Having ended up making an application for special leave to appeal in the High Court myself, how can the judges make a qualified decision when they are stopped from knowing the true and proper facts? When I filed my applications (and I was made to file 3 separate applications even though they all related to the one matter – thereby costing 3 times as much in fees), the registry stopped me from filing an affidavit that revealed the true facts. The judges were then restricted to making a decision on my allegations with no substantiation. Hence, I do not blame them for their decision to refuse my applications. It was all part of the injustice of it all – but that is my story and there are many others.
It was said in the Court of Appeal about the High Court [emphasis mine]:
Whelan JA: The High Court, they are not a Court of Appeal, like us, who hear—
Beach JA: Everything.
Whelan JA: Everything – well, we don’t hear everything, but we hear nearly everything.
Me: Yes.
Beach JA: We just about do.
Whelan JA: They select their cases.
Me: Yes.
Whelan JA: They choose deliberately. They choose cases where there is a disagreement between courts in the different States.
Me: Right.
Whelan JA: Or there is some significant issue which is relevant, not just to this case but to many cases – some point of law, or some issue of social importance; so to that extent – in fact, there are cases, there are authorities that say they can refuse special leave, even if they think the decision is wrong – – –
Me: Right.
Beach JA: And they often do.
Whelan JA: And they often do.[1]
Then we have the George Pell case where the High Court no only did not refuse George’s case, and they did not take it on because there were points of law that were wrong. One has to question then why they did take it on and set out to quickly override the jury and the majority of the Court of Appeal:
George Pell was released from jail last Tuesday. There were 12 people who sat and had to go through the horrors of what George’s (alleged) victim went through. The jury did the hard yards and made their unanimous determination based on what they heard and saw. They had the benefit of that testimony and the testimony of a number of others.
Firstly I was appalled to hear that Weinberg JA of the Victorian Court of Appeal made the decision that he would have not made the judgment that was made, and he based it on his own perceived improbability of the abuse happening, not on points of law.
It came as no surprises then that George sought to have the High Court make a ruling.
The surprise came when 7 people, who happen to be judges, and who admitted that they did not have the same benefits as the jury, then decided that the 12 jurors and 2 Court of Appeal judges got it wrong and they, the 7, got it right. The trouble is that what the High Court had an obligation to make a judgment on was whether there was a legal error, not whether they would have made a different decision – yet we have 7 people who played the role of those who absolutely know what is best and who “knew” what did and didn’t happen.
I have read a few of the many articles and editorials, as well as the judgment handed down by the High Court. I include excerpts from a few of the editorials/articles for your information – they are very illuminating.
“There are 12 unmentioned victims in the Pell verdict: the jurors” by Malcolm Knox April 8, 2020
Whenever the criminal justice system is able to resume empanelling new juries, the High Court has given potential jurors a new reason for being excused from their duty: that they are wasting their time.
For the best part of 800 years, juries have had a single function in criminal trials that higher courts could not meddle in. The jury was the finder of fact. In Australian law, this began to change in the 1994 case of M v The Queen, when the High Court said an appeal court could ask “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”. Victoria’s Criminal Procedure Act gave statutory back-up to this evolution of the courts’ role in 2009.
In the trial in which George Pell was found guilty, only 12 people saw and heard the 50-plus witnesses questioned, and only those 12 people were qualified to say whether or not Pell committed crimes. All of those 12 decided, beyond reasonable doubt, that he did. And yet their months of service, and their first-hand experience, has been overturned by the High Court not for reasons of law, but because the seven justices would have come to a different conclusion. Those jurors are entitled to ask what, then, was the point of the original trial?
For centuries since the Magna Carta, appeal courts used not to judge facts. They judged judges, ruling on legal errors. Did the trial judge allow the jury to hear ineligible witnesses? Did the trial judge misdirect the jury? These are the matters for a higher court to rule on as a tribunal of law, not fact. Appeal courts have never been designed to hear cases again and pretend to be jurors themselves.
Since the ‘M’ case, there has evolved a mechanism for higher courts to overturn “unsafe”, or egregiously misguided, jury verdicts, and the key question was whether the Pell case should be considered one of them. Even the High Court’s language in its Pell judgment can be read ambiguously: it accepted “the assumption that the jury assessed [the complainant’s] evidence as thoroughly credible and reliable” and made “full allowance for the advantages enjoyed by the jury” in actually hearing the witnesses, yet it still concluded that the jury did not make a “rational” verdict.
