Inside Story

Pell’s judges

This week’s Court of Appeal hearing won’t necessarily be the last word

Jeremy Gans 3 June 2019 3095 words

George Pell arriving at the County Court in February this year. Andy Brownbill/AP Photo

Meet the twenty-fifth, twenty-sixth and twenty-seventh people assigned to judge whether there is proof beyond reasonable doubt that Cardinal George Pell raped two children in 1996. They are all high-flyers. Chris Maxwell won a Rhodes scholarship for philosophy and football, eventually returning from England to study law. Anne Ferguson and Mark Weinberg both topped their classes at Monash law school and went on to England, where Ferguson obtained a doctorate and Weinberg again topped his class, this time at Oxford. These successes prompted the career choices — barrister, solicitor, prosecutor — that allowed them to be appointed to Victoria’s top court.

By contrast, although the first twenty-four people to judge Pell’s guilt or innocence have never been named, we know they weren’t lawyers. Or politicians, cops, public servants, criminals, bankrupts, mentally ill or otherwise barred from sitting on a jury of Pell’s peers. That aside, the first twenty-four owe their right to sit in judgement over Pell entirely to luck.

As one of more than four million or so voters on Victoria’s jury list, each was assigned to a pool of thousands slated to do jury service in Melbourne in the last third of 2018. Each was one of the hundreds drawn from those thousands to make up two panels, members of which were told that they may be selected to serve on Pell’s jury. Having neither opted out nor been successfully challenged by Pell or his prosecutor, each was chosen as one of the thirty people who sat in the jury box for Pell’s two trials. At the end of those trials, each was part of a jury of twelve sent to the jury room to deliberate after excess members were balloted off.

Beating these one-in-170,000-or-so odds is not so lucky. Pell’s first twelve judges bear the burden of being unable to agree on his guilt or innocence, forcing a second trial. We know that at least two of the twelve would have convicted him and two would have acquitted him. Reporters at the trial say that several were in tears when their jury “hung.” Reporters who weren’t there claim that the split was ten to two in favour of acquittal, but don’t explain how they know. The twelve jurors risk up to five years in prison if they tell anyone other than their therapists what the vote was.

Pell’s second jury bears the heavier burden of being able to agree. We know that all twelve found him guilty. They can’t speak about their experiences either. Jurors in trials outside Victoria who have spoken publicly about reaching a guilty verdict describe many different feelings: pride, excitement, frustration, doubt, regrets. The responsibility of putting someone in jail can be very distressing. I quote one juror in my book, The Ouija Board Jurors, who described his jury’s emotional state as they convicted an insurance broker on a double murder in this way:

At that point every juror was crying. Every juror. There’s tears coming out of their faces. They just… this was it. This was the bit they didn’t want to do. This was the bit they couldn’t cope with and they knew you can’t change your mind.

And after:

We went into the jurors’ room again and everyone’s sitting there sobbing. It was… for five weeks nobody had had any physical contact but there was people cuddling, there was holding hands, there was people saying goodbye and we were actually in that room for an hour before we could compose ourselves enough to actually leave the court.

Those jurors were blessed with judging a defendant who nearly everyone believes is guilty. Pell’s jurors were not so lucky.

“Everything is overshadowed by the forthcoming appeal,” wrote George Pell’s anonymous accuser on the day in February when the cardinal was sentenced to six years in prison. He wasn’t wrong. In Australia, criminal appeals are no mere footnotes to the jury verdict but a fundamental part of the criminal justice system. Watchers of American television might think that the sole role of appeal courts is to judge the trial judge, but only two of Pell’s appeal grounds fit that picture.

Like all trials, Pell’s two hearings began with a ritual. Chief judge Peter Kidd confirmed the defendant’s name, read out each of the charges against him and asked for his plea. There were no surprises in what Pell said — his name and “not guilty,” four times over. But none of his jurors were in the courtroom to hear what turned out to be the only words he said at either trial. They were still part of a panel of hundreds, too many to fit in the courtroom. Kidd sensibly arranged for them to watch Pell’s plea on a screen in a different room.

Unfortunately, in 2009 Victoria’s parliament devised a much less sensible way to deal with the problem of oversized jury panels: bring one part of the panel into the jury room to observe the defendant’s plea. Pell’s argument that Kidd breached the statute by not doing so is strong, but it’s a classic technical point. No one seriously thinks he was done an injustice.

The opposite applies to Pell’s second appeal ground, which also concerns a video. Both of Pell’s juries toured the scene of the crime, St Patrick’s Cathedral, but not — for obvious reasons — right after Sunday mass, when the crimes were alleged to have occurred. In his closing argument at Pell’s second trial, Robert Richter asked to show the jury a video animation detailing where church staff were likely walking while Pell allegedly raped two boys in the sacristy. After prosecutor Mark Gibson objected, though, Kidd stopped Richter from showing it.

