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

  1. Yes, in the absence of an allegation of some misstatement, or clear misapplication, of a law or legal principle in yesterday’s appeal decision (and I would be surprised if there was, given the time they had to write their carefully considered conclusions), I would have thought that the High Court would not take on a further appeal if it looks like the defence just wanting to expand the number of judges pondering the evidence until they get the majority outcome that they want.

  2. If the Court declines to hear the case they will be pilloried by Pell’s supporters for not even giving him a hearing. There’s no escaping the politics when it comes to George Pell.

  3. John, whether they think they “can do a better job” doesn’t quite capture the criteria under section 35A of the Judiciary Act regarding leave to appeal..

  4. I don’t know, JQ: do you think High Court judges spend that much time worrying about abuse from Right wing columnists in the Murdoch press, or what some moderate Catholic figures may say about their remaining doubts? I don’t think we can fault Scott Morrison’s response yesterday, and even John Howard declined to comment, which indicates most politicians of the Right are not going to want to dwell on the issue. Hence, I am not sure it feels right to call it “political pressure”: perhaps more a case of right wing populist pressure, but from a relatively small part of the population that most judges probably routinely ignore.

  5. If the high court allows an appeal application it allows Pell more time to become deceased before ‘justice’ runs its course. Result: Pell off the hook, hc off the hook, rc off the hook, gg off the hook, scomo off the hook… Not exactly as tidily executed a face and fortune saving outcome as the Pratt operation, but supposed beggars can’t be choosers.

  6. Basically agree with your op JQ, yet Owen Dixon sounds like he would grant this appeal;

    “As Sir Owen Dixon said on his swearing in as Chief Justice of Australia:

    “The High Court’s jurisdiction is divided in its exercise between constitutional and federal cases which loom so largely in the public eye, and the great body of litigation between man and man, or even man and government, which has nothing to do with the Constitution, and which is the principal preoccupation of the court.”[5]
    https://en.wikipedia.org/wiki/High_Court_of_Australia

    I agree with:
    “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.”…

    If leave not granted …
    “However, section 73 allows the appellate jurisdiction to be limited “with such exceptions and subject to such regulations as the Parliament prescribes”. Parliament has prescribed a large limitation in section 35A of the Judiciary Act 1903. ”

    … the current parliment will consider a prescriptive. I for one would want to vote on any prescriptions.As Smith9 says; “There’s no escaping the politics when it comes to George Pell.”

    The shock jocks already occupy 1 2 3 re pell on goo gl. The public interest is being spiked by a tiny minority.

    See here also;
    https://blogs.unimelb.edu.au/opinionsonhigh/about-the-high-court/jurisdiction/

    And a bad trip down memory lane seeing past cases and judgements, in particular not hearing Tampa case “‘cos howard etal hid the refugees somewhere”.

    Stevefrombrisbane, if one judge errs, and HC also used to harmonize between states laws, wouldn’t a leave to appeal find differences applicable between nsw / vic / federal laws get a leave to appeal, but only on points if law not conviction? Opening up another big can of worms.

  7. Anthony, on the face of it, Section 35A would rule out hearing an appeal. But if it was accepted, it could only be on the basis that the HC thought they could do a better job than the lower courts on a judgement of fact.

  8. “But if it was accepted, it could only be on the basis that the HC thought they could do a better job than the lower courts on a judgement of fact.”

    Lets hope that they do think that. It ought not be imagined that the appeals court was powerfully interested in matters of fact, guilt or innocence. Faked events, kangaroo courts, false testimony, these are not things unknown in the human experience.

    If you go to court as an innocent person, the first thing that is going to happen is everyone will lie about you in unpredictable ways. Since you don’t know the exact nature of the lies, you need a chance to prove all these lies wrong and then have a second stab at it. But if you get the judges at the second layer whose interpretation of the law (correct or otherwise) tells them to be ho hum about the question of your innocence, then some of us may think that the legal community as an whole may well have gone off the rails.

    Certainly Brett Dawson thought that the legal profession had come off the rails when he wrote this book.

    Click to access The-Evil-Deeds-of-the-Ratbag-Profession.pdf

    I don’t think its a matter of mere incompetence. I think the Victorian legal system is corrupt. But even other States may not be perfect. For example Brendan O’Connell was involved in some mild disagreement without someone grabbing at his camera. The Israelis got involved and he was put in jail for three years, then had to leave for foreign countries to treat him as a political refugee. If a WA court can be leaned on in this matter, then its possible that others could also be influenced. I don’t know any of the jurors. They could all be spooks for all a know. Corruption is harder if you get a another stab of things in another jurisdiction.

  9. Three out of four eminent jurists (incl Kidd from the trial) found the complainant to be truthful.

    Pell’s defence did not call for Pell to testify in his defence – ultimately that was his choice.

    Pell’s team will have to be very careful about how they approach this and the HC may very well grant leave then find against their appeal.

  10. I don’t think Pell should get a hearing at the High Court but I also think it frightening that Pell was convicted in the first place and lost the appeal. I don’t see how someone can genuinely be found guilty beyond all reasonable doubt in relation to events alleged to have occurred 20 years just because a judge or jury found the complainant a reliable witness especially given the science on how poor people, including judges, are at detecting lies.

    I say the above as someone who despises Pell and religion in equal measure, but lost a civil case to a couple of talented liars. I can’t in good conscience take the Pell verdict seriously.

  11. Think about it this way, the victims story has been tested many times, by the best legal minds that money can buy, and passed the test each time.

  12. I notice that the Catholic hierarchy often advocate full support for the justice system but it’s conditional; they will not accept an adverse verdict and will not break the seal of confession.

    The church vs the state.

  13. rog, have these judges undergone a rigorous scientific test that proves beyond all reasonable doubt that thay have an exceptional talent for detecting lies? Nope. Justice is a game.

  14. Hugo, the implication of what you are saying is that the testimony of a person that has power automatically has precedence over someone with less or no power – power is the truth.

    That’s been tried in the past, hasn’t been either pleasant or sustainable.

  15. “I don’t see how someone can genuinely be found guilty beyond all reasonable doubt in relation to events alleged to have occurred 20 years just because a judge or jury found the complainant a reliable witness especially given the science on how poor people, including judges, are at detecting lies.”

    Hugo is empirically correct because considering the following; Even putting aside oligarchical influence and fakery, supposing that all this is put ignored,. and we assume that Weinberg, is as he seems to be, a reasonable man. Well he is a reasonable man ….. And he had reasonable doubts.

    Now if while we were paying attention, this insular community of people with legal degrees …. have become akin to an Pharaonic priesthood, only accountable to themselves ….. and if they have decided that guilt beyond reasonable doubt, is no longer the standard, and truth and falsehood, is a kind of secondary concern ….. then we ought to be very serious about leaning on them to get their act together. Because this sort of thing doesn’t go on forever without a hard rain falling.

  16. rog, your comment makes no sense. In most cases it is the powerless and poor who get wrongly convicted in the circumstances I refer to.

    For what its worth, I think Pell is guilty on the balance of probabilities but not beyond all reasonable doubt.

  17. “For what its worth, I think Pell is guilty on the balance of probabilities but not beyond all reasonable doubt.”

    Guilty of what? You are tripping? Pell may be guilty of many things. He’s probably guilty of a long line of calamities. But he’s not guilty of the specific charges for which he is imprisoned. I know that, and so do you hugo. And if you disagree prove it. You won’t stand a chance.

  18. So, leaving aside “the Israelis got involved” and the somewhat contradictory claim of a “Pharaonic priesthood”, the legal test regarding the approach a court of appeal should take in assessing whether a jury verdict is unreasonable has been articulated by the High Court in a series of cases (dating back to Lindy Chamberlain). Both the majority and minority judgements in the Pell case seem to agree on that test, articulate it in broadly similar terms, and each acknowledges, again in broadly similar terms, the possible impact of access to video evidence on the application of that test, but each then simply comes to a different conclusion as to the reasonableness of the verdict in this particular case. There seems to be no issue of law and no issue re the administration of justice. John, if you genuinely think s 35A would rule out leave to appeal, it’s a bit cheeky for you to label your post “Another High Court Disaster, Coming Up?”.

  19. Who cares what Curly Larry and Moe think? Even the “good judge” is suspect. I would judge the judges and I would be a hanging judge of those judges, because the alleged “good judge” presided over a fake event not long ago. The “good judge” was integral to changing the law in Victoria. The Victorians are completely corrupt. The “good judge” who pretended to make an independent assessment was actually crucial to changing the rules such that an uncorroborated claim could be deemed as evidence. These people are just a joke despite their honorary degrees, position, praise and attention.

    Get closer to the problem Anthony. Just you and me and any evidence you can find. You will see that if this isn’t merely a Kangaroo court, still you are without any firepower to condemn our good good friend Pell, on the SPECIFIC activities alleged.

    You might be able to find 50 people on the basis of rumour that can place him as a kiddie-fiddler in the 80’s. I have no judgement on these matters. But I can assure you that you cannot find evidence for him being guilty of the specific claims attributed to him. I am used to the pros getting it wrong. Thats nothing new. Economists believing in the Keynesian multiplier and Physicists believing in space bending. Stupidity in the professions is old hat.

    But you want to put a friend of ours in prison, you want to put a good man in prison, you better not be naive about the inherent flaws of professionalism. George Bernard Shaw said that:

    “All professions are conspiracies against the laity.”

    That they are. That they are. And this alleged “Good Judge” is part of the corruption like everyone else in the republic of Victoria; Too cold to grow bananas.

    This is a banana republic this is a disgrace. And this idea that there were two evil judges and one good judge has got to be sent to the fires also. The good judge is a collaborator. They all have to be considered agents until proven otherwise.

  20. The faith in the jury system here is touching. I regard myself as strongly left wing. But I would be terrified of appearing before one, particularly in a controversial case. Pell would have had a much better chance in a judge alone trial but victoria is the one state that doesnt have them. And no, rog, the judge at first instance did not think Pell guilty. We do not know his private views. He accepted the jurys verdict as he was required to do

  21. Those making omparisons with the Chamberlain case need to acknowledge that for the Chamberlains it was ultimately a failing of forensic procedures that led to a wrongful verdict.

    Pell’s accuser was tested many times by the judicial process and found to be telling the truth.

  22. We do know Judge Kidd’s views, they were made public in his sentencing remarks.

    “I now turn to an assessment of the gravity of your offending….Cardinal Pell, I find, beyond reasonable doubt, that on the specific facts of your case, there was a clear relationship of trust with the victims and you breached that trust, and abused your position to facilitate this offending….In my opinion, all of the offending — across both episodes — is made significantly more serious because of the surrounding or contextual circumstances, namely, the breach of trust and abuse of power.”

  23. Juries are great in authoritarian societies, but no so great in democratic ones. My understanding is that, these days, criminal barristers want judge-only trials where: (a) they have got a good defence; and (b) there is a good deal of social prejudice against the accused. They want a jury trial where ( c) they have a weak defence because a jury might do something perverse (in their favour).
    Anyone who wants to protect the jury trial should not be claiming it has some sort of sanctity and appeal judges should not interfere. We all make mistakes. Jurors make mistakes (as do appeal judges). Jury decisions should be rigorously scrutinised like all other decisions in the legal system.
    If I could abolish the catholic church tomorrow, I would. But I am concerned, inter alia, that a heavy-hitter like Weinberg (and that is what he is) thinks this conviction is wrong.

  24. 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.

  25. 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.

  26. 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.

  27. 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.

  28. 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.”

    Click to access 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

  29. 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?

  30. 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.

  31. 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.

  32. 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?

  33. 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.

  34. 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.

  35. 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.

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

  37. 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.

  38. > 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.

  39. 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.

  40. 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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