George Pell has lost his appeal. What did the court decide and what happens now?



George Pell’s appeal on child sexual abuse convictions has been dismissed.
AAP/Erik Anderson

Ben Mathews, Queensland University of Technology

Victoria’s Court of Appeal today delivered one of the most significant judgments in Australian legal history, dismissing Cardinal George Pell’s appeal against convictions for five child sex offences.

Given Pell’s seniority in the Catholic Church as a former Vatican treasurer, the case is also of worldwide significance. The appeal involved complex legal principles. Here is what you need to know to understand the judgment.

What happened before this appeal?

In December 2018, a jury unanimously found Pell guilty of five sexual offences against two 13-year-old boys, committed while Archbishop of Melbourne. As detailed in the sentencing remarks of County Court Chief Judge Kidd in March 2019, Pell was found guilty of one count of sexual penetration of a child aged under 16 through forced oral sex, and four counts of an indecent act with or in the presence of a child aged under 16.

The first offences were committed in the sacristy of St Patrick’s Cathedral after mass in December 1996. The final offence was committed against one of the boys around one month later. Both victims were choirboys and recipients of choral scholarships at an elite school.




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We knew George Pell was guilty of child sex abuse. Why couldn’t we say it until now?


Pell was sentenced to six years’ prison with a non-parole period of three years and eight months.

In reaching a verdict, the jury relied on detailed evidence of one of the victims about what Pell said and did, and when and where it happened. The other victim began using heroin at age 14 and died of a heroin overdose in 2014, aged 31. This man’s death prompted the surviving victim, aged in his early 30s, to approach police in 2015.

Is it normal for survivors of child sexual abuse to delay disclosure?

Yes. Survivors often disclose only after a significant delay and are reluctant to tell legal authorities. Australia’s Royal Commission Into Institutional Responses to Child Sexual Abuse found that, for those in private interviews, 57% first disclosed as adults and it took an average of 31.9 years to disclose.

A 2013 study of 487 men whose mean age of onset of abuse was 10, found the mean age when first telling was 32.

Is it a problem that the prosecution relied on the complainant’s evidence?

No. Child sexual abuse typically is inflicted in secret, without other evidence, so prosecutions often depend heavily on complainant testimony. The law recognises this: evidence does not have to be corroborated, and the judge must not warn the jury it is dangerous to act on uncorroborated evidence.

Juries make judgments based on the complainant account’s credibility, consistency, detail and truthfulness, and responses and demeanour in cross-examination.

What did Pell argue in the appeal?

There were three grounds of appeal. Two were procedural or technical: the plea of not guilty was not made in the presence of the jury panel; and the defence was not permitted to play a “visual representation” of part of its argument in its closing address.

Essentially, both arguments claimed a “substantial miscarriage of justice”. The court unanimously rejected these arguments.

But the main argument was that the jury’s verdict was “unreasonable or cannot be supported having regard to the evidence”. Pell’s appeal argued it was not open to the jury to be satisfied of guilt, beyond reasonable doubt, based solely on the word of the complainant.

It also argued that it was not possible for Pell to have been in the sacristy either at all, or by himself; it was not possible for the boys to have been in the sacristy unnoticed; and the robes he wore made it impossible to offend in the way claimed.

What was the Court of Appeal required to do when considering this argument?

The law is complex, and whether a verdict is “unreasonable” depends on legal technicalities, not intuitive instincts. Four legal principles need to be understood here.

First, and most important, there is a very high threshold for a court to overturn a jury’s guilty verdict for being unreasonable (see, for example, M or Baden-Clay). This is because, in Australian law, the jury is the constitutional tribunal of fact responsible for deciding guilt or innocence. A verdict will only be overturned in exceptional circumstances showing a clear miscarriage of justice.

Second, the test is whether, on the evidence, it was open to the jury to be satisfied beyond reasonable doubt the accused was guilty.

To win the appeal, the appellant must show the guilty verdict was not open to the jury. It is not sufficient for the court to find a jury might have had reasonable doubt. The evidence must mean no reasonable jury could have returned a guilty verdict; it must have “obliged” them to reach a not guilty verdict.

Third, the appeal court does not retry the case – again, because the jury is the tribunal of fact. The court must independently assess the evidence, but to determine whether the guilty verdict was open to the jury; not simply whether the court itself has a doubt.

Fourth, if a complainant is credible and reliable and the account is detailed, consistent and plausible, it is difficult for an appeal to succeed. On plausibility, courts have accepted that sexual offending can be brazen, influenced by the abuser’s arrogance, power and belief the child will not make a complaint.

What did the Court of Appeal say about this?

The judges rejected it by a majority of two to one. They found the guilty verdicts were reasonable, because they were open to the jury on the whole of the evidence.

The court said there was nothing about the evidence that meant the jury must have had reasonable doubt. It was not enough that one or more jurors might have had a doubt. Moreover, the court did not itself have such a doubt.

The complainant was found to be compelling, clearly not a liar or fantasist, and a witness of truth. He did not embellish the evidence or tailor it to the prosecution. He adequately explained things he could not remember and his explanations had a ring of truth.

What can happen now?

Pell can seek special leave to appeal to the High Court. If the High Court denies permission, the matter is finalised; if given, it will later deliver a final judgment.




Read more:
The Catholic Church is investigating George Pell’s case. What does that mean?


Save for a successful appeal in the High Court, Pope Francis will likely expel Pell from the priesthood. The family of the second survivor is suing him and or the church for civil damages, as may others. Pell will remain in jail.

It is exceptionally difficult for survivors of child sexual abuse to bring successful criminal complaints, especially against powerful offenders. This judgment may encourage other courageous survivors to make complaints.

