If you have multiple judges, obviously you should be prepared for split decisions. (But Collins's quote that this is "evidence the system is working" is ridiculous.) But when the jurors are split 14-10 and then judges 2-1, it's clear this will create doubt in people's minds. (I don't know how the alleged 10-2 verdict from the first trial got out and whether that's reliably known.)Pies4shaw wrote:This is very common. The whole point of an appellate process is to try to moderate for diversity of opinion. 2:1 (or, on the High Court, 6:1, 5:2 or 4:3) decisions are not unusual. The most disappointing aspect of this whole tawdry affair is that no one much seems to care about the systemic issues but lots of people seem to want to plead specially for Pell. ...David wrote:^ Extraordinary how experienced legal figures can have such vastly different opinions when presented with the same evidence. Obviously the three-member judging panel is a means of mitigating against such issues, but ... Perhaps justice has to be binary by its nature, but there's evidently a fair bit of chance there.
George Pell sexual abuse trials and fresh investigation
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David
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^ I feel like the report of the initial jury numbers has to be taken with a grain of salt. It was only reported in the international Catholic press, to my knowledge (and later picked up by Bolt et al), and it's plausible that a comment about how the jury could have been divided was interpreted as fact; while I have no doubt that these things do leak despite strict laws to the contrary, there's been no indication of how it got out. Anyway, it's academic as all we know (or need to know) is that some thought he was guilty and some didn't.
"Every time we witness an injustice and do not act, we train our character to be passive in its presence." – Julian Assange
This a hoot: https://en.wikipedia.org/wiki/George_Pell
The panel commencing "Residence: Melbourne Assessment Prison" is particularly good.
The panel commencing "Residence: Melbourne Assessment Prison" is particularly good.
The anarchists are in the building
https://www.crikey.com.au/2019/08/27/ge ... arachists/
MICHAEL BRADLEY
"The Archbishop of Melbourne, Peter Comensoli, believes that George Pell is innocent. He also believes that Pell’s victim is telling the truth. His solution for this contradiction is the obvious one: the victim identified the wrong rapist. Not even Pell’s defence lawyers had tried that one on; there weren’t a lot of 190cm archbishops trolling around St Patrick’s Cathedral in 1996-7.
It’s laughable, yes...
...
This rush to condemn, not the convicted paedophile but the criminal justice system that convicted him, transcends rationality to such a monstrous extent that it clearly reflects something much more significant than George Pell’s personal credibility. Sure, some people may find themselves incapable of believing him guilty, but here we have a large part of the institutional establishment going out on the weirdest limb imaginable (it bears repeating: defending a convicted paedophile) because they cannot abide this single declaration of guilt in a system that produces thousands of them every year.
...
In this context, it won’t matter whether Pell gets special leave to run his High Court appeal, or whether that appeal succeeds. If he stays in prison, he will be the Lindy Chamberlain of cardinals to his defenders. If he wins, they will declare his innocence established while ignoring that that result is not possible since the best he can hope for is to be spared a third trial."
https://www.crikey.com.au/2019/08/27/ge ... arachists/
MICHAEL BRADLEY
"The Archbishop of Melbourne, Peter Comensoli, believes that George Pell is innocent. He also believes that Pell’s victim is telling the truth. His solution for this contradiction is the obvious one: the victim identified the wrong rapist. Not even Pell’s defence lawyers had tried that one on; there weren’t a lot of 190cm archbishops trolling around St Patrick’s Cathedral in 1996-7.
It’s laughable, yes...
...
This rush to condemn, not the convicted paedophile but the criminal justice system that convicted him, transcends rationality to such a monstrous extent that it clearly reflects something much more significant than George Pell’s personal credibility. Sure, some people may find themselves incapable of believing him guilty, but here we have a large part of the institutional establishment going out on the weirdest limb imaginable (it bears repeating: defending a convicted paedophile) because they cannot abide this single declaration of guilt in a system that produces thousands of them every year.
...
In this context, it won’t matter whether Pell gets special leave to run his High Court appeal, or whether that appeal succeeds. If he stays in prison, he will be the Lindy Chamberlain of cardinals to his defenders. If he wins, they will declare his innocence established while ignoring that that result is not possible since the best he can hope for is to be spared a third trial."
