The Credibility Deficit in Victoria’s Courts

One of the more pointed findings in the High Court judgment that restored George Pell’s liberty was the decision that preceded his acquittal. At the two-day hearing last March the parties had been asked what should be done if the majority ruling of the Victorian Court of Appeal was judged to be as defective as it seemed. It was late on the second afternoon and the Crown case was beyond fixing.

The Crown QC, Kerri Judd, said in that scenario the appeal would have to be reheard in full, and she didn’t care where. Her explanation was that the majority could make errors of reasoning without invalidating the jury’s guilty verdict. Typically this would mean remitting the case to a different bench of the same intermediate appeal court with a few stern directions from above.

This essay appears in the latest Quadrant.
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Chief Justice Susan Kiefel asked why the High Court couldn’t finalise the matter in deciding the appeal in front of it. Justice Virginia Bell had asked the same question, evidently without satisfaction. Justice Geoffrey Nettle wanted it decided in the national court without further remittal, whatever it required. Judd said what it required was all the evidence, and the national court didn’t have it.

The submission that the High Court needed more evidence to determine that the verdicts were unreasonable was described as “specious” in the unanimous judgment, delivered barely three weeks after the hearing:

The flaws in the Victorian judgment were laid bare under examination and included the howler just noted—the majority’s own findings effectively denied Pell had the chance to sexually abuse two choirboys in a sacristy after Sunday Mass in 1996. But the clinical brevity of the High Court correction was deceptive. There were any number of good reasons the nation’s paramount legal authority wouldn’t be subjecting the cardinal to another encounter with Victorian justice. The best was the shortest: Why would it?

The lockdown came at a convenient time for Victoria’s criminal courts. It allowed the unresolved questions about the state’s judicial leadership to be shuffled down the priority line, south of the interim settings and subject to operational requirements. The problem for the courts is that applying the law correctly is generally regarded as an operational requirement. It’s a problem because the courts are operating again and the questions are still unresolved.

You wouldn’t necessarily have known it from the analysis, but Pell’s High Court appeal was decided on the facts, law and “judicial method”. That’s extraordinary, and the divergence between the state and national court on all three was clear-cut and irreconcilable. There was no disputing which authority prevailed, nor where the reforms had to be made, and seen to be made. That was in April last year.

Pell’s acquittal produced a partisan uproar and a parade of culprits as wide as the waterfront. The fallout was furious but scattered, then swept away by the worsening pandemic. While the Premier and his senior ministers fronted Senate committees and judicial inquiries, the state’s senior courts and judges joined forces to co-ordinate a cross-jurisdictional response to the changing conditions. A shared resolve to renovate institutional processes and perceptions emerged in parallel to that primary aim. A steady stream of media releases kept the public apprised of the measures taken to manage the impact of the restrictions, the ongoing revisions to the schedule for resumption, the innovations “transforming” the delivery of justice, the commitment of Victorian courts to safe, healthy and respectful workplaces, the leadership position held by judges in society, their attitude to unethical or improper conduct (“We will not tolerate it”) and more. Sound intentions all, obviously. The worry is what didn’t make the pledge list—there has still been no acknowledgment of the need for reform or clarification arising from the High Court’s searing evaluation of their main line of work.

It is a wonder. The errors identified in the majority ruling of the Victorian Court of Appeal were not trivial missteps or technicalities. The majority were judged to have fundamentally misapprehended the role of an appeal court in assessing jury verdicts. They contrived a way to alter the standard of proof and shift the onus of establishing it. They misapplied the statutory reforms specific to the prosecution of historical sex crimes. They found independent corroboration for the claims against Pell where none had been accepted at trial. They ignored the trial judge’s directions about “compounding improbability” and its cumulative contribution to doubt. They invoked the right guiding authority but failed to follow it. They invoked the wrong authority and followed it to the letter.

The majority judgment was rife with licence but its key defects—the failure to observe the independence required of an appeal court from the jury and the de facto lowering of the criminal standard of proof—are alarming. Their significance plainly extends beyond the decision unanimously repudiated by the High Court.

The majority’s underlying error was to literally assume the perspective of the jury, with a jury’s reliance on subjective criteria such as demeanour in determining guilt and doubt. They found the alleged victim to be a “compelling” witness and detected the “ring of truth” in his video-recorded evidence, which they viewed on their own initiative in order “to put ourselves in the closest possible position to that of the jury”.

