THE question now is not whether George Pell got a fair trial, but whether he can get a fair appeal. An appeal from a jury trial in Victoria or anywhere is Australia makes that more difficult.
Last week I did not join Andrew Bolt and others attacking the Pell jury and verdict, rather I was condemning the whole jury system.
The trouble is that the defects in the jury system this flow into the appeal system. Despite the obvious folly of the jury system, the judiciary and legal profession, at least publicly, praise the jury system to the extent that they regard jury verdicts as almost sacrosanct. And so do the various legislatures in Australia.
It means it is very difficult to get a jury verdict overturned.
Similar legislation in all jurisdictions and the judicial interpretation of it put a lot of hurdles in the way of an appellant.
The awe and respect the judiciary gives jury verdicts is such that they almost invariably will not give bail pending appeals if the defendant faces a jail term. That much was made clear in Lindy Chamberlain’s bail hearing in the High Court when Justice Brennan said to grant bail after a guilty verdict would be disrespectful of the jury and undermine confidence in the system of justice.
It was the same in Pell.
But the awe and respect seems to me to be misplaced for the simple reason that we do not know how juries behave, by and large. There is no research on it because it is illegal to do it. The jury system is sheltered from scrutiny.
Why can’t a random sample of jury deliberations be recorded and released for research purposes after a suitable delay?
The selection process is doubly flawed. A random selection is bound to result in some ill-equipped people being selected. Often those better equipped are also in a better position to escape jury duty.
Further, psychology experiments going back to the 1930s prove that people are easily led and join majority opinion because they want to fit in.
And the jury does not have to give reasons.
As a result appeal courts go into the process with one hand tied behind their back. They cannot know the jury’s reasoning, or if it was sound. All they can do is read the transcript of the hearing.
In Australia the leading case is the High Court’s decision in M v R in 1994 involving the sexual abuse of a minor. It held that it is not enough for the appeal court to have a doubt. The appeal court must take into account the fact that the jury had the advantage of seeing and hearing the evidence.
Precisely what they did with that advantage, of course, can never be known.
Where the so-called jury’s advantage of hearing and seeing the evidence can resolve the appellate court’s doubts, the verdict stands.
It is only “ifthe evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force” that the appeal is allowed.
It is not enough for the appeal court judges (with all their experience and wisdom) to say, “We would never have convicted on that evidence.” The verdict would still stand.
“The jury is the body entrusted with theprimary responsibility of determining guilt or innocence,” the majority judgement said.
But we can never have access to its reasoning.
Another judge in that case said the test is that anindependent assessment of the evidence must establish that areasonable jury MUST have had a reasonable doubt about guilt.
Usually conservatives support the jury system, but now that quite a few of them have attacked the Pell jury and therefore implicitly the system itself because one of their own got convicted under it, it might be a good time to have a really good look at juries.
Just because the system has been around for hundreds of years does not mean it is best practice. To the contrary, if you were designing a criminal justice system from scratch today you would not get 12 randomly selected people who know nothing of the law and simply might not be up to the task.
You would know from the body of the past century’s psychological research that people want to fit in and are easily swayed.
The fact that 12 people come to the same conclusion might be persuasive if they all came to that opinion independently. But they don’t. They do it in collusion
You might prefer a system with a senior judge to decide the law and two junior judicial officers who with the judge determine the facts. With three, it would check against biases and misconceptions. More importantly they would have to provide reasons for their verdict.
That in turn would enable an appeal court to check that the verdict and reasoning behind it were sound.
At present, an appeal court’s blind faith that a jury has made best use of seeing and hearing witnesses is unwarranted.
As for the Pell case in particular, how much better it would have been if a result had been delivered with reasons. As it is, it would be rather foolish for anyone to state an opinion one way or the other when not even journalists covering the case were allowed to hear or read the complainant’s evidence.
The Court of Appeal will at least be able to read it, but unless there are discrepancies, inadequacies or taints on the face of it, the court will, by law, have to accept that the complainant’s evidence rightly led to the verdict, even if they might not have come to that conclusion themselves or even disagreed with it.
Only doing away with juries will allow for a more reasoned approach in which appeal courts can overturn verdicts they are doubtful about. That is the case in Britain.
In Australia, on the other hand, might an appeal judge with a doubt on the evidence and facts that legally is not enough to overturn a verdict be tempted to go out of their way to find a legal technicality to lead the way to a quashing of the conviction and an acquittal or at least a new trial?
This article first appeared in The Canberra Times, The Sydney Morning Herald and The Canberra Times.