24 Angry Men and the Mysterium Culpæ
A Home for Jurors. Wikimedia Commons.
You must not … be influenced by any knowledge of child abuse allegations within the Catholic Church … It has got nothing to do with this trial … you must not scapegoat Cardinal Pell. [1]
A Jury of Peers
The 2018 mistrial and retrial of Cardinal George Pell for five child sexual offences against two choirboys at St Patrick’s Cathedral in 1996–1997 raised significant concerns regarding juries. How could Pell receive a fair trial by jury? How could a jury set aside any prejudices against Pell in a post-Royal Commission Australia? While defendants in certain jurisdictions can opt for a trial by judge alone in high-profile cases, this is unavailable in Victoria.
Despite the costs associated with running jury trials, serious criminal trials maintain this ancient institution of direct democracy. It is an institution that guards against oppressive rulers and the people’s vindictiveness; [2] an institution more objective than a bench of cynical judges, less susceptible to bribery than a list of expert jurors, and a protector of the presumption of innocence through unanimous verdicts. [3]
As jurors are not lawyers, juries are limited to merely deciding questions of fact, not law. Juries have the added advantage of drawing on their combined experience and perspectives as twelve laypeople, unlike a single judge.[4]
Juries are hallowed by courts reinforced by the legal fictions that juries are robust, that they comply with directions, and that they are (almost) always right. [5] To this end, appellate courts stress that jury verdicts should not be touched except where a conviction is so unreasonable that no rational jury would have convicted on the evidence. [6]
Despite this, trial judges are more cognisant of the fragility of juries. During the joint murder trial of Glen McNamara and Roger Rogerson, McNamara’s barrister said that Rogerson may have ‘killed two or three people’ as a police officer. Bellew J, presiding, declared a mistrial so early the jury has yet to hear from any witnesses. [7] R v Lehrmann collapsed after a juror did independent research, despite McCallum CJ warning the jury ‘at least 17 times’ not to do it. [8] The fragility of juries trains trial judges to be hypervigilant around any materials that could unfairly prejudice a defendant.
“Many, if not all, of you would have heard of Cardinal George Pell…” [9]
To protect Pell’s prospective jurors from such materials, Kidd CJ employed a number of measures.
First, the County Court summoned a larger pool of prospective jurors than usual. For Pell’s mistrial, a prospective pool of 250 Victorians were summoned. [10] This increased the chance of selecting jurors who were able to set aside their personal biases for or against Pell.
Second, His Honour repeated that Pell was not to be a scapegoat for any perceived failings of the Catholic Church, constantly refocusing the jury’s attention to the narrow question of whether the Crown had proven their case to the criminal standard. [11] While it is impossible to know how closely the jurors followed this direction, appellate courts assume juries ‘by direction, observation and osmosis’ take their role extremely seriously. [12]
Third, Kidd CJ ordered a blanket suppression order on any reporting of the trial — including the outcomes. [13] In Victoria, suppression orders will only be ordered if the court is highly satisfied that ‘nothing short of suppression’ is sufficient to avoid a risk of prejudice. [14] Kidd CJ’s concern was that any outcome in Pell’s ‘Cathedral Trial’ would taint the prospective jury for his subsequent ‘Swimmers Trial’ (which related to a separate set of allegations in the 1970s). [15] The order was made due to the growing community disquiet regarding the Catholic Church, Pell’s high-profile nature and, significantly, that the allegations were likely to ‘arouse an emotional reaction.’ [16]
In determining whether a suppression order is necessary, courts must place ‘the highest possible faith in jurors.’ [17] Yet despite this, Kidd CJ was convinced, to the highest standard, that the jurors would not be able to put aside media coverage and that the trial would be unfairly prejudiced without the order. It reveals just how challenging it was for the system to guarantee Pell a fair trial. So, did he get one?
So Sayeth Your Foreperson, So Sayeth You All…
My direction to you, is that your deliberations in the jury room remain confidential … it it is only you 12 who were in that jury room and who reached this decision … I have little doubt if you start talking about it in a social environment you just won’t win, you will never be able to win, because they just weren’t in that room. [18]
Unlike the first twelve — who appeared exhausted and tearful after the mistrial — [19] the second twelve found Pell guilty of ‘an awful crime.’ [20] Were the 12 unanimous Victorians wrong? Some said that the jury ‘passed the pub test’ while others said the jury’s decision was a ‘travesty’. [21] But it is difficult to criticise Pell’s jurors; none of us were in that room.
The appellate courts attempted to answer that question but with some hesitation. These courts are more comfortable with questions of law: legal errors, incorrect directions, inadmissible evidence. But jury verdicts are rarely scrutinised. With good reason: juries examine the evidence, whereas appellate courts are limited to simply reading trial transcripts.
