SIO235: Cardinal Pell Wins on Appeal

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:04 Clip: You're listening to Serious Inquiries Only.

0:00:29 Thomas: Hello, and welcome to the great crossover event, Serious Inquiries Only, Opening Arguments Crossover, I'm Thomas, of course. How's going, Andrew?

0:00:37 Andrew: Is going fantastic, Thomas, you've got your peanut butter in my chocolate,

0:00:41 Thomas: Well, I don't know how I did that with social distancing, but either and we're also joined by a special guest James Rogers. How are you doing, James?

0:00:48 James: How are you guys? Yeah,

0:00:50 Thomas: Doing great. Andrew always says he's fantastic, but I feel like the news was maybe like not as fantastic this week, but we'll see. So we've got so much, to I'll do a little bit of uh explanation for what we're doing here, because we have so much going on over at Opening Arguments. There's this, this was a major news week, but we also wanted to cover this George Pell news, Cardinal Pell news. But also, since I had done an episode on SIO about George Pelle back before, when, you know, before whatever just happened happened, we'll say that. And so it made sense to do a follow up and do a little crossover event. And so thankful for both of you for being here, here but as I've alluded to, the news doesn't seem good to me. Maybe there will be some spin on it. Maybe James will do his best Andrew impression and tell us why this is okay even though it seems like it's not, or maybe it's just not, we'll find out. But in either case, uh James, why don't you go ahead and maybe give a brief introduction to who you are, and so listeners can get to know you, and then we'll dive into the bad news. While

0:01:57 James: Of course. So, I've been recently admitted to practice over here. I'm currently in industrial advocacy for the Australian union movement, but I was a university major in criminal law and criminal sentencing, and I also have an undergraduate degree in criminal public policy. So, naturally, anything that still goes on in the criminal law sphere, I take a pretty keen interest in. And in terms of this particular Pell case, not only as someone who studied in criminal law at uni, but the state that this is being tried in is the state I live in, and being an ex-Catholic myself and a firmly avowed atheist now, I naturally wanted to get a clearer understanding of what's going on, because when you read the headline that says that the highest court in our lands decided to overturn what seemed like a pretty, pretty solid decision, you naturally have quite a few big questions as to how that can happen. Uh, so I've been trying to pass through the decision over the last few days and make some sense of it, and yeah.

0:03:06 Thomas: We await the results of your sense making, we'll see. Um, um, thanks for that. And also, do you mind giving us maybe a quick rundown of the basics, how we got to this point? Um, people may not remember, but, uh, I, I think most people probably remember that Pell seems like he was guilty of some really, really gross stuff, but why don't you give us the basics for us?

0:03:28 James: So the basic rundown, um, to go back sort of to the beginning uh point of all of this was, for a long time there's been investigations into um the Catholic Church in Ballarat, which is a small town just outside of Melbourne in Victoria, and a lot of that centred around the time that Cardinal Pell was the bishop in Ballarat, and subsequently he was made Archbishop of Melbourne. So there's this interconnection with some allegations that occurred in Ballrat, and then upon Cardinal Perl's time moving to Melbourne, more allegations that have arisen over the course of many years, none of which were ever um investigated to the extent that they were able to be brought to trial, uh and a few years ago, finally, after a huge amount of uh public pressure, two uh two counts were brought to trial, um, and I'll step through kind of how we got to the point of being in the High Court. Um, essentially, so in December 2018, um, County Court in Victoria, which is the lowest trial division court. The Archbishop, at the time, pardon me, at the alleged offending, was convicted of one count of sexual penetration of a child under 16 years, and four charges of committing an act of indecency with or in the presence of a child under 16. This is the second trial of those charges. As some of your listeners might recall, the jury in the first trial was unable to agree on a verdict. And throughout the course of that trial, there was, there also suppression orders in Australia restricting the publication of the verdict of the second trial when it was finally published.

0:05:18 James: And I know a lot of American podcasts that I listened to at the time took great glee in reporting that, that the Australian media was fully gagged.

0:05:26 Andrew: I'll ask if you know, sort of, what the reason was for the decision to only bring the two charges in the second trial that were brought?

0:05:38 James: Of course. And so this will come back a little bit later as well, unfortunately, because the strategic basis behind that, as I'm to understand it, was that those were the charges with the least amount of unchallenged opportunity evidence. And I'll expand a little bit on why that's important a bit later on. But it definitely was a strategic choice to only put forward the two charges, simply because that was the two charges that they had the most evidence, the prosecution had the most evidence to lead.

0:06:10 Andrew: So, and I want to hear that. You used a phrase that I think you're going to know that I'm going to want you to define, which is unchallenged opportunity evidence, which is not something that, as an American lawyer, I'm familiar with. So with.

