While the decision in the matter of Cardinal George Pell concerns criminal issues it does raise questions about the application of the rules of evidence by Australia's courts in all including commercial matters. While commercial disputes are generally civil matters between the parties in commercial matters litigants face the burden of presenting financial information to judges who often seem dismissive of financial detail (see article below for the reasons why Australian courts seem to find dealing with financial data a burden).
In handing down the decision in Cardinal George Pell's appeal against his conviction for crimes relating to child sex abuse Chief Justice Ann Ferguson said that “it is not enough that the jury might have had a doubt, but they must have had a doubt” .
Her Honour said so in explaining why she and the other judge in the three judge panel disagreed with dissenting judge Mark Weinberg's decision where he concluded that the "jury might have had a doubt".
In reading out the court’s conclusions for rejecting the appeal, Chief Justice Anne Ferguson outlined Justice Weinberg’s reasoning.
“In his dissenting judgment, the judge found that at times, the complainant was inclined to embellish aspects of his account,” she told the court this morning.
“He concluded that his evidence contained discrepancies, displayed inadequacies so as to cause him to have a doubt as to the applicant’s guilt.
“He could not exclude as a reasonable possibility that some of what the complainant said was concocted, particularly in relation to the second incident.”
“Nevertheless, Justice Weinberg stated that in relation to the first incident, if the complainant’s evidence was the only evidence, he might well have found it difficult to say that the jury, acting reasonably, were bound to have a reasonable doubt about the Cardinal’s guilt,” she said.
“He went on to note, however, that there was more than just the complainant’s evidence.
“In Justice Weinberg’s view, there was significant and in some places impressive evidence
suggesting that the complainant’s account was, in a realistic sense, impossible to accept.”
“Justice Weinberg stated that in his view, the convictions could not stand,” she said.
“Nevertheless, the appeal on the unreasonableness ground has been dismissed because two of us took a different view of the facts.”.
In short, its seems as if the CJ is herself aware that one cannot prove with absolute certainty that the jurors must have had a doubt. It will always have to be an objective test, which is what Weinberg set-out. However, because it can only be an only be an objective test, Weinberg could only make a conclusion based on probabilities (hence "may" and not "must").
Nevertheless, the Chief Justice seemed determined, as has become the norm, to formulate if not state legal principle without reference to a factual matrix.
Commercial lawyers (one hopes) but certainly litigants in commercial matters can immediately see the problems that can and will arise in taking such an approach.Conversely, Weinberg's reasoning provides a timely if not long overdue reminder of how the facts in any case ought to be assessed.