Criminal Law

By Anna Bennett

17.03.19

Pell guilty in the Court of public opinion, perhaps not guilty in the Court of law

A key concept of criminal law which lawyers, law students and the general population alike find incredibly difficult to grasp, is the reality that committing a criminal act, is not unequivocally synonymous with being proven guilty of committing that criminal act in a court of law. Whilst a morally abhorrent concept to most, if a client confesses guilt of a criminal act, of which they are charged, to their lawyer, their lawyer is more than entitled to still enter a plea of not guilty in court on behalf of their client and putting the prosecution authorities to strict proof. Doing so, is perfectly inline with the lawyer’s professional responsibilities.

When trying to explain this counterintuitive concept to friends whom have no legal background, I consider it simplest to frame it in the following respect: Pleading not-guilty is not saying, factually, I did not commit the elements which constitute the crime in question, but rather, I am putting the State to the test to prove beyond a reasonable doubt that I did commit all of the elements which constitute the crime in question. This reflects a cornerstone principle in our judicial system: Innocent until proven guilty.

If you ask the average Australian person in the street whether they agree with the principle that people should be treated as innocent until proven guilty, 9 times out of 10, I anticipate you will get an affirmative answer. However, if you asked those same people whether they agree that a lawyer should be able to defend a charge when their client has confessed to them that they are guilty, you will get a very different response. This inconsistency in the principle’s understanding exposes a potentially very big vulnerability in our judicial system: The trial by jury.

The debate concerning the fairness of a trial by jury has been thrown into the spotlight over the past few weeks with the high-profile trial of Cardinal George Pell. Mr Pell was tried and convicted by jury. He did not have the option to be tried by judge-alone, as his trial was conducted under Victorian jurisdiction which requires indictable offences to be tried by jury. If Mr Pell was tried in New South Wales or Western Australia, he would have had the option to apply to be tried by judge-alone.

The great issue with Mr Pell’s trial being one before a jury, centres around the nature of the charges he faced, and the enormous public attention given to Mr Pell and the criminal allegations against him. Allegations against Mr Pell were catapulted into public discourse well before Mr Pell was charged with any offence, let alone his trial began. Those allegations also went well beyond the charges that ultimately ended up before the Court. The result of such broad publication and discussion of the criminal allegations against Mr Pell is essentially a trial in the court of public opinion. Such a ‘trial’ is led by media sources entirely unconcerned with proffering unprejudiced views or observing any evidential standards. Mr Pell is a cardinal of the Catholic Church, Australia’s most senior Catholic and was accused of historical sexual assault offences against children. By those facts alone, and the current prejudices that attach to such, Mr Pell was considered guilty by the public majority before a single piece of evidence was considered in Court.

Unfortunately, these prejudices and pre-emptive conclusions can very easily appear in the jury box of the court room (whether intentionally or not). Judges give very detailed instructions to the jury prior to the commencement of a trial to stress the importance of impartiality and of their decision to be based upon the evidence put before them in Court. However, understanding these directions and being able to rigorously identify and discard one’s prejudices when assessing evidence and making final judgment are very different things.  Also, asking twelve people to check their prejudices at the Courtroom door and expecting they will have no role to play in the jury’s deliberations is a fiction.

I am not suggesting that Mr Pell did not commit the acts to which he was charged.  There are only a few people who know what happened. As with most of the Australian public, I too have my own opinion concerning whether I think Mr Pell is guilty. However, as stressed in the first sections of this piece, it does not matter in law whether anyone thinks Mr Pell guilty. It does not matter in making judgment at law, whether Mr Pell did in fact commit these offences. Mr Pell could have confessed he committed the offences to his lawyer (which I am not suggesting he did) and this too would not matter in terms of making judgment in Court. All that matters in making legal judgment is whether the evidence put before the Court during his trial, and only that evidence, proves beyond a reasonable doubt Mr Pell committed the offences as charged.

On an evidential basis, the case put against Mr Pell in Court was, strictly speaking, not strong.  Unfortunately, we can never know the reasons why each juror found in favour of guilt. That is one of the virtues (or downfalls) of a jury trial: Jurors do not, and cannot, give reasons for their verdict. Everything that transpires in the jury room is strictly confidential. We can only then theorise that their finding of guilt, on an evidentially weak case, may potentially be attributed to prejudices and personal biases which made their way into the jury room.

It is my opinion, and that of many experts in the legal field, that if Mr Pell’s trial was conducted before a judge-alone, he would not have been found guilty. Mr Pell’s appeal will be before the Court in June 2019.  The appeal will be heard by three judges. The scuttlebutt going around in legal circles is he has a good chance of winning his appeal.  We shall wait and see.