Here and there – The Cardinal’s Gambit


The controversy about the conviction of a priest for child abuse has revealed a lack of understanding of some aspects of our law.

The trial process

For us, a criminal trial is not an inquiry into truth by any means.  Unlike French or German courts, we do not engage in an inquiry after truth.  We inherited the adversarial system.  A trial involves putting some issue to the test.  In a civil action, the question is not what in truth happened, but whether the version of one side is more probable than that of the other.  The person complaining has the onus, and the standard of proof is the balance of probabilities.  In a criminal trial, the issue is not what in truth happened – we leave that to God – but whether the prosecution has proved beyond reasonable doubt that the accused committed the crimes alleged against him.  The great legal historian F W Maitland put it this way.

We are often reminded of the cricket match.  The judges sit in court, not in order that they may discover the truth, but in order that they may answer the question ‘How’s that?’….But even in a criminal case, even when the King is prosecuting, the English judge will, if he can, play the umpire rather than the inquisitor.

In our High Court, Justice Dawson said this about a criminal trial:

A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted, and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side.  When a party’s case is deficient, the ordinary consequence is that it does not succeed.


We will revisit the cricket umpire, because the analogy helps on a critical issue in this discussion.

The role of the jury

The jury is for our criminal law what our parliament is to our legislature and executive.  It is the way that we the people get to make the really big decisions that govern our lives and very freedom.  The jury is fundamental not only to our doctrine of the rule of law but to our democracy.  People who are not dewy-eyed say that the jury is a central pillar of our freedom, and the reason why we have not succumbed to revolution or dictatorship.  It follows that anyone seeking to undermine this part of our constitution should be closely watched.

Members of the jury are summoned and sworn to give a verdict on the evidence (veredictum or ‘truly said’).  This process goes back to Magna Carta in 1215.   Magna Carta provides that the Crown (the government) shall ‘not go after or send for’ any free man except by ‘the lawful judgment of his peers or by the law of the land’.  Scholars may argue about whether we are talking of legal process, or brute force, but we all know what it feels like to have government – the Crown – come after us or send for us.  And if the Crown really goes for us and wants to put us in jail, we have this right to take our stand upon our country.  We will not go to jail on the mere say-so of some bureaucrat, or even a judgment of one of Her Majesty’s justices, unless twelve of our neighbours have found that we are guilty of having committed a crime.  In the gorgeous language of old, the Crier would tell the jury that by pleading Not Guilty the prisoner ‘has put himself upon God and the country, which country you are.’

So, if you are chosen to go on a jury in Victorian court, you stand for and represent the people of the State of Victoria just as surely as does its parliament.  That right must be as precious to you as it is to the accused, since one day you might be the accused.  If you are chosen for jury duty, then, lap it up, because in that office, you are as high and mighty as any minister, justice, or prelate in the land.

We need to bear all this firmly in mind when we come to the role of judges in dealing with the verdict of us the people sitting as a jury.

The right to silence

If you are charged with having committed a crime, you do not have to say anything to the police, and you are not obliged to give evidence in court.  If you don’t, you can’t be cross-examined, or make a public fool of yourself.  There is a lot of law on what might be said in court about the exercise of that right – generally very little.  Nor would an appeal court comment on the election of the accused not to give evidence.

What is the jury to make of an accused who chooses to say nothing in court?  You know as much about this as I do.  We are not allowed to quiz jurors about what they do.

Take a hypothetical.  You are on a criminal jury.  A youngish housewife claims that she was indecently assaulted by a surgeon, a big strong man in his forties.  She gives her evidence calmly and persuasively, although she is very distressed at having to go through this.  She is cross-examined and called a liar – for hours that turn into days.  You can’t believe it, and you are looking forward to see how the surgeon goes when it’s his turn.

But he doesn’t front!  He is asking you to reject her testimony, but he won’t let you get you get even near him.  What do you think of that?  How does this sit with your notions of fairness – or fair play, even?  Why should you not accept the sworn evidence of a witness who has been tested and not broken, and which no other witness has contradicted?  He’s a big strong man, better educated than most of us, used to high office and public responsibility – why couldn’t he go in against the little house-wife who makes this complaint against him?  Have the surgeon and his expensive lawyers been just too big for their boots?

