George Pell charged

Pity poor George Pell, the cardinal summoned home to face the Victorian criminal justice system on charges of having committed “historical” sexual assaults (peculiar word that, you never hear it used in connection with any other kind of crime). Friendless, apart from the Pope and the Roman Catholic Church, and the victim of a campaign of “relentless character assassination” (his words) by a baying media, with nobody to speak for him, apart from the opinion writers of News Corp and a former prime minister

As Andrew Bolt said, “what hope is there now of Pell getting a fair trial?”. It’s all enough to make one wish, like Bolt went on to do, for a more civil society, perhaps one in which people’s guilt or innocence of anti-social acts is not prejudged on the basis of what they are rather than what they’ve done.  

Mind you, on the Skittles theory of behavioural predictability favoured by Donald Trump Jr, the fact of being a Catholic priest in Australia is at least seven times more likely to mean you’ll be accused of being a paedophile than being Muslim makes you a likely terrorist. (I draw this entirely unsafe conclusion from the royal commission’s finding that about 7% of Catholic priests within the time period of its investigations had been accused of sexual abuse, while it’s generally accepted that less than 1% of Muslims are in any way radicalised).

Of course, I’m just drawing a false equivalence as a debating point. Bolt and others have been expressing genuine concern about a real human person who is facing his accusers and entitled to a fair process, as opposed to undifferentiated Skittle people whose guilt is routinely affirmed by definition.

Which isn’t to say that they don’t have a point, for once. The cardinal would be right to be worried about his prospects for a fair hearing, given that he has been the poster boy (in every sense) for the Catholic Church’s dealings with the issue of sexual abuse of children under its umbrella, for many years. He’s had celebrated encounters with the royal commission and Victorian parliamentary inquiry; he invented the so-called Melbourne Response to victims. Books have been written about him, TV programs aired, alleged victims heard. There’s a wealth of material out there if you’re particularly keen to prejudge him before he gets his day in court.

[Victoria Police raise Pell, cardinal pontificates impending See change]

All that considered, the question of how on earth a fair-minded jury will ever be found to adjudicate on Pell’s guilt or non-guilt (sorry, innocence isn’t actually an option in criminal trials) is a reasonable one to ask. It’s a particularly acute one in Victoria, where any trial will take place, because it’s one state in which judge-only trials are not available.

The digital age has proved a massive challenge for the jury system, because not only are potential jurors far more likely to have been tainted by having seen stuff on the internet that is wrong, misleading, biased and most definitely in breach of the sub judice rule, but it’s also too easy for sitting jurors to get curious and go online to supplement the evidence they’re receiving in court with, well, whatever.

That’s all a threat in any case; the argument goes that it’s massively compounded in a case like Pell’s, because of the celebrity/notoriety of the defendant. Pell, it might be argued, is simply too well known to get a jury that will be able to bring an impartial mind to his trial.

Assuming nobody is arguing that a person can be too famous to ever be tried at all, the logical alternative is the trial by judge sitting alone. This is possible in New South Wales, for example, where it was used in the Simon Gittany case, among many others. The judge determines both guilt and sentence. The supporting theory is that judges are far better equipped than jurors to shut out the white noise of media speculation and to consider the case solely on the evidence presented. It’s essentially an acceptance of the widely held theory that juries are prone to laziness and stupidity, or at least failure to understand and properly perform their role.

True it is that a judge would be extremely unlikely to do what a juror called Kasim Davey did in the UK when he was sitting on a trial of an accused sex offender: write a Facebook status saying “Woooow I wasn’t expecting to be in a jury deciding a paedophile’s fate, I’ve always wanted to f*** up a paedophile & now I’m within the law!”

Davey went to jail for contempt of court, as he should. Judges are reliably rather more self-restrained, but the threat to justice which Davey presented wasn’t his tweet but the opinion he was stupid enough to express; one which plenty of people most likely hold. It begs the question: is a judge less likely than a layperson to hate paedophiles?

Which brings us to the key point: why juries at all? The answer, as usual, has much to do with Magna Carta, that magnificent relic still working its magic 800 years later. Among many other things, Magna Carta enshrined the human right to trial by one’s peers. Why was this thought important, and why has it survived as a fundamental plank of the English system of justice? Why does the Australian constitution mandate trial by jury for Commonwealth crimes? Why is it in the US constitution too?

[Pell freezes over]

It would have been no less obvious at any earlier time than it is today that professionally trained judges are likely to be more intelligent and educated than random punters off the street. If those were the relevant criteria for fitness to decide criminal cases, we wouldn’t need juries at all. 

The framers of our legal rights obviously thought that wasn’t it, and I agree. Intelligence and education are not good predictors of objectivity, fair-mindedness or absence of bias-based prejudgment. Those latter are the characteristics that make a good juror, and which each of us would desperately hope were in abundance if we ever faced a jury ourselves. They have nothing to do with how smart people are or how much law they know.

In fairness, what I’ve said is contestable and frequently contested. But then, I know a lot of lawyers and personally I’d feel a whole lot less safe in the hands of a jury comprised of them than I would with one made up of random strangers. Not because I don’t trust lawyers, but because I agree with the reasoning behind the rule that disqualifies practising lawyers from sitting on juries at all. And, if lawyers don’t make the best jurors, then judges are arguably even less well equipped.

Juries often get it wrong. Lindy Chamberlain was convicted by a jury on some pretty dodgy evidence. She was also committed for trial by a coroner and had her appeals against conviction rejected by the Federal and High Courts. She was only later declared completely innocent by the Supreme Court, after a royal commission. Plenty of failure to share around between judges and jurors there.

None of this solves the Pell dilemma. If he ever sees a jury (there’s no certainty of that; his case is only at the committal stage and could be dismissed there), his personal fame and that of the whole abuse issue will present a big challenge. I don’t mind defendants having the option of being tried by judge alone, and wouldn’t mind Pell having that option either, if Victoria decided to go the same way as other states have.

However, allowing individual accused persons to waive their right to trial by a jury of their peers is not the same thing as accepting that the jury system is broken. The key to that system’s longevity is in the very randomness of its selection. Twelve men and women good and true remain, in my mind, a better guarantor of justified freedom than any single person, no matter how book-smart they be.

Peter Fray

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