Pell Pot pedophile verdict and the jury system
It's been 6 centuries or so since Magna Carta enshrined the right o trial by a "jury of one's peers" in the British system of criminal law - a right that has been taken over into many other legal systems, including those in the UA and Australia.
But now the High Court of Australia (the highest court in the country) has (in effect) ruled that jury verdicts can be over-ridden on appeal, so long as the defendant can afford a lawyer who can put up any sort of defence beyond "I was drunk your honour". At least that's how their decision today in the Pell Pot case appears to me.
"Pell Pot" is how many Australian catholics think of Cardinal George Pell, by analogy with the former dictator of Cambodia. Pell was a very authoritarian Archbishop in Sydney and then in Melbourne. He has been on trial for a case of sexually assaulting two choirboys/ altar boys several years ago when he was archbishop. A jury found him guilty, but after 2 appeals he has been found "not guilty beyond reasonable doubt" because the high court judges did not believe the critical witness, even though the jury did so.
In my opinion, this opens all sorts of awful legal precedents.
And on the more specific issue of priestly pedophilia, whether or not he was guilty of this particular offence, he was undoubtedly over many years a leading party in the church's cover up of the tendency of some of its priest to prey on altar boys and other vulnerable young people - if there was trouble the priest in question was simply moved on to a different parish, there [often] to do the same again.
But now the High Court of Australia (the highest court in the country) has (in effect) ruled that jury verdicts can be over-ridden on appeal, so long as the defendant can afford a lawyer who can put up any sort of defence beyond "I was drunk your honour". At least that's how their decision today in the Pell Pot case appears to me.
"Pell Pot" is how many Australian catholics think of Cardinal George Pell, by analogy with the former dictator of Cambodia. Pell was a very authoritarian Archbishop in Sydney and then in Melbourne. He has been on trial for a case of sexually assaulting two choirboys/ altar boys several years ago when he was archbishop. A jury found him guilty, but after 2 appeals he has been found "not guilty beyond reasonable doubt" because the high court judges did not believe the critical witness, even though the jury did so.
In my opinion, this opens all sorts of awful legal precedents.
And on the more specific issue of priestly pedophilia, whether or not he was guilty of this particular offence, he was undoubtedly over many years a leading party in the church's cover up of the tendency of some of its priest to prey on altar boys and other vulnerable young people - if there was trouble the priest in question was simply moved on to a different parish, there [often] to do the same again.
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Comments
IANAL (and in particular, I Am Not An Australian Lawyer), but I don't get the impression that this High Court decision has broken new legal ground.
But I find the OP a bit disturbing on other grounds. The argument reads to me as being 'George Pell is not a nice man. So he should have remained convicted of these charges'.
Er, no. My (non-lawyerly) understanding of how law works - at least in countries which follow the English tradition - is that one is convicted of a specific crime, arising from a specific incident or incidents. It may be possible for the prosecution to bring one's character in as supporting, circumstantial evidence ('they're a nasty person who would do this sort of thing') but that of itself isn't enough for a conviction.
In this case, the High Court has said that it is not shown beyond reasonable doubt that George Pell committed the acts that he was accused of. So the criminal law system has no further interest in whether he's a nice man or not, and he should walk free. If his not being a nice man is sufficient for him to face legal action (whether criminal or civil) then that's something to be pursued separately from the case that has now finished.
I think the High Court was right. There was a huge amount of unchallenged evidence from a range of cathedral staff and lay people that should have left a jury in real, not fanciful, doubt about the complainant's account. Some of that evidence relied to an extent on usual practice, but there was other evidence that was specific - eg the evidence of one of the supporting clergy that his mother was speaking with the Cardinal on the steps of the cathedral at the time it was alleged that he was assaulting a chorister in the sacristy; that evidence was corroborated by the mother who said that she normally did not attend Mass at the cathedral but had on this occasion as it was so soon after Pell had been enthroned. The Court was also right in drawing attention to the very real difficulties in prosecuting a case after such a time.
In my view, this is a tricky one.
Yes it does, but (AIUI, in the UK at least) it requires production of evidence that the jury did not have available, and that might have given them cause for a different verdict.
