Pearls and Irritations

The Full Bench of the High Court sitting in Canberra this week is listed to hear the Appeal in M112/19 Pell and The Queen on Wednesday 11^th March.

 When the Pell ‘appeal against conviction’ pursuant to S. 276 (1) (a) of the Criminal Procedure Act 2009 (Vic) lost 2:1 in the Supreme Court of Victoria: Court of Appeal in August 2019, much comment was devoted to observations that the determining majority, comprising Chief  Justice Ferguson and Court of Appeal President Maxwell, were not lawyers with long, specific expertise in Criminal Law.  Busy retired and recalled Appeal Justice Mark Weinberg, by contrast, was expert in the field.  Such comment seemed aimed at inducing a general preference for the Weinberg position, set-out in a remarkably long dissenting judgement, detailing in embarrassing application just what was wrong with the Crown case against George Pell – in the learned Appeal Judge’s opinion.

There was a feeling amongst those who took the trouble to digest the Weinberg dissent that he had set-up a metaphorical Catherine Wheel and let fly. He had done the Applicant-Pleaders’ job for them. So it appeared, at least to the untutored eye, when the Appeal documents were filed in the High Court and detailed submissions seemed gratifyingly-consistent with the Weinberg approach.

Trial lawyers like to believe, or say, that juries ‘usually get it right’. Weinberg JA must have warmed the cockles of the ‘defence/Appellant’ – ‘team’ when, in June 2019, he mused aloud to the Court ‘but not ALWAYS’… as the customary nod was paid to the fact-finding capabilities of juries.  At the backs of contemporary Australian Appellants and Courts is ever, since the 1980s, the spectre of Azaria Chamberlain and all that attended the botched institutional responses to her death after the Northern Territory set-aside the initial, correct and eventually-justified findings of Coroner Dinny Barrett. It was the saga of the Chamberlain history which could be heard allowing some comfort to Pell-supporters during the 2018 trials in the Victorian County Court.

So, now, after Magistrate Belinda Wallington, one unanimous Jury, 2 out of 3 Appeal Court Judges and some loud, persistent public opinion have opted to convict the Accused George Pell, it falls, finally, to the 7 Justices of the High Court to find the golden thread of reasonable doubt which Weinberg JA contended-for and which, if found, will see Pell unfettered. If this does occur it will be because Pell’s lawyers have scoured every aspect of what has passed in the courts and found a way to persuade the Justices that the Prosecution has mishandled the case against Pell, and the jury verdict is unsafe or unsatisfactory.

Chief Judge Peter Kidd, who took the verdict in 2018, commended the Prosecution, and embroidered it into his Sentencing remarks, in March 2019, that this difficult trial had been conducted according to the very best traditions of due process. What this ultimate Appeal, in Pell, boils down to, in lay terms, is that the Court of Appeal’s majority erred in that, as Mark Weinberg JA demonstrated, he was able to ground ‘reasonable doubt’ so too ought the majority have done, so too should the Jury, so too should the High Court.

What is wrong with this proposition? It is what is, still, contended-for in the Applicant’s submissions to the High Court: that if, after all the transcripts, videos, views, intermediate decisions and Jury-deliberations, the Justices, themselves, sense a reasonable doubt, then they must find that such a doubt exists and ought to have existed in the minds of the Jury, and must be substituted for the verdict of the Jury. And, by necessary implication, substitute for the reasoning of Ferguson CJ, and Maxwell P. in the Court of Appeal. And why? Because S. 276 (1) (a) of the Criminal Procedure Act 2009 (Vic.) provides for Appeal against Conviction on the ground that the Jury has ‘got it wrong’ so to say:  The Executive and the Legislature have trespassed upon the domain of the Judiciary.

Great care is taken or assumed to be taken, by appeal courts adjudicating these sorts of matters, that no Appeal Court substitutes its own ‘independent assessment of the whole of the evidence’ for the decision of the jury. The Court’s ‘assessment’ is ‘ultimately performed’ as the Respondent-Crown asserts in Pell’s  submissions, ‘for the purpose, not (as asserted by the applicant) of  determining whether the Court itself has a reasonable doubt, but of deciding  whether it was open  to the jury to find the Accused guilty.’ (Pell and The Queen Respondent’s Submission filed 31 January 2020 @ p.9.) Clear authority is found for this in the reasoning of Sir Harry Gibbs CJ and Sir Anthony Mason J in Chamberlain… [No 2] in `1984. One dwells upon these arguments because one wants one’s own hands unsoiled by the possibility of having colluded in the conviction of an innocent.  One wants to be comforted by the reassurance that every Accused person gets a fair trial according to the rules. The Victorian legislation establishing this ground of appeal against conviction muddies the waters. It allows for the possibility that a judge’s  reading of ‘all the evidence’ will lead to the substitution of a judge’s decision as to doubt / guilt in place of that of the factfinders: the Jury.

