None of this was controversial. The ex-judge was Tom Bathurst, most recently chief justice of New South Wales. His confidant was the state’s attorney-general, Michael Daley. And the high-profile figure was Kathleen Folbigg. Twenty years after being convicted of suffocating her four children, she was released from a Grafton prison.

Asked when Bathurst’s actual report would come out, Daley replied, “Without giving away any confidences, I think it would be appropriate to say that it will be weeks and not months.” The report was published last week, more than five months after Folbigg’s release.

Bathurst is the latest in a very lengthy string of judges who’ve ruled on Folbigg’s murder convictions. Six appeal judges, rejecting her first two appeals, all expressly said they agreed with the jury’s verdict. Three High Court judges (who had all once sat on the same appeals court) refused a further appeal, adding that the prosecution evidence was strong.

Just four years ago, in a different official inquiry, a former judge (previously head of a different New South Wales court) not only declared Folbigg guilty as charged but said that the further evidence he had heard “makes her guilt of these offences even more certain.” Two years ago, yet another appeal panel found ample basis for their former colleague’s ruling.

That’s twelve judges and one former one who’ve ruled Folbigg’s conviction safe, with no dissenters or doubters. Until now.

As he foreshadowed to Daley, Bathurst has told the state governor (a former head of the appeals court who had already pardoned Folbigg) that “there is reasonable doubt as to Ms Folbigg’s guilt” of each of her alleged crimes.

What created the doubt, according to Bathurst’s report, was new evidence that emerged just as the previous inquiry reported. Rather than supporting the finding that Kathleen Folbigg smothered her children, it showed that her two daughters shared a gene that could kill them. Other new evidence firmed up the likelihood that one of her son’s multiple afflictions also had natural causes. Bathurst accepted most, but not all, of this expert evidence.

Also presented was fresh psychological evidence about how to read diaries written by people under stress. Folbigg had written, for instance, of her husband’s “morbid fear” of their fourth child dying, “Well I know there’s nothing wrong with her. Nothing out of ordinary any way. Because it was me not them,” adding “I’ve learnt once it’s getting to me to walk away… With Sarah [her third child] all I wanted was her to shut up. And one day she did.” Bathurst said that these, and similar entries, were “evidence of self-blame” and concluded that the diaries contained no “reliable admissions of guilt.”

But it’s not only evidence that changes with time. As academic Emma Cunliffe details in her masterwork on Folbigg’s case, shared assumptions about multiple infant deaths have shifted with the decades. Once, those deaths were attributed to sleep apnoea, but then New York police investigated a family whose experience had been presented as key evidence of that theory and came away with the mother’s confession to five infant murders. Unsurprisingly, maternal suffocation became the preferred go-to, until the doctor who coined the term “Munchausen syndrome by proxy” was disgraced for giving bad statistical evidence in homicide trials. Folbigg’s misfortune was to be tried just before genes’ and trauma’s stars rose as explanation for such family tragedies.

Another change is simply that Folbigg’s trial is now much less recent. As anger, shock and memories recede and anticipated confirmations — confessions, revelations, similar cases — fail to materialise, space opens up for murderers to be unmade in the public’s mind. (Folbigg has long had champions including, startlingly, Alan Jones.)

Given the myriad possible explanations for the late turnabout in Folbigg’s case, I’m content to put aside the less palatable ones — medical fashion, malleable opinion, multiple wrong judges or jurors, or error on the part of Bathurst himself — and pin it all on the fresh evidence.

But there’s a further uncomfortable fact that Bathurst, Daley and others never mention, and that I’m not content to let slide: Kathleen Folbigg was unfairly tried in 2003, something New South Wales’s judges have known perfectly well for at least seventeen years.

Kathleen Folbigg’s two-month trial nearly collapsed in its second week. The trouble started when a new lawyer named Annabel dropped by to watch the proceedings and immediately recognised one of the jurors. She phoned a friend to confirm that her boyfriend was on the panel and then asked, “Did you know that was the case I was working on?” Annabel had done her student training at legal aid and had helped to prepare Folbigg’s defence.

It belatedly dawned on her that her phone call may have worsened the situation. Still worse, her friend had been part of her uni study group and may have been there when she described her work on the case. Worst of all, she might have told the group her personal view: that Folbigg was guilty as charged but shouldn’t be jailed. She promptly told the trial lawyers everything.

Folbigg’s prosecutor was dismissive — jurors often hear others’ takes in high-profile cases — but the defence fretted that Annabel’s opinions may be given particular weight. The judge, loathe to act on mere possibilities, opted to put the juror on the stand. He testified that he knew Annabel and about her phone call to his girlfriend, but, asked whether he had heard any of the lawyer’s opinions about the case, replied, “None whatsoever.” He was returned to the jury room with instructions to discuss the case with no one, including his girlfriend.

Justice Graham Barr made many decisions in 2003 that have aged well. Crucially, he barred all of the medical experts from opining on the likelihood of four natural infant deaths in a single family, restricting them to discussing each child individually. Bathurst ruled that Barr’s take matched the state-of-the-art medical thinking two decades later, and disclaimed the stance of then prosecutor Mark Tedeschi, who likened the defence case to a person being “hit by lightning four times.”

Tedeschi repeatedly tried to inform the jury of another startling fact about Kathleen Folbigg: that her father had killed her mother. The prosecutor initially said that it “provided an explanation for why the accused may have smothered her children.” Later, he claimed that it explained how Folbigg’s self-description in her diary as “my father’s daughter” amounted to a confession to the murders. Finally, he argued that the jury needed to know the history to understand her discussions about it with her husband and, later, the police.

Barr knocked back each of these attempts in turn, explaining that “the risk of misuse of the evidence is so great that I doubt whether any direction can obviate it.” This year, Folbigg’s ex-husband Craig complained that her troubled childhood was scarcely mentioned in Bathurst’s inquiry. He urged that it should be put in the report to the governor as evidence of his former wife’s possible inherited traits, mental illness and consciousness of guilt. Bathurst’s report dismissed this “rank speculation,” instead listing Craig’s unreliable trial testimony as a further reason to doubt the jury’s verdict.

It is a tribute to Barr that the courts have identified only one mistake he made: giving Folbigg too harsh a sentence. On the morning of 17 February 2005, the first three judges to review her case upheld her conviction but lowered her sentence from Barr’s forty years to thirty, leaving her eligible for parole in 2028. “Any person who was properly informed, sensible and thoughtful” would see how her “tragic background” — which effectively left her an orphan — “explains to some extent, although it does not excuse to any extent, how the crimes came to be committed.”

Barr’s excellent judging was something of a misfortune for Folbigg. A fair trial means a fair verdict. Or so it seemed that morning. That afternoon, Annabel emailed legal aid with some bad news about Folbigg’s jury.

Two brief court judgements are the only public insight into the flurry of behind-the-scenes events kicked off by Annabel’s email from early 2005 to late 2007. Even the judgements that emerged are unusual, because courts typically cannot rule on evidence that emerges after (here, hours after) a convicted offender loses her first appeal. Bizarrely, a missing staple on her court file allowed an exception in Folbigg’s case.

Thanks to the missing staple, we know that Annabel’s email recounted how a juror she “knew” had told her that “one of the jurors had researched Kathy’s history etc on the internet” during the trial. A year-long court-ordered investigation followed. Thanks to the rules protecting jurors and their deliberations, the only public outcomes of that investigation are terse summaries of “two instances of potential irregularity in the conduct of the jury trial.”

One involved the fact that some of the infants’ bodies were warm when paramedics arrived. The jurors were curious about how long bodies stay warm, and one asked a nurse friend. Such inquiries are forbidden, but the court ruled that, luckily, what the jury was told — that bodies stay warm for quite a while — helped the defence.

The other irregularity was far more serious. A juror googled “Kathleen Folbigg,” read “several related sites” and told others what they said: that Folbigg’s father killed her mother when Folbigg was an infant. This discussion happened early in the trial, while Tedeschi tried and Barr refused to let the jurors know this very fact, blissfully unaware that their debate was moot.

The jury verdict would also be moot unless the court was “satisfied” that what the jury discovered had not affected their verdict. And here’s where the story took another turn.

Chief judge Peter McClellan explained the appeals judges’ take in a single paragraph:

Even though the appellant was the child of a person who killed another I do not believe there was any likelihood that a juror would reason that it was more likely that the appellant would kill her own children. The killing of a spouse may tragically occur in circumstances of the breakdown of a relationship or be occasioned by temporary loss of control accompanied by a violent and fatal act. The circumstances and motive for the killing are likely to be quite different from those which will exist if a mother has killed her own children. There could be no suggestion that the killing of the appellant’s mother by her father indicated any tendency in the appellant to kill her own children. In my judgment the knowledge obtained by the juror did not lead to a miscarriage of justice.

Judges Carolyn Simpson and soon-to-be-High-Court-justice Virginia Bell agreed without comment. The panel, satisfied that the juror’s research hadn’t affected the jury’s verdict, dismissed Folbigg’s second appeal and caused her to spend sixteen more years in prison.

There is no nice way to say this: what the court says here is wrong. It’s possible that the sheriff’s investigation turned up a quite different reason to be satisfied that the jury’s verdict was unaffected by the learning about Folbigg’s childhood, but the reason the court gave — that the jury would have simply shrugged and ignored it — is ridiculous.

Don’t just take my word for it. Take the word of prosecutor Mark Tedeschi, who argued that the jury could use the information to apply “the attachment theory, which is that children who have gone through the sort of early life that this accused went through may have difficulty themselves bonding with their own children.” Or trial judge Graham Barr, who acknowledged that the family history had “substantial” value in interpreting Folbigg’s diary, but that that still did not outweigh “the danger of unfair prejudice.”

Or why not appeal judge Peter McClellan? A decade after ruling on Folbigg, he headed the royal commission into institutional child abuse. There, he wrote eloquently about how “adverse childhood experiences can negatively influence a person’s emotional, social and cognitive development.” But he also bemoaned the “misconception… that victims of child sexual abuse go on to sexually offend against children themselves,” a conception sadly voiced by some victims when they privately confessed their own crimes to the commission.

My point, of course, isn’t that Folbigg’s history casts light on her guilt or innocence. Rather, it’s the possibility that one or more jurors may have seen such a link themselves, much as her ex-husband and others did. Or, as Barr feared, that one or more of them might have somehow irrationally judged her for her father’s crimes. I struggle to imagine why the appeal judges couldn’t imagine these possibilities.

Indeed, I have a further, more speculative worry, based on what Folbigg wrote in her diary between the death of her third child and the conception of her fourth:

I’m ready to continue my family time now. Obviously, I’m my father’s daughter. But I think losing my temper stage and being frustrated with everything has passed.

Craig Folbigg, the police and Tedeschi all thought the middle sentence was a confession to a homicidal temper. Barr ordered that it be whited out in the jury’s copy of the diary, and belatedly told Tedeschi not to mention the word “But” either.

But I fear that the jury could well have puzzled out what was behind the white-out, for two reasons. First, Craig Folbigg himself blurted the hidden sentence from the diary to the jury in the trial’s first week, the same period when one juror turned to Google. And, second, they were highlighted in pretrial articles about the case, ones that also reveal the history that juror found via Google. This makes it possible that Folbigg’s jurors in 2003 may have mimicked the very moment in 1999 when Craig Folbigg says that he started to think his wife was a murderer.

Fortunately, there’s no need to dwell on whether Folbigg’s seventh, eighth and ninth judges were wrong, any more than whether the other ten were wrong. Nor is there any need to engage in some undoubtedly uncomfortable speculation about why. Instead, as of this week, we can let all of that slide.

Just as evidence, and our takes on it or particular cases shift with time, so do courts’ takes on what is, and isn’t, a fair trial.

Juror research was once a matter of jokes, shrugs and warnings, but now it’s a crime in most parts of Australia. And, just this week, Australia’s High Court ruled that the past approach of the NSW courts to juror misconduct, including the test applied to dismiss Folbigg’s appeal, was wrong. Rather, when jurors knowingly disobey a judge’s direction, other than a trivial one, it will always be a miscarriage of justice.

The case before the High Court, like Folbigg’s, involved the discovery, after a trial, that one juror had searched the internet early in the case and had told the others what he found. The majority’s new test in such cases is to ask whether a layperson might reasonably apprehend that any juror might, as a consequence, not have decided the accused’s guilt on the evidence, according to law. If so, the majority declared, the trial would be “incurably flawed.”

The majority went on to rule that the new test wasn’t met in the case before it, but only because the juror had searched for information about how crimes are sentenced rather than about the accused or the case or the rules of proof. That was still wrong, they said, but it simply wasn’t clear either way whether the juror (and the other jurors, who didn’t report him during the trial) realised it was wrong.

Last year, I said much the same about the juror who brought an academic article about false rape accusations into a jury room, perhaps in the belief that such general research was allowed. Cases like these sharply contrast with what Folbigg’s juror did, specifically googling her name, reading websites about her case, and telling other jurors what was there. There is no way that could pass muster after this week.

Again, you don’t have to take my word for it. The other two judges in the High Court case, James Edelman and Simon Steward, who would have sent the case before them to a lower court for a rethink, decided to illustrate why the previous New South Wales approach was so dangerous. The example they chose was Folbigg’s appeal, during which, they said, the appeal panel “applied the wrong test,” “placed itself in the position of the jury” and “effectively reversed the usual onus.”

This step — effectively becoming the fifteenth and sixteenth judges to weigh in on Folbigg’s convictions — is extraordinary. It is also, surely, no coincidence that it comes after Bathurst’s report, which should be prompting many Australian judges to wonder what went wrong in that particular prosecution.

This week, three more NSW judges — the seventeenth through nineteenth, by my count — will be asked to weigh in on Folbigg’s conviction. Although Folbigg is out of jail (and cannot go back), she remains a convicted child murderer, unless and until a court holds otherwise.

Bathurst referred Folbigg’s case back to his former court so they could explore the same issue he’d decided: whether or not there is reasonable doubt about her conviction. But there is no need for the new court to, yet again, weigh up all of the evidence for or against.

The new judges can, and should, simply quash her jury’s verdicts because her trial was unfair, as their predecessors should have done sixteen years ago. •

The post Judging Kathleen Folbigg appeared first on Inside Story.

That someone was Chris, Bronwyn’s son, who spent several evenings in October 2011 waiting near Ray’s flat, a large spanner in hand. He also recruited his best friend Zak, who waited beside him each evening with a steel pipe. Zak in turn recruited Spider, friend of no one, who hefted a baseball bat while he spent Bronwyn’s money in his head.

How was justice meted out to these five in the Northern Territory a bit over a decade ago? Bronwyn got an eight-year prison sentence with a four-year minimum. Chris, Zak and Spider each got life, with minimums of eighteen years for Chris and twenty each for the others.

As for Ray, he got a quick but brutal death, courtesy of Chris’s wrench, and was dumped in a roadside clearing, one of the few spots in the outback a body is likely to be found. That was one reason the rest of them were swiftly caught. The other was that Spider forgot to delete the group’s texts from his phone before the police brought him in for a chat.

Did you pick Zak and Spider as equal worst of the survivors? The judge who sentenced them, Dean Mildren, sure didn’t. If he could, he’d have given Spider credit for pleading guilty and testifying against the others, and Zak still more for pulling out of the plan early. But, as journalist Dan Box incredulously reports, the pair’s judge lacked the power to do justice.

Box produced an impassioned documentary about the judgement, The Queen & Zak Grieve, in 2017, successfully pressing for the Territory government to show Zak some mercy. Now he’s written a far less certain book about the case. What’s changed in six years? Mainly, Dan Box.

Box opens his third book with a confession: he made his documentary because he “wanted to win another Walkley.” He’d won a couple the previous year for his reporting on three murders in Bowraville, including the first such award for a podcast. But he never won a third and soon left the Australian and its podcasting scene to Hedley Thomas.

The Englishman doesn’t reveal exactly where he went, but he mentions enduring occasional snow and regular depression. He also decided to speak with Zak for the first time. He wrote letters to Grieve “to reassure myself that I’d been right, and he really wasn’t a killer.” The pair’s correspondence is the heart of this book, the recently released The Man Who Wasn’t There.

I don’t think Zak is the title character. He was barely a man in 2011. The nineteen-year-old spent his time in Katherine on his Xbox and watching anime, and he’s been in stasis ever since. And he was very much there for most of the plot against Ray.

His co-conspirators split on whether Zak was still there during Ray’s final minutes or had pulled out hours before. Zak’s judge had to give him the benefit of the doubt on that point, but Box didn’t have to. Since the documentary, he’s read phone texts casting doubt on Zak’s claim that he cut ties when he realised that what he’d agreed to wasn’t a beating but a killing.

“You have to ask, Why lie?” writes Box of Spider, who testified that Zak was the first person Ray saw in the last horrible moments of his life. By contrast, Chris — “a kind and decent person, for a killer” — had every reason to “protect his friend.”

At some point in their correspondence, Zak became Box’s friend too. Box writes that this may be why his “doubts about Zak’s involvement in the murder itself have receded.” When it’s someone “you care about… it’s not enough to say this is not your fight [and] you don’t have to pick a side.”

In 1991, Helen Garner famously picked a side early on and, like Box, spent a book (The First Stone in her case) mulling over her instincts. Then, in 2004’s Joe Cinque’s Consolation, she befriended a bereft parent and, like Box and Zak’s mother Glenice, came to share her rage at the machinations of justice.

Some couldn’t stand how Garner inserted herself into the narrative, but I prefer my true crime writers to be there. You can see the difference in Box’s two works on Grieve. His documentary, made before he said more than a handful of words to his subject, ended with a dogged pursuit of a possible fourth co-conspirator who was never charged at all.

Box’s book reveals that Chris himself had named a fourth participant. But this time the journalist opts not to go there. Naming names, writes Box, “risks causing hurt, not just to his family, but to Zak’s also.” And to Zak. “Knowing whether Zak was right or wrong no longer matters to me.”

It never mattered to the courts. In 2014’s This House of Grief, Garner looks a man in the eye who drove his three kids into a dam and sees a failed suicide rather than a vengeful homicide. Either way, Robert Farquharson was still a murderer and so is Zak Grieve, whether he was there at the end or not.

Zak was guilty of conspiracy as soon as he joined Chris’s plan, and was guilty of murder the moment it succeeded. Conspirators can pull out of planned crimes under Australian law, but withdrawal is a tricky, unpleasant and fallible method of avoiding unwanted convictions. Zak had to not only exit before Ray was struck but also do whatever he could to save Ray’s life. His jury ruled that he failed one or both of these tests.

It’s a fair rule, but Territory law made it very tough in Zak’s case. A decades-old statute requires that murderers serve at least twenty years in prison. There’s one exception for good people who kill bad ones, hence Chris’s eighteen-year minimum. But Zak (and Spider) weren’t eligible, in part because Zak sometimes sold cannabis but mainly because neither of them knew much about Ray.

Thanks to Box’s documentary and a petition by his lawyers, Zak ultimately got a lower sentence, courtesy of the Northern Territory government’s power to grant mercy. This combination of legislative toughness and executive whim produced the same outcome that justice would have: a twelve-year minimum sentence, which expired last week.

Rank these punishments. Life in prison. Losing your life. Losing your child to prison. Losing your child.

Garner’s This House of Grief is named after a line in a 1930s Hungarian novel that laments how a troubled crime journalist’s “finest years had slipped by in this treasury of pain, this house of power and grief.” The author, Desző Kosztolányi, was describing a bustling Budapest police station, while Garner was thinking of Victoria’s Supreme Court.

Zak’s house for much of his twenties was the Darwin Correctional Centre. Known as Holtze, it’s a freshly built failure housing a thousand residents with no respite from heat or boredom. The in-cell screens, replacing the correspondence courses Zak once devoured, have never worked. The library he worked in was shut. His sole escape is handwriting a sprawling sci-fi novel he sends outside in five-page instalments that are checked for security threats.

Zak shared a wing with other lifers, including Chris, Spider and backpacker murderer Bradley Murdoch. One eighty-year-old got parole after his minimum twenty years but asked to stay in Holtze to avoid burdening his family. He hung himself on a ceiling fan when he learnt that the Territory government had banned lifers from work release. Authorities replaced the fans with desk ones.

Here’s how some other punishments have been meted out in recent years:

Spider never got his own documentary or the credit Mildren recommended for ratting on Zak and Chris. Friendless as ever, he’s the only one of the conspiracy still left in prison.

Halfway through his eighteen years, Chris died in his cell, bleeding from his anus. It wasn’t what you might guess. Many Holtze residents passed their days using Kronic, a potent synthetic cannabis they often concealed in their bodies.

Murdoch, who has never revealed where he hid Peter Falconio’s body, even when he was offered a transfer to Western Australia, hated the drug. He told Chris’s coroner that Holtze was to blame: “That’s why other people smoke Kronic. It takes them to another place.” Authorities gave the lifers board games.

Zak saw another culprit. When he and Chris took Kronic, they took turns to ensure that the other didn’t suffocate when they became “stuck.” But Zak was sent to another wing three days earlier for making a sexist joke. He wasn’t there for his best friend. Again.

Box might name another. Zak’s mother Glenice, attending the inquest to see her son testify, “found Chris’s mother Bronwyn sitting watching from the public gallery.” Bronwyn, who was convicted of manslaughter, has always said she had no idea Chris would murder Ray himself. She told Glenice “she would soon be leaving Darwin, to go somewhere small and isolated.”

Did you pick these punishments as the worst ones? Box wouldn’t. His daughter Poppy “counts off the days she’s spent in hospital along one wall,” he writes, “using coloured pens to draw four vertical lines with a fifth running diagonally through them, like some kindergarten prisoner.” Halfway through his correspondence with Zak, Box felt a lump in his nine-year-old’s tummy. The doctors gave her a fifty-fifty chance.

Zak was released last week. He’d already told Box it wasn’t an end: “I’m on a life sentence. On parole.” So are Box and his daughter. She had two years of chemo but the tumour is still there. “We leave hospital knowing we will be back there, every three months, over and over, always in fear, always not knowing.”

Why would Box include this in his book? Well, how couldn’t he? He’d learnt what mattered, and it wasn’t justice. “While I wouldn’t recommend having your child diagnosed with cancer as a cure for depression,” he writes, “it seems to have worked for me, at least.” Being there is a complete nightmare, of course. But not being there is worse. •

The Man Who Wasn’t There
By Dan Box | Ultimo Press | $36.99 | 320 pages

The post This house of Grieve appeared first on Inside Story.

Here is how chief judge Robert Beech-Jones finished: “I doubt that the imposition of sentence on the offender for the second and hopefully last time will bring closure in respect of the terrible events surrounding his death and their aftermath. However, it is be hoped that it at least represents progress towards that end.”

How could a man’s punishment for “terrible events,” albeit thirty-five years late, not bring closure? Why is even “progress towards that end” a mere “hope”? And, given that the offender had pled guilty, why is this only “hopefully” the last time he would be sentenced?

The judge’s doubt may be a case of déjà vu. This sequence of events — a guilty plea and a sentence — has happened before in this case. Indeed, Beech-Jones is the fifth judge to make a finding about Johnson’s death. Every finding has been different, and none of the previous four stood the test of time.

Will the fifth? I’m not sure what I hope will happen.

“The procedural history of this case is a story in its own right,” the chief judge observed. It began on 10 December 1988 when a thirteen-year-old spear fisher spied a body lying on rocks under Blue Fish Point on the ocean side of Sydney’s North Head. Scott Johnson was naked, but the police soon found his clothes, neatly folded, near the clifftop. When an autopsy confirmed that the American had fallen from height a day or two earlier, the police and a coroner quickly concluded that he intentionally jumped. Last week, though, Beech-Jones said this “appears to be an absurd suggestion.”

The first finding about Johnson’s death was based at least partly on absurdity. His coroner cited the fact that he was “an extremely brilliant mathematician who was reserved and introverted” as a risk factor. But Johnson’s long-term partner also assumed that he had jumped. Four years earlier, Johnson had phoned to tell him that fear of exposure to AIDS had driven him to San Francisco’s Golden Gate Bridge. “But when he got there, he found that his muscles froze over.”

The suicide finding lasted twenty-three years, a period in which a different coroner found that three men who died or disappeared on Sydney cliffs in the late 1980s may have been the victims of gangs targeting gay beats. In 2012, a second inquest into Johnson’s death heard that Blue Fish Point was also a beat. The second coroner found that the cause of Johnson’s fall couldn’t be determined and recommended a fresh police investigation.

This open finding lasted just over five years, until a third inquest reviewed the police’s discoveries. The third coroner was told of the “Narrabeen skinheads” who targeted various gay beats in Sydney’s north in the mid 1980s. One informant testified that a pair from the gang had boasted that they once “bashed an American faggot” in Manly who then “ran away.” A “community source” explained that other gang members sometimes targeted beats at North Head in the late 1980s. But the third coroner dismissed these new clues as too slight and unreliable to cast any light on Johnson’s death.

That coroner nevertheless thought other evidence revealed what happened on 8 December 1988. A “psychological autopsy” of Johnson (who had recently made major progress on his doctorate, which was awarded posthumously) made the initial suicide theory “very unlikely.” Evidence from Johnson’s brother Steve of the pair’s many hikes made an accidental fall equally unlikely. And the American’s seemingly missing wallet suggested the malign involvement of a stranger. This became the first judge to find that a crime had occurred: “I readily conclude that homicide is more likely than either of the other scenarios.”

But he also sorrowfully rejected Steve Johnson’s request for a fresh investigation independent of the police. The initial poor policing and passage of time left little hope, he said, of finding the culprits. (He thought it “likely” that the student, who was “strong and young and fit,” had been attacked by two or more people.) Nevertheless, citing harrowing accounts from past beat users of recurrent violence at Blue Fish Point, he found that “Scott died as a result of a gay hate attack.” That finding lasted less than five years.

“I did have a dream about, ’bout him… a couple of nights ago, I don’t know, it was just a weird dream in the bush, something to do with the bush… I was with him up the, up at North Head.”

“Was the gay the kid who died?” someone asked.

“Yeah,” said Scott White. It was 19 March 2020 and White was talking to “two witnesses.”

Scott Johnson and Scott White shared more than a first name. They were both the middle of five siblings. They each grew up in grim circumstances with a single parent. Both were gay. Each had thoughts of suicide. But that’s where the similarities ended. White had little to live for and no chance at all of getting a doctorate or a soul mate. He was drinking by the age of thirteen, homeless by fifteen, and in and out of fights, boys’ homes and prisons into his twenties. He was eighteen when Johnson died, married at twenty-three, and thirty-eight when his wife left with their six kids. He then cared for his alcoholic mother until she died in 2018. In March 2020 he was living alone and friendless.

Who were the “two witnesses” White was revealed to have spoken with just as Sydney locked down? Nearly every court that described their chats studiously avoided saying, but one let it slip: they were “undercover police operatives.”

“See back in them days gay wasn’t like it is now,” one cop said.

