Pell appeal judges reversed onus of proof

In seeking leave to appeal to the High Court, George Pell’s lawyers argue that the approach taken by the majority judges at his appeal ­required Pell to “establish actual innocence”, rather than “merely pointing to doubt”, which was a reversal of the onus and standard of proof, adding, “Rigid application of the onus and stand­ard of proof in 21st-century sexual assault trials in Australia is of particula­r importance.”

“Though the majority said … that there was no onus on (Pell) to prove impossibility that is precisely what their analysis required him to do,” according to a report in The Australian (18/9/2019).

“Those who are accused, includ­ing by a complete stranger making decades-old allegations, cannot, for example, investigate a complainant’s psychological history­ in the hope of uncovering a reason why a seemingly credible person is accusing them of offendin­g they say they did not commit.”

The application highlights that the surviving complainant had received “psychological treat­ment” and that Pell’s team was not able to tell the jury this or obtain records of it.

Pell’s team argued that the applic­ation of correct judicial method by Justices Ferguson and Maxwell would have led to acquitta­l. “The majority’s erron­eous judicial method prevented them from recognising that, even on their own incomplete analysis of the evidence, doubt was raised and left.”

Justice Weinberg’s dissenting judgment  should be accepted as a correct interpretation of the evidence, Pell’s lawyers argue, saying that an inability to find the complainant a liar didn’t determine proof beyond reasonable doubt.

“Belief in the complainant is the beginning of the inquiry, not the end,” they said. “Belief is a prerequisite to conviction but belief does not preclude the existence of doubt raised and left by other cogent evidence.

“To find otherwise would funda­mentally alter the burden and standard of proof in a criminal trial and increase the like­lihood of miscarriages of justice.”

Commenting on the matter, Legal Affairs Editor at The Australian, Chris Merritt writes: Bret Walker SC is an old-fashioned stickler for precise legal language. That is why his clinical evisceration of the judges who ruled against George Pell is so effective.

Without a skerrick of emotion or one wasted word, Walker has torn the guts out of the Court of Appeal majority who rejected the cardinal’s appeal against convictions for sexually assaulting choirboys.

Walker is widely regarded as one of the nation’s greatest lawyers. Yet his signature appears at the end of a document that accuses Ferguson and Maxwell of effectively reversing the onus of proof, engaging in “unorthodox reasoning”, “circular reasoning” and “erroneous judicial method”.

If the High Court agrees to hear this appeal, it will need to grapple with those arguments and determine whether the judicial method demonstrated by Ferguson and Maxwell is actually as flawed as Walker and Shann believe.

The stakes are staggeringly high. This affair now concerns not just the freedom of a cardinal but the continued public standing of Victoria’s top judges and the man who might well be the nation’s greatest lawyer.


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6 Responses to Pell appeal judges reversed onus of proof

  1. Garry Stannus says:

    Amongst other considerations (according to my brief google searching), an ‘𝑜𝑛𝑢𝑠 𝑜𝑓 𝑝𝑟𝑜𝑜𝑓’ at appeal can rest on provisions of the relevant Act. In what state was Pell tried? Should we look to see what the appeal provisions of the relevant Act under which he was charged, tried and appealed say?

    Of course we are familiar with the burden of proof being carried by the prosecution at trial … but this (for me) is a new one to consider: 𝑊ℎ𝑜 𝑑𝑜𝑒𝑠 ℎ𝑎𝑣𝑒 𝑡ℎ𝑒 𝑏𝑢𝑟𝑑𝑒𝑛 𝑜𝑓 𝑝𝑟𝑜𝑜𝑓 𝑎𝑡 𝑎𝑝𝑝𝑒𝑎𝑙?

    In what sense does the presumption of innocence (for example) flow into an appeal? [Not at all, I would have expected].

    Can we distinguish ‘presumption of innocence’ from the ‘𝑜𝑛𝑢𝑠 𝑜𝑓 𝑝𝑟𝑜𝑜𝑓’ as raised in Pell’s application? [I suppose we must: surely they are two different concepts/values which must be respected at trial…] And is what we call the ‘burden of proof’ the same as an ‘onus of proof’?

