R v George Pell was one of the highest-profile cases in the history of criminal law in Australia. Similar in its news impact to Lindy Chamberlain’s conviction (followed by acquittal) in the 20th century and Ned Kelly’s conviction (followed by hanging) in the 19th century.
As such, it is more important than usual for reporters and commentators to be factual — especially in view of the international attention the case has attracted. Unfortunately, the coverage so far has had many blemishes — which go to a basic misunderstanding of the law and how it operates.
On Wednesday, ABC TV’s The Drum devoted the first half of the program to a discussion on Pell’s sentencing, following his conviction in December last year by a jury of 12. Victoria, unlike such jurisdictions as NSW and Queensland, does not provide for trial by judge alone.
Early in The Drum’s discussion, presenter Craig Reucassel said emphatically that “a judge and 12 individuals have found him guilty”. This is hopelessly wrong.
If Reucassel had studied Chief Judge Peter Kidd’s sentencing remarks, he would know that, early on, the judge had this to say: “I must at law give full effect to the jury’s verdict; it is not for me to second-guess the verdict.”
Later on, when referring to the matter that the spontaneous attacks took place at St Patrick’s Cathedral in a room with the door open, he said: “If I am required to identify other explanations as to why you (Pell) were prepared to take on the risk of somebody walking in on you into the priests’ sacristy, then I do.
“By the jury’s verdict, this offending occurred, and no one walked into the priests’ sacristy while you were offending. These are the facts which I must act on.”
In other words, Kidd made it clear — and properly so — that his role as the trial judge is to accept the jury’s verdict as fact without second-guessing its decision.
Reucassel should have known this, as should his producer, who could have advised an on-air correction but apparently did not.
In the discussion, panellist Shivani Gopal claimed that Pell offending against one of the boys, called “R”, resulted in his death. In fact, the sentencing judge said that “it is common ground between the parties that R’s death is not related to the offending against R”. Reucassel did correct this error. However, he said nothing when Gopal criticised Pell’s six-year sentence as too soft, claiming that white-collar criminals “go to jail for life”.
This is mere hyperbole and quite unfair to Kidd. It can always be argued that a particular sentence is too soft or too hard. However, it seems in this case the sentence was about right for the charges on which the jury found the defendant guilty.
Pell would have received a shorter sentence if he had pleaded guilty but he maintains his innocence and his appeal will be heard by the Victorian Court of Appeal in early June.
Without regard to the sentence, it is important to remember that Kidd said that Pell had led “an otherwise blameless life in the 22 years since the offending” in 1996. He also referred to Pell’s “otherwise good character”.
The errors in commentary about R v George Pell did not stop at the ABC. Just after the sentencing findings were handed down, Derryn Hinch tweeted that the judge “saw right through him (Pell)”. This despite the fact that Kidd had said that, by law, he had to accept the jury’s decision.
Then on Thursday, Ray Hadley led off his high-rating 2GB/4BC program with the claim that Pell’s appeal would only be with respect to law, not facts. Two out of three matters involve questions of law. However, the principal grounds of appeal are that the verdicts are unreasonable having regard to the evidence. Pell’s appeal grounds are contained in a public document that is available to Hadley and all his listeners. There is no excuse for error.
Graham Richardson normally talks a lot of sense. But he was not in the best of form at the start of his Sky News program Richo on Wednesday.
Richardson claimed that, with respect to Pell, “there’s been this massive effort with silence orders and things to try and make no one have an idea about what’s going on”. He added: “I mean, if you’re George Pell, you can get that. I think that if I was on trial for pedophilia tomorrow, I’d have Buckley’s at having my name removed … I think everyone would be speaking it. It’s just something I think the church has handled badly for so long.”
In fact the suppression orders in the Pell case were issued by the Victorian County Court and were supported by the Office of Public Prosecutions.
They were designed to make it possible for Pell to get a fair trial in a subsequent case. This prosecution was dropped by the Victorian OPP when it determined that there was insufficient evidence for a conviction — and the suppression order was lifted.
In any event, suppression orders do not work in the age of social media.
Moreover, I am aware of one suppression order in a current pedophile case where the defendant is neither well known nor a Catholic.
It is to be hoped that ill-informed media comment dissipates in the lead-up to the appeal.
This is likely to be one of the most important legal cases in recent years.
As The Age’s crime reporter John Silvester has put it, the Court of Appeal has to consider whether a verdict is safe in a case where the defendant “was found guilty beyond reasonable doubt on the uncorroborated evidence of one witness, without forensic evidence, a pattern of behaviour or a confession.”
Whatever the outcome of the appeal, this decision will set a precedent of far greater significance than either the Chamberlain or Kelly cases.