George Pell sexual abuse trials and fresh investigation

[PyreneesPie]

[K]

David Hamer, Professor of Evidence Law:

"Because only limited evidence was relied on at trial, relatively few legal issues were raised. This means the defence may find it difficult to identify any legal error as a ground for appeal. ...

If errors are found, the Court of Appeal would still dismiss the appeal if the errors seem too slight to have affected the outcome.

The other defence argument on appeal could be that the conviction was unreasonable. The jury simply got the facts wrong. Here the defence may face obstacles. The Court of Appeal is unlikely to entertain claims the jury was prejudiced and blamed Pell for the Church’s inadequate response to other paedophile priests.

Appeal courts generally trust a properly directed jury will comply with its duties. Appeal courts are also generally wary of overriding jury verdicts, particularly where they rest upon witness credibility, as in this case. ...

However, the Court of Appeal may feel well placed to assess the defence argument of impossibility. And in this case, unusually, the court may be able to assess the complainant’s demeanour, since the witness testified over video link.

This may be one of those exceptional cases where the court is prepared to say the jury got it wrong. But the court may also hesitate to override the jury – the community’s representatives – in a case that has opened such a rift in Australian society."

http://theconversation.com/how-an-appeal-could-uphold-or-overturn-george-pells-conviction-112620

[Pies4shaw]

^ That's code for "Maybe, maybe not. I don't know. I teach evidence in NSW. I have not recently argued an appeal in the Victorian Court of Appeal and I can only really guess at what might happen. My friends at the Bar in Melbourne tell me that we should all just wait and see how Paul Holdenson puts the case (since, unless he's conflicted out, he's going to argue one side or other of it). I'm happy to speculate from a distance - but we do know, based on his exceptional record in difficult cases, that the Court of Appeal is very likely to be persuaded of the correctness of Paul's submissions, whatever they may be."

[K]

He is professor of evidence law. What is "non-evidence law"?

Do you mean Holdenson was not associated with the trial and will be brought in to argue the appeal?

[K]

"In the case of Cardinal Pell, the issue was secrecy: One judge and a suppression order defined for the world how much could be known about the most senior Vatican official to ever be tried for sexually abusing children.

But, more broadly, the invisibility of the process can hide a multitude of sins."

(NY Times)


So much whingeing about the suppression order! It'd be different if it was supposed to be permanent, but it was always supposed to be just until the second case (now dropped) was over, which is reasonable if you want at least to try to have an unprejudiced jury.

A lot of the Australian media sound like they're more bothered by being prevented from publishing stuff than they are by sexual abuse of children.

[David]

After seeing all of the crowing in the Herald Sun today about finally being able to publish the name and face of Lawyer X, I’m thinking there might be something to that last hypothesis.

[Pies4shaw]

At the time of one of Michael Glennon's trials in the early 1990s, there was an application by the defence for a permanent stay of proceedings against him on the basis that there had been prejudicial pre-trial publicity, the prejudice occasioned by which could not be cured by any remedial strategy that the Court might adopt. That application was unsuccessful. It was really an "American" application, since that kind of thing works there - not, perhaps, routinely but sufficiently frequently for the application to be worth making. At the time of Glennon's trial, no-one had ever been successful in Australia on such an application. I think that may still be the case. That's in large part because we use temporary suppression orders liberally. I proffer no comment as to the balance or whether it's become more or less frequent. I couldn't actually care less. Suppression orders in our system, as in the British system, are a critical aspect of ensuring a fair trial to accused persons. The ignorant criticisms of the process as used in Australia and in the UK (see, eg, the nutty-US-right comments about the grooming trials and Yaxley-Lennon) do not cope adequately with the fact that, eventually, everything can be (and is) reported. Ours is not a police state. Most defendants are tried and convicted without any suppression order. Speaking colloquially (as distinct from trying to be precise about the applicable legal tests) such orders tend to be made only when there's either expected to be a succession of separate trials (as was the case with Pell) - so that there is a concern that a jury won't decide the second and subsequent set of charges fairly if they know he's been convicted or acquitted in the first - or there's expected to be such coverage in the media that it might be impossible to find 12 impartial jurors to try the case. Sometimes, those two reasons overlap (as, IIRC, the defence said they did in Glennon's case - he was such a notorious figure by that time that it was at least reasonably arguable that the routine findings of guilt against him would tend to undermine the prospects that he might not be convicted next trial).

