David Marr is a George Pell antagonist who writes for the left-wing Guardian Australia and appears on the ABC. In the Guardian Australia on Wednesday, Marr commented on the decision of the Victorian Court of Appeal in George Pell v The Queen.
Marr had this to say about Justice Mark Weinberg, who delivered the dissenting judgment in the case: “Weinberg is regarded as one of the great authorities on criminal law in this country. He’s spoken of as a man who ought by right to have sat on the High Court. His questioning during the appeal (by Pell) in June was particularly lucid.”
Since Pell is a very high-profile Australian and Weinberg is one of the most experienced jurists in the criminal jurisdiction, it’s reasonable to assume that Weinberg would have determined Pell not guilty if the case had been heard by judge alone. However, Victoria happens to be the only state or territory (with the exception of Tasmania and the Northern Territory) that denies this facility to defendants.
Providing defendants with the option of having a trial by judge alone did not come about by accident. Rather, parliaments decided that in certain situations a defendant could not be guaranteed a fair outcome if their guilt was assessed by a jury. Trial by judge alone usually occurs when there is a high-profile defendant and/or a particularly heinous crime and/or much negative pre-trial media coverage. All three criteria were present in George Pell v The Queen. The first jury was split and the trial was voided. However, the second jury brought in a unanimous verdict after deliberating for almost five days.
On appeal, Chief Justice Anne Ferguson and Justice Chris Maxwell (president of the Court of Appeal) supported the jury’s decision. Weinberg dissented in a powerful and well-written judgment that is almost twice as long as the majority decision.
The argument for an option of trial by judge alone is never more evident than in this case. For close to a decade there has been a media pile-on against Pell. It was led by sections of the ABC (7.30, Four Corners, The Drum, News Breakfast), Nine Network (60 Minutes), Network Ten (The Project), Nine’s former Fairfax newspapers (The Sydney Morning Herald, The Age), Guardian Australia, The New Daily, The Saturday Paper, even at times Sky News (Paul Murray Live, Hinch) and more besides.
The taxpayer-funded public broadcaster was the leader of the anti-Pell pile on. On July 28, 2016, ABC management devoted its entire 30 minutes of 7.30 to an attack on Pell by journalist Louise Milligan. Her case rested primarily on alleged offences by Pell against young boys at the very public Eureka Swimming Pool in Ballarat in the 1970s.
Earlier this year the Victorian Director of Public Prosecutions withdrew the charges against Pell with respect to the Eureka Pool. Even so, 7.30 has not advised viewers of the fate of its July 2016 program.
Then there was Milligan’s Cardinal: The Rise and Fall of George Pell (MUP, 2017), the publication date of which was brought forward before Pell’s committal hearings at the Victorian Magistrates Court. This book was withdrawn from sale in Victoria once the legal proceedings were under way. But it was available in the rest of Australia.
Media aside, Victoria Police Commissioner Graham Ashton went on radio in Melbourne in the aftermath of Milligan’s 7.30 report and described the Eureka Pool complainants, who had appeared on 7.30, as “victims”. This was prejudicial to Pell.
The practice of describing complainants as victims before a conviction is attained was condemned by retired English judge Sir Richard Henriques in his 2016 report on the Metropolitan Police Service’s investigation into the (false) allegations by “Nick” (Carl Beech) against high-profile British individuals. Beech was convicted recently of fraud and perverting the course of justice.
Appearing on The Drum on Wednesday, Marr declared that it was “most unlikely” the High Court would hear an appeal in Pell’s case. It is a confident soul who predicts what Australia’s highest court will do. Sydney barrister Richard Beasley was also on the panel. While describing himself as “no George Pell defender”, Beasley added “there may be a point to take to the High Court” in that “it wasn’t open to the jury, on the totality of the evidence, to not find a reasonable doubt”.
Beasley dismissed the argument Pell had not received a fair trial, maintaining “he had the benefit of a first-class counsel in his trial and a brilliant appeal lawyer”. But there is more in the concept of a fair trial than legal representation. There are very few defendants in Australia who have been the subject of such media hostility in the lead-up to a trial. Juries are directed by judges to reject any bias towards a defendant. But what about unconscious bias, which is taken seriously outside the judicial system, affecting jurors?
This was a particular problem in the Pell case since the Victorian DPP barred media coverage during much of the proceedings in the Magistrates Court and all of the proceedings of the first trial. The DPP insisted on what was effectively a secret trial since it was planning another trial (over the Eureka Pool charges) after the completion of the second trial.
When Pell was convicted, the DPP decided there was not sufficient evidence to obtain a conviction in the Eureka Pool case. The media reporting ban was dropped and Pell was sentenced. This meant Pell’s defence was reported in full only when he appealed his conviction. Before this, virtually no one had heard the case for the defence. Yet the case against Pell was rife on social media.
The jury in the second trial found Pell guilty and Ferguson and Maxwell agreed with its decision in accepting the word of the complainant. But Weinberg, in a detailed judgment, wrote about the phenomenon of “false memory” and found that the complainant “did, at times, embellish aspects of his account”. Weinberg saw and read all the key evidence that went to the jury, as did his fellow judges. In law, as it stands now, Pell is guilty of historic child sexual abuse. This despite the fact, as Weinberg has stated, the case against Pell “was built around the complainant alone”. There was no forensic or other objective evidence and no confession or admission of any kind.
If the Pell verdict stands, a responsible parent or career counsellor should consider advising a young man not to enter an occupation or profession that requires interacting with unknown or known children.
Gerard Henderson is executive director of the Sydney Institute. His Media Watch Dog blog can be found at www.theaustralian.com.au.