As the High Court made clear at the hearing and in its judgment, it isn’t the role of an appeal court to duplicate the function of a jury; that the jury found the alleged victim to be a convincing witness was the starting assumption. The majority’s primary task was to assess the evidence as an appeal court, with an appeal court’s regard for the factors that should condition the assessment of evidence. That means all the evidence. It also means considering the purpose and proper effect of the directions given by the trial judge under the Jury Directions Act, an area in which an appeal court might be assumed to possess an advantage. Suffice to say the majority were judged to have fallen well short of meeting these mandatory obligations. In reality, they did little more than satisfy themselves of what was already assumed, augmented by some highly subjective postulations as to how much that honest demeanour should count for in the larger calculation they had to make.

Thereafter, the rules changed. On the strength of a “ring of truth” that wasn’t obvious to the vastly credentialled dissenting judge, Mark Weinberg, the substantial body of unchallenged evidence casting doubt on Pell’s guilt was made to satisfy a higher test than our criminal justice system demands. It was made to demonstrate impossibility rather than reasonable doubt.

“The evidence of the successive witnesses served only to confirm that what ‘A’ [the alleged victim] claimed had occurred was not impossible,” the majority found, among copious expressions of the same altered standard. “The evidence once again falls well short of establishing impossibility,” they lamented elsewhere in their joint reasons. In effect, and with frequent reference to “the language of impossibility” employed by Pell’s somewhat hyperbolic trial QC, Robert Richter, they decided that the evidence had to rule out the possibility that Pell had an opportunity to offend in order to secure acquittal.

The statutory reforms introduced to address the disadvantages faced by victims of historical sex abuse in prosecuting their cases are imperfect, not least in the demands they make of juries. But they were never intended to change the standard or onus of proof, even at one remove. Their purpose was not to reduce disadvantage on one side by creating a new layer of disadvantage on the other.

The significance of the errors was compounded by the seniority of the error makers—Anne Ferguson, the Chief Justice of the Supreme Court of Victoria, and Chris Maxwell, the President of the Victorian Court of Appeal. That the leadership of the Victorian judiciary applied the wrong test to the evidence made it untenable for the appeal to be returned to the court they preside over for rehearing, as was the Crown’s desperate last-ditch submission. 

A further concern is the self-evident aversion of the two judges to over-ruling jury verdicts appealed on the unreasonable or “unsafe” ground. Professor Jeremy Gans from the Melbourne University Law School noted a six-year pattern in Maxwell’s response to arguments that the jury had drawn an unreasonable conclusion from the evidence. As Gans wrote after Pell’s (unsuccessful) first appeal:

Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty “unsafe” verdict cases, the same rate as Weinberg. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an “unsafe” verdict argument … It’s as if, at some point in the last six years, Maxwell simply stopped doubting.           

The Chief Justice came to the role with limited criminal law experience but had sided with the jury in all five such appeals she’d heard to that point. Facts differ between cases but it’s fair to wonder how many of those decisions would have survived challenge, and whether they affected the outcomes of other appeals. The reasoning of superior courts binds other courts in the hierarchy, save for the court that set this judgment aside. Only a minority of “unsafe” appeals are granted a hearing in the High Court. That’s why significant errors of method or reasoning of the kind identified here need to be pulled up by the roots and shaken in the air.

The collegial view is that the offices held by the majority judges inform their reluctance to overturn juries—Victoria is considered a hold-out in its mandatory use of juries in criminal trials. That deciding appeals on policy rather than merit could somehow be more acceptable than outright bias shows why it’s unrealistic to rely on legal practitioners to criticise the courts and judges they appear before. Nor does the bottom-lining of legal academics (“It’s a very high bar to overturning juries”, we’re repeatedly informed) tell us anything we can’t learn from statistics. It simply perpetuates the misconception that jury verdicts are near to inviolable and finding fault with them is close to sacrilege.

Most of the affront expressed by public critics of the High Court decision was founded on the same spurious faith. The acquittal would “send shivers through the entire Australian criminal justice system” according to former ABC radio host Jon Faine, retired from bullhorn duties but evidently still available for odd jobs. “They have effectively said that doubt can be entertained even when the principal witness is unshaken in their testimony,” Faine wrote in the Age.

