Cardinal Pell: in defence of trial by jury

Pell is entitled to his innocence. But we should be wary of judges overturning decisions made by juries.

Luke Gittos

Topics World

Earlier this week, the Australian High Court quashed the conviction of Cardinal George Pell. Pell was convicted in December 2018 on five charges of sexual assault against two 13-year-old boys. He was sentenced to six years in prison.

The case has a long history. In 2013, police in Victoria launched an investigation into Pell. At that time, there were apparently no accusers. A number of witnesses and allegations later emerged. One witness, who became known as witness J, claimed that Pell abused him and another boy following a Sunday Mass in 1996. The second boy died of a heroin overdose in 2014 and retracted his allegation against Pell shortly before his death. There are a number of other allegations, some of which are proceeding in civil courts, though it was witness J’s evidence that was eventually used to convict Pell.

The assault allegedly occurred at St Patrick’s Cathedral in Melbourne. Witness J claimed that he and another boy had trespassed into the sacristy section of the church, which was off-limits to the public. According to J, when Pell found them he proceeded to commit sexual violence against both of them, while still dressed in his vestments.

The decision of the Australian High Court judges stated that the jury at the trial ‘ought to have entertained a doubt’ about the evidence of Witness J. They considered evidence from a number of additional witnesses who had been present at the Mass where it was said Pell had committed his crimes. They also considered the evidence of Charles Portelli, the master of ceremonies at the Mass who said he had been with Pell throughout the morning of the alleged incident.

On one hand, the decision of the court should be welcomed. It appears that the evidence given by witness J was questionable. Under Australia’s system, a jury must be sure ‘beyond reasonable doubt’ of a defendant’s guilt, which mirrors the burden of proof in English and Welsh courts. It does seem remarkable that the jury convicted on evidence which appears fantastical.

But we should not be so quick to question the decision of juries. The jurors in the case heard in excess of 50 witnesses in the course of the trial. There has been criticism of the police’s failure to interview witnesses who supported Pell’s account of his movements. But there can be little doubt that the jury was exceptionally well placed to make a decision on Pell’s guilt.

The High Court has overturned the verdict for no other reason other than the judges disagreed with the jury’s view of the evidence. A piece in the Sydney Morning Herald raises a very important point. If seven judges can simply overturn the decision of the jury, then what was the point of the jury trial in the first place?

In England and Wales, the Court of Appeal interferes with the verdict of juries extremely rarely. This is a good thing. It would be wrong if judges could simply overturn jury verdicts they disagree with. Of course, our appeal courts can step in where there is new evidence of a defendant’s innocence or where something has gone wrong in the course of a trial. But overturning a conviction simply because judges think the jury got it wrong suggests that judges are better qualified to judge guilt than members of the public. This is why our appeal courts tend to treat the jury’s verdict as outside of their jurisdiction.

Jury verdicts ought to be protected for two reasons. First, jurors are able to bring a wide range of life experiences to interpreting the evidence before them. Individual prejudices or biases can be weeded out through the process of deliberation. Appeal judges tend to recognise that they are not best placed to make decisions about the evidence when they have not heard the witnesses live in the courtroom. There is also no outside pressure on a jury to return a particular verdict. In our system, jurors cannot reveal their reasoning to anyone in public. They cannot be interviewed about their decisions. Their identities remain secret. This is a good thing. It allows them to make an objective and impartial decision on the evidence.

Jury trials, and the verdicts they pass, are also vital for democracy. Justice is done in the name of the public. It allows the black letter of the law to be interpreted in accordance with public values. This is important for the legitimacy of the decisions taken by our criminal courts. If judges can simply overrule the decisions made by jurors, then they are able to overrule the democratic decision taken by members of the public. This would seriously undermine the public’s role in the justice system.

George Pell is now an innocent man. He is entitled to be presumed innocent unless another jury finds him guilty. But we should not celebrate judges overturning the decisions of jurors. It undermines the public’s role in the justice system and makes our justice system less democratic.

Luke Gittos is a spiked columnist and author. His latest book Human Rights – Illusory Freedom: Why We Should Repeal the Human Rights Act, is published by Zero Books. Order it here.

Picture by: Getty.

