May 2nd 2020


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COVER STORY Gearing up to ditch free-trade policy

EDITORIAL Post-covid19, create a national development bank

CANBERRA OBSERVED Keelty water report misses the point on water shortage

ENERGY Pandemic has exposed our overreliance on imports

CARDINAL PELL Locating the golden thread

CARDINAL PELL High Court practically shouts 'not guilty'

FAMILY Dismantling myths around family tax benefits

REFLECTION Covid19 and the Church past, present and future

OBITUARY R.I.P. Bruce Dawe: poet of the people

FOREIGN AFFAIRS Doctors of WHO let the covid19 dogs out

INDUSTRY POLICY The rise and fall of Australian manufacturing and covid19

ASIAN AFFAIRS Politics done by stealth in the UN: China and the WHO

HUMOUR Get them hug-dealers off the streets

MUSIC Farewell to an Aussie jazz legend: Don Burrows

LOCKDOWN TV CLASSIC Unique, unsurpassed: The Avengers

BOOK REVIEW ENTIRE GENERATIONS ALONE

BOOK REVIEW WARNING TO THE WEST

POETRY

LETTERS

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CARDINAL PELL
Locating the golden thread


by Greg Smith SC

News Weekly, May 2, 2020

I was privileged to witness with my brother John the two days of legal argument in the High Court in March this year. It was a familiar battleground for me, as I had appeared there 10 times, as either leading counsel or junior counsel, before my resignation from the New South Wales DPP and election as Member for Epping in the NSW Parliament in 2007.

Cardinal Pell at Good Shepherd Seminary,
Homebush, last week.

The High Court is the final appellate court in the Australian legal system. It is the final interpreter of the Constitution, statute law and common law of Australia and its decisions are binding on appeal and trial courts of states, territories and the federal courts.

Normally in criminal appeals the Court sits five Judges. Generally special leave applications are conducted before two or sometimes three judges of the High Court. These hearings last only 20 to 30 minutes. Only about 10 per cent of applications are granted special leave, which leads to a full bench hearing. I appeared in more than 30 special leave applications when I was Deputy Director of Prosecutions.

The Pell Case was unusual in that the whole two days of hearing remained a special leave application. And the seven judges reserved their decision.

The background to the appeal was that on December 11, 2018, Cardinal Pell was convicted following his second trial before the County Court of Victoria (Chief Judge Kidd and a jury) of one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years. The first trial ended with a “hung” jury.

The first four charges were alleged to have been committed on either December 15 or 22, 1996. The fifth charge was alleged to have been committed on February 24, 1997. All offences were alleged to have been committed in St Patrick’s Cathedral, East Melbourne (“the Cathedral”), following the celebration of the Cardinal’s first Sunday Solemn Mass at the Cathedral and within months of his installation as Archbishop of Melbourne in August 1996. The victims of the alleged offending were two Cathedral choirboys, “A” and “B”.

The Court made the following orders:

  • Special leave to appeal was granted.
  • Appeal treated as instituted and heard instanter and allowed.
  • The Cardinal’s convictions be quashed and judgements of acquittal be entered in their place.

 

PROPOSED GROUNDS OF APPEAL

The Cardinal applied for special leave to appeal from the judgement of the Court of Appeal on two grounds. The first proposed ground was that the majority of the Court of Appeal erred by finding that their perception that A was telling the truth required the Cardinal to establish that the offending was impossible in order to raise and leave a doubt.

In other words, in the Cardinal’s case, the majority effectively reversed the onus of proof so as to require him to prove his innocence, rather than requiring the prosecution to prove his guilt, in accordance with time-honoured practice.

The second proposed ground was that the Court of Appeal majority erred in concluding that the verdicts were not unreasonable as, in light of findings made by their Honours, there remained a reasonable doubt as to the existence of any opportunity for the offending to have occurred.

On November 13, 2019, Gordon and Edelman JJ referred the application for special leave to appeal to a Full Court for argument as on an appeal. The application was heard on March 11 and 12, 2020.

 

QUESTIONS ARISING

1. Why didn’t the DPP office maintain its earlier refusal (twice) to prosecute such a weak case?

2. Was the DPP office, contrary to its own requisite independence, pressured by police having summonses issued to charge Cardinal Pell?

3. Why didn’t the Crown Prosecutor and the DPP follow the DPP’s policy that they “not put forward theories that are not supported by evidence”, nor “not make any submissions of fact or law which are not soundly based”?