0:06:26 James: So the phrase opportunity evidence is definitely one that will probably come to prominence now, but is more of a, you know, it's not a a definition of law. It's these particular witnesses in this second trial were those who can speak to whether or not the Cardinal would have had the opportunity to commit the crimes. So they were people who, you know, throughout the course of events that were the subject of this trial, would have noticed if Cardinal Pell was not present when he was supposed to be present at a certain location, um, and yeah, so it's a bit of a, it's the term that the court has used, um, for simplicity more than anything else, the

0:07:16 Andrew: Is it then a requirement that you demonstrate that as an element of the crime beyond a reasonable doubt to get a conviction in Australia? Okay.

0:07:30 James: The actual opportunity element itself is not um but the standard of proof that you've just, um, you've juste put forward, is uh the standard of proofs that is required to be met for the jury to convict. Um, and I think that nicely links me into what we're discussing on this appeal here, which was, it open to the jury in the second trial at the County Court level? Was it open for the jury to convict on the evidence that was before it, or was there reasonable doubt? And at the first instance appeal, so we have an intermediate appellate court called the Supreme Court Appeals Division.

0:08:12 James: At that decision, the full bench of that court decided that it was reasonably open to the jury to convict on the evidence that had been put before it, because, and this is the key phrase that the High Court engages with repeatedly, it was open on the reliable evidence of the complainant for the jury to convict, and you can probably already hear from the the phrasing of that that open to convict is not the same as beyond reasonable doubt. So we're starting to see an issue emerge with the way that um the way that that opinion was put forward, and when that opinion came out at the time, a lot of my uh my, my friends in the legal community were quite pleased with the outcome, understandably, because it's something a lot of prosecutors had been working towards for a while.

0:09:04 James: And when I read through that Court of Appeal opinion and knew immediately that the Cardinal would appeal, because of course he would, I was starting to get worried at that point. Um, I, reading through that opinion, I was very concerned that there was sufficient ground here for a technical appeal to take place, and as it turns out, that's exactly what's happened.

0:09:29 Andrew: That's, I mean, that's really, really interesting. Tell me what you saw in the intermediate appellate decision that kind of raised the red flags for you.

0:09:41 James: So the big red flag for me was the fact that the Court of Appeal spent, spent a good deal of time engaging with the reliability of the complainant's evidence, whether or not the complainant was believable, whether or not his evidence had been affected by the passage of time, and they concluded that it hasn't. They concluded that the complainant was an extremely reliable witness, and they concluded that, you know, the passage of time hadn't affected support processes, as it understandably wouldn't with such a life event. The the big red flag was that they didn't engage with this concept of whether or not, whether or the jury should have had any reasonable doubt, and having read the evidence at trial, there was unchallenged evidence that was put forward by the defense as to whether or not Cardinal Pell would have had the opportunity to commit those offenses, and that evidence was unchallenged by the prosecution, and from the trial it worried me that that evidence was unchallenged. And then it further worried me when it went up to the appeal level that the appeals court didn't really engage with this concept of whether or not there was reasonable doubt. And that's where the issue comes from that we now unfortunately are having to grapple with, um, from this High Court decision.

0:11:07 Thomas: I'm just sorry. I'm trying not to make any kangaroo court jokes. I just, it's just, that's taking all my energy. You

0:11:13 Andrew: So My confusion comes from the fact that in, and maybe it's worth taking a couple minutes to sort of talk about how the Australian criminal appellate process works. But in An American criminal conviction, your appellant court does not review the evidence, evidence unless there was a finding that was, you know, clearly erroneous, right? It's a super high standard, and appeals courts, like, I mean, they just sort of take as an article of faith, like, well, yeah, you know, that the jury gets to evaluate witnesses. We don't, you know, we're, we're appellate court judges, we don't do that sort of thing here. And so, you know, such that when there are, are uncertain fact elements, right, an appellate court will remand the case back down to the trial court for further fact finding, right? Like, they, they, they just don't want to touch it at all. And as I read the, the High Court opinion here, I mean, it looks like your appellant courts, you know, second guess the actual testimony and evidence, which I, that just seems so weird to me, like, like you Know, uncanny Valley Law

0:12:28 Thomas: Think Andrew's question Is Why is Your system inferior to our system in The in the in this Instance

0:12:33 Andrew: I Don't I, yeah Yeah, I was gonna say, let's confine that to a, a real tiny slice.

0:12:40 Thomas: Yeah, yeah, exactly. No, we have no, no room for, uh, For crap talking at all right now. Um, but no, I, I, I thought the same thing, Andrew, as you know, for having learned from you that, uh, about that. And it has always made sense to me is like, okay, OK, when you're at the lowest court, that's going to be the time when the facts are most apparent. You know, the jury gets to grapple with them. And then, you know, the higher courts are dealing with any sort of more often like procedural stuff or technical stuff. And so it sounds like that's just not the case in Australia, not how it works.