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Sam Best

16th April 2020 at 10:16 pm

Why does Luke Gittos fabricate claims and what does that say about the accuracy of his other writings?.
This for example : “The second boy died of a heroin overdose in 2014 and retracted his allegation against Pell shortly before his death.”. The man died long before Pell was charged and a year before the only accuser went to police (after the advertised for accusers). He NEVER made any accusations against Pell and his mother was reported as saying he denied ever being abused in the Church when she asked him. Gittos has fabricated this claim.

And this claim by Gittos:
“The High Court has overturned the verdict for no other reason other than the judges disagreed with the jury’s view of the evidence”
This is absolute rubbish & it’s obvious Gittos has not read the High Court Judgement.
The 7 Judges severely criticized- in polite language- the so-called claims of the accuser stating his testimony repeatedly changed too many times to be believable.
The 7 High Court judges also pointed their sheer astonishment at the jury & 2 Appeal Court judges who simply ignored the accuser’s claim in a police walk-around video pointing out aspects of the Church and especially the alleged abuse room stating confidently to the camera and police: “yes this is the room and it’s exactly the same as when we were abused in it. i will never forget it”. Yet, 2 builders gave evidence in the trial that they had fully re-furbished the room to the point of completely rearranging it in 2003 nearly 10 years after the alleged abuse and that is was now nothing like it had been in the years abuse was claimed.. It meant one of two things 1. the accuser had only recently seen the room and fabricated his claim or 2. a description of the room had been fed to him.
Gittos displays a complete ignorance of the facts. The 7 Justices of the High Court also pointed to what they said was one of the convictions which was completely unsound and that the Appeal Court judges should have picked on: the fact the jury convicted Pell on the accuser claiming Pell spotted him some weeks later in hallway in a procession of 30 choirboys and 20 adults- strode over to him ( as the 7 Justices said : in full Cardinal regalia”) grabbed the boy, shoved him into a corner and groped the lad. Yet police did not seek out ONE SINGLE of those 50 witnesses in the hallway . The 7 High Court judges basically this was an appalling conviction that indicated any person could be convicted of rape on the word of another without a single piece of evidence and police avoiding seeking out even one of 50 witnesses.
But there is so much more criticism in the High Court Judgement which was not just severe on the lack of the accuser’s credibility and his shonky ‘evidence’ they severely criticized two Appeal Court judges (both with limited experience in criminal trials) for their bizarre avoidance of obvious evidence in the timing which meant Pell had less than ONE MINUTE to abuse when the 3rd Appeal judge Justice Weinberg considered Australia’s most experienced and export criminal barrister pointed out basically the same obvious flaws in the case as did the High Court.
As for Gittis relying on a Sydney Morning Herald ridiculous “very important point”- Appeal Courts overturn jury convictions every day of the week in Britain and Australia and it’s a nonsense to make such a claim.
Dozens and dozens of British convicted people have been released upon appeal such as alleged Irish bombers, murderers and so on in Britain after new evidence which is exactly what the High Court judges found- not so much new but evidence clearly indicating innocence and simply overlooked by the jury and Appeal Court. Perhaps that’s where Gittos picked up the rubbish of more accusations. This has been repeated ad infinitum by numerous Australian newspapers and NOT ONE has bothered to report that those accusations were already thrown out of court in the very early days of Pell’s trial . They simply recycle them and that includes the swimming pool allegations dismissed or dropped by a very hostile prosecutor so they have Buckley’s Chance of making it into a claims court with the ambulance chasing shysters pushing the claims.
And now revealed but because of peculiarities of the Victorian justice system that prevents an accuser being questioned on health matters, Pell’s accuser has a long history of mental illness and severe psychiatric confinement.
All in all, a pretty vacuous article riddled with flaws.

Katrina Mid

10th April 2020 at 5:44 pm

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James Knight

10th April 2020 at 3:04 pm

The jury is still out on this one.

