George Pell sexual abuse trials and fresh investigation

[K]

From the earlier (pre-Appeal) Jeremy Gans article,

https://insidestory.org.au/pells-judges/ :

"Victoria’s Court of Appeal hears around 250 criminal appeals each year, but two-thirds concern whether a sentence is too high or too low and most of the rest concern whether a trial judge made a mistake. Barely a dozen convicted criminals a year argue that the jury’s verdict against them was simply unsafe. Since 2016, ten such appeals have succeeded in Victoria, a success rate of around one-in-four. But Pell’s appeal doesn’t turn on two tosses of a coin: the outcome will be no more random than the choice of which judges would hear his case.
...

In the last three years, Weinberg ruled three jury verdicts unsafe, but rejected a further fifteen such arguments, a success rate of just one-in-six. More disturbingly for Pell, the other two judges ruled unsafe none of the jury verdicts they considered. For the chief justice, that simply reflects how few criminal appeals she hears, given the demands of administration and her commercial law background. But for Maxwell, the rate seems to reflect his own scepticism when it comes to reasonable doubts of guilt. He has been left unmoved by all nine unsafe verdict appeals he has heard since 2016, including two in which both of his fellow judges upheld the defendant’s appeal.

Past judgement counts are even worse than federal opinion polls as predictors of future decisions, because criminal appeals are just too varied and unsafe verdict appeals are a very select group. More troubling for Pell is that Chris Maxwell has long expressed the test for unsafe verdicts without any reference to doubts held by the appeal judges themselves, instead asking whether the jury “must, as distinct from might, have entertained a doubt.” By contrast, Mark Weinberg was recently part of a unanimous panel that pointedly rejected any more “stringent” test than the High Court’s 1994 decision, emphasising that the appeal court should “conduct its own independent assessment of the evidence that was before the jury.”

The Court of Appeal would surely be loath to make a high-profile appeal like Pell’s the occasion to choose between these two arguably different approaches. Rather, the three judges are likely to strive to reach a unanimous decision that emphasises the particular facts in Pell’s trial.
...

While by no means certain, Pell’s chances of a ruling that his jury’s verdict was unsafe are good.

But, as is presently the case for his accuser, any victory for Pell will “be overshadowed by the forthcoming appeal,” this time to the High Court of Australia. That court, alone among Pell’s potential judges, has the freedom to choose whether to decide at all. Whoever wins in the Court of Appeal, Pell, his accuser and the rest of us will learn whether the national court will take on the case by the end of the year. If it does, then all bets are off."

[K]

[Not about Pell, but involves Justice Maxwell...]

Top judge worried forensic evidence putting innocent people behind bars

https://www.theage.com.au/national/top-judge-worried-forensic-evidence-putting-innocent-people-behind-bars-20190823-p52k3l.html

"Justice Chris Maxwell, President of the Victorian Court of Appeal, said there was little proof that forensic techniques including gunshot analysis, footprint analysis, hair comparison and bite mark comparison could reliably identify criminals.

He called on governments around Australia to urgently change the law, so that judges had to consider the reliability of forensic evidence before it was shown to juries.

Two major American reports have concluded that DNA analysis is the only forensic technique that is absolutely reliable.

"There have been a string of wrongful convictions across the world," Justice Maxwell said. " The benefit of better DNA testing has shown that very many people convicted on the basis of 'crook science', for example, bite mark analysis, were innocent.

“This seems to me to be a matter of profound concern.”

The judge's comments come after The Age revealed last month grave concerns that the legal system and forensic scientists were ignoring systemic problems with forensic evidence.
...

The two critical American reports, published in 2009 and 2016, led to major changes to the US and British legal systems. Not so in Australia.

“When I learnt about those reports ... I was shocked," Justice Maxwell said."

