Guest post by Aparna Rao: Why the decision to quash the conviction of Cardinal Pell might strike lawyers as troubling

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.

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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.[1]

 

Background

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.

 

Appeal

Pell appealed the guilty verdicts, first unsuccessfully to a three-Judge bench of the Court of Appeal of the Supreme Court of Victoria (“VSCA”),[2] 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”.[3] 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.[4]

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”.[5]  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”[6] rarely finds favour with the CACD these days.[7]

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.[8]  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.[9]

 

Remedy

However, the HCA did not then remit the case for a retrial pursuant to the statutory options on a successful appeal.[10] 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.

 

Analysis

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.[11]

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.[12]

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.[13] This is the kind of substitution that the CACD deprecates.[14]

 

Conclusion

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.[15]

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.

Endnotes

[1] For the trial judge’s sentencing remarks see [2019] 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.

[2] Pell v The Queen [2019] VSCA 186, https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2019/186.html?context=1;query=[2019]%20VSCA%20186;mask_path=. The court dismissed the appeal by a 2:1 majority.

[3] Pell v The Queen [2020] HCA 12 para 9 and footnotes.

[4] Pell v The Queen [2020] HCA 12 para 39.

[5] Criminal Appeal Act 1968, s.2 (England & Wales), in force from 1st January 1996.

[6] R v Cooper [1969] 1 Q.B. 267.

[7] It was described as “outmoded” in R v S [2017] EWCA Crim 204, and its use deprecated in R v Fanning [2016] EWCA Crim 550. Its only application is very restricted indeed: see R v Pope [2013] 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.”

[8] 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 [2019] 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.

[9] 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.”

[10] Criminal Procedure Act 2009 (Victoria) s.277: https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/cpa2009188/s277.html.

[11] A distinction can be drawn with R. v. B. [2003] 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 [2004] 2 Cr. App. R. 36) and would perhaps be viewed differently today, given the manner in which many allegations of sexual abuse now surface.

[12] 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.

[13] As the majority in the VSCA put it, [2019] 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.”

[14] R v Fanning [2016] 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.”

[15] 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).

 

Guest post by Edward Henry QC: Reflections on the case of Cardinal Pell

I am pleased to host this guest post by Edward Henry QC, of QEB Hollis Whiteman, reflecting on the case of Pell v The Queen [2020] HCA 12, and what the Court of Appeal (Criminal Division) in England and Wales can learn from the High Court of Australia.

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On 7th April Cardinal Pell was cleared by the High Court of Australia of wrongful allegations of historic sexual assault on a chorister. In its judgment, the HCA found that for all five charges, there were many improbabilities that had not been fully considered by the jury, amounting to “a significant possibility,” the judges wrote, “that an innocent person has been convicted.” Edward Henry QC considers that cases involving historic allegations of sexual abuse can present a real danger of injustice, which the CACD too often seems to ignore. The approach of the HCA is one the CACD should adopt in making an assessment of whether a conviction is ‘unsafe.’

The case of R. v SJR & MM [2020] 1 Cr. App. R. 7 (in which I appeared for the appellants) represented a personal nadir in my professional life. A sense of injustice still haunts me. A weak case, as was submitted to the Court, replete with inconsistencies and serious anomalies, including the admission of patently inadmissible evidence, was rationalised by the Court of Appeal [Criminal Division] with the same old-saw: “the critical issue was whether or not the jury were sure that [the complainants] were telling them the truth.” Appeals dismissed, and in so doing both Appellants (to whom another constitution of the Court had granted leave to appeal less than six weeks before) were left condemned to rot inside, one in such poor health that it is unlikely he will ever be released.

How different is the approach of the High Court of Australia [“HCA”] the equivalent, since 1986, of the UKSC. Not for them the “Sacred Cow” that a jury is always right, or that the complainant’s credibility is necessarily determinative. That may be the ruthlessly expedient default option for other appellate courts, but it was not the route the HCA took: a road less travelled for many Court of Appeal judges. But it would be wrong to assume that the HCA decided the case simply by finding that Pell’s accuser was a liar.

Pell v The Queen [2020] HCA 12 is striking because the HCA proceeded on the basis that the complainant was credible. The foundation stone upon which the HCA constructed its unanimous judgment was set down with startling candour as to its own unflinching duty:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

 In the course of its judgment, the HCA passed reflection on the majority judgment of the Supreme Court of Victoria, which upheld the convictions, on the basis of its “subjective assessment, that [the complainant] was a compellingly truthful witness.” This was in spite of the magisterial dissenting judgment of Weinberg JA. The HCA, tellingly, made this observation, which provides the key to how they evaluated the testimony of Pell’s accuser in the context of all of the evidence:

Weinberg JA did not assess A to be such a compelling, credible and reliable witness as to necessarily accept his account beyond reasonable doubt. The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanour-based judgments. [Emphasis added]

It is refreshing to note this frank recognition that demeanour-based judgments are highly subjective, and thus credibility, alone, can be an unreliable yardstick for determining guilt. Mr Justice Weinberg’s analysis prevailed before the HCA in the light of his profound sifting of the evidence, citing a number of ‘compounding improbabilities’, which combined to render the alleged episodes distinctly unlikely. Australian jurisprudence has been steeped in such probabilistic reasoning, owing perhaps to the influence of the late Sir Richard Eggleston QC, the widely respected law professor, appellate judge, and author of “Evidence, Proof, and Probability.” Eggleston was esteemed by no less than Lord Bingham[1], who distilled his method of appraising a witness’s account under five headings:

  • Analysing the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence to have occurred;
  • The internal consistency of the witness’s evidence;
  • Consistency with what the witness has said or deposed on other occasions;
  • The credit of the witness in relation to matters not germane to the litigation; and finally, and last and least of all,
  • The demeanour of the witness.