Jonathan Palmer

10th April 2020 at 2:16 pm

The need not be any criticism of the Jury implied in the Appeals Court Action. The Jury did their best on the evidence offered and the summing off. If they were deprived of key evidence or there were inadequacies in the summing up then the verdict may not necessarily be safe.
I agree it is exceptional for an Appeals Court to state innocence

Jim Lawrie

10th April 2020 at 11:21 am

“But we should not be so quick to question the decision of juries. The jurors in the case heard in excess of 50 witnesses in the course of the trial.” It is the witnesses that they were barred from hearing that allows us to question the whole process and say that the jury’s verdict was wrong. That is not the same as questioning the integrity or the decision making process of this or any other jury, or the jury system. Get down off your high horse and you’ll see that the jury is not a sacred cow.

Vadar’s Hate Child

10th April 2020 at 11:09 am

The practical problem with overturning a jury’s verdict at appeal, on the basis that they got it wrong, is that you open the floodgates for every guilty verdict to be appealed and thus make it impossible to convict anyone unless both a jury and a separate panel of judges convict, and paralyse the legal system in the process. The experienced and knowledgeable judges of the High Court will have been well aware of this, so the fact that they reached a unanimous decision shows they thought something went exceptionally wrong with the jury’s thinking.

RJ Smith

10th April 2020 at 10:40 am

Your argument is ill-conceived and based on a lack of important information. Juries as lay persons are susceptible to bias. That is why we have the law of evidence, which controls what they can and cannot see. In historical sex abuse cases everything has been stacked against accused persons after decades of legislative intervention. As a counter-balance, intermediate appellate courts have the duty and right to review unsafe convictions like the one recorded in this case. The Victorian Court of Appeal failed to discharge that duty here.The High Court of Australia corrected the error in a rare unanimous (7-0) judgment. The decision should be welcomed by anyone who cares about truth, justice and the rule of law as opposed to the rule of the mob.

Chris Hanley

10th April 2020 at 8:51 am

As Orwell famously wrote: “… if thought corrupts language, language can also corrupt thought …”.
In the lead-up to both Pell trials there were media articles, TV programmes and even a book where “victim” was used instead of complainant or accuser.
At the same time there has been the campaign urging that in cases involving claims of sexual assault and rape where there is no evidence other than accusation and denial that the ‘victim must be believed’ and apparently that mindset has influenced police, juries and judges.
Luke Gittos in his article asks “… what was the point of the jury trial in the first place? …”, if the tautological and question-begging legal concept that ‘the victim must be believed’ applies, there is no point.

SNJ Morgan

10th April 2020 at 6:36 am

“But there can be little doubt that the jury was exceptionally well placed to make a decision on Pell’s guilt.”

-This is absolute tosh. The jury based it’s decision entirely on its prejudice against the Catholic church, and hatred of Pell as the head of that church in Australia.

As the High Court said in its unanimous findings, it was not open to the jury to find Pell guilty beyond a reasonable doubt. This was a unanimous finding, and basically means the jury made a terrible decision, however well-placed it was.

There are many facts surrounding this saga, which is our version of Carl Beech, of which you are unaware. For one example Victoria Police firstly alleged the offenses to have occurred after mid-week choir practice, not after a Sunday Mass.

Then they discovered Pell would not be there for choir practice or mid-week as he didn’t live in the cathedral – something they didn’t know, so the story had to be changed.

The two appeal court judges that upheld this risible conviction actually said that Witness J getting things wrong added to his credibility!

This case has been Australia’s biggest miscarriage of justice and anyone with an open mind knew it from day one.

There has been a determination to Get Pell ever since the RC into child sexual abuse in 2011. Even though the Catholic church was only one of about 80 institutions (if memory serves me right) named by Commission, it is only the Catholic church that is guilty. All the others are given a free pass.

The hatred continues apace now that justice has finally been served with the left-wing media piling on about possible ‘civil suits’. To a rational person, the fact that there may be civil suits against Pell in the future against is neither here nor there.

Here is a professor having a go at an ABC presenter about their role in this sorry affair:

Jim Lawrie

10th April 2020 at 9:52 am

I totally agree.
“There has been criticism of the police’s failure to interview witnesses who supported Pell’s account of his movements” says the article. So that the Police and Prosecution cannot later be accused of withholding evidence that tends to support the innocence of an accused, they simply do not gather it. The above article supports that trend by mentioning it in passing as if it were separate from and unconnected to due process. When it is left for the defendant himself to seek out such evidence, it is seen as tainted because it has been by put together by an interested party, rather than the supposedly neutral investigators. The Police and Prosecution often rely only on evidence put together by the “victim” and their friends.

