Thursday, April 16, 2020

Pell injustice shows why we need to restore fairness to the law

The unanimous decision of the High Court quashing George Pell’s convictions was the end of the matter for Australia’s most ­famous Catholic priest. But to understand the dreadful state of justice inside our courts, you need to go back to where this courtroom drama started.

The decision by the primary judge preventing Pell’s legal team from using psychological evidence about the credibility of the complainant points to a much deeper dilemma about how the accused can defend themselves from allegations of sexual assault in 2020.

Pell had the wherewithal and the resources to pursue his wrongful conviction to the country’s highest court. But spare a thought for others in jail today who may have faced what Pell did, and are not so well-equipped to appeal to the High Court. It is likely Pell is the tip of the iceberg.

My colleague, Chris Merritt, ­deserves praise for exposing this ­little-known and devastating weakness at the heart of the Pell prosecution. Last September, Merritt revealed for the first time that Pell’s accuser had suffered long periods of psychological problems requiring treatment. But Victoria’s Evidence Act meant that not only were Pell’s lawyers unable to access details of those psychological issues and treatment, but the jury could not be made aware of them, or even the fact Pell’s lawyers asked for them. The public was also in the dark about this until Merritt’s careful reading of Pell’s application for special leave to the High Court.

It is high time that more of us understand how the legal system, not just in Victoria, has become dangerously skewed against defendants in sexual assault cases. It stems from well-intentioned but ill-considered amendments to evidence laws in 2006. In an attempt to ease the undoubted stress and pain caused to complainants of sexual assault from being cross-examined on their past psychological history, section 32D of the Victorian Evidence (Miscellaneous Provisions) Act makes it almost impossible for a defendant to gain access to a complainant’s psychological records or bring evidence of those issues to a jury.

The section sets up an impossible circular threshold: without having access to the relevant evidence, defendants must convince a judge that they cannot properly defend themselves without putting the psychological evidence to the jury.

There is, undoubtedly, a need for sensible, measured steps to ­address the fact sexual assault is under-reported, and the court process is traumatic for its victims. But when these cases are often contests of credibility, it is neither ­sensible nor measured to strip a defendant of the ability to adduce relevant psychological evidence in that contest.

Pell’s legal team had one hand tied behind its back from the start. This was compounded by the flawed judicial method adopted by Chief Justice Anne Ferguson and Court of Appeal president Chris Maxwell. Without the benefit of seeing and listening to the complainant give evidence at trial, the majority decided that he was a truthful witness, that he was not a liar or a fantasist.

The majority’s reliance solely on the complainant’s credibility to uphold the jury’s verdict against Pell delivered a double whammy — it meant Pell faced a reverse onus to prove to the jury that the complainant was lying, but Pell could not satisfy that reverse onus by tendering psychological evidence about the complainant that may have helped to prove that.

The majority’s arrogance was breathtaking because they knew about the complainant’s history of psychological treatment but didn’t mention it in their decision to ­uphold Pell’s conviction. Indeed, their approach was so simplistic as to be reckless: by relying exclusively on the credibility of the ­complainant, they effectively discharged themselves from having to carefully consider all of the other evidence that raised reasonable doubts as to whether the ­alleged sexual assaults could have occurred.

Human nature is fallible. Alleged victims do lie. In the ACT last year, Sarah-Jane Parkinson was sentenced to more than three years’ jail on charges of making a false allegation of rape against her former husband. Studies show that witnesses can also unconsciously lie, genuinely believing something to be true even if it is not. Alleged victims might also be co-opted by others for a cause. Some or all of that may have happened in the Pell case.

Yet ill-considered sections in Victoria’s Evidence Act, that prevent the tendering of psychological evidence, have cemented into law the dangerous tenor of our times. When zealots in the #MeToo movement and Victorian Premier Daniel Andrews say that they believe all victims, they knowingly chip away at a court system that is based on evidence, the presumption of innocence, the burden of proof and due process. Just straight to conviction and jail, then?

Injustice has been legislated into the NSW legal system too. In a recent case, a trial judge was forced, by NSW evidence laws, to exclude a woman’s proven history of making false sexual assault claims. Despite the trial judge pleading for these brutally unfair laws to be reformed, the NSW ­Berejiklian government has done nothing.

While we wait for the outcome of the defendant’s appeal of the trial judge’s decision, which was heard last week, we are left with the dreadful likelihood that other defendants have been wrongly accused, tried and found guilty where alleged victims have told lies about alleged sexual assaults for revenge or simply because they were suffering from delusions or confusion arising from psychological conditions.

This is what happens when, with the best of intentions, we depart from first principles. In his 1760 Commentaries on the Law in England, the great common law scholar William Blackstone stated the principle that our legal system is founded on: “It is better that 10 guilty persons escape than that one innocent person suffer.”

Some misguided souls might say that Blackstone’s ratio is a get-out-of-jail card for rapists; that it needs to be reversed or restrained to deliver victims justice. In other words, the Blackstone 2020 Victorian edition should read “it is better that an innocent man be punished than a complainant have his or her credibility challenged”.