The High Court’s 129-paragraph decision makes scant reference to case and statute law. Instead it is filled with the facts that emerged in the Pell trial. How have appeal courts come to set themselves up as quasi-juries? As Melbourne Law School Professor Jeremy Gans has written, by viewing videotape of trial evidence, higher courts have stealthily turned themselves into tribunals of fact. The Victorian Court of Appeal did that in the Pell case, which enabled the High Court, as reviewer of the Court of Appeal, to interpose itself in the same way.
It’s a neat fiction: “We’re not re-trying the case, we’re only assessing another court’s viewing of videotape of parts of the case.” However, like videotape itself, the version becomes distorted and more distanced from the original delivery in each new generation. It is, perhaps illogically, the final court (which didn’t view the videotape but only read transcripts and heard argument from lawyers who were not at the Pell trial) which has the power to impose its interpretation upon the tribunal that saw the witnesses in the flesh or by live video-link.
A misconception of the Pell case was that it was one man’s word against another’s. The complainant, under oath and severe cross-examination, provided his version. Pell availed himself of his so-called “right” to silence. Instead, Pell’s case was advanced by church witnesses who speculated on the logistical difficulty of committing the sexual abuse in the circumstances that had been alleged. Pell’s refusal to testify, for his own reasons, is not uncommon and cannot be held against him, but if he did turn his trial into one man’s word against another’s, and his case was so strong, he might never have spent one day in jail.
Instead, the jury appears to have decided what many juries decide: the fact that committing this crime would have been risky and stupid did not mean Pell didn’t do it. As anyone in the lower courts knows, accused people are often found guilty of doing risky and stupid things.
There is one forseeable consequence of this verdict. Appeal courts are going to be crammed. If higher courts can effectively retry cases and second-guess juries, if a legitimate ground for appeal is simply that the jury was “not rational” – not that a jury has made a catastrophic error, but simply that it was wrong – the system can get set for an avalanche of appeals.
Some think the jury system is outdated, and criminal trials should be heard by judges alone. But trial judges are equally exposed by the powers the higher courts have arrogated to themselves in Pell’s and previous cases. When a prospective juror says, “I refuse to serve because I may be wasting my time”, trial judges may sympathise, because they will be in the same boat. When every fact they find can be second-guessed and retried by a higher panel of would-be jurors in legal robes – people who, by the way, have never sat on a jury – our 800-year-old “black box of justice” might as well ask if it has any purpose at all.
Much focus, since Pell has been freed, has fallen on the victims of abuse in the Catholic Church committed by those other than Pell. There is another group of mistreated people here: the 12 who actually heard the evidence. Juries have no lobby group, no institutional backing, no voice. Amid other indignities the legal system visits on jurors, it compels them to suffer this insult in silence. But they are us. We citizens are potential jurors, and our response to future requests for our time might be: If you won’t trust us, why should we trust you?
“Pell acquittal puts Victorian courts on trial, and shows they need a reality check” by Jon Faine April 7, 2020
The High Court decision to allow the appeal of Cardinal George Pell will send shivers through the entire Australian criminal justice system. Their Honours have given hope to anyone who has been convicted by a jury. They have effectively said that doubt can be entertained even when the principal witness in court is unshaken in their testimony.
The scales of justice are being re-calibrated. The balance has shifted. Trials will be different and appeals as well. It has never before been the role of an Appeal Court to substitute their view for the jurors. Now it is.
No one in Australia has ever spent so much money trying to undo the sworn evidence of a single witness. Millions of dollars were invested – no stone left unturned. Legions of lawyers, researchers and investigators trawled through every possible source to discredit one man telling what he alleges happened all those years ago. But in the end, none of that investigatory effort into the complainant was what made the difference. Instead, it was the evidence of witnesses on the periphery that swung the case.
The overwhelming majority of criminal trials before our courts are funded by legal aid. In every trial, pragmatic corners are cut, compromises are made. Not every point can be pursued, not every possible doubt explored. Now, with Pell’s case, we can all see what can happen when you do have the money, the backing to chase every possible angle.
The police relied upon one witness who was stress-tested multiple times even before charges were laid. Then his version was checked again by multiple prosecutors. Then he was cross-examined at committal by the best in the business, Robert Richter QC, and emerged unshaken. That gruelling process was repeated at trial. His evidence was still unshaken. The jury believed him.
But now the High Court judges say that is not enough. Other witnesses who gave evidence that they thought the Cardinal would not have had the opportunity to commit the lewd acts ought to have been taken into account, even though they could not give a first hand or personal evidence of what happened to those boys on that day.
Bizarre. One witness swears on oath: this is what happened to me at this place on this day. Other witnesses say: I do not know what happened on that day but that is not what usually happens – and that creates a doubt and voids the conviction. Compounding improbabilities become “reasonable doubt”.