What we can say is that if the surgeon had sought to pursue that course before a disciplinary tribunal in his profession, he would have had the door slammed in his face.  With extreme prejudice.

The appeal court

If the last point was tricky, the next is downright murky.

The law says that a court of criminal appeal rehears the case, but it does not rehear the case in a way that you would understand that term.  Crucially, it does not get to see and hear the witnesses as they give their evidence.  It operates on written transcripts.  It has access to video recordings of the evidence, but they are not the same as being in the courtroom when the evidence was given.  In a case that turns on the credit of witnesses – which this case is – that is a real handicap.

Any trial lawyer or judge knows that the whole mood of a case can turn around in a moment with one pause or gesture of a witness – that does not show up on transcript and which may only be partially caught on video replay.  The movie was not entirely silly when it referred to the ‘vibe’.  Trial judges get very annoyed when they get castigated by appellate judges – some of whom have never conducted a jury trial – who say that the trial judge got it wrong when those appeal judges were not there in court at the time to catch the vibe.

A convicted person can appeal if the judge gets the law wrong in directing the jury.  But the law also permits an appeal court to allow an appeal if it concludes that the verdict of a jury is unreasonable or cannot be supported on all the evidence – even though there was, as a matter of law, evidence upon which the accused could have been convicted.

The statute that confers jurisdiction on the Court of Appeal says that court must set aside a verdict if ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’ or if ‘for any other reason there has been a substantial miscarriage of justice’ or if ‘as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice’.

There are reams of law about the powers of the appellate court in dealing with a submission that a verdict is unreasonable or cannot be supported by the evidence.  It is all made by judges and it is about as easy for you – or, for that matter me – to follow as Kant’s refutation of the ontological argument for the existence of God.  But I hope that I have said enough to allow you to see the two problems in this kind of appeal that were referred to by Justice Brennan in the High Court (in a case involving a dingo):

If Ratten [a preceding case] were to be taken as requiring a Court of Criminal Appeal to set aside a conviction whenever the evidence given at the trial leaves that court with a reasonable doubt about the appellant’s guilt, the function of returning the effective verdict would be transferred from the jury to the court – a course which would at once erode public confidence in the administration of criminal justice and impose upon the court the impossible burden of retrying every appeal case on the papers.

The law is clear that the judges cannot overturn a jury verdict just because they don’t agree with it, but how bad the verdict must look before they can overturn it is about as clear as the doctrine of the real presence.

But fundamental to the case of the cardinal is that the appeal judges will not have seen the witness or heard the evidence as it was given on which the whole case turned.   They will have heard the case ‘on the papers’ with access to video replays,  but it will be difficult for appeal judges substitute their judgment for that of the people the law says must give that judgment and who are the only relevant officers of the court who have heard the critical evidence as it was given.

If you think that we are like Medieval Schoolmen asking how many angels are dancing on the point of a needle, it gets worse.  I am given to understand that by agreement between the parties, the jury in the second trial watched a replay of the complainant’s evidence in the first. That will surely lead to an argument that Court of Appeal is in the same position on the critical issue as the jury.  Only God knows what the answer may be.

May I go back to the cricket umpire?  His decisions are now subject to review by video replays and other technical aids.  The third umpire is then in a much better position than the umpire on the ground to review and test a wide range of evidence and to take his time to analyse the original decision.  In a criminal trial that turns on credit, the position is very different.  The appeal court is in a  weaker position than the jury to evaluate the evidence.  (Subject of course to what I have said about the course of this case, and I may add that many people think that TV replays in sport inflame more arguments than they settle – and you may well see a similar reaction here if this appeal were to succeed.)

It follows that in a case like this, a convicted person seeking to persuade an appeal court that the verdict of a jury was unreasonable or unsafe is standing at the foot of a  large mountain.

And that’s before you start to count the various ways that turmoil might reign if judges were seen to overturn this verdict of the people – and release a prisoner convicted of vicious crimes.