0:13:16 James: Very much so. So there is, there is a bit more scope in terms of what, uh, appellate courts in Australia can review, um, that's something that, you know, from the other side of the coin, um, I've been a listener of Opening Arguments for a long time, and that's something that when you guys are talking about an American appellant decision, that seems counterintuitive to me, um, That courts are kind of bound by the findings, the factual findings of the court below, or they have to remit for further fact finding, that's very much not the case, um, and as you can see from the High Court decision, um, it's pretty much exclusively, um, the full bench of the High Court engaging with evidentiary, evidentiary issues.

0:14:01 Thomas: So do they have access to all the testimony? Like, you know, because if most of This was, say, it's a particularly emotional testimony from a victim kind of thing, I mean, I could see, I can certainly see maybe some upside of being able, of High Courts reviewing facts. Like, we've certainly had cases on OA where it's like, yeah, they just blew it on the facts here. And it would be nice if the higher level courts could just, you now, overturn that or look at it. But it seems like there's also the downside, which is, are they, you know, are they, what is the High Court watching video of testimony? Are they, are they getting the full weight and impact of that, you know, what's often very emotional testimony about these kind of things, or are they just looking at words on the page and maybe rendering a more, um,

0:14:07 James: Use Yeah.

0:14:49 Thomas: I don't know uh distant decision that that might not take into account all of that kind of thing

0:14:57 James: I, I share that reservation, as you know, as somebody who has practicing experience across the board in, in Australian jurisdictions, this is, this is a concern, um, and you're very, you're right to point out that you're not going to necessarily get the, the full weight of the emotion of the evidence.

0:15:20 James: In theory, the task that is before the High Court is to look at that evidence as relates to a question of law. So in this case, it was, is there a significant probability that an innocent person has been convicted because the evidence didn't establish guilt to the required standard of proof? So they're not necessarily supposed to be determining whether or not one witness's evidence should have been shown to the jury in this case, although that was a consideration in the initial trial. That's why that jury couldn't reach a verdict, but that's a rabbit trail.

0:16:02 James: The question that the High Court is supposed to be engaging with here, and that they have done, is whether or not the evidence that was unchallenged, that the prosecution didn't lead contradictory evidence to, was whether or not that evidence was appropriately considered by the jury, and they determined that it wasn't, because the evidence, the unchallenged evidence that was put forth by the defense, related to the conducts of the Cardinal throughout the course of his ordinary presence at Mass, and whether or not he would have the opportunity to have undertaken and the crimes that he was alleged to have committed in this really specific time frame after a service. And so the High Court was engaging with the question of whether or not the jury gave sufficient weight to that evidence.

0:16:53 James: And unfortunately, for the perspective of a lot of people, they reached a conclusion that the jury didn't engage sufficiently with that information, and that the evidence that was put forward by the defence created a reasonable doubt, out, and so we're kind of at the spot that we are today trying to unpick how courts can get to this point. I

0:17:15 Andrew: It seems like there was a, uh, as, as you've expressed, that there was a prosecutorial decision, right, not to, not to rebut that evidence, um, I, I guess sort of two, two questions, right? Number one, I would imagine that, you know, at trial, again, if this were an American trial, right, the prosecutor, you know, would say, okay, well, you heard that this was sort of the routine schedule, but, you know, all of those witnesses are Cardinal Pell's buddies, and you're free not to believe them, or something like that, right? It, so I guess the two-part question is, can you explain kind of that strategic decision, and if, well, and then I'll follow up, when you explain that I'll ask the follow-up question. So

0:18:05 James: I haven't read the full trial transcript, so tactically from the original trial, so I don't have the knowledge of what sort of follow-up questions were asked or what follow-up propositions were put to the jury. I imagine, being the competent state prosecutors that they are, that that was the tactic that was taken, but that it doesn't necessarily change the proposition that the jury was still required to engage with the evidence, because the prosecution couldn't put forward a witness that said, for example, but on the 15th of December, this witness says he didn't see Cardinal Pell appearing on the steps of the church until 10 minutes later than he usually did.

0:18:52 James: And so there was a lack of that ability on the part of the prosecution. From my reading of the material I've engaged with, they didn't put forward a contradictory version of events, and those witnesses were put to the jury unchallenged, saying that it was the ordinary practice of the Cardinal to immediately after the service engage with congregants at the front of the church, so he, he would not have had the opportunity to commit the crimes.

