Another High Court disaster, coming up ?

Unsurprisingly, the rejection of Cardinal Pell’s appeal against his conviction for sexual abuse has led to the expectation that the case will go to the High Court. As far as I can tell, there are quite a few bad reasons for the High Court to take the case, but no good ones.

The bad reasons (all related to each other) are

  • Cardinal Pell is an important person
  • He is strongly backed by other important people
  • There is a lot of public interest in the case

What is missing is any legal issue raised by Pell’s conviction. The Appeal Court unanimously rejected suggestions that the trial judge made errors in his directions. The central remaining issue is whether the victim’s evidence was sufficiently credible to make it open to a jury to bring in a guilty verdict or whether the evidence of a defence witness, Portelli should be preferred.

Not having seen the evidence, I have no independent opinion. But the jury brought in a unanimous verdict, and two out of three Appeal court judges found that it was reasonable to do so. Is there any reason for the High Court judges, appointed primarily for their supposed expertise in constitutional law, to think they can do a better job of judging the case? If this appeal is heard, why not every criminal case where the Appeals Court produces a majority decision?

If the Court capitulates to political pressure by deciding to take the case, how will its verdict be viewed? An acquittal would certainly look like more of the same. Upholding the conviction would open them up to more attacks from the right. Then there’s the possibility of a split decision, unusual from this Court in high profile cases. That would really cause trouble.

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45 thoughts on “Another High Court disaster, coming up ?

  1. AFAIK Weinberg was not convinced that a jury could accept beyond reasonable doubt the complainant’s testimony without there being independent supporting evidence.

    Keith Windshuttle holds a similar view ie uncorroborated oral history is completely unreliable.

    Its becoming a minority view.

  2. How much evidence is there of alleged victims lying in these child sexual abuse cases? I would’ve thought (having knows some victims) that it would be extremely rare indeed.
    I’ve known cases where alleged “rape victims” have lied (in cases of ex-partners), but legally contestable child sexual abuse accusations are completely different situations – especially cases involving no close relationship between the parties involved where there might be counter allegations of revenge for recent conflicts or disputes.

  3. I was surprised that Pell was ever found guilty “beyond reasonable doubt” but that’s only my uneducated view. At a certain point we need to have faith in the judicial process. That point seems to have been reached. In short, the law may be an ass but without faith in it we are all in deep doodah.

  4. TP – Who knows? But I think you are instinctively throwing the burden of proof onto the defendant. I strongly believe, for instance, that there should be no statute of limitations on war crimes. Charge the accused if they’re 95. But I don’t believe that the standard of proof should be watered down because of the effluxion of time and the impact of that on human memories. This is not about being fair to the prosecution/complainant. I wish it could be. But I don’t think that would be right.
    In many ways, this is a classic 19th century criminal trial. No forensic proof one way or the other and depending wholly upon oral testimony. You don’t get many of them anymore.

  5. To better understand the Pell case you need only to look at the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse.

    “The sexual abuse of children has occurred in almost every type of institution where children reside or attend for educational, recreational, sporting, religious or cultural activities. Some institutions have had multiple abusers who sexually abused multiple children. It is not a case of a few ‘rotten apples’. Society’s major institutions have seriously failed. In many cases those failings have been exacerbated by a manifestly inadequate response to the abused person. The problems have been so widespread, and the nature of the abuse so heinous, that it is difficult to comprehend.”

    https://www.childabuseroyalcommission.gov.au/sites/default/files/final_report_-_preface_and_executive_summary.pdf

    Of this Scott Morrison said “Why was their trust betrayed?…Why didn’t we believe?..”

    The culture of institutionalised power is being broken down, bit by bit.

    https://www.theguardian.com/australia-news/2018/oct/22/scott-morrisons-national-apology-to-australian-survivors-and-victims-of-child-sexual-abuse-full-speech

  6. What I would like to know is what the track record of the High Court in past cases suggests about the likelihood of their taking this case (and the reasons they are likely to give for their decision either way). Do they usually give leave to appeal in cases like this one, or do they usually refuse it?

    I don’t mean ‘What are the principles they apply so those decisions?’ I can look those up easily enough if I feel like it. I mean ‘What happens in practice when they apply those principles?’

    For example, in practice, do they grant applications for leave to appeal against criminal convictions more frequently when those applications come from high-profile defendants?

  7. John, a few points:
    1. High Court judges are not appointed primarily for their expertise in constitutional matters. Their most important remit is to ensure that the criminal justice system is, well, just. Most of the great constitutional issues (e.g. s92) were decided years ago. The ability to weed out wrongful convictions is the truest test of an appeal court.
    2. If one looked at this case through a political lens, the High Court will be far more reluctant to quash the conviction than confirm it. Quashing the conviction will create a massive outcry. Andrew Blot et al represent a tiny minority. I have yet to meet anyone who thinks Pell is innocent or the conviction is unsafe.
    3. A central duty of judges is to protect the rights of the unpopular (any Pell is sure as hell that) rather than the popular.

