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K
Joined: 09 Sep 2011
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"The ban on media reporting of his trial in any format accessible from Australia accentuated the free-speech arguments against such court orders that are commonplace in every Australian state and in Britain.
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The U.S. Constitution’s First Amendment would prevent such censorship in the United States. But many lawyers argue that suppression orders are preferable to an alternative exercised in many countries, closed courts.
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The Victorian parliament passed the Open Courts Act in 2013 that legislates “a presumption in favor of disclosure of information to which a court or tribunal must have regard in determining whether to make a suppression order.”
Courts are also required to limit the scope of suppression orders and their durations to what is essential to achieve the order’s purpose.
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The Victorian government is planning to change the laws in favor of open courts following a review of suppression orders by retired judge Frank Vincent.
The government supports most of the review’s recommendations, including allowing a five-day window for media to make submissions against any suppression order before that order became permanent."
(R. McGuirk, AP) |
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David 
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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Back to the Pell case, Greg Barns has some thoughts on juries in the age of information-saturation and the merits of judge-only trials:
https://www.crikey.com.au/2019/02/27/getting-a-fair-trial-in-an-era-of-media-saturation/
| Quote: | The findings of guilt by a Melbourne jury in the case of Cardinal George Pell provides cause for reflection about trial processes in an age of saturation media.
Now is not the time to speak about Cardinal Pell’s guilt or innocence — this is a matter for the Victorian Court of Appeal. But what the Pell case does bring to light is the issue of jury trials in an era when it is impossible, unless one lives on a remote island without access to the internet, to avoid news and opinions about specific individuals.
At the outset let it be noted that there is no suggestion the jury members in the Pell case did anything other than deliberate to the best of their ability, and in accordance with the instructions they were given by the judge in the case. In Australia — and this contrasts with the United States where jury members can and do talk about how they deliberated after a trial has finished — we never know what drives jury dynamics or how a jury reasons collectively.
We can still, however, reflect on some broader policy issues concerning cases where there has been a saturation of publicity prior to an individual going to trial. Should, in such cases, there be an automatic right to a judge-alone trial? Should we move towards the US practice of allowing background checks and questioning of potential jurors?
At present, the practice of judge-alone trials exists in New South Wales, Western Australia, South Australia and Queensland — in Victoria, Premier Daniel Andrews’ government is now looking at adopting it too. These are utilised by the defence if they think that there is a danger, because of pre-trial publicity, that their client might not get a fair trial.
There are two prominent examples which illustrate this point. In Western Australia Lloyd Rayney, a barrister and former prosecutor who was charged with murdering his wife in 2007, was acquitted after a judge-alone trial in 2012. The Rayney case had dominated the Western Australian news cycle for some years and WA Police had conducted themselves in such a way as to make it clear they only had one view about who killed Rayney’s wife.
The other example is Dennis Ferguson, who had numerous child sex abuse convictions and was subjected to a sustained campaign of vilification by the Queensland media after it was discovered where he was living. He was facing trial on similar offences, and in a judge-alone trial in 2009 he was acquitted.
Surely in cases where there is a perceived risk that a jury might be influenced by a high degree of prejudicial media, the option of a judge-alone trial should be open to all Australians? At the end of the day what is required is a fair trial for an accused person — and that right should not depend on where one lives or is charged.
The issue of greater scrutiny of jurors in high profile or deeply emotive cases is more problematic from the point of view of the Australian legal profession. There is a great deal of stock placed by the legal system in the jury system. Maintaining trust and confidence in that system requires, according to this mindset, that we do not scrutinise jurors but instead rely on their integrity when they agree to sit on a jury. But as former governor of Western Australia and prominent barrister Malcolm McCusker QC said in an interview last year, the faith placed in juries in this day and age is, in his view, misplaced:
"For a start because of the jury selection process, although it’s not like the United States, you will never get a random selection of people from all walks of life. In fact very commonly you will find unemployed people, anyone who has got a good reason for getting out of a jury will in many cases will use the reason. People can think up reasons of getting out of jury service so what you get left with is random all right, but is that a good thing to have people who may not have the faintest experience in dealing with these important matters of judgment?"
In the United States the defence is able to examine the backgrounds of potential jurors and question them before selection. This enables the flushing out of individuals who might, for example, have researched the defendant or the case heavily or whose social media accounts demonstrate they have very strong views about the individual charged — or about the specific offence. In the United States this process of jury selection is regarded as essential by both prosecution and defence to enhancing a fair trial.
The Pell case does throw up important issues about how we as a society ensure that the opportunity for a fair trial is maximised for both victims and the accused. |
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Pies4shaw 
pies4shaw
Joined: 08 Oct 2007
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| I don't understand, at all, why anyone in their right mind would think that having 12 rag-tag people trying charges is more likely to lead to a biased outcome than having 1 judge do so. |
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HAL
Please don't shout at me - I can't help it.
Joined: 17 Mar 2003
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| Interesting gossip. |
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David
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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| Pies4shaw wrote: | | I don't understand, at all, why anyone in their right mind would think that having 12 rag-tag people trying charges is more likely to lead to a biased outcome than having 1 judge do so. |
Yeah, one does wonder whether the acquittals in the two cases Barns mentioned were actually good decisions! I wonder if judges are likely to rule more conservatively, for better or for worse?
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K
Joined: 09 Sep 2011
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What about 3 or 4 judges? Or 12 judges? (Ignore practicalities.) Maybe it's just the numbers that help cancel out the biases.
Last edited by K on Mon Mar 04, 2019 3:06 pm; edited 1 time in total |
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David
I dare you to try
Joined: 27 Jul 2003
Location: Andromeda
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I think there's definitely something more democratic in theory about a jury (i.e. they are just ordinary citizens from all walks of life), and we need to not get too caught up in elitism and remember that judges, too, may suffer from their own biases and limitations. I think it's clear that our justice system has a lot of components that are frustratingly imperfect, so I guess the only question is whether it's actually possible to improve upon them or whether, like democracy, this is the best worst system available.
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K
Joined: 09 Sep 2011
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"Meantime, Doug Smith, the officer commanding Victoria Police’s Taskforce SANO's investigation into Cardinal Pell, has told the ABC’s Four Corners program that he found the Catholic church "difficult" to deal with.
Sergeant Smith told the broadcaster that Pell co-operated with the investigation at all times, but that Australia’s most-senior churchman was arrogant.
"There's a level of arrogance that some people get to where they're at this position in standing in the community,” the policeman said.
“When you are seen to be someone with some level of importance, I think there is a level of arrogance that goes with that." "
https://www.theage.com.au/national/victoria/andrews-pell-s-defenders-are-wrong-20190304-p511kc.html
Wonder how appropriate Smith's comments are. Trial by media on the charge of "arrogance", while a court appeal is in progress. |
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stui magpie 
Prepare for the worst, hope for the best.
Joined: 03 May 2005
Location: In flagrante delicto
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There's some good points in that Article David, at least I think so.
The fact that 4 states already have provision for judge only trials in specific circumstances is a good one, and Victoria should introduce similar legislation IMO.
I also like the idea of background checks on Jurors as in the US system, so you can weed out poeple who have demonstrated clear bias one way or the other. The prosecution and defence already have the right to remove anyone they want to from the jury without question, but IMO it should be more transparent with factual evidence to work from, such as social media accounts.
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Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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Now, the real fun starts: https://www.9news.com.au/2019/03/04/10/52/george-pell-man-to-sue-pell-over-alleged-sex-abuse-in-ballarat
"A man who alleges he was molested by George Pell when he was a boy in the 1970s will file a lawsuit against the disgraced cardinal in the Melbourne’s Supreme Court.
The suit to be lodged today names Pell, the trustees of Nazareth House, (formerly St Joseph's), the State of Victoria and the Catholic Archdiocese of Melbourne.
The 50-year-old man was a resident in St Joseph's Boys Home in Ballarat from February 1974 to 1978 and alleges he was abused by Pell during that period."
Those of you who can get behind the Herald-Sun paywall can get a more detailed version of the article.
I could tell you how this all ends - but it's a little bit tragic and you'll all just think I'm miserable if I tell you. |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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Here's the SBS article on the same story, noting that:
'Arnold Thomas & Becker lawyer Lee Flanagan said they hoped to include the evidence of three other men who were complainants in the so-called “swimmer's trial” against Pell.'
Two alleged Pell abused them at Ballarat's Eureka Swimming Pool around the same time, while the third alleged the abuse happened at Lake Boga. Pell denied all these claims of abuse, and this trial was ultimately withdrawn due to lack of admissible evidence.
https://www.sbs.com.au/news/cardinal-george-pell-to-be-sued-over-alleged-1970s-sexual-abuse-in-ballarat
So everyone is not totally perplexed, the fact that the evidence is inadmissible in a criminal matter (causing the criminal trial to collapse) does not mean it will be excluded from a civil trial (and, moreover, it probably won't be excluded). |
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K
Joined: 09 Sep 2011
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Is this person connected to the aborted second case, or is this something completely separate?
[Posts crossed. ... Why did the second trial collapse? Details are scarce.]
Last edited by K on Mon Mar 04, 2019 7:53 pm; edited 1 time in total |
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Jezza 
2023 PREMIERS!
Joined: 06 Sep 2010
Location: Ponsford End
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^ The second trial related to allegations that Pell molested boys at a swimming pool, but the trial was dropped due to a "lack of admissible evidence".
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K
Joined: 09 Sep 2011
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K
Joined: 09 Sep 2011
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| Jezza wrote: | | The second trial ... was dropped due to a "lack of admissible evidence". |
I wonder what made it inadmissible. |
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