Terry O'Gorman

Terry O'Gorman spoke to The Australian's Chris Merritt about the upcoming trial of Cardinal George Pell. You can read the original article here.

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Victoria’s legal system is built on the premise that jurors are impervious.

Cardinal George Pell would hate the association, but the question of whether he can ever receive a fair trial will turn on what happened to a notorious pedophile.

The fate of that pedophile, Father Michael Glennon, will not help the cardinal. It established that as far as the law is concerned, massive adverse publicity does not necessarily make it impossible to find an unbiased jury.

In Victoria, where Pell has been charged with historical sexual offences, “adverse publicity” barely begins to describe what has happened to this conservative Catholic cleric. Tearing him down has almost taken on the trappings of an industry.

Yet now that the justice system has become involved, the frenzy of the past few years is supposed to be set aside and forgotten, particularly by those who would sit on the jury that will decide his fate.

In the view of some, that is little more than a heroic assumption from another era.

The state’s justice system has a range of tools at its disposal that are aimed at ensuring that Pell’s trial will be fair. But in the face of the modern world, the effectiveness of those tools has been questioned.

Civil libertarian Terry O’Gorman believes a fair trial for Pell is extremely unlikely — particularly after the Royal Commission into Institutional Responses to Child Sexual Abuse.

“It comes after a parliamentary inquiry and a royal commission with intense publicity,’’ says O’Gorman, who is president of the Australian Council for Civil Liberties.

“Pell’s trial will be one of the biggest media circuses since Lindy Chamberlain.’’ Like most common law jurisdictions, Victoria’s criminal justice system is built around the belief that juries are capable of setting aside everything they may have come to know and that they will decide cases based only on what they see and hear in court. This belief is so pervasive in Victoria that the state government has chosen not to follow NSW, which has long had a system in place designed to address circumstances when people have been subjected to so much adverse publicity that the risk of a biased jury is simply too great.

That system, in which judges decide criminal trials without a jury, was preceded by a 1986 report that exploded the myth about juries.

That report, by the NSW Law Reform Commission, should send a chill down the spine of Pell and his lawyers.

It found that in some cases “it may be that publicity which is adverse to the accused person is so prolonged and widespread that it is clearly impossible to eliminate its impact upon potential jurors”.

“There will be cases in which the publicity has been so extensive that the conduct of a fair trial may only be possible if it is by judge alone.

“For these reasons, we consider that an accused person should have the right, where legitimate grounds are shown, to make an application to be tried by judge alone.” So in Victoria, the first Australian jurisdiction with a Charter of Rights, this method of protecting the fundamental right to a fair trial is simply not available.

But while this mechanism is available in NSW, it is not commonly used — even for those cases where pre-trial publicity has been intense. Former Labor politicians Eddie Obeid and Ian Macdonald, for example, were sent to prison after jury trials.

O’Gorman believes Victoria needs to confront the question of whether the extraordinary circumstances surrounding the Pell case mean the time has arrived for judge-alone trials.

John Dowd, who introduced judge-alone trials in NSW when he was state attorney-general, says the system works “very well” but imposes a very heavy responsibility on judges, particularly in high-profile cases.

Dowd, who is also a former judge of the NSW Supreme Court, believes juries, properly instructed, can work fairly. But he says one of the great problems in high-profile cases is discussions between jurors and their families.

“The juror goes home, discusses it with their spouse, and the spouse says ‘well I think …’,” Dowd says. “Jurors are subject to pressures, but of course so are judges.” In Victoria, problem jurors can be excused. They can be excused if they volunteer that they are incapable of bringing an impartial mind to bear. Judges also instruct them to decide the issues based only on the evidence.

They are also warned that it is a criminal offence to use the internet to research the case and to discuss their deliberations outside the jury room.

O’Gorman believes that is only an incremental improvement. It falls short of the intense questioning of jurors that takes place in the US when their impartiality is in doubt.

“In the States, when you have this amount of intense, highly prejudicial pre-trial publicity, you can question the jurors. It’s the trade-off that has been built in over there,” he says.

“Here, you have a media free-for-all with blokes like Pell … and in most Australian states it is a criminal offence to even inquire about a juror’s background, let alone being able to question them in the US mode,” O’Gorman says.

The courts also can impose suppression orders that limit what can be said until after the case is decided. Extensive delays before trial also can be used in the hope that this may dissipate any prejudicial effect.

The reality, however, is that potential jurors with a smartphone can sidestep suppression orders and revisit all sorts of anti-Pell material. The damage has been done.

It may be too late for Pell, but Nick Xenophon’s move for a Senate inquiry into the law of contempt has the potential to resolve an apparent inconsistency in the way the law deals with pre-trial publicity.

At the moment, the law governing contempt of court can result in convictions for prejudicing the right to a fair trial — which is what happened to Derryn Hinch in the 1980s when he was a broadcaster, not a senator, and took an interest in Glennon the pedophile priest.

Hinch made three broadcasts about the priest’s earlier convictions that were found to have prejudiced the pedophile’s right to a fair trial. Glennon then tried to use this to argue that his latest trial should be stayed.

The High Court disagreed, which means Hinch was punished for threatening Glennon’s right to a fair trial, but our highest court also believed Glennon would receive a fair trial.

But it is worth pointing out that Victoria’s Court of Criminal Appeal had ruled in favour of Glennon, only to see its concern for a fair trial given less weight by the High Court majority.

The Court of Criminal Appeal had considered the effect of the pre-trial publicity in the Glennon case to be “an extreme and exceptional or singular one in which neither the lapse of time nor directions of the trial judge obviated an unacceptable — in the sense of significant or substantial — risk that the trial was unfair by reason of illegitimate prejudice and prejudgment on the part of the jury”.

Seventeen years ago, the inconsistency did not escape the notice of the Alternative Law Journal. “In Glennon the High Court drew a legalistic distinction between its earlier finding that Hinch was responsible for a real or substantial risk of prejudicing Glennon’s trial, and its finding that Glennon was able to get a fair trial despite the extent of the contemptuous pre-trial publicity,” wrote legal academic Allan Ardill.

“On the one hand Hinch was guilty of a real and substantial risk of prejudicing Glennon’s right to a fair trial, but on the other Glennon was still able to get a trial sufficiently free of prejudice,” Ardill wrote.

O’Gorman says he does not suggest that jurors would deliberately conduct themselves in a biased manner and disregard the instructions given by a judge. But he says there have been several studies in the US into what he described as “the myth that jurors can put things out of their mind”.

“The rest of us can’t in relation to other matters. Asking a jury to do so is absurd,” O’Gorman says.

He says concern for better protection for the right to a fair trial should not depend on popular attitudes towards those facing potentially biased juries.

“I would just say to those in the media who are sympathetic to Pell’s position that there were not many people who were sympathetic to Glennon’s position,” O’Gorman says.“There has to be a change to the system.”