State institutions have good and bad pandemics like war correspondents have good and bad wars. The lockdown came at a convenient time for Victoria’s criminal courts, where jury trials quietly resumed last month. 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 George 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 corrections had to be made, and seen to be made. That was in April.
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 Premier Daniel Andrews and his senior ministers fronted Senate committees and judicial inquiries, the state’s senior courts and judges joined forces to coordinate a cross-jurisdictional response to the changing conditions. A shared resolve to renovate institutional process 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 technical innovations “transforming” the delivery of justice, the commitment of Victorian courts to safe, healthy and respectful workplaces, the leadership position held by judicial officials in society, their attitude to improper and unethical behaviour (“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 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 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 license but its two signature defects – the failure to grasp the supervisory nature of an appeal court’s role and the effective lowering of the standard of proof required for criminal conviction – 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. Suffice to say they were judged to have fallen some way short of meeting this mandatory obligation. In reality, the majority did little more than satisfy themselves of what was already assumed, augmented by some highly subjective postulations as to what that truthful demeanour could 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 counsel, Robert Richter QC, 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 disadvantage 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 category of disadvantage on the other.
The significance of the errors was compounded by the seniority of the error-makers – respectively Anne Ferguson, the Chief Justice of the Supreme Court of Victoria, and Chris Maxwell, the President of the Victorian Court of Appeal. That the effective leadership of Victoria’s judiciary applied the wrong test to the evidence made it untenable for the appeal to be returned to the court they preside over for re-hearing, as was the Crown’s last-ditch submission to the High Court.
A further concern is the self-evident aversion of the two judges to overruling jury verdicts appealed on the unreasonable or “unsafe” ground. Professor Jeremy Gans, of Melbourne University Law School, noted that Pell’s appeal was Maxwell’s 36th consecutive rejection of the argument that a jury had drawn an unreasonable conclusion from the evidence. Gans has written:
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’s. 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.— A Judge’s Doubts, Inside Story, August 29, 2019
The Chief Justice came to the role with limited criminal law experience but had sided with the jury in all five such appeals she had decided 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 effected the outcomes of other appeals. The reasoning of superior courts of record binds other courts in the hierarchy, save for the court that set this judgment aside. Not too many “unsafe” appeals get 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 informs 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 they appear in. Nor does the bottom-lining of some legal academics (“It’s a very high bar to overturning juries”) tell us anything we can’t learn from the 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 public affront at the High Court decision was founded on the same spurious faith.
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 important to explain the flaws in those that fail. Juries don’t give reasons, so the detailed judgments of courts that first endorse them in error and then set them aside can help the interested public understand how reasonable doubt or its absence is properly decided. The standard to be applied is the same for the jury and appeal court. The guide to applying it on appeal is set out in the agreed HCA authority – “a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.” It isn’t meant to be an imaginative or “intuitive” exercise, at least not in the sense described in the majority judgment. The question isn’t whether the jury’s conclusion is plausible, as you might assume from the majority’s reasons. It’s whether the evidence said to establish guilt eliminates 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 the existing reforms. The argument for mandatory juries is less compelling for the experience of this exceptional case. 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 judiciary. The timing of the post-Mass “interval of decorum” which they believed gave Pell the five-to-six minutes necessary to commit the alleged abuses 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 adjoining areas would have been constant. As the High Court correctly found, 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 60-strong procession headed for the same destination by a different route. The evidence of the only witnesses in any position to know was that the formal procession and the private prayer time were overlapping and not consecutive rituals. The altar servers’ ceremonial duties ended with a bow to the crucifix in the sacristy after the procession. None of that evidence was challenged. Nor was any theory offered as to where the altar boys could have been during the inexplicable five-to-six minute hiatus that nobody could remember happening anyway. It was the sort of slip-up that occurs when improvisations obscure 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 criminal courts are to “reflect the trust and confidence the community places in us”, as their leaders reckon it to be. The errors require public acknowledgment because it’s the best guarantee they won’t be repeated. The state’s judicial leadership must make sure that happens before the start of the new court year.
For once, the public really does need to know.
David Ward has a qualification in Justice Administration from Swinburne University and worked at the Federal Court for 10 years, assisting in numerous trials and appeals. He has reported on cases of significant public interest for mainstream magazines and witnessed the two appeals discussed in this essay in their entirety