BEN HARVEY: Barry Cable case shows us that criminal and civil outcomes don’t always align

There’s an old saying that the law is an ass.

When you look at the case of football legend Barry Cable, you understand why the expression resonates 300 years after Charles Dickens coined it.

In 2023, Cable was found by a civil court to have molested a child in the late 1960s and 1970s.

“A judge has found WA football legend Barry Cable is a paedophile who sexually abused a young girl starting when she was just 12 years old,” was the confronting opening line on 7NEWS after the verdict was handed down.

The victim was awarded an $800,000 payout at Cable’s expense. After that judgment was handed down, another woman came forward to police claiming she’d also been interfered with by the champion ruck rover.

The cops charged Cable with five counts of indecent assault and two counts of unlawful carnal knowledge against a child — she was just nine years old at the time of the alleged incident.

“We begin with breaking news on disgraced footballer Barry Cable who today was arrested by police in Perth,” was the opener in the new Seven package.

Cable’s trial concluded on Monday with a not guilty verdict.

Two different courts. Two different outcomes. Same defendant.

The mind-bending upshot of the two cases — that Cable is a child sex abuser but not a criminal — is due the different burdens of proof in civil and criminal jurisdictions.

The alleged crimes in the recent criminal case occurred in what was the start of Cable’s very long footballing heyday.

A two-time Sandover Medallist for Perth Football Club and captain-coach in three successive premierships, he went to North Melbourne where he was best and fairest in his debut season and helped the Roos to a pair of grand final wins.

Cable finished his career back in WA, this time at East Perth, where, in 1978, he captained the squad to a premiership over his original team, the Demons.

He was a generational talent — there’s no reasonable doubt about that.

That background is relevant because the judge in the civil trial — Mark Herron — noted that the perpetrators of child sexual abuse “take advantage of a power imbalance and the trust children place in them, to sexually abuse those children”.

Judge Herron suggested Cable’s god complex, for want of a better expression, was one of the factors underpinning his 2023 civil trial decision that on the balance of probabilities the footballer did in fact sexually abuse the woman who was suing him.

It was more probable than not that she was telling the truth — more probable than not (which is what the balance of probabilities means in layman’s terms) being the burden of proof in a civil case.

Fast forward three years and Judge Michael Bowden, who presided over the just-concluded criminal trial, also found it more probable than not the woman making accusations against Cable was telling the truth.

“That leads me to conclude that while I generally accept (the complainant’s) evidence and have found that Mr Cable has the tendency alleged and I consider it more probable than not that she is telling the truth,” Judge Bowden said.

But he was not confident in that likelihood beyond reasonable doubt, which is the burden of proof in a criminal case.

“I am not persuaded of guilt beyond reasonable doubt in respect of any count in the indictment and acquit Mr Cable in respect of each count,” the judge concluded.

Judge Bowden found it likely that the woman was telling the truth but he also found it was reasonable to doubt that she was telling the truth.

I told you the law’s an ass.

Cable’s criminal and civil cases involved different women and different evidence so it’s understandable that you might have different outcomes.

What really boils people’s noodles is when there are different outcomes even though the civil and criminal cases are identical.

That happened with another sports hero who was accused of a crime. Remember that white Bronco?

In 1994, NFL star OJ Simpson led police on a low-speed pursuit in Los Angeles after he realised he was in the frame for the murder of his wife Nicole brown Simpson and her friend Ronald Goldman.

The police pursuit was one of 1994’s most-watched live telecasts and the ensuing trial was one of 1995’s most watched live telecasts.

It made celebrities of OJ’s legal dream team, which was headlined by lawyers Johnnie Cochran, Robert Shapiro, F Lee Bailey, Alan Dershowitz and Robert Kardashian.

OJ beat the rap after one of the all-time great pieces of court room theatre concerning the alleged planting of blood-stained gloves at the sports star’s house.

When it turned out the fashion accessories were too small for OJ’s hands, the ever-quotable Cochran proclaimed “if the glove don’t fit, you must acquit”.

On October 3, 1995, the jury did just that.

Almost exactly a year later, the families of Nicole Brown Simpson and Ron Goldman sued the “innocent” OJ for wrongful death.

The jury found that on the balance of probabilities a man whose criminal guilt was reasonably doubtful was in fact a cold-blooded killer and therefore liable for a $US33.5 million wrongful death payout

The Goodman family claimed they got just $US132,000, so less than half of 1 per cent of their entitlement.

Believe it or not, that was a better result than that achieved by the woman who successfully sued Cable.

“Cable declared bankruptcy just prior to my civil trial, and I have never received a cent,” she told cameras after the recent trial.

Yep, the law really is an ass.