Kangaroo Judgment

Professor John Finis takes apart the decision of the appeals court affirming the verdict against Cardinal Pell:

The shortest of all routes to discovering that the Judgment has gone catastrophically wrong is to read paras. 139 to 143 and para. 151.  Para. 139 summarises one of the ways in which the defence argued that the alleged offending in the Priests’ Sacristy was impossible:  Archbishop Pell was at the relevant time far away at the west door with his master of ceremonies, Fr. Portelli, meeting and greeting worshippers.  Portelli’s testimony (not to mention the testimony of many other witnesses) was cogent evidence of that, and if true constituted an alibi for Cardinal Pell.

In para. 140, the Judgment remarks that the concepts of alibi, impossibility and (lack of) opportunity are “of course, closely inter-connected.”  But it goes on to say that the defence at the trial had (at least in its closing) avoided the word “alibi”, had asked the trial judge not to use it, and [141] had not asked for a direction to the jury in the form appropriate to alibi defences.  Without making any comment on those features of the conduct of the defence at the trial, or on the fact that the prosecution in its final trial address [241] had called some of the evidence “alibi”, the Judgment then and there [142] sets out the law applicable to alibi defences.  Neither here nor anywhere else did the Judgment suggest that the defence of George Pell is disqualified from relying on this law.

To state it, the Judgment uses a source different from the Dissent’s sources [396, [625], [628], [949] but with precisely the same legal content.  The jury cannot rightly convict unless the prosecution has “remove[d] or eliminate[d] any reasonable possibility” that the accused was not at the alleged crime-scene (the sacristy) but somewhere else instead (the west door).

Then, with a startling lurch, the Judgment goes straight from stating that law to stating [143] its own position, essentially its fundamental conclusion about the whole case: 

Having read all of the opportunity evidence and watched some of it, we are not persuaded that the evidence of any individual witness, or the evidence taken as a whole, established impossibility in the sense contended for by the defence.

The next sentence adds: “In pt II of the reasons, we explain that conclusion by reference to the evidence relied on in support of each of the individual impossibility contentions.”  To wrap up part I, its main part, the Judgment proceeds to give an example [144]-[147] of its way of dealing with an “individual impossibility contention”, and then circles back to the general significance of the impossibility v. possibility argument.  The substance of para. 143’s astonishing transfer of the burden of proof to the defence is now repeated [151]:

As we have said, the onus of proof required the prosecution to defeat [the argument of impossibility].  It was both necessary and sufficient for that purpose to persuade the jury that the events were not impossible and that there was a realistic opportunity for the offending to occur.

Finally, in relation to “opportunity” (the remaining facet of the alibi – impossibility – no opportunity complex), para. 170 repeats that the prosecution need do no more than establish a “realistic opportunity”.  What had emerged, says para. 170, was “not a catalogue of ‘impossibilities’…but…of uncertainties and possibilities…. Plainly enough, uncertainty multiplied upon uncertainty does not – cannot – demonstrate impossibility.”

Now it is significant that some of these “uncertainties” were rustled up out of witnesses’ syntax and, like other “uncertainties”, were in any syntax and on any view unchallenged near-certainties.  But that is not the subject of this article.  Here the point is that – as is laid down in the legal rule, quoted in para. 142 but then left hanging enigmatically in the air – it was not for the defence to “demonstrate” or “establish” impossibility. Nor was it sufficient for the prosecution to establish possibility in the strict sense of “not impossible”, or even to establish realistic possibility in the sense of “realistically, or in reality, not impossible”.  There is a wide chasm between, on the one hand, the Judgment’s there was a realistic possibility that the rapes could have happened and, on the other hand, the law’s standard, quoted without demur by the Judgment, a standard which demands a finding of not guilty unless there was no realistic possibility that he was away from the sacristy and additionally no realistic possibility that at least one other person (concelebrating priest, altar server, sacristan) was in the sacristy or (parishioner) at its open door for even a moment in the five or six minutes after Mass on 15 December 1996.

Go here to read the rest.  The entire legal proceeding against Cardinal Pell has been a lynching with legal trappings.