From what I am reading here (and I have not followed this story), there is evidence that was not presented that would give cause to come to a different verdict. This is not dependent on the cost of a lawyer.
AFAIK, "Being a complete shit-pile" is not prosecutable in law in any country, otherwise the prisons would be full. Also, being acquitted of a specific charge does not mean it didn't happen - it means that there is not enough evidence to prove it. It doesn't mean the accused lied. It means that - as per Magna Carta* - there was insufficent proof of the guilt.
This doesn't prove that Pell is not a paedophile - I think there is sufficient evidence that he is (although "Being a paedophile" itself is not criminal. Orientation is not criminalised. Acts are.). It proves that there is a chance he might not have committed this specific act.
*I think. I am a software person - history for me only goes back to Babbage and Lovelace.
From the start the prosecution struggled with the fact that there were a large number of witnesses whose testimony was favourable to Pell whom it was obliged to call. It sought the trial court’s leave to cross-examine these, even though they were technically its own witnesses, and leave was granted.
But the High Court found that there was evidence from these witnesses, unchallenged by the prosecution, which ought to have raised reasonable doubts in a reasonable jury. Accordingly Pell should not, in its view, have been convicted.
The evidence was presented at trial. The High Court success was on the basis that the High Court* found that the Victorian Court of Appeal ought to have had regard to all of the trial evidence and found that the jury should - on the whole of the evidence - have found that the Crown had not proven beyond reasonable doubt that Pell was guilty. Basically, I agree totally with what BroJames has said.
As to expensive counsel - yes, Bret Walker's fees are still probably very high but he also also does a lot of pro bono work. No idea what he charged in this case.
*Unanimously held - very rare to get a unanimous outcome these days, let alone a single judgment.
And how does the High Court know about the jury discussions on the possibility of reasonable doubt? They don't - in Australia they can't (jurors are sworn to secrecy on everything said in deliberations. I was on a jury recently - not this case!) They have no idea what was or was not considered in the jury room. What the High Court is saying is that they think the jury ought to have come to a different decision, and that they can overturn it. It's not a matter of new evidence, or misdirection by the judge, purely a matter of the High Court saying that in this case the jury got it wrong.
I didn't think that was how our system worked, and I'm concerned.
But the actual jury in the case, hearing all the evidence more directly than was possible for anyone other than the trial judge, came to a different conclusion. In this case, no fresh evidence was presented to either the court of appeal or to the high court. If late evidence comes up which is sufficient to cast doubt on the original verdict, of course that is legally and morally a good basis for an appeal. But that did not happen in this case.
So my legal issue remains: if the jury has no doubt of its verdict and absent fresh evidence or a mistrial (e.g. inadequate or biassed direction by the judge), how can it be right for a court to dispute the jury's verdict on the evidence presented?
The other issues I raised in the OP, including my general opinion of Pell as a person and as a church leader, do not bear on this question, but are open to discussion on this thread.
Maybe there is an unspoken notion that the jury acted as a 12 person referendum on the state of the RC church, or on Pells management style. And maybe they weren't entirely impartial.
Speaking as someone who was attached to an RC cathedral my reaction to the accusation was "no way" could that have happened in the sacristy which is always crawling with flunkies after Mass with the archbishop, fussing around him, especially with him in full pontificals.
Yes, of course, but appeals normally succeed on one of two grounds: new evidence has been found, or a finding of some sort of technical error in the original trial - like misdirection by the judge, hidden evidence, unreliable expert witness etc. As far as I'm aware none of these arguments were used in this case. Basically the original jury has been told it was 'unreasonable' in finding Pell guilty, and the High Court knows better.
I'm not saying that juries never get it wrong. But surely the system assumes that on balance the judgement of 12 ordinary citizens can be trusted to reach a reliable verdict. The High Court has, as far as I can see, overturned this entire principle today. I never thought to see them throw out the entire system, but that's what it looks like.
But like democracy, it's the least worst system, if we make sure there are checks and balances.
It is my understanding that the evidence in question was presented at the original trial, but the High Court thinks the jury didn't take enough notice of it. How they would know this I cannot imagine (see my comment above).
Perhaps, but that's not what the High Court said. If they thought that, they should have the courage to say it.
