I am pleased to host this guest post by Aparna Rao, of 5 Paper Buildings, published in response to yesterday’s guest post by Edward Henry QC, which argued that the approach taken by the High Court of Australia in allowing the appeal of Cardinal Pell was one that the England and Wales Court of Appeal (Criminal Division) should emulate. The author qualified in law in Australia before moving to practise in England and Wales, and is a former judicial assistant at the High Court of Australia.
Earlier this month, the High Court of Australia made international headlines when the full bench agreed unanimously to acquit George Pell.
A sufficiently momentous event had already occurred on 11th December 2018, when Pell, a Cardinal of the Catholic Church, was unanimously convicted by a jury of five offences involving sexual abuse of a child (under the age of 16) in St Patrick’s Cathedral, Melbourne, in the State of Victoria.
Australia inherited its common law system from England and Wales. The High Court of Australia (“HCA”) is the final court of appeal. Its decisions are binding and set legal precedent.
The format of a criminal trial in Australia is based on the same principles as in England and Wales. A judge presides, determines questions of law, and a jury of 12, following those directions, determines questions of fact. Barristers for the prosecution and defence test the evidence in an adversarial system. The burden and standard of proof are the same: the prosecution has to prove its case beyond reasonable doubt. In England and Wales this test is now referred to as “being sure”, but both tests have the same source and effect.
The five charges related to incidents alleged to have taken place in 1996-1997 against two choirboys, A and B. The trial heard evidence from A only, as B was deceased. The HCA judgment sets out the evidence and the defence objections to it in some detail and I will not rehearse it here. In summary, Pell’s defence was that the actions complained of never happened and could not have taken place. Much of the evidence concerned whether Pell would have had the opportunity to commit the offences as alleged. The prosecution accepted that there were inconsistencies in the evidence but argued that the jury could nonetheless be satisfied beyond reasonable doubt that the offences had been committed.
Pell appealed the guilty verdicts, first unsuccessfully to a three-Judge bench of the Court of Appeal of the Supreme Court of Victoria (“VSCA”), and then to the HCA.
The HCA applied a common law test for overturning a jury’s verdict of guilty: whether there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”. The HCA made secondary reference to the statutory test which formed ground 1 in the VSCA, namely where the jury’s verdict is unreasonable or cannot be supported having regard to the evidence.
In England and Wales, the test when appealing a conviction to the Court of Appeal (Criminal Division) is whether the members of the Court “think that the conviction is unsafe”. Criminal practitioners will be entirely familiar with the CACD’s way of dealing with this test.
The most common refrain is that, ‘despite our finding that a serious error was made by the trial judge, we consider that the evidence against this appellant is so strong that the conviction cannot be unsafe.’
More apt here, perhaps, is the only slightly less frequent conclusion: ‘Although there were flaws in the evidence, the jury was properly directed in law, had the benefit of defence submissions on those flaws, and nonetheless was sure of the defendant’s guilt.’ The pre-1996 concept of “lurking doubt” rarely finds favour with the CACD these days.
The sanctity of the jury process casts the Pell judgment in a remarkable light for practitioners in England & Wales.
The HCA held that the evidence was so flawed that the jury could not have convicted Pell on these five counts. The fact that all of these flaws were pointed out to the jury by skilled defence Queen’s and junior counsel, and that the jury’s verdict meant these points had been rejected, was not enough for the HCA. In the CACD it is very likely that this would have been fatal to the defence argument on appeal.
Instead, the HCA appears to have treated the jury’s decision as one that should, in effect, be subject to judicial review for some species of irrationality or Wednesbury unreasonableness. Thus: no reasonable, rational jury, with full knowledge of the flaws in the evidence, could have found the defendant guilty. This jury, in convicting, was acting unreasonably and irrationally, and so the convictions must be set aside.
However, the HCA did not then remit the case for a retrial pursuant to the statutory options on a successful appeal. It would seem that not only was there a “significant possibility that an innocent person [was] convicted”, but that there was no possibility that he could have been convicted at all.
Having, in the manner of a judicial review, found that the decision-maker had made an unlawful decision, the HCA did not remit it to be remade lawfully. It took upon itself the decision on the merits and entered acquittals, substituting the correct decision for the jury’s unreasonable one.
Some courts, having quashed the convictions, might have considered that the evidence should then be re-examined, challenged or otherwise supplemented before a new jury. But Pell’s was a case where the HCA decided that there was no possibility of conviction. The decision implies that any prosecution of these allegations was bound to fail and should never have been brought.
