JACK WATERFORD.  High Court should leave Pell alone. There’s no unresolved point of law, and no mere judicial disagreement on facts invites special leave

George Pell will be doing very well if he succeeds in getting the High Court to grant him leave to appeal after the Victorian Court of Appeal threw out his appeal against his  conviction for child sex offences.  Pell was convicted by a well- instructed jury; neither side had the slightest complaint about the judge’s instruction to the jury.

The jury heard a lot of advocacy going over the evidence to explain why it should find Pell not guilty. Those submissions, put to them over several days by Australia’s greatest criminal law advocate, Robert Richter, QC, were repeated to them, perhaps more neutrally, by the trial judge. Earlier, the prosecutor had explained why the “obstacles” to conviction were not insuperable ones. The unanimous verdict by the jury, after several days of deliberations, implied that it had considered, and rejected, each of the arguments that Richter said made the crimes impossible, or so highly improbable as to demand a reasonable doubt.

Richter retired from the case after the jury verdict. In his place to argue that the verdict was wrong was Brett Walker, SC, Australia’s foremost appellate advocate. The Pell defence fund, gathered privately rather than through the Catholic Church, was not short of legal firepower, or lack of opportunity to put its case, whether to the jury, or to four very experienced trial judges.

The two judges in the majority in the appeal case were Anne Ferguson, Chief Justice, and Chris Maxwell, president of the Court of Appeal. The chief appeal point was that the verdict was “unreasonable, and unsafe and unsatisfactory”.

“It should be emphasised that the inquiry which this ground requires is a purely factual one. Unlike the position where a ground of appeal contends that the trial judge has erred in law – for example in admitting certain evidence or in giving (or failing to give) the jury a particular direction of law – no discrete question of law arises. Rather the appeal court reviews the evidence as it was presented to the jury and asks itself whether – on that factual material – it was reasonably open to the jury to convict the accused.

“Having reviewed the whole of the evidence, we would answer that question affirmatively. In our view it was open to the jury to be satisfied beyond reasonable doubt that Cardinal Pell was guilty of the offence charged. ..There was nothing about A’s [the victim’s] evidence, or about the opportunity evidence, which meant that the jury must have had a doubt’  about the truth of A’s account.

“It is not enough, as the authorities make clear, that one or more jurors might have had a doubt.”

Then follows a 120-page analysis of all of the points made repeatedly to the jury at trial. Many readers will be quite familiar with them because they are the very stuff of the many polemics, particularly in The Australian, casting doubt upon the jury verdict. That is to say that Pell’s apologists have merely been parroting the defence summing-up, something the jury considered but rejected. A few have added to this their “feeling” that Pell would not abuse anyone, or that he was a witty and companionable host.

The two senior judges went through the defence submissions in great detail, including from site inspections and reading and watching video transcripts of the trial. These included arguments about whether the cardinal was ever alone at cathedral masses, the alleged impossibility of extracting and presenting a penis to the world when robed for mass, timing issues, or claimed issues, whether the sacristy could have been deserted when the crimes occurred, and so on.

“None of these points, alone or taken together, leads us to the conclusion that the jury must have had a doubt about whether there was a realistic opportunity for the offending to occur, nor a doubt that the particular sexual conduct occurred. … Taking the evidence as a whole, it was open to the jury to be satisfied of Cardinal Pell’s guilt beyond reasonable doubt.’’

The judges had the advantage, which no outsider commentator has had, of having seen and heard the video recording of the victim giving evidence.

The third judge, Mark Weinberg would have ordered that Pell be released. He was not so impressed by the victim, did not find his evidence so compelling and thought some of it embellished. He was rather more persuaded by defence evidence showing various improbabilities accumulating to make the commission of the crimes quite doubtful. He was critical of the defence for having introduced the word “impossibilities” into the argument, that had taken the discussion on to the wrong path.

He raised the spectre of the Chamberlain case, when the High Court refused Lindy Chamberlain leave to appeal her conviction over the death of her baby Azaria. We now know for certain she was innocent. Even some judges on the court had expressed doubts about her guilt. (The court, in effect, held that it was a second-tier appeal, which should be restricted to points of law, such as jury misdirections. There were no such points, other than unease about whether the jury verdict was right or safe. It was not until later that evidence emerged of wholly unreliable scientific evidence.)

“Having had regard to the whole of the evidence led at trial, and having deliberated long and hard over this matter, I find myself in the position of having a genuine doubt as to Pell’s guilt,’’ he said towards the end of his 200-page dissent.

“My doubt is a doubt the jury ought to have had.’’

Naturally, all of the partisans for Pell who had previously expressed any reservations about the guilty verdict announced immediately that they found Weinberg’s judgement “compelling”, and providing proper grounds for special leave to appeal. The usual array of south eastern archbishops, all of whom owe their appointments (and, generally, personalities) to Pell, confirmed their belief in his innocence. Naturally, in the new style, they also affirmed their love and compassion for victims. Extraordinarily, the archbishop of Melbourne, Peter Comensoli, wondered whether both sides could be right – with the victim honestly describing an assault by someone else whom he had mistaken for Pell.

Here’s the problem.