Well, yes and no. What they actually said was that doubt can and should be entertained when the evidence of the other witnesses called by the prosecution was inconsistent with Pell having had an opportunity to commit the depravities alleged. There were twenty such witnesses. Their evidence was unchallenged. Pell’s convictions were quashed because the doubts raised by one after another of them had not been allayed, much less eliminated.

The Guardian’s award-winning Melbourne Bureau Chief and crowd-funded author, Melissa Davey, was in thrall to the same wide-eyed misapprehension. “I find it really interesting that every court who heard the victim give evidence convicted Pell,” Davey mused on The Reckoning podcast, another of her outlets. It was one of those observations that make you question the value of any observation, or it would have been if Louise Milligan hadn’t beaten her to it. “There must surely be judges at the upper echelons really questioning this decision and what it means for jury trials,” Davey told her Guardian colleague and co-Reckoner, David Marr. There’s been no evidence that judges of any rank have been doing any such thing. What it means for jury trials may be better inferred from a remark made by Weinberg when taking pity on the Crown’s hopelessly tongue-tied counsel, Christopher Boyce, during the Victorian appeal. “If it helps, Mr Boyce, I’m on record in my judgments as saying that juries almost always get it right,” the judge told the floundering QC. “But the word is almost.”

As you’d expect, Marr saw a powerplay in the whitewash. The High Court was pushing back against the incursions of technology into its previously untrammelled authority to do as its reckless fancy determined. “That old doctrine is being crushed by the capacity of appeals courts to actually see what the jury saw,” Marr said, presumably in reference to the seminal innovation of video-recorders. “The High Court is clearly hankerin’ for the old days when all that appeals courts ever had to go on were the bare words of the transcript.”

Who would have thought, back in the 1990s, that it would one day be possible to video-record witness evidence at the trial and then replay it later so that appeal court judges like Ferguson and Maxwell could “put ourselves in the closest possible position to that of the jury”? Whoever it was clearly rated collective decision-making, broad life-experience, public legitimacy and the other virtues extolled of juries less highly than did the Victorian judges, for whom “it can be said with confidence that no advance in technology can ever replicate the unique features of jury deliberation and decision-making”.

Marr claimed to have picked up word of the acquittal before it was even decided while wending his way around the Sydney bars—a benefit not available to rivals in Melbourne, where bars were an early casualty of the lockdown. But anyone who has shared a media reserve with him knows that most of what happens in the crucibles of real power simply confirms what he already knew, or suspected. How, we can’t begin to imagine. The guy just knows stuff.

One of the missed chances of this serialised travesty was the failure to take advantage of the educative platform offered by its purchase on the public attention. Juries make mistakes, and when they do they can and should be overturned. The fact that most jury verdicts appealed on the “unsafe” ground survive challenge makes it more likely that those that fail do so for good reason. Juries don’t give reasons, so the detailed judgments of the appeal courts that endorse their verdicts in error and then set them aside can help the interested public understand how reasonable doubt and its absence are properly decided. The standard to be applied is the same for an appeal court as for a jury. The High Court authority guiding its application is definitive—“a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced”. Deciding what is open to the jury isn’t meant to be an “intuitive” exercise, at least not in the imaginative sense described in the majority judgment. The question isn’t whether the jury’s conclusion was plausible, as you might assume from the majority’s reasons. It’s whether the evidence said to establish guilt eliminated the reasonable doubts raised by the evidence to the contrary.

In this case it plainly did not, and finding otherwise has done no favours to the victims of historical sex abuse. More likely it will deter victims with stronger cases and better prospects from prosecuting them. The critical work of further law reform is made more complicated by the misapplication of existing reforms. The public is confused.

That the majority also managed to trip themselves up on their own findings of fact was an embarrassment which doesn’t enhance public confidence in the state’s judiciary. The timing of the post-Mass “interval of decorum” which they believed gave Pell the five to six minutes necessary to sexually abuse two choirboys in the cathedral sacristy was an inference drawn in error and contradicted by the evidence. The interval was a weekly ritual allowing congregants a few minutes for private prayer before the clearing of the sanctuary began. From that point on, traffic between the sanctuary, the sacristy and the adjoining areas would have been constant. As explained in the High Court judgment, A’s account would have had the two breakaway choirboys arriving at the sacristy within one-to-two minutes of the dozen or so altar servers bookending a sixty-strong procession headed for the same destination. The altar servers’ ceremonial duties ended with a bow to the crucifix in the sacristy, whereupon the ferrying of items used in the service and general tidying up would proceed under the supervision of the sacristan. The evidence of the witnesses in the best position to say was that the formal procession and the private prayer time were overlapping and not consecutive rituals. That evidence was not challenged. Nor was any credible explanation offered as to where the altar boys could have been during the inexplicable five-to-six-minute hiatus that no one remembered happening anyway. To the number of coincidental one-offs that had to align in order to permit the possibility of an opportunity was added another that challenged the laws of physics as well as state, and created a new set of improbabilities to explain away. It was the sort of slip-up that happens when improvisation obscures plain sight, but has little consequence beyond the case.