0:19:20 Andrew: That that really does set up my my follow- up question which is I Know, it's great, which is, it is it not good enough as a prosecutor in your summation to say, yeah, look, like, we all, the defense has done is say usually Cardinal Pell would be in X place at X time. Obviously we can't travel back in time to 1996 when the, uh, events occurred, but, um, you know, you're, you're free to disregard that testimony. Is that not good enough, or do you actually have to put on a witness to say, no, on November 15, 1996, I distinctly remember that Cardinal Pell was 20 minutes late to the sacristy, or whatever? Well,

0:19:23 James: I'm glad. Yeah, so the way that standard of proof, beyond reasonable doubt, the standard of truth, is applied in criminal cases, broadly speaking, in Australian jurisdictions, is that really high. It is incumbent upon the prosecution to prove this beyond any reasonable doubt. Which means if there is that unchallenged evidence And having, you know, read the way the High Court sums up that evidence, I can see how they've reached the conclusion that they have on that evidence which is the particular, and his name currently escapes me, but the priest who assisted with Pell's robing throughout his time there spoke to this concept in Catholicism that the Archbishop is never unaccompanied in the Church. And he was able to say with a, in his words, a relative degree of certainty that on the date thing question that he would have been with Cardinal Pell the whole time, so there wouldn't have been an opportunity for him to commit the offences. As much as, you know, I may have my personal thoughts on on this case, that's really strong evidence that as a prosecutor you would wanting to be find a way, finding a way to contradict. Uh So the the way that, you know know, that evidence appears before a jury when it's unchallenged, according to the High Court's estimation of how we should be applying this standard, is that the prosecution needed to challenge that evidence. Otherwise, there was reasonable doubt that the jury should have engaged with.

0:21:45 Thomas: Okay, so Andrew, I don't how this would work in our system, but isn't there every chance that the the challenge would just be, well, that person could be lying or misremembering? Is it so much like, had the prosecution somehow just said that, would that be enough to tick the box of like, oh, you challenged this witness, oh.

0:22:05 James: In and of itself, no. So some evidence to support the proposition that this person who you've put on the stand could be lying or is lying, you can impeach the character of a witness to a certain extent. But without some form of evidence to call that witness's evidence into doubt, you're merely making a proposition. So it's still just as open to the jury to not convict because there is the ability to arrive at reasonable doubt. I'm

0:22:44 Andrew: But I guess, I mean, let me, because I think Thomas asked exactly the right question there. So let me kind of do this as a mock cross-examination. So you be Mr. Smith, who is Cardinal Pell's assistant.

0:22:58 Thomas: I'll do it.

0:22:59 Andrew: Yeah, okay. Mr. Smith, might as well.

0:23:03 Thomas: All right, so uh, it's uh, my testimony is that, you know, if you know Catholicism, there's a lot of uh, fancy costumes that require a lot of upkeep. I'm always there with a lint roller, with, I would never have not been by his side. There's capes, there's hats, there's fancy necklaces, there, you, I mean, it's a live, practically a squire, you know, and and so I would have been, uh, been, I would, would have been in the room at all times, yes.

0:23:32 Andrew: So, Mr. Smith, it's your testimony that in 20 years of Cardinal Pell conducting church services, that he always went directly from the church to the sacristy every single occasion. Okay, right. And see, like, I mean, immediately, right, like Like, that's your first question.

0:23:53 Thomas: That seems like a bold claim for me to make, even as a fictional, well, not fictional but even pretending to be this, yeah, that's what I'm saying like, so what is the level that you would have had to do to to satisfy, to tick this box so that this wouldn't be unchallenged evidence. And I guess side note, maybe, maybe we're, obviously we could just be not quite understanding how this system works, Andrew and I, but like, is this then just colossal incompetence on someone's part that they didn't just do one line of questioning that was like, hey, don't you ever, you know, have to really go to the bathroom and so you leave the room for like 10 minutes, you know, in 20 years or whatever it is, uh, didn't something come up, you got to pick somebody from the airport, anything.

0:24:02 Andrew: It's a preposterous claim, right? Because, yeah, that was absolutely, by the

0:24:41 Thomas: How

0:24:41 Andrew: Way, going to be my next set of questions, right. You see how good Thomas is at this. But it's right, right, like, one of the first things you learn, and I'm sure it's true for you as well, right. Right. Like, one of the first things you learn in terms of cross-examination is you ask always and never questions, because those are super easy to impeach. Right.