Yet many systemic reforms are still required to better facilitate prosecutions of child sexual offences.The Conversation

Ben Mathews, Professor, School of Law, Queensland University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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George Pell Loses Appeal


Despite China’s denials, its treatment of the Uyghurs should be called what it is: cultural genocide



Uyghurs in Australia are pressing Canberra to take a firmer stance with China on its treatment of the Muslim minority. Thus far, Australia’s response has been relatively muted.
Tracey Nearmy/AAP

James Leibold, La Trobe University

As China grows more powerful and influential, our New Superpower series looks at what this means for the world – how China maintains its power, how it wields its power and how its power might be threatened. Read the rest of the series here.


In China’s far western region of Xinjiang, Chinese Communist Party officials are persecuting one of the worst human rights abuses of our time, what I labelled an act of cultural genocide in last week’s ABC Four Corners report.

Pressure is mounting on the Australian government to go beyond statements of concern and challenge China over its treatment of the Uyghur minority, particularly those Australian citizens and permanent residents being held in the vast network of “re-education camps” in Xinjiang.

Two Australian Uyghur men are meeting federal politicians in Canberra today to push for the government’s assistance in helping family members trapped in China.

Australia was one of 22 countries to sign a recent letter to the UN High Commissioner for Human Rights expressing concern about the “arbitrary detention” of Uyghurs, but otherwise, its response has been muted.

In recent days, the Chinese government has defended its actions with a dubious propaganda report claiming that Uyghurs were historically forced to become Muslims and have been an integral part of China for thousands of years.

China repeatedly makes false and anachronistic claims like this about the ancient unity of the “Chinese people,” which includes ethnic minorities like the Uyghurs. Its aim is to project modern notions of sovereignty, nationhood and fixed borders back through history.

In reality, the 11 million or so Uyghurs are an indigenous Turkic-speaking people who have inhabited what they call “East Turkestan” for over a millennium. Along with the Tibetans, the Uyghurs have born the brunt of China’s settler colonial project, which seeks to assert its control over remote regions that are closer to Moscow and Tehran than Beijing.

Since March 2017, the Chinese government has interned over a million Uyghurs and other Muslim minorities in massive, prison-like camps (including possibly 17 Australian residents), where they are subjected to coercive ideological remoulding.

Detainees are forced to denounce their religion, forbidden to speak their language, and taught how to adopt the norms of China’s Han ethnic majority, while praising President Xi Jinping and the Communist Party for salvation.

In their own words, party officials are “washing brains” and “cleansing hearts” in order to “cure” those bewitched by extremist thoughts. In Xinjiang today, non-Han thoughts and behaviour are pathologised as deviant and thus in need of urgent transformation.

What is genocide?

A litany of words and phrases have been used to describe this process. The Chinese government calls the camps free “vocational education and training centres” where Uyghurs willingly learn Chinese language and employment skills in order to assist with their “rehabilitation and reintegration”.

Scholars, journalists and rights defenders have spoken about cultural and religious “persecution” in Xinjiang, arguing the party-state’s policies amount to mass ethnic cleansing, cultural re-engineering, forced assimilation, brainwashing, or even ethnocide.

In August 2018, Gay McDougall, the vice chair of UN Committee on the Elimination of Racial Discrimination, referred to Xinjiang as a “no-rights zone”.

Yet, I believe the scale, sophistication and intent of China’s policies in Xinjiang merits a stronger description.




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The term genocide was coined by lawyer Rafael Lemkin in 1944 in reaction to Nazi Germany’s coordinated strategy to annihilate the Jews, gypsies and other non-Aryan peoples. Four years later, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, with Australia one of the first counties to ratify it. The People’s Republic of China ratified it in 1983.

The convention defines genocide as

acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group

It also obligates signatories to punish those who engage in genocidal acts through a “competent” domestic or international penal tribunal.

Whether genocide includes only physical acts or can extend to attacks on cultural heritage has elicited intense debate, but for Lemkin, the term includes

drastic methods aimed at the rapid and complete disappearance of the culture, moral and religious life of a group of human beings.

Genocide also requires specific intent. In the words of political scientists Kenneth J. Campbell, genocide is a

premeditated, calculated, systematic, malicious crime authorised by the state’s political leaders.

This is exactly what Communist Party officials did when they authorised and then legalised the mass internment of Uyghurs and other Muslim minorities in “concentrated transformation-through-education centres,” ripping more than 10% of the population away from their communities so they could be deliberately re-programmed.

Various methods for erasing culture

Yet, facts arguably matter more than words when it comes to China’s policies in Xinjiang.

We now have ample evidence (including internal party documents) of the deliberate efforts to destroy Uyghur culture and identity. Everyday actions like avoiding pork, speaking Uyghur, wearing a headscarf or praying quietly are now labelled “manifestations of religious extremism,” or what party officials call “malignant tumors” requiring urgent excising in a radical form of cultural surgery.

In the city of Kashgar, for example, a party document highlights the need to sever the lineages, roots and cultural connections of Uyghurs in order to eliminate the fountainhead of potential extremism.

German researcher Adrian Zenz has uncovered evidence of the party’s efforts to separate Uyghur children from their parents in state institutions, where they can be assimilated and indoctrinated by officials. In these institutions, cultural, religious, and linguistic knowledge is intentionally ruptured.




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Explainer: who are the Uyghurs and why is the Chinese government detaining them?


In some parts of Xinjiang, mosques and shrines are being bulldozed, while others are transformed into empty sites guarded by facial recognition cameras and imams on the party payroll.

In the name of strengthening “bilingual education”, Chinese is now the language of instruction across Xinjiang, from preschool to university. The use of Uyghur language, script, signs and pictures prohibited. Speaking Uyghur is now considered unpatriotic and can get one sent off for re-education.

Perhaps most disturbing, inter-ethnic marriages are being actively promoted to slowly breed out Uyghurness, with cash and other material inducements offered to Han men who take a Uyghur bride.