The Pell decision might strike criminal lawyers as troubling. Whatever one’s individual views of the facts of this case, and this note expresses no opinion about the facts, there are well-established, powerful reasons why appellate courts should be reluctant to interfere with a jury’s verdict. Key among these are the finality of verdicts, the jury’s advantage in hearing the evidence first-hand, and public confidence in the integrity and independence of the trial process, which necessitates a separation between the judiciary and the jury. Simply put, if a country’s criminal justice system relies on trial by jury, then it is juries that should decide whether an accused is guilty or not guilty.
The adversarial trial process is designed around the existence of the jury. It gives the parties the opportunity to test the evidence, so that the jury has the benefit of making its decision in full knowledge of the reliability of and flaws in that evidence. There is no indication that this did not happen in Pell’s trial.
If it is considered that the case ought not to be left to the jury at all, there are mechanisms available during trial to have the case stayed or withdrawn if the evidence is flawed. Indeed, the prosecution was obliged to abandon separate proceedings against Pell (in relation to an unrelated incident) after adverse rulings casting doubt on the strength of the evidence.
In England and Wales, in the face of unchallenged evidence that is inconsistent with the complainant’s allegation, the defence might have been well-advised to seek a dismissal, stay, or ruling of no case to answer. These would also then form strong grounds of appeal. But the jury’s verdict, reached in full knowledge of the inconsistencies, would be likely to stand absent some new argument or evidence that could not have been advanced below.
The HCA judgment reveals no complaints about the judge’s conduct of this trial, rulings of law or directions to the jury. Nor is there any suggestion that the HCA was privy to fresh evidence that was not before the jury. It would appear that the only error made in this case was a factual one: this jury reached a verdict that the HCA could not agree with. This is the kind of substitution that the CACD deprecates.
What the Australian appellate process reveals, via this case, is an unrivalled opportunity to have the facts of one’s case re-heard by three different tribunals: the jury, the state appellate court, and the HCA. Of course, not all convicted defendants will have the means to pursue all these options. And the same avenue is not open to the Crown should a jury irrationally acquit a guilty defendant.
It is noteworthy that all seven Justices of the HCA agreed to allow the appeal. There was no dissenting voice, as there so often is. The Justices did not even publish separate judgments with variations on the reasons for their agreement, which is quite common. A joint judgment of this nature is fairly rare. It will usually have been written by one Justice and joined by the others. It also suggests that the Court was keen to avoid any misinterpretations or arguments about the reasons for what would undoubtedly be a controversial decision. Yet this consideration has not prevented members of previous compositions of the HCA from issuing dissenting judgments in controversial cases.
Traditionally, decisions of this respected court of final appeal carry significant weight in fellow Commonwealth jurisdictions. Pell v The Queen will undoubtedly feature in numerous appeals for many years to come. In Australia, it is yet to be seen whether the case will end up being confined to its facts, or whether there will now be substantially increased scrutiny of jury verdicts. The latter would be a radical shift indeed. It may not find much favour in the courts of England and Wales.
 For the trial judge’s sentencing remarks see  VCC 260, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/260.html. This was a retrial, as the first trial in August 2018 resulted in a hung jury.
 Pell v The Queen  VSCA 186, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/186.html?context=1;query=%20VSCA%20186;mask_path=. The court dismissed the appeal by a 2:1 majority.
 Pell v The Queen  HCA 12 para 9 and footnotes.
 Pell v The Queen  HCA 12 para 39.
 Criminal Appeal Act 1968, s.2 (England & Wales), in force from 1st January 1996.
 R v Cooper  1 Q.B. 267.
 It was described as “outmoded” in R v S  EWCA Crim 204, and its use deprecated in R v Fanning  EWCA Crim 550. Its only application is very restricted indeed: see R v Pope  1 Cr. App. R. 14 para 14. “As a matter of principle, in the administration of justice when there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the ‘lurking doubt’ concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.”
 In light of the increasing reliance on remote video hearings today, it is useful to note that the jury viewed much of the oral evidence in a pre-recorded video format: see  VSCA 186 para 1031. The trial was fully recorded, and the VSCA was asked to view parts of it in making its decision. While the HCA was willing, in principle, to accord deference to the jury’s verdict, it was not minded to give any weight to the VSCA’s view of the same evidence.
 At para 119 in relation to counts 1-4: “Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue … was whether the compounding improbabilities caused by the unchallenged evidence [contradicting A’s account] nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.”
At para 127 in relation to count five: “The unchallenged evidence … [was] 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.”
 Criminal Procedure Act 2009 (Victoria) s.277: https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s277.html.