The HCA, in quashing the convictions, concentrated exclusively on the first issue: there was no opportunity for the offences to have occurred (consistent with the burden and criminal standard of proof) based upon an exacting review of the ‘solid obstacles to conviction,’ all derived from credible prosecution witnesses, noting the impact such evidence had upon the prosecution case. This was a highly nuanced and fact-centric approach, assaying the case in detail, as opposed to the ‘broad brush’ psychologically primitive slant of, on occasions, the Court of Appeal. The HCA’s inquiry into the whole facts, in the circumstances of this case, fully justified the convictions being overturned, as scrutiny of the seven judge unanimous decision reveals.[2]

In contrast, in this jurisdiction  appellate courts are notoriously reluctant to disturb first-instance findings of fact which turn on questions of credibility, or reliability. Should our senior judiciary absolve themselves by chanting the mantra ‘we must not usurp the jury?’ The demise of the Cooper “lurking doubt” ground of appeal is consistent with this attitude. That ground is now rare and successful appeals, pursuant to it still rarer. I would contend that Widgery’s LJ thesis in Cooper should be reframed, not as a general feeling of unease, dependent on the Court’s “feel” for the case, but upon a rigorous assessment of the entire matrix of evidence, whether it might contradict or undermine the complainant, i.e. is itreasonably possible that the complainant’s account was not correct, such that there is a reasonable doubt as to the applicant’s guilt?

There needs to be honest acceptance that accounts of historic abuse, however convincing, and apparently credible, can be unreliable. Especially, as was found in Pell, where such allegations cannot be reconciled with, or are flatly contradicted by, other credible evidence.

The HCA’s approach, echoes something we all know, and which Shakespeare expressed succinctly, thus:

“There’s no art / to find the mind’s construction in the face.”

In spite of this collective wisdom, from Literature, common experience, and psychology, the Court of Appeal (in its Criminal Constitution) has shut its eyes to this troubling and self-evident truth – that demeanour is a profoundly unreliable way to resolve cases. This has been known to the Civil & Family Divisions for many years. In his Neill lecture to the Oxford Law Faculty on 10th February, 2017, Lord Neuberger stated that he was:

“very sceptical about judges relying on their impression of a witness, or even on how the witness deals with questions. Honest people, especially in the unfamiliar and artificial setting of a trial, will often be uncomfortable, evasive, inaccurate, combative, or, maybe even worse, compliant. And our assessments of people are inevitably based on our particular experiences and subconscious biases. Sometimes it might appear that factual disputes are being resolved by reference to who calls the best-performing witness, not who calls the more honest witnesses.”

In saying this, he was following in the footsteps of Lord Devlin, and more recently, Lord Bingham. For Lord Devlin, judicial confidence in reading the witness, thereby discerning truth or falsehood, was overstated:

“The great virtue of the English trial is usually said to be the opportunity it gives to the judge to tell from the demeanour of the witness whether or not he is telling the truth. I think that this is overrated. It is the tableau that constitutes the big advantage, the text with illustrations, rather than the demeanour of the particular witness.”

Leggatt LJ, who joined the UKSC on 21st April, 2020, made the following declaration in a commercial case, which he tried as a puisne Judge in 2013,that memory is not to be trusted, an opinion that surely accords with the objective experience of most criminal practitioners:

“While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony.”

This quotation from Gestmin v Credit Suisse [2013] EWHC 3560 (Comm) potently describes the ‘elephant in the room,’ which has been worse than ignored in criminal trials. Whilst generic directions on ‘stereotypes’ are deployed in the Crown Court, often to the defendant’s disadvantage, the accused is not afforded even the most rudimentary précis of that ‘century of psychological research’ which calls the reliability of memory into question.

Gestmin has been widely approved and cited elsewhere, as one might expect, since Leggatt’s J analysis was a cogent exposition as to why the nature of historic oral evidence is an evolving creation, as opposed to a ‘flashbulb’ image. Having sign-posted a number of issues as to why memory is fallible and subject to certain biases created by the trial process (which could arguably apply to pre-trial criminal procedure) he came to this conclusion:

“Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

This takes on more ominous importance where a witness may have convinced themselves of something entirely fallacious in a criminal court. Given that Lord Leggatt’s tenure at the UKSC has just begun, it is to be hoped that before it ends an appropriate challenge can be brought before the UKSC in an historic case predominantly based on the credibility of a complainant, as Pell did in the HCA. Until then, innocent defendants will remain at the mercy of their accuser’s memory, which Oliver Goldsmith once described as “thou fond deceiver, still importunate and vain!”

Endnotes

[1] Chapter 1, The Business of Judging, The Judge as Juror

[2] http://eresources.hcourt.gov.au/downloadPdf/2020/HCA/12