The reporting on and commentary about R v George Pell revealed that many journalists have little knowledge of the legal system — while others have projected their views into the coverage.
Frank Brennan, chief executive of Catholic Social Services Australia, covers this issue in the current issue of Eureka Street. Here he defends his decision to write an earlier piece in Eureka Street (February 26), following Pell’s conviction on five counts of historical child sexual abuse. A further 21 charges were withdrawn.
The priest/lawyer (who attended some of the trial) has been criticised by some for his comments, which focused on the legal complexities of the Pell case. But he stands by his decision. Brennan writes that to say nothing “would have left the field largely to those journalists who attended the trial, some of whom have limited understanding of the law and some of whom display a lack of accuracy as they seek to paint their own picture of the proceedings”.
Enter Lucie Morris-Marr, who reported the trial for CNN and The New Daily. On February 26, she wrote in The New Daily that when the jury decision was handed down, Brennan and one other person “remained poker-faced in their seats”. In fact the owner of the “poker face” was driving to Bathurst — 1000km from the Victorian County Court in Melbourne. If Morris-Marr cannot identify a prominent Australian such as Brennan, why should anyone accept her other descriptions or interpretations?
The same can be said of the various post-trial comments covering such matters as jury verdicts, judicial comments, pre-sentencing character references (Pell will be sentenced on Wednesday) and the right of appeal. A few examples illustrate the point.
On ABC TV’s Q&A last Monday, presenter Tony Jones spoke about those who expressed doubt about the conviction: “We haven’t seen this sort of heated discussion about a jury verdict in a very long time … it’s disrespectful.”
In fact, it’s not uncommon that individuals express concern about jury decisions — convictions and acquittals alike. Jones may think that Lindy Chamberlain’s conviction for the murder of her baby daughter in 1980 is a long time ago. But ABC TV recently ran a three-part documentary challenging the jury verdict that Keli Lane had murdered her daughter in Sydney circa 1996.
Many Australians are aware that, eventually, Chamberlain’s conviction was found to be unsafe by the Northern Territory Supreme Court.
Fewer know about Colin Campbell Ross. He was hanged in Melbourne Gaol in 1922, having been found guilty by a jury in Victoria of the rape and murder of a 12-year-old girl. Ross and his supporters always maintained his innocence. He was pardoned posthumously in 2008. This sad story is documented in Kevin Morgan’s 2012 book Gun Alley.
In December 2011, Peter McClellan, who was later to chair the Royal Commission Into Institutional Responses to Child Sexual Abuse, delivered a speech to the University of NSW’s law faculty. He was reported to have said that some trials were too complex for juries and they made poor decisions.
When he was on the NSW Court of Appeal, McClellan was involved in overturning convictions in the criminal jurisdiction.
Yet some of Australia’s leading journalists, like Jones and the ABC’s Patricia Karvelas, have implied in recent weeks that no one should disagree with a jury verdict.
Then there are the commentators who fail to understand the nature of judicial statements. The fact is that a judge in a criminal trial has to accept a jury’s guilty verdict, while knowing that it might be overturned on appeal.
In The Sun-Herald last Sunday, Peter FitzSimons wrote that in R v Pell judge Peter Kidd “was strong in his support of the jury decision”. In fact, the judge was commenting on the gravity of the crime on which the jury had found the defendant guilty. Once a jury enters a verdict of guilty, sentencing will follow. Before this takes place, the trial judge will hear submissions from both the prosecution and the defence. Last week, Sydney radio 2GB presenter Ray Hadley criticised the decision of former prime minister John Howard to provide a reference for the defendant.
Now, Hadley is not usually regarded seriously by ABC journalists or by reporters for The Sydney Morning Herald and The Age. But his criticism of Howard was embraced by many. One of Hadley’s points was that Howard’s reference was written after Pell’s conviction. Apparently Hadley is not aware that pre-sentence references are part of the legal system. They are always offered after a conviction — not before.
If Hadley had read Howard’s reference (which is now a public document) he would know that it commenced: “This character reference is provided in the context of charges being dealt with in relation to Cardinal Pell. I am aware that he has been convicted of these charges.” Howard has made no other public statement.
If character references have any effect at all, they go only to sentencing. Most people who give character references in criminal cases are on a hiding to nothing. There is no personal benefit and they invariably lead to moral outrage from some, like Hadley, who do not understand the legal system. Howard should be admired, not vilified, for playing a role in the judicial process.
On ABC’s Insiders on Sunday, Karen Middleton, The Saturday Paper’s chief political correspondent, confidently declared that in the criminal appeal system “they’re looking at matters of law, not matters of fact”. It is surprising that so senior a journalist could be so apparently ignorant of the law.
Sure, courts of appeal can overturn a decision, or order a retrial, if the judge at first instance has made an error of law. However, a court of appeal can also decide that a jury decision was not safe in view of the evidence.
This is one of the grounds of Pell’s appeal — which will be heard in the Victorian Court of Appeal on June 3 and 4.
This should provide time for some journalists to put aside their anti-Pell barracking and learn how the law works.