    Is it possible that some 𝐩𝐚𝐫𝐭𝐢𝐜𝐮𝐥𝐚𝐫 considerations at appeal may rightly place the onus onto the Crown/prosecution, while still not imposing a 𝐠𝐞𝐧𝐞𝐫𝐚𝐥 onus at appeal?

    It could conceivably be argued hypothetically that certain elements of a prosecution’s case at trial were improperly managed by the trial judge, in that, if they were important to the prosecution case, then the judge (hypothetically) was wrong to allow them in without advising the jury of the prosecution’s onus of proof on the particular issue. In such a scenario, at appeal, could such an issue have survived from the trial and be overlooked by the Appeal court? That is, could/can an onus of proof existing at trial stage be inherited by the Crown/prosecution at appeal?

    [Just rambling, folks. I’m not a lawyer and I know virtually nothing about the Pell case. I have skimmed the Appeal decision, but as anyone who has viewed it would realise, it would take much work/research to come to an informed view on the decision. I have not done the work, and will not have the time to do so. Certainly, I can say that this ‘onus of proof’ matter has surprised me. I would have thought that such a – what seems to be – such a basic legal matter for an appellate court would have been decided clearly ‘many moons ago’ (case law?). If it hasn’t, then maybe it revolves around matters (of fact?) particular to this case:

    That is, was Pell forced to prove that – robed as he was – it would not be possible to have done whatever it was that he was convicted of doing – before his appeal could succeed? And if that was the case, does an onus of proof exist at appeal and on whom does it rest?

    What I can say without ‘hedging my bets’ is that I will be extremely interested in the outcome of this defence ambit. My particular interest in commenting here is in the case law that might be clarified or extended by this application. My interest in the question of justice for Pell/his victims is separate and I am not including that here, in this comment of mine.

    • Mez says:

      Interestingly, you have admitted to something that applies to the Jury. They’re not lawyers or judges either, they are peers, and it is entirely their decision as to whether or not the defense was successful at raising “reasonable doubt” in their minds. That is the whole purpose of trial by peers.

      The difference between Pell’s case and all the others presented on this website is MONEY! Where all the others are able to present “new or compelling evidence” to advance to appeal after appeal, Pell has paid his way to straight to the top.

      Together with his disdain for OUR peers (not his), he lacks new or compelling evidence with which to advance his cause. If he is successful at challenging the statutes governing onus of proof and how the appeals court judges interpreted it, he still has to provide new and compelling evidence to the appeals court…


  2. Bob Martyn says:

    My reading of books on brain research led me to discover that the human brain has two areas of memory storage, one for short term memories and the other for long term storage. At some stage contents of short term are transferred to long term storage. Now for the interesting bit, on the way the contents are subject to change so that any data which is uncertain gets corrected.
    What is implied by this is that any claim made by an ageing adult, which is based on a childhood memory should never be relied on. Does this apply to Cardinal Pell and his accuser’

    • Mez says:

      The old “child forgets they were raped” scenario eh? How long do you think being raped as a child sticks around in memory for? We’re not talking about recalling what it was like getting a new toy for Christmas here, we’re talking about sustained child abuse.

      If you aren’t reading research about dissociation and fracturing of the personality etc, then you have no idea what you’re on about. In fact, the US government had a program called MK Ultra, 100% dedicated to the topic, the findings of which are still practised today by many orgs, government bodies, media and churches.

      60 minutes recently did an expose on a woman whose personality fractured into 2000 different people as a direct result of sustained child abuse. Her personalities were all called upon to give evidence. I suggest you watch it if you really want to understand how the fractured/damaged brain works and what the courts know about it.

  3. Tom Cairns says:

    Even if Mr Pell were innocent of the sacristy charges he carries the guilt of shielding other members of his organization at the dire cost to young lives. Mr Pell deserves to be in jail for much longer than he is already on that count alone.
    He can cut his losses and shut up. What about all those suicides and ruined lives?

  4. Roscoe says:

    “Belief in the complainant is the beginning of the inquiry, not the end,” they said. “Belief is a prerequisite to conviction but belief does not preclude the existence of doubt raised and left by other cogent evidence.

    “To find otherwise would funda­mentally alter the burden and standard of proof in a criminal trial and increase the like­lihood of miscarriages of justice.”

    Enough said. Cogent evidence? From who and to whom? And after all, who would bloggers and others seek information on “cogent” evidence?

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