Former Law Council president Arthur Moses saw promotion of the rule of law in Asia as one of the LCA's priorities.. He
See first
Australia's reputation as a rule based safe haven for investment further tainted by judiciary attacking media: Judges' association reaction to media reporting on the Pell decision reminiscent of Malaysia's Eusoffe Chin era
Australia's reputation as a rule based safe haven for investment tainted by errant judges: Pell decision reveals a judicial system where the influential can rely on court processes to achieve desired outcomes
And now read on:
One of scandals in the jailing of the innocent George Pell is that Victoria's two most senior judges turned down his appeal, overruling the third - Mark Weinberg, our greatest authority on criminal law.
One of the two judges of the Victorian Court of Appeal who upheld George Pell’s wrongful conviction for assaulting choirboys was appointed to the bench after stating publicly that he was not a criminal lawyer.The Victorian government selected Court of Appeal president Chris Maxwell after a career that included working for a federal Labor frontbencher and running a politically charged legal challenge against the Howard government.Less than three years before his appointment, Justice Maxwell told a Senate committee he was not a criminal lawyer and deferred to another lawyer with expertise in this area of law.In November 2002, when he was the immediate past president of Liberty Victoria, he gave evidence to a Senate inquiry into a proposed counter-terrorism law along with Gregory Connellan, who succeeded him as head of Liberty Victoria.The Hansard record shows the then Mr Maxwell told the Senate inquiry: “As I was president when we sent in our submission, Greg and I will deal with the issues together. Greg is a criminal lawyer, which I am not,” he told the committee.In a later part of his testimony, he said Mr Connellan was “particularly well informed on issues of criminal procedure and investigation … Greg will deal with the criminal stuff”.When discussing whether a terror suspect could be detained, he said: “Greg can say whether this is feasible as a matter of criminal procedure.”In a ruling that has raised concerns about Victoria’s system of criminal justice, the High Court this month unanimously overturned Justice Maxwell’s joint judgment with Chief Justice Anne Ferguson in the Pell case and freed the cardinal after 405 days in jail.Legal academic Mirko Bagaric said he would never suggest that Justice Maxwell’s appointment was other than meritorious but he was surprised, given the complexity of the Pell case, that the majority judges had not deferred to dissenting judge Mark Weinberg, who he said was the nation’s greatest authority on criminal law.“I was surprised that the two other judges thought that their analysis, and their take on the facts as applicable to the law, were more likely to be superior and more accurate than that of the leading criminal jurist in the country,” said Professor Bagaric, who is dean of law at Swinburne University.Chief Justice Ferguson is a former commercial litigator and partner at national law firm Allens. She has never practised as a barrister. She was appointed chief justice in 2014, four years after joining the Supreme Court...Justice Maxwell’s concession that he was not a criminal lawyer took place less than three years before he was appointed in July 2005 [by the Bracks Labor Government] to lead the Court of Appeal.As well as working as a barrister in London and a silk in Melbourne, he had been principal private secretary to former Labor senator Gareth Evans, who was attorney-general and foreign minister under Bob Hawke.Justice Maxwell had come to national prominence in 2001 when he and former Greens candidate Julian Burnside QC ran an unsuccessful challenge against the Howard government’s handling of the Tampa affair.
Given his professed lack of expertise in criminal law, why did Maxwell feel qualified to sit on the Pell appeal? Even more surprising is that he then felt qualified to overrule - with Ferguson - the compelling dissent by Mark Weinberg, and dismiss Pell's appeal.
That decision looks even stranger now that the High Court has relied strongly on Weinberg's dissent to overturn the Maxwell-Ferguson ruling, which it criticised repeatedly, not least for making the fundamental error of reversing the onus of proof, so that Pell had to prove his own innocence.
But Maxwell and Ferguson also made very basic errors that seem to me to be the direct result of their inexperience in criminal law.
One was in seeming to trust too much in someone's guileless face than on the hard evidence showing that what he's saying is highly unlikely, if not downright impossible.
Again and again, Maxwell and Ferguson made clear they were relying heavily on the accuser's demeanour:
[His evidence] was rightly characterised as compelling, both because of the clarity and cogency of what A said and because of the complete absence of any indication of contrivance in the emotion which A conveyed when giving his answers.
Weinberg tried to warn Maxwell and Ferguson in his dissenting judgment against trying to judge truth from someone's face or way of talking (as anyone who'd spent years listening to criminals, including many plausible liars, would have learned):
Clearly, it is important to be aware of the risk of giving too much credence to matters such as demeanour, when evaluating the evidence of a witness. In the past, there has been a great deal of misplaced confidence in the capacity of a judge, or any other decision-maker, to discern the truth, on the basis of demeanour alone.The High Court has observed that it can be dangerous to place too much reliance upon the appearance of a witness, rather than focusing, so far as possible, upon other, more objectively reliable matters. These might include, for example, contemporary documents, clearly established facts, scientifically approved tests, and the apparent logic of the events in question.Empirical evidence has cast serious doubts upon the capacity of any human being to tell truth from falsehood merely from the observations of a witness giving evidence. That is particularly so in the artificial and stressful circumstances of a courtroom. There is today a substantial body of scholarly writing which cautions against giving too much weight to demeanour when assessing the probative value of evidence.
But Maxwell and Ferguson thought they knew better. Thought they could judge the accuser by his demeanour.
In fact, they were so struck by the demeanour of Pell's lone and unsupported accuser that they even treated the massive implausibilities in his story as evidence that he was actually telling the truth and not fabricating. They wrote:
In testing the fabrication hypothesis, it is relevant that there were features of A’s account which — had he been fabricating — he might have been expected to construct differently. For example, it might be thought surprising that — on A’s account — Cardinal Pell did not close the door after entering the Priests’ Sacristy [before allegedly raping them in his busy Cathedral, straight after Mass].But, as already noted, A said he could not recall whether it was closed or not. He thought it was not ‘wide open’. In our view, the jury could properly reason that a person fabricating a story would have been more likely to say that the door was closed, precisely in order to remove the potential difficulty of explaining how it was that noises made inside were not heard outside.
How could Pell ever win against reasoning like that, when the very things that made the claims against him seem far fetched were treated by the judges as evidence of his accuser's honesty!!!!
Maxwell and Ferguson also failed in one other spectacular and mystifying way. Neither seemed to see that the evidence of both Pell's witnesses as well as of the accuser himself made clear that the rapes could not have happened as alleged. Neither Pell nor the boys could have been at the scene of the alleged crime at the only time that Maxwell and Ferguson agreed the crime was possible. How could they have missed that?
YOUTUBE
For all these reasons, including Maxwell's past admission about his inexperience in criminal law, this gross miscarriage of justice against Pell cannot be swept under the carpet.
It cannot be dismissed, as the Victorian Bar pathetically seemed to argue this week, as just one of those understandable differences of opinion between the High Court and Victoria's Court of Appeal, and one that worked out all right in the end.
Former Victorian Premier Jeff Kennett has called on Maxwell and Ferguson to resign. I cannot see why he is wrong.
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