposes of mig­ration law. This principle was applied even though the men who brought this challenge never tried to become Australian citizens.

    Common sense has gone out the window. The majority has in­vent­ed a new, illogical category in migration law that applies only to Aborigines who hold foreign citizenship: they can simultan­eous­ly be non-citizens and non-aliens.

    The implications of this mess are endless. In times of inter­national trouble, will the federal government be expected to scour the planet in order to come to ­the rescue of non-citizens who claim Aboriginal ancestry?

    Because a crucial part of the test for Aboriginality depends on the views of communities or their leaders, this means Aboriginal communities — and not parliament — will have the power to determine when the normal­ migra­tion law will apply.

    This was too much for Chief Justice Susan Kiefel, who differed strongly with the majority and pointed out that such a mechanism “would be to attribute to the group the kind of sovereignty which was implicitly rejected by (the Mabo decision)”.

    Kiefel’s dissent goes a long way to limiting the damage to the court’s reputation. Four judges went off on a frolic: Geoffrey Nettle, Michelle Gordon, James Edel­man and Virginia Bell. Kiefel was steadfast, backed by Stephen Gageler and Patrick Keane.

    The Chief Justice points out in her dissent that it is settled law that it is up to parliament, relying on the Constitution, to create and define the concept of citizenship and determine who is an alien.

    She also argues that “questions of constitutional interpretation cannot depend on what the court perceives to be a desirable policy regarding the subject of who should be aliens and the desirabi­lity of Aboriginal non-citizen­s continuing to reside in Australia”.

    “In the absence of a relevant constitutional prohibition or exception, express or implied, it is not a proper function of a court to limit the method of exercise of legislative power,” Kiefel wrote.

    The great tragedy of this decis­ion is that it will inevitably be used to attack the arguments of those, like this writer, who have argued for a constitutionally entrenched Aboriginal voice to federal parliament.

    The judges in the majority are massively out of step with community values and the core principle of equality before the law. They have done a disservice to the legitimate aspir­ations of indigenous Australians.

  15. Elizabeth (Lizzie) Beare

    As usual, you haven’t got a leg to stand on.

    Iampeter, you are the legless one around here. Folau had every right to freedom of speech regarding his deeply held religious beliefs which held no physical threat for any person in this democracy.

    If he had wanted to throw gay men off tall buildings or limit their social expression then of course his speech would have been rightly curtailed. But to believe, along with a significant proportion of the Australian electorate (as per the ‘gay marriage’ plebiscite), that advocacy of a ‘gay’ lifestyle is not necessarily admirable and is not socially approved by all, for whatever reason (in his case because of religious proscription), is not a crime and his freedom to speak his religious views should never have been curtailed as it was. As only ‘cultural’ Christians not as believers, we donated to Foleau’s appeals and would do so to others caught in a similar leftist pincer, as we have also done twice now for Dr. Peter Ridd.

    Don’t tell me you call yourself a libertarian, Iampeter. Clearly, you are not.

  16. Elizabeth (Lizzie) Beare

    By the narrowest of margins, the nation’s highest court has elevat­ed a racial distinction to a position of constitutional privil­ege that would never be accepted if such a question were put to the people at a referendum.

    +1, Tom.

    High Court appointments are one of a government’s most onerous responsibilities.

    Don’t make them lightly is the lesson from this.

  17. Spurgeon Monkfish III

    this is pure racism­ built upon an illegitimate exercise of judicial power

    At last, some quality, factual and objective reporting from the Oz. Well done, Mr Merritt.

  18. C.L.

    This notion that there is no evidence against Pell is a lie. There is the evidence of the complainant.

    LOL. You mean his semen-stained sandal, the CCTV, the 23 witnesses and the testimony of the other boy?

    None of us has seen it …

    All of it has been reported.

  19. I am just imaging here, going right back to the first or second fleet arrival for example, and someone had a relationship with an indigenous person and a child from that was born. That child somehow returns to the UK or else where and never returns what so ever. Generations later through the 1800’s, 1900’s etc, say a child is born year 2000 comes to Australia and commit a serious indictable offence and liable for deportation as a result. Then that person can say, no way I am indigenous person you can’t touch me? Is that out of the realms of possibility?

  20. Spurgeon Monkfish III

    Folau had every right to freedom of speech regarding his deeply held religious beliefs which held no physical threat for any person in this democracy.

    Folau has been rubbed out of both rugby codes in this country for expressing an opinion.

    iamashiteater is of course, totally cool with this, being the sad insane brain damaged basement masturbatorium dwelling little fascist that he is.

  21. Spurgeon Monkfish III

    Then that person can say, no way I am indigenous person you can’t touch me? Is that out of the realms of possibility?

    Not any more, if this mad “decision” is to be cited as a precedent. Mind you, there’d no doubt be lots of unseemly squabbling over the racial bona fides of the accused and their “immutable connection to the land and seas”. Which is where the convenient recognition conferred by a respected indodgyknee “elder” will trump everything. The Ace in the deck, so to speak.