Pell is guilty. The law has spoken. Again.
https://www.crikey.com.au/2019/08/21/ge ... -decision/
MICHAEL BRADLEY
"Although, as the appeal court was careful to point out, Pell had no onus to prove impossibility, he had the problem that the jury had believed his accuser. To overcome a jury verdict, the appeal court has to be convinced that it is unsafe: that it was “unreasonable and cannot be supported having regard to the evidence”.
This is a hard ask. It’s not about whether the appeal judges agree with the verdict, but whether they consider it was open to the jury at all.
In that context, Pell really needed to undermine the crown case to such an extent that the appeal court could decide that nobody could ever have found him guilty beyond reasonable doubt. The best way to get there was to show that he just could not have committed the crime.
...
Put aside anyone’s personal reverence for Pell the cardinal, or the church for which he has been a steadfast warrior; ignore their consequently blinkered conviction that he must be innocent at all costs. Look at the facts.
These include, apart from the evidence in Pell’s own case, the objective truth of child sexual abuse. It happens in the dark. Its perpetrators are men of power, wielding that power, frequently within institutional settings. The royal commission exposed that the men who do this evil are men like Pell.
That doesn’t mean that Pell is guilty, of course. It means that the loud protestation that he could not be guilty because of who he is, is as lacking in foundation as the Catholic Church’s continuing claim to moral authority."
https://www.crikey.com.au/2019/08/21/ge ... -decision/
MICHAEL BRADLEY
"Although, as the appeal court was careful to point out, Pell had no onus to prove impossibility, he had the problem that the jury had believed his accuser. To overcome a jury verdict, the appeal court has to be convinced that it is unsafe: that it was “unreasonable and cannot be supported having regard to the evidence”.
This is a hard ask. It’s not about whether the appeal judges agree with the verdict, but whether they consider it was open to the jury at all.
In that context, Pell really needed to undermine the crown case to such an extent that the appeal court could decide that nobody could ever have found him guilty beyond reasonable doubt. The best way to get there was to show that he just could not have committed the crime.
...
Put aside anyone’s personal reverence for Pell the cardinal, or the church for which he has been a steadfast warrior; ignore their consequently blinkered conviction that he must be innocent at all costs. Look at the facts.
These include, apart from the evidence in Pell’s own case, the objective truth of child sexual abuse. It happens in the dark. Its perpetrators are men of power, wielding that power, frequently within institutional settings. The royal commission exposed that the men who do this evil are men like Pell.
That doesn’t mean that Pell is guilty, of course. It means that the loud protestation that he could not be guilty because of who he is, is as lacking in foundation as the Catholic Church’s continuing claim to moral authority."
^ I've got to say, I probably wouldn't have read Bradley's articles if I didn't know he's a lawyer, but now I've read them he doesn't sound all that objective or calm.
e.g. "Look at the facts. These include ... the objective truth of child sexual abuse... the men who do this evil are men like Pell."
e.g. "Look at the facts. These include ... the objective truth of child sexual abuse... the men who do this evil are men like Pell."
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David
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Not sure if we all have Pell fatigue by now, but I do want to share this riveting and informative piece by Jeremy Gans, in which he discusses the appeal judges' disagreement and the appeal process more broadly:
https://insidestory.org.au/judges-doubts/
https://insidestory.org.au/judges-doubts/
"Every time we witness an injustice and do not act, we train our character to be passive in its presence." – Julian Assange
If you are interested in the appellate process, here's another useful comment on appeal prospects, written by a Perth QC in March, anticipating the recent failed appeal: https://thewest.com.au/news/court-justi ... 881133885z
It notes, amongst other things, that:
- the rate of successful appeals from convictions (at the WA State appellate court level) is about 1 in 20;
- "The prospects of even obtaining special leave (let alone winning the appeal) to appeal to the High Court in a criminal matter statistically runs [sic] at less than one in a hundred.""
