Conclusions to the trials of both George Pell and Bruce Lehrmann have increased the public's distrust in our legal system, writes Paul Begley.
*CONTENT WARNING: This article discusses child sexual abuse
WRITING ON George Pell in Quadrant this month, Paul Collits concluded that the dissenting opinion of Appeal Justice Mark Weinberg helped the Cardinal’s cause, but not as much as the unanimous ‘wisdom of the seven High Court judges who freed an innocent man’.
That Pell was freed is beyond dispute. That the High Court decision that freed him also declared him an innocent man is a wishful thought regurgitated by some Catholic Church conservatives and their Murdoch media choristers.
The Pell High Court decision was one of two legal cases in recent Australian social and judicial affairs that have caused confusion and disquiet in the Australian community.
One is the matter of the Crown versus Lehrmann, a case centred on a female Liberal Party staffer, Brittany Higgins, alleging she was raped late one evening in the Defence Minister’s office by a senior Liberal Party male staffer, Bruce Lehrmann, during the 2019 Federal Election campaign. A trial of Lehrmann took place in October 2022 but was aborted when a juror was found to have been engaging in misconduct.
The other case, as indicated, was the High Court’s quashing on 7 April 2020 of a guilty verdict handed down on Cardinal Pell after he was convicted and gaoled in 2018 for molesting two choirboys at St Patrick’s Cathedral in 1996.
I am not a lawyer and am not coming at these matters from a legal perspective. While not wishing to contribute to undermining the institution of the Australian judicial system, the courts as I see it have undermined public confidence in themselves. A large part of their problem relates to stubborn adherence to the untimely application of rules relating to age-old ideas of admissible evidence, the onus of proof and trial by jury.
These are areas of the law that are accepted largely within the legal fraternity. They are founded on principles that are held dear and have stood the test of time. This means the passing of time over millennia, rather than centuries or decades. They are often revisited but are rarely substantially changed despite the presence, among other things, of citizen access to real-time communication technology that did not exist when the Magna Carta was issued in 1215.
On the Pell matter, the Australian High Court deserves the courtesy of being understood as to why it overturned the jury verdict in the 2018 trial. In doing that, it’s necessary to appreciate that the Court did not hear the actual evidence presented in the lower courts in making its unanimous decision. That was not the point. The overriding point was a matter of law, not of guilt or innocence.
The Court set aside the jury verdict as unsafe because it decided the jury should have given more weight to the reasonable doubt that existed about Pell’s lack of opportunity to commit the crime. It made that decision despite the jury appearing to find more credibility in the complainant’s account of Pell taking the small window of opportunity that presented itself, than in entertaining the level of doubt about that opportunity demanded by the High Court.
In effect, the seven justices of the High Court said if we were the jury arriving at a verdict on the Pell case, we would have given far more weight to the reasonable doubt about opportunity than the 12 members of the citizen jury did. So, after the event, they did just that and set aside the verdict.
Doubt about Pell’s opportunity was also considered by the prolonged Victoria Police investigation which resulted in a referral to the Director of Public Prosecutions, who decided the case had good prospects for a conviction and sent it to trial. It was considered also by two trials in the County Court of Victoria. In addition, a 2-1 majority appeal decision handed down in the Supreme Court of Victoria considered the same matter with respect to reasonable doubt, but not to the High Court’s satisfaction.
Matters not considered by the County Court, the Supreme Court or the High Court were instances of tendency evidence relating to matters in the past that had been investigated by Victoria Police and by the Catholic Church but had not come before the courts. They go back five decades to a Phillip Island altar boys’ camp and St Alipius Parish in Ballarat, and contain allegations about patterns of behaviour within windows of opportunity.
Young Father George Pell allegedly took an untoward interest in eight and nine-year-old boys’ genitals at the Eureka swimming pool in Ballarat under cover of play, according to the now adult boys interviewed by ABC journalist Louise Milligan for her book, Cardinal.
Similar complaints had been made independently by a boy at the altar boys’ camp in the early 1960s which Pell attended as a seminarian. The complaint became the subject of a Catholic Church hearing conducted by Alec Southwell, a Queen’s Counsel and former Supreme Court justice. Southwell was fully aware of the gravity of his hearing, especially if he didn’t find in favour of Pell.
Even so, he did not find in the Cardinal’s favour but rather decided that the accuser appeared to be “speaking honestly” and made an inconclusive finding as to whether a crime had been committed. It was not the glowing exoneration that would have been preferred by the then-distinguished Archbishop of Sydney.
During the 1980s, a Torquay gentleman by the name of Les Tyack insisted Pell “piss off” from the surf lifesaving club change rooms where Pell was allegedly exposing himself to three young boys, with Tyack threatening to report him to the police if he caught him there again.
These historical matters were part of the Taskforce SANO investigation conducted by Victoria Police in 2016, but only the 1996 choir boy’s allegation ended up in court.
