The Fool, the Fraud and the High Court, in defence of the jury.

(Cartoon above is done by Paul Zanetti during the Royal Commision and Pell’s denial of everything relying on the ‘legal people’ to find ‘a fix it’ strategy. It’s an excellent example of how satire is used to convey the poignant message)

Politically speaking, like most onlookers concerning this sordid affair, I am both shocked and appalled at what our High Court has seen fit to do in Cardinal Pell’s matter.

Watching Georgie striding out of Rome's airport without a walking stick in sight, unlike when he was making his way into the Victorian County Court whilst he was on trial; or all his pathetic health excuses for why he couldn't travel to give testimony to the Royal Commission in Institutional Child Abuse. No, he showed himself perfectly fit and able to meet the throng of Italian and international press clamouring to get a comment from this piece of work. A few days later he was hobnobbing with that fool, Pope Francis, smiling and all cheery, it was a truly sickening sight. But what did we expect? Georgie has some form obfuscating justice. Our learned Justices of the High Court have fallen for the same error one of their brethren did some 17 years earlier.

That was the first time Pell was confronted with his past, shortly after he was appointed Archbishop of Sydney, Pell was accused (by a man who cannot be named) that he was sexually molested whilst Pell was a 19 year old seminarian, this complainant first made the allegations to his wife around 1975. Despite a gruelling inquisition at the hands of Pell's QC's, Southwell concluded:

"I accept as correct the submissions of Mr Tovey [for the complainant] that the complainant, when giving evidence of molesting, gave the impression that he was speaking honestly from an actual recollection. However, the respondent, also, gave me the impression that he was speaking the truth. ... In the end, and notwithstanding that impression of the complainant, bearing in mind the forensic difficulties of the defence occasioned by the very long delay, some valid criticism of the complainant's credibility, the lack of corroborative evidence and the sworn denial of the respondent, I find I am not 'satisfied that the complaint has been established', to quote the words of the principal term of reference." (my emphasis)

Now lets skip to what our Highest Court in the land as done to erode the very core of our 'participatory democracy'. If you get the impression I'm slightly livid about this situation, I am. I find it an intolerable incursion into what little access the ordinary people have in deciding 'truth from non-truth' especially in a setting where the accused aggressor chose to 'play the system' and not submit to an open court to make his plea of innocence. This is a man who spent a lifetime from atop a grandiose pulpit pontificating to his congregants (the converted, or brain dead as I like to call them) all the ills of a sinful society in which we all live, well that thin little veil has been torn down. No Pell espoused the virtues of the great Socrates, who himself was falsely accused, but Socrates chose to be 'truthful to his fellow Athenians' and speak his truth, this after the sophists themselves offered to do it for Socrates free, Pell, the fraud, used the paid 'sophists' such as Brett Walker QC in the High Court. Mr. Walker did not see or hear all of the evidence, nor did the justices of the High Court.

Our High Court usually talk up that great Jurist of English Law, William Blackstone responsible for the great commentaries on the English Law system and an ‘authority' on many important legal concepts, but not the jury it seems, I will return to Blackstone later in the blog, in summary, the unanimous majority decision essentially, is wrapped up in these two crucial paragraphs:

“[58] It suffices to refer to the evidence concerning (i), (ii) and (iii) to demonstrate that, notwithstanding that the jury found A to be a credible and reliable witness, the evidence as a whole was not capable of excluding a reasonable doubt as to the applicant's guilt.

[127] The unchallenged evidence of the applicant's invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement under Catholic church practice that the applicant always be accompanied when in the Cathedral, were inconsistent with acceptance of A's evidence of the second incident. 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. (my emphasis)”

Central to their reasoning based on the facts of the case was the very fact that Pell was 'an Archbishop'. They found it 'impossible' to accept that such a brazen attack on two choir boys 'could have happened' on such a solemn occasion, with so many people around, including Pell's Master of Ceremonies Msgr. Portelli. This is the man who could NOT unequivocally say that the Archbishop was 'with him at all times on each of the occasions' that the accused said such attacks took place. It was not enough for our High Court that Pell and the two boys were factually in the same place at the same time, they had to be convinced of the 'opportunity' for Pell to able to carry it out, the very same dictum relied on by Weinberg J in dissent in the Victorian Court of Appeal and the same error of Southwell before them in raising the threshold of 'believability' required of a complainant when accusing, an Archbishop.

