Australian High Court: Judge and jury, Cardinal Pell

The Australian High court has just decided that the original jury could not, on the evidence, correctly convict Cardinal Pell in a sex abuse case.

There’s not much more to it than that: the jury believed the complainant, which necessarily meant not believing the other witnesses: The high court held that, given the evidence of the other witnesses, the complainant could not properly be believed.

The case was weak from the start: it went to a hung jury, and was retried. And personally, I wouldn’t have convicted Pell on the evidence of one witness, however strong.

But I can’t see this as anything other than the judges of the top court of Australia deciding that they are the ultimate deciders of fact, not just law.

Without going into the case too deeply, I would guess that the test they are using is “Would a properly-directed jury have brought in such a verdict?” If not then they conclude that the judge failed to direct the jury correctly, and that such amounted to a miscarriage of justice sufficiently great to justify overturning the verdict.

Here’s the full text of the judgment.

I haven’t read it through myself, only glanced at it, but it should give you a better idea of their thinking than relying on media reports.

It looks to me like they decided it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt, because the defence submitted evidence why it would have been impossible for the abuse to have occurred, the prosecution didn’t challenge that evidence.

But I may be wrong, and I’ll leave the analysis to the legal experts.

Scotus has the final say on both fact and law, so this is probably not that unusual around the world.

There was a case in Canada in which not only did the highest Quebec reverse a unanimous not guilty verdict, but also substituted his own guilty verdict on the grounds that had the exculpatory evidence been excluded (which he ruled should have been) the jury would certainly have brought in a conviction. The accused, an abortion doctor, then spent something like a year in prison before the Canadian supreme court said the judge went too far and ordered a retrial. Three hung juries later, the crown gave up.

I have read it. And I think the summary I linked to is a good summary. I understand their conclusion, which is more or less where I started before the trial: you either have to believe the victim, or believe everybody else. They’ve decided that they disagree with the jury.

The detail in their statement which I can’t agree with, is the idea of unchallenged testimony. Since I’m not a lawyer, I don’t understand unchallenged testimony in the same way that a trial lawyer would: I understand it the way a jury would.

Sufficiency of evidence is a legal question.
You are mixing up weighing of evidence, which appellate courts don’t normally do and sufficiency of evidence which they do.
The HC of Australia did the latter.
Weighing of evidence is when all of it is considered together and a decision is reached. Sufficiency is when you consider whether there is enough evidence to reach particular a decision at all.

An example.
A is accused of rioting and wounding a police officer. Video camera footage shows someone who looks like him throwing a something at the riot. He denies it was him. A witness, B, identifies A as someone she recalls being at the riot and she says she is sure that’s the person she saw is the same as the one in the footage. A claims it’s not him. Says the jacket is of a different colour to what he owns.

A is convicted of rioting and wounding a police officer.
On appeal the conviction on the first is affirmed and the second is set aside. On sufficiency grounds. Why?

There is sufficient evidence to establish A’s presence at the riot, the video and B’s testimony. The fact he shown is throwing something is evidence he was a participant, not a mere bystander. Weighing that with his denials, there was sufficient evidence for a reasonable finder of fact to conclude that he was rioting. *Even if the Appellate judges, had they been the triers of fact, would, on the same evidence, have reached a different conclusion. *

The wounding charge was set aside. The prosecution had to prove that A caused the police officer’s injuries, intentionally or recklessly. Again, A has denied the whole thing. The evidence is the video and B’s testimony. The video shows A throwing something. There is no evidence in the video that this particular projectile was aimed at the police officer, that it hit him, or even that this was the same transaction as where the Police Officer got injured. B’ evidence can only place A at the riot, she did not see him throw anything. Or the officer get injured.

Here there is insufficient evidence for a reasonable trier of fact to convict A, even if they accept everything the prosecution has adduced as accurate and even if the inference (that A caused the injury) is one most people would make.

Unchallenged testimony means testimony which the other party did not dispute in either cross or in their own depositions.
It’s legally, presumed to be true.
I hope this helps.

SCOTUS (the Supreme Court of the United States) is the final word on constitutional law in the United States. In other matters, including civil matters, the American circuit courts do. Finders of fact are the trial courts of first instance. Appellate courts in common law countries only deal with matters of law, not fact. SCOTUS has no authority outside the United States and its possessions and territories.

In a way, common law is unusual around the world, as SCOTUS follows common law–the law of precedent. Not every country in the world does, and it might be safe to say that most don’t–common law, coming from a British heritage, is common through the Anglosphere (the US, Canada, Australia, Ireland, New Zealand, India, etc.), but not followed in countries that follow a civil law code: France, Italy, Germany, and many others.

Would that be R. v. Morgentaler, [1988] 1 SCR 30?

Yeah, when I said I didn’t ‘understand it in the same way’, I meant that as a non-trial-lawyer, I side with jury in thinking that the testimony was disputed by the whole tenor of the trial, including but not limited to the evidence of the victim. For example, the prosecution demonstrated the unreliability of defense memory in particular in one of the defense witnesses. I know that judges/courts attach importance to demonstrating and testing every bit of evidence, (as demonstrated here) but you’ve got to also know that every naive person who observes a trial finds that surprising and tedious. And that’s part of the justification for having jury trials: juries see things differently than lawyers do.

I also think that the defense was badly conducted, and that a different defendant would have chosen a different lawyer who would have mounted a different defense, would not have failed so badly with the jury, and Pell would not have been convicted at trial. But Pell is what he is, and chose a lawyer like himself.

Personally, I’m pretty middle-of-the-road on the whole thing: I think Pell was innocent, but on religious grounds I have no problem with propitiatory expiation, so I don’t think Cardinal Pell was hard done by. I think the jury got it wrong, but as non-lawyer, I think the legal grounds used for rejecting the jury verdict were legalistic and self-serving.

The case was tried in Victoria.Australia, which relaxed it’s double jeopardy laws in 2011. Although I don’t like the idea of retrying a guy who has been found not guilty at trial, I’m a bit more relaxed about the idea of retrying a guy who as already been found gulity at trial. Although there is a disparity of the power between me and the state, there is much less disparity of power between the state and the Roman Catholic Church. Although the defense was badly conducted, Pell is a smart man, and he made his own choices. So that’s my solution. Not that anybody is asking for it.