There will be more than enough fervent comment about the High Court's acquittal of Cardinal George Pell on sexual assault charges. The purpose of this present item, however, is to look at the balance between jury verdicts and the judges in criminal appeals; and at how that has played out in the case of Cardinal Pell.

The jury from medieval times

The jury in criminal trials is an ancient institution. The English like to claim it as one of England's great contributions to modern jurisprudence, but there is some evidence that the jury concept came to England with William the Conqueror.

The underlying idea is simple: an accused person should only be adjudged guilty of crimes by a group of people drawn from the community where the accused lived. In the expression "a jury of his peers", the word "peers" conveys not merely some sort of social stratum, but also the notion of "people like the accused". In medieval England the term was sometimes expanded to a jury "of the vicinage" – the local area.

The Sixth Amendment to the Constitution of the United States – part of the Bill of Rights – provides that a jury in a criminal trial must be drawn from "the state and the district wherein the crime shall have been committed", and even goes on to say that the district must be "ascertained by law".

This emphasis on the locals reflected the times, hundreds of years ago, when standards of conduct could vary between different localities, and only the locals knew what was okay, and what was not.

The jury in the 21st century

Fast forward hundreds of years. The locality doesn't really matter. Indeed sometimes trials are deliberately held far away, for fear that local publicity will have made it hard to find an unbiased jury.

The issues in trials – simple enough to understand in medieval times – may well be beyond the comprehension of most jurors: complex scientific evidence in murder trials; impenetrable forensic accounting evidence in white-collar crime trials; and the proliferation of experts, for each one of whom can be found, so it would seem, another expert with a diametrically opposed opinion.

But what hasn't changed is what might be called the primacy of jury verdicts, meaning that it is greatly unlikely that the verdict of a "properly instructed" jury might be overturned.

Appealing a jury verdict – misdirection by the trial judge

Appeals against jury verdicts (brought, fairly obviously, mainly by convicted people and not by unsuccessful prosecutors) are quite common, and are often successful. However almost always this is because the appeal court finds that the trial judge failed to "properly instruct" the jury.

The jury is the arbiter of facts. It is the province of the jury alone to decide what evidence it accepts, and what it doesn't. The job of the judge is to tell the jury what legal consequences flow from a fact the jury might accept. If the appeal court accepts that the trial judge in some way or another gave the jury an erroneous instruction in this respect, the appeal may succeed.

However the usual consequence of an appeal upheld on the basis of a misdirection by the trial judge is that the conviction is set aside, and the accused is ordered to stand trial again, on the obvious basis that the new trial judge, in instructing that jury, abides by the guidance given by the appeal court. Only in rare circumstances does an appeal court overturn a jury verdict in the absence of some misdirection by the trial judge.

Appealing a jury verdict – error by the jury

The difficulty of overturning a jury verdict is shown by the 1945 case of Hocking v Bell. Although this was not a criminal trial, it was before a jury, an unlikely thing today. Mrs Hocking sued Dr Bell for negligence in the course of surgery, alleging that a piece of tubing was carelessly left in her neck, whence it moved, over a considerable period of time, through various parts of her body, eventually being excreted.

Dr Bell called a conga line of experts to say that the story Mrs Hocking had told was simply medically impossible. But the jury believed her.

The verdict was taken on appeal to the NSW Supreme Court and then to the High Court, where Dr Bell was on each occasion successful. However in the days when a High Court decision could be appealed to the Privy Council in England, Mrs Hocking appealed and won.

The case is often cited to show how hard it is to displace a jury verdict in the absence of misdirection by the trial judge.

Appealing a jury verdict – the Pell case

A substantial part of the relatively inviolable status of the jury verdict is the argument that the jury saw and heard the witnesses. Judges in appeal courts read the transcripts of what was said in evidence, but do not see the witnesses giving evidence, or their demeanour.

Although there is quite a bit of research to the effect that people generally (including lawyers and judges) are not particularly adept at telling when someone is or isn't telling the truth, great weight is placed on this advantage the jury enjoys over appeal judges.

In the case of Cardinal Pell, there was in effect only one prosecution witness: one of the two choirboys claiming to have been abused by the Cardinal when Archbishop of Melbourne. The other choirboy had died some years previously, although it seemed to be accepted that his story told a long time ago was essentially the same as that of the survivor.

Pell's arguments before the Victorian Court of Appeal

Pell when convicted appealed to the Victorian Court of Appeal. His argument was not that the trial judge had misdirected the jury, but instead that the verdict was one which no reasonable jury, properly instructed, could have reached.

By a majority of two to one, his appeal was turned down.

Reasoning of the dissenting judge

The dissenter, Justice Weinberg (a distinguished criminal lawyer) said that Pell should have been acquitted. Very briefly summarised, this was because, on the Sunday morning after mass, at the time at which the offences were alleged to have occurred, both before and after that time there was extensive evidence that Pell was continuously in the company of others, both parishioners and church officials; and thus could never have been alone with the two boys.

Justice Weinberg could see no reason to doubt this evidence, and no successful attack on it was made by the prosecution. If this evidence were accepted, the commission of the offences in the way alleged by the prosecution would have been impossible.

So, even if the jury took the former choirboy to have been a credible witness (which, obviously, it had done), the jury should still have found that there was a "reasonable doubt" that the offences had been committed, and thus acquitted the Cardinal.

The other two members of the Court of Appeal however thought that, on all the evidence, the possibility that the offences had been committed had not been entirely excluded (of course it was not for Pell, as an accused, to prove his innocence), and thus they thought it open to the jury to have found as it did.

High Court sets aside Pell's convictions and records verdicts of acquittal

On appeal to the High Court, the court unanimously adopted (in its own words and with its own reasoning, of course) the conclusion reached by Justice Weinberg. The High Court set aside the convictions and recorded verdicts of acquittal.

Thus ended one of the most high-profile criminal trials in many years.

There is no doubt that the outcome will be hugely controversial. Some of the commentariat, not being too careful to hide the fact that they were not much troubled by the niceties of the criminal law, doubtless thought Cardinal Pell should be punished as some sort of sacrificial lamb for the undoubted child protection wrongs of the Catholic Church at large, whether or not he was personally guilty of the offences as charged.

The jury room is of course secret, so it will remain unknown whether any sentiment of this kind coloured the jury's deliberations. However in the absence of any information to that effect it would be improper to do anything other than to assume that the jury simply believed the evidence of Pell's accuser, and acted on it.

And it must also be remembered that the job of the courts is not always easy. There is often intense community feeling in favour of, or opposition to, a particular outcome in some criminal trials, and that we have judges prepared to apply the law dispassionately is, in the longer run, to be valued.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Geoff Baldwin

Employment law

Stacks Champion