 A distinction can be drawn with R. v. B.  2 Cr. App. R. 13 where the defendant was fatally disadvantaged by being put in an impossible position to defend himself. That case has been criticised (R v E  2 Cr. App. R. 36) and would perhaps be viewed differently today, given the manner in which many allegations of sexual abuse now surface.
 Evidential ruling: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/149.html?context=1;query=pell;mask_path=au/cases/vic/VCC. The case was later discontinued: https://www.smh.com.au/national/pell-won-t-face-trial-on-allegations-from-the-70s-of-pool-impropriety-20190226-p510b7.html.
 As the majority in the VSCA put it,  VSCA 186 para 13: “It should be emphasised that the inquiry which this ground requires is a purely factual one. Unlike the position where a ground of appeal contends that the trial judge has erred in law — for example, by admitting certain evidence or in giving (or failing to give) the jury a particular direction of law — no discrete question of law arises. Rather, the appeal court reviews the evidence as it was presented to the jury and asks itself whether — on that factual material — it was reasonably open to the jury to convict the accused.”
 R v Fanning  EWCA Crim 550 para 58: “We deprecate the use of the phrase “lurking doubt” as it represents an invitation to this court to substitute its view for that of the jury.”
 Similar to England and Wales, the Crown does have the ability to appeal judicial rulings that result in a not guilty verdict, and to prosecute some offences again if fresh and compelling evidence is available (modified double-jeopardy rules).
I teach Miscarriages of Justice and this post and the previous one by Edward Henry QC are very timely for my students. We are currently discussing the approach of the Court of Appeal in England and Wales and its reluctance to interfere with jury verdicts. These two articles give us much to discuss.
So, thank you to the authors and The Secret Barrister for these.
Dear Aparna, thank you for your considered response. The CACD has made it plain, for many years, that provided a ‘fair’ trial is possible, it will not overturn the jury’s verdict in an historic sex abuse case, provided there was some evidence upon which the jury could properly convict. Given the CACD has held that a ‘fair’ trial is possible, in spite of decades of delay, even when there are no objectively sound reasons for the same, the concept of ‘fairness’ seems pretty elastic. The abolition of corroboration of the complainant’s evidence is not something any Court could go behind, as it would be acting contrary to the will of Parliament that corroboration should no longer be required. So where does that leave us? Juries, in trials of this sort, are faced with the exquisitely difficult task of determining where the truth lies without any matrix of objective and contemporaneous evidence, and where a defendant’s ability to defend themselves is massively compromised by the effluxion of time. In these circumstances, the HCA’s approach appears to be just and preferable, because irrationality and prejudice often attends judgements based on demeanour and memory – two particular mischiefs in historic sex cases. Is the R v Cooper test ‘outmoded’ – and with it, the concept of justice itself in cases of this nature? it would seem to be, alas, as the CACD’s refusal to consider that ground appears to be a policy decision, countenancing the very real possibility of wrongful convictions. The HCA’s approach, which I advocate, is very similar to the sliver of R v Cooper that remains, viz (as per your footnote, citing R v Pope) “reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe.” As you know, in Pell’s case, the HCA faithfully applied the test in R v M, and did not find that Stage 2 applied, i.e. that the jury’s assessment of the evidence gave them an unassailable advantage in determining where the truth lay. This was because of the objective irrationality in rejecting the compounding improbabilities advanced by Richter QC at trial, masterfully analysed in the dissenting judgment of Weinberg JA in the Supreme Court of Victoria.
The entwined issues of demeanour and memory need to be confronted, given the disparity between the Civil and Criminal jurisdictions. As Mr Justice MacKenna once said (which Lord Devlin and Lord Bingham later endorsed):
He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or natural timidity? Instead, I start with the undisputed facts which both sides accept and I add to them such other facts as seem very likely to be true, as for example those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case [road accident] about marks on the road . . . I judge a witness as unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important points . . . When I have done my best to separate the true facts from the false by these more or less objective tests, I say which story seems to me the more probable, the Claimant’s or the Defendant’s.
I hope I’m not alone in having read yesterday’s post, nodding sagely and saying “That makes sense”, only to come upon today’s piece and find myself nodding at least equally sagely and saying “Woah, this really makes sense!” Fascinating even for a layman, and congratulations to the guest contibutors for making the cases so clearly..
I’ve read the judgment and I’m astonished that this ever got to the jury given the unchallenged evidence of various unblemished witnesses that it is extremely unlikely he would have had an opportunity to commit these offences. How could a jury possibly be sure of guilt given that evidence.
I would have expected an half time submission and an appeal on that basis if the judge had allowed this to go to the jury. I wonder why that didn’t happen.