One can find numerous videos and messages promoting Han-Uyghur inter-marriage on Chinese social media, asserting Xinjiang is now safe and home to many beautiful and eligible Uyghur women who would appreciate a doting Han husband.

Finally, the Chinese government has intensified its family planning regime in Xinjiang to slow the growth of the Uyghur population and eliminate what party officials call “low quality births”.

Beginning in 2017, the region adopted a uniform two children policy that nullified preferential rules allowing rural Uyghur women to have additional births. In the past, Uyghur women were given 3,000 RMB (roughtly A$620) to forgo a third birth and agree to some sort of “long-term contraceptive measure.”

The Communist Party’s calculated war on Uyghur identity is quite literally tearing families and communities apart, while the rich tradition of diversity and tolerance in China is left in tatters.

The resilient nature of culture and memory means that attempts at genocide, thankfully, are rarely successful. Yet the pain they inflict is real.The Conversation

James Leibold, Associate Professor of Politics and Asian Studies, La Trobe University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

It’s a new era for Australia’s whistleblowers – in the private sector



Whistleblowing will always take some type of toll, but it need not be career suicide.
http://www.shutterstock.com

Dennis Gentilin, Macquarie University

As strange as it might sound, whistleblowers in Australia have reason to rejoice – so long as they are in the private sector.

Thanks to new laws that came into effect this month, private-sector whistleblowers have a range of new protections. This includes, in certain prescribed circumstances, the prospect of being compensated if they experience adverse outcomes after taking their concerns to the the media.

The timing is ironic, given last month Australia’s federal police launched raids on journalists and media outlets who received and published disclosures from public-sector whistleblowers. If identified and prosecuted, those whistleblowers could face lengthy prison sentences.




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In fact, private-sector whistleblowers now have, for the first time, greater protection than their public-sector counterparts.

What the new laws do

The catalyst for the new laws was a parliamentary inquiry into whistleblower protection established in November 2016. The inquiry’s final report, published in September 2017, made a total of 35 recommendations. Though 19 were rejected by the federal government, the outcome is still a vast improvement on the previous provisions.

For the first time, federal legislation now defines, in broad terms, the following.

Who qualifies as a whistleblower. The list of those protected for making disclosures goes beyond company officers and employees. It includes suppliers, employees of suppliers, and relatives and dependants of officers, employees and suppliers.

What is a disclosable matter. Whistleblower protection isn’t just for disclosing illegal conduct. It also covers “misconduct” or an “improper state of affairs” (not including concerns about personal work-related grievances).

Who to make a disclosure to. To qualify for protection, whistleblowers no longer need to raise their concern through a “formal” whistleblowing channel. They can go to any officer or senior manager in a company, or to an auditor, or to regulators. Disclosures to journalists and members of parliament also qualify for protection in certain prescribed circumstances.

What constitutes detriment. Detrimental outcomes for whistleblowing are not constrained to dismissal or demotion. They include discrimination, harassment or intimidation, harm or injury (including psychological), and damage to property, financial position or reputation.




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Above all, the legislation empowers the courts to order payment of compensation to whistleblowers who experience detriment. To avoid any liability, organisations must demonstrate they have taken steps to protect whistleblowers.

Promoting protection

The prevailing view is that whistleblowing is a sure path to career suicide. The stories that loom large in the public consciousness are those of whistleblowers who, despite acting in the best interests of the organisations that employ them, are ostracised and abandoned.

Whistleblowing, to be sure, is an arduous undertaking that will always take some type of toll. But this prevailing narrative of significant adverse consequences is misleading.

I say this for two reasons.

The first is personal. In 2004, I was one of the whistleblowers in a major governance failure at the National Australia Bank. It led to four colleagues being jailed and senior executives resigning. Despite this, I went on to spend a further 12 years at the bank. The bank endorsed a book I subsequently wrote about the origins of ethical failure. Chairman Ken Henry even wrote the foreword.

The second, more importantly, is the evidence. The world-leading Whistling While They Work Research Project at Griffith University surveyed close to 18,000 people working in public and private sector organisations across Australia and New Zealand. Of the 4,382 respondents who reported wrongdoing in their organisations, 21% said they were treated well by both management and colleagues, compared to less than 13% who said they were treated badly.



There is no denying whistleblowers sometimes pay a significant price, but these results show positive outcomes are possible.

Beyond ‘tick-the-box’ compliance

The new whistleblowing laws aim to increase those positive outcomes and provide avenues for compensation when whistleblowers aren’t treated well.

The challenge for organisations now is making this happen.

A first step is to put in place a whistleblower policy. The legislation requires that all publicly listed and large proprietary companies have one. Among other things, the policy must detail:

  • the internal channels through which whistleblowers can make disclosures
  • how thorough, independent investigations will be conducted
  • how the interests of the whistleblower will be protected.

As important as formal whistleblowing policies and programs are, however, they are not sufficient. Any “tick-the-box” compliance approach will inevitably fail to promote positive outcomes for whistleblowers without an ethical culture.




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Organisations must work hard to create environments that support those who raise concerns, and where leaders listen and take action. This will reduce potential liabilities for organisations and help shift the prevailing narrative surrounding whistleblowing.

We are now in a new era for private sector whistleblowers. Of course, the true litmus test will be when the laws are tested in the courts. But my hope is not just that the courts richly (and deservedly) compensate whistleblowers who suffer detriment. I hope the legislation is a catalyst for organisations to create environments that support whistleblowers, recognising the tremendous value they bring to any workplace.The Conversation

Dennis Gentilin, Adjunct Fellow, Macquarie University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Governments are making fake news a crime – but it could stifle free speech


Alana Schetzer, University of Melbourne

The rapid spread of fake news can influence millions of people, impacting elections and financial markets. A study on the impact of fake news on the 2016 US presidential election, for instance, has found that fake news stories about Hillary Clinton was “very strongly linked” to the defection of voters who supported Barack Obama in the previous election.