I was surprised at quite how the article rated the prospects of obtaining special leave, although that may be correct. There are typically, in total over all areas of law, across the whole of Australia between about 35 and 55 grants of special leave each year. The High Court publishes a summary of the dispositions for each special leave sitting day here: http://www.hcourt.gov.au/registry/speci ... sults-2019
At a quick tally, it looks like the Court so far in 2019 has granted special leave in 34 matters (that is, across the whole of Australia) and 11 of those look to me to be criminal appeals (a number of them closely related - eg, co-defendants from the same trial), so the actual number of criminal matters granted special leave might be a bit lower than that. The 34 grants of special leave are from 244 applications. It is unclear to me whether those 244 applications include the applications decided without a hearing. In any event, the number of criminal cases that obtain special leave is certainly very low.
It notes, amongst other things, that:
- the rate of successful appeals from convictions (at the WA State appellate court level) is about 1 in 20;
- "The prospects of even obtaining special leave (let alone winning the appeal) to appeal to the High Court in a criminal matter statistically runs [sic] at less than one in a hundred.""
I was surprised at quite how the article rated the prospects of obtaining special leave, although that may be correct. There are typically, in total over all areas of law, across the whole of Australia between about 35 and 55 grants of special leave each year. The High Court publishes a summary of the dispositions for each special leave sitting day here: http://www.hcourt.gov.au/registry/speci ... sults-2019
At a quick tally, it looks like the Court so far in 2019 has granted special leave in 34 matters (that is, across the whole of Australia) and 11 of those look to me to be criminal appeals (a number of them closely related - eg, co-defendants from the same trial), so the actual number of criminal matters granted special leave might be a bit lower than that. The 34 grants of special leave are from 244 applications. It is unclear to me whether those 244 applications include the applications decided without a hearing. In any event, the number of criminal cases that obtain special leave is certainly very low.
Near the end of the Jeremy Gans article:
"Much has been made of Mark Weinberg’s criminal law experience. It’s true that he has an extensive career in criminal justice and has heard eighty unsafe verdict appeals compared with Anne Ferguson’s five. But Chris Maxwell, the Court of Appeal’s president, has heard eighty-five. I’ve previously noted that none of these judges overturn jury verdicts as often as their colleagues. Ferguson’s limited experience explains why she is yet to overturn a jury verdict, while Maxwell’s rate of one in eight is lower than Weinberg’s one in five. Pell’s case is the first unsafe verdict appeal in which Mark Weinberg was at odds with his colleagues (including Chris Maxwell, who he’s sat with in such cases twenty times to date), but it’s the sixth time Maxwell has differed with either or both of the other judges on his panel. Each time, the Court of Appeal’s president voted to uphold the jury’s verdict.
And yet, Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty unsafe verdict cases, the same rate as Weinberg. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an unsafe verdict argument (a six-year period where Weinberg allowed such appeals seven times as part of unanimous benches and Maxwell dismissed five as part of divided benches). It’s as if, at some point in the last six years, President Maxwell simply stopped doubting."
"Much has been made of Mark Weinberg’s criminal law experience. It’s true that he has an extensive career in criminal justice and has heard eighty unsafe verdict appeals compared with Anne Ferguson’s five. But Chris Maxwell, the Court of Appeal’s president, has heard eighty-five. I’ve previously noted that none of these judges overturn jury verdicts as often as their colleagues. Ferguson’s limited experience explains why she is yet to overturn a jury verdict, while Maxwell’s rate of one in eight is lower than Weinberg’s one in five. Pell’s case is the first unsafe verdict appeal in which Mark Weinberg was at odds with his colleagues (including Chris Maxwell, who he’s sat with in such cases twenty times to date), but it’s the sixth time Maxwell has differed with either or both of the other judges on his panel. Each time, the Court of Appeal’s president voted to uphold the jury’s verdict.
And yet, Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty unsafe verdict cases, the same rate as Weinberg. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an unsafe verdict argument (a six-year period where Weinberg allowed such appeals seven times as part of unanimous benches and Maxwell dismissed five as part of divided benches). It’s as if, at some point in the last six years, President Maxwell simply stopped doubting."
His earlier article is also on my reading list now:David wrote:... I do want to share this riveting and informative piece by Jeremy Gans, in which he discusses the appeal judges' disagreement and the appeal process more broadly:
https://insidestory.org.au/judges-doubts/
https://insidestory.org.au/pells-judges/
[Near the start of this earlier article:
"The twelve jurors risk up to five years in prison if they tell anyone other than their therapists what the vote was."
Very different from some other countries!]