0:24:44 Thomas: Many

0:25:11 James: I'm probably going to have to go back, can try and find a transcript to unpack this for my own satisfaction. But you referred to a concept of, I don't want to use the word in confidence, because I don't know and I wasn't there for the cross-examination, but it would appear to me that if that wasn't something that was put forward or wasn't put to that witness in as clear and unequivocal terms as you put it, I would have questions as to why. Uh, the manner in which, you know, that little scenario is played out just there in my head is exactly the way you impeach the evidence of that witness, that's the way, that's why it should have been done. Um, whether or not we still would have been sitting here today, because the High Court has a very strict interpretation of, uh, beyond reasonable doubt, we may still be having that conversation, because I think that's really the core question that they've engaged with, is was there even the tiniest shred of doubt that this didn't take place? Yes. Well, there's not, the unreasonable doubt, so you can't convict, that may still be the case, but I would be really interested to know whether or not

0:26:23 James: That that cross-examination took place in the way you described. Um, I'm being, as you can probably tell, I'm very careful with my words here for obvious reasons.

0:26:32 Andrew: Do. I do the same thing. And I know I you you don't want to say, boy, sure seems like this prosecutor was an idiot. So I totally get that.

0:26:44 Andrew: A couple couple more procedural questions. How large is an Australian jury okay and and is there a unanimity it's

0:26:52 James: Australian jury is 12 people at least

0:26:55 Thomas: Venomous snakes and spiders and, see, sorry, I, I said I wasn't going to...

0:27:01 James: One koala on every jury It.

0:27:02 Thomas: The wallaby.

0:27:01 Andrew: Nine people right fun Koala. One giant venomous spider, yeah, it, and is there a unity requirement? Okay, so is it, is it, is it majority, supermajority, I'm

0:27:16 James: Just needs to be, it just needs to be majority in and I'm sorry I'm actually having to call back to a bit of knowledge I haven't used for a year or so here no it's fine

0:27:23 Thomas: Apologies that you're getting the bar exam thrown at you.

0:27:27 Andrew: Sorry I do this to everybody this is

0:27:30 James: No. it is fine oh dear

0:27:30 Thomas: And then when Andrew asks you a question, it could be a totally obvious thing, too. You kind of stress out. You're like, how many kids do I have? Three. Are cats kids? You know.

0:27:41 Andrew: Yeah, you said two yesterday, Thomas. Which is it?

0:27:44 Thomas: Yeah, I did it. I killed Ned Johnson. There go. Ned Thompson or whatever. Okay, I bought you some time. Now answer the question.

0:27:57 James: Majority is my recollection of that particular, uh, it's

0:28:03 Andrew: Well, and and and that makes sense, right? Like, because what, tell me if I'm wrong on this, but but but I read the High Court is saying the jury reached the wrong result.

0:28:18 Andrew: And, again, for all of the setup procedural questions, that's a hard one for me to get my head around. It would seem sort of monumentally arrogant if it was a unanimity requirement, right? Right. To say, well, look, yeah, everybody sat here and reviewed the evidence and decided like, no, like that that Squire Assistant Smith dude is a, you know, sniveling, weaseling scumbag.

0:28:48 Thomas: Hey.

0:28:50 Andrew: Sorry.

0:28:52 Thomas: But his costumes were always so well ironed. But

0:28:57 Andrew: But I guess, I mean, it, I'm not sure it's the way I would, I would want to do it. But but again, you, I mean you also, you don't want, let me say this as a disclaimer, right, like you don't want to reason backwards from an outcome and say like, I'm not happy about the fact that the Australian High Court just uh overturned Cardinal Pell's conviction, therefore like, you know, the system is, you know, the whole damn system is corrupt, right? Like, that's, that, let's not make that mistake, um, but but it does seem it could be, it could also be true, um, it is, is oh go ahead sorry well

0:29:30 Thomas: It could also be true.

0:29:36 James: Interesting. Sorry It's interesting that you that you sort of put it that way, because that that's what I am still trying to process myself. And I mean I, um, you know, very grateful for the opportunity to jump on and speak a little, in a little more detail, so that people have more detail about the verdicts, but even I am sure that, trying, stop myself from working backwards from an outcome that I disagree with, um, or an outcome come that, you know, goes against something that that I thought was pretty clear cut um, even though I had, my I hadmy doubts from a technical legal point of view, it is, it is really difficult to to see this verdict and not go, I disagree with it, let's pick holes in the process, um, so it is, it is a challenge, and so it's a tough decision to have to engage with.

0:30:27 Thomas: All the... Now, didn't you start this off by saying there were two counts? I mean did this... Sorry if I missed it, but was this all subsumed by this appeal?