Weinberg disagrees with Ferguson and Maxwell about what conclusions can or should be drawn from the evidence before the jury. The judges are not at odds, in any significant degree anyway, about the law in relation to the interpretation of such facts. In this respect indeed, it is almost impossible for the judgments – for or against upholding the conviction –to be considered for errors of law or approach.

The Chamberlain case was, in my opinion then and now, a low point in a period of time during which a busy High Court was trying to take charge of its work by reducing the numbers of matters which came to it by right, or which, in effect, allowed two –rather than one – bites of the cherry over the particular facts of the case.

The court always has a general discretion to hear any case. But anyone applying for special leave is reminded that the court will consider only questions of law. Even then it has to be a question of law “of public importance, whether because of its general application or otherwise; or, in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law”. And applicants should be ready to argue why “the interest  of the administration of justice, either generally or in the particular case, require consideration by the High Court”

First, Weinberg is not at odds with Ferguson and Maxwell as to a question of law. It’s a difference of opinion about the significance to be given to the different facts, or alleged facts,  in a particular case. The two judgments applied much the same  general legal principles to this evidence. The difference, in my opinion, was that Weinberg was rather more subjective and somewhat inclined to regard himself as the 13th juror, rather than the assessor willing, reluctantly, to throw the jury verdict out if it were demonstrably cockeyed.

The cases raise no novel issues of law, whether as to what courts should do in sexual offence cases, or how appeal courts should act in second-guessing juries. (Given that juries have existed in common law for at least 900 years, there’s already a considerable jurisprudence on that.) It cannot be said that the courts generally, or the Victorian court in particular are in disarray merely because one distinguished judge disagreed with two others about the conclusion to be drawn from evidence.

It is, of course, for the High Court to decide whether it would hear an appeal. But it is quite unlikely that it would be affected much, one way or another, by the notoriety of the appellant, or the fact that his highly expensive lawyers are seeking a third bite of the cherry with arguments that have so far been considered at length and rejected by three judges and a jury, and which have not improved much in the repetition.

They would also be very sensitive to suggestions that the court was giving audience to a well-heeled, well represented and well-connected defendant who would almost certainly have failed to get a hearing if he were merely a common or garden sexual molester.

As the Chamberlain case, or the Eastman case, or any number of other miscarriage of justice cases make clear, there are means by which people who think themselves wrongly convicted can continue to advocate their innocence and get ultimate exoneration. A good many of these cases, however, involve the emergence of evidence of forensic misconduct by police, bad forensic work by scientists, or the emergence of fresh evidence that sheds an entirely new light on things. It seems hard to imagine that this could occur in the Pell case. There will be some who for political, ecclesiastical or personal reasons would deny Pell’s guilt even if there were 1000 witnesses

Of course the trial judge, and the judges on appeal, were careful to stress – dare one say shout – that Pell was not being tried for the general sins of the church, or its terrible leadership in most archdioceses over the past few decades.

But the more these leaders gather at the foot of Pell’s cross the more they make it reasonable to say that Pell’s conviction could symbolise the whole rotten era.

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When Tim Fischer was called up in 1966 for two years national service, he was, like other conscripts subjected to a battery of tests, including intelligence ones. The brain lurking behind the somewhat foolish façade saw him selected for a short-term officers’ course, from which he said he learnt tricks of organisation and self-discipline that stood him well in later life. Although he was a conscript, he did not strictly go to Vietnam as one: he signed on for an additional nine months service so he could get the experience.  He went to Vietnam as a second lieutenant.  (First lieutenants were graduates from the Royal Military College at Duntroon.

Soon after he arrived, his platoon sergeant asked him if he knew why he was a second lieutenant.

“No,” said Fisher, at least as he recounted this tale.

“Because there aren’t any bloody third lieutenants!”

There have been many affectionate Fisher obituaries – he commanded respect across the chambers, and good friendships with journalists throughout and after his career, and long after he retired he was still performing public service with organisations such as the Hollows Foundation and the Flying Doctor Service, as well as lobbying the general cause of trains. He has a son with autism, but often said he had been pretty much autistic himself, with trains as the obvious example.

Three things I haven’t seen mentioned yet. He was a swot and a loner at Xavier, in part because of an early stutter, though he ultimately mastered it to become a champion debater there. But one retreat from its hurley-burley, apart from trains was music, for which he had intense appreciation and wide knowledge. But I never hard of him singing opera from a train.

He was also extraordinarily kind, including to almost complete strangers. I thought his statements about “bucket loads of extinguishment” in 1996 were terribly tin-eared, but he was a friend of refugees and new settlers and more lately of Aboriginal causes. He often looked a bit galumphing,  awkward, eccentric and idiosyncratic, but he had no malice in him. Few of his colleagues, now or later, will get his send-off.

And he is, I think, the only Vietnam veteran who later reached high political office in Australia. There were other admirable Vietnam vets who achieved minor ministries – Graham Edwards, for example. Perhaps most of his contemporaries had bad feet, like Donald Trump, or like Bill Clinton and George W Bush, were involved in subterfuges, such as being in the Texas air force or (until he got a high draft number and could simply resign )  joining the reserve officer training course.

Jack Waterford is a former Editor of The Canberra Times

[email protected]

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John Waterford AM, better known as Jack Waterford, is an Australian journalist and commentator.

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