The Victorian Supreme Court of Appeal, deciding Pell’s appeal, decided to play the role of jury themselves by watching videos of the witness testimony. In a 2-1 decision, the VSCA declared the complainant a witness of truth. [22] The High Court, to this end, criticised the VSCA: they were not a jury, they were an appellate court. [23]
That said, the High Court did make a decision.
So Sayeth The High Court… So Sayeth You All?
The High Court said the VSCA failed to properly consider the unchallenged opportunity evidence: that is, evidence of whether Pell had a reasonable opportunity to commit the offending. Instead, the VSCA was too focused on whether they accepted the choirboy’s evidence as compelling and reliable. As such, the VSCA did not consider whether the compounding improbabilities in the unchallenged opportunity evidence required the jury, acting rationality to doubt Pell’s guilt. [24] Therefore, a conviction was not open for a rational jury; they must have acquitted Pell. So say the High Court, so say you all…
Despite Pell’s 7-0 acquittal, the High Court did not contest the complainant’s evidence. [25] The High Court stated that Pell’s jurors must have had doubts of his guilt due to the opportunity evidence. [26] If they must have had a doubt, what happened? It is possible that they — along with the prosecutors and the VSCA — did not see the opportunity issue as many journalists missed it too. It is not uncommon to miss fine issues like timing from a mass of arguments during a trial. [27]
Does this mean juries should be done away with? Not necessarily. Again, judges — and lawyers — are not necessarily better at deciding facts. [28] In that case the prosecutors, the trial judge and the VSCA could also be construed as culpable.
Perhaps the jury did consider the issue rationally but concluded it did not raise doubts of Pell’s guilt. Perhaps Robert Richter KC was right in labelling the verdict “perverse”: that the spirit of vindictiveness won out on Pell’s second jury. [29] If that happened, then all the trial safeguards failed and Kidd CJ’s pleas to refrain from scapegoating Pell fell on deaf ears. [30]
24 Victorians were burdened with the power to condemn or exonerate in what is perhaps the most consequential decision they can have on someone’s life. As representatives of the community, half of them were conflicted and the other half found Pell destroyed the lives of two choirboys. Then, seven justices freed Pell because the latter twelve could not have convicted him on the evidence.
But the final seven were not in that room. As such, not everyone accepts the decision of Australia’s most senior justices; dismissing it as a mere technicality rather than as an emphatic acquittal. [31] So why should the High Court’s acquittal be accepted? The simple answer is that they are the final arbiters of the law: the law ends at the High Court.
Law can never be a perfect substitute for the truth: a High Court majority upheld Lindy Chamberlain’s conviction. [32] But in 2024, the truth of what happened in St Patrick’s Cathedral will be contested in the civil courts in a suit brought by the deceased choirboy’s father against Pell’s estate and the Archdiocese of Melbourne. [33] Will that case partially restore the second jury’s findings or affirm the High Court’s acquittal? Like what Lee J says, it is likely that ‘any unwelcome findings will be peremptorily dismissed.’ [34]
Pell died suddenly in 2023. [35] Had he not been acquitted, he would likely have been on parole. News coverage of his passing focused on the division resulting from his criminal proceedings. For some, he was a modern Catholic martyr. For others, he was a predator and enabler. Separating the facts from the fancy is never easy. [36] 12 Victorians wrestled with doubt; the other 12 had no such struggle. To the seven on the High Court, the doubt arose again, never to be dispelled. A legal Rorschach test, the final decision is either the triumphant conclusion of a bitter battle against falsity or an acquittal blotted with multiple asterisks. Like everything else surrounding his life, the community is divided. The jury remains out.
[1] Melissa Davey, The Case of George Pell: reckoning with child sexual abuse by clergy (Scribe Publications, 2020) 237.
[2] Kingswell v The Queen (1985) 159 CLR 264 [52] (Deane J).
[3] Keith Thompson, ‘Should we reform the jury? An Australian perspective’ (2024) 33(1) Washington International Law Journal 165, 199.
[4] Keith Thompson, ‘Should we reform the jury? An Australian perspective’ (2024) 33(1) Washington International Law Journal 165, 181.
[5] Jason John Bosland, ‘Open Justice, 'Back-to-Back' Trials and Juror Prejudice: Examining the Suppression Order in the Trial of George Pell,’ (2022) 45(2) Melbourne University Law Review 462, 489-490.
[6] M v The Queen (1994) 181 CLR 487, 495-500.
[7] Louise Hall and Emma Partridge, ‘What the jury didn’t hear during the murder trial of Roger Rogerson and Glen McNamara’ Sydney Morning Herald (News Article, first published 2 June 2016) <https://www.smh.com.au/national/nsw/what-the-jury-didnt-hear-during-the-murder-trial-of-roger-rogerson-and-glen-mcnamara-20160602-gpaeat.html>.
[8] Christopher Knaus, ‘A chance discovery ends the trial of Bruce Lehrmann for the alleged rape of Brittany Higgins’ The Guardian (News Article, first published 27 October 2022) <https://www.theguardian.com/australia-news/2022/oct/27/a-chance-discovery-ends-the-trial-of-bruce-lehrmann-for-the-alleged-of-brittany-higgins>.