0:30:37 James: So They were all, they all turned on the core proposition that they're separate offences, and I'm not going to speak in any great detail because I don't want to make anybody uncomfortable with the details. The core proposition was that the offending took place in the sacristy of the church in Melbourne on two separate sets of occasions, and those separate sets or charges just arise out of different sections of the criminal code. So the alleged conduct was two separate offences, I'm, of sexual penetration of a child under 16, and four charges of committing an act of indecency with or in the presence of a child. So although all of the behaviour as a whole is deplorable, there's a whole bunch of separate instances that we're talking about on a couple of separate days, uh, and all of, all of that conduct turned on the question of whether or not the Cardinal would have had the opportunity to commit the crimes at the times that it was alleged that he did commit them, which was essentially turns on the core question of, did he have the time unattended to go into a private space and do the things that he was alleged to have done, so yeah.

0:32:01 Thomas: I think what is so hard to think about here is what recourse would anyone have if, in this system, and I don't want to exaggerate, so please feel free to poke holes in this, but under this kind of entire system of justice that you're describing, if you have one person who's willing to lie for you, so it's just that you need to do enough of a job to suggest that one person could be lying, you know, like, it's not, especially with something like this, like it, it doesn't seem to be the case that anyone who would lie in in a case like this would necessarily have some background of being a con man and you'd be able to impeach them, you know, so what, what could somebody, what could a prosecutor have done, maybe in your opinion, uh, to the best of your knowledge, to, to protect from this appeal.

0:32:58 James: So there's two, there's two kind of, there's two parts to that, um, one I think is, through my complete lack of podcasting experience here, I've kind of alighted over the fact that the opportunity witnesses is five people who gave the same evidence, um, that being that in my mind, and this is obviously potentially could be me trying to reach a conclusion that I prefer, in my mind that's not wholly dispositive, still, you know, five witnesses or one witness, you could probably still go through and impeach the character, um, of those witnesses successfully, much in the way that Andrew, uh, demonstrated to us before, um, and that's kind of where I would come out, not having, not having, you know, been in the courtroom at the time, I feel, I feel like that's where the repercussions and the unpacking of this decision from a policing and a prosecutorial perspective in Australia will happen. And it will happen at that level of, how did we allow it to get to the extent that this evidence was put forward and we didn't contradict it, to the extent that it was not open to the jury to entertain reasonable doubt.

0:34:14 James: And I think that's the really big question. And it's one I don't have an answer to. And I really wish I did

0:34:20 Andrew: That, that, that's fair. Let, let me ask, and, um, I don't know, Thomas has more sort of procedural questions, uh, along the way, but but then obviously, uh, I was going to ask sort of what the implication of this decision is, right? I mean, it looks like it overturns the conviction, um, are, our prosecutors free to bring these charges again, are they free, free to bring different charges, like what happens now?

0:34:48 James: This is um from a criminal perspective this is the end of the line for these charges we

0:34:54 Andrew: Okay, so you have the equivalent of like a double jeopardy.

0:34:59 James: Do we do so it's the end-of-the-line for these judges yeah

0:35:00 Thomas: Why not? Again, with a fact question or a jury kind of judgment question like this, why don't remand it back, you know? And then it's like, okay, take this into consideration kind of thing. But it seems rough to just be like, you're done forever because you didn't check the box of challenging this evidence. Even if it was like the worst evidence ever, but you just didn't happen to rebut it in a way. Maybe because you assumed it was so dumb, nobody would need to re-but it. I don't know.

0:35:31 James: Well, I've seen that happen before, um, yeah, look, that's that, that is a good question, and it's

0:35:39 Thomas: Actually, sorry, let me ask this. This should be more clear to answer. Do they have the power to remand it back or do anything other than uphold it or overturn the decision? Or is it just that binary choice? Right.

0:35:52 James: They do have the power to remand. The High Court has much, I'm assuming, in the same way as the U.S. Supreme Court does, broad powers as to where they can direct a case to go. In this situation, and they haven't really, in the judgment, there's not actually a huge deal of engagement with why they've decided to take this option. Um, maybe they feel that, uh, if they were to remind it back down we would have the same issue. Um, I think there's also potentially an element of, um, the same reasoning that the gag order was in play. Um, this is the most widely publicized criminal case in Australia in the last 20 years. There's a lot of public conjecture about it, so that may in part have been a decision on the part of the High Court's, go, well, look, we've got the ability to to look at, um, what the Court of Appeal looked at. Um, we've got the evidence before us, we're just going to quash and not remanded anywhere. I, I wish I could get inside the High Court's head on this one, and you've, you've picked up an aspect that I still haven't passed out in my own head, um, as to how they've got to the point they have. Um, the, the interesting thing to pick up on is this doesn't preclude, um, obviously future charges, uh, on new fact scenarios, on new issues, and if we know anything about the Catholic Church, that's entirely possible. Um, that that may be a thing that happens somewhere down the road. Um, I'm

0:37:34 James: Unsure if there's any investigation still ongoing, and there is, also and I think the, the father of one, one of the alleged victims here, has already flagged this. There are civil remedies available now.