“Like we used to go poofter bashing,” White replied, before adding, “Yeah, my brother did.” His brother was why he never came out.

“Ah well you need never tell him, mate,” the cop soothed.

The cops drove White to Blue Fish Point and must have been disappointed when he walked a lengthy bush trail towards Manly and identified the Upper Shelley Headland lookout as the spot where the man with “a bit of an American accent” and a “good build” had undressed in his “dream.” Becoming emotional, he said the pair had walked there from a local hotel and talked for hours. Pressed for details, White couldn’t recall if they were “intimate.” But then he remembered something: “I think we had a fight. That’s all I can remember… he fell. I took off.” White was arrested two months after he uttered those words.

All this seemingly followed a single police interview a year earlier, in which White denied attacking any gay men, let alone Johnson, and two home visits from the operatives the previous week. Just before those visits, the police obtained a warrant to make covert recordings and asked Steve Johnson to generate interest by pledging to personally double the police’s reward. But no one has revealed what the cops did to prompt a fifty-year-old loner to confide “his biggest secret” — that he’d known he was gay since he was fifteen — much less detail that week’s “dream.”

Some overseas courts frown on the use of stings to prompt admissions from vulnerable people. In 1993, an English trial judge threw out admissions that an undercover officer had extracted after answering a suspect’s “lonely hearts” ad and insisting on a murder confession as a condition for a relationship. The public pilloried the judge, but he was later vindicated when an unrelated man was convicted of the killing.

In Canada, the police have long cracked cold cases by posing as criminal gangs who insist on true confessions from their “recruits.” But the nation’s Supreme Court drew the line at undercover cops offering illusory friendships to mentally challenged, socially isolated men in exchange for unverifiable confessions. In 2014, it acquitted a man whose new “best friend” had taken him to the lake where his children drowned so he could demonstrate how he pushed them off a wharf.

Not so in Australia. When Australian police adopted their Canadian counterparts’ methods they were swiftly endorsed by the High Court and by parliaments, who exempted undercover stings from the rules that require police seeking admissions to use methods conducive to their reliability. In 2007, chief justice Murray Gleeson and his fellow judge Dyson Heydon upheld the use of a teen’s admissions to police who assured him they were speaking off the record, infamously observing that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.”

White told his arresting officers he had been “full of shit” and just wanted to “get these guys” — the undercover cops — “off me back.” He spent the pandemic in prison being assessed by a succession of psychiatrists, who declared him fit to be tried but differed on their diagnoses. They all agreed that his childhood and heavy alcohol use had left him with cognitive defects. Ahead of a trial planned for the second anniversary of his arrest, the court set aside a week to resolve whether his jury could be told of his “dream.” That finding never came.

“How are you Scott?” his lawyer asked. “Terrible,” White told her. He’d been up since 4am, hadn’t eaten, and had lost his glasses. It was 9.40am on the first day of the pre-trial hearing in January 2022, and his lawyers warned him that his sexuality would be publicly aired. White said he was fine with his brother dialling in, but he wanted to know “what is all this about something I said to Helen [his ex-wife]?” His lawyers’ explanation left him more confused, but they also told him that the week’s hearings were just for legal arguments. When they reminded him that he would be asked to make a plea that day, White confirmed that he would say “not guilty.”

Just after 11am, a court officer read out the charge that, in 1988 in Manly, White “did murder…” “Guilty,” White interrupted. The officer continued: “… Scott Johnson.” “Guilty,” White repeated. How did he plead? “Guilty,” he said a third time, while his barrister shot to her feet. White added a fourth while the judge asked what his barrister wanted. She wanted to talk to her client.

Twenty minutes later, she told the judge that White no longer maintained his guilty plea. The judge could have simply re-arraigned White then and there. Instead, noting that his plea had been “loud” and “clear,” and that he obviously didn’t misspeak, she declared him guilty of murder. That finding, the fourth about Johnson’s death, was to last for just over a year.

Two days later, the judge rejected White’s formal request to withdraw his plea. White’s lawyers, who had planned to spend the week arguing that their client’s “dream” was the product of suggestion by undercover agents he was trying to please, were now openly accused by White’s prosecutor of “persuading” him to reverse his guilty plea. The judge duly dismissed the 9.40am conversation as White hiding his real intentions from his lawyers, and read the notes of the hasty post-plea conferral as his lawyers “cajoling” him into telling them “I didn’t do it, but I’m saying I did it.”

As for his reasons recorded in those notes — he told his lawyers he was scared of his ex-wife, he was safer in prison, he’d “take” ten years imprisonment, he wanted “it to be put to rest, for Scott, for the brother” — those were all consistent with his remorse for murdering Johnson as a teen. Moreover, the lawyers’ notes revealed that a change of plea had come up on four earlier occasions. The result was that White’s murder plea stood and so did the “dream” of the killing he had relayed two years earlier.

The only additional evidence the prosecution offered at his sentencing in May last year was from his ex-wife. Helen White revealed that she was the one who sparked the whole investigation by writing anonymously to the police after she saw a documentary on Johnson’s death. She recalled her then husband admitting that he used to “bash poofters” and said that, years ago, she had twice showed him Johnson’s picture from the newspaper, prompting him to say “that girly looking poofter” and “the only good poofter is a dead poofter.” Asked “So you threw him off the cliff?” he replied that it wasn’t his fault if “the dumb cunt ran off the cliff.”

The judge rebuffed White’s lawyers’ argument that no one could find the newspaper articles his ex-wife mentioned, as well as their suggestion that she had implicated her husband vindictively or for the $1 million reward. But, faced with the entirely different “dream” White had described to the undercover operatives, the judge baulked at confirming the third coroner’s finding that Johnson was the victim of a “gay hate attack.”

“There is no logical or rational reason,” she said, “to accept what the offender said about striking Dr Johnson, but reject what he said about going with him to North Head, without any apparent rancour, possibly for a sexual encounter to take place.” All that was certain, she said, was that White knew that hitting Johnson near a clifftop would probably kill him. That finding would last less than a year.

The murder finding unravelled bit by bit. Three appeal judges held that the judge should have been more open to White’s withdrawing a plea just twenty minutes after it was made. Indeed, they observed, White simply couldn’t have known the difference between murder and manslaughter. He hadn’t been advised by his lawyers on that, and even his prosecutor was yet to explain why White’s crime was the former. The judges sent the plea to be sorted out by chief judge Robert Beech-Jones.

White’s prosecutor tried to keep White to his murder plea, and even lodged a High Court challenge to the appeal decision. But he also agreed to discuss a compromise with White’s lawyers. Three months later, he simultaneously dropped his High Court challenge, his opposition to withdrawing the murder plea, and the murder charge itself. In return, White pled guilty to Johnson’s manslaughter.

It was all over bar White’s (second) sentencing, which proceeded on different evidence from the first. The parties’ “agreed facts” now covered only events in 1988 and from 2019, skipping White’s ex-wife altogether. But they included a new development: while he was still a convicted murderer, White was recorded on a prison phone call to a “relative” admitting “to hitting Dr Johnson at the cliff in terms consistent with what has already been recounted.” Like so much else in this case, no details are provided about what exactly was said in this call.

The chief judge rejected the only additional details White’s previous “dream” had revealed about his encounter with Johnson — “I hit him. He hit me. He stumbled back. I went to grab him and he… just stumbled back” — but also put to rest his predecessor’s finding that White knew his punch would likely cause a fatal fall. This time, no one argued that Johnson died of a gay hate attack.

And so, Beech-Jones set out the fifth, and current, official account of Scott Johnson’s death: “The end result is that not much is known about the killing of Dr Johnson beyond a punch near a cliff, a vulnerable victim, a fall over the cliff, a death, an absence of taking even the simplest step to render help after the fall and decades of pain and grief that followed.”

Is this closure for Scott Johnson and his loved ones? Five years ago, and nearly thirty years too late, a coroner put an official name to why Scott Johnson died (“a gay hate attack”) but couldn’t name his killer. Last week, a chief judge put an official name to the killer (“Scott”) but couldn’t say why he killed. “I think our family has got some peace and I would even say closure,” Steve Johnson said on the court’s doorstep. “We’re one of the lucky families.” No one can or should second-guess him. (A special commission will report on the police’s handling of hate crimes, including Johnson’s case, in coming months.)

Is this closure for Scott White too? He has now “specifically confirmed to the Court that he accepted legal responsibility for the death of Dr Johnson but not for murdering him,” and been sentenced accordingly. Beech-Jones found that the eighteen-year-old White “was clearly a damaged, albeit physically powerful, young man. However, he was not broken as he is now.” How much more should the courts break him at age fifty-two? Beech-Jones settled on a minimum of three more years in prison, and neither he nor White should be second-guessed either.

But should the rest of us accept closure in this case? Doing so is certainly in vogue. Even the Scots, who famously allow their criminal juries the option of a third, “not proven,” verdict, are contemplating a switch to the binary of guilty or not, lest they be too tempted (perhaps like Johnson’s second coroner) to throw up their hands in difficult cases and let villains go scot-free. But closure is seemingly what motivated the initial police and coroner (who were too quick to conclude that Johnson jumped), the third coroner (who was too sure he was chased), and the prosecutor and first judge (who were too determined to find that he was pushed).

Beech-Jones, the most careful of the case’s five judges, had the luxury of being bound by a manslaughter plea, and found nothing more than that. But the rest of us aren’t required to accept White at his word and should hesitate to do so. He has said that he is many other things — a “poofter basher,” a dreamer, “full of shit,” a murderer — and he may be all of those, or none. What everyone agrees is that he says whatever pleases whomever he’s near, be that his brother, his wife, complete strangers or his own lawyers. And nothing White has said about Johnson’s case went beyond what everyone around him knew or assumed had happened.

The case gives me déjà vu. White’s dream reminds me of Andrew Mallard, whose supposed murder confession to the Western Australian police consisted of what he said was “my version, my conjecture” of what the murderer would have done, described in the third person. It turned out that he was just parroting what the police had told him, including their own (wrong) assumptions about how the crime happened. A fingerprint identified the true killer, but only after Mallard spent twelve years in jail.

White’s guilty plea reminds me of George Heron, whose confession to killing a seven-year-old after days of oppressive questioning was thrown out of court decades ago, to the anger of the girl’s mother, the police and the British public. Heron was sued, hounded, outed and even stabbed, but that wasn’t the worst of it. “There were times I wondered if I had killed Nikki. So many people said I had that I started to doubt myself.” Her real killer was convicted last month.

Like Johnson’s third coroner, I’m pessimistic now — given poor policing, official tunnel vision and the passage of time — that we’ll ever learn more about Scott Johnson’s death. But the real, repeated lesson of these events is that this sort of case is never truly closed. Maybe there’s more evidence implicating White in the events of December 1988 than just his inconstant, vague, derivative say-so, and for some reason we just haven’t been told. I truly hope there is. But, if not, then I’m not willing to merely hope that this is fifth time lucky. •

The post Scott’s justice appeared first on Inside Story.

Juror No. 10: Well, do you believe his story?

No. 8: I don’t know whether I believe it or not. Maybe I don’t.

No. 7: So what’d you vote not guilty for?

No. 8: There were eleven votes for guilty. It’s not so easy for me to raise my hand and send a boy off to die without talking about it first.

So begins the dramatic core of Twelve Angry Men, a 1950s teledrama, and later a movie and a play, that tracks a New York jury debating a murder charge. Writer Reginald Rose specified a jury of twelve men — even though women were seated on New York juries by then — perhaps to ensure that the twelve-handed discussion remained believably angry. But not too angry, which is why he specified an all-white cast to debate the fate of the “boy” he coded as an unspecified minority.

When many of us recently watched the real deliberations of eight women and four men about an alleged rape in the national parliament building, we did it in the usual way: from outside a locked door. Only twelve people were allowed to know what was said or done in that Canberra jury room, and it remains a crime for any of them to reveal anything to anyone who is likely to tell the public.

Highly trusted confidants aside, the rest of us have very little to go on. Attendees at Rose’s fictitious courtroom in New York City heard the jurors ask to inspect two exhibits — the knife used in the killing and a floorplan of the apartment where it occurred — before the jury announced its verdict. But the real jury in Canberra neither asked about evidence nor delivered a verdict.

They said just two things in public. The first was on the morning of their third full day of deliberations, a Monday, when they asked their trial judge, ACT chief justice Lucy McCallum, about “time expectations.” Gone are the days when jurors were detained in the jury room and put up at city hotels until they reached agreement. Modern jurors simply commute to and from their homes like other court officers. That’s why McCallum answered, “There is no rush, no time limit. The only expectation is you remain true to your oath.”

Their second communication came the following afternoon. According to the chief justice’s summary, their note said that they were “unable to reach a unanimous verdict.” Like juries in New York but unlike most other Australian ones, Canberra juries don’t have the option of a majority vote. So McCallum, following a practice laid down by the High Court in 1993, told the jurors to persist a while longer but scrupulously avoided suggesting a consensus would be the best outcome.

She also embellished the national court’s script by sending them home to visit a gym or walk a dog. The jury dutifully spent the entire next day talking, before opting — fatefully — to sleep on things for at least one more night. “No one could suggest you’re not working extremely hard,” soothed their judge.

And that’s all we know. Nevertheless, I’ll venture a few educated guesses about what went on behind closed doors.

My first guess is that the Canberra jurors probably weren’t angry during those five or so days of deliberation. I say that because angry jurors often use communications with the judge to vent or try to resolve their differences. My optimistic reading of the Canberra jury’s relative silence is that their disagreement about the verdict was reasonably friendly.

My second guess is that emotions within the jury room would still have been very high. Except in the dullest or easiest of cases, jurors almost always describe their deliberations as intense experiences, sometimes shattering or even life-changing. There’s every reason to think that’s true of this particular case, which has prompted hard discussions everywhere. There’s no reason to think that #MeToo stops at the jury room door.

My final speculation is that all twelve jurors were probably gobsmacked when their deliberations were abruptly ended.

•••

Guard: Is there anything wrong, gentlemen? I heard some noise.

Foreman: No. There’s nothing wrong. [He points to the large diagram of the apartment.] You can take that back. We’re finished with it.

[The guard nods and takes the diagram. He looks curiously at some of the jurors and exits. The jurors still are silent. Some of them slowly begin to sit down. No. 3 still stands at the window. He turns around now. The jurors look at him.]

Three jurors switch their votes during Twelve Angry Men’s second act, which ends with No. 8 goading his main antagonist into attacking him. No. 3’s cry of “I’ll kill him!” — the very words the prosecution says prove the accused’s wish to murder his father — prompts two more jurors to switch sides, evening the vote. It also prompts the (imaginary) outside world’s only intrusion into the jury’s deliberations.

The sanctity of the jury room is no empty principle. It is enforced not just by physical restrictions on who can enter the room but also, for centuries, by rigid legal limits on what information can leave it. In 1785, England’s most celebrated chief judge, Lord Mansfield, famously refused to act on evidence that an evenly divided jury had reached its verdict by tossing a coin, declaring that doing so “would endanger every verdict.”

Two hundred and thirty years later, Australia’s High Court ordered a partial end to trial judges showing the prosecutor and defendant the complete text of notes sent from the jury room, ruling that they should omit any information about what votes had been cast. The nation’s top court ruled that keeping such details secret “enables jurors to approach their task through frank and open discussion knowing that what is said in the jury room remains in that room.”

The Canberra case illustrates the high stakes. Imagine if, after their fifth day of deliberations, word got out of how the numbers were falling. Such news would have instantly poisoned the ongoing trial — casting a shadow over every subsequent decision by the lawyers or judge — and could have derailed any future one. Likewise, if the content of the jury’s conversations had leaked, both current and future deliberations would be tainted.

Unsurprisingly, the ACT Supreme Court is scrupulous about jurors’ privacy. The chief justice opted to paraphrase the jury’s second note rather than read it out. Court officers responsible for jurors swear an oath that they will “not speak to any juror… concerning the issues before the court.” They also give jurors boxes for storing their documents. And, as McCallum revealed on what should have been the jury’s sixth day of deliberations, “routine tidying” is carried out by “three sheriff’s officers,” a number surely chosen to reduce individual officers’ temptation to snoop.

And yet, in perhaps the most closely watched trial in Canberra’s history, and at perhaps the most closely watched moment of the proceedings, all of these protections failed. At least three things went wrong on the Wednesday evening. First, an officer “accidentally bumped one juror’s document folder onto the floor.” Second, that same officer, while putting the box back on the chair it came from, looked, again seemingly accidentally, through the folder’s “clear front.” And third, presumably instinctively, the officer read some words visible inside.

Had any of these things been done deliberately, the officer would surely have lost their job and potentially their liberty. But McCallum assured the public that the officer acted “inadvertently.” She went further: “The conduct of the sheriff’s officers involved in this trial has been exemplary. They have worked in difficult circumstances. The court is fortunate indeed to be so well served.”

But the officer’s personal blamelessness does not absolve McCallum’s court. Why did any of the jurors’ folders have a “clear front”? How did “tidying” involve any contact with a juror’s folder, much less risk bumping it to the floor? Why weren’t officers instructed to leave fallen items where they lay? Indeed, why were any non-jurors “routinely” entering the jury room at all, rather than (say) leaving whatever tidying was needed to the twelve adults within?

Such questions could scarcely have escaped the jury’s attention on the final day of the trial, and will surely occur to future Canberra jurors too. My guess is that all of these questions are now being given urgent attention by McCallum, who only became the head of the ACT judiciary at the start of this year.

But her court was “fortunate” this time. The officer who read the words visible in the juror’s folder saw no tallies, no intimate reveals, no checklists, indeed nothing written by any of the jurors. And the officer not only resisted the temptation to read further or open the box, but instead quickly fessed up to what happened. (McCallum recorded her “gratitude for the courage, integrity and good sense displayed” not only by the officer but also by their two colleagues.)

Best of all, the series of accidents proved serendipitous. The officer happened to uncover the only category of jury room leak that modern courts are allowed to act on.

•••

[Juror no. 8 swiftly flicks open the blade of a switch knife and jams it into the table next to the first one. They are exactly alike. There are several gasps and everyone stares at the knife. There is a long silence.]

No. 3: (slowly amazed) What are you trying to do?

No. 10: (loudly) Yeah, what is this? Who do you think you are?

No. 5: Look at it! It’s the same knife!

Foreman: Quiet! Let’s be quiet.

[They quiet down.]

No. 4: Where did you get it?

No. 8: I got it last night in a little junk shop around the corner from the boy’s house. It cost two dollars.

Twelve Angry Men’s most memorable scene features two out of five instances of juror misconduct identified by Berkeley law professor Charles Weisselberg in an article he published on the movie’s fiftieth anniversary, titled “Good Film, Bad Jury.”

The fictitious jury’s first bad step is when No. 8 brings something into the jury room that isn’t part of the trial evidence. The Canberra sheriff’s officer’s glimpse revealed that a juror seemingly did the same, bringing “an academic paper” into a trial that otherwise consisted only of testimony, CCTV footage and clothing.

Safety concerns about knives aside, I’m not convinced these are bad acts on their own. Jurors are no longer excluded from their own homes while deliberating and are not required to enter the jury room naked. There’s no reason why they can’t inspect their own belongings at night and bring relevant items in to show to others. Given that Rose’s fictitious prosecutor claims that the murder weapon — identical to one the accused was seen purchasing that day — is unique, why couldn’t a juror check that claim against a knife he owns, and show the jurors if the comparison is revealing?

Rather, the problem is that the knife No. 8 jams into the table isn’t his own, or at least wasn’t until he sought it out and bought it the previous night. That was the second instance of misconduct on Weisselberg’s list. The ACT’s Jury Handbook tells jurors: “Do not make searches on line or visit any place relevant to the case.” No. 8 does the latter. And everyone assumes that a Canberra juror obtained that academic paper by doing the former, perhaps when they were meant to be walking a dog or lifting weights.

And that made Chief Justice McCallum angry. She pointed out that she gave “at least seventeen, and possibly more” warnings to jurors against conducting their own investigations. Most of those were end-of-day reminders in these terms: “Please don’t go googling Brittany Higgins or Bruce Lehrmann or any of the other people you have heard mentioned. Please don’t seek out publicity in relation to this case. For the reasons I explained before, it would be very unfair to the accused if you sought information outside what you are going to hear in evidence in these proceedings.”

But, as far as anyone knows, no juror did anything in this list. The academic paper in the juror’s folder would surely have been written years before the events that were the subject of the trial. It did not mention anyone in the trial, or any place in it, or anything written about it, and contained nothing that the jurors heard in evidence.

Rather, the juror was suspected of conducting some general research about the outside world, akin to a New York juror scanning the shelves of his neighbourhood “junk shop” for switchblade knives. In her opening remarks, the chief justice explained that that wasn’t allowed either.

“You should only be learning about this trial in this room in my presence,” she said. “So, if you find yourself getting curious and undertaking internet research or talking to people about their areas of expertise, think to yourself, ‘Well, Chief Justice McCallum isn’t here so I probably shouldn’t be doing this.’ That is not a bad way of testing what you should hear in this trial. You should only hear the evidence in this trial in my presence when it comes before you in this courtroom.”

McCallum concluded this explanation by saying, “I hope that makes sense.” But Twelve Angry Men demonstrates why it doesn’t.

•••

No. 8: Look at this. [No. 8 closes the knife, flicks it open, and changes the position of the knife so that he can stab over-handed.] Doesn’t it seem like an awkward way to handle a knife?

No. 3: What are you asking me for?

[No. 8 closes the blade and flicks it open, holds it ready to slash underhanded.]

No. 5: Wait a minute! What’s the matter with me? Give me that.

[He reaches out for the knife.]

No. 8: Have you ever seen a knife fight?

No. 5: Yes, I have.

No. 8: In the movies?

No. 5: In my backyard, on my stoop, in the vacant lot across the street, too many of them. Switch knives came with the neighbourhood where I lived. Funny I didn’t think of it before. I guess you try to forget those things. [Flicking the knife open.] Anyone who’s ever used a switch knife would never have stabbed downward. You don’t handle a switch knife that way. You use it underhanded.

Rose’s angry men never solve the murder mystery at the heart of the case, or even come close to doing so. No alternative suspect or motive or means or opportunity ever emerges. Rather, the teleplay charts how each of the twelve learns a little more about the courtroom trial they just watched by talking it over with others.

No. 5 teaches his fellow jurors how to fight with a switch knife (and also about assuming who grew up in a slum). No. 8 schools them about the US constitution’s fifth amendment. No. 3 monologues an unwitting lesson in being a terrible father, No. 7 in being a terrible fact-finder, No. 10, a terrible racist. Several speak of life next to a noisy train line.

After No. 8 uses some back-of-the-envelope maths and the apartment map to demonstrate that a witness downstairs couldn’t have heard or saw what he testified he did, No. 9 speculates that the lonely, elderly witness might have lied to make himself feel important. Asked where he got “that fantastic story,” he explains, “I speak from experience,” prompting a “long pause.” The script’s many silences are central to the drama.

Rose’s point isn’t subtle. Each of these lessons causes at least one juror to switch his vote. But McCallum wasn’t subtle either. None of this learning was to happen in her jury room: “You mustn’t try to undertake your own inquiries or try to re-enact any aspect of the offence or consider any external evidence about the consumption of alcohol or about any matter that might arise during the trial. You must rest exclusively on the evidence you hear in this courtroom.”

Professor Weisselberg would side with her. He rounded out the twelve angry men’s “buffet of misconduct” with No. 5’s “expert testimony about the use of switchblade knives” and No. 8’s calculations about trains and apartments.

But are the chief justice and the professor right? If the juror’s folder had simply contained the juror’s own notes about another juror’s reflections on the “consumption of alcohol,” or detailed a re-enactment of walking through a ministerial suite, would that also have required the trial’s premature end? What if the notes revealed that — as is surely possible — one or more of the Canberra jurors had described their own experiences of rape?

The sanctity of the jury room mostly stops us from considering these questions, but sometimes courts must confront them. In 1999, an English court was asked to judge a movie-like scenario in a mundane case about whether some tyres were stolen or legitimately purchased. The jury wrote the judge a note revealing that one of their number happened to be a “tyre specialist” who knew how to read a tyre’s serial code to determine when it was made. “May we take this into consideration?” they asked.

The question flummoxed their trial judge, who failed to get back to them before they found the accused guilty. But the Court of Appeal overturned that verdict, ruling that the jury should have been told to ignore their fellow juror’s insights. Here’s the judges’ valiant attempt to explain why:

It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background of a particular case to draw upon that specialised knowledge in interpreting the evidence. However that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.

Surely they were tempted to add, “I hope that makes sense.”

•••

No. 4: She did wear glasses. Funny. I never thought of it.

No. 8: Listen, she wasn’t wearing them in bed. That’s for sure. She testified that in the midst of her tossing and turning she rolled over and looked casually out the window. The murder was taking place as she looked out, and the lights went out a split second later. She couldn’t have had time to put on her glasses. Now maybe she honestly thought she saw the boy kill his father. I say that she saw only a blur.

No. 3: How do you know what she saw? Maybe she’s far-sighted.

[He looks around. No one answers.]

No. 3: (loudly) How does he know all these things?

[There is silence.]

No. 8: Does anyone think there still is not a reasonable doubt?

[He looks around the room, then squarely at No. 10. No. 10 looks down and shakes his head no.]

This exchange leaves Rose’s fictitious jury again split 11–1, this time in favour of “not guilty.” But Professor Weisselberg baulked at adding this discussion to the jury’s “buffet of misconduct,” explaining that “the jurors confront a lack of evidence on a key point, but they appropriately treat it as relevant to the existence of reasonable doubt.” Four professors at the same symposium condemned that discussion for a different reason: that the jury’s speculation about the witness’s eyesight was tendentious and didn’t account for her crystal-clear testimony.

When I first learned the topic of the academic article in the Canberra jury room — the prevalence of false allegations of rape — I felt the same way. Absolutely no one knows, or can know, how many or how few rape allegations are false. All we can ever know is that some allegations proceed to investigation, prosecution and, for a few, conviction, and most don’t. But there is no way to know whether most of those allegations are true or not. The rest is just guesswork, and such guesses mean little or nothing during a particular rape trial.

But then I read Chief Justice McCallum’s summary of the juror’s article: “It is a discussion of the unhelpfulness of attempting to quantify the prevalence of false complaints of sexual assault and a deeper, research-based analysis of the reasons for both false complaints and scepticism in the face of true complaints.”

In short, the unidentified article teaches everyone, including jurors, why the issue of prevalence goes nowhere.

After questioning the juror in private, McCallum revealed that they gave “an explanation that the document was not used or relied upon by any juror.” Given the incentives to dissemble and the difficulty of checking, the chief justice responded to such claims about goings-on in the jury room with appropriate scepticism. It sufficed that the academic paper was present in the jury room and “could be deployed to support either side of the central issue in this case.”