[K]

Everyone should have right to trial by judge, not jury

https://www.theage.com.au/national/everyone-should-have-right-to-trial-by-judge-not-jury-20190821-p52j9i.html

"The jury selection process is based on a hunch. As one unnamed Victorian lawyer, quoted in a 2010 academic article on jury selection processes, rightly put it: “I’ve always found the system to be somewhat curious and a bit quirky in that we get given a very tiny, but sort of vaguely significant piece of information about the jurors before you pick them, and there’s a whole mythology that seems to be wrapped around who you pick and who you don’t.”

And when at the start of a case the judge asks the newly selected jury members if there is any reason they cannot sit on the case, there is reliance on the integrity and honesty of the 12 jurors to say yes or no.
...

In a 2013 UK case a person selected as juror in a sex case wrote on their Facebook page: “Woooow I wasn’t expecting to be in a jury Deciding [sic] a paedophile’s fate, I’ve always wanted to F--- up a paedophile & now I’m within the law!”

... is it good enough that we continue to have complete faith in a process designed at the time of the Magna Carta, 800 years ago?

Is it not time to think about reforming the jury process so trial by judge alone should be available to every accused person, and not just if you are "lucky" enough to be charged in NSW, South Australia, the ACT, Queensland and Western Australia, where such a right is available? And given the footprint most of us have now in the social media sphere, whether on Facebook, Twitter or in online comments on news sites, perhaps we ought to look at the US system, where background checks on potential jurors are permitted so we can better ensure that those who serve on a jury do not come to the courtroom having prejudged the case.
...

In the US there are varying degrees of background checks on potential jurors permitted, depending on the state. There is capacity for lawyers to undertake background checks on jurors and to ask them questions prior to jury selection. This process is seen by the UK and Australian legal systems as anathema because it invades the privacy of citizens and is open to abuse by lawyers working with private detectives to dig into a person’s background."

Greg Barns is a barrister and a lecturer in jurisprudence and innovative justice at RMIT University.

[Pies4shaw]

I do not understand why people think the justice will be better from one biased judge than from 12 biased jurors, whose biases are obviously moderated by the mere fact that there are 12 of them. Our present system recognises the implicit risk of bias from having judges sit alone - that occurs only for the most minor of offences, tried in the Magistrates' Court.

Maybe this makes sense if you went to De La Salle?

[K]

Where would you prefer Mr. Barns to have gone?

[stui magpie]

Finley High

[Pies4shaw]

^ Certainly fewer (known) sex offenders there, Stui. Cf: https://www.abc.net.au/news/2017-02-06/child-sex-abuse-royal-commission:-data-reveals-catholic-abuse/8243890

[David]

While juries – like all human-run processes – are far from flawless, I think the system has plenty of merit, and I would be loath to throw it out over one bad result (if one were to even conclude that this was one, an argument that admittedly the appeal finding makes a lot harder to prosecute). Nonetheless, I do think there’s a lot of merit to the idea of running a trial before a judge or judges in exceptional cases. I don’t think anyone in Australia would have entered that jury room without a preordained view of George Pell, and thus the risk of a prejudicial (literally, pre-judicial!) finding was probably unacceptably high. I don’t think there are many people you can say that about (e.g. Rolf Harris was just as famous, but had none of Pell’s mass public loathing; if anything, the risk would be that too many people might be predisposed to see him in a good light), but I don’t think it hurts to have provisions for special cases, and Kidd’s super suppression order, for instance, is ample proof that this trial was already being treated as one in most other respects. So for me it’s about having the option, not abolishing or undermining trial by jury.

[Pies4shaw]

And which Judge do we think could try Pell without prejudice (whether for or against)?

[K]

Maybe we could have a treaty with Sweden (for example), where they've probably never heard of Pell, for judge sharing.

[David]

[stui magpie]

Judges are human, they have biases too. Those who demonstrate that they find themselves unable to control those biases and judge cases on the evidence would be removed from judging criminal proceedings

[ronrat]

there was a magistrate in lilydale whose daughter was killed by a drunk driver. if you copped him with a dui gone.

[think positive]

[Pies4shaw]