As Australians consider the High Court’s decision it would be useful to reflect on its importance to everyone and not to focus on the defendant, nor a sense of “injustice” or contrived rage. This was an extraordinary process which revealed much about who we are as a people, who we are and what we should be praying for.
It would be exhausting to examine the complete role of the media in such a high-profile case. It is also clear that few of the media will change their mind anyway. These days, our journalists seem to be paid for an opinion, not to objectively report facts. This extremely important case – as a matter of law – was no exception.
Two particular pieces of journalism during this affair. David Marr, a Fairfax journalist and ABC commentator, went on national television during the appeals process to say that, having attended the trial every day, there was no doubt the jury made the right decision.
He is neither a practising lawyer nor a judge. I have been to Mass thousands of times and that does not make me a priest. If I watched brain surgery for one hundreed hours, all it would mean is that I watched brain surgery for one hundred hours. I am not equipped to practise it.
The opinion of the journalist was shockingly ignorant of the way the law works. His conclusion was based not on any deep dissemination of the legal process, but on the fact that he observed it. Millions of Australians had their views formed based on precisely this kind of ‘analysis’.
The second article was by Malcom Knox – normally a sportswriter. In his view, the jury were victims because their decision were dismissed.
That view is, in a legal sense, astonishing ignorance. In all cases where a jury decision is overturned – including wrongly acquitting a guilty person – the jury’s decision is obviously set aside.
To correlate an appeal decision to an act of injustice is appalling. Juries are made up of ‘our peers’, with no one being assumed to know what the right way to do things is. It is the trial judge (a tough job at the best of times and very tricky in criminal cases) who has to decide whether the evidence presented should be allowed or, if it is, what weight the jury should give to it.
In Cardinal Pell’s case, the trial judge got it badly wrong. This is not an indictment on the jury, but the fact that they were wrongly directed by the judge. Mr Knox’s view is sloppy and disrespectful but he won’t recant. Journalism is now show business and in his article there was not even a suggestion of analysis of evidentiary procedures which have evolved over 500 years.
Alan Richter QC is a giant of the Australian legal landscape. He has been at the top of his profession for 25 years, is not a Catholic and was so distraught after the trial that he concluded he could play no further part in the process. His was a deeper hurt than that of a lwyer who loses a case – as 50 per cent of all lawyers must.
His commentary afterwards was unusually visceral, very un-barrister-like behaviour. Yet this was because the trial hurt his sense of how justice should be administered in Australia. For someone who has literally given his life to law, the original conviction was an horrific outcome, not just for the defendant but for the process of law.
The High Court
Australia’s Constitution is an act of the British parliament and the best document most people have never read – and are unlikely ever to. The Constitution established the High Court as independent of government.
In nearly 120 years, the High Court has had 51 judges. High Court judges are regarded as the best of the best and usually regarded as brilliant practitioners of thelaw.
To have an appeal heard by the High Court, one needs to seek leave from the highest courts in the States, Territories and Federal jurisdictions. Subtracting immigration cases, it’s about a 40 to 1 shot that the High Court will even agree to hear an application. To do so, the matter must be a serious issue of law for the public – a very high bar. Cardinal Pell’s case made it.
Subtracting immigration cases, it’s about a 40 to 1 shot that the High Court will even agree to hear an application. To do so, the matter must be a serious issue of law for the public – a very high bar. Cardinal Pell’s case made it.
Over 119 years, the number of unanimous decisions of the full bench is about 4 per cent. Even the nation-defining Mabo decision was not unanimous (Justice Dawson said no). Mathematically, the chances of Cardinal Pell’s matter being resolved 7-nil were about 1000 to 1.
But the matter concerned an issue of critical importance to the liberty of all Australians accused of a crime, namely, about the admissibility of evidence and potentially impacts most criminal trials in Australia.
The decision was not a mild rebuke. In effect, it said to the lower courts “what were you thinking?” Yet the High Court’s justices did not stop there.
They added that, in their view there, was a probability that an innocent man had been convicted. In High Court language, this is a serious slap down which such an august body rarely does (think of the Lindy Chamberlain case). Based on the law, the jurists said the decision was not only unsafe but badly wrong.
Within two hours of the decision the defendant was released. Australia’s institutions had finally held strong against a backdrop of atrocious breaches of ethical journalism and a series of seriously bad judgements.
So when thinking about who to pray for, also think about what to pray for. Pray for the bravery of the custodians of justice, pray for our politicians to continue to act in the national interest beyond their short-term political goals and pray for the institutions themselves. When it mattered, they served the nation mightily.
Matthew Donnellan is a former solicitor for the Commonwealth Attorney General’s Department