George Pell

The rejection of Cardinal George Pell’s appeal against his convictions for child sexual abuse appears to have prompted two quite different responses from his supporters: utter silence from some, and a doubling down from others.

For the centre-right, who made noises about culture wars and easily swayed juries, it’s as if Pell had never existed. No surprises there, since extending such an attack means arguing that two of three appeal judges could be swayed by public opinion, which could not help but raise wider doubts about how a court system is constituted. Pell wasn’t worth it for them to go there.

But the harder right have been willing to go all the way, with Andrew Bolt, Miranda Devine and Bettina Arndt leading the charge. They didn’t have much to work with, so far as the appeal went. No smoking gun, no twist of legal paradox. The majority judgment was that the sole witness and surviving victim was a “witness of truth”. Justice Mark Weinberg’s dissent suggested he embellished and “clutched at straws” when challenged on inconsistencies.

That simply reproduces the division that occurred in public when the jury verdict was announced, so the hard right have had to develop the novel idea that a split appeal decision is itself unsafe. It isn’t, obviously; that’s why there’s a multi-purpose appeal panel, odd-numbered. Essentially, Pell’s supporters now have to attack the entire fabric of the justice system, to defend their man. That has the air of banana republic junta politics about it.

The legal system acted as it was supposed to — and, from a critical left perspective, it usually doesn’t — and in the process damaged a parallel pillar of the establishment, the Catholic Church. Beyond the impact on Pell the man, this is the real biggie. As the NSW abortion debate shows, the right increasingly uses Catholicism as an absolute buttress for their culture wars, because liberalised Anglicanism no longer provides a “capital stock” of cultural value. The rejection of Pell’s appeal has shaken the cathedral spire once again, here and around the world.

But the appeal result has drawn progressives and leftists even tighter into an embrace with a justice system they would and should be suspicious and critical of at every level of its operation.

The inevitable gap between a legal justice process and certainty is on display every day in courts all across the land, and usually not in the defendant’s favour. The usual single witness is a cop in a magistrates’ court, never challenged on whatever they’re reading out of their notebook. The incarceration mill for Indigenous, Islander- and African-Australian youth relies on such inherent credulity and the material support of such — via the lack of legal aid defence funds to challenge a prosecution — to function at the rate it does, across the country.

But in this case, progressives felt that justice was served by the crediting of single-witness testimony, since to disregard it due to lack of corroboration would be to reward the very abuse of institutional power — isolate and discredit — that abusers in the Catholic church have relied upon to operate. They also rightly, and uselessly, pointed out that the right doesn’t have much trouble with the many single-witness plea bargains/convictions running through the court everyday.

Fair enough on both counts. But the mix of judicial endorsement and sheer power-political “we got a win” has utterly swapped the polarities: the right is using the language of institutional critique — courts are influenced by ideology, expressive of wider power relations etc — while the progressives are identifying a lower court verdict and a two-to-one appeal as an expression of the judicial system’s truth-defining powers.

If the High Court takes an appeal from Pell, then a final upholding will confirm this crossover absolutely, while a quashing of the conviction will drive everyone nuts.

What the great Pell crossover shows is the degree to which defined progressive v conservative struggles have collapsed as battles of ideas or principles. The right simply wants to maintain the concrete power of interlocking institutions, based on the privileges of a very small power-elite, legitimised by claiming to speak for excluded masses. Progressives and the left are in the business of extending and enforcing knowledge-class power and ideology, and desperate for every win, that they will abandon earlier, more radical institutional critique.

That is not to put in a plea for Pell, who has now been convicted and that conviction upheld. It’s true that the focus on this case, given the vast amount of injustice in the system lower down, is as irritating as it is politically inevitable. If anything, it should spur on radical lawyers and law firms here to develop a more visible Innocence Project — there is a suspicious lack of overturned convictions in Australia, compared to the US and UK — and for more pro bono work to mount real defences for those, especially youth, being railroaded to guilty pleas on the base of a single-witness case. But, above all, it’s to remember that legal justice is neither truth nor moral right, and we on the left/progressive side of things will have to be arguing that case forcefully in the years to come, for the sake of others, and ourselves.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey