Pell’s last stand

The written submissions each side filed with the High Court in January are all about rituals, robes and rehearsals. It may seem odd that the same court that made national headlines a month ago when it ruled on the relationship between Aboriginal Australians and Australia will now spend two days considering what happened in a sacristy twenty-three years ago. But this is nothing new for the national court. Indeed, the very morning after the seven judges split on who is and isn’t an “alien” under Australia’s Constitution, five of them puzzled over what caused a mysterious explosion on Bribie Island in 2015.

Eamonn Coughlan’s last chance to clear his name of an arson conviction started badly. For Justice Patrick Keane, the ex-cop’s claim that his house inexplicably blew up as he was standing on the footpath trying to see a motorbike “just sounds odd.” Justice James Edelman also seemed to have his doubts — “His shoes were entirely melted, were they not?” — and before long two more judges were asking Coughlan’s counsel, “What are you trying to get out of this?” and “Where does this take us?” Yet just an hour later — after the same judges peppered the prosecution’s barrister with questions about pants, petrol and passers-by — all five acquitted Coughlan on the spot, overturning a Queensland jury and a unanimous Queensland court.

Cases like Coughlan’s expose the persistent myth that Australia’s top court doesn’t take or decide disputes about facts. Last November, five of the court’s judges explained why they had acquitted another Queensland man of a gruesome murder on Macleay Island, overturning the unanimous view of fifteen jurors and judges. Their thirty-five-page judgement barely mentioned the law, but was full of analysis of means, motive and opportunity — and claw hammers, bank codes and CCTV. Two months earlier, the national court decided who was driving a Toyota Tarago during a head-on collision on North Stradbroke Island, this time disagreeing with a Queensland judge and unanimous appeal court who found the driver was an unlicensed teen left paralysed by the crash. The law came up on just three of the thirty pages of the High Court’s reasons, which were mainly about airbags, seatbelts and blood.

If next week’s hearing follows suit by focusing on the events at St Patrick’s Cathedral, then that will likely please both Pell and his prosecutor. Walker’s goal is to convince the court that Pell simply had too little time to commit the crimes he’s accused of, given the (mostly) undisputed evidence of what he and other church staff were doing in the minutes when the abuse must have occurred. Judd would welcome such a fight, given that Victoria’s prosecutors have already won the same argument twice, at Pell’s second trial in late 2018 and at his appeal in the middle of last year. But neither side may get what it wants.

The arson, murder and car-crash cases have something in common beyond their Moreton Bay settings. Each of their appeal hearings came only after at least two High Court judges had decided that the factual disputes were worthy of the national court’s time. Pell, by contrast, lacks that comfort going into next week’s proceedings. This means that Wednesday’s hearing — and Pell’s hopes of exoneration — could be over in as little as an hour. Or it could mean that the court will make the proceedings about something else entirely.

Sixteen years ago, Bret Walker was representing Queensland’s chief magistrate when she was hoping for a last-chance exoneration after a jury convicted her of retaliating against a fellow magistrate in a workplace dispute. Walker’s plan was to convince the High Court that his client’s conduct was reasonable, but the judges had a better idea: why not argue that her judicial role made her immune from such a prosecution? Walker took the point and Di Fingleton was cleared.

Five weeks ago, the High Court wrote to Pell and his prosecutor with some questions. The court occasionally writes such letters to litigants, including in the recent case about deporting Aboriginal Australians. For some reason, letters like this are always kept secret from the public, leaving us to learn about them — if we ever do — when the parties formally respond. Pell’s response two weeks ago is how we learnt that his case may take a left turn.

To understand what may have changed, we need to go back eleven months to shortly after Pell was sentenced. In early April last year, Victoria’s Supreme Court wrote to the parties explaining that the three judges assigned to hear Pell’s appeal wanted to see some of what Pell’s jurors saw. In particular, they planned to visit St Patrick’s Cathedral themselves and to watch the adult choirboy’s prerecorded testimony together with footage of the in-court testimony of three other people who were at St Patrick’s back then.