Is it true, though, as she declared, that it is “neither possible nor helpful to speculate as to the use to which this information might have been put in the jury room, if any”? I’m sceptical. Here are my guesses about what may have happened behind closed doors.

My first guess is that the prevalence of false rape allegations was indeed discussed in the jury room, probably quite often. I say that because the same issue was raised by almost every person I spoke with about the Canberra case, and most other rape trials as well. Indeed, on the middle weekend of the jury’s deliberations, journalist Louise Milligan complained to the capital’s lawyers that “there are still a significant minority of people who continue to, automatically, assume (against all evidence in international research and tendered to royal commissions) that there are multitudes of false accusers.”

My second guess is that one or more jurors would have nominated a particular fraction of rape allegations as false, according to academic studies. I say this because googling “number of false rape allegations” immediately yields a claim that “a range of studies show approximately 5 per cent of rape allegations are proven false.” This claim is sourced to a “fact sheet” from Victoria Police and the Australian government’s Institute of Family Studies, created as a resource for police and legal practitioners about fifteen “rape myths.” The 5 per cent figure is cited to dispel the “myth” that “the rate of false allegations is high.”

My final speculation: that the juror who brought in the academic article may have done so to help teach their fellow jurors why such figures aren’t reliable enough to be used in a jury room.

•••

[No. 3 looks around at all of them for a long time. They sit silently, waiting for him to speak, and all of them despise him for his stubbornness. Then, suddenly, his face contorts as if he is about to cry, and he slams his fist down on the table.]

No. 3: (thundering) All right!

[No. 3 turns his back on them. There is silence for a moment and then the foreman goes to the door and knocks on it. It opens. The guard looks in and sees them all standing. The guard holds the door for them as they begin slowly to file out. No. 8 waits at the door as the others file past him. Finally he and No. 3 are the only ones left. No. 3 turns around and sees that they are alone. Slowly he moves toward the door. Then he stops at the table. He pulls the switch knife out of the table and walks over with it. He holds it in the approved knife fighter fashion and looks long and hard at No. 8, pointing the knife at his belly. No. 8 stares back. Then No. 3 turns the knife around. No. 8 takes it by the handle. No. 3 exits. No. 8 closes the knife, puts it away and taking a last look around the room, exits, closing the door. The camera moves in close on the littered table in the empty room, and we clearly see a slip of crumpled paper on which are scribbled the words “Not guilty.”]

That’s how Rose’s teleplay ends. The movie opts for a different ending, which you can watch on YouTube. Crucially, in that version, No. 8’s knife is left lying on the jury room table. In real life, it would have been swiftly discovered by a bailiff and would launch an inquiry into juror misconduct. If it was found quickly enough, it might have condemned the accused to a retrial and, perhaps, worse.

An observant journalist afforded a Canberra juror a final word, reporting that they “swore under their breath and put a hand to their head as it was announced they could not continue.” We can all guess that word. But who was their anger directed towards? The sheriff’s officer? The chief justice? Another juror? Themselves? On that question, the jury’s out. •

The post Twelve vexed Canberrans appeared first on Inside Story.

HEDLEY THOMAS: This is episode… of The Teacher’s Pet. Listeners are advised, this podcast contains coarse language and adult themes. This podcast series is brought to you by the Australian.

NEWS PRESENTER: Lynette Dawson was reported missing by her husband, former Newtown Jets Rugby League star, Chris Dawson.

JC: He said, I was going to get a hit man to kill Lyn, and he rang me and said, Lyn’s gone. She isn’t coming back.

JULIE ANDREW: I just want justice, and I’d love her little girls to know she didn’t leave them.

Streamed at length to tens of thousands of viewers last Tuesday via YouTube, Justice Ian Harrison twice dropped big hints about his answer to the mystery. At the eighteen-minute mark he declared himself satisfied that the high school teacher lied when he claimed that Lynette told him she had left him. At the seventy-four-minute mark he took the view that the little girls’ mother didn’t voluntarily leave them.

And yet the judge took nearly four more hours to get to his verdict, for the same reason that Hedley Thomas took an entire podcast series to hammer home his. He had to deal with the string of Dawson’s contemporaries who have come forward to denounce the ex-footballer as a violent creep who routinely abused his wife and was looking for criminals willing to do worse.

At the end of his podcast’s initial run, Thomas told 60 Minutes that he believed his informants’ account of the accused. Dawson “is a despicable person; I think he’s severely narcissistic,” he said. “I think that he’s dangerous.” Tuesday’s twist was that Harrison disagreed, finding that most of those belated testimonies were lies, embellishments or irrelevant, and instead holding — to audible gasps from the public gallery — that Dawson “is a person of prior good character.”

The judge specifically rejected multiple reports that the ex-footballer had struck or choked or threatened his wife, and dismissed the notion, proposed by the prosecution, that he had any tendencies, motivations or animosity towards her that were relevant to the murder trial.

Where does that leave Thomas’s podcast? Before I answer that, I should set out my own take on the journalist’s view that Dawson is a murderer, which I summed up in Inside Story four years ago:

Thomas’s view is widely shared by other journalists who have covered the case, as well as by a bevy of investigators, relatives and pundits and, now, by the millions of listeners to his podcast. While plausible, there is hardly any evidence to support it. Instead, The Teacher’s Pet is largely an attack on Dawson himself.

That “hardly any evidence” I mentioned? That’s exactly what Dawson’s judge relied on to reach his guilty verdict.

But what swayed Harrison wasn’t Chris Dawson’s character; rather, it was his wife Lyn’s. He firmly rejected as gendered and unfair any assumption that women never abandon their children. After all, everyone accepted that a Dawson in-law had done just that decades before Lyn vanished. But he did accept what nearly everyone said about Lyn Dawson: that it was absurd to think that someone with close family and friends who had little money of her own and couldn’t drive — someone who was trying to salvage her failing marriage — would suddenly and permanently “propel herself into a life of anonymity in a figurative state of nakedness.” It was still less likely that she’d keep only her unfaithful husband in the loop, and tersely, as he repeatedly claimed. Hence, Harrison’s findings that Lyn died and Chris lied.

That wasn’t enough to convict, though. The judge accepted that he needed to find a convincing reason why an otherwise non-abusive relationship would end with one spouse killing the other. The reason, of course, was the former schoolgirl, now in her fifties and referred to as JC, who told the court that Dawson had groomed her while teaching at her school, culminating in what Dawson later termed an “affair.”

But even that didn’t suffice to explain a murder, Harrison said, noting that affairs and failed marriages are commonplace. To the judge, it was clear that Dawson had plenty of better ways to leave his wife for JC and no good reason, financial or otherwise, to substitute a teenager for Lyn as his young children’s effective mother.

What killed Lyn, Harrison decided, was her husband’s jealousy. His obsession with the student eventually focused on her relationships with people her age, he said, especially when the teen left him for a beachside holiday a week before his wife disappeared. The upshot: “I am satisfied that the prospect that he would lose JC so distressed, frustrated and ultimately overwhelmed him that, tortured by her absence up north, Mr Dawson resolved to kill his wife.”

And so he did, Harrison found. Then, after faking a phone call to a local pool for cover, Dawson disposed of his wife’s body and phoned JC to tell her: “Lyn’s gone. She isn’t coming back. Come back to Sydney and help me look after the children and be with me.”

Whether an appeal court agrees with that theory remains to be seen. But Harrison’s take vindicates a central theme of Thomas’s podcast: that the former footballer’s day in court should have come decades earlier. Nearly all of the evidence the judge relied on was known to the police by the early nineties, when Dawson’s second marriage — to JC — ended. (In response to the defence’s claim that the story JC gave the police was invented to advance a custody dispute with Dawson, Harrison pointedly observed that JC herself was “only a child” when Lyn vanished.)

If Harrison’s reasoning is right, then so were the two coroners who recommended prosecution in the early 2000s. Seemingly in the wrong were lackadaisical cops during the eighties and nineties, former prosecutor Nicholas Cowdery (who repeatedly refused to bring the murder charge)… and me.

Does that mean the Walkley Foundation’s judges were right to call Hedley Thomas’s podcast “a masterclass in investigative journalism”? Several other judges have firmly said no. “I have listened to the podcast,” wrote the then chief justice of New South Wales, Tom Bathurst, a year ago, “and regard its object was to incite prejudice against [Chris Dawson] in a sensationalist fashion.” This was no idle review by Bathurst, who sat alongside two other judges. The septuagenarian Dawson spent the pandemic asking multiple courts to stop his murder prosecution in its tracks, citing the coldness of the case against him, the incompetence and bias of police who investigated him and, above all, the impact of the podcast.

Thomas was required to hand over most of his notes and interviews to Dawson and the court. This May (after a suppression order was lifted) we learnt how this particular sausage was made. Part of that story was Thomas’s approach, near the start of 2018, to a former solicitor, Rebecca Hazel, who had met JC by chance a decade earlier. In the years since, Hazel had developed a warm friendship with JC and was writing a book, The Schoolgirl, Her Teacher and His Wife. Thomas convinced Hazel that her book and his podcast — which he had started work on a few months earlier — should be published in unison.

Hazel later ruminated to the court that Thomas’s real interest was in her hard-won contacts. Her friendship with JC suffered after the now fifty-four-year-old eventually decided she wanted nothing to do with Thomas’s podcast. Until the deal collapsed, though, Hazel sat in with Thomas’s interviews. She told the courts that his journalistic style — which commenced by telling his interviewees that Dawson was a killer — left her uncomfortable.

It made the judges uncomfortable too, as did the revelation that those words of JC’s that opened each podcast episode — and gave the impression that Dawson told her that he’d hired a hitman who caused Lyn to disappear — were stitched together from two entirely separate remarks. Worse still was Thomas’s convincing of most of Hazel’s contacts — Lyn Dawson’s grieving family, some coronial inquest witnesses and, incredibly, Chris Dawson’s family lawyer and one of the coroners (both of whom were magistrates by then) — to endorse the podcast or even publicly condemn a murder suspect under active investigation.

And then there was the podcast’s attack on then director of public prosecutions Lloyd Babb, who attended Dawson’s school, even though Thomas was well aware that Babb would play no role in the charging decision. Elizabeth Fullerton, the judge who heard the whole pre-trial application, held that the journalist “deliberately raised the false spectre of impropriety” just to put more pressure on the prosecutor assigned to the case. After Thomas spent days on her witness stand, the judge observed that he “gave no indication that he had gained any insight into the damage he has done… and no obvious awakening of his ethical role as a journalist.”

Nor has he since. After Dawson was found guilty, Thomas publicly claimed (citing “senior lawyers” and “former and current police officers”) that his podcast was “a factor in the DPP’s decision to prosecute.” Thomas had said as much to Justice Fullerton, telling her he thought “public pressure” from his podcast and Lyn’s family “might cause the DPP to look at something properly,” a statement she labelled “breathtaking” and  something the prosecutors have always denied (including just last week).

Fullerton found that the brief of evidence the prosecution accepted was actually completed six months before Thomas started working on the podcast and sent to prosecutors a month before its launch. Notably, that brief already included Thomas’s supposedly biggest discovery, a 1982 missing person report supplied by Dawson. The cops had found that previously lost statement in 2015, three years before Thomas’s announcement on his podcast that he had been handed it by an “unlikely source.” (Weeks later, he said he got it from the ombudsman.)

To be sure, it’s all too easy to imagine the prosecutors buckling under the public pressure, and Dawson’s lawyers argued that any such perception was itself poisonous. After all, Thomas claimed throughout his podcast that he had “new evidence” for the police. (Justice Fullerton found that he actually had “little” that the investigators didn’t already have.)

Added to that, a Sydney radio personality had publicly convinced the then police commissioner to order his investigators to speak with Thomas. (Fullerton fretted that the commissioner himself was trying to influence the prosecutors, but opted for the kinder conclusion that he was just fooled by Thomas’s bluster.)

And, of course, the decision to charge Dawson came mere days after the podcast’s Gold Walkley. (It was also weeks after extensive digging at the former matrimonial home, at Thomas’s behest, uncovering nothing. A dirty cardigan previously found there was one of many pieces of evidence ballyhooed on the podcast that went unmentioned in the judge’s reasons.)

But, while it’s unlikely that The Teacher’s Pet prompted a murder trial, neither did it stop one. The courts rejected all of Dawson’s arguments that he couldn’t be properly tried, albeit by a whisker. Nevertheless, Hedley Thomas can clearly claim credit for some things.

For starters, he delayed Dawson’s trial by several years, with the courts ordering a pause until mid 2021 (in the hope that Sydney’s jurors would somehow forget Thomas’s podcast ever existed) and the High Court adding nine more months before it decided not to hear a further appeal from Dawson based on the lower courts’ criticisms of the podcast.

The podcast was also the main reason Dawson’s fate was put in the hands of a judge rather than a jury, after the Supreme Court ruled this would avoid the difficult and potentially impossible task of finding twelve jurors who were untouched by Thomas’s podcast. (Judge Harrison assured all that he had never partaken.)

Dawson’s prosecutors had wanted a jury trial regardless, perhaps worrying — rightly as it turns out — that a judge would dismiss most of the character evidence but also — wrongly as it turns out — that such a judge would then acquit. The result is that, instead of an inscrutable jury pronouncement, we now have detailed reasons — over 700 paragraphs of them — for why Dawson is now in jail.

One thing those reasons reveal (which a jury trial wouldn’t have) is the exact impact the podcast had on the verdict. Four years ago, I wrote, of the podcast’s revelations:

The new evidence about Lyn Dawson’s disappearance consists of decades-delayed revelations from family, neighbours, friends and acquaintances, each apologetic for not saying anything earlier about Chris Dawson’s allegedly odd behaviour or the bruises on his wife’s arm… [N]early all of this new evidence has a common flaw: it was generated not by Thomas’s gumshoeing but by the podcast itself. If [Dawson is] eventually prosecuted, [he] can compellingly argue that the new statements are distortions or fabrications prompted by Thomas’s own lurid claims.

And that’s what Dawson’s barrister, Pauline David, did. It was her only successful argument.

In the middle hours of his reasons, Harrison threw out virtually every witness Thomas uncovered or even spoke with at length — from the man who claimed Dawson asked him to find a hitman, to witnesses who claimed to have seen bruises on Lyn’s arms or throat, or heard her describe being choked or pushed in the mud — unless they had given the same account to the police well before they were interviewed for the podcast. He likewise threw out every defence witness who had seemingly only come forward because of all the publicity.

In short, The Teacher’s Pet stopped both sides from usefully investigating Lyn’s disappearance after the start of 2018. At his trial, Dawson’s lawyer argued that this hindrance, plus the police’s failure to gather key documents, since lost, or to speak with key witnesses, since deceased, and the delays that prevented Dawson doing the same, left him at an unfair disadvantage. Harrison disagreed, noting that his prosecutors were just as affected. Again, it remains to be seen whether Dawson’s appeal judges will agree.

Last May, a new Chris Dawson podcast launched:

JOURNALIST: Happy that finally it’s under way now?

CHRIS DAWSON: Yes, very happy.

HEDLEY THOMAS: My name is Hedley Thomas and I’m a journalist with a particular interest in podcast investigations into the alleged murders of women in Australia. This is the first episode of our new podcast series, The Teacher’s Trial.

This is Hedley Thomas’s fourth entry in the medium. His second and third podcasts followed the formula of his first. The Night Driver, which identified multiple possible suspects in the disappearance of Bathurst’s Janine Vaughan, failed to go viral. He had more success with Shandee’s Story, which reinvestigated a man acquitted of murdering his titular ex in Mackay and, like the ABC’s Trace, prompted an inquiry into the handling of DNA evidence.

His latest effort mimics a different one from Thomas’s newspaper. Yuendumu’s daily recaps of the trial of NT police officer Zachary Rolfe were a landmark in national court reporting, brilliantly letting interested people closely follow a case of enormous public interest, almost the way Americans routinely do. (The pandemic has seen many Australian courts live stream multiple proceedings of public interest, but no criminal trials to date.)

The NT Supreme Court itself took an especially open approach to the Rolfe case, eventually taking the unprecedented, but very welcome, step of publishing the whole trial transcript on its website. Its actions evinced a desire to be as open as possible and a trust in the media’s ability to report on such a sensitive case responsibly. In my view, the mutual trust was rewarded, and achieved a much higher public understanding of Rolfe’s acquittal among supporters and critics of the jury’s decision alike.

If Dawson had faced a jury, it’s doubtful that the NSW courts would have allowed anything similar. Justice Fullerton thundered that, had The Teacher’s Pet been published after the murder charge was laid, “a number of individuals and publishers would inevitably have been liable and likely convicted of a criminal contempt.” She was horrified that the podcast’s final episodes were published after the former teacher’s arrest, and noted that the prosecutors initially asked to vet The Night Driver in case Thomas somehow added to his errors. The Teacher’s Pet was eventually pulled from local sites and the media were banned from even mentioning the podcast’s name until this year.

But the ruling that gave Justice Harrison the jury’s role — itself prompted by The Teacher’s Pet — made The Teacher’s Trial possible. We’re better off for the coverage it provided. I’ve little doubt that reporters Matthew Condon, Claire Harvey and David Murray shared their co-host’s view about Dawson’s guilt, but it was refreshing to hear them refrain from stating it. Instead, their podcast gave detailed but fair summaries — sometimes even with counterarguments — of the prosecution’s evolving arguments and evidence, alongside balanced, expert reflections on the trial process, crime reporting and true crime fandom.

The different tone has any number of possible explanations. Attending every day in the courtroom, the journalists may have picked up the rhythms of a real trial, which — unlike Thomas’s parody — alternates between arguments and responses on each and every piece of evidence. And they would have been well aware that, much as Dawson and his family once recognised, their every word could end up being raised in court.

Dawson was also able to keep Thomas himself out of the courtroom for much of the trial by having prosecutors promise to call him to testify. (Thomas’s testimony turned out to be a very muted reprise of his testimony at the pre-trial hearing. The defence instead relied on a transcript of Thomas’s earlier testimony, and even a couple of podcast episodes, to convince Harrison of the journalist’s impact on the evidence.)

That meant Thomas was reduced to a background role on his own podcast. In an early episode, he responded to some of Justice Fullerton’s findings, expressing bafflement at her critique of how he edited JC’s words and defending the media’s role in exposing official failings. He played a greater role — albeit still somewhat muted — after he testified, and even issued a belated apology of sorts to JC days before Harrison’s verdict.

At Dawson’s murder trial, JC repeatedly objected to any reference to her “relationship” with Dawson — and even her later marriage to him — describing it instead as “grooming.” In response, Thomas said he no longer felt comfortable with having referred to JC as Dawson’s “teenage lover” in his earlier podcast. He invited advocate Nina Funnell onto The Teacher’s Trial to explain how Grace Tame had endured the use of the terms “affair” or “tryst” or (in court) “maintaining a sexual relationship” to describe her years of abuse by her teacher.

But no one — not Thomas, not his co-hosts, not Funnell — mentioned the elephant in the room. How do any of these people think Grace Tame would have felt if someone made a hit podcast about her case and called it The Teacher’s Pet? (Last week, the Australian proudly celebrated Dawson’s conviction by re-releasing all twenty episodes of the 2018 Gold Walkley winner.)

Like George Pell’s case before it, Chris Dawson’s is now on a path to an eventual finale in Australia’s High Court. Much may turn on Ian Harrison’s pre-trial rulings on the admissibility of evidence, which are yet to be published.

In the meantime, let me venture a different prediction: there’ll never be a podcast like The Teacher’s Pet again. This isn’t my hope speaking — though there is that — but rather the courts. Alongside his second Walkley, Thomas can now lay claim to Justice Fullerton’s prize for “the most egregious example of media interference with a criminal trial process which this Court has had to consider.”

When Elizabeth Fullerton spoke these words, she was well aware that they would fall on Thomas’s deaf ears, but she had a different audience in mind. She had pointedly asked the journalist what legal advice he had sought about the podcast, only to be interrupted by a News Ltd lawyer who claimed privilege. She later pondered what would be worse: Thomas choosing to go ahead despite his in-house advice, or because of it. She closed her judgement with advice to prosecutors: that they should be more proactive in seeking injunctions against true crime journalism before — perhaps even well before — relevant charges have been laid. She made it clear that she would now be more inclined to grant such requests.

That may be one last thing Thomas can duly claim credit for: the end of media investigations of cases under consideration by prosecutors in New South Wales, and perhaps other states too. But my hope is for something gentler: that Fullerton’s words are not aimed at all true crime journalism, but only the malign sort that Thomas peddles. There is still, in my view, room for podcasts that, like The Teacher’s Trial, offer a semblance of the justice that the courts afforded Dawson this year. •

Note: To correct an inaccuracy, the bolded words were added to the following sentence after publication: “She was horrified that the podcast’s final episodes were published after the former teacher’s arrest, and noted that the prosecutors initially asked to vet The Night Driver in case Thomas somehow added to his errors.”

The post The podcast’s trial appeared first on Inside Story.

Two years ago, Rolfe was a serving constable based in Darwin. When he was named as the man who shot Kumanjayi Walker in Yuendumu in November 2019, no one had yet heard of Minneapolis police officer Chauvin or the man he killed, George Floyd. That changed six months later when harrowing smartphone footage of Chauvin’s knee on Floyd’s neck became 2020’s second-biggest news story. The reignited Black Lives Matter movement, linking America’s history of enslavement to contemporary cross-racial policing, readily translated to Australia’s history of invasion and Indigenous deaths in custody.

The resemblance between the Chauvin and Rolfe cases is more than skin-deep. Walker and Floyd each died after being arrested; both suffered their injuries on the ground with a police officer on top of them. Chauvin and Rolfe each argued that their use of force was reasonable; both were nevertheless charged with murder four days after the killings.

Each of the police officers was also charged during community unrest, although the American upheaval was far broader. That is why it was Floyd’s death, not Walker’s, that prompted street protests across Australia’s cities about the lack of progress since 1991’s royal commission into Aboriginal deaths in custody. A longstanding grievance — the lack of prosecutions of officials in relation to any of the hundreds of such deaths over the next three decades — had by then been partly remedied by Rolfe’s charge and an unrelated Western Australian prosecution in early 2020.

But Australian justice is quieter than America’s. Across 2020, every aspect of Chauvin’s life, from his marriage to his disciplinary record to his side hustles, was exhaustively pored over by the US media, as was every decision by his lawyers, prosecutors and judge. Rolfe’s case, by contrast, lacked not just an emblematic video but also any public airing of the evidence, thanks partly to Australian concerns about prejudicing juries.

What we do know suggests that Rolfe’s trial will be very different from Chauvin’s. Despite America’s greater penchant for armed confrontations, it was the encounter between Rolfe and Walker that involved weapons. Walker’s tool, a pair of scissors, was prosaic, but he was the first to draw blood, reportedly stabbing Rolfe in the shoulder. Rolfe responded not with his knee but with his gun. The gun and scissors explain why Rolfe’s prosecutors, unlike Chauvin’s, claim that he killed intentionally and why Rolfe’s lawyers, unlike Chauvin’s, claim that he killed defensively.

Australian justice is also slower than America’s. Even though Floyd died six months after Walker, Chauvin was convicted of his murder up to twelve months before Rolfe’s trial is now likely to begin. The delays were initially because of Australia’s different pre-trial processes and the Territory’s smaller justice system, combined with the pandemic’s barriers to travel. But then a new problem arose, in the form of yet-to-be-resolved questions about whether and how the Territory’s criminal law applies to police officers.

“Is Zach Rolfe… Di Fingleton?” That question was voiced soon after Rolfe was charged, but it still lacks a definitive answer.

Two decades ago, Fingleton was Queensland’s first female chief magistrate. Then she fell into a fight that was as trivial as Rolfe and Walker’s was tragic. Irritated by the activism of the Magistrates’ Association, a union of sorts for the judicial officers in her court, she wrote an angry letter saying that she had lost confidence in the body’s vice-president and telling him to show cause why he should keep his position as a coordinating magistrate.

Fatefully, her list of grievances included an affidavit the vice-president had given to a panel of judges reviewing an internal workplace dispute, in which he accused Fingleton and her predecessor of mismanaging transfers of magistrates around Queensland. A cascade of overreactions followed: the vice-president referred Fingleton to the state’s corruption commission, the state’s prosecutors charged her with a newly enacted offence of “retaliation” against a witness, and a jury rejected her defence that the letter was reasonable. Queensland’s Court of Appeal upheld that verdict and ruled that six months in protective custody would suffice to punish her.

The link to Rolfe’s case is a legal issue only belatedly recognised when Fingleton made a last-ditch appeal to the High Court of Australia. The national court was the first to notice that, three years before Fingleton wrote her letter, Queensland’s parliament had granted all of the state’s magistrates immunity from criminal prosecution for everything they did at work. Queensland’s chief prosecutor gamely argued that the immunity should not be read literally, but the High Court unanimously disagreed. With her prison stay long completed and her career ruined, Fingleton was belatedly exonerated.

In contrast to judges like Fingleton, police officers like Rolfe are usually given a much more limited protection against being sued for money for things they do at work. But Rolfe’s lawyers were quick to recognise that this had changed in Rolfe’s case just eight months before Walker was shot. A new law enacted by the NT Legislative Assembly stated that the Territory’s cops are not “criminally liable” for anything they do “in good faith” as part of their functions or powers.

Rolfe’s accusers seem to have taken a while to reckon with this obstacle. They knew that they could argue that Rolfe hadn’t acted defensively — that his first shot was a proportionate response to Walker’s scissors but his second and third, the fatal ones, were not. They also had a response to Rolfe’s claim that he acted “reasonably” — a defence the Territory’s criminal code provides officers who injure people as part of their duties — in the form of an expert report criticising several aspects of Walker’s arrest.

Although Chauvin’s prosecutors readily won on similar arguments in Minnesota, Rolfe’s prosecutors knew they faced a tougher challenge. Floyd was killed as he lay on the ground during an arrest for petty counterfeiting, but Walker was arrested for allegedly attacking police with an axe, and was shot while wielding scissors. In contrast to Floyd’s nine minutes under Chauvin’s knee, just three seconds passed between Rolfe’s lawful first and contentious last shots, leaving little scope to argue that the latter were fired in bad faith.

Rolfe’s prosecutor, Philip Strickland, needed to argue that the Territory’s immunity provision didn’t apply at all to Rolfe’s second and third shots. He relied on court rulings that immunities from criminal prosecution should be read not literally but narrowly, and in a way that sits well with other laws. His eventual stance was that Rolfe’s second and third shots weren’t immune because they came after his failed attempt to arrest Walker and were already covered by other (less generous) defences in the Territory’s criminal law.

The upshot is that the question of Rolfe’s guilt or innocence, like Fingleton’s, turns at least as much on how judges read a complex statute as on how jurors decide on the facts. The good news in Rolfe’s case is that the problem was recognised before — rather than long after — his trial. The bad news is that the attempt to resolve it came too close to his trial to do it justice.

“Is Zach Rolfe… John Elliott?” That question was voiced just days before Rolfe’s jury was to be chosen, but will not be answered for months.

Two generations ago, Elliott embarked on a series of corporate acquisitions that made him a major figure in Australia, including as national president of the Liberal Party and president of the Carlton Football Club. But his mid-eighties “white knight” actions against a hostile takeover of BHP prompted an investigation by the National Crime Authority and, eventually, mid-nineties fraud charges.

High-profile white-collar prosecutions are always difficult, particularly when they rest on evidence turned up by a novel body like the NCA. And so it proved in Elliott’s case. Trial judge Frank Vincent spent months resolving multiple procedural and statutory disputes before he ultimately concluded that the NCA had overstepped its bounds and most of the evidence it gathered could not be used against Elliott.

Elliott’s prosecutors immediately raced to the High Court, arguing that Vincent’s ruling was wrong and an injustice was imminent, but the national court said that it wouldn’t hear a challenge ahead of Elliott’s jury trial. Australian law, the judges explained, leaves legal questions in the hands of whichever judge is in charge of the trial and only allows those rulings to be reviewed after the trial is done and dusted. Any other system, they explained, would slow down the trial system too much, to everyone’s detriment.

Twenty-five years later, the task of resolving the question of Rolfe’s partial immunity from prosecution was in the hands of a very experienced trial judge, Dean Mildren. Following standard practice, he planned to resolve legal questions about Rolfe’s prosecution in a closed session just before the trial was due to start. But possibly realising how crucial the immunity question was, he took advantage of a pandemic-induced delay in the trial to send the dispute to a bench of all five Territory judges.

A week before Rolfe’s delayed hearing was scheduled to start, the five judges ruled: Rolfe’s jury must be told to acquit him of all charges if he fired his final two shots “in good faith.” The disappointed Strickland immediately asked for the trial to be further delayed to allow him to seek a review in the High Court, but Mildren refused, citing the High Court’s stance in Elliott’s case.

Mildren and Strickland would have been all too aware of how the Elliott case ultimately played out in the 1990s. After the High Court refused to intervene before Elliott’s trial, his prosecution collapsed without a jury being sworn in. The wounded prosecutors then sought a belated review of Vincent’s rulings on the NCA and won on every point, in both Victoria’s appeal court and the High Court. But Elliott could no longer be tried for fraud because he had been acquitted, albeit (now) with an asterisk.

Strickland faced a very narrow path to successfully prosecuting Constable Rolfe for Walker’s death. He would have to convince the High Court to abandon its earlier stance on pre-trial reviews. He also needed to convince the justices that five Territory judges’ unanimous view of Rolfe’s immunity was both important and doubtful enough to be worth the national court’s time. Then he would have to convince the same court to rule that Rolfe’s second and third shots were not covered by the “good faith” immunity. And, after all that, he needed to convince Rolfe’s jury that the police officer shot Walker both excessively and unreasonably.

But first he faced a more immediate problem: it was Thursday, and Rolfe’s jury would be selected the following Monday.

So, “Is Zach Rolfe… Derek Chauvin?” This question still hasn’t been — and won’t ever be — voiced in court, but Justice Jacqueline Gleeson came close last month.

Two working days before Rolfe’s murder trial was due to kick off, Mildren and Strickland discussed some contingencies that would arise if the High Court decided to get involved. Everyone accepted that the national court probably couldn’t settle whether Rolfe’s second and third shots were subject to immunity in time for the trial to go ahead as planned. But Mildren figured there was time for the national court to at least to decide whether or not it would take on the case.

Such decisions only require two justices and can be made after thirty or so minutes of argument, or even without a hearing. While the High Court usually takes months to schedule a hearing, it can act much faster if a case is urgent enough. During 1998’s waterfront dispute, it responded to a hasty application on a Thursday by Patrick Stevedores to pause a pro-union ruling made by the Federal Court by ordering a hearing before all seven judges the following Monday. So, Mildren pencilled in Tuesday for a possible late start to Rolfe’s trial if the High Court speedily decided it wouldn’t get involved.

It wasn’t to be. When Strickland and Rolfe’s counsel zoomed in the next morning, the duty judge, Justice Gleeson, told them that the High Court would take three weeks to decide whether it would even take on Rolfe’s case. After both lawyers politely said that they would clear their diaries for a thirty-minute hearing in the middle of the next month, Gleeson asked them whether Rolfe’s murder trial should go on as scheduled anyway.

The High Court’s newest judge took up her role in March this year after the retirement of Virginia Bell, a former defence lawyer and experienced criminal appeal judge. Gleeson’s appointment from the NSW registry of the Federal Court preserved the geographical and gender balance of the court, but left the national court without any criminal law specialists for the first time in its twelve-decade history. Her apparent notion that a murder trial could run for weeks before the High Court decides whether to get involved may be an example of that gap in the national court’s expertise.

The lawyers before Gleeson seemed baffled by her approach. Rolfe’s lawyer, the national bar’s most starred figure, Bret Walker, allowed that lawyers running a murder trial might be “distracted” by an imminent High Court intervention. Strickland was less polite: a mid-trial hearing would be “inutile” — pointless — because the trial itself would already have been following the Territory ruling. He mused that maybe the court could act a bit quicker, but Gleeson ignored the hint, pronounced herself disturbed by Strickland’s stance and told him to put it in writing. He did. Either the trial or the High Court hearing could happen as scheduled, but not both.

That left Gleeson with a choice to make and she spent the weekend mulling it over. The following Monday, she ruled that, despite many changes to the legal landscape since the 1990s, the law on pre-trial High Court rulings set out in Elliott’s case hadn’t changed. But the facts had:

The injustice of a possible acquittal of a police officer for murder of a young man in the context of the attempted execution of an arrest warrant, on the basis of an incorrect ruling on a question of law, is of a different order of magnitude from an acquittal on a charge of white-collar crime, however egregious.

In short, John Elliott wasn’t Derek Chauvin. Or, at least, Rolfe’s trial must wait until the High Court dispels at least one, and maybe all, of the elephants in Mildren’s courtroom.

So, who is Zach Rolfe? This morning, three weeks after Rolfe’s trial was supposed to start, the High Court finally decided that Zach Rolfe is… George Pell! That is, it decided, as it did in the last high-profile criminal case to reach the national court, that the very decision on whether or not to take on the case at all is one that needs the attention of all seven of its judges.

Today’s decision means  that the national court will rule on the law, in particular whether or not Rolfe is John Elliott or Di Fingleton or neither, before a jury decides — if it ever does — whether Rolfe is Derek Chauvin. Rolfe, and everyone else, must likely wait until next year to learn each of these answers, including whether or not the last one will come with an asterisk. •

The post The elephants in the courtroom appeared first on Inside Story.

All went well. Too well. While the canniest speculators usually do only slightly better than chance when it comes to currency predictions over the short term, Kamay’s account won sixteen of its twenty-one bets on how the dollar would shift. A year after the friends’ deal was struck — and thanks to Pepperstone’s letting them lever small bets into much larger gains (or losses) — they were just a little short of their shared goal of a $200,000 profit, a 20,000 per cent return on their $1000 investment.

That’s the moment where Australia’s latest true crime podcast, The Sure Thing, kicks off. On the morning of 9 May 2014, the pair woke to police dogs barking outside their homes in Melbourne and Canberra. Another year down the track, their shared scheme had landed each of them with a two-year prison sentence for insider trading. And that was only the start of each man’s problems with the criminal justice system.

The secret to the pair’s success was Kamay’s partner in crime, twenty-four-year-old Christopher Hill, who had landed a job analysing labour figures for the Australian Bureau of Statistics. At 11.30am on many Thursdays, the Bureau announces new economic data, such as jobs figures and building approvals. Almost immediately, those announcements prompt Australia’s currency speculators to buy or sell in unison, depending on the difference between the expected data and what was announced.

The former is something any competent foreign exchange worker, such as Kamay, can work out. The latter is something only a Bureau worker could know before the figures are released. Hill, of course, was leaking the figures to Kamay. As a federal government employee, he earned four convictions for abuse of public office, adding fifteen months to his sentence for insider trading.

This banal scheme is anything but a sure thing for a true crime podcast. The pair’s motivations, as detailed by a psychologist interviewed on The Sure Thing, are hardly the stuff of psychodrama. Kamay had suffered early career disappointments and faced the Pavlovian pressures of the NAB trading floor. Hill had recently broken up with his girlfriend and found Canberra dull.

Their crimes were also mundane in their implementation. Hill snuck his data out of the Bureau on a scrap of paper. Kamay furtively traded on his smartphone in a toilet cubicle at his bank. Nor were they criminal masterminds. They both bought burner phones in others’ names (earning them convictions, but no extra jail time, for identity theft). But they sometimes forgot to use them. Anyway, each had spoken to others about their plans at one point or another. Kamay sometimes traded as “The Wolf of Wall Street.”

Worst of all for the podcasters, the crime lacked a compelling victim. When Kamay and Hill pointed out at their sentencing that their trading was barely a drop in the ocean of a currency market in which some $160 billion is exchanged every day, the judge responded, “While it may not be possible to point to any particular loss made by an identifiable victim, insider trading is not a victimless crime. Apart from harm to the market and public confidence, in this case there were counter-parties to each of your trades; they themselves had to enter into other transactions to try to cover their own positions.”

The “market” and nameless traders are obviously no match for the victims of homicide, assault or fraud that are the usual subject of true crime podcasts. Which is presumably why podcast host Angus Grigg and producer Lap Phan plumped for a different, more sympathetic victim: Kamay’s partner in crime, Chris Hill.

Christopher Hill’s alleged victimhood is mostly a factor of his partner in crime’s advanced villainy. On his arrest, Hill learnt that Lukas Kamay had broken their agreement from the get-go. The same day he opened an account for their joint bets at Pepperstone, he opened a second one where he made larger bets without Hill’s knowledge.

Not only did Kamay cut his partner out of the profits from his second account, but his actions also exposed Hill to a much greater risk of detection. To ensure that no one noticed their run of wins, the pair had agreed to limit the amount, consistency and frequency of their shared bets. But Kamay ditched these protections in his second account, running up nearly $1 million from twelve bets over five months and losing just a single bet.

Kamay’s actions supplied The Sure Thing not only with a villain but also with its hero. Pepperstone’s head of sales, Joel Murphy, started keeping a close eye on a new client who had suddenly become the firm’s top trader in a single quarter. Two months later, after Kamay correctly called Australia’s worst jobless figures in a decade, making half a million in minutes, Murphy turned private investigator.

Murphy’s detective tools were simple: social media (to learn that one of Kamay’s friends worked in Canberra), Google (to learn that the friend had worked at some point at the Australian Bureau of Statistics) and his phone (to pose as a student researcher and suss out Hill’s current role).

Less than a week after Kamay’s first big win, Pepperstone reported its top trader to the corporate regulator, ASIC. The next day, so did another broker, AxiCorp, where Kamay had recently opened a third account, making $600,000 off just three trades, mostly from the same February figures.

The podcast’s middle episodes follow the eleven weeks of the resulting official investigation. Operation Leith was a joint effort by the federal police and the corporate regulator — snooping on bank accounts, tapping phones and planting bugs — using up to eighty officers and the full array of federal police powers.

Operation Leith’s officers were even the first to learn that Kamay was planning to buy one of the renovated, furnished apartments from the seventh season of The Block, and The Sure Thing includes an interview with Alisa and Lysandra Fraser, the creeped-out ex-cops who grimly honoured a promise to be Kamay’s VIP guests when he celebrated his purchase of their South Melbourne flat.

The series also features interviews with three of Operation Leith’s officers: a cop (who corralled the agencies into a joint investigation), a member of the federal assets confiscation squad (who followed, and eventually seized, Kamay and Hill’s profits) and an ASIC officer (whose star turn was finding a burner phone that was tossed out of the window during the arrests).

But The Sure Thing doesn’t cover an investigative detail reported by the Daily Telegraph the following year: Pepperstone boss Owen Kerr’s “first instinct was to close down [Kamay’s] account but once he reported it to the Australian Federal Police they urged him to keep the account open.” That is, the national police and corporate regulator decided to let Kamay continue his trades.

It’s easy to see why. The pair’s use of paper and burner phones was enough to stop the snoops learning what information was being leaked. Worse still, there was nothing to see in the pair’s bank accounts: Kamay wasn’t transferring a share of wins to Hill electronically. (It turned out that Kamay was paying just a fraction of their joint winnings, in cash instalments.)

So Kamay’s wins continued. His largest — $2.5 million in a single bet, covering the likely price of the Frasers’ apartment — occurred on day twenty of the investigation, when labour force figures rebounded from their February low.

Eventually, the police placed cameras in the pair’s workplaces and, when building approvals and retail trade figures were announced on consecutive days in early April, at last discovered Hill’s scrap of paper and Kamay’s toilet break. In fact, Kamay lost both his bets that week. That may be because he was starting to fret that the police were onto him. Kerr told the Tele: “He was worried the money was not moving quickly enough — unaware that the delay was because the team at Pepperstone Financial were contacting the AFP for permission to let the trades go ahead.”

The trading companies were right to be nervous. After all, they were knowingly participating in — and still presumably providing leverage for — Kamay and Hill’s suspected insider trading. The Australian Bureau of Statistics likewise continued to give their possibly rogue employee access to sensitive market data. And ASIC and AFP officials stood by as Kamay bid on The Block using likely illicit funds and put down a quarter of a million deposit (later earning him a conviction for money laundering).

Sacking Hill, locking Kamay’s account or stopping the auction bid would have alerted the pair before Operation Leith could prove their crimes. But were there other options? Could Pepperstone and AxiCorp have simply pretended to make Kamay’s trades, with the federal police crediting his account accordingly (while poised to stop any big withdrawals)? Police investigating other hard-to-prove crimes often do something similar, for example letting detected drug importations continue using something harmless, such as baking soda.

Instead, Kamay continued his trades for seventy-eight days after he was reported to the regulator. These included his second huge win on day fifty-five of the investigation, relying on Hill’s access to the Bureau’s construction data to earn $2 million.

When the story of Kamay and Hill’s crimes eventually broke, the ubiquitous hook was that theirs was Australia’s “biggest insider trading case.” But none of those reports, including The Sure Thing, pointed out that the lion’s share of Kamay’s trades — 80 per cent of his $7.5 million haul — occurred under the gaze of Australia’s corporate and police watchdogs.

This is no entrapment story. The investigators’ decisions don’t detract from Kamay’s villainy. Indeed, the oblivious insider trader opened a fourth account — his most lucrative — on the same day Operation Leith began, using it to make eight trades totalling $6 million. Those trades were rightly regarded by his sentencing judge as his most heinous, because by then he was “trading with absolute confidence in the value of the inside information.” That is, as an earlier judge put it, insider trading is at its worst when winning is “a sure thing.” Kamay received five years’ imprisonment, two-thirds of his total prison sentence, for those eight trades alone.

But the fact that investigators let those sure bets happen complicates the official line that the battle against insider trading is fought to protect the crime’s actual and metaphorical victims. Police investigating other crimes typically prioritise preventing harm to others over catching criminals, and if they don’t the courts take a very dim view. In 2008, the NSW Crime Commission allowed six kilograms of imported cocaine to be sold to Sydneysiders while investigators built a case against a Mr Big. The High Court ruled that the commission itself broke the law by allowing that cocaine to endanger end users’ health.

But the evident concern of Operation Leith’s investigators was to ensure that Kamay and Hill were eventually punished, publicly and harshly. If they had stopped Hill’s leaks or Kamay’s trades early, the pair may never have been tried, let alone convicted. If they had asked Pepperstone and AxiCorp to fake the trades, the blaze of headlines would have been about the less stunning crime of “attempted” insider trading.

That may be small comfort to the innocent investors on the other side of Kamay’s $7 million of winning trades during the course of Operation Leith. In March 2016, the Australian Shareholders’ Association complained that the way white-collar criminal law is enforced “is not always appropriate as the monies go into a confiscated assets account rather than to directly compensate victims.” Of course, some other lucky investors netted the windfall of Kamay’s $1 million in deliberate losses during this same period.

Kamay, of course, couldn’t keep his winnings. Instead, the money became part of Australia’s Confiscated Assets Fund, which swelled from $88 million in 2014 to $96 million in 2015. The largest beneficiary of that fund, which is used to support law enforcement initiatives, is the Australian Federal Police. In May 2016, federal justice minister Michael Keenan approved a grant of $14 million from the fund to expand the AFP’s Fraud and Anti-Corruption centre, a collaboration of a dozen federal agencies including ASIC, the very body that investigated Kamay and Hill.

For how long would Operation Leith’s investigators have let Kamay rack up wins on Hill’s inside information before they finally pulled the plug? We don’t know, because Hill himself blew the pair’s cover on Anzac Day weekend when he forgot his burner phone on a visit to Melbourne. Investigators listened to the pair arrange a meeting on Hill’s regular phone, followed them as they bought new burners at a suburban shopping centre and listened in via a bug in Kamay’s BMW Roadster as Hill was handed his next bag of cash.

Even though they now had all the evidence they needed, the police waited for two more weeks until the next labour force figures were released. This time, Kamay made his worst bet, deliberately losing (and unwittingly depriving the police’s confiscation fund of) nearly $800,000. The next morning, the pair’s homes were raided.

Coincidentally, The Sure Thing’s hero lost his job that same day, made redundant after Pepperstone reviewed its operations. Joel Murphy later sued the firm for unfair dismissal and unpaid bonuses in the Federal Court, with his lawyer noting the lack of whistleblower protections for employees who inform ASIC about client activity. The workplace dispute seemingly ended after a judge ordered the firm and Murphy into mediation.

The Sure Thing chose not to detail these sour notes. Instead, Angus Grigg and Lap Phan opted for a human-scale tale of greed, betrayal, discovery and redemption. The backstory, Grigg explains, started when Clinton Free, a management academic who studies white-collar criminals, introduced him to Hill in 2019. The trio navigated pandemic restrictions until Hill could tell his side of the story.

If the producers were hoping that Hill would publicly vent at his partner in crime, they were disappointed. Throughout the podcast, Hill repeatedly rejects Grigg’s suggestion that Kamay “betrayed” him. Hill doesn’t explain why, but any attempt to deflect or apportion responsibility would have been a bad look. All of Kamay’s trades, whether pursuant to the pair’s joint deal or to his much larger personal shenanigans, were the result of Hill’s leaks. Had Hill simply stopped the flow in early 2014 — when, he told the podcast, he started to get cold feet — neither of them would have been caught.

Grigg and Phan found some interpersonal drama during the 2015 sentencing hearing, when each of the friends said that the insider trading scheme was the other’s idea. Justice Elizabeth Hollingworth accepted Hill’s account, unconvincingly citing Kamay’s deeper knowledge of the currency market. Her ruling may just reflect Kamay’s minimal credibility given his double-dealing. Six years later, the podcast proved her right, locating someone who had heard Kamay float the same idea years earlier.

Hill, once again, denies Grigg’s suggestion that Kamay’s testimony was a fresh betrayal. He was, in any case, fortunate that Kamay sorted his shared deals with Hill and his personal side-deals into separate accounts. That allowed the police and courts to readily distinguish the pair’s villainy. Only Hill had abused his workplace’s trust, but Kamay’s sentence was nearly twice his partner’s.

The sole bright spot for Kamay in his sentencing came as a result of the government’s hardline attitude to confiscating the proceeds of his crimes. Prosecutors insisted that Kamay’s “pecuniary penalty” should equal his total wins, leaving him to wear the $1 million he deliberately lost. He was forced to sell all of his assets, including ones acquired before he started his insider trading, to settle his debt with the police, a disproportionate penalty that Justice Hollingworth took account of in fixing his prison term.

And yet, as Professor Free emphasises at the end of the podcast’s initial run, the pair’s financial and personal punishments would last much longer than any prison sentence. ASIC permanently banned Kamay from providing financial services. Hill explained that, thanks to the awkward gap in his resume after (and lack of reference from) his stint at the Australian Bureau of Statistics, he was unable to find any white-collar work after his release in 2017.

Free asks whether this additional punishment is just, arguing that white-collar criminals, like others, are surely capable of redemption. But I think this is the wrong question. Employers’ refusal to hire known insider traders isn’t a matter of justice, but rather commercial risk management. The better question to ask is whether, given the combined effect of assets confiscation and commercial anathema, the much-ballyhooed tough application of the criminal law is necessary.

The Sure Thing tackles this issue obliquely in its closing episodes, with the obligatory bleak prison saga (where Kamay takes turns as the hero and then the target of other criminals) eventually giving way to the pair’s staggered stints at a minimum-security facility near Beechworth, where inmates spend their time working in the local community. The podcast interviews the president of a local football club, who uses the prisoners, including Kamay, to make up the numbers in his team. The obvious question is what purpose is served by keeping such non-dangerous prisoners (white-collar or not) in Victoria’s swelling prisons.

In her sentencing remarks, Justice Hollingworth intoned the official view that “deterrence” — especially of others — “has a central role to play in white-collar offending” and that “it is self-evident that the longer the sentence, the harder the bite.” That oft-repeated mantra is shared by virtually no criminologists, who instead think that most offending is done by people who don’t expect to get caught at all. Notably, the doubling of insider trading maximum sentences in 2010 seemingly did nothing to deter Hill and Kamay.

I love what The Sure Thing has done with the podcast medium. While true crime podcasts have covered white-collar crime before, I’m not aware of any that has focused so humanely on a white-collar criminal. Indeed, few focus humanely on any criminals.

But this focus on individual offenders and investigators comes at the cost of dealing with the many official decisions that surrounded Kamay’s and Hill’s crimes. These include decisions made during the investigation (such as letting their crimes continue for nearly three months) and decisions made afterward (about punishing them and dealing with their illicit profits), as well as other official decisions made before their crimes were committed.

The most surprising of all omissions, to me, is any examination of the choices made by the Australian Bureau of Statistics. One choice was to declare itself a victim of Kamay’s and (especially) Hill’s crimes. At the sentencing hearing, federal prosecutor Robert Bromwich offered just one victim impact statement, but it wasn’t from the market, a losing currency trader or even the three people (a housemate, a job applicant and a bank customer) whose identities Hill and Kamay stole.

As Justice Hollingworth told Kamay and Hill in court, drawing on the Bureau’s victim impact statement, “Confidentiality of the information provided to, and held by, the ABS is critical to its proper functioning. Conduct such as yours can be very damaging to an agency like the ABS, particularly to its public reputation. Your actions have caused the ABS to spend considerable time and money reviewing the integrity of its computer systems, and undertaking further staff training. The ABS also arranged counselling for those members of staff who were having trouble dealing with the nature and seriousness of your betrayal of trust.”

She didn’t mention the statement again. Perhaps she wasn’t impressed.

I sure wasn’t. The Bureau has no more cause to bemoan Hill’s “betrayal of trust” than Hill has about Kamay’s. After all, it was the Bureau that decided to give Hill advance access to sensitive market information, not just after it learnt of his possible misuse of it, but also before that, when it knew little about him. Worse, even though his main job was to analyse labour force figures, and sometimes building data, Hill was nevertheless given inadequately supervised access to two other sets of market-sensitive data.

Indeed, a review published two months after the arrests found that, despite a supposedly strict “need to know” policy, Bureau employees’ access to the market-sensitive data had been expanding for years, a product of slackening standards and the exigencies of managing a large, spread-out, multitasking and often shifting workforce. Some 340 Bureau staff had electronic access to at least some market-sensitive figures. And open-plan offices meant that still more Bureau employees could readily see data left visible on a desk or screen. On one view, Hill’s crimes (and Kamay’s disregard of the pair’s precautions) did the public a significant favour by revealing the potential gap between the Bureau’s promise of confidentiality and the reality.

I’m not sure the public’s concerns would be assuaged by the auditor’s recommendations. Belinda Gibson, who had recently stood down as ASIC’s deputy director responsible for insider trading, said that the Bureau’s “need to know” lists should be reviewed (and, indeed, viewed) and that employees’ access to sensitive data should be watched, both retrospectively and in future. But she also repeatedly said that trusted employees (like Hill) can always find a way to misuse any data they can access.

Her solution: amplifying the Bureau’s self-described “strong culture.” She recommended that the organisation add modules about not divulging market-sensitive data to its existing internal messaging, contracts and training, something it seemingly had not done previously. And she also said that Bureau employees should declare their financial situation yearly and refrain from short-term trading. None of these measures would have made the slightest difference to Hill. Neither, of course, did the criminal law, which the Bureau cited as its principal means of preventing employee misconduct.

It seems to me that some other, more onerous options could plausibly prevent crimes like Hill’s and Kamay’s in future. One approach could be to separate the key data between different groups in a way that makes it less usable by any one individual. Another, taking a leaf from Hollywood, is to issue workers with multiple sets of data for analysis, some fictitious, with almost no employees knowing whether the data they are working on is the correct set. The risk of misuse would still exist, but it would be more confined, in terms of people and time, and, crucially, much less of a sure thing. Measures like this are expensive, of course, but the alternatives are grim.

In its closing moments, The Sure Thing nods to the futility at the heart of its story, when podcast hero Joel Murphy returns in a new role. “I probably felt a tinge of guilt,” he says, after learning of Kamay’s betrayal of Hill and Hill’s current employment troubles. The podcast’s denouement, a redemption of sorts for him and Hill, is when Murphy offers Hill a job in the trading company he now manages.

The kicker is Hill’s new role: risk management, which includes analysing whether clients are engaging in insider trading. Hill knows what to look for all too well: a series of big wins on improbable bets by someone with a traceable connection to the right public servant. The problem is that Hill knew all of that in 2013, which is why he and Kamay agreed to take precautions. Are there other public servants, in the Bureau or other roles that have access to market-sensitive information, who know the same, and are successfully managing the risk of detection? I reckon it’s a sure thing. •

The post The insiders appeared first on Inside Story.

Kate’s friends, and maybe Porter’s too, testify about what they saw that night and before and after, and perhaps what they were told by Kate or Porter in later days, weeks or even years. There may be further evidence, as yet unknown to the public, that greatly supports the prosecution or defence case. Or maybe not, which means it is largely one word against another. Either way, the question of Porter’s guilt is decided by a jury of twelve, applying the criminal standard of proof, beyond reasonable doubt.

This trial-that-can’t-happen casts a long shadow over the recent debate about how to respond to news that, before her death, Kate told multiple people that Porter raped her when they were both teens. But there are several reasons to doubt that a criminal trial would have settled that debate.

One reason is small but startling: the media couldn’t have reported any part of the prosecution. That isn’t because a judge would temporarily limit any publicity of the evidence and verdict to avoid prejudice, as famously happened with George Pell’s trials in late 2018. Rather, it’s because the law in New South Wales permanently bars the media from naming anyone, including adults, in connection with criminal prosecutions about events that happened when they were children.

