A Jewish friend once remarked to me that when a pope dies, everyone becomes an expert on papal elections. We now see a similar reaction when a cardinal goes to jail. The press is full of nonsense written by people who do not know the law and have not seen the evidence, but who rely on named academics or practising lawyers who are generally not named. Two of the worst instances in The Australian on Saturday led me to write the following letter to its editor.
It is not surprising that Peter Van Onselen is ‘staggered’ by the certainty of opinion of some commentators.
Paul Kelly is not a lawyer and has not seen the evidence, but he says that Pell ‘should not have been brought to trial on the second incident let alone convicted.’
Mr Kelly also says that the word of the victim was ‘accepted over that of Pell.’ That is at best misleading. Pell denied the allegations to the police. He did not give evidence at the trial. The victim gave evidence on oath and was cross-examined at length. The accused chose not to allow the court to hear and test his sworn evidence.
Gerard Henderson says that the argument for the option of a trial by judge alone ‘is never more evident than in this case.’ While Mr Henderson may not say so in terms, the premise of the argument appears to be that Pell ‘could not be guaranteed a fair trial if [his] guilt was assessed by a jury.’ The necessary implication is that the jury here did not discharge their oath and give a fair verdict. Does Mr Henderson wish to extend that condemnation to the two justices of appeal who agreed with the jury?
My understanding of the majority judgment is set out in the note that follows below. Much has been made of the fact that the minority judgment was written by a lawyer who practised in criminal law. The assumption appears to be that that fact makes him better equipped to deal with this kind of appeal. Even in The Australian Financial Review, we find its Legal Editor saying:
A leading criminal barrister speaking on background describes its reasoning as impeccable. ‘You would be on pretty safe ground following Weinberg,’ says another.
The most common observation by those concerned about the verdict – and its sole reliance on testimony by a victim 20 years after the event – is that Weinberg got it right because he had the most experience in criminal law.
It’s unfair on his fellow judges – Chief Justice Anne Ferguson and Court of Appeal president Chris Maxwell – but it’s also true.
Put to one side the reference to ‘sole reliance.’ Generalisations about any form of governance are at best shaky, but if the suggestion is that criminal lawyers make better appellate judges in crime than others, the suggestion is not consistent with the legal history of Australia – or England. Which may be just as well in the present case, since, as I understand it, of the seven justices presently on the High Court, only two have directed juries in crime, and the last epithet you would apply to one of those is ‘specialising in the criminal law.’
It is very distressing to see a sectarian divide that for most of us died a generation ago now being fanned into flame again. The judges are used to copping flak, even when loaded with impertinence and ignorance, but you might spare a thought for the jurors in this case. They sat through a long and hard trial and then wrestled for days with their decision. They are now mocked and derided by people whose prejudice is manifest and who know not what they do.
One thing seems clear. People have, for better or worse, made up their minds, and nothing the High Court does will change them.
Majority Judgment in Pell
- I have read the judgment, but not word for word. It is very long and involved. I make three general observations. First, all this is so far removed from my practice in the law that it is quite possible that everything I say is entirely unfounded. Secondly, the complexity of our procedure is shocking. The trial judge plainly earned the praise of the appellate judges. (Par. 17: ‘As the parties acknowledged during the hearing, his Honour’s charge was exemplary. Like his conduct of the entire trial, it was clear, balanced and scrupulously fair’. ) Our trial process is close to being unmanageable. I am surprised more trial judges don’t break down under the load. (Nor are appellate judges free of stress – see the discussion of ‘deference to the jury’ at pars. 105 – 109.) Thirdly, some of the discussion about assessing witnesses suggests that I may not always have done it by the book in thirty years of trying issues of fact.
- Subject to those disclaimers, I comment as follows.
- The extracts of the evidence of the complainant suggests that he was a devastatingly articulate witness. And a brave one. Potentially – and, actually – lethal.
- The response of the defence was in the alternative. The complainant’s story was either invented or a fantasy. And in any event, it was impossible.
- There is a difference between an imagined account and an invented one, a deliberate lie and a fantasy (pars 68-73). As I see it – and I may be wrong – the problem with this defence is that the defence did not suggest a motive for the lie and did not explain the hallmarks of a ‘fantasy’ to the jury or the Court of Appeal. (My shorter OED has: ‘Imagination; the process, the faculty, or the result of forming representations of things not actually present.’) Even allowing that the onus remains on the Crown throughout, it is hard to see how a tribunal of fact might deal with this argument when each part has a doubtful footing.
- On the impossibility ground, it looks to me like Walker wanted to back away (116) but the majority (126) held him to it saying ‘the defence had made a considered forensic decision to express this part of the defence case in the language of impossibility.’