Here, the law is with Kidd. The video probably counted as new evidence that should have been shown before the defence rested its case. Nevertheless, it was a bad look for justice: the prosecutor’s stance seemed designed more to disadvantage the defence than ensure justice was done. I suspect that Pell has raised this appeal ground not because he expects it to succeed but instead to cast doubt on the claim that he was given every chance to put his defence.

Pell’s third ground, and his real argument, is that the jury’s verdict was unsafe. It is here that Australia’s law on criminal appeals — as well as Canada’s, England’s and New Zealand’s — dramatically parts company with that of the United States. Anyone convicted of a crime in Australia can ask an appeal court to determine for itself whether it agrees with the jury’s guilty verdict. Victoria’s appeals statute says that an appeal court must allow the defendant’s appeal if it is satisfied that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.” In other words, it judges the jury’s verdict.

How this appeal ground works in Australia was once a contentious question that repeatedly returned to the High Court. The two approaches were on display when Lindy Chamberlain appealed against her conviction for murdering her baby, Azaria, on which the justices of the High Court divided. On one side was future chief justice Gerard Brennan, who said that appeal courts must not take on “the impossible burden of retrying every appeal case on the papers.” Instead, he said, they should exercise their “extraordinary power” only in special cases. On the other side was future governor-general William Deane, who said that Brennan’s test “could sap and undermine the institution of trial by jury” by making jurors bear the responsibility for every injustice. Deane believed the appeal judges should perform for themselves the jury’s own task of deciding the verdict, allowing for the fact that the jurors had the advantage of seeing the witnesses testify.

The outcome of the case starkly illustrated the difference in approach. Brennan, part of the three-judge majority dismissing Lindy Chamberlain’s appeal, thought the task for appeal judges was so easy that it didn’t even merit further scrutiny by the national court. By contrast, Deane, one of two dissenting judges, candidly described his task as “difficult.” In an agonised decision — voicing considerable doubts about the defence’s dingo theory — he concluded that “doing the best that I can, I have finally come to a firm view” that there was reasonable doubt about Lindy Chamberlain’s guilt.

History vindicated Deane on both the facts and the law. A decade later, and six years after the Chamberlains were belatedly acquitted of murdering their daughter, the nation’s top court settled the test for unsafe verdicts in Deane’s favour, with only Brennan objecting. “A reasonable doubt experienced by the court,” the High Court wrote in 1994 when allowing a child sexual abuse appeal, “is a doubt which a reasonable jury ought to have experienced,” adding that if “there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” This test, stated just sixteen months before Pell’s alleged crimes at St Patrick’s, will decide if the cardinal spends his eightieth birthday inside a prison cell.

Once again, this appeal ground centres on a video, this time one recorded at Pell’s first trial. In it, Pell’s anonymous accuser testified from another location via closed-circuit television. Instead of having him testify at the second trial, the video was simply shown to the new jury. And that means the appeal judges can, if they choose, see exactly what led Pell’s second jury to convict him of all four offences, leaving them free to decide his appeal without any deference to the jury’s advantages.

To date, no one but the judge, the jurors, the lawyers and Pell himself has seen the video, but it is clear that the accuser’s testimony was compelling, even in the face of hostile questioning. We also know that its subject matter concerns horrible events that occurred in the space of minutes, decades ago, out of sight of nearly everyone. The three judges will be well aware that cross-examination can only go so far in questioning such an account. The same is true for a second video the jury saw, in which Pell angrily denied the accuser’s claims put to him by police in Rome.

Pell will argue that neither video is enough to support a safe verdict. This is a make-or-break issue for Pell’s prosecutors, because Pell’s trial is a rare one where there is no other evidence of guilt. Unlike many child sexual abuse trials, there was no evidence of the accuser’s earlier complaints before he went to the police, of the defendant admitting that anything untoward happened, of other similar complaints against the defendant or of any other interactions with the alleged victims. Unlike nearly all such trials, there is no evidence placing accuser and accused even in the same room. The most the prosecution could offer was (disputed) evidence that the accuser’s account was at least logistically possible.

What makes Pell’s trial almost unique is the absence of the other person the jury concluded Pell raped that day in the sacristy at St Patrick’s. That man told no one at all that Pell abused him and even denied it outright when asked. Such denials are entirely consistent with abuse, but also with not being a victim at all. The man’s death, just one year before Pell’s accuser went to the police, means that we can never know what he would have said about the accusations against Pell.

Neither the accuser’s testimony nor the other man’s (and other evidence’s) absence are likely to be enough to decide Pell’s appeal. Rather, the case will likely turn on each judge’s individual view of what is plausible or possible within those parameters. Is it plausible that Pell would rape two boys in an unlocked room after Sunday mass during his first year as a Melbourne archbishop? Is it possible that Pell’s accuser, who has no history of dishonesty, wrongdoing or fantasy, would lie not only to the police but in days of convincing court testimony?

These are questions on which reasonable minds can differ. Pell’s fate will be decided by whichever pair of Anne Ferguson, Chris Maxwell and Mark Weinberg reach similar answers.