Because Porter was seventeen years old at the time of the alleged rapes, the media could only describe him as “a man in his fifties who cannot be named for legal reasons.” For the media to identify his name or even occupation in connection with the charges, either he would have to consent or a judge would have to opt to strip him of his anonymity after a conviction. Of course — as with Pell’s trials in late 2018 and early 2019, and with the allegations against Porter in recent weeks — nothing the court or parliament could say would stop the truth from circulating on social media.

The Pell example points to the second, deeper reason why a criminal trial wouldn’t settle this debate. A guilty verdict would remove Porter’s liberty, just as Pell’s removed his, but it wouldn’t end the discussion about his guilt, both within the legal system and without. The Pell debate and his appeals continued apace over the entire period that Kate was revealing memories of abuse to her friends. She typed a lengthy document summarising those memories a month after Pell lost his first appeal over a furious dissent.

By the time Kate walked into Kings Cross police station, Pell’s fate was in the hands of the High Court of Australia. Its unanimous decision to free him in April last year (turning on unique features of the prosecution’s case against Pell) was said by Kate’s friends to have weighed on her. Pell’s acquittal no more settled the question of his guilt or innocence than his guilty verdict did. Neither would the debate over Porter’s fitness for office stop if he emerged from his prosecution with his presumption of innocence and parliamentary seat intact.

Alas, there is a third reason, the saddest and most telling, why rape charges against Porter would probably never have resolved whether or not Kate’s accusation was true: the prosecution would have put unbearable pressure on her. Every one of the friends, counsellors, journalists and police she spoke with have described Kate’s anguish about whether to pursue Porter’s prosecution. Many have disclosed the burdens of her lifelong experience of mental illness and the division between her friends and family about the reliability of her memories. She would have been told that, had a prosecution proceeded, there was a real possibility that Porter’s team could obtain and read her personal diaries and counselling records.

Devastatingly, we all now know of her twin acts on 23 and 24 June last year. On the Tuesday, she emailed NSW police to say that she would participate no further, citing health and personal reasons. On the Wednesday, she died in circumstances that are presently before a South Australian coroner. These events are and will likely remain unfathomable, but they cast a shadow of their own over both Porter and the criminal justice system.

It is surely one of these factors that NSW police commissioner Mick Fuller had in mind when he told a Sydney radio program last week, “The matter itself, even with the alleged victim, probably would’ve struggled to get before a court. These are challenging matters, particularly when they’re historic.” There is nothing uncommon about this, especially for sexual crimes. The criminal justice system often fails to settle the truth of disputed allegations. Indeed, doing so isn’t even its main purpose, which is to decide if enough evidence and public interest exists to warrant a court’s deciding whether or not to give the accused an official label (such as “convicted” or “acquitted”) and to impose a criminal sanction. The situation currently facing Porter — the system having stopped considering those options at the initial stage — is by far the most common criminal justice outcome for rape allegations.

What is uncommon in this case is that the complainant’s allegation against Porter has nevertheless been aired publicly, widely and in some detail by the media. What is even less common is that the accused rapist is not only a well-known public figure but a senior member of the national government. And what is perhaps unique in this case is that the revelation of the allegations coincided with a call from Kate’s supporters to find another official way to settle the ensuing debate.

Picture an inquiry that may well happen. An assigned decision-maker reviews all the available evidence gathered to accuse a public figure of serious misconduct. That figure offers the decision-maker his blanket denial of the accusations, and points out that his lawyer can’t cross-examine their source. After mulling over the conflicting accounts, the decision-maker issues her finding about whether the evidence satisfies the civil standard of proof: the balance of probabilities.

When Kate’s typed statement was forwarded to several MPs last month, an anonymous covering letter pointed out that an inquiry of this kind had happened in the first half of last year. (Indeed, in an odd coincidence, both the inquiry and its findings were revealed the day before Kate informed police that she would no longer be part of the investigation of Porter.) On Monday 22 June 2020, chief justice Susan Kiefel announced that an “independent investigation” she had commissioned had found that six of the High Court’s associates had been harassed by former justice Dyson Heydon, adding that she and her fellow judges were “ashamed that this could have happened at the High Court of Australia.” Journalists and Kate’s supporters say that a similar inquiry should be held into the allegations against Porter, arguing that the model was backed not only by the national court but also by the Australian public, who accepted the inquiry’s judgement on the judge.

I think that those commentators have seriously misunderstood that landmark event. The chief justice didn’t endorse, much less devise, the procedure she commissioned to investigate alleged harassment inside the national courthouse; instead, she did what every employer is legally obliged to do in the face of such allegations, lest they fail in their legal duties to their employees (and risk being sued for doing so). No matter how heartfelt, the same is true of her court’s public admission of judicial shame.

More importantly, Vivienne Thom’s inquiry — one that Heydon refused to participate in, claiming it was unfair in various ways — isn’t what convinced the public of his guilt. Rather, they were persuaded by the simple fact that Heydon faced six similar allegations of harassment, a classic result of the #MeToo movement. Had there been only one allegation against him, it is far from clear that Thom’s findings would have settled the issue of whether Heydon was a menace.

Indeed, it is unlikely that she would have made any finding at all. To see why, consider how, in 1938, a much earlier High Court dealt with a dispute about what happened after a late-night dance when a man accompanied a woman to her dormitory. In that case, a Victorian judge received secondhand evidence that one of them had later said the two had sex, but also heard the other’s furious in-court denials of any such thing. The judge declared that, while he “might well consider that the probabilities were in favour of” Clarice Briginshaw’s having committed adultery that night, he was “certainly not satisfied beyond reasonable doubt.”

That case proceeded to the High Court, which unanimously found that the judge had applied the wrong standard of proof, because this wasn’t a criminal case but rather a civil one (a divorce petition by Clarice’s estranged husband). Nevertheless, although Justice Owen Dixon said that the couple’s reported statements and circumstances “filled me with much misgiving,” neither he nor any of the other justices were willing to declare, merely because of the “probabilities,” that sex had occurred.

Much has changed since Frederick Briginshaw’s divorce petition in terms of attitudes and suppositions about sex, but the High Court’s judgement in Briginshaw v Briginshaw remains the uncontested authority on how Australia’s civil courts, workplace inquiries and professional discipline hearings must handle disputes about serious misconduct. Those tribunals cannot approach such claims the way they would resolve disputes about a customer’s fall in a supermarket, or how someone caught a dust disease, or what a contract said, simply by working out which of two options was the most likely.

To find a serious wrong, said Justice George Rich, “the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.” “[T]he importance and gravity of the question make it impossible,” added Justice Dixon, “to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact.”

The judges didn’t say what would suffice, noting the myriad ways serious wrongs can be proved. But they did say what wouldn’t be enough on its own: two contrasting, plausible accounts of what happened where the decision-maker could not see or hear the accuser’s response to questioning about the accusation.

The upshot is that the most ballyhooed option to resolve the allegations against Porter would most likely produce no findings either way about what happened in 1988, at least if all the decision-maker had to go on were Kate’s various statements about the rape, in writing or to others. (Ominously for the ABC, the same is true for Porter’s just-announced suit, where, depending on the complexities of defamation law, the broadcaster may have to prove Porter was a rapist or face a significant cost.) Unsurprisingly, some commentators have since canvassed very different ways to respond to Kate’s accusation.

Justin Gleeson, the federal solicitor-general until 2016, initially proposed that his successor be asked: “Is the material sufficiently credible to justify an executive inquiry?” He added, improbably, that this “circuit-breaker” question could be answered in forty-eight hours. Just forty-eight hours later, Gleeson himself dropped that idea without explanation, presumably partly because assessing a rape accuser’s credibility is a strange task to give to a government lawyer (whose main roles are to advise and advocate for the government on constitutional and administrative law). The greater problem is that lowering the standard of proof cuts both ways. Any inquiry would surely find that both Kate’s and Porter’s accounts of events in 1988 were entirely credible ones, settling nothing at all.

Gleeson and others have since argued that an inquiry, rather than considering what happened in 1988, should solely examine what should happen now, given Porter’s simultaneous status as accused rapist and senior member of the government. Criminal law barrister Greg Barns proposes that an inquiry “headed by a retired Federal or High Court judge, conducted in private, with findings released in public, should examine the question of whether the nature of the allegations made against Mr Porter is such that, despite the presumption of innocence… the real possibility of an erosion of trust and confidence” means he should not remain in his current position. I suspect that — like most people proposing bespoke solutions to the Porter dilemma — Barns already knows which way this circuit would break. No former judge would ever declare that any single, untested allegation, no matter how serious, renders someone unsuitable for any public office, no matter how senior.

That is why, from the outset, the recent debate has partly centred on claims that unproven criminal allegations can have real consequences for some people’s employment: for example, in professional sports, in the legal profession, and in unsupervised work with others’ children. But these comparisons demonstrate the opposite of what their proponents intend, because throughout Australia a person is only stopped from working in each of these contexts if allegations are current or quite recent (typically indicating a serious risk to others) or a criminal charge has been filed (indicating the serious concerns of police and prosecutors). No precedent exists in Australia for an accusation of even the most serious juvenile conduct being enough, on its own, to trigger any sort of official action, decades later, by anyone. Anyone, that is, apart from the police.

Now, picture an investigation that never happened. After receiving Kate’s written complaint, police officers who are highly experienced with allegations of historical sexual crimes work through her statement, identifying potential angles for further inquiry. Then they systematically contact potential witnesses, notably the many people who were present at the intervarsity debating tournament in Sydney. They look for those who may have seen key events she recalls, including Porter and her together entering the Women’s College, her room and a shared bathroom, as well as other events in the days and months before and after that may cast light on the accuracy of her memories.

At the same time, the officers speak to the pair’s acquaintances over the decades to determine if either has said anything about those events and to collect other relevant details. They also gather whatever relevant written documents still exist, including records of the tournament and college, and other writing by or about Porter and Kate, the latter likely including highly sensitive diaries and medical records. Eventually, the police speak to Porter himself, giving him the opportunity to give his account and respond to Kate’s, but also uncovering new lines of inquiry his account suggests, wittingly or otherwise.

Or not. No one should fault the NSW police for doing little or none of this in the period between Kate’s visit to Kings Cross police station on 27 February 2020 and her death four months later. The police would have been all too aware of the risk Kate took in initiating an investigation and the dangers such inquiries posed to her health. Although it is not their sole concern, modern police rightly treat a complainant’s wellbeing as the paramount consideration, at least where the allegations raise no present risk of future offending by the accused.

The police also faced understandable difficulties during the pandemic that coincided with the investigation’s commencement, compounded by Kate’s own health problems (which she explained would complicate any communication she had with them). They had every reason to move slowly to maximise Kate’s agency and health, and little reason to hurry, so long as the accusations remained unknown to Porter.

Multiple politicians and journalists took exactly that approach when Kate told them of her memories, focusing on her wellbeing and decision-making rather than contacting the authorities or inquiring further themselves. Alas, such an approach is less likely in future, at least for accusations against federal politicians, thanks to an unfortunate recent intervention by the Australian Federal Police commissioner, Reece Kershaw. After he received a copy of Kate’s complaint in February this year, Kershaw wrote to all federal MPs emphasising their duty to report allegations or complaints they receive of sexual assault or other criminal conduct, including ones made by victims themselves, “without delay” and “irrespective of jurisdiction.” Although Kershaw advises that MPs should take “account of the rights and privacy of the victim,” it also states that “alternative actions by individuals” may amount to obstructing or perverting justice. This places any future politician who is contacted in confidence by a future Kate in an agonising (and, in my view, wholly inappropriate) quandary.

Tragically, that quandary became moot in Kate’s case nine months ago. The death of Porter’s accuser meant that the NSW police were no longer able to protect her welfare or agency, including by refraining from investigative steps that could have endangered her health. At the same time, it meant they could no longer contemplate a prosecution that rested largely or exclusively on her testimony, the usual and most likely way to obtain a conviction for such an allegation.

Contrary to some journalists’ assumptions, though, an accuser’s death doesn’t bar a future prosecution, which could still be founded on other, rarer, sorts of evidence, such as admissions from the accused, a pattern of similar behaviour or a strong circumstantial case from surrounding events and evidence that imply a rape occurred. (The Pell case itself is a unique example, as he was convicted in relation to two alleged victims, one of whom died years before the trial without speaking to the police, based on the eyewitness testimony of the other alleged victim.) Modern evidence law facilitates such prosecutions by relaxing the hearsay rule in the case of deceased witnesses, so long as a court is satisfied that the witness’s out-of-court statements (said or written in the presence of others) were highly likely to be reliable.

In short, Kate’s death made a comprehensive police investigation, previously a vital way to test her allegations before any charges were laid, the sole remaining path to deciding whether charges could be laid in relation to her accusations. And yet, the NSW police have made it clear that they have not investigated the case since her death. In response to questions from journalists (and, indirectly, the accused himself) as to why they never spoke to Porter about the allegations, they explained: “From a legal and investigative standpoint, due diligence is required, particularly in historical sexual assault allegations, to ensure that the matter is comprehensively investigated and all available evidence is obtained, reviewed, and corroborated where possible. Investigative strategies need to be considered as part of this best practice model. Providing a version to a suspect prior to obtaining a formal statement would have an impact on any future investigative strategies.”

This staged approach is a sensible one. One strategy police sometimes use to investigate historical allegations is to have the complainant phone the accused to attempt to elicit admissions of what happened, which is then recorded for later use. (Such a “pretext call” is unlikely to have been useful or appropriate to investigate Porter.)

The police then explained that Porter was never approached in Kate’s case, because she had never made a formal statement to them. “It is current standard practice in sexual assault investigative training,” they said, “that upon all of the available information being obtained (in statement form) that the formal allegation can and should be provided to the person of interest as per the procedural fairness principles for investigators, to be able to determine prima facie and whether charging of the person is appropriate.”

Again, this practice made perfect sense when Kate first approached police, particularly as it seemed she had not yet decided to go further. But the police have never cogently explained why this “current standard practice” should continue to apply even after such a statement is no longer possible, indeed to the point of barring the police from carrying out what they describe as the “best practice model” of a comprehensive investigation.

While much discussed, the lack of a “sworn” statement — what Commissioner Fuller has called an “admissible statement in court with a jurat” — from Kate is a red herring. The only relevant sworn oath Kate could have made was in a court. The statement she typed last September — which police say they only received after her death — doesn’t become more or less significant or admissible because it wasn’t sworn by her. Indeed, nothing she wrote in recent years could plausibly be admissible in a criminal prosecution of Porter.

Rather, the significance of Kate’s statement is in the investigative leads it provides. The anonymous person who forwarded that statement to federal MPs understood this, and included a covering letter pointing out other investigative avenues that could be pursued in addition to the statement. Strangely, the AFP’s Commissioner Kershaw opted not to pass that letter on to NSW police. The NSW police commissioner has since acknowledged that a media report by Kate’s ex-boyfriend, indicating that he recalled relevant conversations with both Kate and Porter, was something his officers could potentially follow up.

Ideally, the police would have obtained Kate’s written statement, if possible, in the aftermath of her death and conducted a full investigation then. Any concerns they had during that period — about the family’s welfare, the coronial inquiry to come and the unlikelihood of any prosecution ensuing — would have been rendered largely moot on 26 February 2021, the first anniversary of Kate’s initial call to the police, when Louise Milligan revealed Kate’s accusations to the public and to Porter.

While a police investigation carried out in the public eye would inevitably be very different from (and perhaps inferior to) a regular investigation, it would be far superior to the media investigation we have all recently been witnessing. It would also, in my view, be much more effective and apt than the ad hoc executive inquiry Kate’s supporters have called for, one whose powers and processes would always be contentious. If the police nevertheless fail to investigate, the best of the remaining alternatives would be the main process that governments use to fully investigate serious matters that the police can’t or won’t: a royal commission.

Christian Porter will most likely forever remain an accused rapist, no more or less, thanks to Kate’s tragic death and Milligan’s revelation of her accusation. Proceedings are currently on foot examining both of these things, but neither will necessarily examine what happened in 1988, much less do so effectively or appropriately. Rather, the best way to dispel the shadows cast by the trial-that-can’t-happen based on Kate’s testimony and the inquiry-that-probably-won’t-happen into Kate’s statement is an investigation-that-should-have-happened into all of the other evidence that could cast light, either way, on Kate’s accusation. •

The publication of this article was supported by a grant from the Judith Neilson Institute for Journalism and Ideas.

The post Christian Porter’s shadow appeared first on Inside Story.

She walked into the room and he gave her a big hug, telling her how well she looked. After some discussion about how she had been coping he asked her to come and sit on his knee. She was very shocked. After a period of silence, he repeated the request in a “very authoritarian, quite demanding” tone. Ultimately she complied and sat on his knee. He put his hand on her leg, rubbing it up and down the inside of her leg and touching her crotch. She “just froze.” She was afraid of him and of what he might do to her. She told him that she “did not want to do this.” He did not respond. The incident lasted for “probably five minutes.” After this she got up and walked towards the door. He told her that he would need to see her again.

Dyson Heydon will likely recall this scene from his time on the High Court of Australia, and so might some of his associates. The sixty-three-year-old woman’s account of her first one-on-one consultation for post-natal depression thirty-three years earlier opened her psychiatrist’s 2009 trial in Perth. The following year, the national court granted Alan Stubley a last chance appeal against his conviction for multiple sexual offences against two of his patients. When he sat on the retired doctor’s case, Heydon was nearing the end of his decade on Australia’s top court.

Shortly after he was appointed to the High Court in 2003, according to the Sydney Morning Herald this week, Heydon “slid his hand” between the thighs of a “current judge” at a law dinner. She told him to “get your fucking hands off me.” Not long after he left the court in 2013, he attended a professional dinner where — according to the then president of the ACT law society — “his hands became very busy under the table, on my lap, feeling up the side of my leg.” He later asked her to discuss law in an empty room, where he hugged her and tried to kiss her. When she told him she was “definitely not interested,” he said “it would be such a wonderful encounter.”

These and other claims about a former High Court judge raise many questions. One is about his role in cases like Stubley’s. If the allegations against Heydon are true, then a serial predator of young women was asked to rule on an appeal by an alleged, if more extreme, serial predator of young women. We cannot know what thoughts crossed his mind as he read the testimony of Stubley’s patients. But we can read how he judged the psychiatrist. The answer is: harshly. Indeed, prosecutorially.

“To many people,” Heydon wrote in his judgement, the claim that a psychiatrist was preying on his patients “would seem so serious and inherently unlikely as to be startling, outlandish, and far-fetched to the point of being bizarre.” But “perhaps not all,” he allowed, citing those “afflicted with the cynicism characteristic of hard-bitten and experienced criminal lawyers.” Six years after he wrote those words, that same affliction became a global pandemic of sorts, fuelled by revelations of serial abuse by Harvey Weinstein, Bill Cosby and other celebrities, and thousands of other #metoo stories.

Heydon himself is now the subject of several such stories. The Sydney Morning Herald quotes a “leading female member of the NSW Bar” whose first thought when #metoo broke was, “Boy, Dyson Heydon should be really worried.” She goes on to describe Heydon inviting her to his chambers after she appeared before him at the High Court and, on a later occasion, kissing her while blocking her from leaving his room.

But in the less cynical times of Stubley’s appeal, Heydon was somewhat ahead of the public on whether to believe an allegation of professional predation. He bemoaned that such an allegation’s seeming bizarreness meant that a prosecution based on it alone “may easily falter, no matter how truthful,” even when — as Stubley’s patient testified — the allegation was of years of persistent indecent assaults and rapes perpetrated in a psychiatrist’s office, her sobbing throughout. That’s why, he said, such claims of predation shouldn’t be heard on their own.

Quoting Western Australia’s evidence law statute, he declared that “fair-minded people would think that that the public interest” would favour hearing “similar testimony about the tendency of the accused.” For example, he explained, Stubley’s trial featured charges arising from how he treated two of his patients, who each testified to repeated sex with the psychiatrist as part of their “treatment.” The second patient told the jury that Stubley had rubbed her breasts when she spoke with him about her stress at the breakdown of her marriage, and at a later consultation told her “I feel rejected” in a “very, very menacing tone.” “This is the most important relationship you will ever have,” he told her after they had sex on the floor of his office. A joint trial featuring both complainants, Heydon observed, “would be a prosecution supported by evidence of much greater probative value.”

The question the High Court had to decide in 2011 was whether the criminal justice system should go further to bolster prosecutions of alleged predators. Heydon, one of the world’s leading evidence scholars, ruled that it should. He endorsed Justice Narelle Johnson’s decision to allow several other patients of Stubley to testify at his trial in order to establish a pattern of predation. Each described sex on the floor of his office during emotional tumult: one had reached out to Stubley for an emotional but not sexual connection, another felt “embarrassed on his behalf” as he undressed in front of her, a third had unwanted sex out of fear that she would lose her job as his receptionist. Heydon ruled that “a prosecution supported by the evidence of three other women giving similar testimony about the tendency of the accused to engage in acts of sexual intimacy with patients during consultations” would be “of so high a degree of probative value” that “the public interest would have priority over the risk of an unfair trial.”

It is startling that Heydon used his judicial pulpit a decade ago to write something of a road map to his current predicament. Like Stubley, Weinstein and Cosby in some respects, he now faces allegations of predation that are greatly strengthened by many similar allegations. What initially started as two former associates contacting the chief justice of Australia in March last year became public this week after an inquiry she commissioned concluded that “six former Court staff members who were Judges’ Associates were harassed by the former Justice.”

Given this week’s revelations, Heydon’s ruling on Stubley’s appeal is a bit like Weinstein greenlighting a movie about a predatory producer or Cosby doing a very special episode on methaqualones. One possible explanation may, of course, be that Heydon is innocent of the allegations made against him. But there are other possibilities: he may have been somehow oblivious to his own conduct or supremely confident in his invulnerability, or maybe just intellectually devoted to his stance on evidence law. Each of these explanations, in different ways, suggests that Heydon may be his own worst enemy.

Regardless, he was alone on the High Court in 2011. The other four judges who heard Stubley’s case — Bill Gummow (who wrote a classic legal text that Heydon would later contribute to), Susan Crennan, Susan Kiefel and Virginia Bell — all allowed the psychiatrist’s appeal.

Rejecting a different rape appeal five years earlier, Dyson Heydon penned a brief judgement agreeing with the majority, but adding his rejection of the accused’s criticisms of his then trial counsel. “She was dealt very bad cards,” he wrote. “She played them very well. Her methods were the reverse of incompetent.”

Mark Trowell, Alan Stubley’s barrister, was also dealt very bad cards. He told his client’s jurors: “No matter how big a rat he was in having sex with his patients, you can’t just convict him because he was unethical and immoral.” Stubley later testified that sex was considered to be part of psychotherapy in the 1970s. Indeed, his second patient announced that she had researched the field before seeing him and told him that she wasn’t seeking “bed therapy.” Stubley seemingly ignored her request.

Trowell also proved to be the reverse of incompetent. His strategy, while failing at the trial, succeeded in the High Court. Had Stubley denied having sex with his patients — Gummow, Crennan, Kiefel and Bell held — then his jury could have heard the stories of other patients who said they had sex with him. But his admission that he had sex with all of them — consensually, he said — meant that their stories added nothing to the prosecution case. “Proof of the appellant’s tendency to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him,” the four judges wrote, “could not rationally affect the likelihood that JG or CL” — the two patients — “did not consent to sexual contact on any occasion charged in the indictment.”

These judges’ words, in sharp contrast to Heydon’s own, could be music to the ears of any barrister asked to defend the former judge if he is prosecuted for crimes against some of the people whose accounts have emerged this week. If Heydon admits doing the particular acts he is accused of — say, touching a woman’s thighs or hugging or kissing her — but says that the woman consented to those acts, then the majority’s ruling on Stubley’s appeal would bar the prosecution from using others’ accounts of his misconduct, no matter how similar or non-consensual or well-established, to convict him. In short, the majority’s judgement takes the “too” out of #metoo.

I am long on the record as saying that the High Court’s approach to such cases is seriously wrong. Six years previously, the national court had unanimously allowed the appeal of a different alleged predator, a teenager convicted of the rapes or attempted rapes of six different teenagers, by ruling that he should have been tried separately for each. Why? Because he had testified that each of the six consented to sex with him, only to later accuse him of rape. (Remarkably, the sixth instance occurred while he was on bail on charges of raping the other five.) The national court ruled that, as a result, their testimony could not establish any pattern about the accused, but only cast light on their own, separate, decisions not to consent to sex with him.

After that case, I — and others — put much the same legal argument that Heydon put six years later: that six claims of predatory behaviour are much more powerful than one, given the particular unlikelihood of one person facing a series of false claims of rape after consensual sex. Indeed, as Queensland’s director of public prosecutions had argued before the national court, the six complainants’ accounts of the teenager’s actions showed a distinct, escalating pattern of deception before and violence during the alleged rapes, culminating in threatening the last two teenagers with a baseball bat and a chain.

Tragically, two months after the High Court’s judgement was published, the teenager committed two rapes that the judge who sentenced him regarded as “very similar” to the last of the earlier allegations. To no one’s surprise — other than the High Court’s, I suppose — he pleaded guilty to those two rapes, and was convicted of the earlier attempted rape committed while on bail on charges of the five earlier ones.

Heydon was one of the five judges in that earlier case. Because the court issued just one joint judgement from all five judges, and because it hides who actually writes such judgements, we don’t know whether it was authored by Heydon himself, or by one of Murray Gleeson, Bill Gummow, Ken Hayne or Michael Kirby. Regardless, they all signed on to the following remarkable explanation of why the common features of the six complainants’ accounts leant nothing to the prosecution’s case because they were “entirely unremarkable”:

That a male teenager might seek sexual activity with girls about his own age with most of whom he was acquainted, and seek it consensually in the first instance, is not particularly probative. Nor is the appellant’s desire for oral sex, his approaches to the complainants on social occasions and after some of them had ingested alcohol or other drugs, his engineering of opportunities for them to be alone with him, and the different degrees of violence he employed in some instances. His recklessness in persisting with this conduct near other people who might be attracted by vocal protests is also unremarkable and not uncommon.

But Heydon, seemingly alone, had second thoughts. During Stubley’s appeal hearing, he commented that the earlier judgement “is one of the most criticised decisions of the High Court of all time” and “is not a sort of granite mountain that is sharp and immovable.”

Around the time of Stubley’s appeal, Heydon also changed how he wrote judgements. He started dissenting as often as not and, more dramatically, stopped writing with his fellow judges altogether. In a 2013 interview, he explained that he had belatedly recognised that his colleagues on the bench wrote poorly and that the High Court’s difficult case load merited his individual attention. The previous year, he had given a much-discussed lecture at Oxford criticising the push for joint judgements in senior courts, labelling the pressure towards judicial collegiality — something Chief Justice Susan Kiefel later made her hallmark — “the enemy within.” His post-retirement return to Oxford as a visiting fellow was cut short, the Sydney Morning Herald reports, amid more allegations of predatory conduct, this time with law students.