    What a stupid, stupid country we now live in. Infuriating and embarrassing.

  22. Imagine the possibilities if the High Court were connected to the United Nations? oh what fun!

  23. Iampeter

    Re Pell, there are legitimate issues with the law that need to be discussed and the high profile nature of this case was a good opportunity to do so.
    Instead conservatives engaged in the very same leftist identity politics and demonstrated a shameless contempt for the rule of law, that they criticise progressives for.
    Their obliviousness to this glaring fact also raises serious questions about their ability to even be covering these topics in the first place.
    Their dishonest and incompetent coverage of this issue has destroyed any credibility they may have and there’s no way for them to now criticise progressives about their antics.
    So it’s much, much worse than whether they are getting technical details of the Pell case wrong.

    iamashiteater is of course, totally cool with this, being the sad insane brain damaged basement masturbatorium dwelling little fascist that he is.

    Oh look, another poster at the Cat, triggered by the realisation that you are a politically illiterate leftist that doesn’t even know how “free speech” works. Derp.

    Hint: it’s not really me you’re angry with, nutjob.

  24. max

    There is the evidence of the complainant.

    The whole point of Weinberg”s dissent was that that is not evidence. And Weinberg is the judge without pareil on the rules of evidence.

  25. duncanm

    Kiefel summed up the wider problem well..

    [Kiefel argued] that “questions of constitutional interpretation cannot depend on what the court perceives to be a desirable policy..”

  26. Spurgeon Monkfish III

    that doesn’t even know how “free speech” works

    Here’s some free speech, you monumental fuckwit – you are the single stupidest spectacularly ignorant cockhead blighting this blog. You’re even worse than Syphilis von Spuddentropp and I’ve seen creatures that spend their existences under rocks that are more intelligent than him.

    You have been proven spectacularly and repeatedly wrong on every subject you’ve attempted to comment on. Your unrelenting ability to get even the most basic concepts completely ass backwards is unparalleled in human history.

    In an ideal world you’d be spending your pointless existence chained to the floor of a padded cell in an insane asylum, not only for the benefit of wider society but for your own.

  27. FelixKruell

    Linden:

    Then that person can say, no way I am indigenous person you can’t touch me? Is that out of the realms of possibility?

    Not according to this case – it affirms the test for indigenous-ness as being 3 pronged, with biological connection only one of the tests.

    A more interesting question arising from this is whether someone that has nothing but indigenous ancestry, but falls out with the elders of their tribe (and therefore fails that prong of being recognised by their community), will no longer be seen as indigenous under Australian law.

  28. Iampeter

    The whole point of Weinberg”s dissent was that that is not evidence. And Weinberg is the judge without pareil on the rules of evidence.

    Yea but the process in cases like this stipulates that testimony IS evidence, so his dissent is wrong, even though I think it should be right.
    This is one of the issues of law that the Pell case could’ve been used to address. Instead we got mindless leftist tribalism from everyone.

    @Surgeon, you’re doing a good job of describing yourself. Well, and many other crackpots that post here because they’d be banned on any other blog for unhinged, raving posts like what you just did.
    Stop taking your self loathing out on me, nutjob.

  29. FelixKruell

    Max:

    The whole point of Weinberg”s dissent was that that is not evidence. And Weinberg is the judge without pareil on the rules of evidence.

    No, it really wasn’t. Feel free to quote where Weinberg says it is not evidence. Sure he questions whether the evidence was sufficient to remove reasonable doubt, but he never questions its existence.

  30. Pyrmonter

    @ max

    Read the decision. Weinberg spends about a third of it, when not discussing the law of appeals and evidence, considering the complainant’s evidence. He isn’t persuaded beyond reasonable doubt (and, to repeat, I think he’s right). That’s not the same as saying ‘there is no evidence’. Or that the complainant is lying. Or fantasizing.

  31. dover_beach

    This notion that there is no evidence against Pell is a lie. There is the evidence of the complainant.

    No, there isn’t. The circularity is clearly evident. Without the accusation made by the complainant, the prosecution not only would have no case, it would be completely ignorant of the alleged wrong. You are entirely resting on the claim that the testimony of the complainant counts as evidence only because the charge is brought forward by the Crown.

  32. Spurgeon Monkfish III

    Stop attempting to deflect my entirely legitimate observations about your unrelenting ignorance and idiocy back onto me, you ridiculous juvenile imbecile.

    It just makes you look sad stupid and bereft of any intelligence (again).

  33. Pyrmonter

    @ Felix

    Thoms and Love is a mess, and an outcome that strikes at the deeply non-racial nature of the common law. It is one I wouldn’t have really have expected from the majority judges: hitherto, I’d thought very highly of Edelman. Whereas I’d thought of Gaegler as something of a Labor swamp creature. His and the CJ’s decisions are, I think, right.

  34. a happy little debunker

    My understanding is one had an aboriginal grandparent and the other had an aboriginal great grandparent.

