ROSEMARY O’GRADY. The Pell Appeal Judgements: One Perspective.

Nov 29, 2019

In the majority judgement disallowing Cardinal George Pell’s appeal against criminal convictions, Chief Justice Ferguson and Appeal Court President Maxwell set-out the task that had faced the three appellate judges.  

 ‘… 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.’

Two of the three judges answered that question affirmatively and explained their reasons for doing so.

In our view it was open to the jury to be satisfied beyond reasonable doubt that Cardinal Pell was guilty of the offences charged.. That is, there was nothing about A’s [the Complainant’s] evidence… which meant that the jury ‘must have had a doubt about the truth of A’s account.’

By contrast, Weinberg JA found ‘inconsistencies, and discrepancies’ in  A’s account, and a number of his answers simply made no sense.’ [para. 456].

The majority mentioned, regarding such alleged inconsistencies, an observation of former High Court justice Michael McHugh in DPPvWright as to witness-credibility. That the Complainant admitted uncertainty about some facts, they noted, ‘is the kind of detail about which honest witnesses make mistakes.’

Evidently: That was what the Chief Justice and President Maxwell felt.

In one footnote Weinberg JA referred to a 1976 case R v Pfitzner in support of defence counsel’s submissions, summarised, on ‘obstacles to conviction’. He cited the learned onetime Chief Justice of South Australia, Dr John Bray. As a writer as well as lawyer I had known John Bray in egalitarian circles in Adelaide where I had been excessively pleased to have been praised by him  for some poems I’d written for Friendly Street Poetry Society. I was sometimes embarrassed, conscious of my ignorance, when he spoke with me about Law; but I never stepped-back when the subject was the criminal law of rape. ‘Easy to allege, difficult to prove’ Bray always said signalling his distaste with the topic. I could never agree. With some experience in different aspects of victims of sexual assaults my conviction was that sincere complainants find it agonising to report  their insults and injuries to often-indifferent officials.

‘It should be  emphasised,’ said the majority in its decision in Pell ‘That the  enquiry which this (unreasonableness) ground requires is a purely factual one… no discrete question of law arises…’

Yet, over hundreds of paragraphs of analysis, Weinberg JA took to task almost every aspect of the evidence of the DPP case against George Pell, and found it wanting.

In conclusion, Weinberg JA declared his ‘genuine doubt as to the applicant’s guilt  … a doubt which(therefore) a jury ought also have had.’  [para. 1052].

This is not the place for detailed  comment on these interesting judgements. Time and space preclude. But pondering the contents of both decisions, learned writing yet contrary styles of writing, I found myself searching for comfort for the juries in such cases ( and also for Belinda Wallington SM who had referrred the matters to the County Court for trial having presided over the Melbourne Magistrates’ Court Committal-hearing.  If this was about facts this was about the Jury – the decider of facts.

And, then, of course, it’s about Society, on whose behalf the Jury is charged to act.

I remembered something which Raymond Williams wrote about literature and culture in a time of industrial change. He wrote of  something he called ‘the general structure of feeling’. In times of such anxiety, Williams proposed, ‘Recognition of evil was balanced by fear of becoming involved….Sympathy was transformed, not into action, but into withdrawal. We can all observe  the extent to which this structure of feeling has persisted into… the social thinking of our own time.’ [Raymond Williams  Culture and Society [1958, 1963].

Re-reading the judgements in Pell  I  was increasingly impressed, even, I’d say, touched, by the tone of the majority decision: concerned, dignified, equable and sympathetic in spirit, as if to say: here are our reasonsfor thinking as we do about this painful matter. It was human.

I was drawn to a 1932 observation by another eminent jurist, Victorian Sir Leo Cussen, who wrote, in Brissingham v Williams [1932 VLR 237, 239]:  ‘ a case may turn entirely upon a finding in relation to a single and simple question of fact, or be so conducted that the reason or reasons are obvious to any intelligent person.’

Humans are a biological species. What touches our bodies matters. We know more about trauma and effects of sexual assault than once we chose to acknowledge. This widespread changed consciousness pervaded the courtroom on 11 December  2018, as the jury delivered five convictions. In an atmosphere of hush and awe it was revealed: the jury had believed the complainant.

Rosemary O’Grady  is a lawyer and writer. 

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