Alan Stubley’s receptionist, the youngest of his patients to testify at his trial, described how, on her twenty-first birthday, the man she called Dr Stubley — who by then was also her psychiatrist, treating her for anxiety and depression — suddenly approached her and kissed her on the lips, telling her she could now do whatever she wanted. The High Court majority’s summary of her testimony continues:

In a consultation which took place after her twenty-first birthday, Stubley hugged her and undressed her, saying that he knew that she would be beautiful. He had sexual intercourse with her on the floor of the consulting room. She had not wanted to have sexual intercourse with him. During intercourse she had a “frozen grin” on her face. After intercourse he washed himself in the basin. She did not resist because she did not want to jeopardise her employment. She also believed that his conduct was part of his treatment of her as a patient. About a week after this episode she confronted him and told him that there was not to be any further sexual contact between them. Stubley agreed. No further sexual contact took place between the two.

Such terse summaries of the evidence are typical of the High Court and often contrast starkly with the details provided in the judgements of other courts that rule on the same cases. For example, the Western Australian Court of Appeal set out what the now fifty-three-year-old told the jury was behind her then “frozen grin”:

I had a boyfriend, a new relationship, and I had told him about it because it was a patient of his and also I just thought this couldn’t be happening because I didn’t know how to tell him that I felt revolting and he was my boss and I didn’t think I would get another job and he was like a guru or a figure I was greatly intimidated by and basically all of these things were swirling through my mind, just “How do I get out of this? How do I get out of this?”

The High Court’s reasons omit not only such human details, but also the broader narrative. A judgement from Western Australia’s Supreme Court reveals that, when she commenced working as Stubley’s receptionist, aged nineteen, she watched female patients emerge from his office on multiple occasions “looking untidy with crumpled clothes and their hair messed up.” She testified that, when she quit her job six months after confronting her psychiatrist, “she had been dramatically affected by the sexual intercourse to the point she requested admittance to the mental health ward at Sir Charles Gairdner Hospital.”

But few people read court judgements. After Stubley’s trial — where, Stubley’s partner told the media, “the gallery was full of patients supporting him” — Justice Narelle Johnson said that she was “staggered” that Stubley’s supporters had written to her saying that there had been “a scandalous miscarriage of justice,” observing that the letters’ authors had seemingly “not heard the evidence.” The partner of one of the two complainants later said that she was left “distraught” by the High Court’s ruling. Lacking legal training, these lay observers would have had difficulty reading the national court’s terse analysis of evidence law. But that would have posed no barrier to a different group, known as judge’s associates, who have a particular interest in the High Court’s handing of professional predators.

Following its initial finding that Dyson Heydon had sexually harassed six judges’ associates, the High Court is now reportedly contacting over one hundred other people who held such roles during Heydon’s tenure on the national court. Visitors to the court’s public hearings can see those associates seated behind each judge, sometimes rising in unison to supply law reports whenever a barrister mentions a precedent. Behind the scenes, they engage in variety of roles including legal research and proofreading the judges’ reasons. The positions — typically two per judge, and lasting for a year or two — are highly prized by future lawyers for the insight they offer into courtroom life and, in many cases, the close interaction with particular judges, which can lead to mentorship or friendship down the track. A new graduate’s selection by a high-profile judge signals a prediction — often self-fulfilling — of a stellar legal career.

We are likely to hear far more about life as an associate in coming days, weeks and months. Chief Justice Susan Kiefel’s statement setting out the current justices’ shame “that this could have happened at the High Court of Australia,” also reveals a number of new workplace safety measures, including clarifying that associates’ obligations of confidentiality “relate only to the work of the court.” Every day of this past week has yielded fresh behind-the-scene revelations, such as the claims that Heydon tried to kiss one of his associates in 2005 and that that information speedily moved through the court to its then chief, Murray Gleeson.

The then associates of Ken Hayne and Virginia Bell would have spent part of the second quarter of 2010 researching Stubley’s trial and initial appeal as a prelude to the two judges granting the ex-psychiatrist “special leave” to appeal his conviction at a brief hearing in the middle of that year. Many of that year’s associates would have travelled with the court’s seven justices to Perth that October to hear a set of Western Australian cases including Stubley’s appeal. Five associates would have been present when — after a two-hour hearing — Bill Gummow announced on the spot that “[a]t least a majority of the Court” had allowed the appeal. And some of those would have spent part of the next six months researching and proofreading the majority’s joint reasons for making that order, as well as Heydon’s lone reasons for dissenting.

They would have read the majority’s declaration that the then law in 1970s Western Australia “recognised that consent to intercourse may be hesitant, reluctant, grudging or tearful but that if the complainant consciously permitted it… the act was not rape.” That none of the three additional patients, including the receptionist, “gave evidence that the appellant had engaged in threatening or intimidating conduct inducing her consent to sexual activity.” That the prosecution’s submission to the contrary “conflates proof of psychological dominance with proof of absence of consent.”

They would have read the majority’s observation about the second patient — who testified that Stubley had once told her that “you seem to be very angry. Sometimes when people are very angry, they need to be put in hospital for a couple of weeks,” and who complained about his conduct to a medical board in 1981, the same year she ceased treatment with him — that “the prosecution did not seek to lead evidence of [her] reasons for not making a prompt complaint.” They would have read the four judges’ conclusion that “the differing accounts of the sexual abuse experienced by” the other three patients “were not capable of bearing rationally on the assessment of” the two rape complainants’ reasons “for continuing to undergo treatment and for not complaining.”

They would have read the joint words of Bill Gummow, Susan Crennan, Susan Kiefel and Virginia Bell that “manipulating a person into sexual intercourse by exploiting that person’s known psychological vulnerability would not, without more, vitiate their consent” and that “the cynical exploitation of [Stubley’s] position of power was not inconsistent with him holding an honest belief that the victims of his attentions were consenting to the conduct.” And they would have read the justices’ conclusion that “absent any feature of the evidence tending to demonstrate [Stubley’s] awareness that his manipulation of his patients had not succeeded in procuring their assent to his predatory advances, proof of the imbalance of power did not rationally bear on the issues raised by” the defence of honest belief.

And, at the same time, Heydon’s then associates would have been proofreading his excoriation of the majority’s reasoning.

In 2007, the High Court dismissed an appeal by a teenager who had been tricked by the two police officers into making what they promised was an off-the-record confession to a home invasion. Murray Gleeson and Dyson Heydon observed that “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Gleeson, who was chief justice for the first five years of Heydon’s tenure, was allegedly told via another judge and his associate, of Heydon’s harassment of his own associate in 2005. He has largely refused to comment on the High Court’s inquiry into sexual harassment, aside from a cryptic text telling a journalist that “the accounts relayed to you are false.”

Heydon, who declined to be interviewed during the High Court’s inquiry, has stated, via his lawyers, that “any allegation of predatory behaviour or breaches of the law is categorically denied by our client.” He added that, in the case of the associates’ complaints, “if any conduct of his has caused offence, that result was inadvertent and unintended, and he apologises for any offence caused.” As for the other allegations now being detailed in the media, “our client denies emphatically any allegation of sexual harassment or any offence.” The latter is presumably a reference to a crime, rather than an emotion.

What are we to make of such a generalised denial? Ask Heydon. He spent much of his 2011 dissent dissecting Alan Stubley’s combined ethical mea culpa and criminal denial, as delivered by Mark Trowell to the jurors:

Dr Stubley will admit that he was sexually intimate with four of these women… but he says that his sexual intimacy on each occasion was consensual; that is, with the consent of each one of those females, that there was no force or coercion or intimidation or manipulation of any one of those females, and maybe he accepts that he may be morally and ethically wrong for what he did; he’s not guilty of the criminal allegations that have been brought against him and will explain the circumstances in which the sexual intimacy took place.

“A common forensic tactic,” Heydon wrote, “seeks to prevent damning evidence being called, or to water down the evidence which is called, by narrowing the issues in the case.”

Rejecting the majority’s view that Trowell has admitted the various “acts of intimacy” Stubley had been accused of, Heydon pointed out how Trowell “declined to pin his concessions about acts of sexual intimacy to the periods or occasions identified by the complainants.” Indeed, Stubley went on to cast doubt on a number of the specific acts the complainants described, saying that allegations such as sex with a heavily pregnant woman “was not the sort of thing I tend to do” and “not specifically” recalling many specific sexual acts he was charged with. The broad problem, wrote Heydon, is that “it is very difficult to fillet out the details of the relevant events which go only to sexual intercourse from those which are relevant to consent as well.”

There is similarly no way to tell whether Heydon, through his lawyers, is denying that the acts alleged against him happened at all, or is suggesting that they were consensual. In Stubley’s trial, Trowell blamed the passage of time for his client’s refusal to be pinned to specifics:

Can I say this: after thirty to thirty-five years he’s not able to tick a box like a questionnaire to relate to each particular act. I mean, who could? Who could after thirty to thirty-five years? Who could accurately describe in detail things that happened so long ago? Apparently, the complainants can. Let’s see about that.

Heydon thought that “unfortunately phrased”: “perhaps the reason the ‘females’ could accurately describe what happened long ago, while the accused could not, was that the events complained of were unique in their experience, but merely quotidian and banal in his.”

If Trowell winced at that back then, so might Heydon’s lawyers today. But in 2011, Heydon was unsympathetic to the plight of an alleged predator:

It may be thought harsh in the case of offences which allegedly took place as long ago as the offences charged in this case that the desire of an accused to make an admission should be thwarted because he is unable to be specific in consequence of the lapse of time. In some ways it is harsh; in other ways not. The lapse of time brought advantages and disadvantages to the accused. One of the advantages was that it would be easier for the jury to have a reasonable doubt about the evidence of the complainants. One of the disadvantages was that it made it harder for him to make an admission…

He quoted the greatest of modern evidence scholars, Henry Wigmore, who complained that “a colourless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence; furthermore, a judicial admission may be cleverly made with grudging limitations or evasions or insinuations (especially in criminal cases).” Better, Heydon said, “to let the jury hear the whole unbowdlerised story.”

The High Court’s judgement in Stubley’s case revealed two possible futures to any women at the time contemplating going public with their stories of alleged professional predation. In one future, each woman’s account would be read only for its deviation from their alleged assailant’s mea culpa, and potentially on its own. In the other, decision-makers would see the “whole unbowdlerised story” of the alleged perpetrator’s pattern of behaviour. Those thinking of exposing Heydon’s own alleged harassment and crimes would have found more encouragement in his dissenting words than those of the four justices in the majority, including the current chief justice. The lesson of #metoo is how we can find our enemies in surprising places. Likewise our allies.

Assuming we find them at all. After allowing Stubley’s appeal, the High Court nevertheless ordered his retrial, observing that the psychiatrist faced allegations of “serious offences” and the two complainants’ evidence “was in each case capable of establishing the prosecution case.” Justice Johnson had previously sentenced him to ten years in prison, telling him: “It is unfortunate that no one paid attention to the complaints of these women. You would not have been able to continue your work until retirement.” He had served two years of that sentence when the majority’s judgement freed him.

Two months after their words were published, the eighty-three-year-old suffered a blood clot and underwent surgery. The onset of mild dementia prompted a consultant psychiatrist to find that Stubley would be unable to follow his retrial or the prosecution case, or to defend himself. Western Australia’s Supreme Court ruled that the former psychiatrist was unfit to stand trial and ordered his release into a nursing home, finding that he posed no further danger to the community. As far as I can tell, Alan Stubley died last year, aged ninety. It was not a good end for the retired psychiatrist, but likely better than the one chosen by Dyson Heydon. •

The post The enemy within appeared first on Inside Story.

How the national court would finish the case was another matter. It could have ended with a whimper, with Pell’s name appearing in an online list of special leave applications with the word “dismissed” next to it. Or it could have ended with a bang, with Australia’s top judges deciding the case for themselves. At 10am last Tuesday, the latter happened, when seven justices swept away earlier decisions by twelve jurors and three judges.

When news of Pell’s guilty verdict broke fourteen months ago, many observers studiously ignored the High Court’s looming role. His critics relished calling Australia’s top Catholic a “convicted paedophile.” Victoria’s premier chastised a former prime minister for visiting him in prison. But Pell’s accuser always knew better: “Everything is overshadowed by the forthcoming appeal.”

Something of the reverse happened last Tuesday, when the High Court revealed what most who attended its Canberra hearing last month already knew: Australia’s cardinal would again be the nation’s biggest story. As Pell was driven from his locked-down prison into a locked-down city, his supporters declared he had been found “innocent.” “Let us #PrayTogether today,” tweeted the Pope for Lent, before garbling a prayer “for all those persons who suffer due to an unjust sentence because of someone had it in for them.” The premier refused to “comment” on the decision, telling “every” victim, “I believe you.”

But Pell’s guilt or innocence on the charges against him has never changed and never will. He did not become less guilty last Tuesday. Nor did he become less innocent on that other Tuesday in 2018. He has been either guilty or innocent of the rape of two children for the past twenty-three years and will remain so forever. No court ruling — or punditry, or politics — can alter what actually happened in St Patrick’s Cathedral during six short — or agonisingly long — minutes after a Sunday mass in mid December 1996.

The proceedings against Pell have always been about how the courts — and the rest of us — respond to the claim made against him. For the courts, the sole issue is whether Pell’s prosecutors were able to prove beyond reasonable doubt what happened in 1996. In 2018, the jury unanimously decided that the prosecution had proved what happened, which is why Pell spent most of 2019 in Barwon Prison. Last Tuesday, the High Court unanimously decided that it hadn’t, which is why Pell will spend most of 2020 in Sydney.

The High Court’s key ruling — that there is a “significant possibility” that Pell is innocent of the charges against him — isn’t a conclusion that he is innocent; it is a conclusion that the prosecution failed to prove that he isn’t. That finding, when made by a jury or a final court of appeal, ends the prosecution and restores to him the presumption of innocence in future court cases about those allegations, such as civil proceedings or — importantly for commentators — defamation actions. But that’s all that it does.

Outside the courts, the High Court’s ruling is only important to the question of Pell’s true guilt or innocence to the extent that it persuades people one way or the other. People aren’t bound by the presumption of innocence, or the rules of evidence, or respect for the courts, or even by fairness, unless they want to be. Those who are so inclined can believe that the jury’s take on proof reflected the truth, or that the High Court’s did, or they can believe all complaints of sexual abuse, or all ones about Pell, or none of them. Or they can look at the evidence for themselves and reason about it however they want. At least they could, if most of it was publicly available.

The criminal justice system’s finding that Pell was guilty of child sexual abuse lasted 482¾ days, a fact that prompts many questions. Why didn’t the jury’s verdict stand? What does his acquittal mean for his accuser? And what of the earlier decisions in this case? The High Court’s reasons leave the most important question about his case unanswered.

To understand why George Pell is now free, start with the day before his jury was sent out to deliberate. On that Wednesday seventeen months ago, Ruth Shann, one of Pell’s two barristers, asked permission to play a nineteen-minute animation during the defence’s closing address. Derisively known as the “pac-man video,” it showed the floorplan of St Patrick’s Cathedral and used coloured dots to represent various church officials’ movements after mass. Accompanying each dot, Shann explained, were excerpts of the testimony of the case’s twenty-three “opportunity witnesses” — every person who was known to be at the church that day and testified at the trial — to support the claimed location of each official as time passed.

Like virtually all of the public, I haven’t seen that video. Nor did any of Pell’s jurors see it. Or any of the High Court’s justices. That’s because, after the prosecution objected, the County Court’s chief judge, Peter Kidd, barred Shann from showing it. Pell raised Kidd’s ruling at his initial appeal, but all three judges rejected his complaint, including justice Mark Weinberg, Pell’s lone judicial backer until last Tuesday, who excoriated the video as “tendentious in the extreme.”

But we know what the video claimed about events in 1996 from Weinberg’s description. He complained that it showed a scenario that no one thought actually happened: Pell and his master of ceremonies on the cathedral’s main steps, while the two boys alleged to be Pell’s victims were in the sacristy at the opposite end of the building alongside “a large number of concelebrant priests.” Showing the jurors this “visual representation,” the Court of Appeal ruled, risked “misleading, or at least confusing” them.

Pell didn’t bring up the video again at the High Court, but what the dots represented was at the heart of his last-chance appeal and the national court’s decision to acquit him. Most of the court’s reasons are a painstaking appraisal of the testimony of those twenty-three opportunity witnesses. Remarkably, the seven justices said that Weinberg’s colleagues in the Court of Appeal, Victoria’s two most senior judges, were themselves misled or confused about part of those witnesses’ evidence. The pair’s factual error may have added an unnecessary eight months to Pell’s time in prison.

The claimed error by chief justice Anne Ferguson and Court of Appeal president Chris Maxwell was about timing, which was crucial to the case against Pell. When police put the allegations to the cardinal at a hotel near Rome’s airport in late 2016, he described the assertion that his crimes occurred in a sacristy after Sunday mass as “good for me.” “The most rudimentary interview of staff and those who were choirboys,” he told the police, would reveal that his accuser’s account was “fundamentally improbable” because “the sacristy after mass is generally a hive of activity.” At the trial, the prosecution called the opportunity witnesses out of ethical duty. They testified as Pell promised: after mass, a dozen or more officials — the sacristan, his assistant, the priests and the altar servers — filed in and out of the sacristy to store sacred items and remove their vestments.

To prove Pell’s guilt, the prosecution had to show beyond reasonable doubt that there was a long enough gap when none of those officials (except Pell) was present while the alleged crimes occurred. The complainant estimated that the choirboys’ time in the sacristy — finding and drinking the altar wine, being discovered by the archbishop, his raping and abusing them, and their dressing and leaving in tears — lasted five to six minutes. The two Victorian judges ruled that the opportunity witnesses’ accounts left just enough time for these events, because the sacristan, Max Potter, had a practice of delaying the removal of sacred items to allow parishioners some private prayer time, a hiatus that witnesses estimated lasted five to six minutes.

But the chief justice and president’s solution didn’t work, the High Court said. The problem is that the private prayer hiatus and the alleged crimes started at different times. The hiatus commenced when mass ended, while Pell and the choirboys were processing out of the opposite end of the cathedral. On the complainant’s account, the boys must have taken over three minutes to reach the sacristy, at which point the hiatus would have been mostly over.

On top of that stark factual mistake, the High Court ruled that Ferguson and Maxwell made legal errors in dealing with a set of further problems raised by the opportunity evidence, including Pell’s practice of spending up to thirty minutes on the church steps speaking with exiting parishioners, the longstanding protocol that the master of ceremonies stayed with the archbishop until he left the cathedral grounds, and evidence that a dozen or so concelebrant priests change their outfits in the sacristy during the hiatus.

The High Court held that the chief justice and president’s answer to this evidence — that, given the passage of time, the opportunity witnesses could have been thinking of later-arising practices or have forgotten ad hoc exceptions to them at one of the two masses where the crimes must have occurred — was not only unconvincing (as those masses were especially memorable ones) but also legally forbidden. The prosecution either didn’t ask the witnesses about those particular scenarios or didn’t challenge their denials if they did. Also, Victorian law forbids judges from relying on the delay between alleged crimes and the trial — something that jurors are told leaves defendants at a disadvantage — to improve the prosecution’s case.

The Victorian judges’ errors didn’t mean that Pell had to be freed. That depended on what the Court of Appeal ought to have decided if those errors hadn’t been made. Victoria’s director of public prosecutions, Kerri Judd, clearly sensing disaster last month, said that the appeal should be sent back to Victoria, because the seven justices had only read parts of the 1600-page trial transcript. But the High Court thought that was “specious.” The seven justices had read everything both sides asked them to read, they said, so they could decide the appeal themselves. And then they did.

The justices’ particular words — that there was “a significant possibility that an innocent person was convicted” — were the same ones coined thirty-six years ago by Justice William Deane to explain why he would have freed Lindy Chamberlain at her High Court appeal. But the Pell and Chamberlain proceedings differ in more than just their outcomes. Every aspect of the Chamberlain case, from the aftermath of Azaria’s disappearance to the statements of all witnesses, the course of the trial and even the jury’s deliberations, was contemporaneously reported by dozens of journalists and onlookers. Its later twists and turns — the narrow loss in the High Court, the fresh inquiries and the Chamberlains’ belated acquittal — were received by a public deeply familiar with the evidence for and against them.

By contrast, the alleged crimes in St Patrick’s preceded news of the investigation by decades, and almost no one has seen the complainant’s account of them, or ever will. Pell’s trials and their outcomes were kept secret from the public as they happened, meaning only a handful saw all of the opportunity witnesses testify. Journalists could only report on each party’s case after the public learnt which side won. None of those who watched noticed — or at least reported on — the timing error made by Ferguson and Maxwell. It is not clear whether any journalists have access to the trial transcripts Pell and his prosecutor asked the High Court to review.

And that leaves readers of this particular High Court judgement at a disadvantage. The justices’ reasons are clear and convincingly written, but those who would like to check for themselves — to see whether Victoria’s top two judges really misread some key evidence before them, and whether there really is a significant possibility that Pell is innocent — need to find a way to read the transcripts themselves, or to hope that some journalists do so and reliably fact-check. Otherwise, we must decide whether to take the High Court’s painstaking analysis of that evidence — and its findings about it — at face value.

Pell’s accuser says he does. “I respect the decision of the High Court. I accept the outcome.” These are his first — and quite possibly among his last — public words following the court’s ruling. He added that he “understood their view that there was not enough evidence to satisfy the court beyond all reasonable doubt that the offending occurred” and that “the High Court is saying that the prosecution did not make out the case.”

The accuser’s acceptance of the High Court’s judgement puts a lie to the notion that the national court found Pell innocent or his accuser a liar. The justices’ finding of a significant possibility of Pell’s innocence must mean they thought that there was a significant possibility that his accuser was either lying or wrong for some other reason. But it doesn’t mean that they found, or even thought, that he was actually wrong, much less a liar. Indeed, when Justice Deane made the exact same pronouncement about Lindy Chamberlain’s innocence, he expressly said that he still thought that she was the more likely culprit in Azaria’s death than the dingo she accused.

The High Court’s judgement on Pell is much shorter and narrower than its judgement in the Chamberlain case. The seven justices’ reasons for acquitting Pell have none of the anger or agony of the two dissenting judgements on Lindy Chamberlain. Instead, they chastised all three of Pell’s Victorian judges for opining on the honesty of Pell’s accuser, adding that the Court of Appeals’s split on that issue shows how “subjective” such assessments are. In the case’s sole major pronouncement of law, they held that questions about demeanour or candour or memory are exclusively for jurors to thrash out as a group. Appeal judges should proceed on the obvious assumption — that the jurors found every crucial prosecution witness to be credible and reliable — and then look to the transcripts for reasonable doubt.

But what do those transcripts mean for Pell’s accuser? The seven justices said that they contain no independent support for his account. They disagreed with Ferguson and Maxwell’s finding that his accurate description of the interior and use of the priest’s sacristy from that period corroborated his claims of abuse rather than just his presence in the sacristy at some point. To the contrary, they found that the transcripts leave no room for his account to be correct, because there was no time for what he described to occur when and where he said it did. Does that mean that his account must be wrong? And therefore that he was lying or deluded? It could.

But there are at least two other possibilities. One is that Pell’s accuser was seriously mistaken about when and where the claimed abuse occurred. People can and do get significant things wrong when they recount distant events, even when describing horrible moments in their lives. Plenty of prosecutors have gone to jurors on the basis that their key witness was honest and correct in describing the wrongs done to them even though they got many surrounding details totally incorrect. While that makes such trials challenging for everyone, many convictions have been achieved that way and upheld on appeal.

The other possibility is that the opportunity witnesses were seriously mistaken about the practices, protocols and rituals that applied in St Patrick’s Cathedral in 1996. Although the High Court observed that rigidity is a key part of religious life, that doesn’t exclude the possibility that the details can be described erroneously, or worse. Nor does it rule out overconfidence about the predictability of the practices or understatements about exceptions — such as ones that could have allowed for a much longer hiatus, or afforded much more privacy to a high-ranking abuser, after Sunday mass. Again, plenty of prosecutors have gone to jurors on the basis that seemingly honest defence witnesses were totally wrong for whatever reason, and achieved safe convictions as a result.

Crucially, neither of these scenarios was put to the witnesses at Pell’s trial. And that means they couldn’t be put to his jurors. And that in turn means that they couldn’t be considered by the High Court. So, the seven justices’ finding of a significant risk that Pell was innocent turned on the evidence and argument at his trial. It is possible that different evidence and argument at his trial would have produced a different finding on appeal. But they may also have yielded a different jury verdict.

There are obvious reasons why Pell’s prosecutors would hesitate to argue that either his accuser or two dozen witnesses got key details about the crime or the crime scene wrong. The witnesses may have convincingly rejected such claims. And, even if they hadn’t, there’s still a clear chance that Pell’s jurors would have baulked at finding him guilty of child abuse based on such arguments. Although they hit a wall at the High Court, the Crown’s strategic decisions in 2018 go some way to explaining why a very difficult prosecution went as far as it did. It’s understandable that Pell’s accuser thanked the police and prosecutors.

But should we? The former choirboy isn’t Pell’s only accuser. The High Court’s ruling has potential implications for his official ones: the police, the prosecutors, the jurors and the appeal judges. If the national court is right that Pell’s guilt was never proved beyond reasonable doubt, then doesn’t that mean that some — indeed all — of these other decision-makers got the case wrong? And, indeed, as Pell asserts, caused him a “serious injustice” that was only remedied last Tuesday? Maybe.

Disagreement between official decision-makers is a regular occurrence in the justice system. It’s why we have so many decision-makers on questions of proof of serious crimes. The history of miscarriages of justice — not just in Australia but everywhere — explains why all criminal defendants are given multiple opportunities to argue that there isn’t sufficient proof of their guilt. That’s what Pell did before the police, before two juries and before two courts. He only succeeded before the High Court, but that was enough.

On the other hand, the timing issue could have been picked up by any of those earlier decision-makers. That question of whether they should have picked it up shouldn’t be left to Pell’s defenders and antagonists. The various champions and detractors of juries and High Courts who have sprung up in the past year and week deserve every scepticism. I’ve little doubt that nearly all of them would have been arguing the exact opposite with equal dudgeon had either the jury’s verdict or the High Court’s gone the other way.

The criminal justice system is usually too busy, stretched and adversarial to engage in comprehensive reviews of possible failures to detect a problem early enough. But soul-searching and independent reviews are normal in high-profile cases where an error is picked up in a spectacular way. Pell’s case should be no exception. Given the unfortunate secrecy surrounding the original trials, a comprehensive inquiry is perhaps the only way to overcome the understandable public perception that, at one point or another, justice was not done in this case.