The critics of the verdict

You may then see why I and other lawyers do not accept criticism of this verdict from people who have not seen or heard the evidence on which this jury acted – after very long deliberation.

Of course, the Crown carries the burden of proof from the outset, but when the evidence is in, and a case fit to go the jury is made out, the picture shows a different complexion.  You don’t have to look far before you find in works of authority propositions like  ‘Presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts’ and ‘That presumptions have no place in the presence of the actual facts disclosed to the jury…is held in many cases.’

Some critics expressed surprise that a person could be convicted on uncorroborated evidence.  How many traitors, murderers, rapists, drug dealers or thieves go out of their way to ensure that a third party is present to witness their crime?

The critics appear to come in three platoons.  One is from members of the same faith who look like they are victims of a schism that the rest of us hoped had died away with the Split and the DLP.  Another is from people in high places who have associated with the prisoner and who for reasons that are beyond me are willing to give their public support to another person who was in a high place, but who  is now in jail, having been found by those representing the rest of us to be a vicious criminal.  The third platoon is that part of the media that lives off the earnings of conflict and controversy.  They are just base tarts.  Predictably enough, most come from the Murdoch stable, which is about as rational and honest on this issue as it is on climate change; and worse, that paper fairly throbs with sectarian bias.

You might also notice two things that these critics have in common.  One is that they are all infected by prejudice of one kind or another.  The other is that while the jury acted on evidence, its critics are happy to level accusations at the jury without any evidence at all.

In The Weekend Australian, Mr Gerard Henderson had a piece headed ‘Pell’s ordeal reinforces the case for judge-only trials.’  Fine, a jury convicts a priest, and Mr Henderson says that is enough to reverse 800 years of history and get rid of juries – at least for powerful and well publicised accused persons.  Big hitters should have their own law.

It must follow that Mr Henderson must think that no one in the U S can ever get a fair trial, because over there the press are not subject to the restraints imposed on them here.  There is also the lordly disdain for the intelligence of the ordinary Australians who make up our juries.  Mr Henderson says that ‘the coverage of such an event could only further harm Pell’s reputation, already damaged by years of hostile allegations…’ and he begins his conclusion with these words ‘The media’s intervention in the legal system should be a matter of real concern…..’  And that’s from a man writing in a paper which is leading the charge to get the conviction of this priest overturned.

The prejudice of Mr Henderson shows not just a lack of compassion.  It looks downright cruel.  As far as I can see, there is not one word about the ordeal of the victims.  Rather, Mr Henderson is concerned about the damage to the reputation of the prisoner.  Yes, it is frightful – but Pell has brought almost all that damage upon his own head.  What about the damage to the lives of the victims?  One boy went to find Christ and met rape, heroin, and death.  OK, let’s focus on the reputation of the man found to have been the cause of the ruin and the end of that life.

It’s as if those in the Church have learned nothing.  In the last generation or so, there has been a sea change across the western world in our attitude to crimes committed by people in power against those in their charge.  We now encourage them to come forward and we seek to support and protect them when they have the courage to do so.  We are seeking to prevent people in power ducking for cover under cover of legalism, sophistry, or, heaven help us, a power pack demonstration in place of sworn evidence.

Mr Henderson wants none of it.  He doubtless thinks that Becket was properly made a saint for keeping his priests immune from royal justice.  Indeed, on a bad day, some of the supporters of the prisoner George Pell might remind us of Donald Trump launching into Robert Mueller for conducting a witch hunt.  It could be straight out of Kafka.  The Castle has a line: ‘One of the operating principles of the authorities is that the possibility of error is simply not taken into account.’

I am sorry that this note is so long, but the issues are serious and difficult.  I have tried to stay objective, but I fear that the anger that you will have detected has got the better of me.  The phrase ‘speaking truth to power’ has become a cliché.  But now we have to accept that power speaking to falsehood has become a tawdry fact of life.

If you want to know my view, it is this.  The cardinal played his hand and lost.  Call the next case in the list.  We have spent far too much time on this case already.

Geoffrey Gibson

5 March, 2018.

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