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Was Cardinal George Pell wrongly convicted?

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Pell

The facts

In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.

The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.

Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin.

Relevant law

At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP [1935] AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).

The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).

Section 141(1) of the Evidence Act 2008 (Vic) provides that:

“In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”

Section 49B of the Crimes Act 2008 (Vic) provides that:

(1)     A person (A) commits an offence if—        

(a)     A intentionally—             

(i)     sexually penetrates another person (B);…

and       

(b)     B is a child under the age of 16 years.   

(2)     A person who commits an offence against subsection (1) is liable to level 4 imprisonment (15 years maximum).

Criticisms of the jury’s decision

Andrew Bolt:

“Here is why I don’t believe this gothic story — or not enough to think this conviction reasonable.

One of the boys, now dead, denied he’d been abused.

The other, whose identity and testimony remain secret, didn’t speak of it for many years.

The attack is meant to have happened straight after Mass, when Pell is known to have traditionally spoken to worshippers leaving Mass.

It allegedly happened in the sacristy, normally a very busy room, where Pell would have known people were almost certain to walk in.

The boys had allegedly slipped away from the procession after Mass to break into the sacristy, but none of the other choristers who gave evidence said they’d noticed them doing so, or noticed them rejoining the choir later.

Pell was normally followed everywhere during and after Mass by the master of ceremonies, Monsignor Charles Portelli, who testified that he escorted the then Archbishop from the moment he arrived at the cathedral, until the moment he left. He declared the assault impossible. Not a single witness from what was a busy cathedral at the time of the alleged abuse noticed a thing during the estimated 10 minutes of this alleged attack.”

Frank Brennan:

“The second boy was once asked by his mother if he had ever been abused by anybody and he said he had not…

Anyone familiar with the conduct of a solemn cathedral mass with full choir would find it most unlikely that a bishop would, without grave reason, leave a recessional procession and retreat to the sacristy unaccompanied.

Witnesses familiar with liturgical vestments were called. They gave compelling evidence it was impossible to produce an erect penis through a seamless alb. An alb is a long robe, worn under a heavier chasuble. It is secured and set in place by a cincture, which is like a tightly drawn belt. An alb cannot be unbuttoned or unzipped, the only openings being small slits on the side to allow access to trouser pockets.

The complainant’s initial claim to police was that Pell had parted his vestments, but an alb cannot be parted; it is like a seamless dress.

Later, the complainant said Pell moved the vestments to the side. An alb secured with a cincture cannot be moved to the side. The police never inspected the vestments during their investigations, nor did the prosecution show that the vestments could be parted or moved to the side as the complainant had alleged. The proposition that the offences charged were committed immediately after mass by a fully robed archbishop in the sacristy with an open door and in full view from the corridor seemed incredible to my mind.

I was very surprised by the verdict. In fact, I was devastated. My only conclusion is the jury must have disregarded many of the criticisms so tellingly made by Richter of the complainant’s evidence…

Pell has been in the public spotlight for a very long time. There are some who would convict him of all manner of things in the court of public opinion, no matter what the evidence. Others would never convict him of anything, holding him in the highest regard. The criminal justice system is intended to withstand these preconceptions. The system is under serious strain, when it comes to Pell.”

Greg Craven:

“The main institutions involved here are the media and the police. The media must report cases fairly, abide by the letter and spirit of the law, and not barrack for either side. The police present evidence impartially, working for justice, not conviction. Media and police never combine to form a pro-conviction cheer squad.

This is where the Pell case has gone terribly wrong. Impartial judge and jury accepted, parts of the media — notably the ABC and former Fairfax journalists — have spent years attempting to ensure Pell is the most odious figure in Australia. They seemed to want him in the dock as an ogre, not a defendant.

Worse, elements of Victoria Police, including Chief Commissioner Graham Ashton, co-operated in this. Ashton’s repeated announcements of impending charges and references to “victims” rather than “alleged victims” were matched only by the coincidences in timing between police pronouncements and favoured media exclusives…

So what we have witnessed is a combined effort by much of the media, including the public broadcaster, and elements of Victoria’s law enforcement agency, to blacken the name of someone before he went to trial…

This is not a story about whether a jury got it right or wrong, or about whether justice is seen to prevail. It’s a story about whether a jury was ever given a fair chance to make a decision, and whether our justice system can be heard above a media mob.”

Paul Kelly:

“There have been two trials of Cardinal George Pell — in the court of justice to decide if he was guilty of sexual abuse of children, and in the court of public opinion over nearly two decades that saw him accused of indifference, deception and ultimately evil compliance in the monumental sins of the Catholic Church.

The tests in these trials are different. The test in the first trial was whether the evidence showed Pell guilty “beyond reasonable doubt” as a sexual predator who abused his authority to brutally exploit two choirboys. There is no test in the second trial — no judge or jury — just the hardening of opinion towards Pell and then his demonisation as the nation’s senior Catholic during the long and climactic revelations of unforgivable sexual abuse within the church.