To stem the rising influence of fake news, some countries have made the creation and distribution of deliberately false information a crime.

Singapore is the latest country to have passed a law against fake news, joining others like Germany, Malaysia, France and Russia.




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But using the law to fight the wave of fake news may not be the best approach. Human rights activists, legal experts and others fear these laws have the potential to be misused to stifle free speech, or unintentionally block legitimate online posts and websites.

Legislating free speech

Singapore’s new law gives government ministers significant powers to determine what is fake news, and the authority to order online platforms to remove content if it’s deemed to be against the public interest.

What is considered to be of public interest is quite broad, but includes threats to security, the integrity of elections, and the public perception of the government. This could be open to abuse. It means any content that could be interpreted as embarrassing or damaging to the government is now open to being labelled fake news.

And free speech and human rights groups are concerned that legally banning fake news could be used as a way to restrict free speech and target whistleblowers.




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Similar problems have arisen in Malaysia and Russia. Both nations have been accused of using their respective laws against fake news to further censor free speech, especially criticism of the government.

Malaysia’s previous government outlawed fake news last year, making it a crime punishable by a fine up to 500,000 Malaysian (A$171,000) ringgit or six years’ imprisonment, or both. The new government has vowed to repeal the law, but so far has yet to do so.

Russia banned fake news – which it labels as any information that shows “blatant disrespect” for the state – in April. Noncompliance can carry a jail sentence of 15 days.

Discriminating between legitimate and illegitimate content

But the problems that come with legislating against fake news is not restricted to countries with questionable track records of electoral integrity and free speech.

Even countries like Germany are facing difficulties enforcing their laws in a way that doesn’t unintentionally also target legitimate content.

Germany’s law came into effect on January 1, 2018. It targets social media platforms such as Facebook and Twitter, and requires them to remove posts featuring hate speech or fake information within 24 hours. A platform that fails to adhere to this law may face fines up to 50 million euros.

But the government is now reviewing the law because too much information is being blocked that shouldn’t be.

The Association of German Journalists has complained that social media companies are being too cautious and refusing to publish anything that could be wrongly interpreted under the law. This could lead to increasing self-censorship, possibly of information in the public interest.

In Australia, fake news is also a significant problem, with more and more people unable to distinguish fake news from legitimate reports.

During Australia’s federal election in May, fake news claiming the Labor Party planned on introducing a death tax spread across Facebook and was adopted by the Liberal Party in attack ads.




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But there has been no serious talk of passing a law banning fake news here. Instead, Australian politicians from all sides have been pressuring the biggest social media platforms to be more vigilant and remove fake news before it becomes a problem.

Are there any alternatives to government regulation?

Unlike attempts to limit or ban content in pre-internet days, simply passing a law against fake news may not be the best way to deal with the problem.

The European Union, which is experiencing a rise in support for extreme right-wing political parties, introduced a voluntary code of practice against online disinformation in 2018. Facebook and other social media giants have since signed up.

But there are already concerns the code was “softened” to minimise the amount of content that would need to be removed or edited.

Whenever governments get involved in policing the media – even for the best-intended reasons – there is always the possibility of corruption and a reduction in genuine free speech.

Industry self-regulation is also problematic, as social media companies often struggle to objectively police themselves. Compelling these companies to take responsibility for the content on their sites through fines and other punitive measures, however, could be effective.




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Another alternative is for media industry groups to get involved.

Media freedom watchdog Reporters Without Borders, for instance, has launched the Journalism Trust Initiative, which could lead to a future certification system that would act as a “guarantee” of quality and accuracy for readers. The agreed standards are still being discussed, but will include issues such as company ownership, sources of revenue, independence and ethical compliance.The Conversation

Alana Schetzer, Sessional Tutor and Journalist, University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Is bottom-pinching still ‘indecent’ by today’s community standards?



File 20190402 177193 1svi03b.jpg?ixlib=rb 1.1
It wasn’t okay to touch people inappropriately in the 1970s and 80s, and it still isn’t now.
Elen Tkacheva/Shutterstock

Hadeel Al-Alosi, Western Sydney University

In a recent court case in Western Australia, Magistrate Michelle Ridley ruled that “in an era of twerking” and easy access to pornography, it was not an indecent assault when a police officer pinched a woman’s backside.

Here’s what happened. In December 2017, 48-year-old police officer of 17 years, Andrew Ramsden, participated in a yearly wheelchair basketball charity event. After the game, the anonymous complainant asked if she could have a “serious photo” with other members of the police team.




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But when posing for the photo, Ramsden thought it would be funny to startle her by pinching her buttocks, and she jumped forward in surprise when he did so. Ramsden reportedly then said to her either “I hope you take this the right way” or “don’t take this the wrong way”.

He was charged with “unlawfully and indecently assaulting another person” under section 323 of the Criminal Code (WA). And he was eventually found not guilty.

But twerking, grinding, and the easy availability of pornography should never be an excuse for sexual harassment. This argument effectively shifts the blame on victims and implies that the sexualisation of society means women consent to being sexually harassed, which is far from the truth.

And in the era of the #MeToo movement, where women are holding men to account for sexual harassment, it seems the court in the Ramsden case hasn’t caught up to this wider cultural shift.

What is considered ‘indecent’?

Determining if an act is “indecent” requires considering the intention of the accused.




Read more:
#MeToo exposes legal failures, but ‘trial by Twitter’ isn’t one of them


The courts have stated for an assault to be indecent there

must be a sexual connotation to the activity. It must be an activity which offends community standards of propriety prevailing at the relevant time.

In Ramsden’s case, the magistrate held that the act was not indecent because it was not done for a sexual purpose. And the WA Supreme Court recently upheld the magistrate’s decision, and acquitted him.

The magistrate and the Supreme Court rejected the prosecution’s argument:

the prevailing standards of the community today are that any touching by a man of the buttocks of a woman is inherently indecent.