The #MeToo advocates tell us that men have been getting away with sexual assault for years. That is correct. Some say it is about time the tables were turned. That is wrong. While the desire for revenge is understandable — particularly among those who have suffered greatly — it surely cannot become a new organising principle on which society, and our legal system, is based.

Even for those whose motivating principle is more noble, wanting to bring an end to sexual assault, unbalanced and unfair rules of evidence are not the right way to get there. Substituting one form of injustice for another is not justice, and it is not noble. Once you allow systematic injustice in sexual assault cases, on the ground that Blackstone’s maxim is outdated, where do you stop? Which group of defendants will next be deprived of the means of defending themselves because their alleged crime is under-reported and needs to be reined in?

Who will next be deemed unworthy of basic principles that underpin our legal system? As ­Pell’s case shows, there, but for the grace of God, go I.


Coronavirus school closures: Scott Morrison issues direct plea to teachers to return to classroom

Prime Minister Scott Morrison has issued a direct plea to teachers to return to the classroom and join the “great heroes” of Australia including cleaners, supermarket workers, nurses and paramedics who are fighting COVID-19 simply by doing their jobs.

Warning parents the education of the nation’s children was “hanging in the balance”, he urged principals and teachers’ unions to hold talks on how classrooms could be made safe.

But he could be picking a major fight with unions despite his message of admiration for teachers, because many educators insist it is not fair to put them on the frontline of the COVID-19 crisis.

In a televised message to parents and teachers, the Prime Minister has urged schools to work towards a return to face-to-face classes.

“As we confront these crises our nation currently faces, the health crisis of the virus, the economic crisis of the impact it is having on people’s livelihoods, there are people doing just amazing jobs, great heroes,’’ he said.

“Of course, in our health care system, our nurses and our doctors, our pathologists, the paramedics, right across the board, the cleaners in our hospitals all doing incredible work and we thank them for it.

“But there’s another group I want to talk about today, and that is our teachers. I want teachers to know from me, both as a parent and as a prime minister, just how appreciated you are and how important the job is that you’re doing right now and how much you are needed.”

But Mr Morrison added it was vital children did not become the silent victims of the COVID-19 crisis because they were denied an education.

“And at this time, as our nation fights this coronavirus, your role has become even more important. Your students and their families are relying on you more than ever. The education of our children hangs in the balance,’’ he said.

“During these times, many students will continue distance learning. It’s a choice that they may have, some more than others. But we know for some families and students this won’t be possible. And their education, what they learn, is at great risk of suffering this year. This will particularly be the case for families who are disadvantaged and on lower incomes.”

This week, infectious disease expert Professor Peter Collignon told that teachers faced a greater COVID-19 risk from a supermarket than classrooms and urged teachers to return to classrooms with conditions, including excluding teachers over the age of 60 and pregnant women.

But a patchwork of arrangements has emerged with some states returning to school faster than other jurisdictions.

Political leaders in NSW and Victoria privately concede fears teachers would strike if they kept schools open were a major trigger for the decision to defy the medical advice that schools should remain open.

Despite a majority of states including NSW, Victoria and Queensland moving to distance learning, the Prime Minister has never wavered in his insistence that the medical advice maintains it is safe for schools to remain open.


Australia's private health funds could reap windfall from coronavirus – report

Private health insurance funds stand to reap a windfall of between $3.5bn and $5.5bn due to a dramatic fall in elective surgery and other medical procedures during the coronavirus crisis, according to new research from the Australia Institute thinktank.

Health expert Roy Harvey said if the funds failed to pass on the dramatic fall in costs to customers, more people will flee a private health insurance system that is already in a death spiral.

Harvey, who worked with Australia Institute research director Rod Campbell on the report, said that if premiums were cut in line with services the federal government would also save $1bn to $1.5bn a year in subsidies.

The Australia Institute paper, “Private eyes ..., hips, etc”, models the effect on the funds if benefits paid to members drop by between 30% and 50% during a six-month period.

Factors taken into account include health minister Greg Hunt’s decision last week to pay at least $1.3bn to private hospitals to take over beds potentially needed to accommodate Covid-19 victims, and sweeping bans on dental services introduced by dentists.

Harvey said that many funds have abandoned premium hikes that were planned for this month, but this was not enough.

“They’ve been saying we won’t put through the 4% increase that they’re allowed to do in April, but if they say, ‘Oh, we’ll give you a 40% discount’, people might stay.

“If they keep their rates unchanged, people will leave in droves.”

The coronavirus pandemic has hit a private health industry that experts say was already in a “death spiral” because young people, who get relatively little from the product, have quit paying premiums.

This has left the funds with a membership increasingly weighted towards older people, who typically require more expensive medical procedures.

The escalating financial instability of the industry led the regulator to warn in February that only three will be viable in two years unless urgent action is taken.

“It sounds as if you’re not talking about a viable system or a product people want to buy,” Harvey said.

“The thing is unsustainable, it’s undermining the public hospital principle of equity and allowing doctors to charge fees that take people out of the public hospitals.”

He said it was hard to estimate the impact of the pandemic on private health using publicly available figures, but the $3.5bn to $5.5bn range was a good starting point.

“I think any detailed study would come up with figures that are in the range,” he said.