It was a perversely revealing error, nonetheless. In the first place, the evidence gave the majority no reason to conclude that it was “quite possible” Pell had an opportunity to offend in the manner or circumstances described. In the second, it shouldn’t have mattered anyway—you can’t convict on “quite possible”. Or can you?

Refraining from public comment is almost always the right policy for judges. But the word, as they say, is almost. Confusion about the criminal standard of proof and the role of an appeal court in assessing jury verdicts is not best resolved by public debate. Nor can the issue be avoided under cover of a crisis. But it does need to be resolved if Victoria’s judiciary is to “reflect the trust and confidence the community places in us”, as their leaders reckon it to be. The errors require public acknowledgment because that’s the best guarantee they won’t be repeated. The leadership needs to show that the lessons have been learned, and they need to do it soon.

For once, the public really does need to know.

Such was the view expressed in Quadrant Online in early January. It was done about as diplomatically as a citizen’s obligation allowed, given the prevailing uncertainty and the persistence of the misconceptions further undermining the legal terra firma. It wasn’t a call for the removal of the chief justice or president. The working presumption was that the two senior judges in the jurisdiction had fallen into error in an otherwise unimpeachable attempt to discharge their duties. Serious error, to be sure, and public enough to warrant some reassurance that the fundamentals of criminal justice hadn’t been turned upside down, the stumps knocked out from under the house. But error nonetheless.

Even so, there was no good reason the public assurance sought couldn’t be provided by the start of the new court year, and every good reason it should be. There hadn’t been a criminal trial for seven months. The Supreme Court has a well-resourced media centre. There was ample time and wherewithal to fashion a statement clarifying the separate functions of the jury and the court, and confirming that the latitude properly allowed to those alleging historical sex abuse does not require those accused of it to prove the allegations impossible. However believable the witness, you can’t convict on possibilities. But cases can be complex and this one was uniquely so. Errors made in good faith don’t threaten the integrity of the courts. If that’s all there was to it, so be it.

Unfortunately the more scandalous possibility is all too realistic. The impression that Ferguson and Maxwell went to quite considerable lengths to uphold an unsafe jury verdict is surprisingly common, and not without foundation.

Their reasons for judgment ring no truer at a second reading. There are the same false assurances, the same vacillation. “It’s the very inscrutability of the [jury] verdict that is its most striking feature,” Maxwell had ruminated back in 2019, the frown betraying not only his grim estimate of the task ahead but some confusion about the nature of its demands.

It’s a matter of conjecture whether the majority really believed that deciding what was open to the jury would entail getting inside the jury’s head or if that possibility was a kind of rhetorical safehouse they kept handy for convenience. After all, it was only if they were in any doubt about Pell’s guilt after conducting their own independent evaluation of the evidence that they were obliged to consider the jury’s position, and then only its known advantages, not its inscrutable depths. The majority said their own inquiry had left them in no doubt as to Pell’s guilt, so the question should have been academic, and it would have been but for the other nagging difference Maxwell had noted earlier: “We have to give reasons. They don’t.” It was the tangle of knots they tied themselves in while trying to come up with defendable reasons for their judgment that raised serious concerns about the majority’s impartiality as well as competence.

The signs of contrivance are pervasive. The prescribed test and judicial method required of them in applying it are laid out with meticulous care, as though to vouch for the unbending rigour to come. The authorities are cited and the two-step process explained. The appearance of stringency and caution is a priority, clearly.

The pretence doesn’t hold. No sooner have the majority glossed over the court’s mandated independence from the jury—the first step—than the testimonials to the jury commence in earnest. It’s quite a rhapsody, considering its irrelevance. The incomparable advantages of juries over appeal courts in determining guilt are detailed at exorbitant length and then casually disavowed, in brackets, as having had no bearing on their own decision (as “we do not experience a doubt”). That’s unlikely, not to say suspicious.