It has never been okay

Determining community standards is best left to a jury rather than a single judge or magistrate to help ensure “the application of the law is fair and consistent with community standards”. However, no jury was used in Ramsden’s case, so it was up to the magistrate alone to decide whether today’s community would regard pinching a person’s bottom as indecent.

Magistrate Ridley said in the 1970s and 1980s, “a pinch on the bottom was naughty and seen as overtly sexual and inappropriate for that time”. But added nowadays “the thought of a pinch on the bottom is almost a reference to a more genteel time”.

Magistrate Ridley believed pinching a person’s backside lost its overtly sexual connotation “in an era of twerking and grinding, simulated sex and easy access to pornography”.

But it wasn’t okay to touch people inappropriately then, and it still isn’t now.

The worldwide #MeToo movement, which the prosecution referred to in the trial, is just one example showing the significant cultural shift in societal views of sexual harassment.

On appeal, the Supreme Court accepted the movement had led to an

increase in the number of complaints by women and to increase awareness of the unacceptability of such acts and conduct.

However, it held that no evidence was put forward to the magistrate

upon which a finding could be made that the effect of the movement itself had resulted in a change in community standards as to the ‘acts’ and ‘conduct’ that should, at law, be deemed ‘indecent’.

Cultural change takes time. The #MeToo movement is a positive step in changing how we respond to sexual assault. Implying pornography and dancing excuses sexual harassment is a step backwards.

University of Technology Sydney criminal law lecturer Dr Katherine Fallah criticised the Ramsden decision. In an interview on Triple J, Fallah made an excellent point, arguing:

The statement about twerking and about porn are offered in a fairly derisory way of talking about things that are very remote from the facts of the case – here we have a woman having a photo taken after … a wheelchair basketball charity event.

The bottom line

A person’s backside is an intimate part of one’s body and no one should have to tolerate unwanted contact of their private parts for someone else’s amusement.

The Ramsden case fails to reinforce this message because of the definition of “indecency”, which requires a sexual motive for the act.




Read more:
Rape, sexual assault and sexual harassment: what’s the difference?


Australian legislators need to step in and make it clear that deliberately pinching a person’s backside is a form of sexual harassment. Without consent, such conduct is unacceptable, regardless of whether it is done for a sexual purpose or in a poor attempt at humour.

The bottom line is that “bum pinching isn’t — and has never been OK”.The Conversation

Hadeel Al-Alosi, Lecturer, School of Law, Western Sydney University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The Catholic Church is investigating George Pell’s case. What does that mean?


Ian Waters, University of Divinity

Cardinal George Pell was this week sentenced by a Victorian court to six years’ jail for sexually abusing two choirboys, with a non-parole period of three years and eight months.

Although Pell was found guilty of the charges against him in December, he has remained a Cardinal in the Catholic Church. The Church previously said it would await the outcome of an appeal before taking action, but it has since confirmed that an investigation of Pell’s case will be conducted by the Congregation for the Doctrine of the Faith.

An American former cardinal was recently expelled from the priesthood by the Church following a canonical trial into claims of child sexual abuse. Here’s what it could look like if Pell was subject to a similar process.




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Canonical trials are governed by the rules of the Church

Most cases concerning the wrongdoing of Catholics are tried in secular courts. The decisions and punishments handed down by the courts are normally accepted by the Church as sufficient.

But the Church will conduct its own examination of cases where the church’s canon law requires punishment outside the competence of the courts of the land. That includes the excommunication of a member of the church, or the dismissal of a priest or bishop from the clerical state – often referred to as defrocking.

Tribunals to adjudicate matters that concern the Church’s own internal governance are principally governed by the rules and regulations of the Church, which are known as canon law (from the Greek etymology κανών or kanon, meaning a “rule”). These regulations are set out in the Church’s Code of Canon Law, which came into effect in 1983.

Since such trials are conducted because of the requirements of canon law, they are known as “canonical trials”.




Read more:
How an appeal could uphold or overturn George Pell’s conviction


Sexual abuse cases are handled by the Holy See

Catholic Church tribunals are normally held in the diocese of the parties to the case. The bishop of the diocese can judge cases for his diocese. But since bishops often have little or no in-depth knowledge of canon law, most cases in Catholic Church tribunals are handled by judges (clerics or laypersons) appointed by the bishop. The presiding judge is a priest known as the judicial vicar.

Some matters cannot be introduced at a diocesan tribunal, but are reserved for the various tribunals at the Holy See. This includes cases involving dioceses and bishops, and certain serious matters regarded as crimes in the Catholic Church. Examples of this would be matters of sacrilege (offences against the sacraments), and sexual offences by a cleric against a minor under the age of 18.

A college of judges try difficult cases

Usually a single judge presides over contentious and penal cases. But a college of three or five judges will normally try more complicated or difficult cases – especially if the prescribed penalty is an excommunication from the Church, the dismissal of a cleric, or if the case concerns the annulment of a marriage or an ordination.

Other officers of the tribunal include the promoter of justice, who is the prosecutor in penal cases. The tribunal also has notaries who swear in witnesses, and commit their testimony to writing.

Like any legal system, parties in a case have the right to appoint an advocate who can argue for them at the tribunal. If a person cannot afford an advocate, the tribunal can assign one to them free of charge.




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Defendants are presumed innocent

Catholic Church tribunals do not use the adversarial system used by the courts of the common law tradition. Rather, Catholic Church tribunals use the inquisitorial system law found in most European legal systems. That means the judges lead the investigation.

The standard of proof used by the Catholic Church tribunals is “moral certainty”. Certainty results from examination in good conscience of the available evidence. This isn’t the same as “absolute certainty”, but it’s more than mere probability. It is normally stricter than guilt “beyond reasonable doubt”, which is usually held to be the absence of doubt based on reason and common sense.

