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

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

  1. Jerry Roberts says:

    Rosemary, I was looking at it more from the political and religious point of view than from the legal. For Pell to do his time and disappear quietly into retirement would be in the best interests of Church and State, not that the RC Church is my problem, thank goodness.

    • Rosemary O'Grady says:

      I agree, JR.
      Tks for the Comment, it allows me to indulge… what struck me – and most other observers I knew at the time (2018)- was the extraordinary Drama of these trials. In my perception, the Accused seemed almost to disappear from sight as the protracted action of the trial played-itself-out. It was Tragedic. Ebb and Flow – the focus shifted from Prosecution to Witnesses to Defence to Observers with their various, varied sympathies (and interests), including the issue of ‘Open/Closed Courts’ and ‘non-publication orders in the interest of Fair Trial . The Accused, having opted for Silence, could seem, sometimes, all but Forgotten, as an individual actor, in the Practicalities of the Ritual.
      Inevitably, to one observing a Ritual, the notion of Sacrifice occurred. Why, one wondered, didn’t the Accused simply retire – hurt, sacrificing his ‘Innocence’ because of the wicked failure, of the institution and its hierarchs, to protect the Innocence of Others? Such Sacrifice would have Meaning and supply dramatic Catharsis.
      Not in his/their nature, I’m afraid.
      There is a bit more to say about this, and trials, and error, and the Chamberlain trials,inspired by forensic master scientist Dr Vernon Plueckhahn, who died at a ripe old age in winter 2019. As usual I am Timing-Out and ought make the effort to tell the story in a fresh piece.
      As usual I think much along the same lines as you express JR, and, ditto: am very glad that the RC Church is not my problem.
      But it is, also, the culture of my forebears, now lost to me – and I am not the only person to regret that loss- or, perhaps, the loss of what we thought that culture meant: one version of how to live.

  2. Ian Fisher says:

    I acknowledge the defendant’s right not to give evidence. Despite that I have a problem with my reasoning in a case such as this. If I were the accused in this case, and knew my complete innocence, I would be desperate to give evidence despite legal advice to the contrary.

    • Rosemary O'Grady says:

      I understand the impulse, Ian. Me too. but: Not for me to comment upon defence strategies. Greater minds… etc.
      But there has been unease abroad in the public mind, despite much-repeated judicial warnings about the right to silence, and one can hardly aim to understand this case absent a feeling that the jury must have wondered about the Accused’s decision to exercise that right. A man of God, who won’t put his hand on The Bible and swear to tell the truth to his Jury? It’s puzzling.
      A few years before the trials of Lionel Murphy I was a campaigner for the unpopular retention of the right to silence and the unsworn statement – or ‘dock’ statement in some states. It’s an unsworn, obviously, version of the Accused’s point-of-view, and is shielded, because unsworn, from cross-examination. It is not ‘Evidence’. I felt it allowed some self-expression to impaired defendants eg the ‘disabled’, the illiterate, the unrepresented, the very vulnerable (who isn’t when on-trial?). But I felt probably it ought not be retained absent a corresponding duty to respond; nor to be retained in the interests of well-resourced, educated defendants (like L.Murphy, who in fact was a cancer victim, unknown to the public, then) – and then you have the problem of inequality – and each one of us must be able to stand in court equal before the law! So one rule for all.
      The fact that George Pell continues to assert his innocence is inevitable. He’ll go to his grave … he must. To do otherwise is to admit having lied, let alone the unthinkable rest. But we are discussing, here, a trial. It’s about Guilt. It’s about the State’s interest in seeing Justice done. It’s about how Facts are Proved. This is a system for determining that. Has the Accused been proven, beyond reasonable doubt, to have committed the acts alleged? If the trial has been fair, the process ‘due’, the outcome – the verdict, must be correct. It is often said that the jury’s task is not to decide guilt or innocence, but to ‘find’ ‘reasonable doubt’ – which is why I quoted the majority judgement at the start of this piece: it was open to the jury ‘not’ to find reasonable doubt; Justice Weinberg dissents.
      One often heard, in the County Court corridors, during the Pell trials, references to the Chamberlain cases of the early 1980s. There,the Chamberlains exhausted their legal remedies- unacquitted. They were only released after the discovery of fresh evidence after their High Court appeal had failed. The finding of Azaria’s matinee jacket came too late for a legal justification for Lindy – there was nowhere for her to go in the legal system. For Justice, correction of error and compensation she had to rely upon Executive clemency. When Pell fails in the High Court one may expect such approach to the Executive as the next step by Supporters.
      The difference between Chamberlain and Pell is that, while Lindy’s juries got it wrong ( and the High Court did not fully agree) – the trier of facts at first instance got it right. NT Coroner the late Dinny Barritt concluded that a dingo had taken Azaria from the ‘Ayers’ Rock’ camp, and the Sydney Morning Herald reporter Malcolm Brown wrote that story concurring. I mention this because of the fact that this was wrongly-invoked to give heart to Pell’s supporters, by Pell’s supporters, but also because of the bearing it has on the way we view juries: our agents in the trial process. At the end of John Bryson’s ‘Evil Angels’ book about the Azaria trials – written just before the Morling inquiry and Lindy’s release, there is an account of a statement made by a well-camouflaged juror, anonymity-protected, who informed the world that what really influenced the verdict in Chamberlain was whether or not the members of the jury could believe that a dingo could carry-off an infant. Rangers at the Park testified that it could, indigenes ditto, Dinny Barritt ditto – but the giddy Crown case muddied the waters so much it became a national scandal. Thus: what most-interests me about the Pell case is not the fact that Pell, no longer entitled to be presumed ‘innocent’ rightly or wrongly, is or is not ‘innocent’ but whether a jury of our peers acted correctly in finding him Guilty. Peter Kidd, Chief Judge, thought they did. I’m pretty sure he’s right. I’m quite sure Pell got a fair trial, according to the rule of law, because I saw it. I was there.