So is the framing of their task as “a purely factual” inquiry. The Jury Directions Act was critical because its provisions are specific to cases of alleged historical sex assault. The instructions given to the jury under the Jury Directions Act reflect the circumstances particular to historical abuse cases and their possible effects on the character of witness evidence. Their purpose upon being invoked by the trial judge was to guide jurors in assessing the veracity of what might otherwise have the characteristics of “unreliable” evidence.

Those instructions are necessary but they’re not necessarily as instructive to a layperson as to a lawyer. For example, the trial judge identified six sources of “significant forensic disadvantage” caused to Pell by the decades-long interval between the occurrence of the alleged abuses and the reporting of them. Jurors were instructed to weigh these in Pell’s favour, just as they would have been directed to “have regard” to a good many other considerations relevant to their task of assessing all the evidence and reaching a verdict.

Practically, how or whether a jury actually does this is unclear, and not only because juries don’t give reasons. In this trial there were difficult increments to factor into the calculus of guilt and doubt. The first jury couldn’t reach a verdict even with the option of deciding the case on a high-majority basis. The second took four days. Some of us struggle to understand city parking signs and flatpack assembly instructions. The forensic equation is not simple mathematics. The product rule of compounding improbability is not general knowledge. But in this case both were pivotal to the measuring of doubt. The task facing the jury may have been as complicated to grasp as to perform, in short.

The Court of Appeal majority had no such excuse. They knew the delay cost Pell any chance of establishing an adequate factual basis for his defence, among the other disadvantages identified by the trial judge, and professed to “have kept those matters firmly in mind”. Beyond saying the words, there’s no indication they did. They accepted there were church practices followed week after week which left no opportunity for offending, but weren’t satisfied because “no witness could say with certainty that these routines and practices were never departed from”. None seriously said they were, either. Nor did they have to.

The majority discounted Monsignor Charles Portelli’s specific recollection of standing beside Pell on the steps of St Patrick’s Cathedral at the time of the alleged sacristy assault because of Portelli’s irrelevant uncertainty about less-memorable activities from the same day, two decades earlier. They regarded the former chorister who doubted the two fellow choristers could have left the procession unnoticed as an honest witness but gave no weight to his evidence because “it was only an opinion”.

They found “substantial mutual support” across the totality of the opportunity evidence but rejected the opportunity defence on the basis that no fractions of that whole, assessed individually, ruled out the possibility that Pell had an opportunity to offend. That this possibility of an opportunity required at least four departures from standard or mandatory practices to have occurred independently of each other, more or less simultaneously, was not addressed. Disposing of each solid obstacle to conviction in isolation allowed the majority to ignore the collective weight of all of them. Its way of minimising doubt.

They were more accommodating when it came to applying the suggested allowances the other way. Plausible unreliability was transformed into a kind of higher reliability. A’s uninterest in explaining the inconsistencies, alterations and gaps in his account was construed as evidence of his “authenticity” and therefore of Pell’s guilt. “The overall impression” of truthfulness the jury had been invited to form of the prosecution’s only witness from seeing and hearing his evidence was accepted by the majority, even though seeing and hearing his evidence wasn’t their function. And no wonder. It was all they had. That doesn’t mean A wasn’t a convincing witness. But it does mean it wasn’t enough to send a man to jail, or keep him there.

It’s clear from other rulings of the same court made on the same “unsafe” ground that not all Victorian judges are as convinced of the intrinsic rectitude and accuracy of juries as the leadership. It’s also fair to assume you wouldn’t know or care unless you were a legal researcher with a special interest or a regular citizen with perverse reading habits. But it’s the leaders who are the outliers. There was little that was orthodox in what they did.

Weinberg’s misgivings at finding himself unable (“in good conscience”) to fall in behind his superiors suggests it is no easy thing to stand at odds with the leadership even when you’re on firm ground. A judge of less impregnable stature may have found it more difficult. The Law Council treated the emphatic High Court rejection as little more than a “let’s agree to disagree” scenario, seriously unexceptional rather than exceptionally serious.

Well, it’s not. The courts need the confidence of the public more than the collegiality of the profession. And the public still needs an explanation.

David Ward has a qualification in Justice Administration. He worked at the Federal Court for ten years, assisting in numerous trials and appeals. He has reported for mainstream magazines on cases of significant public interest, and witnessed the two appeals discussed in this article in their entirety