  8. Freddo, I think you’ll find if you check into it that the High Court hears far more civil cases than it does criminal ones. You may feel that its role in criminal law is far more important than its role in civil law, even if spends much less time on it, and you may be right about that, but it’s not an official position and I don’t think it’s backed up by quantitative data, although it may be that qualitative data tell a different story.

    Most of the great constitutional issues (e.g. s92) were decided years ago.

    That’s misleading. Most of the High Court’s important decisions of every kind were made years ago, because most of its decisions great and small were made years ago. A new great constitutional issue might arise at any time.

  9. J_D – The High Court has many important responsibilities. But if the judges don’t think their highest responsibility is to supervise and protect the integrity of the criminal justice system, the judges should all be fired. In any event, they will be desperate to deny special leave (I don’t think this mob are all that courageous). But the Weinberg decision creates real problems for them. He was easily the most prestigious judge on that panel. Do they just ignore it?

  10. I agree with the “beyond reasonable doubt” principle, however the problem here is that sexual harassment cases by statistics generally take 2-3 decades for cases to be brought forward. If Pell’s case facts results in the High Court overturning Pell’s conviction, then it is mere the result of this specific case.

    However the argument in the comments of this post is not at a legal level. If it is inconceivable that Pell can be proven guilty beyond reasonable doubt simply because the event happened 2-3 decades ago; then it would also be inconceivable that other accused/convicted sexual offenders can be proven guilty beyond reasonable doubt if the event happened 2-3 decades ago. This argument may also be extended to other offenses too. I don’t think the High Court judges are that amateurish to take this argument seriously.

  11. Tom, to borrow and amend your words,

    It is inconceivable that Pell can be proven guilty beyond reasonable doubt … because the event happened 2-3 decades ago and because the only evidence of guilt is the accuser’s performance on the witness stand.

    As I have already pointed out, the available science shows people, including judges, are not good at determining if someone is lying yet most of us wrongly think we are very good at detecting lies.

    I would prefer to see 1,000 guilty people go free than one innocent person go to prison for a crime they didn’t commit.

    Moreover, as I said before, the poor state of our legal system almost certainly means hundreds of poor and powerless people are wrongly convicted for every big fish like Pell.

  12. And for every one of those wrongly convicted, there’s probably well over 1000 life-destroying perpetrators who have either not had charges filed against them or have been covered up, or have had cases incorrectly thrown out or had victims suicided before any action was brought forward which is tragic and disgraceful.

  13. Troy, I think sending innocent people to prison is an order of magnitude more tragic and disgraceful.

  14. Pell is not innocent, he has been given the best defence and was fairly convicted. His victim has passed the highest level of scrutiny and was found to be truthful.

  15. > I would prefer to see 1,000 guilty people go free than one innocent person go to prison

    The best evidence we have suggests that is exactly what happens in sex crimes, especially one with children as victims. When you crunch the numbers starting with something like 1% reported to the police the 1000 guilty going free is probably an underestimate.

    This specific case is to me much more of a “they did Capone for tax evasion” conviction. Pell led an organisation with a long and rich history of child abuse, from their participation in the genocides of aboriginal nations through to their determination to evade mandatory reporting requirements. As such he’s responsible for so much more than what he has been convicted of, but as long as he’s in jail I’ll be happy that we’ve made a start.

  16. I was in Melbourne for 7 years. At one stage I had a swimming school so I know many people there. But I’ll never go there again. Because you could have some agent accuse you of anything at all, and you are not supposed to win on appeal if you are innocent. The good judge has spearheaded the finalising of this banana republic. Its a joke. A kangaroo court system. Just disgraceful. If you haven’t heard that evil judge talking try it some time and you will see she doesn’t care about guilt or innocence. She’s married to another judge in the same court. The good judge has had an assistant working with him for maybe 40 years or something. When you infiltrate an institution you keep your teams tight.

  17. Freddo, recently I had an exchange with another commenter here who insisted that the principal function of the High Court is to interpret the constitution. I’m not insisting that you are wrong and the other commenter was right (I don’t think the other commenter was right). What I’m suggesting is that it might be interesting if you considered what kind of argument you would present in favour of your conclusion (that the highest responsibility of the High Court is to supervise and protect the integrity of the criminal justice system) to somebody who did not already agree with that conclusion. The High Court’s own website says that its functions ‘are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts’: there’s nothing there (explicitly) about the integrity of the criminal justice system, so I’m curious to know what argument you might offer that there should be.

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