    In it’s finding the High Court has accepted the aboriginality of the descendant that is 1/8th aboriginal, whilst it has reservations about the descendant that is 50% aboriginal.

    The defining characteristic was not their bloodlines, but their identification with and associations to a ‘culture’. In this case their ability to weasel their way into being declared a native title holder.

    But how somebody who was born in New Zealand ( & where he spent his early life) and is only 1/8th aboriginal be entitled to any claim of native title (where unbroken occupancy is required) is utterly beyond me!

  35. Pyrmonter

    @ Dover

    That makes no sense. It must be rare for there to be a sexual offence trial where the victim doesn’t give evidence, and usually the most important evidence of the acts charged. In offences where consent is an issue, it’s hard to think how the matter can be tried without the evidence of the complainant. (Possible, I suppose, if there was a confession, or video evidence, but that’s a bit far fetched)

  36. FelixKruell

    Dover:

    No, there isn’t. The circularity is clearly evident. Without the accusation made by the complainant, the prosecution not only would have no case, it would be completely ignorant of the alleged wrong.

    Yes, if you ignore the evidence, then there is no evidence. Duh.

    The accusation and testimony of the accused IS the evidence in this case.

  37. max

    And a very shaky basis for conviction it is. Do you not see that ?

  38. dover_beach

    That makes no sense. It must be rare for there to be a sexual offence trial where the victim doesn’t give evidence, and usually the most important evidence of the acts charged. In offences where consent is an issue, it’s hard to think how the matter can be tried without the evidence of the complainant. (Possible, I suppose, if there was a confession, or video evidence, but that’s a bit far fetched)

    It makes perfect sense, however, I think you are mistaking what we mean by evidence here. The complainant’s ‘evidence’ is important and is given in a trial because it can be verified or rebutted by logic, witness statements, etc. It is a part of the Crown’s case. The problem with the Pell case is that the complainant’s testimony is uncorroborated and contradicted by numerous witness statements, errors of fact, and so on. It is therefore the entirety of the Crown’s case. The circularity involves it being it’s own verification.

  39. dover_beach

    The accusation and testimony of the accused IS the evidence in this case.

    Indeed. That is the circularity involved.

  40. Pyrmonter

    @ max

    It’s a contest between evidence we haven’t seen, but which is said to be strongly persuasive (enough to persuade a jury, and 2 senior judges in the court of appeal) on the one hand, and a mix of tendency evidence and certain allowance that has to be given to the fact that the events were said to have occurred two decades earlier. The problem with tendency evidence – that is, ‘this is how I do things’ is that we all know that no-one is an automaton; people deviate from practices; and people who have been above suspicion have been found to be wrong-doers, hiding behind their reputations.

  41. Pyrmonter

    @ Dover

    Well, if you mean no ‘corroborating evidence’, say so. Don’t pretend that the sworn testimony of a witness is not evidence.

    If you think sexual offences should only be prosecuted when there is corroborating evidence, contemplate what that does to the difficulty of ensuring that wrong-doers are duly prosecuted and punished, and the Queen’s peace is kept.

  42. C.L.

    Pyrmonter is relying on a technical usage; an accuser’s statement is part of the ‘evidence’ in any trial.
    When there is no other ‘evidence’ – zero – it ceases to be evidence in any meaningful sense. That would be like calling a single pillar a ‘building.’ Standing alone, an accusation would never have led to a trial until recent ‘reforms’ in Victoria and was never regarded as ‘evidence’ by itself.

    In this sense – the sane sense – there is no evidence against George Pell and never has been.

    Louise Milligan and others like to insinuate that certain secret things were said or demonstrated at trial but were suppressed. This is complete and utter bullshit.

  43. a happy little debunker

    Re Pell, there are legitimate issues with the law that need to be discussed and the high profile nature of this case was a good opportunity to do so

    Quite right

    Some of these issues include (but not limited too)
    1/ How a police commissioner (who is now a proved liar) can falsely claim before parliament that a program established in conjunction between the police and the church could be then obstructed by the church, without evidence – and when he was publicly contradicted & rebuked by that church encourage an investigation into the highest ranking Australian member.
    2/ the police launching that investigation without complaints and then actively trolling for complainants.
    3/ the coordination between the Police and select Media journalists/activists in procuring complainants.
    4/ the perversion of process that saw the AG department dismiss the prosecution and allowed the Police to prosecute independently of the state – but then support that prosecution outcome through the higher courts.
    5/ The perversion of process that allowed a jury to convict (beyond a reasonable doubt) based on disputed & at times contradictory evidence given by a single witness/complainant and unsupported by ALL the other presented prosecution witnesses.
    6/ That 2 appeal court judges could envisage that because a string of 12 unlikelihood’s could happen that it would leave the jury the option of believing (beyond reasonable doubt) that these 12 unlikelihood’s did happen.
    7/ that despite all these unlikelihood’s being presented in evidence via the prosecutions witnesses , the defence could not visually illustrate these unlikelihood’s during their closing arguments as being ‘not in evidence’.
    8/ That a peaceable old man was shifted from a general facility to a supermax and into isolation to ‘protect him’ from potential outside intrusions.
    9/ That the media were and are tipped off as to the inmate’s visitors, in real time – creating media opportunities to attack Pell’s friends and family.