0:37:46 Thomas: The OJ route.

0:37:47 James: And, well, that's kind of the comparison that people have been making. And I think it's a really, really apt comparison. You know, this decision definitely reeks of one neat trick. And it definitely got a bit of that to it. And it's also very much the, well Cardinal Pell was not guilty to the criminal standard, But let's see how this case stands up with a lower standard of truth. And I think that that's going to be something that will be ongoing for quite a while still. Still.

0:38:01 Thomas: Let me ask you this. In this country, in my country, when there's something not exactly like this, but when the Supreme Court does something that everybody's like WTF might, it's usually like pretty obvious what's going on. It's that there are conservatives who want a conservative agenda and they usually find some way to make that happen. Is there some overall feeling maybe that you've noticed or that may be obvious, I don't know, of what people are feeling about this? Are they feeling like, oh, corruption or it's just they're buddies? Because I know a lot of people advocated for Pell, right? There was the whole people wrote letters, the ex-prime ministers and stuff. So is that a worry or what do Australians tend to think about this right now?

0:39:11 James: That's a really good question. So our Supreme Court, I've got the US Supreme Court on the brain. The High Court is not strictly speaking viewed as a partisan entity to the extent that the US Supreme court is. Something that I am very, very appreciative of having engaged with what's happening to you guys over the last four or five years. It's not necessarily a partisan body. And I don't think there's necessarily this narrative of partisanship when it comes to this particular verdict. There has been in the past a little bit with cases regarding Indigenous land rights many years ago now. There's been a littlebit of that question. But I think more over here, people's frustration, particularly on the left, um, like myself, is this systemic, uh, the systemic concerns which I'm finding really hard to to engage with because I'm someone, uh, who believes in institutions and systems, um, that's why that's what I do, what I, and I'm struggling with that, uh, and I'm really really put out by the fact that, um, an institution has arrived at this conclusion and they don't know how they got there. Obviously, I have a little bit more light as to how they've arrived at the decision they have, but it doesn't seem to be following any part of the narrative. It's more a frustration with inflexible institution.

0:40:50 Thomas: But I mean, that still leaves out motive, doesn't it? I mean it's like, sure, the institution might have the power to go in and intervene in this case and say that the, you know, whatever, but, or is it just that the decision has either been presented as or maybe been painted as like, Like, oh, they had no choice. This was a legal technicality that they just, you know, they had to rule this way. Is that kind of how it's being put forth? And so therefore there's not much question into like the motives of the justices or whatever you call them there.

0:41:25 James: For a bit of Australian news media context, I suppose, both, um, responsible journalists on this are kind of reporting it in the way that I'm attempting to today, which is, uh, you know, it's that general sort of we don't really know what's going on here, but it seems like a legal technicality, and historically our High Court really have tried to stay non-partisan, so we're gonna just assume that that's what they've done here and ruled on technicality. The right-wing media is calling sweet merciful vindication, um, which is disheartening but not unexpected, um, but yeah, it's, you, you raise an interesting question for me because I've not really entertained, uh, in the past, and this is this is incumbent from, like, the way we get taught it at law school, um, I've not entertained that the justice's personal opinions will ever come into to a judgment in Australia. It's not really something we think about, um, kind of, it's kind of almost second nature at that High Court level to just say they're ruling on the law, um, and this is kind of the first time I've really had to contemplate that, um, for myself, which is which is scary if I'm honest.

0:42:41 Andrew: One last procedural question that I had meant to ask. Do all litigants have an appeal as of right to the high court, or is there an equivalent of certiorari? Eye does the high court get to choose which cases it takes so

0:42:56 James: They do. So there is, um, there's no automatic right, um, of appeal. You have to, you have to be granted special leave to appeal, um, that's the hearing that usually takes place between in front of a single judge or three judge panel, I believe, I can't recall specifically because it was kind of in the mess of a whole bunch of stuff happening in this country, but I believe that was actually dealt with on the papers for this one, which is not uncommon. So the High Court will do, in a similar way to the US Supreme Court with Saoirse Roy, they'll look at the evidence put forward by the parties, look at the submissions, and decide whether or not they want to take it on. Occasionally they have hearings for that purpose, but it's becoming increasingly more common that they're dealt with as submissions as opposed to a hearing. It

0:43:48 Andrew: Was, I mean, and I, obviously there's a degree of retroactivity here, but it probably should have raised red flags when the High Court agreed to take up the case. Yeah. Yeah and it did when you say it did I'm sorry, but when you, you say it did, do you mean that that sort of permeated the news in, in Australia, or it did, you know, with, with you and with other lawyers, but it, you know, it never really got out, I guess, I guess what I'm asking is is this a failure of american media or

0:44:03 James: Very much did um and like I said I've been I've a bit of so

0:44:26 Thomas: Well, there was the gag order stuff, but when was that over? How does the, how does the gag border interact with the appeals process? Ah,

0:44:35 James: The gag order was, was just uh, just dealing with the immediate outcome of the trial, um, that was lifted. I actually don't think it was that long. I think it was maybe a month or two months. Um, I actually, I forget because I found out about this through, um, one might have been opening arguments. I found that about this through American news media, um, so I actually don't remember much of the gag order, um, but didn't work well

0:45:00 Thomas: That's an effective gag. I found out about the gag or through another country's media. So I guess that tells you a good gag order?