4. In her oral submissions to the High Court, did the DPP act with considerations of justice and fairness, as required under s24 (a) of the Public Prosecutions Act 2004?

5. Did the DPP make efforts prior to the trial(s) to confirm the psychiatric history of the complainant, bearing in mind that the Defence were not permitted to access his psychiatric history?

6. Why didn’t the DPP office ensure that the police interviewed and took statements from all relevant witnesses? For example, Fr Brendan Egan, who said the February 1997 Mass with the Cardinal presiding?

7. Why didn’t the police take statements from all relevant witnesses? Sergeant Christopher Reed, the lead investigator, admitted that neither he nor any other police officer undertook any investigation of the February allegation. They simply accepted A’s (implausible) account. That charge should have been “no billed” (dropped).

 

FORENSIC DISADVANTAGE

The offences were claimed to have occurred in late 1996, then early 1997. Consistent with other “historical” cases, the trial judge was satisfied that Cardinal Pell was under a significant disadvantage. He informed the jury of the nature of the disadvantage and directed them to take into account when considering the evidence the following considerations:

(i) The delay meant that the Cardinal had lost the opportunity of making inquiries and exploring the alleged circumstances close to the time of the alleged events, which may have uncovered additional evidence throwing doubt on A’s allegations or supporting the Cardinal’s denials.

(ii) Most of the opportunity witnesses could only give evidence of practice or routine whereas, had the trial been held on a date closer to 1996, more might have had specific recall of the subject events.

(iii) The effluxion of 20 years or so meant that some witnesses no longer presented the lucid and coherent evidence of younger men.

(iv) The Dean of the Cathedral in 1996, whose evidence would have been material on the issue of the Cardinal’s movements following Mass, was in a nursing home and incapable of giving reliable evidence.

(v) The passage of time diminished the capacity for the defence to fully test A’s evidence.

(vi) B, who had died of a heroin overdose a few years before the trial, would have been a material witness, because A alleged the offending not only occurred in his presence, but also because he was also allegedly assaulted. However, B had assured his mother in 2001 that he had never been assaulted or “touched up” when he was a member of the St Patrick’s Cathedral Choir.

The Victorian Court of Appeal were divided in their decision. Chief Justice Anne Ferguson and the president of the Court of Appeal, Justice Chris Maxwell, having viewed A’s video-recorded evidence, dismissed the appeal on the basis that, to them, the jury were right to have regarded A as a truthful witness and the fact that the evidence of other witnesses, described as “opportunity witnesses” – who were in the Cathedral and took part in the Masses involved – had varying recollections of events on those days, which left open the possibility that A’s account was correct.

The dissenting judge, Justice Mark Weinberg, widely regarded as the most experienced and eminent criminal appellate judge in Australia, concluded that, by reason of the unchallenged evidence of the opportunity witnesses, the jury acting rationally on the whole of the evidence should have had a reasonable doubt. Justice Weinberg decided that he would have acquitted the Cardinal of each charge; moreover, he was less persuaded than his fellow appeal judges of A’s credibility.

The High Court concluded that, while the Court of Appeal majority assessed the evidence of the opportunity witnesses as leaving open the possibility that A’s account was correct, their Honours’ analysis failed properly to consider the question of whether there remained a reasonable possibility that the offending had not taken place, such that there ought to have been a reasonable doubt as to the Cardinal’s guilt.

The unchallenged evidence of the opportunity witnesses was inconsistent with the complainant’s account, and described: (i) the Cardinal’s practice of greeting congregants on or near the Cathedral steps after Sunday Solemn Mass; (ii) the established and historical Catholic Church practice that required that the Cardinal, as an archbishop, always be accompanied when robed in the Cathedral; and (iii) the continuous traffic in and out of the priests’ sacristy for 10 to 15 minutes after the conclusion of the procession that ended Sunday Solemn Mass.

The High Court held that, even assuming that the jury had assessed the complainant’s evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the Cardinal’s guilt in relation to the offences arising from both alleged incidents.

The High Court relied on earlier decisions of the Court, particularly M v The Queen, in which it was decided that a conviction was unreasonable if it is evident that 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”. Significantly, that statement was repeated several times in the High Court’s judgement.

It was a long battle to locate and take up the golden thread: the presumption of innocence!

Greg Smith SC is a former NSW Attorney General and Minister for Justice, Deputy Director of Public Prosecutions (NSW), and Deputy Senior Crown Prosecutor (NSW).




























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