UNSW Professor of Law Jill Hunter looks at the question before the High Court: was the jury’s verdict unreasonable in the case against the former Cardinal?
The jury trial is considered the gold standard for determining justice in Australia. Today juries might only apply for serious crimes, however this does not reflect the jury’s status in the legal psyche.
Suspending jury trials in response to COVID-19 implicitly recognises that 12 jurors will deliberate in the unhealthy dynamic of close proximity, and with some intensity. A unanimous verdict (or sometimes, near unanimous) is an intrinsic feature of a jury verdict.
Rampant illness in the community seriously threatens 12 jurors staying in good health throughout a trial, and while one or even two sick jurors can be accommodated, if too many are sick the trial must abort, unfinished.
Many of the pressure points in the High Court Pell appeal rely on the jury’s important trial role. The jury’s strengths – group deliberation, community-informed everyday life experiences and jurors’ common sense – make it a highly-valued common law institution.
However, jurors (and judges) are human. They can be wrong. Hence an appeal process.
But appeal courts cannot merely replace jury verdicts with their own verdict by choosing who they, the judges, believe. This would risk turning our justice system into trial by appeal court judges. Jurors decide witness credibility, not appellate judges.
Instead, the role of the Pell appeal court is to ensure no conviction is based on an unreasonable verdict. The judges review trial transcripts (and sometimes audio-visual recordings) to establish the capacity of the evidence as a whole to sustain a conviction to the criminal standard, beyond reasonable doubt.
The key question before the High Court is, putting aside that the jury found Complainant A a credible witness, did the majority fail to recognise that there was evidence that established a reasonable doubt?
If the jury did fail to recognise such evidence, it could not find the former cardinal guilty of the five offences.
There is a mountain of highly contested factual and legal detail involved in responding to this question. The Victorian Court’s judgments are book-length – more than 240 pages. That Court, like the High Court Justices, had to digest nearly 10 times that amount of trial transcript, some 2000 pages.
In addition, there are parties’ written submissions, and two days of senior counsel explaining their submissions to the High Court, often involving intense Q&A sessions with hair-splitting distinctions at play.
George Pell as appellant bears the burden of persuading the appeal courts that the jury’s verdict is unreasonable. The Pell case accepts that the jury believed A’s testimony but claims that the Victorian appeal court majority failed to appreciate the evidence of alibi. That is, the other witnesses’ evidence of Pell’s movements after Mass showing no realistic opportunity for him to be in the sacristy as described by A.
The appellant claims that the prosecution case did not ‘fit’ the evidence of the other witnesses. This submission may have some force as long as it does not intrude on the legal principle that a conviction can be based on a single witness’s incriminating evidence. That principle ensures crimes committed in secret are not immune from the criminal law.
Entwined in parties’ submissions is devil in much detail. The allegations relate to events over 20 years earlier and most of the ‘alibi’ witnesses cannot speak to the specific day(s), just of the usual practices after Mass.
The two decades of delay make it unsurprising that there are witness contradictions, some confusion and uncertainties. However, as the prosecution argues, coupled with witness concessions that usual greeting and processional practices were not always rigidly followed, the strength of Pell’s potential alibi is reasonably in doubt.
One response to this is – should the prosecution benefit from this uncertainty?
These are just some issues. Others include whether:
- the Victorian Court of Appeal majority reversed the burden of proof onto the defence. This is entwined with issues concerning the strength of witnesses’ alibi evidence.
- the prosecution not calling a witness (Father Egan) created a reasonable doubt – or is this trumped by the operation of the legal principle that insists juries cannot speculate on what a witness might say.
- Finally, did the Victorian appeal judges take a wrong step watching audio-video recordings of trial witnesses? This links to whether the Court intruded into the jury’s domain to consider witnesses’ credibility. This is also complicated by consideration of whether there are degrees of credibility assessment.
Clearly, establishing an informed and considered view of the evidence is not achieved by singular acceptance of one or two witnesses’ accounts. Nor is it relevant whether a high-ranking cleric would or would not behave in the way alleged. George Pell is not being tried for the crimes of others.
The Victorian Court of Appeal divided 2:1 to uphold the jury verdicts. It is reasonably likely there will be differences of opinion within the High Court, though nothing can be predicted with confidence.