By Emma Goodall
On 7 April 2020, a seven-judge High Court of Australia (HCA) unanimously upheld the appeal of Cardinal George Pell against his convictions for historic sexual offences. The test applied by the Court was whether there was "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”. To practitioners in England and Wales, that formulation looks surprisingly purposive. We have become inured to the proposition that when assessing the safety of a conviction, it is not for Appellate Courts to substitute their own view of the evidence for that of the jury’s.
In a fact-specific judgment, the Pell appeal principally focused on the evidence referred to as “opportunity witnesses” – that is, multiple witnesses the prosecution were obliged to call at trial, but whose evidence of Mass and the Cathedral layout was incompatible with the allegations as described by the complainant. The Prosecution applied pre-trial, under procedures prescribed by State legislation, to cross-examine their own ‘unfavourable’ witnesses. The HCA observed that by granting the application, the trial Judge implicitly acknowledged that the evidence, if accepted, “excluded the realistic possibility of the offending having occurred as A [the Complainant] described it”. At trial, the prosecution pursued limited cross-examination of these witnesses, failing to challenge material aspects of their evidence or to impugn their reliability.
The language deployed by the HCA to describe their appellate function is familiar: “the performance by a criminal court of appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury”. The distinction the HCA drew between the jury’s function and their own is that their appellate analysis has no subjective element regarding the credibility of individual witnesses – it is based on the inherent logic, or illogic, of the evidence. To this end, the unchallenged evidence of the Prosecution’s countervailing opportunity witnesses led the HCA to the conclusion that the evidence as a whole was not capable of excluding a reasonable doubt as to the applicant's guilt. However, the criticism has been levelled that in making that assessment the Court inevitably formed a view, contrary to that of the jury, regarding the credibility of the complaint and therefore of the complainant.
Were a similar factual matrix to occur at trial in this jurisdiction, with the countervailing evidence being called by the prosecution, the Court of Appeal may have to determine whether the trial judge erred in leaving the case to the jury. As this is a matter of law, the Court can avoid having to overtly substitute its view of the evidence for that of the jury’s. The effect, however, is the same – if a trial judge errs in leaving an untenable case to the jury, the jury must have erred in convicting the defendant. However if, as is often the position, the opportunity witnesses were called at trial by the defence, absent any error in law or procedure, a defendant’s only ground of appeal may be to rely on the exceptional application of the judicially deprecated “lurking doubt” test which “requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe.” . In that situation the difference of procedure and approach between the two jurisdictions is significant with our jurisprudence establishing a much higher hurdle to clear before a jury may be found to have fallen into error.
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