Pearls and Irritations

G eorge Pell stands a good chance of winning his appeal next week. Not that that would be the end of the matter. Lately the Victorian court of appeal has overturned a number of jury verdicts in child abuse cases, only to see those verdicts restored by the high court. Child abuse cases are hard. The rules of evidence are complex. Witnesses are few. These assaults are inherently outlandish. Victims are frequently damaged. Often at stake is the ruin of old men who have never before been accused of crimes.

A gap has opened up between the Canberra and Melbourne courts in the past few years in child abuse cases. The language of the high court has been polite but its rebukes have been emphatic. Again and again it has backed trial judges and juries. Offenders set free on appeal in Melbourne find themselves behind bars once again.

The Victorian public prosecutor is feeding the appeals to the high court and winning. The court is making no secret of what it’s about here: not just to quietly bring the Melbourne court back into line, but to set rules for the whole country on complex issues that are, as they said in a case last year, “as straightforward as possible consistent with the need to ensure that the accused receives a fair trial”.

Critics of the Melbourne judges say that for all their intellectual firepower, they lack experience at the grubby end of the law: the conduct of criminal trials. The complaint has been that the court of appeal sets the bar too high for trial judges and prosecutors.

Last September, the high court administered its most serious corrective to date in the case of Dennis Bauer (a pseudonym), who originally faced dozens of charges of sexually abusing five children he and his wife were fostering.

After many trials and many appeals, Bauer was convicted on 18 charges including indecent assault, indecent acts and penetration of a child under 10, involving just one of his foster children. The abuse had continued for 11 years.

Bauer appealed once again and the Victorian court quashed his convictions and ordered yet another trial. The high court would have none of it, and last September ordered that Bauer’s convictions stand. The decision was unanimous.

The finest minds at the criminal bar quail in the face of the issues raised in Bauer’s case. At times, even the judges of the high court have been at odds with one another over them. But as they said in their judgment in this case: “The Court has resolved to put aside differences of opinion and speak with one voice on the subject.”

On point after point, they disagreed with the Victorian court of appeal. The pattern of the decision was clear. Writing the next day on the Melbourne University law school website, Prof Jeremy Gans noted: “Every new unanimous approach announced yesterday favours the prosecution in child sexual abuse trials.

“Coincidentally or otherwise, this follows recommendations along similar lines by the Royal Commission on Institutional Responses to Child Sexual Abuse issued shortly after the Court’s last ruling. The High Court’s new united stance reduces the urgency for such reforms …”

Wide as it was, the Bauer decision did not grapple with the key issue in Pell’s appeal: that his conviction is unsafe because, taken as a whole, the evidence could not allow the jury to be satisfied of his guilt beyond reasonable doubt.

By an extraordinary coincidence, an ancient Christian Brother was set free by the court of appeal on exactly those grounds only a couple of days after Pell was sentenced for abusing a St Patrick’s Cathedral choir boy years ago.

The cardinal’s supporters greeted the release of John Tyrrell, 80, with jubilation. Here they saw a pathway for Pell’s acquittal: the Victorian appeal judges had decided that an uncorroborated and at times improbable story told by one man after years of silence was not enough to condemn Tyrrell to prison.

But that decision is also on its way to the high court. The office of the director of public prosecutions appears confident the Canberra judges will once again find that the appeal judges have set the bar too high for the prosecution.

Tyrrell taught a mildly disabled 10-year old at St Joseph’s Christian Brothers College in Geelong in the middle of the 1960s. The boy – now the complainant – could not play sport and said his mother arranged for Tyrrell to give him extra teaching after school.

At their first meeting, he said, Tyrrell pulled down his underpants and raped him. He claimed assaults of one kind or another continued relentlessly for years in classrooms, changing rooms, science labs and even the bedroom of one of the other Christian Brothers. He told no one until, about a year after his mother’s death in 2014, he went to the police.

There were problems with his story. The worst: he remembered the assaults going on for a couple of years when Tyrrell had already left St Joseph’s. This inconsistency was argued back and forth for days before the jury, which threw out a number of charges but nevertheless found Tyrrell guilty.

The judges of the court of appeal, eloquently and at length, condemned the man for misremembering – perhaps inventing – assaults he claimed had taken place when Tyrrell was no longer around to torment him. Surely he couldn’t have forgotten the teacher’s departure? “[It] would have been an unforgettable landmark in his young life, a watershed in his school years.”

They unpicked the complainant’s case with immense forensic skill. What the high court will have to decide is whether, in doing so, the judges placed the bar for the prosecution unreasonably high.

The Melbourne judges did spend a lot of energy on finding fault in odd places. Once example: the complainant told the jury that once or twice the pain of the assaults was so appalling “it felt like [Tyrrell] was trying to stick his hand up [my] anus.” The word he used was felt.

But the judges accepted the evidence of a colorectal surgeon that a hand up a child’s arse would rupture the sphincter. That didn’t happen. So the complainant was to be disbelieved.

Having amassed their doubts about his case, the judges declared the story of Tyrrell’s offending too brazen to be believed. The school was busy. People were everywhere. Tyrrell was relatively new to the place and unfamiliar with its ethos. He pounced without grooming. The assaults never ceased. He couldn’t know if the boy would shut up or complain to his mother …

The parallels with Pell’s case are plain. Brazen was the word the trial judge used about the cardinal’s behaviour that day in the cathedral sacristy, brazen but believed by the jury. The court of appeal will now decide whether another jury placed too much faith in another story of brazen abuse.

The high court’s scrutiny of Tyrrell’s case is months away. Perhaps another corrective will come down from on high. Time will tell. Meanwhile, the court will be examining the case against Pell.

What the judges actually do here is the subject of an immense amount of law. Boiled down to its essentials, their role is this: to take a fresh look at the evidence not through the eyes of the jury, but through their own eyes while giving due weight to the impression the complainant made on the jury.

The judges will have the video of Pell’s accuser’s cross-examination to watch. They can see for themselves how he stood up to interrogation over three days in the box. It’s a good bet they will watch it with close attention. One of the grounds of the high court appeal in Tyrrell’s case is that they didn’t watch the video.While the temper of the court of appeal, revealed once more in its handling of Tyrrell, would seem a fine omen for Pell, there are differences between the cases that need to be put into the balance.

The first is time: Tyrrell’s accuser was looking back half a century to the train wreck of his childhood. Time plays havoc with memory. Pell’s accuser was looking back only 20 years.

The second is reputation: in his early 20s, Tyrrell’s accuser pleaded guilty in the Parramatta district court to charges of manslaughter and robbery. He was in trouble again years later, pleading guilty in Melbourne to a charge of causing serious injury after shooting a man in the arm in the course of a dispute.

That victims’ lives fall apart is a common pattern. Going to the dogs doesn’t make them liars, but it does make them harder to believe. The former choirboy, on the other hand, is a cleanskin. By all accounts he has never been in trouble with the law. That builds trust with juries and judges.

The court of appeal will hear arguments for a couple of days next week. What happens after that is far from clear. Most likely, the judges will reserve their decision and we will wait weeks to know how they rate the case against Pell.

But if they decide to acquit, there is a possibility they will order the cardinal’s release immediately rather than have him languish in prison while they write their judgment. It’s unlikely, but it is an option open to the court.

Win or lose, it’s not likely Pell’s trials will end in Melbourne. The high court looms over the proceedings. The final resolution may be many months away. All sides in this unhappy matter agree there has not been a trial in living memory in this country where it matters more to get it right.

First published in The Guardian Australia June 1, 2019.

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