It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant's guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury's advantage, there is a significant possibility that an innocent person has been convicted.
Much the same was said in relation to the offences relating to the earlier occasion, but this puts the position very clearly and simply.
The judgement is not very long and by and large is not very complicated. You can access it at Austlii, which is a public free site.
I think this is a useful summary of the relevant Australian law.
AIUI the High Court is essentially saying that on the face of the evidence as presented at trial any reasonable jury ought to have been satisfied that there was a reasonable doubt that Pell had offended as alleged, and should accordingly have acquitted him. Even if they thought it more likely than not that is not a sufficient ground for conviction if they ought to have recognised a reasonable doubt.
I think in Australia, as in England and Wales, the court cannot investigate the jury’s deliberations.
When the evidence is in favour of such a conclusion, yes. How else can the system protect us against irrational juries?
What evidence? The point is there has been no new evidence. The high court doesn't agree with the jury, that's all that can be said.
Yes, I thought that in England, only new evidence can lead to an appeal. I've never heard of this idea that the jury were wrong, leading to an acquittal, without fresh material.
Yes - a conviction requires proof beyond a reasonable doubt and not just the balance of more likely than not.
There is of course no record of a jury's deliberations. Nor can there be an appeal against an acquittal (but if an intermediate court overturns a conviction, the prosecuting authority can seek special leave to appeal).
Thanks for doing the link - I tried but got a mess.
Doesn't everyone know that people who have been sexually assaulted should just put up with it and be quiet. That people who have been sexually assaulted always lose. Even when the person had been convicted. The process of court is re-assault. And lawyers always think they're the smartest in the room (judges are merely highly paid lawyers who often hey even more full of themselves than regular lawyers). When they are not.
The process over time had been to for lawyers to assume more and more power and diminish the role of the people courts are actually there to serve The system of courts and lawyers: this decision is a great step along this path, for 'expert' functionaries to assert their brilliance. The prime goal is power and to assert their influence. So congratulations to this court. Good one!
WIll there be new accusations similar to the acusations of his recent trial coming forward with better research and witnesses? especially given the concerns of his supposed not intervening in probable abuse earlier? (trying to avoid any language I should not use - and I asks hosts to please delete what is not appropriate)
How will Rome/Pope Francis respond? and what role in the church, if any, will Cardinal Pell have? As Cardinal will he not still have voice if not vote in the elction of Francis successor, should he outlive Francis? Or will he be liazied, or his status removed, and if so on what grounds?
Imagine if they applied it to democracy ....
The test in Canada is along the lines of whether any properly instructed jury acting judicially could have arrived at a conviction. A similar test applies to a verdict arrived at by a trial judge. The basic idea is that even a properly instructed jury (or trial judge) can sometimes arrive at a result that makes no sense, seen through the lens of judicial experience, and bearing in mind the Crown's high burden of proof.
On my quick reading of the High Court's reasons it looks like in this case the jury had (1) evidence that something happened, combined with (2) quite a lot of unchallenged evidence that it probably could not have happened. Even if they were inclined to believe (1), they had no rational basis to reject (2), and therefore the accused was entitled to the benefit of a reasonable doubt.
An odd feature of this case from a Canadian point of view is that apparently the Crown was required to call a number of witnesses whose evidence was straightforwardly unhelpful to its case. It's very rare that a Canadian court would force the Crown to do that.
If a jury is presented with the evidence that
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Person A says - that man Person 1 stabbed me in Trafalgar Square at 8pm 1st April 2000.
People B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,Q,R,S,T,U,V,W,X,Y,Z say - I attended a public lecture given by Person 1 in Edinburgh Castle at 8pm 1st April 2000.
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If the jury convicts Person 1 of stabbing Person A - is there any legal redress to that without new evidence ?
If a higher court can overrule that decision - then it merely becomes a question of how wacky a jury decision has to be, in order to be overturned.
Yes, there's such a thing as a directed verdict of acquittal, in Canada and (according to the site that @BroJames linked to) also in Australia. In Canada it comes at the end of the Crown's case, before the defence has to decide whether to call any evidence.