- The majority thought the Crown therefore had to prove a negative – that its case was not impossible – and that the evidence and submissions of the defence revealed only uncertainty and imprecision. The difficulty then can be seen here:
‘171 The point is, we think, powerfully illustrated by the fact that both parties filed substantial summaries of evidence in support of their respective appeal submissions. The schedule attached to Cardinal Pell’s written case ran to some 44 pages, summarising the evidence said to reinforce the ‘obstacles’ identified in the written case. The Crown’s responding table ran to some 32 pages. Shortly before the hearing, Cardinal Pell’s representatives filed nine individually-bound volumes which incorporated, with respect to each topic, both sides’ contentions and the relevant transcript extracts. The Crown responded with a document of its own, running to some 37 pages, which senior counsel handed up during oral argument.
172 Having reviewed this extensive documentation, we make two points about it. First, it demonstrated that on almost every point both applicant and respondent could find one or more statements in the transcript which supported their respective contentions in the appeal. Given what we have already said about ‘ebb and flow’, this is unsurprising.
173 Secondly, the fact that each side could call in aid such a substantial body of material drawn from the evidence reinforces our conclusion that the jury were not compelled to have a doubt. That is, there was room for debate about the effect of the evidence — both of individuals and as a whole — on almost every point. More importantly, there was always a well-founded and proper basis for rejecting evidence that conflicted with the central elements of A’s account of the offending.
174 Having reviewed all of the schedules of evidence and material placed before us on this appeal and having reviewed the evidence for ourselves, we are not persuaded that the jury must have had a reasonable doubt about the guilt of Cardinal Pell.’
- That does not look like High Court material to me.
- I noticed that the Court of Appeal had previously considered an offence committed in ‘circumstances of remarkable brazenness’ (101). The defence to me at times sounded a little like a scattergun – ‘we have so many bullets to fire that one of them must be lethal; alternatively, the enemy cannot survive their cumulative effect.’ (For some reason, I am reminded of the trial of the Earl of Strafford – I will look it up.* Things were simpler and quicker back then.)
- I was amazed to read that Pell in his prepared statement to the police, was permitted by his lawyers to say:
‘They’re[the charges are] made against me knowing that I was the first person in the Western world to create a church structure to recognise, compensate and help to heal the wounds inflicted by sexual abuse of children at the hands of some in the Catholic church.’
It takes your breath away, and it is precisely the kind of response that would have animated the discussion about whether the accused should give evidence. Pell may as well have plastered a target down his front and pointed at the bull’s eye. My suspicion – and it is no more than an a suspicion of a lay amateur for this purpose – is that this failure of the accused to stand up may have lead the jury – which, we are told, included a church pastor, a mathematician and a tram driver: a group of people who would not be likely to think in the same way as senior judges – to think that this was a case of honesty and innocence against money, power and ingenuity. But that of course is the most idle speculation – and thank God juries do not have to give reasons.
- In any event, Pell’s lawyers have a hard road ahead.
*Strafford was impeached and charged with treason. The Crown – which did not lose many of these treason cases then – alleged many instances of conduct adverse, they said, to the Crown. Strafford argued that no one instance constituted treason. With what Miss C V Wedgwood described as ‘wearisome reiteration’, Pym asked the peers to ignore what Strafford said about single articles and look on the charge as one of ‘constructive treason.’ But Strafford was winning the argument, and the Crown – I should say Strafford’s enemies – proceeded against him by a bill of attainder. Then it got really ugly. Oliver St John spoke in a ‘viciously vindictive manner’. Honourable game was protected by rules of sportsmanship, but ‘it was never accounted either cruelty or foul play to knock foxes and wolves on the head…because they be beasts of prey.’ Strafford lost his head and even Macaulay and Churchill said that this was not cricket.
Later on Thursday Israel’s Interior Ministry announced that Mr. Netanyahu had decided to deny entry to the two American lawmakers, on grounds of their ‘boycott activities against Israel’ and in accordance with the country’s anti-boycott law.
New York Times, 15 August, 2019.
A law against boycotts is an interesting defence of a boycott.
‘We’re in favor of trade peace on the whole,’ Mr. Johnson told the president, in a mild-mannered rebuke of Mr. Trump’s embrace of tariffs as a bludgeon against allies and adversaries alike.
The New York Times, 26 August, 2019
Outside ‘the whole’ is a different matter.
Some sense in The Australian:
It’s not a matter of whether it’s ‘virtue signalling’ or which side of politics you’re on, but it’s a matter of insurance, and risk, both at a global and individual level.
At some point soon, insurance will become expensive and hard to buy. Governments and companies need to move from trying to prevent climate change to dealing with it, and that should probably begin with thinking through what happens if we lose the insurance industry entirely.
Alan Kohler, The Australian, 20 August, 2019.
The rest know that Kohler is therefore an ‘alarmist.’