Victoria’s Court of Appeal hears around 250 criminal appeals each year, but two-thirds concern whether a sentence is too high or too low and most of the rest concern whether a trial judge made a mistake. Barely a dozen convicted criminals a year argue that the jury’s verdict against them was simply unsafe. Since 2016, ten such appeals have succeeded in Victoria, a success rate of around one-in-four. But Pell’s appeal doesn’t turn on two tosses of a coin: the outcome will be no more random than the choice of which judges would hear his case.

Ferguson, Maxwell and Weinberg may sound like a mid-tier law firm, but the trio sit at the pinnacle of Victoria’s judiciary. Anne Ferguson and Chris Maxwell are the state’s two most senior judges, respectively its twelfth chief justice and its second president of the Court of Appeal. At his retirement in the middle of last year, Mark Weinberg was the state’s most respected sitting judge, unlucky to have missed out on a seat on the High Court. As both a former criminal law academic who rose to be dean of Melbourne Law School and a former criminal barrister who became the federal director of public prosecutions, he is arguably Australia’s most experienced criminal law jurist. He can sit in this case despite his mandatory retirement at age seventy, thanks to a provision in Victoria’s constitution allowing former judges to be appointed as “reserve judges” until they turn seventy-eight.

Placing Pell’s case in solid hands will be good for Victoria’s courts in what is arguably the most high-profile appeal ever to be heard in the state. But Pell himself would probably have preferred to be judged by someone else. The state’s one-in-four success rate for unsafe verdict appeals seems to be mainly due to other judges on the state court.

In the last three years, Weinberg ruled three jury verdicts unsafe, but rejected a further fifteen such arguments, a success rate of just one-in-six. More disturbingly for Pell, the other two judges ruled unsafe none of the jury verdicts they considered. For the chief justice, that simply reflects how few criminal appeals she hears, given the demands of administration and her commercial law background. But for Maxwell, the rate seems to reflect his own scepticism when it comes to reasonable doubts of guilt. He has been left unmoved by all nine unsafe verdict appeals he has heard since 2016, including two in which both of his fellow judges upheld the defendant’s appeal.

Past judgement counts are even worse than federal opinion polls as predictors of future decisions, because criminal appeals are just too varied and unsafe verdict appeals are a very select group. More troubling for Pell is that Chris Maxwell has long expressed the test for unsafe verdicts without any reference to doubts held by the appeal judges themselves, instead asking whether the jury “must, as distinct from might, have entertained a doubt.” By contrast, Mark Weinberg was recently part of a unanimous panel that pointedly rejected any more “stringent” test than the High Court’s 1994 decision, emphasising that the appeal court should “conduct its own independent assessment of the evidence that was before the jury.”

The Court of Appeal would surely be loath to make a high-profile appeal like Pell’s the occasion to choose between these two arguably different approaches. Rather, the three judges are likely to strive to reach a unanimous decision that emphasises the particular facts in Pell’s trial. As David Marr recently observed, Pell will surely take heart from the fact that Weinberg’s reaffirmation of the High Court’s 1994 decision came in a case of institutional child sexual abuse, indeed one that, like Pell’s, involved a police complaint first made in 2015.

There is little comfort for Pell in the ruling’s specifics: the Court of Appeal (including Weinberg) excoriated the prosecution, citing many inconsistencies in the accuser’s testimony, multiple implausibilities in his allegations, and doubts due to the death of numerous possible witnesses before the accuser complained to the police. Pell is not blessed with anything like these flaws in the case against him, which involves much simpler and less ancient allegations. Rather, the decision’s significance lies in the Court of Appeal’s acknowledgement — in a case heard the same day Pell’s guilty verdict was publicly revealed — that Victoria’s police, prosecutors and jurors can all fail — and fail badly — to find justice in a contemporary trial of historical institutional child sexual abuse.

Much like Pell’s jurors, Anne Ferguson, Chris Maxwell and Mark Weinberg would surely rather not be his judges. But performing that role is not only their duty but their job, which includes providing detailed reasons for their decision, ones that will permanently stand next to their names. While by no means certain, Pell’s chances of a ruling that his jury’s verdict was unsafe are good.

But, as is presently the case for his accuser, any victory for Pell will “be overshadowed by the forthcoming appeal,” this time to the High Court of Australia. That court, alone among Pell’s potential judges, has the freedom to choose whether to decide at all. Whoever wins in the Court of Appeal, Pell, his accuser and the rest of us will learn whether the national court will take on the case by the end of the year. If it does, then all bets are off.

Unlike the Court of Appeal, the High Court only rarely hears arguments about the safety of jury verdicts, and does so disproportionately in high-profile cases: Colin Ross, Leith Ratten, Lindy Chamberlain, Gerard Baden-Clay. Nor is it bound to follow its earlier rulings. In these ways, Pell’s potential twenty-eighth through to thirty-fourth judges bear a closer resemblance to his first twenty-four than to his next three. We would hear any verdict of Pell’s final jury of five or seven in the middle of next year. •