  44. dover_beach

    If you think sexual offences should only be prosecuted when there is corroborating evidence, contemplate what that does to the difficulty of ensuring that wrong-doers are duly prosecuted and punished, and the Queen’s peace is kept.

    I never said any such thing but why should this be only the case re sex offences? Why not try people for murder or theft simply on the sworn evidence of a witness sans body, item stolen, etc? BTW, for how long do you think the ‘Queen’s peace’ will be maintained if people are being imprisoned simply on the sworn ‘evidence’ of a witness without any corroborating evidence and dozens of witness statements to the contrary?

  45. candy

    Louise Milligan and others like to insinuate that certain secret things were said or demonstrated at trial but were suppressed.

    The insinuations are instead of evidence, because there is no evidence.
    Logically if there was evidence, it would be out there and reported on and be the leading article of news for months, because Get/Hate Pell and Catholics etc, and evidence would clinch the matter and no book would be needed to be written.
    There is no evidence. Not a skerrick.

  46. max

    Pyrmonter, we can only form conclusions on what we do know. ‘Strongly persuasive’ is gilding the lily given that one jury failed to convict and Weinberg was not persuaded.

    You mention tendency evidence and the problem with it.

    Fair turn about. How about the well known problems with convictions based on testimony: there are many examples of testimonies from false memories or simply motivated by animus and built on lies. You don’t think that Pell as a controversial and much hated public figure might attract liars and malicious witnesses ? Speculation of course, but not unreasonable.

    Tendency evidence has its problems. So does evidence based on testimony.

  47. Pyrmonter

    @ CL

    I have no difficulty calling the Washington Monument and the Monument in London buildings.

    The protection defendants have against unfairness is the high level of proof required: virtual certainty, or ‘beyond reasonable doubt’. If a jury is so persuaded, what merit is there in requiring additional witnesses? And, as noted above, on balance, I think the jury is probably wrong. But I cannot assess that reliably: like you, and unlike the appellate judges, I haven’t seen all the evidence.

  48. candy

    I haven’t seen all the evidence.

    Because there isn’t any evidence, Pyrmonter. Just some words by a former(?) drug dealer/addict who can’t remember it clearly.

  49. Pyrmonter

    @ max

    The complainant was cross examined extensively: as far as I can determine, those possibilities weren’t put to him.

  50. Pyrmonter

    @ candy

    Again, issues that might have been put in cross examination, or in submission as to the cogency of his evidence. But it is sworn testimony. It is for juries to assess the strength and weight of the evidence: clearly they believed enough of what he said to be persuaded. I’d be quite unhappy if we lived in a world where the evidence of those with history of drug use (which might itself flow from offending) was automatically discarded.

  51. C.L.

    If you think sexual offences should only be prosecuted when there is corroborating evidence

    Now you’re smuggling the word corroborating into the discussion to bolster the same idea – that mere claims are “evidence.” If I claimed that Daniel Andrews molested me in a Melbourne lift ten years ago, would that be evidence? No. Would it magically become ‘evidence’ if a politically motivated police team and a DPP brought charges? No.

    There is no evidence against Pell and therefore nothing to corroborate.

    The accuser told the media on the day Pell’s County Court appeal failed that he first decided to make the accusation against Pell after the funeral of the other, deceased, former choirboy. The one who said the claims were malarkey. In other words when the coast was clear. As I said at the time, this was a disturbing revelation. Some would say it was smartarsed trolling or even sociopathic.

    The protection defendants have against unfairness is the high level of proof required.

    It is no longer very high. See the final third of the RJ Smith link.
    Another traditional protection is that defamation is illegal. For Pell, these laws were, for all intents and purposes, suspended to allow the ABC and VicPol to educate the jury pool. The convicting jury found the cardinal guilty of being George Pell.

  52. candy

    I’d be quite unhappy if we lived in a world where the evidence of those with history of drug use (which might itself flow from offending) was automatically discarded.

    Sure, but we are asked to believe this person when there is zilch evidence otherwise. Nothing. Just a hazy memory of someone who used drugs.

  53. dover_beach

    I have no difficulty calling the Washington Monument and the Monument in London buildings.

    Fallacy of equivocation.

  54. Pyrmonter

    @ CL

    Supposing you swore that Dan Andrew molested you in a lift, then, yes, that would be evidence. You might have perjured yourself and it might be inherently unlikely; but it would still be evidence. The purpose of cross examination – in fact, the purpose of trials generally – is to test evidence. No-one seems to suggest that Pell didn’t have every opportunity to adduce evidence that would undermine or contradict the complainant. Yet he led no evidence: all of the evidence, both of the complainant and that which could be said to be exculpatory, was led by the prosecution.