In that vein, I think it is worth setting out why it is possible that none of the official parts of the criminal justice system failed — or at least seriously failed — on the timing issue raised by the High Court. (For those wondering about my priors on these systemic arguments, I have written a book championing juries and many pieces — including a doctoral thesis — criticising the High Court’s work on unsafe verdicts, including in sexual abuse cases. Like most criminal law academics, I fret a lot about the roles of many people in miscarriages of justice but see lots of problems in most other ways of doing criminal justice.)

While police make many crucial decisions when they investigate crimes — and those decisions merit close scrutiny — it is not usually their role to make judgements about proof. Their role is to gather evidence for prosecutors, which they must do despite having no power to make most people talk with them. A gap in time between alleged crimes and an investigation — which jurors are rightly told greatly disadvantages defendants — also obviously hampers police. In Pell’s case, where every likely witness is someone who worked for Pell in 1996 and some — notably the sacristan, Max Potter — are now infirm, those disadvantages could account for the police’s failure to recognise the timing problem.

Nevertheless, the police did make a decision about whether there was proof that Pell was guilty when they charged him in 2017, possibly after disagreement with lawyers from Victoria’s independent prosecutors’ office. That charging decision was ultimately shared with Victoria’s then director of public prosecutions, John Champion (now a Supreme Court judge), and his successor, Kerri Judd, who could have stopped the prosecution if they disagreed with the police’s call.

But the bar for decisions to commence a prosecution is lower than those later in the criminal justice system. Public prosecutors can bring charges whenever there are reasonable prospects of a conviction and proceeding is in the public interest. This test was plausibly satisfied in Pell’s case. As Judd rightly pointed out in the High Court, testimony about events lasting mere minutes recalled from decades ago ought to be taken with a grain of salt. She lost the argument on appeal because — the court said — the trial witnesses weren’t challenged on their timing claims, including the possibility of a much longer private prayer hiatus. But prosecutors wouldn’t have known that before the trial.

It is at the trial where it is harder to understand why a critical timing issue didn’t bring proceedings to a halt. It’s worth noting that trial judges — magistrate Belinda Wallington at Pell’s committal hearing and chief judge Kidd at the County Court trial — only test whether the evidence the prosecution supports (here the accuser’s account) could prove guilt. The question of whether other evidence (such as from the opportunity witnesses) created too much doubt is one for prosecutors, jurors and appeal judges, who notably all reach their decision in groups. (The risks that flow from giving too much decision-making power to individual judges is why we should look askance at suggestions that single judges should replace jurors in trials of serious charges.) No one argues that Pell’s magistrate or judge made any major errors on things in their remit, such as courtroom procedures, rulings on the evidence or directing the jury.

But why didn’t Pell’s prosecutors stop the trial because of the timing issue? And why didn’t his jurors — the hold-outs in his first trial and all twelve in his second — acquit because of it? If the High Court is right about the timing evidence, then those things should have happened in one or both of Pell’s trials in 2018. The best defence I can offer is speculative and uncomfortable: the prosecutors and jurors quite possibly didn’t notice the issue. There is some compelling evidence behind this guess: two senior judges seemingly didn’t notice it either and nor did any of the journalists who watched and described Pell’s trials.

Even my generous take may seem quite damning of Pell’s prosecutors and jurors (and others), but the true culprit could be the whole idea of resolving complex questions at a single “trial.” Trials — and, especially, questioning dozens of witnesses in sequence and then summarising their evidence orally days later — are poorly suited to identifying crucial issues out of a mass of arguments, including fine issues of timing.

That’s why Shann wanted to show Pell’s jurors her animation. She argued that illustrating the timing issues this way suits contemporary approaches to presenting information, which jurors would be familiar with from their own devices. Without it, she prophetically suggested, “it was possible that they might not understand the full force, cumulatively, of the defence argument in relation to opportunity.” Weinberg’s retort — that there is more risk of confusion from presenting such “material in this highly questionable form” — ought to be reconsidered now, as should trial prosecutor Mark Gibson’s decision to object to the video in this case.

But trials’ deficits in complex cases go well beyond their low-tech approach. Trials require a dozen or so people to work — and, to an extent, fight — in a single room, while a dozen others are required to sit for weeks and absorb silently, before being locked away and asked to reach a consensus with strangers on what might be the most important decision of their (and others’) lives. The key question of proof, and the details it turns on, must vie for attention with concerns about fairness, interest, distress, comfort, time, money and personalities. The trial’s strengths — the atmosphere, the rhetoric, the high stakes, the group work — are also its weaknesses.

All of this may sound like a call to do away with trials, but it isn’t. Rather, it’s a call for the system we have, the one where anyone who is found guilty can ask one or more appeal courts to robustly review that trial finding at leisure and from a distance. The High Court held that one reason the Court of Appeal may have gone wrong in this case is that its judges acted too much like jurors, watching much of the trial via video recordings and focusing on which of the witnesses was believable. That may explain why, as the seven justices put it, Victoria’s two most senior judges “failed to engage” with whether the opportunity witnesses’ testimony left a reasonable possibility that a credible accuser was nevertheless wrong. The same may also be said of Pell’s prosecutors and jurors.

But maybe not. The above is just a possible account of what happened, the kindest I can think of. There are less benign explanations, not to mention rival conspiracy theories. Those theories are one of many reasons why the High Court’s acquittal of Pell ought to prompt an independent review of all the decision-making in this case. Without that (and anyway), we will each have to somehow find our own response to what has happened.

“I would like to reassure child sexual abuse survivors that most people recognise the truth when they hear it,” Pell’s accuser said in his statement at the end of the day on which the High Court acquitted his alleged abuser. “They know the truth when they look it in the face. I am content with that.” Hours into the freedom the High Court granted him, Pell said, “I hold no ill will toward my accuser, I do not want my acquittal to add to the hurt and bitterness so many feel.” I have no idea if either of these statements is sincere, but it doesn’t matter much. They both put to shame the cynicism of public commentators for and against Pell, and provide a path forward for the less cynical.

But the future is not the most important thing in this case. The past is far more important. It may be that one of these two well-spoken men is genuinely deluded in his recollection of what happened all those years ago. If not, then one of them is a liar who put the other one through a living hell. If that’s the case, then both of them know which man that is. The rest of us can believe what we want, but we will never know, unless that man confesses. Most likely, both will carry this shared knowledge to their graves. And after that, if the beliefs they were raised with — and may, against all reason, still hold — prove to be truth, they will go their separate ways. •

The post Pell in purgatory appeared first on Inside Story.

Last week the Federal Court, sitting as the Court of Disputed Returns, issued its judgement on what exactly happened when the Strauszes left Hungary. The Australian court’s unlikely interest in events seven decades ago and 16,000 kilometres away was focused on what five-year-old Erica took with her across the border.

We know that two decades later she would give birth to a son, Joshua, in Melbourne. The court’s concern was whether she brought her birth citizenship, first to Austria, then to Australia, and finally into labour. If she was a dual Australian–Hungarian citizen on 17 July 1971, then so is Josh Frydenberg right now. That would leave the federal treasurer ineligible to sit in Australia’s parliament and cabinet during the greatest crisis in most Australians’ lifetimes.

The case of Staindl v Frydenberg is a coda to a minor crisis from simpler days. In the eight months from October 2017 to May 2018, fifteen members of the federal parliament were unseated — six of them permanently — because they were considered dual citizens under section 44 of Australia’s constitution.

At the debacle’s centre was the High Court’s October 2017 ruling that five parliamentarians, including the deputy prime minister, were never elected at all, simply because they were dual citizens. Although politicians had fallen foul of that ban before, this was the first time it was applied to Australians with no adult connection to a foreign country, including two who had no childhood connection either. Fiona Nash, for instance, was disqualified for her British nationality despite being long estranged from her Scottish father and never having been to Britain.

Alas, the national court made its ruling more in anger than sorrow. The seven justices declared that:

while it may be said that it is harsh to apply section 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question… It is necessary to bear in mind that the reference by a house of Parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in Parliament. In the nature of things, those facts must always have been knowable.

These are perhaps the least wise words the seven have ever written.

Frydenberg’s fate in the Court of Disputed Returns was determined by three facts: what Hungarian officials did before the Strauszes crossed the border; what documents the family carried while they crossed; and the fine details of Hungary’s citizenship law at the time. Last week’s decision revealed that neither Frydenberg nor any other Australian ever knew — or even can know — any of these things. The relevant records of Hungary’s secret police were lost in 1956 during the nation’s failed uprising against the Soviets. The Strauszes were either too young — the daughters were eight, five and one — or too old — the adults would have been 108 and 112 today — to testify as to what documents they carried. Most remarkably, Australia’s attorney-general bluntly told the Court of Disputed Returns that “the relevant content of Hungarian law in 1949 is unknowable.”

After they crossed the Iron Curtain, the Strausz family spent two weeks in Vienna, but ended up living at 11 Rue de Deux Gares in Paris’s tenth arrondissement. They were literally and metaphorically between stations. While they already held a landing permit that would allow them to stay in Australia for two years, they needed a Titre d’Identité et de Voyage that allowed them to travel internationally without a passport. Nearly a year passed before they travelled to Genoa to board the SS Surriento, bound for Fremantle and Sydney. They reached their new home on the second-last day of 1950.

Did they bring anything from their old home? The Strauszes described themselves as stateless, but a Sydney boarding officer wrote “Hungarian” as their “nationality” in a letter to immigration officials. His interest in the family’s homeland probably wasn’t idle. Australia in 1950 was awash with fears of communist infiltration via immigrants, seemingly even ones with every reason to flee Europe.

Similar irrational fears underlie section 44 of the constitution. The High Court has repeatedly identified the purpose of the ban on electing dual citizens as being “to ensure that members of the Parliament do not have split allegiance” with a foreign country.

It was the other thing the boarding officer noted in his letter — that the family were “in possession of Valid Passport” — that was especially dangerous for Josh Frydenberg. If Erica Strausz held a valid Hungarian passport in 1950, then everyone agreed that her son was ineligible to be elected in 2019. The law of Hungary, like that of so many overseas countries, bestows citizenship by descent, even to children whose parents had left their home country, took up another country’s citizenship and married a non-citizen. It is this combination of foreign countries’ generosity in bestowing citizenship and Australian constitutional law’s suspicion of the recipients of such gifts that caused last term’s debacle.

Before the election, I predicted that a perfect storm — widespread dual citizenship in Australia, the High Court’s strict ruling, the murkiness of the constitutional text and new constraints on late electoral cases — would lead to a rush of challenges immediately after Labor’s expected tight victory. But the rush (like the Labor win) never came. Instead, Frydenberg will very likely be the lone challenged member of the current parliament. His challenger, climate activist Michael Staindl, was motivated not by Frydenberg’s foreign allegiances, but rather by his political ones, and specifically his party’s climate policy.

Staindl’s challenge could proceed, despite the unknowability of what transpired seventy years ago, because any Australian politician can be unseated by uncertain facts. All that Staindl had to prove was that it was more likely than not that Erica Strausz was still a citizen of Hungary when Frydenberg was born. Because the Court of Disputed Returns isn’t bound by the rules of evidence, Staindl could rely on the border officer’s letter. But the letter wasn’t his main argument.

Instead, he argued that Erica Strausz’s continuing Hungarian citizenship was much more likely than not, because the Strauszes had no reason to renounce their citizenship and every reason not to. Staindl found a Hungarian lawyer who explained that renouncing citizenship in 1949 would have required permission from (or denunciation by) the secret police. Given that an ordinary passport (albeit probably obtained unlawfully) was needed to cross the border, telling the Hungarian police that they wanted out would be the last thing the Strauszes would have done. Nor, he added, was there any reason for them to contact the Hungarian authorities for favours after they left (oblivious as the Strauszes, like nearly everyone else, were about section 44 of their new homeland’s constitution).

Staindl’s case crawled until late last year, when the High Court of Australia sent it to the next court down in the hierarchy, over the objections of the treasurer and the attorney-general. In the Federal Court, Frydenberg produced a report from an Australian historian who had studied postwar immigration. She wrote that Australian border officials in the 1950s were more interested in new arrivals’ ethnicity than their citizenship and that “Valid Passport” was simply their shorthand for any legal travelling document, including a Titre d’Identité et de Voyage. Frydenberg’s Hungarian lawyers produced a book by Péter Bencsik, a historian specialising in mid-century central European travel documents, who wrote that the communist secret police in the late 1940s could and did issue “one-way” passports to emigrants who wanted to quit Hungary for good.

In short, the sole surviving records proved nothing either way. Staindl conceded that the Strauszes probably left Hungary with the secret police’s permission on one-way passports. But that didn’t resolve the real question: whether or not they left their citizenship behind. Instead, Frydenberg’s fate was resolved by the Federal Court contemplating what actually counts as “law” in a totalitarian state.

“I just want to say something about Josh Frydenberg”, said then prime minister Malcolm Turnbull, a week after the High Court’s 2017 decision. “Josh Frydenberg’s mother Erica Strauss was born in 1943 in the Budapest ghetto. That’s where the fascists had pushed all of the Jews in together as a prelude to sending them to the gas chamber. She wasn’t a Hungarian citizen when she was born and neither were her parents. You know why? The Hungarian fascist government, allied with Hitler, stripped the Jews of all of their rights. The right to citizenship and the right to life.”

But the Federal Court did not so hold. Indeed, no one asked them to.

The court’s judgement charts the grim facts of Jewish life and death in Hungary after the break-up of the Austro-Hungarian empire. First came the pogroms of the White Terror that installed an ex-admiral in power. Then, as Hungary allied with the Germans and Japanese in the second world war, came three anti-Jewish laws, imposing quotas on Jewish professionals, barring Jewish public service and criminalising sex or marriage with non-Jews. Finally, Nazi occupation brought Hitler’s Final Solution to Hungary, sending nearly half a million to Auschwitz. The Jewish population of Budapest, once almost a million, had shrunk to just 100,000 by the time the Hungarian government surrendered to the Soviets.

But Hungary had no equivalent of Hitler’s Nuremberg laws, which stripped Jews of their citizenship. And, unlike many countries (including Australia), Hungary’s various citizenship laws didn’t automatically convert into aliens people who transgressed in specified ways (by joining the enemy, for example) or took up another country’s citizenship. Rather, the communists’ laws gave Hungary exclusive control over each citizen’s citizenship. If you wanted to stop being Hungarian, you needed to ask for and get permission from the police. The government could “divest” you of your citizenship involuntarily, but only if it published that decision (and it didn’t in relation to any of the Strauszes.)

These grim facts of life in Hungary in the 1940s also cast a shadow over Frydenberg’s eligibility to be elected in Australia in the 2010s. If the Strauszes couldn’t rid themselves of their birth citizenships without Hungary’s permission, then nor could Frydenberg.

What saved the treasurer’s job was communism. Frydenberg’s Hungarian lawyers pointed to Hungary’s communist constitution, which came into force just weeks before the Strauszes departed. Cribbing heavily from Stalin’s 1936 Soviet constitution, it reinvented Hungary as a nation of “working people,” whose fundamental duties were to protect the property of the people, increase Hungary’s economic power, raise workers’ standard of living and so forth. By leaving Hungary, the lawyers posited, the Strauszes shifted from being working people to what the constitution called “enemies of the working people,” who were expressly denied the right to vote.

The very nature of the law under Communism provided Frydenberg with his best argument. Bencsik told the Federal Court that socialist legal theory has always recognised that the bureaucracy doesn’t just apply the law, it can also make the law through its own actions. This was especially so in Hungary in the 1940s and 50s, when “the published laws concerning passports and emigration, including the First and Second Citizenship Laws, were not applied consistently if at all.” The real law was what Benscik termed “pseudo law,” the practices of the secret police, Hungary’s real rulers. The “one-way” passport likely given to the Strauszes was a pseudo law, Benscik explained, legally barring them from returning to their homeland without permission.

Faced with this (literally) left-field argument, Staindl blinked again. He conceded that the Strauszes’ lack of any right of return to Hungary meant that all of the family, once they became Australian citizens and reached adulthood, were eligible to be elected to the Australian parliament. That included Erica, when she turned 18 in 1961 and when she gave birth to Josh Frydenberg in 1971. But Staindl argued that everything changed just as Frydenberg himself was turning eighteen.

That was the year, 1989, when communist governments fell across the Soviet bloc and the Iron Curtain vanished. That change also washed away the pillars of socialist law, including pseudo laws like the bar on re-entry by Hungarian emigrants. At that point, Staindl argued, the empty “shell” of Hungarian citizenship carried over the border by Erica and passed on to her son became full again, which was enough to make him a dual citizen for Australian constitutional purposes from then on.

Staindl’s argument didn’t fly. The Federal Court deemed it “imaginative” and (maybe) “appropriate in some legal contexts.” But not here. “These are not matters,” the court declared, “to be addressed using fine distinctions, metaphors or other constructs having little, or no, regard to the facts established on the evidence before us.” Staindl’s problem was that he never had the opportunity to put his “shell” theory to any expert in Hungarian law.

The Federal Court didn’t relish the prospect of having to watch sleepy witnesses testifying from Budapest via Skype, translated back and forward between Hungarian and English, and debating the niceties of socialist legal theory. Obliged by the electoral act to “be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities,” the three judges declared that written reports, including a joint one by the various Hungarian lawyers hammered together on their own in Budapest, would suffice. By the time pseudo law emerged as the most likely answer, it was too late to explore Staindl’s new theory or to try to find a footing for it in the (sometimes cryptic) reports.

In short, the court had sufficient evidence that socialist pseudo law had removed Erica Strausz’s Hungarian citizenship:

The niceties of proof of the production or issue of documents by the political police in a totalitarian state, possibly lost or destroyed in revolution (in 1956 in Hungary) or in travel (by the Strausz family in Hungary, or on the way to Vienna, to Paris, to Genoa, to Fremantle, and eventually to Sydney) can be put aside when one recognises the realities of 1949.

and no evidence that the end of that system had restored it.

“I see my journey to this place in the continuum of my family’s story,” Josh Frydenberg told parliament in his maiden speech in October 2010. He described how his father’s parents arrived from Poland “while Europe was plunging into darkness” and how his mother’s family’s “experience was different.” “Interned in the Budapest ghetto by the Hungarian fascists,” he explained, “they survived and eventually made their way through displaced persons camps to Australia.” The Strauszes ended up a “family of five crammed into a one-bedroom Bondi apartment.”

The welcome, opportunities and freedom they enjoyed, said the future treasurer, “is for me the essence of what makes Australia great.” While Samuel “punch[ed] holes in belts to eke out a living,” his middle daughter grew up to be a psychologist and marry a surgeon, and the couple eventually “settled in Kew, right in the heart of the Kooyong electorate. Never would they have dared dream that decades later, one of their own family members would represent Kooyong in the federal parliament. But in Australia anything is possible. We are only limited by our imagination.”

The future treasurer’s imagination surely never hinted that his family’s story would one day threaten to overturn the choices of Kooyong’s voters.

Frydenberg’s speech proudly noted the other luminaries who had been elected by Kooyong’s voters, including a future chief justice (John Latham, who famously dissented when the High Court struck down the law banning the Communist Party in 1951, just months after the Strauszes arrived in Sydney) and a prime minister (Robert Menzies, who famously owed his government’s 1961 re-election to Communist Party preferences — which makes Frydenberg Kooyong’s second MP to have his place in Australia’s government inadvertently saved by communists).

“I am proud of my Australian story,” Frydenberg concluded. “Decades ago in the gathering darkness of Europe, my family could never have imagined this day. But because this country is truly a land of opportunity I have been given this chance.” But he could continue sitting only because a Hungarian historian born the same year as Frydenberg was able to reveal an otherwise unknowable part of the law of that dark period to the Federal Court.

Is that all that kept Australia from losing its treasurer in the midst of this crisis? I don’t think so. Times have changed since 2017, and the High Court itself has become more creative in reading the constitution in ways that include, rather than exclude, Australians within our polity. But there are limits to what a court can do.

The only real solution to Australia’s exclusion of its many dual citizens from its parliament is to change its constitution, something that will require the support of all of the nation’s leaders. “I want to see an Australia where the only relevant consideration is the content of a person’s character,” Frydenberg told parliament in in 2010, before the “stop the boats” election but also long before Hungary’s decision — on the same day the Federal Court dismissed Staindl’s petition — to close its border with Austria for the first time since the fall of communism. •

The post Game of shells appeared first on Inside Story.

The written submissions each side filed with the High Court in January are all about rituals, robes and rehearsals. It may seem odd that the same court that made national headlines a month ago when it ruled on the relationship between Aboriginal Australians and Australia will now spend two days considering what happened in a sacristy twenty-three years ago. But this is nothing new for the national court. Indeed, the very morning after the seven judges split on who is and isn’t an “alien” under Australia’s Constitution, five of them puzzled over what caused a mysterious explosion on Bribie Island in 2015.

Eamonn Coughlan’s last chance to clear his name of an arson conviction started badly. For Justice Patrick Keane, the ex-cop’s claim that his house inexplicably blew up as he was standing on the footpath trying to see a motorbike “just sounds odd.” Justice James Edelman also seemed to have his doubts — “His shoes were entirely melted, were they not?” — and before long two more judges were asking Coughlan’s counsel, “What are you trying to get out of this?” and “Where does this take us?” Yet just an hour later — after the same judges peppered the prosecution’s barrister with questions about pants, petrol and passers-by — all five acquitted Coughlan on the spot, overturning a Queensland jury and a unanimous Queensland court.

Cases like Coughlan’s expose the persistent myth that Australia’s top court doesn’t take or decide disputes about facts. Last November, five of the court’s judges explained why they had acquitted another Queensland man of a gruesome murder on Macleay Island, overturning the unanimous view of fifteen jurors and judges. Their thirty-five-page judgement barely mentioned the law, but was full of analysis of means, motive and opportunity — and claw hammers, bank codes and CCTV. Two months earlier, the national court decided who was driving a Toyota Tarago during a head-on collision on North Stradbroke Island, this time disagreeing with a Queensland judge and unanimous appeal court who found the driver was an unlicensed teen left paralysed by the crash. The law came up on just three of the thirty pages of the High Court’s reasons, which were mainly about airbags, seatbelts and blood.

If next week’s hearing follows suit by focusing on the events at St Patrick’s Cathedral, then that will likely please both Pell and his prosecutor. Walker’s goal is to convince the court that Pell simply had too little time to commit the crimes he’s accused of, given the (mostly) undisputed evidence of what he and other church staff were doing in the minutes when the abuse must have occurred. Judd would welcome such a fight, given that Victoria’s prosecutors have already won the same argument twice, at Pell’s second trial in late 2018 and at his appeal in the middle of last year. But neither side may get what it wants.

The arson, murder and car-crash cases have something in common beyond their Moreton Bay settings. Each of their appeal hearings came only after at least two High Court judges had decided that the factual disputes were worthy of the national court’s time. Pell, by contrast, lacks that comfort going into next week’s proceedings. This means that Wednesday’s hearing — and Pell’s hopes of exoneration — could be over in as little as an hour. Or it could mean that the court will make the proceedings about something else entirely.

Sixteen years ago, Bret Walker was representing Queensland’s chief magistrate when she was hoping for a last-chance exoneration after a jury convicted her of retaliating against a fellow magistrate in a workplace dispute. Walker’s plan was to convince the High Court that his client’s conduct was reasonable, but the judges had a better idea: why not argue that her judicial role made her immune from such a prosecution? Walker took the point and Di Fingleton was cleared.

Five weeks ago, the High Court wrote to Pell and his prosecutor with some questions. The court occasionally writes such letters to litigants, including in the recent case about deporting Aboriginal Australians. For some reason, letters like this are always kept secret from the public, leaving us to learn about them — if we ever do — when the parties formally respond. Pell’s response two weeks ago is how we learnt that his case may take a left turn.

To understand what may have changed, we need to go back eleven months to shortly after Pell was sentenced. In early April last year, Victoria’s Supreme Court wrote to the parties explaining that the three judges assigned to hear Pell’s appeal wanted to see some of what Pell’s jurors saw. In particular, they planned to visit St Patrick’s Cathedral themselves and to watch the adult choirboy’s prerecorded testimony together with footage of the in-court testimony of three other people who were at St Patrick’s back then.

Unbeknownst to the public, the prisoner and prosecutor privately clashed over this request. The Crown’s then counsel, Chris Boyce, told the three judges to do what they wished, but Pell’s team drew the line at their watching testimony from the trial. They pointed to a NSW case from a decade ago, where an appeal court declared that jurors and judges alike should never watch footage of witnesses during their deliberations lest they be overwhelmed by the visual medium. When the case went to the High Court, its judges — including future chief justice Susan Kiefel — were less strident. Usually, the trial transcript will suffice for criminal appeals, they said, but not if the videos may reveal things that written words can’t.

Last April, the Victorian judges sided with the prosecution, but also accepted Pell’s fallback position: if the judges watch any witnesses testify, then they should watch all whose accounts were at issue. The trio ended up viewing footage of eleven witnesses from the second trial, together with three other videos Pell’s jury saw: the complainant’s return to St Patrick’s in March 2016, the police interview with Pell in Rome later that year, and the complainant’s testimony at Pell’s first trial in mid 2018. After the hearing, the judges also tried on the archbishop’s robes, later splitting (as in most things) on whether their design rendered the complainant’s detailed account of the abuse plausible or not.

The Melbourne court’s decisions last April may loom large in Canberra this March. The High Court’s first question to the parties was whether courts hearing criminal appeals are required or even permitted to go beyond the trial transcript. In their responses, both parties repeated their views from last year. Walker said that the appeal judges shouldn’t have watched the videos because there was no reason to do so. It’s one thing watching videos of child witnesses, as some judges have, because such videos will likely show whether the child was uncomfortable, confused, hesitant, confident or communicating with actions. But the witnesses in Pell’s case were (thankfully) all mature adults. So what, responded Judd. Just because appeal judges don’t need to watch the videos doesn’t mean that they can’t. It’s up to them, she said, and their decision made perfect sense given the arguments Pell was making about the evidence.

Who will win this argument, if it’s pursued next week, is anyone’s guess, but what’s important right now are its practical consequences. The issue of whether to watch trial videos is a huge one for criminal appeal courts and the people who appear before them. This means that the question the High Court raised is not just about Pell’s case but potentially affects hundreds of others each year, and is clearly worthy of a national court’s time. For Pell, though, the issue is a mixed bag. The new question is one on which the High Court is quite likely to take his case, but the downside is that it shifts the focus from the jurors’ verdict to the process that preceded his unsuccessful first appeal. If the court in Canberra rules that the Melbourne judges shouldn’t have watched some or all of the videos, then the obvious remedy is to send Pell’s case back to Victoria to be heard before three new judges. In effect, Pell would be left back where he was in March last year, facing many more months in prison, especially if he loses a second time. Even the best outcome — a victory before the new bench — would be tarnished. It would mean that he was condemned by judges who did watch trial videos but exonerated by judges who didn’t.

That’s probably why Pell and prosecutor were in rare agreement when it came to the High Court’s second question: does watching the videos change how an appeal court should judge a jury’s verdict? No, both said, or at least not in this case.