As a general rule, the defendant has the presumption of innocence, which means the defendant will win by default unless a majority of the judges is convinced with moral certainty of the petitioner’s case.The Conversation

Ian Waters, Professor, Lecturer, Department of Moral Theology and Canon Law, University of Divinity

This article is republished from The Conversation under a Creative Commons license. Read the original article.

National Redress Scheme for child sexual abuse protects institutions at the expense of justice for survivors


Kathleen Daly, Griffith University and Juliet Davis, Griffith University

Australians can be proud of what the Royal Commission into Institutional Responses to Child Sexual Abuse accomplished, but they cannot be proud of the National Redress Scheme (NRS).

With the Joint Select Committee’s review of the NRS set to be released in the coming weeks, it’s important to look back on how the NRS emerged and the ways it strayed from the recommendations of the royal commission.

In September 2015, the royal commission released its report on redress and civil litigation. It proposed a redress scheme with three elements: a direct personal response, counselling and psychological care, and a monetary payment.




Read more:
Royal commission report makes preventing institutional sexual abuse a national responsibility


And it set forth principles to guide redress, such as being “survivor-focused” by providing justice to survivors and not protecting the interests of institutions.

On June 19 2018, the NRS bill passed with bipartisan support in both houses of parliament, but it did not adhere to these principles, nor reflect the spirit of what the royal commission had recommended.

Protecting the interests of institutions ultimately prevailed over providing justice to survivors.

So how and why did this happen?

Creating a national scheme

Creating a national scheme was a complicated exercise. To do so, Australian states had to refer their legislative power for redress to the Commonwealth. Without state referral, non-Commonwealth institutions – both government and non-government – could not participate.

The Commonwealth began negotiating with the states in January 2016. In November that year, then Attorney-General George Brandis and then Minister for Social Services Christian Porter issued a press release announcing that a Commonwealth Redress Scheme (CRS) would be established.

The release said the maximum payment would be $150,000, not the $200,000 figure the royal commission had recommended.

That day, Porter held a press conference where he was asked to explain why the maximum was reduced. He said:

we have had intensive negotiations with the states and territories, and with churches and charities. And we were trying to design a monetary redress payment that offered appropriate recognition, but maximised our opportunity to get other organisations to opt-in to the scheme.

In October 2017, the CRS bill was introduced into parliament. The government’s strategy was to move the bill along while at the same time encouraging states and non-government institutions to opt-in to the scheme. If no states did so by July 1 2018, the scheme would be for survivors of abuse in Commonwealth institutions only.

That day, Porter was asked on ABC radio why people with convictions for sexual offences or other serious crimes were not eligible for the scheme. Porter explained that the decision was made in “deep consultation” with state attorneys-general who were of the “almost unanimous” view that to “give integrity and public confidence to the scheme”, there needed to be limitations for those who “had committed serious crimes, particularly sexual offences”.

The exclusion was a condition for the states to opt-in, and a “powerful reason why [the] decision was made”, according to Porter.

In the same interview, he dropped another bombshell: counselling and psychological care would be capped at $5,000 per person. No explanation was given. The royal commission did not recommend a criminal history exclusion nor a cap on counselling.

As the CRS bill moved through parliament, media stories and submissions to the Senate Community Affairs Legislation Committee focused on the reduced maximum payment, criminal history exclusion, and cap on counselling. Concerns were also raised that the scheme was for sexual abuse only, and that important scheme details were to be contained in delegated legislation, or what is also termed “the rules”. This meant the minister would announce them at a future date, and they would not be subject to parliamentary scrutiny or debate.

Two crucial elements in the delegated legislation were the Assessment Framework and the Direct Personal Response Framework. The Assessment Framework assesses both the monetary payment and monetary support for counselling and psychological care. The Direct Personal Response Framework outlines a limited number of ways a responsible institution may engage with a survivor, including an apology or statement of regret, and steps taken to prevent abuse in the future.

It was not until August 13 2018, two months after the passage of the NRS, that these frameworks were tabled by the minister. Both departed strongly from what the royal commission had recommended.

The shift from a Commonwealth to a national scheme occurred in May 2018, when a COAG intergovernmental agreement on the NRS was signed by New South Wales and the ACT. New South Wales introduced legislation referring the power to make laws about redress to the Commonwealth.

Later that month, the NRS bill was introduced into federal parliament. A Senate review in March had called attention to gaps between what the Royal Commission had recommended and what was in the CRS bill. The NRS bill maintained and, at times, widened these gaps.

The widening gaps between the royal commission and the NRS

We identified 17 contentious matters in the NRS bill.

Five matters that received considerable attention were the maximum monetary payment, criminal history exclusion, cap on counselling, assessment framework, and the eligibility of sexual abuse only.

But 12 others were just as consequential.

They related to government and institutional responsibilities (funder of last resort and institutional opt-in timeframe); application and payment requirements (single application, indexation of payment, acceptance period, deed of release, lack of external review); other eligibility criteria (no application from gaol, citizenship and residency, age limit); scheme reporting; and the direct personal response.

All 17 matters departed from what the royal commission recommended except three: the eligibility of sexual abuse only, indexation of payment, and no external review.

The pressure points for the departures were economic and political costs to government and non-government participants, and to a lesser degree, the convenience of the scheme operator.

As the NRS legislation moved toward passage in June 2018, many politicians said it was “imperfect”, but they would support it. Such support was often couched in pro-survivor rhetoric. For example, Senator Louise Pratt said:

Survivors have in some instances waited all their lives for justice, and they should not have to wait a minute longer.

In fact, politicians’ hands were tied: they could not change the bill because this would require renegotiating the framework of redress decided by members of the state and federal executive. Such delay would jeopardise the Commonwealth’s promised start date of July 1 2018.

We want to see a fair and effective redress scheme. To make that happen, elements in the current scheme will need to change.

