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As well as the cases discussed in Andrew Urban’s article, Presumption of Evil, Not Innocence, I have serious concerns about the case against Rolf Harris. All of the allegations were dredged up during Operation Yewtree, which actively sought allegations against well-known people, often with hints of compensation. All of them concerned events alleged to have happened in busy working studios, with dozens of people around, and no privacy. Yet no one saw, heard or suspected anything, at any time, over the course of dozens of years.
The allegations, or at least some of them, may be true. But in those circumstances it is hard to see how an objective consideration of the facts could conclude they were proven beyond reasonable doubt.
How can it be that a man of impeccable character in his late 70s is convicted of 28 nasty sexual and physical abuse offences between 1964 – 1973, simply on the say-so of half a dozen late middle-aged women who were juvenile delinquent inmates at an institution?
Because if you are named in the Royal Commission into Institutional Responses to Child Sexual Abuse, you are guilty, right? The legal process is just a formality. From the start you are referred to as an abuser and the complainants as victims.
From being so named in the Royal Commission to being charged, tried and found guilty by a jury, the process is guilt by accusation. It replaces the presumption of innocence with the presumption of evil.
The law relating to sexual abuse allegations is now so deformed as to allow such miscarriages of justice to occur with ease. The innocent get shoved in with the guilty.
That is what happened to Noel Greenaway, now in his mid-80s, sentenced (in 2020) to 20 years in jail. Attracted by the promise to be believed, some unscrupulous women joined the thousands of genuine abuse victims to claim rewards (tangible or otherwise) on offer.
On 8 February 2018, Malcolm Turnbull made a short statement to Parliament about the Royal Commission’s work. ‘Reading some of the witness statements, it’s clear that being heard and being believed means so much to the survivors, so much more than many of us would imagine. Three words: “I believe you,” coming after years, often decades of authorities’ denial of responsibility.’
On 23 October 2018, Scott Morrison apologised to victims of child sexual abuse in a speech in Parliament. ‘I simply say, I believe you, we believe you, your country believes you,’ he said.
On 22 October 2020, Anthony Albanese echoed that sentiment in Parliament: ‘We will always hold in our hearts those who didn’t live to hear the words, ‘We hear you. We believe you.”’
Bill Shorten added his voice to the chorus of shame: ‘But know that today Australia says sorry. Australia says we believe you,’ he said.
The sentiment is right and commendable, but the application of it has led to other injustices.
Notorious Hollywood producer Harvey Weinstein’s undoing as a serial abuser of women set off the rush to ‘believe all women’, with society licensing the courts to reverse the onus of proof from the accuser to the defender. But there was an important element in the Weinstein case that has been abandoned by the courts in recent years, notably in Noel’s case.
That was the testimony from supporting witnesses. The purpose of such witness testimony was ‘to show when the disclosure was made to someone, that a disclosure was made, and that it was made against the defendant,’ as the Weinstein prosecution argued. There was no such testimony in Noel Greenaway’s case. On the contrary, the claimants all said they never told anyone at the time in the 1960s, when they were youngsters, or since. Until the Royal Commission.
Greenaway’s life began to unravel on the eve of ructions that would catapult sexual abuse to the top of the world’s consciousness. What the Royal Commission started, the #MeToo movement turbocharged. Like a volcano building up its explosive load, the topic engulfed corporations as well as institutions and the Catholic church, until it blew its top in 2017, ejaculating Harvey Weinstein.
Under current rules in Australia, when it comes to sexual abuse, it is innocence that must be proved, not guilt. Innocent men have become collateral damage. Teen Vogue columnist and outspoken feminist Emily Lindin came under fire on social media in November 2017 after tweeting that she was ‘not at all concerned about innocent men losing their jobs’ over false allegations of sexual assault or harassment.
In his summing up to the jury, the judge at Greenaway’s trial explained: ‘The evidence comprises the answers that witnesses gave to questions asked of them. So the evidence then is the answers that the witness gives in the course of their evidence and the exhibits that you will have with you in the jury room. On that material, and on that material alone, you arrive at your verdicts.’
Greenaway writes from his prison cell, notepad on his knees: ‘The prosecution of individuals was also designed to appease those in the community who were naïve enough to believe the fabrications, lies and general criticism which was designed by ex-inmates and their supporters to name individuals out of revenge and to enhance their chances of claiming redress for concocted crimes committed against them.’
The Board of Inquiry into the Justice System in the ACT, chaired by Walter Sofronoff KC, was established in the wake of the abandoned prosecution of Bruce Lehrmann, accused of rape by Brittany Higgins. Chief Justice Lucy McCallum was critical of the intense media response and that much of the material had ‘obliterated the distinction between an allegation and guilt’. Police told the inquiry that they have been operating under ‘victim-centric’ guidelines for some time. Perhaps it’s time to amend those guidelines to urge investigations to be ‘evidence-centric’.
It was lack of evidence that has kept the fires of outrage burning against the conviction of then 56-year-old Sue Neill-Fraser, charged with the murder of her then 65-year-old partner Bob Chappell. She was arrested 14 years ago this August, sentenced to 23 years, and released on parole in October last year.
Long story short, their brand new yacht was found without Bob on board on the Derwent River in Hobart on Australia Day 2009. His body has never been found – yet at trial, the prosecutor speculated about what sort of injuries might have been found on him.
The prosecution could not establish a credible motive. The prosecution speculated how Bob might have been killed with a wrench. No wrench was produced in evidence. The prosecution could not place her on the yacht at the relevant time – because it had no evidence as to when Bob Chappell was murdered – or even if he was dead. The prosecution speculated how Neill-Fraser would have dragged the body up from down below deck (where she had left him at work before she went ashore for lunch with his sister), bundled him into the dinghy, and then dumped him in the water. Somewhere. On her own. The trial judge went along with the prosecution’s case. (He mentioned the imaginary wrench six times in his summing up to the jury.)
There was DNA found on the deck, traced to a then homeless 15-year-old girl. Clinging to the Crown’s case theory and fearing the DNA would upend its case, the prosecution dismissed the DNA as a red herring. They had their suspect. The only suspect.
She was characterised as cold and scheming because the prosecution case demanded it. But the prosecution’s presumption of evil doesn’t comfortably fit Neill-Fraser. Like Noel Greenaway, she has impeccable character references and lived an average, middle-class life free of blemish.
Lawyers have challenged the conviction – and the judges’ 2:1 decision to dismiss her appeal. A former Hobart prosecutor felt obliged to challenge his ‘legal family’ to correct ‘this injustice’. It hasn’t gone down well with his ‘legal family’.
A report co-authored by a lawyer and a barrister about the police investigation tabled in Parliament in 2021 reveals incompetence and withholding of evidence.
To add insult to injury, Tasmania’s Attorney-General has resisted many calls for a review of the case – preferably a Commission of Inquiry – making excuses that don’t hold water.
Greenaway and Neill-Fraser are but two sorry examples of a criminal justice system trampling the rule of law. There are plenty more. The criminal justice system spends little effort to repair the damage caused by wrongful convictions. In many cases, the appeal system actively hinders efforts to correct mistakes.
As someone once said, ‘Justice won’t be served until those not affected are as outraged as those who are.’