The law requires these trials to be separate. Indeed, justice ­depends upon it. Yet how realistic is this?…

Pell cannot escape responsibility for the failures of the church but the sustained visceral hostility towards Pell transcends institutional accountability. The vile hatred towards him is worse than displayed towards a serial killer. Veteran lawyers said privately they had never seen anything like it in their careers. What does this tell us not just about Pell but about ourselves? The Pell story goes beyond the institutional and cultural failure of the Catholic Church. It is far bigger, more complicated and dangerous…

Pell arrived suddenly, censured them and then, with the sacristy door open, people passing in the corridor, and still in his heavy mass vestments including the alb, a long secured vestment without front buttons or zipper, proceeded to sexually assault the boys, whom he did not know, in an extremely brief period of time. There was no witness to support the complainant. The former choirboy’s evidence was given in secret. Brennan called the entire scenario ­“incredible”.”

Joe Hildebrand:

“For many it is clear that Pell’s jailing is a watershed moment that has delivered some kind of catharsis, some sense that the system finally worked — perhaps even some sense of revenge. For many others — including the dead — it is far too little, far too late.

Certainly it has been clear from many responses, by survivors and commentators alike, that they see Pell as being punished for many other crimes on top of the one confirmed in the Victorian County Court.

But by conflating one incident at St Patrick’s Cathedral in the mid-1990s with the myriad atrocities committed by Catholic clergymen throughout the decades — including Pell’s own sins of omission — the sense of justice may be short lived.

As satisfying as it may be for victims of church abuse to see Pell punished, it is vital that he is punished for the right thing.”

Conclusion

If the above reports are true (and there are no important facts which would have supported the convictions), it seems likely that it was not open to the jury to be satisfied of Pell’s guilt beyond reasonable doubt and he should have his conviction overturned on appeal. It is unsurprising that legal experts assess Pell’s chances of having his conviction overturned on appeal as quite good.

Victoria (unlike NSW and QLD) does now allow for judge only trials. Serious consideration should be given to changing this, as the Pell case demonstrates the need for defendants who have received such awful pre-trial publicity to have their case tried in a way where such adverse publicity will not affect the result of the trial.

And given that this is the case, a successful appeal should probably lead to a verdict of not guilty being entered instead of another retrial.

Bourke Street killer James Gargasoulas found guilty

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A Victorian Supreme Court jury has found Bourke Street driver James Gargasoulas guilty of murder.  

Gargasoulas

The facts

On 20 January 2017 James Gargasoulas accelerated a car he was driving down a footpath in Bourke Street Melbourne, deliberately targeting pedestrians. He killed 6 people and injured many others during his rampage.

Gargasoulas was suffering from paranoid schizophrenia and drug induced psychosis at the time of the offences.

Relevant law

Section 3 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:

“offence” includes conduct that would, but for the perpetrator’s mental impairment or unfitness to be tried, have constituted an offence.

Section 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides: 

Defence of mental impairment

    (1)     The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—

        (a)     he or she did not know the nature and quality of the conduct; or

        (b)     he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

    (2)     If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

Victorian Supreme Court trial

At the trial, the jury listened three days of evidence and watched harrowing CCTV footage of the rampage.

Gargasoulas gave evidence about his state of mind at the time of the offences:

“I had a premonition and I followed my instinct to do what I did… I wasn’t intending to kill anyone as I was driving to the city.”

Gargasoulas apologised for his actions but said saying sorry or a lengthy sentence would not “fix what I have done”.

His barrister Dr Theo Alexander started his three minute closing submission with a quote from Hamlet:

“Our wills and fates do so contrary run

That our devices still are overthrown

Our thoughts are ours

their ends none of our own.”

In her closing, Director of Public Prosecutions Kerri Judd QC said it was a clear case of criminal liability:

“There’s no issue of identity, the conduct itself is captured on the CCTV. The CCTV really in this case says it all.”

The jury were sent away this morning at 11.43am to deliberate.

Jury’s decision

In less than an hour, the jury found Gargasoulas guilty of 6 counts of murder and 27 counts of reckless conduct endangering life.

Gargasoulas displayed no emotion as the verdicts were announced while family members of the victims who were in the court wiped their eyes. Later, Gargasoulas appeared to be twitching his leg and rocking slightly in his seat.

Conclusion

The jury’s verdict should not have come as a surprise given there was no dispute that Gargasoulas was the driver of the car and had intended to kill or injure, and a jury had earlier found that he was fit to stand trial.

There is no doubt that Gargasoulas’ mental illness was a cause or contributing factor to the crimes he perpetrated on 20 January 2017. This case shows that even when someone is suffering from a mental illness and/or a drug induced psychosis, they ordinarily still are held criminally responsible for their actions. The legal question for a jury or judge is whether they knew what they were actually doing, or whether they knew that what they were doing was wrong. The jury’s answer to both questions was in the affirmative.

How to be an impressive witness in court

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Introduction

Witnesses are usually assessed according to their credibility and reliability.

In cases where there are disputes of fact, the performance of the relevant witnesses will be critical, as the case is likely to be determined according to which witnesses are believed and which are not.

This article discusses dome of the do’s and don’ts involved in giving evidence at a hearing.
Continue reading “How to be an impressive witness in court”

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