Unbeknownst to the public, the prisoner and prosecutor privately clashed over this request. The Crown’s then counsel, Chris Boyce, told the three judges to do what they wished, but Pell’s team drew the line at their watching testimony from the trial. They pointed to a NSW case from a decade ago, where an appeal court declared that jurors and judges alike should never watch footage of witnesses during their deliberations lest they be overwhelmed by the visual medium. When the case went to the High Court, its judges — including future chief justice Susan Kiefel — were less strident. Usually, the trial transcript will suffice for criminal appeals, they said, but not if the videos may reveal things that written words can’t.

Last April, the Victorian judges sided with the prosecution, but also accepted Pell’s fallback position: if the judges watch any witnesses testify, then they should watch all whose accounts were at issue. The trio ended up viewing footage of eleven witnesses from the second trial, together with three other videos Pell’s jury saw: the complainant’s return to St Patrick’s in March 2016, the police interview with Pell in Rome later that year, and the complainant’s testimony at Pell’s first trial in mid 2018. After the hearing, the judges also tried on the archbishop’s robes, later splitting (as in most things) on whether their design rendered the complainant’s detailed account of the abuse plausible or not.

The Melbourne court’s decisions last April may loom large in Canberra this March. The High Court’s first question to the parties was whether courts hearing criminal appeals are required or even permitted to go beyond the trial transcript. In their responses, both parties repeated their views from last year. Walker said that the appeal judges shouldn’t have watched the videos because there was no reason to do so. It’s one thing watching videos of child witnesses, as some judges have, because such videos will likely show whether the child was uncomfortable, confused, hesitant, confident or communicating with actions. But the witnesses in Pell’s case were (thankfully) all mature adults. So what, responded Judd. Just because appeal judges don’t need to watch the videos doesn’t mean that they can’t. It’s up to them, she said, and their decision made perfect sense given the arguments Pell was making about the evidence.

Who will win this argument, if it’s pursued next week, is anyone’s guess, but what’s important right now are its practical consequences. The issue of whether to watch trial videos is a huge one for criminal appeal courts and the people who appear before them. This means that the question the High Court raised is not just about Pell’s case but potentially affects hundreds of others each year, and is clearly worthy of a national court’s time. For Pell, though, the issue is a mixed bag. The new question is one on which the High Court is quite likely to take his case, but the downside is that it shifts the focus from the jurors’ verdict to the process that preceded his unsuccessful first appeal. If the court in Canberra rules that the Melbourne judges shouldn’t have watched some or all of the videos, then the obvious remedy is to send Pell’s case back to Victoria to be heard before three new judges. In effect, Pell would be left back where he was in March last year, facing many more months in prison, especially if he loses a second time. Even the best outcome — a victory before the new bench — would be tarnished. It would mean that he was condemned by judges who did watch trial videos but exonerated by judges who didn’t.

That’s probably why Pell and prosecutor were in rare agreement when it came to the High Court’s second question: does watching the videos change how an appeal court should judge a jury’s verdict? No, both said, or at least not in this case.

The High Court’s letter forms part of a debate that has been unresolved since courts of criminal appeal were created over a century ago: how exactly do criminal appeal judges’ roles differ from those of jurors? A few years before Pell became archbishop of Melbourne, a majority of the High Court cobbled together its answer during a different child sexual abuse appeal. Four judges agreed that appeal judges, like jurors, must assess the trial evidence for themselves to see if it leaves them in doubt. But they also agreed that the judges must factor in the differences between themselves and jurors before deciding any appeal.

That compromise was broadly workable in 1994, when technology meant that there was always at least one crucial difference between jurors and appeal judges: jurors got to see the trial witnesses, appeal judges didn’t. But ease of video recording has caused that compromise to falter. While Pell was being tried (and his entire trial recorded), NSW’s appeal judges were arguing about whether watching the key videos from a trial affects the test for deciding appeals. They had little choice but to watch two videos in the case before them: one, where a child detailed particular sexual acts to police investigators, and a second, where the same child denied those same acts when he was cross-examined at the accused’s trial.