On the basis of a quashed verdict of guilty on a legal technicality, the Cardinal’s ideological cheer squad in the Murdoch press devoted thousands of words and column inches to declaring Pell a modern-day Jesus, a martyr, a saint and ‘God’s strong man’. The High Court had not expressly declared Pell innocent of anything, but it may as well have.
The Bruce Lehrman rape case ended up in the A.C.T. Supreme Court in October 2022 after two delays caused by rash public statements, one by former Prime Minister Scott Morrison himself, appearing to favour the complainant, Brittany Higgins. The statements risked causing the trial to be abandoned but the judge decided to continue after rescheduling the trial in order to select a jury that did not have those public statements front of mind.
The exclusion of tendency evidence was a potential factor in the Lehrmann rape trial in that three other women were reported in the press saying they had also been sexually harassed by the accused. The trial judge, Chief Justice Lucy McCallum, ruled those press reports were inadmissible as evidence before the court. They were to be removed and no media outlet was to report on them during the trial. The trial, and reporting on it, was to focus on one matter only, and that was whether Higgins had been raped by Lehrmann in the early hours of 23 March 2019.
Legal rules determine that the onus of proof in a rape allegation falls on the complainant, with the accused being regarded as innocent until proven otherwise to the satisfaction of a jury. In the A.C.T., all 12 members of a jury need to agree on a verdict. The accused may choose to speak on his own behalf or remain silent and if remaining silent, he cannot be cross-examined. The complainant, by contrast, needs to put her case and can be cross-examined on her evidence about the matter before the court and on her character generally to determine whether she amounts to a reliable witness.
Cross-examination of a rape complainant is widely regarded as good sport for clever barristers. It is universally regarded as an ordeal that involves the complainant reliving painful details about the incident while the accused is permitted to look on in disengaged or amused silence.
The court heard police evidence about the questioning of Lehrmann, who was not required to elaborate on that evidence, even when it involved questions as to why he returned to the Minister’s office with his junior female colleague at 1 AM and left hurriedly at 2 AM without saying goodbye or asking her about how she would get home.
He also was not required to explain why he told the police that he went back to the office for two flimsy reasons: one, to amend a Question Time brief and two, to pick up his keys. By contrast, in 2019 he had told his chief of staff, Fiona Brown, that he returned to the office to drink whiskey because “people do that all the time”. There was no requirement on him to reconcile those three seemingly conflicting accounts or to explain his hasty departure from the scene.
Once the prosecution and defence cases had been put to the respective legal teams, the jury retired to consider the evidence and was reminded 17 times by the judge that they were only to consider what they heard in court and nothing else. The jury did not return a verdict on the first day and by late on the second day, the foreman asked for more time. The judge told them to take all the time they needed but presumably, she did not ask what was holding them up or whether there was a problem.
By the third day, there was still no verdict but there was a discovery that a juror had brought extraneous research material into the jury room. Without any further discussion in the public realm, the judge discharged the jury and scheduled a date for a new trial, which was later abandoned when the Director of Public Prosecutions, Shane Drumgold SC, determined that the complainant’s mental health would not withstand another trial.
A great deal of public money, effort and anxiety had been expended on the Lehrmann trial and all the public and the parties got for their trouble was an explanation that an unnamed juror’s misconduct had aborted it. The public was left in the dark about whether that juror was the cause of the prolonged delay in reaching a verdict, whether the majority of jurors were favouring the prosecution or the defence case, or why the jury foreman had not been asked earlier whether there was anything that could assist the panel to reach a verdict or whether there was anything stopping them from making progress. Ordinary citizens were asking these questions, and the legal system was providing no answers.
Like the Pell case, members of the public were left trying to reconcile themselves with the unsatisfactory situation as best they could and many took it upon themselves to publicly decide, with little or no foundation, where guilt and innocence lay, as Paul Collits had done with the Pell outcome.
It’s sometimes said that the law is an ass, an equine cousin of the immovable mule.
The American writer William Faulkner once observed:
‘A mule will labour ten years willingly and patiently for you, for the privilege of kicking you once.’
The mule had recently delivered the judicial system two whopping kicks, but the system appears incapable of learning much from them. The one exception of an inquiry called by the A.C.T. Director of Public Prosecutions into the behaviour of the Australian Federal Police during the conduct of the Lehrmann trial.
No one is publicly suggesting from within the legal fraternity a nuts-and-bolts look at the time-worn rules being applied in the courts with a view to bringing them into the 21st Century and restoring public confidence in a fractured system. It appears that it has resigned itself to accepting Mark Twain’s assessment that ‘there is nothing to be learned from the second kick of a mule’.
Paul Begley has worked for many years in public affairs roles, until recently as General Manager of Government and Media Relations with the Australian HR Institute. You can follow Paul on Twitter @yelgeb.
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