The problem with this guest post is that it relies on a purely legal reasoning, leaving aside the facts of the case.
Anyone having familiarized himself with the facts of the Pell case should by now have understood that the allegations against the Cardinal were not only grotesquely implausible, but outright impossible: the scenario was such that it would have required both the complainant and the accused to possess the gift of bilocation. And that still leaves aside the more than twenty witnesses who explained the routines in a Cathedral shortly after a pontifical High Mass, in which there would always be a busy coming and going for at least 20 min after Mass – at a a time and place when the complainant claimed he was alone with the Cardinal for at least six minutes. And then there was the matter of the Cardinal’s ceremonial gear, which would have made the alleged sex assault even physically impossible.
In short, the High Court was confronted with the fact that the case rested on a clumsy lie – one that was too obvious for anyone not to notice, except if one absolutely wanted to condemn an innocent person.
And this is precisely the dilemma here. Can or must the jury’s findings be considered sacrosanct even when they were so obviously wrong as in this case? Should the High Court simply have stood aside and knowingly let an obviously innocent man spend the rest of his life in jail and/or disgrace? And should a police and judiciary like in the Australian State of Victoria, which had got it so terribly wrong the first time, get a second attempt at Cardinal Pell? Yes, the fact that the High Court chose not to send the case back to Victoria contains a clear message: a case like this, resting on the grotesquely implausible and completely uncorroborated allegations of one single accuser (who, as it turned out only afterwards, seems to have had himself a rather problematic track record) more than twenty years after the alleged facts should never even have reached the court system.
The ultimate purpose of a Supreme Court is to render justice, not to just follow the code of procedures.
In essence the HCA was saying that the jury were idiots. It is refreshing that idiocy with terrible consequences can be challenged and defeated. The difficulty that I find with Aparna Rao’s otherwise persuasive observations is that it seems to be argued that justice is less important than expediency.
That is to say: let the jury decide and leave that verdict alone; but this is despite the paucity of evidence. It seems that no submission was made at the close of the prosecution case (I may well be wrong),
Our real problem in the UK is how timorous are our judges at first instance in refusing submissions of “No case”. They seem terrified of – as they say – “usurping the function of the jury”.
This is idiotic.If an experienced lawyer sees the weaknesses of the evidence it must surely be incumbent on them to halt the prosecution. After all, a District Judge will readily dismiss a case or find for the defence on their own assessment of the evidence.
Mere plausibility of a witness should not sway the finder of fact. Cases of mis-identification demonstrate this absolutely. The primary and essential “function of the jury” is not to be idiots.
Imagine for a moment that the guilty verdict in this case led to an inevitable death sentence. Can it be argued with any integrity that “oh well, the jury convicted so we will not interfere”?
What of cases where fresh evidence emerges? A and B are found to have formed a compact to lie for some material advantage. Then the verdict would be quashed. But this would be despite the persuasiveness of the evidence which influenced the jury.
It would appear that in the UK the CCA should quash the conviction – the problem as Edward Henry intimates – is that it depends on the constitution of the Court. Some might quash the conviction – others wll rely on the tawdry and idle dependence on the litany that it is for the jury to decide, thus absolving themseves from their own oath which includes “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”.
Does the automatic rejection of submissions in the Court of Appeal that the jury simply got it wrong accord with this oath?
If fresh evidenceshows that a convicted man could not have been guilty because overwhelming evidence of alibi emerges after conviction the Court of Appeal would quash the conviction. Is this not a usurpation of the function of a jury? They heard the evidence, they reached a conclusion based on that evidence.
The fact is that the jury was wrong in fact, and the Court will overturn their decision.
Certainly it as arguable that the jury would or may have reached a different conclusion if they had heard this evidence, but the Court of Appeal is second-guessing the jury. The jury may have rejected the evidence of alibi if they had heard it, no matter how compelling the Court of Appeal found it to be.
In such an instance all would revolt at the verdict, and if a superior court could not apply their own determination as to irrefutable facts manifest injustice would prevail. In other words the Court of Appeal is prepared to subjugate the verdict to their own findings.
So why, in principle, is it argued that the HCA is wrong?
t can ony be that the irrationality of the jury has been considered at first instance absent any frsh evidence.
If it can be shown that a jury has got it wrong, why can this injustice not be righted? Or, more pertinently as demonstrated in this specific case, why should the HCA not right an injustice?
The reality, of course, is an obnoxious conceit that the UK system of law is far superior to the concept of justice (and,indeed, financial economy) The trial process is infallible because we say it is.