0:45:07 James: That's I, I distinctly recall, I can't, again, I can't remember the podcast, but I remember being, I think I might have escaped an atheist, and I remember being asked to leave the room as an Australian, and I didn't, and I heard something I shouldn't have heard. So it's wholly ineffective gag order.

0:45:22 Andrew: I I drafted that disclaimer so

0:45:28 James: Oh, excellent. I thought you may have. It was, yeah, the gag order part of it was definitely one thing. But within the legal community, I think, especially progressives, I think we've been concerned throughout the process. I think when the High Court accepted the appeal, that was when the liberal media in Australia started reporting on, oh, this might go the other way here. Throughout the entire process, our mainstream media, because I should stress, our main stream media is conservative. There is no centre with popular media in Australia, and a majority of the reporting on this case internally has been, how's even got to this point? He's a man of God. He's not guilty. Um that's been the mainstream reporting of this case, and it has been, the last three days have been really, really tough, um, for a lot of, for a lot of people engaging with, with the media over here, and just seeing this onslaught of, we told you he was innocent the whole time, it's very distasteful, um, but yeah, it's, it's a strange decision, no

0:46:42 Thomas: Well, I think I'm out of questions for the most part and that's a good time to come to a close. So I think again, the OJ route is really the only thing left as civil stuff. Or as you said, I mean, there could be other victims or what if these victims alleged other occurrences or is that kind of out of the realm of possibility?

0:47:06 James: That's that's still still um available still still an option because it's separate separate fact scenario so the double jeopardy only applies to the actual crime itself or alleged crime itself neat

0:47:19 Thomas: I mean, I knew that from the movie Double Jeopardy that we covered. Pretty much exactly that set of facts. Once you're found not guilty of murdering someone doesn't mean, or sorry, once you're found guilty of murdering someone doesn't mean if they turn up alive, you can just murder them.

0:47:36 Thomas: Penalty free. Yeah. Yeah, that is one very, very neat trick. Well, James, thank you so much for joining us. Any closing closing thoughts here, or, and if you have anything to plug, I know you're probably just a civilian, but if you got a blog or something, let us know. Oh,

0:47:36 Andrew: He can win free. That's. A great

0:47:39 James: Trick hey look I Look, I my closing thoughts would be, when cases like this come up, as you know, as atheists and, you know, responsible legal thinkers, I think it is incumbent with us to try and pick apart why a court derived at this decision, um, especially, you know, as Australians, I think we can have still a good deal of faith in our institutions, but when a result comes out that we don't like, um, I think to try and engage with it is important. As you can probably have have heard throughout today, I'm still trying to figure out what's going on here, um, and I think it's just important to keep doing that work, um, really appreciate you guys having me on, I've been, I've listened to the the podcast for a long time and it's really really cool to be able to have a chat to you about this, um, and in terms of things to plug, I don't have anything to plug other than, uh, if you're an Australian or actually even if you're anywhere around the world, join your union, it's good for you, so Join

0:48:55 Thomas: One. I love that plug.

0:48:56 Andrew: Plug Thanks

0:48:56 James: Your labor union yep we'll

0:48:57 Thomas: Fantastic plug. James, thank you so much. Andrew, thanks as well. This was a lot of fun. I'm glad we could do it, even though not a, not a great topic, but it's always fun to try to understand things better. And hopefully, I don't know, hopefully in my opinion, they still get the bad guy somehow because gosh seem yeah all right

0:49:17 James: Keep trying mate we'll keeps plugging away

0:49:20 Andrew: James

0:49:29 Clip: Thank you so much for listening to Serious Inquiries Only. If you like the show, the absolute best thing you can do is support us at patreon.com/seriouspod. The second best thing you can do is please share it on social media or by word of mouth. Speaking of social media, if you'd like to follow Jamie on Twitter, she's at Euthyphro. And follow me at SeriousPod. If you'd like to be Facebook friends, send me a request at facebook.com Thomas podcast. If you're not up for that level of intimacy, that's fine. Maybe you want to join the discussion at facebook.com/groups/SIO members. Thank you again for listening. We'll see you next time.