It has taken decades to get the legal system to address how deeply it was failing victims of historical sex abuse. Profound changes have been engineered, taking great care to maintain the rights of an accused but also to confront the shocking scourge of clergy abuse and the silence and cover-ups that go with it.
The lawyerly response will now be to counsel clients to go down the compensation path and avoid the trauma and emotional turmoil involved in a criminal trial, especially one that is less likely to secure a conviction.
Like it or not, it was not just the Cardinal who was on trial. The jury system and the Victorian courts have been on trial as well. They have not emerged well. The High Court has raised its eyebrows at Victoria. The Lawyer X/Nicola Gobbo scandal has brought the Victorian legal system into disrepute – mostly because of the actions of Victoria Police but it has reflected also upon the Director of Public Prosecutions and the courts. Reputations have been shredded. The clubby and cliquey world of the criminal bar has been left scandalised. Their Honours in Canberra think the Victorians need a reality check.
While George Pell can sleep in a different bed tonight – and presumably in COVID-19 self-isolation for two weeks – he will never recover his standing or reputation. His imperious combative manner and arrogant display at the Victorian State Parliamentary Inquiry that predated the Gillard Royal Commission came to embody the Church’s sense of entitlement and privilege. His undisciplined annoyance and quick temper at being held to account made it imperative he not give sworn evidence at trial.
Pell has found justice but his remaining days won’t be peaceful.
The trial Judge, Peter Kidd, in sentencing Pell reminded us all that the Cardinal was not on trial for the collective sins of the Church, but only for those specific matters that were presented in evidence. That is true for a court of law. It is not at all true in the court of public opinion.
As the dust settles, the until-now secret sections of the Royal Commission into Institutional Responses to Child Sexual Abuse that were withheld until Pell had exhausted his appeal rights can and must be made public. The Attorney-General, Christian Porter, can now let us read material that has not seen the light of day.
This throws into question how future criminal trials relating to accusations of historical sexual abuse will be conducted.
And Malka Leifer’s lawyers will be watching with great interest.
Excerpts of the judgment[2] follow [citations omitted and emphasis mine]:
“37. [T]he appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.
38. It should be understood that when the joint reasons in M v The Queen spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only be cause there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. …
94. The Court of Appeal majority took into account the evidence of four witnesses in concluding not only that it was possible that the applicant was alone and robed in contravention of centuries-old church law, but that the evidence of witnesses to the contrary did not raise a reasonable doubt as to the applicant’s guilt.
95. The evidence to which their Honours referred was that of three choirboys–Robert Bonomy, David Mayes and Nathan – and that of the organist and choirmaster, John Mallinson. Bonomy said that he had seen the applicant robed in the sacristy corridor and sometimes the applicant was with others and sometimes he was on his own. Bonomy had been lined up with the choir in the sacristy corridor waiting to process into Mass when he made these observations.
96. Their Honours noted that Nathan and Mayes recalled the applicant coming into the choir room after Mass and that “[v]ery infrequently, Nathan said, [the applicant] would be robed”. Nathan had a recollection of the applicant popping into the choir room to congratulate the choir on a good performance or a great Mass. He could not remember whether the applicant was alone or with someone else, nor whether he was robed. The occasion does not appear to have been further identified.
97. Mayes’ evidence, to which their Honours referred, was his memory of the applicant coming into the choir room “in the first five minutes while everybody was still there”. When asked if the applicant was robed, he replied that it was “very rare to see him unrobed. Yeah, he would have been robed.” Mayes could not say whether the applicant was accompanied or not on this occasion. …
109. The Court of Appeal majority concluded that it was “quite possible” for the priests’ sacristy to have been unlocked and that A and B might have entered the priests’ sacristy after the altar servers had bowed to the crucifix. Their Honours further concluded that it was open to the jury to find that the assaults took place in the five to six minutes of private prayer time, before the “hive of activity” in the priests’ sacristy, including the clearing of the sanctuary by the altar servers, commenced. …
132. The Court of Appeal majority accepted that the sight of the applicant at close quarters with a choirboy might well have attracted attention. However, their Honours reasoned that the others in the corridor were intent on completing the procession and removing their robes as soon as possible. In this state of affairs, their Honours assessed that it was quite possible that the brief encounter went unnoticed. At all events, their Honours said, “the evidence once again falls well short of establishing impossibility”.
The strange thing is that because of the passage of time, the victim’s allegations were dismissed by the High Court, yet other witnesses, even though some of them were uncertain about the chain of events so long after the “claimed” abuse[3], were found, not only to be entirely reliable, but that the abuse could not have happened.