  3. Nicely written, Rosemary. I was surprised when Pell’s team sought leave to appeal.

    • Rosemary O'Grady says:

      Application for Leave to Appeal was never in doubt – JR – once there was a guilty verdict.
      The almost universal surprise at that verdict, at the time, reflects the experience of observers with the state of the Crown case. With respect to the poor old lawyers who had to prefer it, were I to call the case ‘abysmal’ I would be violating my own sense of accuracy. But: of course what do I know? because I/the public never saw the Complainant give evidence. And all the rest, in the event, was frippery. And – 2 things about that: it’s for that reason I write about it because this was a Triumph for the Jury; and- one person who, post-verdict was able to speak, and did speak in his Sentencing delivery, was Chief Judge Peter Kidd of the County Court – who did see it all, and has seen many trials of persons charged with sexual assault crimes. The sentencing, streamed to the public contemporaneously, was beyond impeccable – it was a model for the ages for such an exercise. And Kidd was scathing. In effect he told Pell (everyone !) : ‘You did it because you could… You knew you’d get away with it.’
      It’s worth reading and, I understand, is posted on the Internet – no reference to hand but easy to find. Date:Wednesday 13th March 2019.
      Observers from the USA are sometimes shocked to see the type of Appeal grounds as this is. In the US, they say, you never Appeal a Jury.
      I have often wondered about the efficacy of juries in modern, protracted trials – the cost and the strain. Not any more: as the world’s parliaments flex their Age of Security muscles I see, as never before, that the jury and the rule of law itself, are among the besieged guarantors of our treasured freedoms. I expect that the High Court will want to opine something similar. We shall see.

      That the 2 Justices (Gordon & Edelman) have handballed the atter to the Full Bench is unusual but not surprising. One expects that the Full Bench will want to dispose of the issues once-and-for-all with a clear direction about prosecuting public personalities (the prosecutorial decision which so-vexed the DPP at the time of Lionel Murphy’s ‘troubles’) and about the muddles which can arise over sexual assault cases, and about Victoria’s ambiguous evidence/’unreasonableness’ grounds for apeal – which probably should be repealed (s. 276(1)(a) – Criminal Proceedings/Procedure? Act. Sorry, brain under stress – about to Time-Out. Again: Chief Judge Kidd’s deliver 13th March supplies pretty much all the answers.

  4. Michael Flynn says:

    The jury decided the facts and conviction followed. If the appeal is rejected we could see George Cardinal Pell cease to be a cardinal and the appointment of another cardinal for Australia or perhaps Oceania. The options may be wider than Brisbane or Sydney. While we wait perhaps we could have Archdiocesan Pastoral Councils in Sydney Melbourne and Canberra. The Holy See could say no new cardinal in Australia until all three have an APC in place. Perhaps the Roman Pontiff will remind us canon 511 applies here now.

    • Rosemary O'Grady says:

      Thanks, Michael. You know much more about that than I do.
      Query the nature of hierarchy unchallenged. If I were still ‘practising’ I’d be hoping for something more than ‘perhaps’ … and a reference to what ‘the Roman Pontiff’ will allow!

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