In considering those observations about prejudicial pre-trial publicity etc, it will be useful for people to appreciate that in most cases, in our system of justice, guilt of a previous crime is generally not admissible on the question of whether one is guilty on some subsequent charge. There are some special circumstances concerning what is referred to as "similar fact" evidence. That is a very complex area of law and I don't want to start people's heads spinning like Linda Blair trying to deal with its nuance. It is probably sufficient to say that the mere fact that someone has been previously found guilty of, eg, sexual assault won't cut the mustard to be admissible on the defendant's next trial for sexual assault but if the modus operandi and circumstances etc were "strikingly similar", the position could be different. Thus, with Pell, the Court was simply aware that a conviction on the first set of charges could not be relevant (legally, I mean - I'm not buying into the argument about whether, as a matter of logic, someone who is already convicted of a crime is more likely to be guilty of the next crime with which they are charged) to determining his guilt or otherwise on the next charges but, self-evidently, once everyone knows he's been convicted of sexual assault against minors it makes it more likely that a jury hearing further charges of that general nature will tend to think that he "probably did" do the new alleged crimes, too.

Gobbo was a special (indeed, absolutely unprecedented) case. I will await the Royal Commission's findings before expressing any view about whether those orders should or should not have been made.

[stui magpie]

^

Gobbo's case is indeed completely different. Her name was suppressed as I understand it because of fears for her safety if she was publicly named, not anything to do with her being charged.

The problem of course being that the media then published enough information about her, without naming her, that anyone with access to Google could find out very quickly and the people who she was in danger from, already knew.

[Pies4shaw]

[Wokko]

Will she be disbarred now? Surely taking a huge shit on lawyer–client privilege would be frowned upon.

[stui magpie]

^

Apparently she hasn't practised since 2009 and hasn't held a certificate to practice since 2013.

I'm not sure if you can disbar someone who isn't currently practising but they could prevent her from becoming registered again.

[Pies4shaw]

Read what the High Court said and you can probably work out for yourselves whether or not she has a prospect of ever being allowed to practise again:

Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will[2]. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person's conviction be re-examined in light of the information. The public interest in preserving EF's anonymity must be subordinated to the integrity of the criminal justice system.
To say so is not to overlook that, on the evidence before the courts below and now before this Court, EF and her children will be at grave risk of harm unless EF agrees to enter into the witness protection program. Nor is it to ignore that, thus far, EF has declined to do so, taking the view that Victoria Police cannot be trusted to maintain confidentiality and apparently that she would prefer to wear the risk than subject herself and her children to the limitations and burdens that witness protection would surely entail. It is further not without significance that Victoria Police may bear a large measure of responsibility for putting EF in the position in which she now finds herself by encouraging her to inform against her clients as she did. But large though those considerations may be, they do not detract from the conclusion that it is essential in the public interest for the information to be disclosed.
Generally speaking, it is of the utmost importance that assurances of anonymity of the kind that were given to EF are honoured. If they were not, informers could not be protected and persons would be unwilling to provide information to the police which may assist in the prosecution of offenders. That is why police informer anonymity is ordinarily protected by public interest immunity. But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. If EF chooses to expose herself to consequent risk by declining to enter into the witness protection program, she will be bound by the consequences. If she chooses to expose her children to similar risks, the State is empowered to take action to protect them from harm[3].

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2018/58.html (at paras [10]-[12]) (my emphasis added).

These are strong words. This is not the language our highest appellate court typically uses even when it deals, eg, with drug traffickers or murderers.

[stui magpie]

^

Well, she has by her actions, besmirched the otherwise good reputation of all lawyers in general.



ehhhhhhhh......................

[Pies4shaw]

That's an easy laugh (cue shark/professional courtesy jokes) but what this woman did wasn't just a bit naughty - it has the tendency to undermine our system of justice in quite fundamental ways.

[stui magpie]

It was a cheap shot, but I do agree with you.

I'm not actually sure what was worse, the Police asking her to do it or her doing it. Probably her actions, but not by a massive length.