(This post was originally published on Amicus on 8 April 2020)
In Pell v The Queen the High Court has unanimously allowed an appeal from the Victorian Court of Appeal’s (VCA) majority decision to reject a conviction appeal.
The High Court held that the jury should have held reasonable doubts about the guilt of the accused.
Background
The complaint, ‘A,’ alleged that the applicant had engaged in two separate instances of sexual assault while the applicant was the Archbishop of Melbourne in 1996. These instances were alleged to have occurred immediately after particular religious services at St Patrick’s Cathedral.
In 2018, the applicant was convicted by a jury in the Victorian County Court. This conviction was affirmed by a 2:1 majority in the Victorian Court of Appeal.
In essence, the prosecution case was solely reliant on the evidence of A. There was no direct witness testimony that corroborated his evidence.
Consistent with the prosecution’s obligations to call all witnesses relevant to their case, a number of witnesses who were involved with the conduct of the services in question gave evidence. Broadly speaking, this evidence was to the effect that the applicant was not where he would have needed to be, at the time he would have needed to be there, in order to have committed the offences unobserved.
Grounds of appeal
There were two grounds of appeal in the High Court.
The first was that the VCA erred in finding that because they believed the evidence of the complainant – the applicant would have needed to show that it was impossible for him to to have committed the offence.
The second was that the VCA majority’s conclusion that the jury’s verdict was reasonable was undermined by their findings which raised doubts about whether there was an opportunity for the offences to have been committed.
Both grounds of appeal were allowed and the reasons given relate to both – but can be distilled into an overarching question of whether the jury must have held reasonable doubts as to the applicant’s guilt given the evidence before them.
Beyond reasonable doubt
Generally speaking, criminal offences must be proved ‘beyond reasonable doubt.’ This is the burden of proof that the prosecution must satisfy in order to convict someone of a crime. Importantly the defendant does not have to prove anything in a criminal prosecution. Furthermore if there is evidence consistent with their innocence the prosecution needs to negative this – also beyond reasonable doubt.
Another way of thinking about this is its not just whether the jury believes the complainant but rather whether the prosecution has disproved evidence that casts doubt on their account.
This phrase is supposed to be interpreted by the jury according to its ordinary meaning – that is to say that ‘“the words ‘beyond reasonable doubt’ are ordinary everyday words and that is how you should understand them”’ (Southammavong at [20]). Accordingly judges are advised that when instructing the jury “no attempt should be made to explain or embellish the meaning of the phrase” per the NSW Bench Book citing Green at p32–33 (CLR); La Fontaine at p71 (CLR); R v Reeves at p117 (NSWLR); Raso v R at [20].
Whether or not a doubt is reasonable is – essentially – a matter to be assessed by each individual member of the jury. This is the fundamental role of the jury as the “constitutional tribunal for deciding issues of fact.” This is a role that the High Court has in recent cases been at pains to highlight. In the Baden-Clay judgment, the Court the observed that
Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect the setting aside of a jury’s verdict on the ground that it is “unreasonable” … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
The Queen v Baden-Clay
This deference to the jury as fact-finder is a consistent theme of appellate judgments including the recent High Court judgment in Swan (at [35])
Role of appellate courts in ‘unreasonable verdict’ appeals
In essence, the appeal to the VCA was that the verdict of the jury was unreasonable in light of the evidence. So the appellant was arguing that the evidence presented at trial must have given rise to a reasonable doubt.
It is important in appeals such as these to be clear on the function appellate courts. It is not the role of an appeals court to substitute its view of the evidence for that of the jury. That is to say, the VCA judges are not permitted to consider the evidence to determine whether they were convinced beyond reasonable doubt. Rather in ‘unreasonable verdict’ appeals the appellate court must consider
“whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”
M v The Queen
Another way of saying this is that
“the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant’s guilt.”
Libke v The Queen at [39]
The distinction made by the High Court – ‘must as distinct from might’ – is of fundamental importance. If the evidence might have led to a reasonable doubt – the intervention by the appellate court would have the effect of substituting its view for that of the jury’s. However if there must have been a reasonable doubt then the guilty verdict was unreasonable and therefore incorrect.
So how do we distinguish between ‘must’ and ‘might’?
This goes to the heart of an unreasonable verdict appeal.
First we need to keep in mind that the onus of proof is on the prosecution – that is to say that they must negative any evidence that is exculpatory.
Second we need to consider all the evidence adduced at trial. This includes that of the complainant as well as the other evidence put before the jury. Regarding the complainant’s evidence a
court of criminal appeal … proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. (at [39])
In other words the appellate court must accept that the jury believed that A was neither mistaken nor lying. However, appellate courts must also
examine … the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (at [39] emphasis added)
So here we see a useful illustration of the criminal standard in action – the evidence of the complainant – even if it is accepted by the jury may not be enough to get over the high bar of proving the accused’s guilt beyond reasonable doubt. This is because other evidence – which we are also required assume is credible and reliable – may, in certain cases such as this one, be enough to create that doubt. In other words the prosecution has failed to disprove evidence that casts doubt on the complainant’s account.
This unavoidably involves a close examination of the evidence presented in any particular trial. Ultimately after conducting such an examination High Court found that there was nothing inherent in A’s testimony that ‘would have require[d] the jury to have entertained a doubt as to guilt.’ However, the High Court found that there was
evidence of witnesses, whose honesty was not in question [which] (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December ; (ii) placed him in the company of Portelli when he returned to the priests’ sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests’ sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix (at [118]).
Accordingly the High Court found that
Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted (at [119] emphasis added).
Conclusion
In light of the high profile nature of the applicant this case the role of appellate courts has been thrown into the spotlight. Commentators have raised questions about the appropriateness of the prosecution in the first place as well as the acceptability of appellate intervention into the jury’s role as finder of fact.
This post has attempted to clearly identify the legal standards that need to be met in both criminal trials and appeals – and explain why the High Court thought that these standards had not been met in this case.
This Tweet contains statements by the Applicant and by the Complainant.
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