But is there any hope for change? Perhaps.

A bipartisan Joint Select Committee (JSC) on the Oversight of the Implementation of Redress Related Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse has been receiving submissions and holding hearings over the past five months.




Read more:
Listen to abuse survivors and advocates to clear the way to a national redress scheme


The JSC has learned that survivors are having many problems applying to the scheme and understanding how best to present their case. Witnesses to the JSC and committee members themselves have expressed disbelief about the Assessment Framework: it privileges penetrative sexual abuse above all other types, and it caps the monetary support for counselling based on the type of abuse.

We provided evidence to the JSC of the many ways the NRS departs from the royal commission’s principles of redress.

We also provided evidence of how poorly the scheme compares with other world redress schemes in the ways it assesses the severity and impact of abuse, supports counselling, and excludes certain groups. Compared to numerous examples that the royal commission offered for the direct personal response, the NRS stuck to a bare minimum and severely weakened the power of this innovative redress element.

Will the JSC report, delivered in early April, produce findings that make politicians, the media, and the public take notice?

The timing is not optimal with a federal election looming and other matters taking greater precedence. Post-election, let’s hope that the failure of the NRS to provide justice to survivors receives the attention it deserves.The Conversation

Kathleen Daly, Professor of Criminology and Criminal Justice, Griffith University and Juliet Davis, Research Fellow, Griffith University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

How an appeal could uphold or overturn George Pell’s conviction


David Hamer, University of Sydney

A criminal trial often helps to provide finality for the accused, and closure for victims and society. But following this week’s news, George Pell’s barrister, Robert Richter QC, indicated Pell maintains his innocence and the legal team have already lodged an appeal. Richter said this would be pursued following Pell’s sentencing.

Pell’s conviction no longer appears final, but provisional. The Vatican initially said it would wait until the appeal outcome before launching its own investigation that could lead to the Cardinal being defrocked. But it has now been confirmed the investigation is starting regardless.

The Australian government, though, said it will only strip Pell of his Order of Australia honours if he loses the appeal. Meanwhile, the media and community are awash with confusion about the verdict that came in a retrial after the first trial concluded with a hung jury. It seems many people are holding their breath until the appeal is heard.

Defendants generally only get one appeal, though that one appeal may be taken further to the High Court. If Pell’s appeal is dismissed, he will require exceptional intervention from the Government, which is very rare.

So, what is an appeal, and what might it look like for someone with Pell’s profile and convictions?




Read more:
We knew George Pell was guilty of child sex abuse. Why couldn’t we say it until now?


How long would an appeal take?

The appeal process is fairly elaborate. It requires the Court of Appeal’s leave (or approval). If given, the defence and prosecution will make written submissions to the court. There is then a hearing, on the basis of which the court will make a decision, explain its reasoning, and make appropriate orders.

In this case, the court may dismiss the appeal, allow the appeal and order a retrial, or allow the appeal and order that Pell be acquitted. With a crowded list of cases, this entire procedure often takes more than a year. The Pell appeal may be relatively simple and decided more quickly.

Bail was revoked pending sentencing, anticipating a custodial sentence, and Pell will remain in custody until the appeal. If the appeal is upheld, the court may make a decision immediately following the hearing and publish its reasons subsequently.

Evidence at the trial

The trial did not involve a great deal of evidence. One of the alleged victims had made a report to police in 2015, claiming the assaults occurred after mass. The other alleged victim died of an accidental heroin overdose in 2014, apparently without reporting abuse.

Like many delayed sexual assault cases – almost 20 years in this case – there simply isn’t much evidence available. At Pell’s trial, there seemed to have been little more than the complainant’s allegations and Pell’s denials. Pell did not testify. Video of his denials to police were played to the jury.

The jury may have preferred to see how Pell coped with cross-examination. But he has the right to silence, and his failure to enter the witness box can’t be used against him.

A few other witnesses gave evidence about the masses delivered by Pell at St Patrick’s Cathedral, where the abuse allegedly took place. They supported the defence’s claims of the impossibility of the abuse taking place. Witnesses noted the then Archbishop Pell would have been accompanied at all times during the crowded events and would not have had the opportunity to commit the offences.

Other types of evidence often relied on by the prosecution in child sexual abuse trials did not feature in the Pell trial. The prosecution wasn’t able to present the complainant’s earlier reports of abuse. It seems he told no one prior to the police report.

The absence of earlier reports would not necessarily help the defence. Courts now recognise there are many reasons why victims of child sexual assault find it hard to talk. They feel confused and powerless, particularly where the offender is in a position of authority.




Read more:
Triggering past trauma: how to take care of yourself if you’re affected by the Pell news


Many child sexual assault prosecutions rely on evidence of other alleged victims to demonstrate the defendant’s propensity or tendency for child sexual abuse. Such evidence was potentially available in the Pell trial – other allegations had been made from his time in Ballarat in the 1970s.

However, this evidence was not admitted at trial. The two sets of allegations were kept entirely separate (and the trials split), perhaps to avoid the risk of jury prejudice. Pell’s Melbourne convictions (in the cathedral trial) were suppressed while the Ballarat charges (swimmers trial) were pending.

It was only when the prosecution dropped the Ballarat charges that the convictions on the Melbourne charges were made public.

What would the defence appeal?

Because only limited evidence was relied on at trial, relatively few legal issues were raised. This means the defence may find it difficult to identify any legal error as a ground for appeal. Richter has indicated the defence will claim there were errors regarding the constitution of the jury and the defence not being permitted to use a graphic.

If errors are found, the Court of Appeal would still dismiss the appeal if the errors seem too slight to have affected the outcome.

The other defence argument on appeal could be that the conviction was unreasonable. The jury simply got the facts wrong. Here the defence may face obstacles. The Court of Appeal is unlikely to entertain claims the jury was prejudiced and blamed Pell for the Church’s inadequate response to other paedophile priests.

