If you’re a conservative christian, don’t expect the benefit of due process

If Cardinal George Pell was anything other than Australia’s best known Christian who happens to be a social conservative and holds the third most senior position in the Vatican, the civil libertarians in our midst would be calling for him to receive due ­process.

Instead, with the notable ­exception of lawyer Terry O’Gorman in Brisbane, there has been ­silence as a baying pack of jour­nalists and some politicians effectively have branded Pell guilty of historical child sexual abuse. ­Before charges have been laid or a trial conducted.

This is what we know of the ­allegations against Pell. In February last year, the Herald Sun revealed that he was to be subjected to a police investigation concerning crimes that allegedly took place at St Patrick’s Cathedral in Melbourne between 1996 and 2001. To accept this allegation you have to believe that Pell was an ­active pederast at the very time he set up the Melbourne ­Response to deal with child sexual abuse in co-operation with Victoria Police and after consulting the Victorian governor, premier and solicitor-general, along with male and female lawyers. Pell must have been completely reckless or is innocent of the allegations made against him.

Since then, following ABC management’s decision to allow reporter Louise Milligan to devote an entire 7.30 program to Pell’s ­alleged improper touching of two boys in the Eureka Pool in Ballarat about four decades ago, Victoria Police extended its investigations. In October last year, the cardinal volunteered to be interviewed in Rome on all matters by three members of Victorian Police.

In the period since February last year, the following events took place. Victoria Police (which can lay charges of its own volition) put up a brief to the Victorian Office of Public Prosecutions. The OPP (which also can lay charges of its own volition) returned the brief without recommendation.

Whereupon Victoria Police put up another brief to the OPP. ­According to reports, the OPP ­returned the matter to Victoria Police this week with a comment that it can lay charges if it wishes. Quite so. Victoria Police could have brought charges against Pell in February last year or earlier. But it did not do so.

And that’s the point. If there was strong evidence against Pell, he would have been charged at least six months ago. Despite this, the cardinal has already been found guilty in the court of the media — with the campaign led by Milligan, Mike Carlton, Peter FitzSimons and more besides.

However, it is not only jour­nalists and commentators who seem to regard Pell as guilty before trial. In July last year, following the 7.30 report on Pell’s alleged behaviour in Ballarat, Victorian police commissioner Graham Ashton was interviewed on Radio 3AW in Melbourne where he said: “Anyone who saw that show on the ABC, which I did look at, it’s clear, it’s clear it’s — the source of that information is from victims.”

So Ashton maintained that two men who spoke to Milligan about Pell are his “victims”. It is this kind of presumption with respect to ­allegations of historical crimes that was condemned in October last year by Sir Richard Henriques, a retired judge of the High Court of England and Wales.

In his report, Henriques made the point that “all complainants are not victims”. He added: “Since the investigative process is ­engaged in ascertaining facts which will, if proven, establish guilt, the use of the word ‘victim’ at the commencement of an investigation is simply inaccurate and should cease.”

It’s not only the Victorian police commissioner who can learn from Henriques. On Wednesday, Victorian Premier Daniel Andrews was asked during a doorstop interview about the Pell case. He responded: “The victims of ­institutional child sexual abuse are owed justice.” Well, so they are — if their allegations are found proven. Andrews overlooked the fact, in the criminal jurisdiction, the accused is also owed justice.

Certainly the Pell matter moved with haste this week. On Monday, Melbourne University Press released Milligan’s Cardinal: The Rise and Fall of ­George Pell. This originally had a publication date of July 1. The book has attracted most favourable media coverage, especially by Fairfax Media, the ABC and on Network Ten’s The Project. Yet this is no more than a hatchet job. Even Milligan volunteered the comment to ABC News Breakfast this week that her book has been written “from the complainants’ point of view”.

You can say that again. In her first chapter, Milligan refers to Pell’s “ugly secret” concerning his time as archbishop of Melbourne. There is no evidence to support this claim beyond the memory of a person relating events of three decades ago.

In Cardinal, Milligan cites in ­direct quotes a conversation in Melbourne allegedly heard by a person three decades ago who was in another room from Pell, and who allegedly had been sent there as Pell wanted to talk confidentially with a monsignor. This ­assumes that Pell was foolish in talking too loudly and that the person is able to accurately recall overheard long-ago conversations. Yet senator Derryn Hinch told Paul Murray Live on Sky News on Wednesday that this is new compelling evidence against the cardinal.

Justice Peter McClellan, chairman of the Royal Commission into Institutional Responses to Child Sexual Abuse, wrote an article in the Australian Law Journal in 2006 about the fallibility of memory. He warned about the ability of a person to plant a false memory in another and acknowledged that memories might be altered by post-event factors. Psychologist Daniel L. Schacter covers similar ground in his book The Seven Sins of Memory (Mariner Books, 2001).

In Western Australia last year, Catholic bishop Max Davis was acquitted by a jury of historical child sexual assault — it appears that this was a case of false identity. In Britain, the case of historical child abuse against the Anglican bishop George Bell is ­extremely weak and also could ­involve a case of mistaken identity. Yet both men’s reputations have been irretrievably tarnished by the words of complainants who never established that they were victims of the person they accused.

Gerard Henderson is executive director of the Sydney Institute. His Media Watch Dog blog can be found at theaustralian.com.au.