Your description of this case shows that the Police, Judiciary and Prosecution will go even further by bending or dismiss evidence that fails to stand up to scrutiny and demonstrates that the accuser is a liar.

I know of a case in The UK where a guy has been accused of stalking based on statements and evidence presented by a woman and her friends. The police have done no investigating whatsoever. The guy, as part of his bail conditions, has been barred from going to his local park where he might be able to contact potential witnesses who might prove his innocence. His accuser, prompted by that bail condition, has now contacted those people and sullied the man’s character. The man refused to accept a caution because he was innocent and he knew this would be followed by more accusations if she were flushed with this success. Such is the laziness and prejudice of the Police and Prosecution that they cannot see the glaring inconsistencies in their evidence and accusations. A woman of impeccable character who came forward and gave a statement supporting the man’s version of events has been placed under police investigation. She flatly refused to give her address and still does.

ian holmes

11th April 2020 at 11:23 am

Kinda reminds me of the Daniel Holtzclaw case in the US although he was not as fortunate as Pell as he is doing 263 years in jail after being railroaded.

David Watford

10th April 2020 at 3:19 am

The treatment of Pell, who was targeted by anti-Catholic activists, the media and the Federal and State Labour party echos the finding of Henriques’s scathing inquiry in to the Met’s handling abuse allegation during Operations Midway and Yewtree.

Victoria police, with the full backing the national broadcaster, left wing media and Victorian Government set out to get Pell, because as head of the Catholic Church he would be a great scalp. They started with no complaints and spent two years working with the National Broadcaster, rounding up many, most of which had been considered and rejected decades before for lack of evidence. Nearly all of them were thrown out by the court or withdrawn by prosecutors because they were untrue. They proceeded with these charges even though there was no chance of a sound conviction beyond reasonable doubt. Especially true for the allegation where the victim withdrew it and swore that the abuse never happened, and had died so could swear no complaint and provide no testimony.

The first jury, which heard the testimony live, was hung and mistrial declared. The second jury, which didn’t get to hear the testimony live but was only shown edited video recording of the testimony from the first trial, convicted Pell. This was part of Pell’s ground for appeal to the High Court.

After the conviction the Victorian Courts charged over 100 journalists in Australia, and tried to charge journalists overseas. with contempt for reporting Pell’s conviction alleging it prejudiced Pell’s chances of a fair trial if they wanted to pursue further charges. These were all later dismissed at trial.

Two appeal court judges rejected Pell’s first appeal arguing that because the victim’s testimony must be held to be credible, no evidence that Pell had no opportunity to committee the alleged crimes could ever amount to reasonable doubt. The High Court found that this reversed the burden of proof so that Pell was held to be guilty unless he could prove there was zero doubt that he didn’t commit the crime. The third, most experienced judge, wrote a dissenting report in line with the High Court’s decision.

So if you are going to rely solely on a jury, why not the first one that was unable to convict Pell after hearing the witnesses and cross examination live? Why the second one which only saw edited video and where the prosecution was able to adapt it tactics to increase the chances of getting a conviction?

They are many serious legal problems exposed by this long ordeal. But simply saying the Jury must be right, when they convict against most of the evidence and the established principle that proof beyond a reasonable doubt won’t solve the problem. Under Victorian law, because of the media attack on Pell, he could have been granted a judge only trial. The court rejected this because a jury conviction on emotional grounds was the best chance ensuring Pell died in gaol.

Jim Lawrie

10th April 2020 at 12:16 pm

Alex Salmond declared straight after his trial that there is much to come out that was not aired in court.
Sturgeon, in her role as First Minister declared that the verdict must not be discussed now and cited the country at danger from the virus as justification for that position. Patriotism is always the first refuge of the scoundrel.
She was clearly shaken and put on the back foot by the verdict. I wonder if she had prepared a victory speech targeting her rivals, and Mr Salmond’s allies, in The SNP. She claimed not to have been following the trial that closely. Aye, right.

Who the eff is she to dictate what we can and cannot discuss, and why was that her immediate reaction to the verdict?

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