Appeal courts generally trust a properly directed jury will comply with its duties. Appeal courts are also generally wary of overriding jury verdicts, particularly where they rest upon witness credibility, as in this case. Inconsistencies and gaps in a complainant’s account may be attributed to the delay rather than fabrication.

However, the Court of Appeal may feel well placed to assess the defence argument of impossibility. And in this case, unusually, the court may be able to assess the complainant’s demeanour, since the witness testified over video link.

This may be one of those exceptional cases where the court is prepared to say the jury got it wrong. But the court may also hesitate to override the jury – the community’s representatives – in a case that has opened such a rift in Australian society.




Read more:
After Pell, the Catholic Church must undergo genuine reform


The Conversation


David Hamer, Professor of Evidence Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Australians lost more than $10 million to scammers last year. Follow these easy tips to avoid being conned.



File 20190115 152989 6tmpd.jpg?ixlib=rb 1.1
Scammers impersonating the Australian Taxation Office have fleeced Australians of more than $830,000.
Shutterstock

Damien Manuel, Deakin University

Many of us start a typical day by checking our phones to read emails, social media posts and the weather. Our phones are trusted devices we use constantly throughout the day to communicate. But the trust we place in our phones, and the way we interact with the world, also makes it easy for scammers to target us.

Our evolutionary past also makes us susceptible to scams. Humans are curious social animals, which means we are more trusting than we should be. That’s especially the case when we’re dealing with people over the phone, email or via SMS, where we don’t have the normal body language cues we would subconsciously process when making decisions.

We are also susceptible to fear and other psychological tools scammers use to create a sense of urgency that tricks us into making irrational decisions and taking action. Simply being aware that scams are out there is not enough to protect us from them. We also need to change our behaviour.

Scam using branding and authority to make you click to see the confidential information.
Damien Manuel



Read more:
Why ‘Nigerian Prince’ scams continue to dupe us


Who are these scammers and what do they want?

Scammers come in all shapes and sizes. Some are individuals, others are gangs. The more sophisticated scammers are criminal syndicates and foreign governments looking for a way to subvert international sanctions and obtain money through cyber crime.

The motivations of scammers ranges greatly, but can include:

  • stealing intellectual property
  • tricking you to install malicious software (to steal your data or hold you to ransom)
  • stealing your identity so they can pretend to be you and conduct fraud
  • tricking you to part with your hard earned cash
  • gaining control of your device to steal information at a later date or using your device to attack other people you know.

What techniques are they using?

Scammers are experts at social engineering and use a number of tricks to build rapport, credibility and trust with their targets.

Modifying the caller ID is a simple way to build credibility by making a call or SMS appear to come from an authority like the Australian Tax Office. The rise of cheap Voice over Internet Protocol (VoIP) providers and other online tools has made it even easier for anyone to exploit the phone systems and “spoof” other numbers.

An SMS scam that uses urgency and fear of fines to get people to click a link.
Damien Manuel

In the VoIP phone system, the person initiating the call defines the caller ID seen by the receiver. This is the same for traditional phone systems, however the lower price of VoIP and ease at which the caller ID can be modified without any technical knowledge (via a simple web page) makes it faster and cheaper for scammers to cycle through a number of fake caller IDs in a single day. It also allows them to move to a new source number or VoIP provider very quickly, making it harder for telcos in Australia to block.

There are legitimate business reasons for allowing the caller ID to be modified, such as when companies operating call centres want all outbound phone calls from their staff to appear to originate from a single “help desk” phone number.




Read more:
New ‘virtual kidnapping’ scam targeting Chinese students makes use of data shared online


Email spoofing is also common and easy to do. This is where an attacker forges the email header, making the email look like it originated from a friend, authority or service provider, such as a bank. A key way to identify a spoofed email is to check the email address itself (the reply field) rather than just relying on the display name in the “from” field.

Most email clients (such as Gmail or Outlook) on desktops or laptops are capable of displaying email headers. Unfortunately email clients on most smartphones and tablets make it difficult to see the real source and often only show the forged “display name” information.

Phone and email are the two main scam delivery methods. Losses from attempts to gain your personal information rose by more than 61% between 2017 and 2018. This trend shows no sign of slowing down. Last year, Australians lost more than $10 million to scammers.

An example of a scam email.
Damien Manuel

Signs of a scam

Ten common warning signs you are dealing with a scammer include the following:

  • being asked for password, PINs or other sensitive information
  • being told you are owed a refund
  • being told you have unpaid bills, unpaid fines from the police or a government department
  • being notified there is a problem with your email or bank account
  • being asked for urgent help
  • being congratulated on winning a competition (you didn’t enter)
  • being asked to click on a link or open a document
  • being sent an unexpected invoice to open
  • receiving a critical alert message with a link to click
  • receiving a tracking number and link for a delivery (you didn’t order).
A scam telling you your mail box full is designed to make you click on a link.
Damien Manuel



Read more:
More than just money: getting caught in a romance scam could cost you your life


Simple tips to avoid being conned

Firstly, don’t click on any links, don’t respond to offers to opt-out or unsubscribe, don’t call return calls from numbers you don’t recognise and, most importantly, don’t give out personal information – even if you think it isn’t important.

Remember, some scams are multi-step scams. The best thing you can do is to report the scam and tell your friends and family to be aware of the scam so they can modify their behaviours.

Scams can be reported to various government agencies, such as Scam Watch, the Australian Cybercrime Online Reporting Network (ACORN) and, in some cases, the service provider – for example, the ATO, Telstra, AusPost and the banks.The Conversation

An example of a multi-step scam that validates your email is real and then harvests the credentials you enter.
Damien Manuel

Damien Manuel, Director, Centre for Cyber Security Research & Innovation (CSRI), Deakin University

This article is republished from The Conversation under a Creative Commons license. Read the original article.