Now, the the High Court Court drew upon previous decisions (precedents) in which it saw fit to overturn a jury decision (only a handful), and the case frequently relied on is M v The Queen ([1994] HCA 63; (1994) 181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.). That too was an historical sexual assault charge against a father abusing his daughter, but unlike Pell’s case M (the accused) did get into the witness box and did give evidence. Not only that, but the trial judge's comments to the jury played a big part in what was ultimately a ‘misdirection’ to the jury to convict. Very different circumstance from that of Pell who chose to ‘play' the system; refuse to get into the witness box and face full blown interrogation (unlike his accuser who did for two days running), culminating in a HC decision which was ominously and completely silent on trial judge Kidd's erudite directions to the jury.

According to our current High Court bench ‘only High Court Justices’ can act “rationally” when convicting an accused. The Court has chosen to undo their very words about the special legitimacy enjoyed by juries in another similar case involving trial by jury where the very same plurality (KIEFEL, BELL AND KEANE JJ) recently said this about jury verdicts:

[127] It is not to the point to observe, as the applicant did, that the great majority of criminal cases are determined by courts of summary jurisdiction (that is without a jury). Public interest in, and concern about, the administration of criminal justice is commonly focused on the prosecution of serious crime in the higher courts. The verdict of the jury has unique legitimacy. As the Director submitted, the determination of guilt by jury protects the courts from controversy and secures community support for, and trust in, the administration of criminal justice. As the Director also submitted, were the command of s 80 subject to exception based on a court's assessment of the "interests of justice" criterion, it is likely that its application would vary between individual judges and, perhaps, between jurisdictions. (my emphasis)

And Gageler J at

[131] Lord Devlin gave expression to the same understanding 30 years later when he described the jury within the common law tradition as a "little parliament" serving to ensure a measure of democratic participation, and therefore democratic legitimacy, not in the making of criminal law but in its administration[222]. Lord Devlin later went on to develop that theme[223]:

"The jury is the means by which the people play a direct part in the application of the law. It is a contributory part. The interrelation between judge and jury, slowly and carefully worried out over several hundred years, secures that the verdict will not be demagogic; it will not be the simple uninhibited popular reaction. But it also secures that the law will not be applied in a way that affronts the conscience of the common man. Constitutionally it is an invaluable achievement that popular consent should be at the root not only of the making but also of the application of the law. It is one of the significant causes of our political stability." (my emphasis)

It is important to point out that our learned justices of the High Court in those preceding paragraphs were referring to the jury’s ability to convict under s 80 (trial by jury) of our constitution in the context of convicting a terrorist supporter/financier (Alqudsi v The Commonwealth; Alqudsi v The Queen [2015] HCA 49 (20 July 2015)). Poor Mr Alqudsi was pleading for a judge only trial, positing that he was unable to have a 'fair trial' with the public hysteria around terrorism and islamophobia. Our High Court disagreed, he could face an impartial and rational jury.

So, it seems when it comes to convicting a terrorist, the jury is perfectly placed to convict and can be ‘rational’ but when it comes to an Archbishop they are incapable of exercising that rationality.

Back to Blackstone, the more I read him, the more I like him. He had these very important and prophetic words to say about the jury system and what our High Court has done:

"The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely entrusted to the magistracy, a select body of men, and those generally selected by prince or such as enjoy the highest offices in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should always be attentive to the interests and good of the many.

The law is well known and is the same for all ranks and degrees; it follows as a regular conclusion from the premises of fact ... Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found to be the best investigators of truth, and the surest guardians of public justice".

Blackstone is adamant that allowing the upper echelons of society to run rough shod over the common man is an aristocracy that is intolerable and antithetical to the ideals of libertarian society, and I agree wholeheartedly. Need we look any further than the two most recent appointments to the bench, conservative, colourblind privledged families who have a stronghold on the judicial arm of government in Australia.

The Pell decision smacks of everything but ‘open justice’ and all the pretty terms employed by the justices to gloss over their unwarranted interference in this case amounts to nothing. There is no erudition in their reasoning and they need to be reminded we do not have a society made up of judges alone.

If anyone has engendered a lack of confidence in the judicial system in Australia, it is the colour-blinded majority of the High Court, and if they complain, then I’m sorry it is the Court itself that has undermined ‘the determination of guilt by jury (and invited) controversy and (a lack of ) community support for, and trust in, the administration of criminal justice. (my emphasis)

The Solution

Its not like me to be so vocal about a cornerstone of our democracy and not propose a solution. There is one for the sacrosanctity of the jury system and it is this; the strengthening of s80 of our constitution. We need a simple amendment that says the equivalent:

"all indictable crimes must be carried out by jury trial ... and a jury decision of guilt attained by a unanimous jury competently directed shall not be overturned unless a significant error of law can be demonstrated"

That would be one simple amendment to secure a jury verdict of guilt and restore the jury as THE tribunal of fact, without un-necessary and un-warranted interference from anywhere.