We have, now, in our crowded contemporary world, myriad institutions struggling to cope/perform under economic, financial and political pressures. It must be tempting for governments to entertain ideas of criminal trials by judges sitting alone at first instance, efficient by contrast with the expensive rituals of protracted jury-trial.

Why, then, maintain support for the retention of jury-trials?

The age of ‘national security’ since 11 September 2001, has seen much executive-creep by governments extending executive-reach across all fields of public liberty, even, one could say, into all aspects of human endeavour – like boarding aircraft, or entering a courthouse. Surveilled, scrutinized, hacked, tapped, deemed but, importantly, not well-protected by Police if there’s a man on the loose with a runaway motor-car, citizens today are actively-encouraged or pressured into passivity in the face of grasping authority.  The role of the Jury is to find facts. Canadian thinker and writer John Ralston Saul champions the independence of citizens, not least in their role as members of a jury, performing a role on behalf of society, against the entrenched conformity of a society dominated by corporatism.

Responsible government and society, Saul says in his 1995 Massey Lectures, rely upon individual citizen-participation to engage in self-government and correct the imbalance of the detachment and self-interest of autocratic, dominant elites.

‘We’ve known since the rise of juries in the Middle Ages,’   says Saul, ‘ [that] in the process of seeking agreement among themselves, these disinterested, unrelated groups of twelve usually discover within themselves a mixture of strengths through the various human qualities. The jury thus becomes a mechanism of equilibrium. Its human balance provides something that escapes the judge and the expert witnesses.  You will note,’ Saul maintains, ‘That their task is not to find the answer, not to find the truth, but to establish whether or not there is reasonable doubt. This is the role of the citizen personified.’

The task of the High Court in this Appeal is to ensure that the reasonable doubt declared by one Appellate Judge is not substituted, without due cause, for the convictions of the Jury at the trial.

JR Saul argues for citizen-participation in all democratic processes. He holds that for the sake of democracy we need to find, even simple, ways for citizens to get into the public debate – in such a manner as to reproduce the conscious understanding of a Jury.

The characters whose position is contended-for in this Appeal are Weinberg JA, who might, Ralston Saul -style, be described as a member of a managerial or expert class, and the Accused, Cardinal Pell, who, by choosing to exercise his right -to-silence, distanced himself from engagement with his Jury- who were the citizen-decisionmakers representing society in the process.

Some years ago another Victorian judge, Ken Marks, wrote a satisfying piece for the Law Institute Journal: ‘Thinking-Up‘… about the right to silence and privilege against self-incrimination, and about the ‘purpose of a trial.’    Like Bentham and Wigmore of varied learned tradition, Marks questioned the utility and reasonableness-itself of the ‘right-to-silence’. He offered as one possible balance or reform to the rules of procedure about the ‘right to silence’ a corresponding ‘duty to respond’ in the part of an Accused. And it is nothing revolutionary. It derives, indeed, from Canon Law.

In the Pell trial the Accused availed himself of the ‘right-to-silence’ and we, the citizenry, will never know what inferences, correct or perverse, his Jury derived from that election.

But from the mists of time we might detach from the protections against self-incrimination the term ‘common report’ or, in Latin: Fama, or ‘public repute’.  Or, as one might say in Ballarat today, for example, reputation for having been known, or seen, to have escorted pederasts to their criminal trials.   At Canon Law a person Accused by reputation/Common Report, was ‘bound’ to ‘show whether he can prove his innocence and vindicate himself.’ (Wigmore’s translation).

The Applicant George Pell is defended by lawyers whose fundamental argument is that he is wrongly-accused, is entitled to a ‘right to silence’ and is a victim of  scandalous attacks on his reputation.

A ‘duty to respond’ as found in Canonical nemo tenetor maxims requiring rules with respect to public repute (Fama) be observed, might go a long way towards narrowing the perception of detachment between an Accused and her/his Jury. It would also enhance the general understanding of the crucial role of juries, the representatives of ‘society’, and the place within the process, of the citizenry.  

Rosemary O’Grady is a lawyer & writer.

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