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Read this quote:
“Having had regard to the whole of the evidence led at trial and having deliberated long and hard over this matter, I find myself in the position of having a genuine doubt as to the applicant’s guilt.”
It was written by Justice Mark Weinberg, the dissenting judge in the decision by the Victorian Court of Criminal Appeal to uphold the jury’s decision to convict Cardinal George Pell of sex crimes.
The quote shows that he has misconceived the role of appeal court judges in appeals against jury trials as things stand in Australian law.
It is not his role to substitute his view about the guilt or innocence of the accused person for that of the jury, as he has plainly done. His role is to decide whether a jury could reasonably come to the conclusion it came to,
The difference is critical. In plain language, an appeal court judge should be able to say to themselves, “I would not have convicted but I can see that it was open on the evidence for the jury to convict.”
We learned this week that Pell is to seek special leave to appeal to the High Court against the Victorian court’s decision.
The Victorian court has been taken to task in the past decade or so by the High Court for being too quick to overturn jury verdicts. In the Pell case, though, the majority judges cited at length with approval High Court judgements reversing some of the Victorian court’s decisions and the need to hold to the primacy of jury verdicts.
Present law says that to overturn a jury’s verdict it is not enough for the appellate judge to say, as Weinberg plainly has, that they would have come to a different conclusion to that of the jury. Rather they have to point to a fundamental defect in the jury’s conclusion such that a reasonable jury could not have come to that conclusion or a defect in the judge’s summing up to the jury. In the Pell case all three judges said the summing up was without defect.
But that is talking about the law as it is, not as it should be.
The Pell appeal is unusual. The court got to see the evidence the jury saw first hand. Admittedly, video is a bit different from first hand. But the jury that convicted did not actually see the evidence of the complainant (Witness A) first hand, anyway. They only saw the video evidence from the first trial which resulted in a hung jury. In sex cases complainant’s evidence is videoed so that if there is a hung jury or successful appeal they do not have to go through the ordeal of giving their evidence again.
So for the crucial evidence, the appeal court was in much the same position as the jury.
Some have argued that Weinberg has overwhelmingly more experience at the criminal Bar than the other two judges and that he has served as Director of Public Prosecutions, so Weinberg’s view must have greater merit.
But there is another way to look at it. A criminal barrister lives, thinks and breathes everything through the prism of the single question: how would a jury react. How easy, then, for that person on the appellate bench to approach an appeal in the same way: in precisely the way that the High Court has said an appellate judge should not approach the question.
As it happens, on reading the majority judgment with extensive quotes from the complainant and analysis of his demeanour it would be difficult to come to any conclusion other than that if they had been jurors they would have, unlike Weinberg, convicted. But they did not say this.
The acid question for Australian jurisprudence, however, is this: what if you get a case, unlike Pell’s, where all or a majority of an appeal court might think that they would not have come to the same verdict as the jury to convict, but thought it was still open to a jury to convict on that evidence and let the conviction stand?
That is a situation where three legally trained and highly experienced people might say to themselves they would acquit but are forced by the state of Australian law to say that the conviction (by 12 randomly plucked people) must stand.
It looks like the jury in the Pell case got it right, but it is still not a very satisfactory process.
However, it is the law. The Victorian Court of Criminal Appeal was at pains to point out and approve as binding how the High Court has put jury verdicts on a pedestal.
It is an unfortunate development. The courts have made much of how 12 people from different walks of life can come together and apply their minds to the question of guilt and reasonable doubt. High Court judges take a great deal of comfort from the fact that these people from different backgrounds come to unanimous verdicts before someone is convicted.
But it should give little comfort now modern research tells us how easily people can be led. My guess is that if the 12 jurors sat separately and cast their verdict without talking to each other you would hardly ever get a unanimous verdict. The trouble is we can never know. Jury processes are secret and juries do not give reasons.
My guess is that if juries were made to give reasons, they would nearly always make such a hash of it that few convictions or acquittals would survive appeal.
Knowing what we know now about group think and how a section of society is alienated to such an extent they simply do not care, trying cases by 12 people randomly taken off the street and cocooned together until they deliver a result without having to give reasons, seems to be a cock-eyed way of delivering justice.
This is doubly true when it would be just as quick and no extra expense to hear cases with a judge and two trained assessors. And judging by what the appeal court did, they would have convicted Pell.
The trouble with the Pell case is that it has so far only elevated the position of juries and the High Court is only likely to confirm that.
The trouble with the Pell case is not the conviction. If you read the appeal judgments (and they are worth a read) and consider that the judges looked at the complainant’s video evidence twice, you need not lose any sleep over the conviction.
But you should lose sleep over the fact that every day in Australia people’s fate is being decided by the prima facie flawed jury process and we cannot – unlike virtually everything else in every other walk of life – test and evaluate the system. We are legally prohibited from doing so.
This article first appeared in The Canberra Times and other Australian media on 31 August 2019.