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One decision does not make an entire justice system

In light of the High Court decision to appeal George Pell’s child sexual abuse convictions, critics have shifted their attention to putting the Victorian justice system on trial. Lawyers Weekly looked into why criminal justice is not threatened by the system that created it.

user iconNaomi Neilson 14 April 2020 Big Law
Wendy Harris QC and Sam Pandya
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It did not take long for the supporters of Cardinal Pell to rejoice at the High Court decision, and for critics to shift their blame to the Victorian legal system. Whether the decision was ultimately welcomed or not, the courts system as it stands in Victoria should not now face trial by public scrutiny, according to the state’s major legal bodies.

Law Society of Victoria president Sam Pandya told Lawyers Weekly that these attacks on the justice system “are regrettable and destabilising” and added it was unfortunate if any commentary leads to a loss of faith in the justice system and the right to a fair trial.

President of the Victorian Bar Association, Wendy Harris QC, mirrored this. Ms Harris told Lawyers Weekly that the decision does not imply there is anything wrong with the system.

 
 

Following the High Court decision, the Law Council of Australia (LCA) cautioned critics to tread lightly in its reporting and to not write this off as a problem in the legal system.

“On the contrary, [there is] nothing in the Pell case [that] has overturned or diminished the crucial and primary responsibility of juries, nor judges, to determine whether an accused person is guilty of an offence,” LCA president Pauline Wright said in a statement.

LCA added that it hopes this decision alone does not deter victims of sexual abuse from coming forward to tell their stories and “seek justice for past wrongs they have suffered”.

Pell matter should not put Victorian system on trial
The High Court decision in Cardinal Pell’s matter was “an example of the justice system at work [and] this matter went through the courts at each level”. From the Magistrates Court, from the County Court and from the Court of Appeal, “the right to a fair trial was in evidence”.

Whether supportive or critical of the Pell matter, Mr Pandya clarified that if one party was not satisfied with an outcome in their trial, there is always the right to an appeal. That was what Cardinal Pell did. Mr Pandya added that the High Court was not critical of lower courts but came to a different view: “Reasonable minds can always disagree.”

“The appeals process all the way to the High Court is not an example of failure, but of the justice system giving careful and detailed consideration to the issues at hand,” Mr Pandya said. “The High Court took a different view from lower courts. It is the ultimate authority.”

Ms Harris said what the matter saw was the decision of the Victorian Court of Appeal from one standpoint and the High Court of Australia on the other, but that this is simply an example of the “ordinary and proper functioning of the checks and balances” in the system.

“Disagreement between courts and individual judges [happens] routinely,” Ms Harris said.

“In many cases, the High Court agrees with the decision of the appellate courts. In some cases, including this one, it doesn’t. That does not imply there is something ‘wrong’ with the Victorian justice system. It reflects a difference of views.

“Difference of views between courts and judges has – over centuries – been critical in the shaping of common law and it is an important part of a healthy justice system.”

Do not compare George Pell with Nicola Gobbo when judging Victoria
The most highly criticised cases before the Victorian legal system – in the media and from social media – is this High Court decision and the Lawyer X saga. Somehow, this has led to the idea that the Victorian courts are now on trial, like sex abuse convictions and Nicola Gobbo’s informing (which was kept quiet from the courts) are at all related.

“There is nothing in common between the George Pell decision and Nicola Gobbo’s matter. One was a criminal trial on historical sexual offences, which went through committal, two County Court trials, Court of Appeal and ultimately the High Court,” Mr Pandya explains.

There is only one small similarity. In the days leading up to Lawyer X being exposed due to her police informing, senior members of the force said in emails that it would be covered up by Cardinal Pell’s news. Now, it does not do well to combine the stories.

“There is, simply, no comparison,” Ms Harris told Lawyers Weekly. “The Pell decision was a function of a justice system that was operating properly. It is not particularly unusual for people who are convicted of a crime to appeal successfully to the High Court.

“The Nicola Gobbo situation is entirely different. There, a lawyer who knew well what her obligations were to keep information she learned from her clients confidential, breached those obligations. These are obligations that are critical to maintaining trust.”

Why we need to stand with the courts in this time, not against them
The current global health pandemic has left several critical systems in unease. If anything, now is not the time to turn from the Victorian legal system as it manages cases amid the coronavirus (COVID-19) social distancing restrictions.

“The Victorian legal system and its role in upholding the rule of law and administering this justice is more critical than ever in the present, troubled times…. The courts are conscious that the community needs the wheels of justice to keep turning, and especially to ensure that the system is able to deal with important cases,” Ms Harris said.

“We need to support our judges, our courts, those across the legal profession and police, as their work is critical to keeping us as a community safe and functioning.”

Mr Pandya said the community should continue to have faith in the ability of juries to get cases right after hearing the evidence, despite this High Court decision: “Neither juries or judges are infallible and that is why we have an appeals system.”

“The Victorian justice system is robust. It has checks and balances,” Mr Pandya said. “It would be disappointing if the current commentary created a perception that the right to a fair trial has been compromised. It has not.”