    If the High Court is persuaded the standard of proof is not satisfied, it will free Pell. That’s the central issue in the appeal.

  55. candy

    If the High Court is persuaded the standard of proof is not satisfied, it will free Pell.

    Too late after a decade of media hate and accusations. He has to take the rap for all crimes though he did not rape boys. I believe it is accepted by Australians in the main that that has to happen, because the media has presented him as the absolute devil and Catholics as weirdos.

    It’s like the Chamberlain case really. People believe what they want to believe. We all do really but you would hope if you were on a jury you could look past that and ask for the evidence please, actual evidence, before sending some to die in jail.

  56. FelixKruell

    Dover:

    Indeed. That is the circularity involved.

    How is that circular?

  57. FelixKruell

    CL:

    Standing alone, an accusation would never have led to a trial until recent ‘reforms’ in Victoria and was never regarded as ‘evidence’ by itself.

    Even before the reforms, it was ALWAYS regarded as evidence by itself. It may not have been sufficient evidence to convict, but it always remained evidence. Technically. Legally. Meaningfully.

    As Pyrmonter said – if you mean to say there is no corroborating evidence, which therefore leads to doubt about the testimony evidence of the accuser (which is a perfectly valid point) – then say that.

  58. dover_beach

    Supposing you swore that Dan Andrew molested you in a lift, then, yes, that would be evidence. You might have perjured yourself and it might be inherently unlikely; but it would still be evidence. The purpose of cross examination – in fact, the purpose of trials generally – is to test evidence.

    This was admitted upthread but you’ve ignored that this usage of the term ‘evidence’ is peculiar to the law. It simply means something submitted for consideration during a trial, as I stated earlier. But, again, as I stated previously, the only ‘evidence’ of any wrong-doing is the claim itself; the attendant circularity here is plain.

  59. dover_beach

    How is that circular?

    The accusation and the testimony similarly arise from a single complainant. They are effectively the same thing.

  60. Tim Neilson

    Yea but the process in cases like this stipulates that testimony IS evidence, so his dissent is wrong,

    Stop bloviating on matters about which you’re quite clearly totally ignorant.

    Weinberg never said that the testimony wasn’t “evidence”, he just said that in the light of all the other evidence, the lack of any corroborative support etc., it wasn’t sufficient for a jury correctly applying the legal test to find Pell guilty beyond reasonable doubt.

  61. C.L.

    I don’t really care about the legal profession’s semantics.
    There is no proof of the complainant’s accusation.
    None whatsoever.
    Everybody knows this.
    The case was accepted at committal solely because of left-wing reforms mandating that sexual abuse accusers had to be believed unless the accused could prove they were lying or mistaken.
    In the case of Cardinal Pell, not even that truly mattered because Victoria Police, the media and the DPP did everything they could to ensure he’d be convicted anyway by a jury of hopped-up vigilantes. All of those officials looked the other way as multiple national broadcasts and a manically hyped book trained the public to believe he ‘raped’ an altar boy in front of hundreds of churchgoers – none of whom could remember seeing the event.

  62. FelixKruell

    Dover:

    The accusation and the testimony similarly arise from a single complainant. They are effectively the same thing.

    That doesn’t make them circular. It just means one isn’t further evidence of the other. They’re a single incidence of evidence.

    The trial then allow for that evidence to be tested, and other evidence to be considered.

    You seem to want to use the word ‘evidence’ in it’s ordinary meaning, rather than in its legal meaning. Despite this being very clearly a legal context.

  63. dover_beach

    That doesn’t make them circular. It just means one isn’t further evidence of the other. They’re a single incidence of evidence.

    No, what makes the claim circular is that the evidence for the claim is the claim itself. To put this most simply, A said B did X, and the only ‘evidence’ that B did X is A’s statement.

  64. Iampeter

    The case was accepted at committal solely because of left-wing reforms mandating that sexual abuse accusers had to be believed unless the accused could prove they were lying or mistaken.

    Yes. These reforms are the ACTUAL issue that conservatives should’ve used the Pell case as a springboard to address.
    But that would require actual political literacy and arguments. Not just angrily saying “left wing” in as many random sentences as possible.
    Instead conservatives squandered this opportunity by making it about Pell, playing identity politics and claiming victimhood just like all good leftists.
    Except you don’t realise what you’ve done, then without a hint of irony complain about leftists playing identity politics even as you continue to do the same thing with total obliviousness.

  65. Thanks for explaining that. Then how did these two past that, or was it only one?

  66. FelixKruell

    DOver:

    No, what makes the claim circular is that the evidence for the claim is the claim itself. To put this most simply, A said B did X, and the only ‘evidence’ that B did X is A’s statement.

    Still not circular – it’s exactly what I said – “It just means one isn’t further evidence of the other. They’re a single incidence of evidence.”

    For it to be circular, you would need to end up where you began, in a constant loop. Which isn’t the case here. You have evidence. The next step is testing that evidence, and hearing about any conflicting evidence.

  67. FelixKruell

    CL:

    I don’t really care about the legal profession’s semantics.

    Yet you comment on complex criminal proceedings which rely heavily on the legal profession’s semantics?

    There is no proof of the complainant’s accusation.

    That’s much better. This we can agree on. Noting of course this doesn’t stop him being found guilty – that would be the semantics coming into play again.

  68. candy

    Noting of course this doesn’t stop him being found guilty –

    It’s a worrying trend though that proof of guilt is not required anymore.

  69. dover_beach

    For it to be circular, you would need to end up where you began, in a constant loop. Which isn’t the case here. You have evidence.

    The accusation arose from the complainant, the evidence for the complaint entirely depends on the conplainant’s testimony. This is entirely circular.

  70. Lee

    I could add a couple, a happy little debunker:

    10/ police leaked (perhaps from the top, or very nearly) against Pell, during their investigation.

    11/ the police commissioner himself, with no equivocation, referred to complainants against Pell as “victims,” thereby leading anyone to assume that they were actually victims of him.

  71. Lee

    The accusation arose from the complainant, the evidence for the complaint entirely depends on the conplainant’s testimony. This is entirely circular.

    100% correct.

  72. Pyrmonter

    @ Dover

    I think you’re confusing two things: the allegation in its appropriate form (‘charge’, ‘indictment’, ‘information’) which is analgous to the Statement of Claim/Summons/Write/Originating Process/Petition in a civil matter – which describes the allegation’ and the evidence said to support it.

    The former is based on the investigation undertaken before the Crown initiates the legal process.

    I’m not a criminal lawyer, but recall from my now remote days in PLT that there is a good deal of art to the drafting the accusations: traditionally they had to be quite tightly drafted – that is one of the benefits the legal system has traditionally afforded prisoners.

    I believe there has been some relaxation in those rules (just as we’ve relaxed evidential rules about corroboration; and limitations rules on promptly bringing claims). But generally, they are distinct from the evidence given at trial: they have to be, as it would be exceptional for the prisoner to be able to cross examine the Crown witness(es) before the accusation had been made.

  73. dover_beach

    I think you’re confusing two things: the allegation in its appropriate form (‘charge’, ‘indictment’, ‘information’) which is analgous to the Statement of Claim/Summons/Write/Originating Process/Petition in a civil matter – which describes the allegation’ and the evidence said to support it.

    I’m not confusing anything. The charge is drawn from the complainant’s testimony in this instance. You can distinguish the two but they are not separable hee. There would be no charge/ indictment without the complainant’s testimony. And as the prosecution admitted, that was all they had.

  74. Bob in Castlemaine

    Interestingly it seems the Victorian vibe-innovation law only applies to some, allegedly. Depending on one’s political affiliations criminal cases reliant on such vibe-innovative evidence somehow never seem to make it to prosecution, allegedly?

  75. candy

    vibe-innovation law

    Lol. true. Mr Shorten’s issue is very similar. The word of an accuser with absolutely no evidence.
    That case did not get a look in anywhere, so you could assume it is because Bill Shorten is a senior Labor figure.

    As opposed to a senior conservative figure , who would be in jail now. I feel 99.99% confident about that.

  76. Pyrmonter

    Let’s abstract a bit. People here seem to have difficulty with the idea that crimes may not leave physical evidence or be witnessed only by one person. I suspect that’s actually fairly common – especially with corporate crime.

    Suppose S owns a cake shop, in which she sells her own products, and T is a thief.

    S stocks her shop. She is a sole proprietor, manageress and assistant.

    S observes T approaching a counter, picking up a cake, conceal it and leave the store. She follows T out of the shop . Within her vision, but without any other person observing T, T consumes the whole of the cake, thus disposing of the physical evidence of the crimes.

    T leaves the vicinity of the shop in an unremarkable fashion, blending in with passing pedestrians.

    S reports the theft.

    In the world of Dover, Candy et al, is there an offence capable of prosecution? The only evidence will be S’s word. T might, but cannot be required, to comment on her whereabouts and actions. If she stays silent – as she is entitled to – the question will come down to the reliability of S’s evidence. I can’t see any problem with such a prosecution; and leaving aside the trivial nature of the offence in my scenario, don’t see any reason why it shouldn’t be prosecuted.

  77. candy

    Pyrmonter
    The nature of the offence is actually the most tremendous consideration in your scenario.

    Cardinal Pell is in jail probably die there. Comparing that to a lamington stealer is not valid, imo.

  78. FelixKruell

    Candy:

    It’s a worrying trend though that proof of guilt is not required anymore.

    It never has been.

  79. FelixKruell

    Dover:

    The accusation arose from the complainant, the evidence for the complaint entirely depends on the conplainant’s testimony. This is entirely circular.