One judge said that the videos left him in doubt about the accused’s guilt, and also just as well placed as the jury to make that call. But the others (who were less troubled by what they saw) said that the jury’s guilty verdict should stand because the jury still had the advantage of experiencing the trial’s atmosphere and watching the accused’s face as events unfolded. The High Court’s second question to Pell and his prosecutor was effectively about which side of this dispute was right.

In their responses, Walker and Judd — unenthusiastically, it seems to me — worked through whether video has killed the barrister. Pell’s counsel said that trial videos narrow the usual gap between juror and judge, and suggested that as a further reason why appeal judges should refrain from watching if they can. Victoria’s DPP, for her part, thought it arguable that judges ought to watch whatever videos are available in order to better evaluate the evidence for themselves, unless — she archly hinted — the High Court rethinks the compromise it struck in 1994.

But both prisoner and prosecutor agreed on one thing: none of this mattered in Pell’s appeal. Each side approved of how Pell’s Victorian judges approached this part of their task. Whether watching the videos was right or wrong, they said, all three judges were careful not to overuse them, expressly avoiding placing too much significance on how the witnesses looked and sounded, at least compared with what they actually said. Walker and Judd also pointed out that each of the three acknowledged that Pell’s jurors had many advantages over his judges: the jurors were able to see the witnesses in sequence over weeks; with the notable exception of the complainant’s prerecorded testimony, they weren’t restricted to the “two-dimensional” view on the judges’ computers; and they had the benefit of talking with eleven others in the jury room, in contrast to the three Victorian judges’ apparently lonely contemplation of Pell’s guilt or innocence.

If neither party wants to argue the issues raised by the High Court, does that mean they won’t be discussed? No, that’s another myth about the national court, which has its own duty to inquire into the law being argued before it, and which has plenty of ways to convince litigants to shift their arguments. Just because the parties agree doesn’t mean that the court has to. The Canberra judges could decide that the videos really did skew the task of the Melbourne judges — for example, because of the majority’s choice to watch the choirboy’s video testimony “cold,” as the jury did, before reading the transcript of his words — and can send the case back to Victoria to be heard before three new judges. Alternatively, a bench of seven could decide for itself that the Australian test for unsafe verdicts ought to work very differently when videos are in play, and then tell the original three judges to take a second look.

Whether any of that actually happens is another matter. I can see why it might be tempting for the High Court to decide Pell’s appeal on a broad legal question rather than delve into the case’s complex facts. On the other hand, I can also see why the judges would hesitate to use this unique case as a chance to direct future appeal judges on how to do their jobs in more mundane ones. Whatever the national court’s inclinations, it has plenty of options on Wednesday: to tell the parties to focus on a particular issue, to give the parties a free hand, or to stop things suddenly with the words every suppliant dreads: “The Court is of the view that this is not a suitable vehicle for the grant of special leave.”

This plethora of options is one reason I’m not game (this time) to predict anything about next week’s hearing. Grant or refuse? Decide or refer? Facts or law? Process or substance? Safe or unsafe? We don’t even know yet whether Pell’s case will be heard before a bench of five (the usual number) or seven (for constitutional or other big cases, or if the court is thinking of overruling one of its own decisions). Even the Kiefel court’s most reliable feature — its extreme collegiality — isn’t what it used to be.

But the lack of predictability is what makes next week’s hearings especially interesting. While Pell’s first appeal was live-streamed, his second will be live-tweeted (from the High Court’s own “overflow” facilities, where phones are permitted). For those who can’t attend, transcripts will be published online each evening and video a few days later. But, as always, there’s nothing like being there.

Pell’s original trials were seen in full only by his jurors, the lawyers and judge Peter Kidd, with spectators and journos excluded from the most important parts and sworn to secrecy for the rest. I watched his first appeal in a cramped room and found it hard to take my eyes off Pell himself. Next week will be a very different experience, taking place in the nation’s most majestic, light-filled courtroom, but with Pell likely watching on video in his prison. Subject to travel advisories, I’ll be there to see his last stand in three dimensions.

By Jeremy Gans
Published in Inside Story
6 March 2020