[9] Melissa Davey, The Case of George Pell: reckoning with child sexual abuse by clergy (Scribe Publications, 2020) 68.
[10] Melissa Davey, The Case of George Pell: reckoning with child sexual abuse by clergy (Scribe Publications, 2020) 66-67.
[11] Melissa Davey, The Case of George Pell: reckoning with child sexual abuse by clergy (Scribe Publications, 2020) 237.
[12] DPP (Vic) v Williams (2004) 10 VR 348, 352 [20] (Cummins J).
[13] DPP v Pell (Suppression Order) [2018] VCC 905 [48]-[49].
[14] Jason John Bosland, ‘Open Justice, 'Back-to-Back' Trials and Juror Prejudice: Examining the Suppression Order in the Trial of George Pell,’ (2022) 45(2) Melbourne University Law Review 462, 473.
[15] DPP v Pell (Suppression Order) [2018] VCC 905 [39].
[16] DPP v Pell (Suppression Order) [2018] VCC 905 [46].
[17] Jason John Bosland, ‘Open Justice, 'Back-to-Back' Trials and Juror Prejudice: Examining the Suppression Order in the Trial of George Pell,’ (2022) 45(2) Melbourne University Law Review 462, 482.
[18] Melissa Davey, The Case of George Pell: reckoning with child sexual abuse by clergy (Scribe Publications, 2020) 239.
[19] Melissa Davey, The Case of George Pell: reckoning with child sexual abuse by clergy (Scribe Publications, 2020) 171-172.
[20] Editorial, ‘It’s the Nation’s Biggest Story’ The Daily Telegraph (News Editorial, 13 December 2018).
[21] Stuart Webb, ‘Like it or not, Pell judgment was demonstrably fair’ The Age (News article, 21 August 2019) <https://www.theage.com.au/national/victoria/like-it-or-not-pell-judgment-was-demonstrably-fair-20190821-p52jbm.html>; Edward Chow, ‘Did Cardinal Pell get a fair trial?’ The Jesuit Post (News article, 4 March 2019) <https://thejesuitpost.org/2019/03/did-cardinal-pell-get-a-fair-trial/>.
[22] Pell v The Queen [2019] VSCA 186 [90]-[92] (Ferguson CJ, Maxwell P).
[23] Pell v The Queen [2020] HCA 12 [37].
[24] Pell v The Queen [2020] HCA 12 [127].
[25] Pell v The Queen [2020] HCA 12 [118]-[119].
[26] Pell v The Queen [2019] VSCA 186 [90]-[92] (Ferguson CJ, Maxwell P); Pell v The Queen [2020] HCA 12 [119]; Kate Gleeson, Reckoning with denial and complicity: child sex abuse and the case of Cardinal George Pell (2020) 9(4) International Journal for Crime, Justice and Social Democracy 31, 34.
[27] Jeremy Gans, ‘Pell in purgatory’ Inside Story (Feature Article, 13 April 2020) <https://insidestory.org.au/pell-in-purgatory/>.
[28] Keith Thompson, ‘Should we reform the jury? An Australian perspective’ (2024) 33(1) Washington International Law Journal 165, 181.
[29] Melissa Davey, The Case of George Pell: reckoning with child sexual abuse by clergy (Scribe Publications, 2020) 274.
[30] Kingswell v The Queen (1985) 159 CLR 264 [52] (Deane J).
[31] Ben Matthews and Mark Nicholas Bernard Thomas, ‘How George Pell won in the High Court on a legal technicality’ The Conversation (News Article, 7 April 2020) <How George Pell won in the High Court on a legal technicality (theconversation.com)>.
[32] Chamberlain v The Queen (No 2) (1984) 153 CLR 521.
[33] The Catholic Archdiocese of Melbourne v RWQ (a pseudonym) [2023] VSCA 197; Emily Woods, ‘High Court rejects Catholic Church's bid to avoid paying damages’ 9 News (News Article, 8 February 2024) <https://www.9news.com.au/national/high-court-rejects-catholic-church-abuse-challenge/394a8d9d-df79-41d8-b4b7-aef45c44bf0a>.
[34] Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 [3].
[35] Jennifer King, ‘Cardinal George Pell, Australia’s most powerful Catholic, who was dogged by scandal – obituary’ The Guardian (Obituary, 11 January 2023) <https://www.theguardian.com/australia-news/2023/jan/11/cardinal-george-pell-australias-most-powerful-catholic-who-was-dogged-by-scandal-obituary>.
[36] 12 Angry Men (Screenplay by Reginald Rose).
This article was originally published under the title ‘The Cardinal and 24 Strained Victorians: Cardinal Pell and his Trial by Jury’ in The Brief Edition 2, 2024 — Ceci n’est pas une loi.