    You’ve left out the entire rest of the process, that follows on from the complaint and the evidence of the complainant.

    Short of drawing you a straight line, then comparing it to a circle, there’s not much more I can say to convince you.

  80. Pyrmonter

    @ Candy

    My point is to illustrate in circumstances free of ideological baggage or tribal loyalty about clerics or sexual mores how it can come to pass that there is only one witness and no physical evidence to any number of crimes. That’s perfectly unexceptional.

    It may not be common; it may be that prosecutors fear to prosecute because of likely failure; but such offending occurs. And that there is nothing inherently unjust in a single witness being believed.

  81. dover_beach

    In the world of Dover, Candy et al, is there an offence capable of prosecution? The only evidence will be S’s word. T might, but cannot be required, to comment on her whereabouts and actions. If she stays silent – as she is entitled to – the question will come down to the reliability of S’s evidence. I can’t see any problem with such a prosecution; and leaving aside the trivial nature of the offence in my scenario, don’t see any reason why it shouldn’t be prosecuted.

    Where have I said there isn’t an allegation capable of prosecution? But let me leave that aside , the Pell case involves significant departures from your example. There are witness statements that T was elsewhere rather than at the shop. There are no shoppers in or around the store that recall T enter and exit the cakeshop, nor are their any pedestrians that recall either seeing T as he walked down the street, or in the possession of a cake, or eating it. And so on.

  82. dover_beach

    You’ve left out the entire rest of the process, that follows on from the complaint and the evidence of the complainant.

    Not at all. Process isn’t substance. To repeat, the complaint rested entirely on the complainant’s testimony. There was no other corroborating evidence, testimony, or the like. Nothing. On the contrary, there are over 20 exculpatory statements that contradicted the complainant’s testimony.

  83. Pyrmonter

    @ Candy

    It’s a worrying trend though that proof of guilt is not required anymore.

    Not sure if you mean before trial or at trial. It was and is necessary for the Crown to prove guilt beyond reasonable doubt at trial.

    It has never been the case that ‘proof’ is required before then, for the simple reason that you only have one trial: to require earlier ‘proof’ would involve a risk of double-jeopardy.

    It is necessary for the prosecutor to believe there are reasonable prospects of the prosecution leading to a conviction, and not, for example, to lead evidence from witnesses he or she knows to be lying, and, where a committal occurs, for their to be evidence that could, if accepted, lead to a conviction. But it isn’t necessary for the prosecutor to carry out a mini trial.

  84. Pyrmonter

    @ Dover

    Almost all of the exculpatory witnesses were tendency witnesses: it is hard for them to be taken as directly contradictory to the claimant’s evidence, although they increase the likelihood that the events didn’t happen.

    As for those who might directly contradict the claimant, it is possible the jury thought they were mistaken; or that they were partisans for the defendant. That’s the sort of judgment juries are expected to make.

  85. FelixKruell

    Dover:

    To repeat, the complaint rested entirely on the complainant’s testimony. There was no other corroborating evidence, testimony, or the like. Nothing. On the contrary, there are over 20 exculpatory statements that contradicted the complainant’s testimony.

    That’s not repeating what you said at all.

    You claimed there was ‘no evidence’. Now you’re saying ‘there was no corroborating evidence’. Only the latter is true.

  86. dover_beach

    As for those who might directly contradict the claimant, it is possible the jury thought they were mistaken; or that they were partisans for the defendant.

    So, heads, prosecution wins; tails, you are guilty.

  87. dover_beach

    That’s not repeating what you said at all.

    You claimed there was ‘no evidence’. Now you’re saying ‘there was no corroborating evidence’. Only the latter is true.

    No evidence aside from the claim itself is effectively no evidence at all. Does that help?

  88. FelixKruell

    Dover:

    No evidence aside from the claim itself is effectively no evidence at all. Does that help?

    That’s making your point better yes. But your point is weak. It’s the major type of evidence in these types of trials. And has been sufficient to convict in the past. So it is legally, and effectively, evidence.

  89. candy

    And has been sufficient to convict in the past.

    So, Felix, just asking, why do you think the rape charge against Bill Shorten did not go anywhere – if a verbal accusation about something decades ago is enough to find a person difficulty? why was it not taken seriously in the very first instance and taken to some kind of trial at least?

    What exactly is the difference between Pell and Shorten cases? No evidence at all, only a verbal accusation about something many years ago.

  90. dover_beach

    It’s the major type of evidence in these types of trials. And has been sufficient to convict in the past. So it is legally, and effectively, evidence.

    This is eliding the point. I’m not disputing that in such cases, that the complainant’s testimony is a ‘major type of evidence’; in fact, I’ve repeatedly stated that the prosecution had nothing apart from that. Nor have I said that this has been insufficient in the past, however, I would like to see how many prosecutions were brought on nothing more than this, and how many of these cases were successful. Very unlikely that many were, and even more unlikely that they were successful, which explains the impetus for removing the direction by the trail judge in 1980 to the jury that depending solely on the uncorroborated testimony of the complainant was unreliable. That is precisely my point. This also makes the development, since the 1980s, during appeal of the idea of an ‘unsafe verdict’ intelligible, especially when conjoined to the pursuit of alleged historical crimes which were formerly understood as an abuse of process. When you remove this and that safeguard in order to make conviction less exacting, this is to be expected.