I can't speak to the law in Australia, but in Canada the test for a directed verdict is very hard for the defence to meet. All there needs to be is some evidence for the jury to hang its hat on, and any inferences that could be drawn in the Crown's favour must be drawn in the Crown's favour, even if other inferences are possible. Likewise the issue of the credibility and reliability of the witnesses' evidence is left for the jury to decide, and can't be taken into account on a directed verdict motion. All of these can be live issues on an unreasonable verdict appeal.
There are also cases where the Crown should invite a verdict of acquittal on the basis that there is no longer a reasonable prospect of conviction. These would probably be cases where the Crown's evidence at trial turned out to be very different from what the Crown expected.
It's an interesting question why it's easier for the Crown to get past a directed verdict motion than an unreasonable verdict appeal. I think it's partly an expression of faith in the jury system to fulfill its proper role, and a desire not to short circuit the process too early in the game.
Please can you clarify what this means:
Sorry, that was a rather counterintuitive way of putting it.
Generally speaking, it's very difficult for defence to get a ruling that there's "no case to answer", i.e., a directed verdict of acquittal. As long as there's some evidence, even if the evidence is weak or would require the jury to draw some improbable inferences, the case will probably still go to the jury to make of it what they will. But if the jury (or judge sitting alone) actually goes ahead and convicts on the basis of this evidence, the accused may have a viable unreasonable verdict appeal. Of course the reality is that if the evidence is that weak, the jury (or trial judge) should probably acquit, which is what usually happens in such cases.
By way of example, the Canadian case law on unreasonable verdicts shows a lot of concern about eyewitness evidence and evidence from unsavoury witnesses. If the Crown's case relies heavily on this kind of evidence, the jury will get a sharp warning about relying on it as part of the jury direction, but the case (and the evidence) will probably still go to the jury. Down the road, though, the Court of Appeal may say the verdict was unreasonable depending on how the evidence came out in the context of the evidence as a whole.
Typical examples would be where the prosecution's case has failed to show prima facie that it was the accused who committed the offence, that the offence actually happened, or that the end result was caused by the accused's actions. If the prosecution is relying on picking holes in the defence's evidence in order to make the charges stick, they will never get the chance to do so.
It does happen, usually when the cross-examination of prosecution witnesses has undermined their credibility. I am reliably informed that the judge will indicate such a petition might be favourably received by tutting, sighing and rolling their eyes.
(x-posted with Enoch)
- A court/judge can't overturn an acquittal by jury
- A court/judge can overturn a guilty finding by jury
As long as there is an appeals process. Much better that a system that is supposed to be 'innocent until proven guilty' errs on the side of caution.
I too would hate a 2020's version of "guilty by being Irish". I know the retort is "man found innocent of rape... again" but I'd much rather that than, "Man found guilty of rape despite lack of reasonable evidence, because he's a man so he probably did it because all men are barst**ds".
Its almost as though they want to kids to have been molested to underline their own views of the cardinal.
Someone claiming that a person found not guilty had nonetheless committed the crime could be sued by that person for defamation. But the libel action could fail if the court decided on the balance of probabilities that they had in fact committed the crime.
I think generally speaking in common law systems, there's no such thing as an "unreasonable acquittal" appeal. That is, if the trial judge made no legal mistakes, and the jury (or trial judge sitting alone) went on to acquit, the Crown has no right of appeal even if the acquittal seems to make no sense on a rational basis. Likewise the trial judge can direct a jury to acquit but cannot direct a jury to convict.
In Canada, the Crown does have a right of appeal from an acquittal if the trial judge commits an error of law and the Crown can show that there's reasonable prospect that the accused could have been found guilty if the judge hadn't made the error of law. AIUI the Crown's right of appeal in these circumstances varies widely depending on the jurisdiction.
Yes, that's correct. So when a judge is considering evidence in determining sentence after trial, matters favourable to the potential prisoner need only be proven on the balance of probabilities, those unfavourable need tp be proven beyond reasonable doubt. A neat distinction but I have no idea what real difference it makes in practice.
Marsupial - your first paragraph is much the same here, but at least in NSW and Victoria, not your second.
Dan Andrews (Victorian Premier) says everything that needs to be said about this decision. Here it is in full: