April 8, 2020 — 4.24pm
Whenever the criminal justice system is able to resume empanelling new juries, the High Court has given potential jurors a new reason for being excused from their duty: that they are wasting their time.
Cardinal George Pell is released from Barwon Prison on Tuesday after the High Court quashed his conviction.CREDIT:JASON SOUTH
For the best part of 800 years, juries have had a single function in criminal trials that higher courts could not meddle in. The jury was the finder of fact. In Australian law, this began to change in the 1994 case of M v The Queen, when the High Court said an appeal court could ask "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond a reasonable doubt that the accused was guilty". Victoria’s Criminal Procedure Act gave statutory back-up to this evolution of the courts’ role in 2009.
In the trial in which George Pell was found guilty, only 12 people saw and heard the 50-plus witnesses questioned, and only those 12 people were qualified to say whether or not Pell committed crimes. All of those 12 decided, beyond a reasonable doubt, that he did. And yet their months of service, and their first-hand experience, has been overturned by the High Court, not for reasons of law, but because the seven justices would have come to a different conclusion. Those jurors are entitled to ask what, then, was the point of the original trial?
For centuries since the Magna Carta, appeal courts used not to judge facts. They judged judges, ruling on legal errors. Did the trial judge allow the jury to hear ineligible witnesses? Did the trial judge misdirect the jury? These are the matters for a higher court to rule on as a tribunal of law, not fact. Appeal courts have never been designed to hear cases again and pretend to be jurors themselves.
Since the ‘M’ case, there has evolved a mechanism for higher courts to overturn "unsafe", or egregiously misguided, jury verdicts, and the key question was whether the Pell case should be considered one of them. Even the High Court’s language in its Pell judgment can be read ambiguously: it accepted "the assumption that the jury assessed [the complainant's] evidence as thoroughly credible and reliable" and made "full allowance for the advantages enjoyed by the jury" in actually hearing the witnesses, yet it still concluded that the jury did not make a "rational" verdict.
The High Court’s 129-paragraph decision makes scant reference to case and statute law. Instead it is filled with the facts that emerged in the Pell trial. How have appeal courts come to set themselves up as quasi-juries? As Melbourne Law School Professor Jeremy Gans has written, by viewing videotape of trial evidence, higher courts have stealthily turned themselves into tribunals of fact. The Victorian Court of Appeal did that in the Pell case, which enabled the High Court, as reviewer of the Court of Appeal, to interpose itself in the same way.
It’s a neat fiction: "We’re not re-trying the case, we’re only assessing another court’s viewing of videotape of parts of the case." However, like videotape itself, the version becomes distorted and more distanced from the original delivery in each new generation. It is, perhaps illogically, the final court (which didn’t view the videotape but only read transcripts and heard argument from lawyers who were not at the Pell trial) which has the power to impose its interpretation upon the tribunal that saw the witnesses in the flesh or by live video-link.
A misconception of the Pell case was that it was one man’s word against another’s. The complainant, under oath and severe cross-examination, provided his version. Pell availed himself of his so-called "right" to silence. Instead, Pell’s case was advanced by church witnesses who speculated on the logistical difficulty of committing the sexual abuse in the circumstances that had been alleged. Pell’s refusal to testify, for his own reasons, is not uncommon and cannot be held against him, but if he did turn his trial into one man’s word against another’s, and his case was so strong, he might never have spent one day in jail.
There is one foreseeable consequence of this verdict. Appeal courts are going to be crammed. If higher courts can effectively retry cases and second-guess juries, if a legitimate ground for appeal is simply that the jury was "not rational" – not that a jury has made a catastrophic error, but simply that it was wrong – the system can get set for an avalanche of appeals.
Some think the jury system is outdated, and criminal trials should be heard by judges alone. But trial judges are equally exposed by the powers the higher courts have arrogated to themselves in Pell’s and previous cases. When a prospective juror says, "I refuse to serve because I may be wasting my time", trial judges may sympathise, because they will be in the same boat. When every fact they find can be second-guessed and retried by a higher panel of would-be jurors in legal robes – people who, by the way, have never sat on a jury – our 800-year-old "black box of justice" might as well ask if it has any purpose at all.
Much focus, since Pell has been freed, has fallen on the victims of abuse in the Catholic Church committed by those other than Pell. There is another group of mistreated people here: the 12 who actually heard the evidence. Juries have no lobby group, no institutional backing, no voice. Amid other indignities the legal system visits on jurors, it compels them to suffer this insult in silence. But they are us. We citizens are potential jurors, and our response to future requests for our time might be: If you won’t trust us, why should we trust you?
Malcolm Knox is the author of Secrets of the Jury Room: Inside the Black Box of Criminal
Justice in Australia, an account of his experiences on a criminal trial jury and an inquiry into the history of the jury system.
Journalist, author and columnist for The Sydney Morning Herald.