  91. Pyrmonter

    @ Dover – googling the terms ‘corroboration’ will bring up the extensive law reform agency reports and academic writing that shredded the idea that the evidence of sexual offence victims (overwhelmingly women and children) needed to be corroborated. Given the standard of proof, the case was convincingly made that it was redundant.

  92. FelixKruell

    Candy:

    So, Felix, just asking, why do you think the rape charge against Bill Shorten did not go anywhere – if a verbal accusation about something decades ago is enough to find a person difficulty? why was it not taken seriously in the very first instance and taken to some kind of trial at least?

    Because there’s still a process whereby the police and the prosecutor first form a view as to the merits of that evidence before deciding whether to prosecute. This is the main way that weak cases (or obviously made-up evidence) get weeded out. Shorten’s case didn’t get past this hurdle. Pell’s did.

  93. FelixKruell

    Dover:

    I’m not disputing that in such cases, that the complainant’s testimony is a ‘major type of evidence’;

    Sorry, but you did. You claimed that this testimony is not evidence at all.

    But I’m glad you’ve seen the light. And finally caught onto the actual debate we should be having about the Pell case – whether the changes to how these types cases are run (part of which Pyrmonter alluded to above) to better protect victims and make convictions easier to obtain, still allow adequate protection for the accused from false testimony by the victim/complainant (be it intentional or not).

  94. Iampeter

    And has been sufficient to convict in the past. So it is legally, and effectively, evidence.

    Stop trying to suggest this case is perfectly legit as any other.
    This can only be determined by pure feelings which themselves are triggered by the arbitrary opinion one holds, like the tribe one arbitrarily belongs to and then rationalised with endless word games.
    Stop eliding the point, you point elider you.

    What exactly is the difference between Pell and Shorten cases?

    Well, Shorten doesn’t belong to an organisation notorious for abuses and covering them up.
    He didn’t apparently sit on a panel determining where to stash the worst offender in the country instead of going to the police.
    He doesn’t have a history of other allegations, one of which was investigated in a faux trial which itself is grounds for a police investigation, and which also seemed to fail to clear him of those specific allegations.
    He wasn’t housemates with the worst offender in the country and didn’t show up to offer him support, especially after he had already confessed.

    So, many, many important differences.

    I don’t think any of this means Pell is guilty, nor do I agree with the verdict based on the information publicly available, but the dishonesty and lack of self awareness of mindless and tribal Pell defenders is pretty appalling and credibility destroying. It’s also now the real story IMO.

    Don’t be one of them. Think for yourself.

  95. Mark A

    Because there’s still a process whereby the police and the prosecutor first form a view as to the merits of that evidence before deciding whether to prosecute. This is the main way that weak cases (or obviously made-up evidence) get weeded out. Shorten’s case didn’t get past this hurdle. Pell’s did.

    That’s no answer.
    Why was the same allegation in one case led to court and the other ignored?
    Where did they differ?

    Could be that one was against a prominent labor leader and the other against a despised leader of a despised religion? (at least by Vicpol)

  96. candy

    This is the main way that weak cases (or obviously made-up evidence) get weeded out.

    So there is such a thing as obviously made-up evidence after all?

    Why does a policeperson decide in the Shorten case and not a jury as for Pell. That does not seem at all fair and democratic.

  97. candy

    He didn’t apparently sit on a panel determining where to stash the worst offender in the country instead of going to the police.
    He doesn’t have a history of other allegations, one of which was investigated in a faux trial which itself is grounds for a police investigation, and which also seemed to fail to clear him of those specific allegations.
    He wasn’t housemates with the worst offender in the country and didn’t show up to offer him support, especially after he had already confessed.

    He was not on trial for those things, Iampeter. What I read is that he was on trial for rape of boys.

    It would be like saying, well Bill Shorten was a dubious union leader who did dubious things and deserted his wife, therefore he raped the girl.

    Entirely illogical, unfair and undemocratic.

  98. Iampeter

    He was not on trial for those things, Iampeter. What I read is that he was on trial for rape of boys.

    I’m not saying he was. I’m saying Pell’s history is very different to Shorten’s which I think is the answer to why they were treated so differently.

    Entirely illogical, unfair and undemocratic.

    For laws to be fair they have to be undemocratic.
    Fair laws apply to everyone the same, irrespective of the whims of the mob.
    It’s Pell’s supporters that are calling for unfair laws, demanding special treatment because tribe.

  99. JC

    Well, Shorten doesn’t belong to an organisation notorious for abuses and covering them up.

    Plodes is obviously living in a parallel universe. Incredible hubris.

Comments are closed.