In just the same way a prisoner who has been wrongly convicted will be refused parole because they maintain ther innocence. – It would be idle to list such cases including those foreign states who have executed prisoners who refused to bow their knee to a wrong finding made by a jury assumed to have been unreservedy and impeccably correct.
Thanks Aparna. I’m very interested in your perspective, bringing as you do both English and Australian perspectives. I’ve read a number of comments on the Pell case from the English perspective. This blog by David Corker is representative of them, and what surprises me about them is how often they seem very sanguine about, even proud of, the fact that if this case had progressed through the English judicial system then a very-likely innocent man would have remained in prison.
I get being proud of the institution of the jury – British juries have done many great things – but to see them as nearly infallible is a bit scary. Peter Hitchens’ recent article laid out the traditional strong case for the virtues of the jury system. Though, interestingly, Hitchens grounds his case in the virtuous jury in the Seven Bishops’s Case – a jury whose verdict, just or not, was certainly an irrational acquittal given the law at the time.
I gather from your article, Mr Henry’s article and some of the chat on Twitter, that the key difference between the English and Australian systems is that the English weigh more heavily on pre-trial judicial scrutiny – the dismissals, stays and no-case rulings you refer to – whereas those mechanisms are either unavailable, rarely used or seldom successful in Australia, where the weight is more heavily on post-trial judicial scrutiny via appeal. What I can’t quite tell from the English commentaries – and perhaps you can shed some light on this – is what ‘unsafe’ could mean in the CACD if not a verdict that couldn’t reasonably be supported by the evidence, as in Pell.
Of course, even if the pre-trial processes are underweight in Australia, quite a lot of nonsense was thrown out at committal by Magistrate Belinda Wallington. My favourite bit was the complainant who said “whatever you think works” when asked to clarify his complaint! The Sydney Morning Herald recently reported that, after the committal hearing, the case appeared so hopeless (for the reasons now articulated by the High Court) that Pell’s lawyers approached the DPP seeking a discontinuance but the DPP declined. Indeed, surely the DPP would have even more reason to decline, knowing the jury’s likely ill-disposition towards Pell, in an English system where a jury’s verdict is near impossible to challenge.
The trouble with trusting juries absolutely is, it seems to me, that there doesn’t seem to be much reason to think they’ll always get it right. Mr Henry puts it politely by pointing out that “irrationality and prejudice often attend judgements based on demeanour and memory”, and this is true. But it’s also true that juries, being drawn from our community, are subject to the same faults and biases that are sometimes actively encouraged in our community. Sixteen days before the jury which convicted Pell was empanelled, the Prime Minister issued a widely-publicised national apology to the victims of institutional child sexual abuse, telling Australians that victims “must be believed” and telling victims “I believe you; we believe you; your country believes you”. It was as clear a direction as you will see from a political leader to set aside any doubt, reasonable or otherwise, in child sexual abuse cases.
It’s hard to think about how the English criminal justice system deals with such cases without thinking about Carl Beech and Operation Midland. Some might say this was a triumph of the English system; after all, Mr Beech’s allegations never got as far as a jury. But how sure can we be that they would never have got to a jury, in an environment where we’re all under instructions to believe victims? If the too-obviously-false claims of “David” and “Darren” hadn’t come forward, would the Metropolitan Police have ever stopped believing Beech? Who would be in prison now, Beech or Proctor?
I much prefer the Australian system, and so I am not troubled by the High Court’s decision in Pell (even if I’m confused about the Victorian Court of Appeal’s failure to arrive at the same conclusions as the High Court). A jury’s decision, reached “in full knowledge” “of unchallenged evidence that is inconsistent with the complainant’s allegation”, indeed a decision reached in spite of that full knowledge, should not be allowed to stand. That is a clear injustice, and again I’m not sure why English lawyers are, in the main (Mr Henry being a clear exception), so sanguine about this.
If juries are to be the final arbiter, and not subject to review for the reasonableness of their decision, oughtn’t they to be a bit more accountable than they are now? Oughtn’t we to know their names, or at least relevant details about them like their ages, education levels and occupations? Oughtn’t we to have their reasons for decision? Courts of appeal give us that transparency and accountability; we know who they are, we know what qualifies them to be there, and we know what they tell us are the reasons they reach their decisions. In free, democratic nations like ours, shouldn’t we expect that transparency and accountability in the final arbiters in all three of our branches of government?
 Magistrate Wallington is pictured here posing next to the author of the polemic ‘Cardinal’, just after the book was published and six and a half weeks before Pell was charged: https://www.abc.net.au/radio/melbourne/programs/theconversationhour/the-conversation-hour/8508980
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