May the farce be with you: Dyson Heydon (or is that Heydon Dyson?) edition

Heydon Dyson Dyson Heydon is hard at work.

A quick follow up on my “May the farce be with you” article on how the oligarchy got George Pell off on charges of sexual molestation. One that Graham Young rated thus:

One of your worst posts Nicholas. You show a complete disregard and contempt for the legal system. It’s not meant to convict people of crimes they didn’t commit.

Jeremy Gans has a fascinating write up of His Honour and Groper and Sexual Harasser Du Jour Dyson Heydon and how Heydon, (or is that Dyson, no it’s Heydon),  was the only High Court judge who saw the obvious sense in admitting similar fact evidence in cases like this. He argued it on slightly different grounds to those I’ve argued it on, but similar fact evidence in these cases is highly probative in circumstances where one does want some corroboration and by the very private nature of the offence will be difficult to come by.

The legal system should have handled Pell in the way that only Heydon Dyson (OK – Dyson Heydon) said they should. From the article:

Heydon was somewhat ahead of the public on whether to believe an allegation of professional predation. He bemoaned that such an allegation’s1 seeming bizarreness meant that a prosecution based on it alone “may easily falter, no matter how truthful,” even when — as Stubley’s patient testified — the allegation was of years of persistent indecent assaults and rapes perpetrated in a psychiatrist’s office, her sobbing throughout. That’s why, he said, such claims of predation shouldn’t be heard on their own. Quoting Western Australia’s evidence law statute, he declared that “fair-minded people would think that that the public interest” would favour hearing “similar testimony about the tendency of the accused.” … Regardless, he was alone on the High Court in 2011. The other four judges who heard Stubley’s case  [including] Susan Kiefel and Virginia Bell [!!] — all allowed the psychiatrist’s appeal. …

These judges’ words, in sharp contrast to Heydon’s own, could be music to the ears of any barrister asked to defend the former judge if he is prosecuted for crimes against some of the people whose accounts have emerged this week. If Heydon admits doing the particular acts he is accused of — say, touching a woman’s thighs or hugging or kissing her — but says that the woman consented to those acts, then the majority’s ruling on Stubley’s appeal would bar the prosecution from using others’ accounts of his misconduct, no matter how similar or non-consensual or well-established, to convict him. In short, the majority’s judgement takes the “too” out of #metoo.

I am long on the record as saying that the High Court’s approach to such cases is seriously wrong. Six years previously, the national court had unanimously allowed the appeal of a different alleged predator, a teenager convicted of the rapes or attempted rapes of six different teenagers, by ruling that he should have been tried separately for each. Why? Because he had testified that each of the six consented to sex with him, only to later accuse him of rape. (Remarkably, the sixth instance occurred while he was on bail on charges of raping the other five.) The national court ruled that, as a result, their testimony could not establish any pattern about the accused, but only cast light on their own, separate, decisions not to consent to sex with him.

  1. Of a psychiatrist’s having sex with his patients.
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10 Responses to May the farce be with you: Dyson Heydon (or is that Heydon Dyson?) edition

  1. paul frijters says:

    Hi Nick,

    yes, I agree with the principle that one should allow related evidence to be brought up. This is the same idea as the #MeToo crowd-sourcing of allegations: the probability of an individual accusation to be true given the available evidence may be no more than, say, 80%. That individual accusation would not and and should not lead to a conviction on the basis of “reasonable doubt”. But if there are 10 such accusations that each have that probability, then the chances of the person being guilty of at least one them increases to 100%*(1-0.2^10)=99.9999%. That should lead to a conviction. And if one is talking about crimes that are likely a pattern of behaviour (like forms of robbery, rape, abuse, etc.: an MO), then multiple observations inform overall guilt on that too.

    Exoneration, btw, goes on the same principle: if a crowd-appeal garners no other credible accusations, then that reduces the likelihood an individual accusation is true. So its not just guilt, but also innocence that gets clearer with allowing related information to be brought up. This is the whole point of “character references”: what else is that but a crowd-sourced form of evidence towards innocence?.

    So the notion of “weight of the available evidence” should include related information on “patterns of behaviour” and such. It should not be whether an individual incident can be proven beyond reasonable doubt.

    As to actual cases, I have not paid enough attention to agree or disagree, though Pell’s public stance on child abuse in the church repels me.

  2. I am and will always be Not Trampis says:

    At the time and certainly now Graham young’s comments stand out well.

    In terms of Heydon there are still allegations. It seems there will be at least one trial and there will be possibly more.
    Then we can say with certainty whether the allegations are correct.

    If I may one of the problems of the mee too movement is to believe all allegations.

    The joe biden case showed this to be err crap

    • Nicholas Gruen says:

      Yes Homer, one of the problems of the #MeToo movement is the inane idea that accusers should be believed – something which no reasonable person could believe in such a bald form. So an alternative is not to lump #MeToo with that proposition but to do two things.
      1) assume that those saying women should be believed are in fact trying to make a reasonable point. Joe Biden did this quite well in saying that his accuser should be listened to and her allegations taken seriously – which they were and don’t look very convincing (even though all that footage of Joe touching up women wherever he goes sure is ookey).
      2) not critique the #MeToo movement by quoting its most simplistic advocates.

      All that having been said, it’s still complicated, because in our bowdlerised, balkanised, memified, cut-down, cardboard cut-out world, savvy activists know that their slogans must be simplistic to have any impact and to get us clicking on links and having little skirmishes like this. And this then travels into the political combat zone.

      And if you watched the 4 Corners program, Pell was obviously guilty beyond reasonable doubt.

  3. I am and will always be Not Trampis says:

    I did Nick and I will use a very technical legal term.
    bollocks.
    I am only referring to the crime he was alleged to have done.
    I am not referring to anything else.

  4. Nicholas Gruen says:

    You have a witness alleging that the crime took place who was believed by 12 ordinary Australians. His co-witness took his own life. The Four Corners program presents at least one other person making a similarly credible claim.

    To say nothing of the (mildly) corroborating evidence of Pell’s criminal disregard of victims.

    The High Court ruling disregards such things and in so doing has led to grave injustice.

  5. Nicholas
    Re “ accusers should be believed ” is that all accusers? should that also apply when the accuser is the Crown ,or only in cases where you are annoyed by the outcome?

  6. “One possible explanation may, of course, be that Heydon is innocent of the allegations made against him. But there are other possibilities: he may have been somehow oblivious to his own conduct or supremely confident in his invulnerability, or maybe just intellectually devoted to his stance on evidence law”

    My gut instinct is that a sense of invulnerability and unbalanced devotion to his stance( on whatever) lead him to write the judgments you reference, I.e. judgements that are in themselves unsound..

  7. I am and will always be Not Trampis says:

    A great shame Paul and Nick want to ape Catallaxy but let me pass on that.

    Sexual harassment is a very today concept.
    I can have sex with whom anyone i wish and whenever I want to EXCEPT…
    People wish to have their cake and eat it as well.
    since I do not believe in this contradictory rubbish I do not understand to some extent what is going on.
    I am not sure anyone else does as well.

    In this case can an elderly man in his late 60s put the word on a woman in her last year at University. To me this is simply absurd. A perfect example of man who is insecure ( and totally up himself.) Yet what is to stop him.
    Is he allowed to do this or not?

    I say no but is it sexual harassment.

    no-one can define it but you know it when you see it!

  8. I am and will always be Not Trampis says:

    I am not surprised

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