On 6th April the High Court of Australia, the de facto Supreme Court of that nation, quashed the convictions recorded against Cardinal George Pell. Its decision in effect overruled the verdicts of a unanimous jury in December 2018 and the majority decision of the State of Victoria Court of Appeal in August 2019.
The judgment of the High Court explaining its decision reveals that the convictions were not quashed because of a finding of an error of law, misdirection of the jury by the trial judge or for some other irregularity or impropriety which rendered the proceedings unfair. Neither was their decision because the appellant had discovered, and the Court had accepted, pivotal new or fresh evidence casting doubt on the safety of the verdicts. Rather, the Court’s decision was based on a simple almost prosaic formulation; the jury simply got it wrong. In the Court’s imagination had the twelve jurors against whom the Court made no imputation of unfairness, acted rationally they would have returned opposite verdicts to the ones they did. They would and should have acquitted Mr Pell.
To a criminal law lawyer in our jurisdiction which of course also has a system of trial by jury for all serious criminal offences and especially for an appellate lawyer familiar with our law on criminal appeals, this is a remarkable judgment. To use a popular English lawyer’s aphorism, the High Court of Australia has “usurped the function of the jury”. It has done something which our Court of Appeal, Criminal Division, has consistently disavowed. It retried the case on the basis of the transcripts of the oral evidence given at the original trial. Having done so, it proceeded to make its own assessment as to the truthfulness of the prosecution witnesses (Mr Pell did not testify nor call witnesses) and formed its own conclusion as to whether the prosecution had satisfied the evidential burden.
The prosecution’s core case and its star witness was the alleged victim of Mr Pell’s abuse, the erstwhile cathedral chorister who testified about his being sexually assaulted in that church during the 1990’s. Had the jury not found his testimony to be highly credible and reliable, it could not have convicted Mr Pell. The prosecution presumably, out of fairness, also called several witnesses on whose evidence it did not rely but wished the jury to nonetheless hear and to permit the defence to cross-examine. The evidence of this group amounted to no more than circumstantial evidence, tending to show that what the complainant alleged, in particular his details about when and where the assaults in the cathedral occurred, were unlikely to be true. For example, when the complainant recalled being abused after a Sunday religious service in the priests changing room whilst he and Mr Pell were alone, these witnesses spoke of that room being a constant hive of activity.
A system of trial by jury places the heavy responsibility for determining where the truth lies in complex and conflicting circumstances like these to a group of twelve randomly selected citizens. The role of the trial judge is only to prevent the jury from so deciding when he or she determines that the prosecution case is so weak that no faithful jury could convict the accused. This safety-valve is there to prevent perverse verdicts. Otherwise the system believes that for any tenable prosecution case, justice to the accused, the prosecution and the public is best done and seen to be done by that band of citizens.
But according to the High Court of Australia that is not how it works in their jurisdiction. Trial by jury means something else. In this appeal, it held that there was “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof.” It openly disagreed with the prosecution’s submission on appeal that the guilty verdicts were ones which the jury was entitled to return having heard the evidence. Moreover it dismissed the prosecution’s submission that the verdict should be respected because unlike the High Court, the jury had assessed the demeanour of the witnesses. The Court however did not impugn the quality of the alleged victim’s testimony. In that crucial regard it did not decide that the jury was mistaken to have found that the evidence was credible and reliable. The jury’s manifest error lay elsewhere. The vice was its treatment of the testimony of the circumstantial witnesses. The cumulative forensic effect of their oral evidence ought to have planted a seed of doubt. A rational jury would have regarded this evidence as sufficient to preclude it from being sure that Mr Pell committed the assaults. He should have been acquitted at his trial and the High Court would now intervene in order to correct this injustice (presumably the Court had no power to order a retrial).
This reasoning is anathema to our Court of Appeal. Its statutory role is to quash convictions which are unsafe. In an attempt to both uphold respect for jury verdicts and to stem an otherwise unmanageable flood of appeals against conviction, the Court of Appeal has carefully delineated types of appeal which it will be willing to entertain, such as the discovery of fresh evidence, flagrant defence lawyer incompetence etc. Occasionally one has the suspicion that in some successful appeals the Court of Appeal, whilst appearing to remain within these restrictive categories, does strive to overturn a verdict which it regards as wrong but such a rare foray is always concealed amongst the verbiage. To that limited extent, the High Court of Australia has simply called it what it is. This case suggests, that in Australia, the judiciary regards itself as having a greater responsibility in ensuring that justice is done.
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