Pell’s appeal hopes rest on judicial impartiality

Caption: Judges are supposedly above us mortals when it comes to impartial decision-making.

One of the most famous miscarriages of justice in recent Australia, the jailing of Lindy and Michael Chamberlain, was largely abetted by a hysterical witch-hunt fuelled by religious bigotry and conspiracy theories. Leading the torch-and-pitchfork mob were the Australian media, who endlessly played demonising clips and photos of New Zealand-born Lindy Chamberlain ?wearing frumpy clothes in public and failing to weep on cue?, as one satirist put it. The media also gave free rein to bizarre conspiracy theories about dark sacrificial religious rites.

?Such things,? as lawyer and Australian Catholic University vice-chancellor Greg Craven puts it, ?tend to shift, not the legal, but the reputational burden upon an accused person.? When a person?s name has been thoroughly blackened in the court of media opinion, juries are inevitably influenced. Judges, on the other hand, should (in theory at least) be less swayed by public prejudice and more inclined to dispassionate legal reasoning.

Such is no doubt the hope of disgraced Cardinal George Pell?s legal team as they prepare his appeal on a conviction of child sexual abuse. Quote:

The grounds for appeal in George Pell?s case indicate his legal team is planning to attack the credibility of the evidence that was arrayed against him.

By arguing the conviction was unreasonable, the legal team has opened the door to a debate about whether the jury?s decision can be supported by the evidence. End of quote.

This is not the only grounds for appeal, but it?s certainly the most important. Quote:

There are two other grounds for appeal, raising doubts about the way the jury was constituted and questioning if it was wrong to prevent the jury from seeing a graphic representation of the location of Pell and others when the offence is said to have taken place.

Those are important but relatively narrow points when compared with the first ground of appeal: was it reasonable for the members of the jury to convict Pell on the evidence before them?

This will require the Court of Appeal to consider all the evidence and come to its own view of whether it was open to the jury to be satisfied beyond reasonable doubt that Pell was guilty. End of quote.

As I wrote in Whaleoil yesterday, the evidence against Pell seems very weak, and the testimony of the complainant inconsistent. So what will judges ? supposedly impartial legal experts ? make of it? Quote:

Officially, this does not mean the appeal judges will be taking the place of the jury.

But the High Court has almost neutered that principle by ruling that, in most cases, any doubt about a conviction that is experienced by appeal judges would be a doubt that should have been experienced by a jury.

One argument that is likely to feature on appeal is the evidence ? or lack thereof ? explaining how Pell was able to engage in a sexual assault while wearing what could be described as a heavy, double-layered seamless cassock held in place with a belt. End of quote.

There is precedent in such successful appeals. Quote:

On that point, Pell?s lawyers are unlikely to overlook what the High Court said in 1994 when it struck down a jury?s guilty verdict as unreasonable in another sexual assault matter. In that case, known as M v R, the High Court determined that if the evidence contains discrepancies, displays inadequacies or otherwise lacks probative force an appeal court is bound to set aside a guilty verdict if it concludes there is a significant possibility an innocent person has been convicted. End of quote.

Whether people think Pell is guilty or not seems to be largely influenced by their opinion of him personally, and the Catholic church in general, as well as political affiliation. Leftists almost universally celebrated the conviction; conservatives seemed more inclined to doubt. Judges are supposed to be above such concerns. Quote:

But juries consist of ordinary people. The argument now goes to judges, who are far from ordinary. End of quote.


If Pell?s conviction stands, then he will serve out the sentence, both penal and reputational, that he thus deserves. If not, then a whole lot of people will owe him apologies that they will almost certainly never offer.