The long and short of it all is that it is clear that we should now do without the lower court and just have the 7 who sat in judgment (not of George but of the jury and the Court of Appeal judges) make the decisions because then the decisions will be right the first time and every time… or would they?
George has made what seems to be very self-righteous and right-sounding claims. One such claim is made in his 2005 book “United religious front would uphold morals”. The Australian provided this quote on, Monday 6th June, 2005: “All children of Abraham are called to oppose the excess of individualism, such as pornography, drug abuse, alcoholism, sexual promiscuity and abortion” (Pell, 2005: 5). Sounds good, doesn’t it, yet he doesn’t address child sexual abuse (remembering that sexual abuse of children by the clergy had been in the news for many years, and he, himself, had sat on boards and in charge of arranging compensation for victims). When sexual abuse was claimed against various priests, we have George knowing that priests were moved around thus allowing them to continue to sexually molest children in multiple new locations (that being so, he could be guilty of having assisted/covered for perpetrators and paedophiles in their gross actions). Further, according to some victims and/or their families, George apparently tried to deter victims from taking action and/or tried to minimise the financial payouts to those and other victims.
George even (1) stated that the crimes of notorious paedophile priest Gerald Ridsdale were a “sad story” but “not of much interest” to him at the time, and (2) supported Ridsdale when he went to court, knowing that Ridsdale was guilty of such appalling conduct[4]. Unbelievable.
For George to apparently see nothing wrong in other priests committing paedophilia (in spite of his protestations of the opposite), the question has to be asked whether he committed the sins of which he was accused. He has expressed himself very clearly about the need to cover up such sins – “He [Pell] admitted his church had covered up child sexual abuse for fear of scandal; that his predecessor Archbishop Little had destroyed records, moved paedophile priests from parish to parish and facilitated appalling crimes“[5] and, regarding the allegations of children, George himself said that “the predisposition was not to believe and that the instinct was to protect the church”[6]. In addition, on 13 September 2019, the Diocese of Ballarat released a statement admitting that high-ranking clergy in the diocese knew of sex abuse claims against Ridsdale and afterwards made efforts to shield him from prosecution. This confession came in the wake of a civil lawsuit filed against the diocese by one of Ridsdale’s victims[7].
Certainly senior figures in the church knew about Ridsdale’s abusing children but protected him[8] Ridsdale was protected by the church’s code of silence[9]. George testified that “the suffering, of course, was real, and I very much regret that, but I had no reason to turn my mind to the extent of the evils” perpetrated by Ridsdale in Victoria in the 1970s and ’80s[10], and further claimed that he had no idea of any of Rdsdale’s sexual abuse, but back in in 1988, Ridsdale was very open and clear that his past was catching up to him and that the church had to move him. I am not saying he was, but was George protected by the same code of silence?
I look forward to seeing the unredacted transcript of the Royal Commission to see what George did or admitted doing. Perhaps the High Court might belatedly have a change of mind.
His own and acknowledged actions would seem to give some credence to those having taken/taking legal action against him for having committed sexual abuse against children himself.
The High Court claimed that the 12 jurors and the two assenting judges of the Court of Appeal were irrational in having made the decision they made that George was guilty. Such a decision (taking into account the fact that the expressed need for Catholics to protect the church rather than the victims) is itself (to my mind when taking everything into consideration), irrational. While that is just my opinion, to my mind, it shows even more, the injustice system in which we have to put our trust!
[2] Pell v The Queen (M112-2019) [2020] HCA 12
[3] The judgment states in Reason [88] that the Court of Appeal noted that “while Portelli may have had a general recollection of the first time the applicant said Sunday solemn Mass at the Cathedral, he had demonstrated a lack of detailed recall of the events of that day” (Portelli was the person with the job of escorting Pell around) – yet these 7 judges of the High Court still unequivocally found that the abuse did not take place.
[4] In 1988 (according to evidence in court in 1994) Ridsdale told his colleague Father Frank Madden: “I will have to get out of here. My past is catching up with me.”
[5] Wikipedia search under Pell, said to be written by David Marr
[6] Wipedia, said to be said by Pell himself at the 2016 appearance before the royal commission
[7] Wikipedia, under “admissions of protection by the Diocese of Ballarat and civil lawsuit”
[8] Wikipedia, in relation to Ridsdale
[9] http://www.brokenrites.org.au/drupal/node/55
[10] ABC News 2 March 2016 “George Pell: Father of abuse victims says he has given up hope Cardinal will help fix things”