“Other people can say, ‘Oh, I think it’s this or that’, but it’s really to get a discussion started.

“The Productivity Commission could sort this out in less than a week in terms of getting good estimates.”

He said the funds should be held accountable for their windfall and money saved by the government could be used to fund other things, such as domestic violence services, that are needed during the pandemic.

“The savings to the commonwealth alone could be one to one and a half billion [dollars] – one and a half billion used to be a lot of money once,” he said.

Campbell said the insurers looked set to trouser their windfall billions.

“Insurers claim to be supporting their members through the crisis by delaying premium increases, but they should be passing on these significant savings to households,” he said.

“If the commonwealth does not ensure savings are passed on to customers, it will be one of the most egregious subsidies ever given to an industry already infamous for receiving handouts.”


Palliative care

There is suddenly a lot of panic over the number of ventilators available in Australia. Likely provoked by headlines around the world proclaiming there are not enough. But is this really the only thing we need to be worrying about?

It may be that people who ‘miss out’ on a ventilator would not have benefited from it — or may not have wanted it in the first place.

The overwhelming focus on the number of ventilators provokes fear as it conjures images of the frail and elderly being forgotten and forced to die alone.

But it doesn’t have to be like this if we ensure national availability of palliative care and advance care planning.

Last week the median age of the Australians who died from COVID-19 was 81 years. A Chinese study has shown that older age is the greatest risk factor for developing respiratory failure and death. Nearly half of the patients who died in Italy had three or more comorbidities, such as hypertension and diabetes. Generally speaking, those who are most effected by COVID-19 also seem to be those who would be the least likely to survive an ICU admission for any reason.

Facing an extraordinary humanitarian and resource crisis, Italian doctors spoke out about rejecting people from ICU based on “potential survival”. Another has said “[Who lives and who dies] is decided by age and by the [patient’s] health conditions. This is how it is in a war.”

These solemn declarations give the impression that those deemed ‘unworthy’ will be left uncared for. It implies that we cannot do everything for everyone and so must do nothing for others.

But this is wrong. Too often doctors speak of there being “nothing left to do” but there is always the opportunity to relieve suffering. We must ensure that palliative care is available for those Australians who would not benefit from a ventilator or who do not wish to be ventilated. Palliative care is well equipped to treat these patients.

Nonetheless, in the best of times, let along during a pandemic, palliative medicine is easily overlooked. Unbelievably, Australians over 80 years of age, dying from non-malignant disease, such as respiratory failure, are currently the least likely to receive palliative care — partly due to a lack of referral.

But it is not just the medical fraternity who need reminding about palliative care.

There has never been a more pertinent time for all Australians to consider what type of medical care they are — and are not — willing to endure.

Many self-actualised 80-year-olds view pneumonia as “an old friend” and upon its arrival entrust me to ensure their dignity and not send them to the cold clinical ICU to suffer a drawn out death. This is an advance care directive.

In an Australian audit of 2,285 patients over 65 years of age, across six states and territories, less than 30% had an advance care directive indicating a person’s preference for care. Even in aged care facilities, less than 50% of residents have a care directive indicating whether, for example — they want to be transferred to the emergency department, be resuscitated or what consequences of medical treatment they would consider unbearable. This is despite evidence demonstrating that advance care directives promote autonomy.

If we don’t ask, we won’t know how people wish to be cared for if their lives are threatened.

The current lack of integrated access to palliative care and responsible advance care planning is something we need to be worrying about. Many older Australians will forgo a ventilator but we will only know this if we ask and if we reassure them that they will always be cared for — ventilated or not.


 Posted by John J. Ray (M.A.; Ph.D.).    For a daily critique of Leftist activities,  see DISSECTING LEFTISM.  To keep up with attacks on free speech see Tongue Tied. Also, don't forget your daily roundup  of pro-environment but anti-Greenie  news and commentary at GREENIE WATCH .  Email me  here


Unknown said...

I recently had a brother in law who passed away in hospital. He had an advanced directive not to resuscitate. The result was he was starved for 3 weeks before dying. Not very encouraging. Neville Manser 0419446260

Paul said...

I recall a specific episode in the mid-90s where some old soul had a massive intra-cerebral bleed and finished up on our ward unconscious with only brain-stem function. The Docs explained to the family the true situation and offered "palliation" which simply would result in a gentle exit. That was all fine and good, but then the family said they would like the palliation to start after Christmas so it didn't interfere with their celebrations too much, which the Doctors agreed to, in effect making this overt euthanasia (without patient consent). We Nurses (this was at a time when euthanasia had started to become a hot button issue) dug our heels in and said no. The palliation starts now or the assumption must be that the patient's needs have been subordinated to the families needs. This went down like the cup of cold sick with the Doctors, but they had to accept it. We were happy to call it palliation, but not happy to accept it on someone else's emotional convenience. Over a few days the patient began to visibly deteriorate and then the "palliation" process began as symptoms warranted. It was however an interesting set of circumstances and gave some insight into how easily the possibility of euthanasia can be abused as a convenience, even if unintentionalyl. It did raise an issue that never goes away too, and that is "just who is the patient here".