The High Court’s letter forms part of a debate that has been unresolved since courts of criminal appeal were created over a century ago: how exactly do criminal appeal judges’ roles differ from those of jurors? A few years before Pell became archbishop of Melbourne, a majority of the High Court cobbled together its answer during a different child sexual abuse appeal. Four judges agreed that appeal judges, like jurors, must assess the trial evidence for themselves to see if it leaves them in doubt. But they also agreed that the judges must factor in the differences between themselves and jurors before deciding any appeal.

That compromise was broadly workable in 1994, when technology meant that there was always at least one crucial difference between jurors and appeal judges: jurors got to see the trial witnesses, appeal judges didn’t. But ease of video recording has caused that compromise to falter. While Pell was being tried (and his entire trial recorded), NSW’s appeal judges were arguing about whether watching the key videos from a trial affects the test for deciding appeals. They had little choice but to watch two videos in the case before them: one, where a child detailed particular sexual acts to police investigators, and a second, where the same child denied those same acts when he was cross-examined at the accused’s trial.

One judge said that the videos left him in doubt about the accused’s guilt, and also just as well placed as the jury to make that call. But the others (who were less troubled by what they saw) said that the jury’s guilty verdict should stand because the jury still had the advantage of experiencing the trial’s atmosphere and watching the accused’s face as events unfolded. The High Court’s second question to Pell and his prosecutor was effectively about which side of this dispute was right.

In their responses, Walker and Judd — unenthusiastically, it seems to me — worked through whether video has killed the barrister. Pell’s counsel said that trial videos narrow the usual gap between juror and judge, and suggested that as a further reason why appeal judges should refrain from watching if they can. Victoria’s DPP, for her part, thought it arguable that judges ought to watch whatever videos are available in order to better evaluate the evidence for themselves, unless — she archly hinted — the High Court rethinks the compromise it struck in 1994.

But both prisoner and prosecutor agreed on one thing: none of this mattered in Pell’s appeal. Each side approved of how Pell’s Victorian judges approached this part of their task. Whether watching the videos was right or wrong, they said, all three judges were careful not to overuse them, expressly avoiding placing too much significance on how the witnesses looked and sounded, at least compared with what they actually said. Walker and Judd also pointed out that each of the three acknowledged that Pell’s jurors had many advantages over his judges: the jurors were able to see the witnesses in sequence over weeks; with the notable exception of the complainant’s prerecorded testimony, they weren’t restricted to the “two-dimensional” view on the judges’ computers; and they had the benefit of talking with eleven others in the jury room, in contrast to the three Victorian judges’ apparently lonely contemplation of Pell’s guilt or innocence.

If neither party wants to argue the issues raised by the High Court, does that mean they won’t be discussed? No, that’s another myth about the national court, which has its own duty to inquire into the law being argued before it, and which has plenty of ways to convince litigants to shift their arguments. Just because the parties agree doesn’t mean that the court has to. The Canberra judges could decide that the videos really did skew the task of the Melbourne judges — for example, because of the majority’s choice to watch the choirboy’s video testimony “cold,” as the jury did, before reading the transcript of his words — and can send the case back to Victoria to be heard before three new judges. Alternatively, a bench of seven could decide for itself that the Australian test for unsafe verdicts ought to work very differently when videos are in play, and then tell the original three judges to take a second look.

Whether any of that actually happens is another matter. I can see why it might be tempting for the High Court to decide Pell’s appeal on a broad legal question rather than delve into the case’s complex facts. On the other hand, I can also see why the judges would hesitate to use this unique case as a chance to direct future appeal judges on how to do their jobs in more mundane ones. Whatever the national court’s inclinations, it has plenty of options on Wednesday: to tell the parties to focus on a particular issue, to give the parties a free hand, or to stop things suddenly with the words every suppliant dreads: “The Court is of the view that this is not a suitable vehicle for the grant of special leave.”

This plethora of options is one reason I’m not game (this time) to predict anything about next week’s hearing. Grant or refuse? Decide or refer? Facts or law? Process or substance? Safe or unsafe? We don’t even know yet whether Pell’s case will be heard before a bench of five (the usual number) or seven (for constitutional or other big cases, or if the court is thinking of overruling one of its own decisions). Even the Kiefel court’s most reliable feature — its extreme collegiality — isn’t what it used to be.

But the lack of predictability is what makes next week’s hearings especially interesting. While Pell’s first appeal was live-streamed, his second will be live-tweeted (from the High Court’s own “overflow” facilities, where phones are permitted). For those who can’t attend, transcripts will be published online each evening and video a few days later. But, as always, there’s nothing like being there.

Pell’s original trials were seen in full only by his jurors, the lawyers and judge Peter Kidd, with spectators and journos excluded from the most important parts and sworn to secrecy for the rest. I watched his first appeal in a cramped room and found it hard to take my eyes off Pell himself. Next week will be a very different experience, taking place in the nation’s most majestic, light-filled courtroom, but with Pell likely watching on video in his prison. Subject to travel advisories, I’ll be there to see his last stand in three dimensions. •

The post Pell’s last stand appeared first on Inside Story.

Isaacs wrote those words when the nation’s top court confronted what was, until recently, the highest-profile criminal case in Victoria’s history. From the moment the “outraged” body of twelve-year-old Alma Tirtschke, the dux of Hawthorn West Primary School, was found in a city alley on the final day of 1921, Melbourne and its media were transfixed. They remained so when police arrested wine bar owner Colin Ross for her murder two weeks later, and through his six-day trial and his appeal before Victoria’s Supreme Court. Now it was the High Court’s turn in the spotlight.

What role should a national court play in the nation’s criminal cases? That question has been debated for much of the High Court’s history. When the Australian Constitution’s “founding fathers” devised the nation’s new “federal Supreme Court,” they were inspired by its United States counterpart but decided to give the Australian court an extra role. On its creation in 1903, the High Court had the power to choose — “grant special leave” — to hear appeals from every court in the country, a role it initially shared with the Privy Council in London. At the time, most criminal convictions couldn’t be appealed, but that changed just four years later when England, reeling from a spate of miscarriages of justice, created a court of criminal appeal and the rest of the Empire followed suit.

These developments left the top courts in Britain and Australia in a quandary, each of them loathe to provide a second level of appeal to every convicted criminal in the Empire or nation. In 1914, the Privy Council decided to intervene only in criminal cases that would create an “evil precedent in future.” The High Court promptly made the same decision (over Isaacs’s furious dissent), but abandoned that stance as unworkable just six months later. The judges then declared that their “Court has an unfettered discretion to grant or refuse special leave in every case.”

Seven years later, Colin Ross understandably opted to bring his last-chance appeal to the High Court in Darlinghurst rather than the Privy Council in Westminster. His barrister flew to Sydney armed with a fistful of reasons for the national court to grant special leave, including fresh evidence, procedural errors at the trial, and unchallenged evidence of an alibi at the time of the murder. But he found a national court acutely aware of how “special” his case was.

“Our practice as to allowing appeals in criminal cases is more liberal to the prisoner than that adopted by the Privy Council,” allowed the majority, “but we must never lose sight of the fact that, in regulating our practice, the interests of the community, as well as those of the prisoner, have to be considered.” The majority judges’ particular concern was that allowing criminal defendants a second appeal “might amount to practical obstruction of the ordered administration of law.” They didn’t say what they meant, but everyone knew.

Three weeks later, Ross promised his family that “the day will come when my innocence will be proved.” Hours later, he became the first High Court litigant to hang, dying in agony following a botched execution. Forty-four years later, the national court similarly refused special leave to the last such litigant, Ronald Ryan, who told his hangman, “God bless you, please make it quick.”

It is always startling to see how justice used to be done. Colin Ross’s journey through the criminal justice system — arrest, committal, trial, appeal, denial of special leave, and execution — took just three months from go to woe. By contrast, it has now been nearly thirty months since George Pell was charged and eleven since his conviction for child sexual offences. Pell received neither death nor life in prison, but rather a six-year sentence. A loss in the High Court will still leave him free on parole in around three years (but also officially branded a sex offender for life and beyond).

On the other hand, Ross’s application for special leave received a three-day hearing before five judges of the High Court, who issued a twenty-two-page judgement the following Monday, including a concurrence and a lengthy dissent. By contrast, had Pell lost last Wednesday, his case would have ended with neither a hearing before the national court nor an explanation from the mere two judges who would have considered his case. Even now, his application for special leave could still be dismissed without any explanation, albeit after a hearing before at least five judges.

These changes in the national court are relatively recent. For its first nine decades, the High Court routinely gave convicted suppliants the treatment they gave Ross, with five or more judges hearing full arguments on whether they should grant special leave. Procedurally at least, there was no difference between the famous — Ronald Ryan (in 1966), Lindy Chamberlain (in 1983) and Roger Rogerson (in 1992) among them, all of whom received five-judge hearings of their applications for leave — and the less famous.

But such hearings are now a relic. A few years after Australia’s parliaments ended petitions to the Privy Council, the High Court started listing all applications for leave before small panels of judges: three at first and then just two. The hearings were speedy affairs, with a dozen or so scheduled for a single day, twenty minutes given to each lawyer to make their case and no reasons for the judges’ decision. More recently, the High Court announced it wouldn’t even do that much for most cases, instead simply publishing bimonthly lists of applications with the words “granted” or (almost always) “dismissed” next to them.

When news emerged last Monday that George Pell’s case was to be included in that week’s list, it looked like his case could end not with a bang but with a whimper. (Word of his listing somehow leaked from the court thirty-six hours ahead of its usual release.) Most cases dealt with in this way lose, but that’s because most of them are hopeless. The former archbishop’s sex-offending convictions were being dealt with in the same way as some guy trying to pay his taxes with a “promissory note,” or umpteen immigration appeals.

I was making no predictions this time. The High Court’s special leave decisions operate as a black box, with listings, selections of judges and the ultimate decision never explained. The odds are always against a grant of leave, especially when the case isn’t given a public hearing. On the other hand, special leave has been granted “on the papers” in seven cases so far this year.

So, no one should have been surprised by either a grant of leave or a refusal last Wednesday. Instead, the big surprise was that the national court did neither.

“In this application,” said Michelle Gordon, the High Court’s fifty-second justice, speaking also on behalf of its fifty-third, “Justice Edelman and I order that the application for special leave to appeal be referred to a Full Court of this Court for argument as on an appeal.” The waiting media could tell that Pell’s case wasn’t over yet, but were understandably baffled. What just happened?

The answer is that the High Court — or perhaps just its two most junior judges — had opted to deal with George Pell’s case the way it used to deal with most criminal appeals until the early 1990s. Pell would make his pitch for the national court to take his case before at least five justices, rather than the usual two, just as Ross, Ryan, Chamberlain, Rogerson and a thousand or so other convicted criminals once had.

Did Pell get singular treatment? No and yes. No, because this is at least the thirtieth time the High Court has dealt with a special leave application in this way in the past decade, including more than a dozen criminal appeals. Yes, because it is the first time it has done so in five years, since around the time the national court stopped holding hearings for most applications.

What will happen now? Most likely, Pell’s case will proceed like any case for which leave has been granted. The parties will put in full written arguments. (The court’s website already has a timetable up: we’ll read the arguments from Pell’s lawyer, Bret Walker, early in January and then the responses from Victoria’s top prosecutor, Kerri Judd, early in February, suggesting a hearing in March or maybe April.) The judges will likely “reserve” their decision after a day’s arguments and Pell will learn his fate around June.

At least, that’s how around three-quarters of referrals to five-judge panels turn out. The court sometimes does things this way to prod a proceeding along at one party’s request. (There’s been no word that Pell or his prosecutor asked.) And sometimes the judges want their suppliant to refine the grounds of appeal. (The court keeps any such letters to the parties secret from the public.)

Less often, the national court just wants to retain the option of staying with the case as long as it wants but ending its involvement at will. “The trapdoor can open at any moment,” Justice Dyson Heydon once told two tax evaders in Pell’s position nine years ago. It stayed shut in their case, but has opened in half a dozen others this decade. Pell’s case may end similarly next March, with the judges suddenly returning from lunch or a short break and ending the hearing without explanation.

Or perhaps the High Court had a reason specific to Pell. There’s a precedent of sorts in a recent high-profile case. In 2015, Queensland prosecutors’ application for leave to argue that Gerard Baden-Clay’s conviction for murdering his wife Allison should be restored was likewise dealt with “on the papers,” meaning that the controversial case had just one live hearing in Australia’s top court. The five judges sat in Brisbane and needed to provide an overflow room with a live feed to accommodate all of the spectators. The circuses that accompanied Pell’s Victorian hearings make it easy to see why the national court would avoid holding two hearings in his case.

The difference in Baden-Clay’s case, though, was that the High Court opted to grant special leave on the papers, rather than defer the prosecutor’s application to the next hearing. Why didn’t the court do the same with Pell? We will never know, but I wonder if the court’s hesitation this time was about whether its current processes could withstand the public scrutiny that is applied to all things Pell. How can such a controversial case be judged (and, especially, ended) by just two judges out of a bench of seven, with no reasons given? That question — which I think ought to be asked about every criminal appeal that reaches the national court — would have been front and centre of any coverage of Pell’s application, but for the High Court’s surprise decision on Wednesday.

The High Court has been involved in many divisive cases before, but they are usually constitutional cases on which all seven judges sit. It has also been involved in many high-profile criminal cases, but, since the national court stopped giving convicted suppliants hearings before at least five judges, none so divisive as Pell’s. It is the only comparable national court that currently resolves applications for leave to appeal in criminal cases with just two judges. The US Supreme Court takes cases whenever any four of its nine judges want to. New Zealand’s top court assigns panels of three of its five judges to hear every application and provides brief but specific reasons for every refusal. The Supreme Courts of the United Kingdom and Canada likewise assign panels of three to each application, and also provide an automatic right of appeal where, respectively, a lower court certifies a case of worthy of further consideration or at least one judge dissented from the lower court’s ruling.

It’s obviously a delicate matter to hint that any court has given different treatment to a particular high-profile case. The High Court and any lawyer who appears before it would be very vocal in denying such a possibility. But I see such a suggestion as less about the public sensitivities surrounding Pell and more about the institutional sensitivities of any national court that is forced to make sharply contested decisions where emotions run high. Indeed, much the same could be (and has been) said of recent decisions by Britain’s top court and coming ones in the United States.

We cannot (and should not) expect a court’s judges to wholly ignore how, in a high-profile case, they — and their processes — will also be judged. In the case of the four judges who denied special leave to Colin Ross, the final judgement came fifty years after the last of them died. In 2007, Victoria’s Supreme Court — relying on fresh evidence — recommended Ross’s posthumous pardoning for the murder of Alma Tirtschke. •

The post Pell the suppliant appeared first on Inside Story.

Last week’s announcement by Victoria’s chief justice, Anne Ferguson, that George Pell had lost his appeal against his conviction for child sexual abuse was accompanied by her observation that “it is fair to say that his case has divided the community.” She was probably referring to the very public divide between those who believe that Pell — like so many other priests before and since — is a child sex abuser and those who believe that the former archbishop is an innocent victim of lies and injustice. But there is a different, less discussed community division: between those who are sure either way about Pell and those who aren’t. It’s the latter schism that split Victoria’s Court of Appeal on Wednesday.

In his dissenting judgement, Justice Mark Weinberg writes that “there is, to my mind, a ‘significant possibility’ that [Pell] may not have committed these offences.” This is the eightieth time he has ruled on whether a jury’s verdict was unsafe — and the sixteenth verdict he has voted to overturn in a decade — but the first time even one judge has disagreed with his call. On Wednesday, the state’s two most senior judges did. After discussing the difference between judges and jurors, chief justice Ferguson and Court of Appeal president Chris Maxwell state, in parenthesis: “We do not ‘experience a doubt’ about the truth of A’s [Pell’s accuser’s] account or the Cardinal’s guilt.”

I have my doubts about Flynn’s sermon. Being in doubt is a good deal lonelier than being certain. People who are sure that Pell is either monster or martyr know exactly how to react to each development in his case. But those in doubt are left adrift. Is it right to be in doubt on such matters? Why, as Weinberg openly asks, don’t others share that uncertainty? Most of all, there’s the question Flynn posed, with its many possible answers, none satisfactory.

Aloysius: What happened in the rectory?

Flynn: Happened? Nothing happened. I had a talk with the boy.

Aloysius: What about?

Flynn: It was a private matter.

Aloysius: He’s twelve years old. What could be private?

Flynn: I’ll say it again, Sister. I object to your tone.

Aloysius: This is not about my tone or your tone, Father Flynn. It’s about arriving at the truth.

Flynn: Of what?

Aloysius: You know what I’m talking about. Don’t you? You’re controlling the expression on your face right now.

On learning his fate, “Pell slumped into his chair, looking frail. He appeared to grab onto the dock for support.” At least, that’s what Benjamin Ansell saw. Eliza Rugg saw his head bowed, “destroyed,” his “poker face gone.” But, according to David Marr, “Pell displayed once more his Olympian detachment. Don’t believe reports that he flinched. His lips pursed a little as he stared at the judges. That’s all.” These three were in the same room looking at the same man at the same time.

The 325 pages of the Court of Appeal’s two judgements are replete with moments like that. “Throughout his evidence,” the majority writes of the man who says Pell sexually abused him and another boy in 1996, “A came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution.” Not so, according to Weinberg. “On occasion, he seemed almost to ‘clutch at straws’ in an attempt to minimise, or overcome, the obvious inconsistencies between what he had said on earlier occasions, and what the objective evidence clearly showed.” The judges watched the same video of Pell’s accuser, the very one both juries saw, but it divided them nearly every time.

Consider one of Weinberg’s “obvious inconsistencies.” When he first spoke to the police in 2015, the thirty-two-year-old complainant didn’t say where he and the other boy were when they “nicked off” from the choir ahead of their abuse (and the police seemingly never thought to ask, even during a walk-through of St Patrick’s). At Pell’s committal in 2018, the complainant told prosecutor Mark Gibson that his “first specific memory” was being in the sacristy after “poking around in the corridors.” But, at that same hearing, he gave Pell’s barrister, Robert Richter, a detailed account. He and the other boy left when the choir was in a “procession” outside the church, entered the building through a south side entrance and went through some double doors before stumbling across the sacristy, which he’d never seen before. “That is understandable and consistent with human experience,” write the chief justice and the president.

Likewise for what the majority labels “undisputed facts” that “the jury were entitled to view” as “independent confirmation of A’s account,” specifically the man’s largely accurate description of the priests’ sacristy (which Pell was using at the time because his personal sacristy was being renovated). Weinberg saw no independent confirmation of anything, just some conveniently selective memory:

Mr Richter: You were taken, were you not, on a tour of the Cathedral when you joined the choir?

Complainant: I would have, yes.

Mr Richter: And you were shown the sacristies?

Complainant: I have no recollection of that, no.

Mr Richter: Do you dispute it?

Complainant: Um, no

But Ferguson and Maxwell think that “the jury were entitled, in our view, to discount” this exchange.

The different takes extend to what the lawyers told the three judges this year as they prepared for the appeal. The majority states that “the defence’s primary submission was that we should not watch any of the evidence” in the videos of Pell’s second trial. But Weinberg writes that Pell’s lawyers “initially objected” only to the court’s “desire to view the recording of the complainant’s evidence, as well as the recordings of several other key witnesses,” insisting that the judges watch a dozen more witnesses.

The three did end up spending “days” watching footage nominated by both sides, while expressing mixed views about doing so. Majority and minority cite, respectively, a High Court ruling and empirical evidence warning against reading much into how witnesses look or act in a courtroom. But the three also fret that — with the notable exception of the complainant’s testimony — Pell’s jury got to see the same witnesses in three dimensions, “collectively” and in an “unbroken sequence.” The latter differences seem to especially concern Ferguson and Maxwell. Noting that the judges’ own viewings were “for the most part, done individually,” they opted to mimic the jury’s experience when it came to Pell’s accuser. Unlike Weinberg, they seemingly watched his testimony cold (with a later reading of transcript “reinforcing the impression we had gained from watching these recordings”) and twice, as Pell’s jurors did, before and while they deliberated.

The viewings didn’t unite them. The prosecution’s appeal barrister, Chris Boyce, urged the judges to watch the complainant’s reaction after Richter asked him why he never spoke with the other boy about their abuse. Wednesday’s judgements reveal his response: “We couldn’t fathom what had happened to us.” On the majority’s computer, these words had a “ring of truth” and showed a “complete absence of any indication of contrivance in the emotion which A conveyed.” On his, Weinberg saw only that Richter’s question “seemed to cause the complainant a good deal of distress,” but that — possibly due to restrictions on cross-examination, both social and legal — its cause “was never made precisely clear.”

Aloysius: There was alcohol on his breath. (He turns.) When he finished meeting with you. (He comes back and sits down. He rubs his eyes.)

Flynn: Alcohol.

James [another nun]: I did smell it on his breath.

Aloysius: Well?

Flynn: Can’t you let this alone?

Aloysius: No.

Flynn: I see there’s no way out of this.

None of this is new. “I have in purely subjective terms a feeling of anxiety and discomfort,” declared NSW appeal court judge Brian Sully in 1993, “about the verdicts of guilty that were returned against the present appellant.” But he nevertheless upheld the jury’s finding that the defendant had sexually abused his thirteen-year-old daughter, explaining: “I am not persuaded that a reasonable jury, instructed as carefully and as fully as was done in the present case, must have been left with a reasonable doubt as to the guilt of the accused.” The judge’s two colleagues on the Court of Appeal didn’t share his concerns. A year later, though, the High Court ruled that Sully should have gone with his gut: “a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.”

The High Court’s decision to give Australian appeal judges a powerful role in reviewing jury verdicts followed its experience in a high-profile case a decade earlier. In 1984, the national court split three judges to two when it upheld the unanimous jury verdict that convicted Lindy and Michael Chamberlain for the murder of their daughter Azaria at Uluru. Just two years later, a chance discovery of Azaria’s missing matinee jacket — which the prosecution had doubted she was wearing — led to a speedy revisiting of all the evidence in the case and the belated quashing of the convictions. The reasons of the majority judges in the High Court — who together headed the nation’s judiciary for the entire 1980s and 90s — are painful to read today. By contrast, Lionel Murphy’s fiery dissent, literally on the eve of the corruption scandal that would close out his career and life, is feted for its foresight.

Justice Weinberg’s dissent in Pell’s appeal draws heavily on this history, but especially the lesser-known judgement of William Deane. Deane is probably Australia’s favourite governor-general, remembered especially for his compassion during national tragedies. Once a commercial law barrister, his dissent in the Chamberlain case was nothing like Murphy’s. He — alone among the dozen judges to judge the Chamberlains — openly admitted that he found their case “a difficult one.” Like most Australians at the time, he thought that the defence theory that a dingo killed Azaria was “far-fetched,” and was troubled by the Chamberlains’ own behaviour the night she vanished. But, he wrote, the prosecution case — with its ultra-tight timelines, multiple witnesses to be discounted and insistence on an inexplicable, heinous, public, spontaneous crime against a child — “strikes me as being, in its own less spectacular way, almost as unlikely as is the story of the dingo.” Almost! And yet, he would have freed Lindy Chamberlain years before the national consensus shifted in her favour. I nominated Deane’s anguished judgement for a recent book on Great Australian Dissents.

Weinberg’s finding that there is a “significant possibility” that Pell is innocent is a direct quote from Deane’s own conclusion about the Chamberlains. And his dissent follows Deane’s route to doubting a jury’s verdict. “I cannot conclude that the complainant invented these allegations, at least in respect of the first incident, and do not do so,” he writes, noting that, “sadly, as we have come to appreciate, there is nothing wholly improbable about allegations of that kind being true.” However, “the devil is in the detail” — specifically “a substantial body of evidence” on the improbability, not impossibility, of Pell being in the sacristy unaccompanied  — that  “left open at least a ‘reasonable possibility’ that the complainant’s allegations fell short of the standard of proof required.”

Weinberg devotes the last two pages of his reasons to setting out Deane’s position on the dangers of treating jury verdicts as “unchallengeable,” a stance, Deane wrote, that could “sap and undermine the institution of trial by jury” and risk making jurors “a potential instrument of entrenched injustice.” Deane’s warning was endorsed by New Zealand’s top court a decade ago, but Weinberg’s dissent is the first time it has been repeated by an Australian judge.

“I find myself in a position quite similar to that which confronted Deane,” Weinberg writes, and he can’t help pointing out that Deane’s dissent “was ultimately, though for other reasons, proved correct.” In 1984, no one would have predicted that the Chamberlains would be exonerated in a few short years. However, continuing developments in forensics and the slim chance that Azaria’s body might be discovered meant that everyone, including the High Court’s judges, knew that one day the case’s mysteries might be solved. There is no prospect of that happening in Pell’s case. The only things we can ever know about what happened at St Patrick’s in 1996 are inside a few people’s heads.

James: Take your time, Father. Would you like some more tea?

Flynn: You should have left it alone.

Aloysius: Not possible.

Flynn: Donald Muller served as altar boy last Tuesday morning. After Mass, Mr McGinn caught him in the sacristy drinking altar wine. When I found out, I sent for him. There were tears. He begged not to be removed from the altar boys. And I took pity on him. I told him if no one else found out, I would let him stay on.

(Sister James is overjoyed. Sister Aloysius is unmoved.)

History repeats, even in the High Court. In 1994, the seven judges of the national court not only ruled that appeal judges should generally give effect to their own doubts when judging jury verdicts, but also judged a jury verdict themselves. The court ruled that the jury’s finding of guilt in a child sexual abuse case was unsafe. The majority judges (including William Deane) explained that a teenager’s account of being raped by her father was rendered improbable by the squeaky bed on which she said the crime occurred and was contradicted by medical evidence (of her “intact hymen”), the television guide and her father’s denials. Tellingly, the decision was four votes to three. In my view, the decision has aged badly.

I’m not alone in thinking that. Ferguson and Maxwell’s judgement dismissing Pell’s appeal relies heavily on one of the dissenting judges in the 1994 case. Unlike Dr Ferguson and Rhodes scholar Maxwell, Michael McHugh left school at fifteen for a variety of blue-collar and later white-collar jobs, before working his way to a legal qualification. He was soon recognised as a formidable trial and appeal advocate. One of his last cases before becoming a judge was to represent the Chamberlains in their (unsuccessful) court appeals.

But McHugh’s sharp dissent from the High Court’s later ruling on child sexual abuse verdicts championed the jury system. “The collective experience of the jury is more likely to fit them for the task of evaluating the evidence,” he wrote, noting that judges assessing the conduct of a thirteen-year-old complainant must rely on views “derived from their own past contact with teenagers [that] may well be out of date.” (Pell’s accuser was born during Ferguson’s last year as a law student, Maxwell’s first as a barrister, and the first year of Weinberg’s stint as head of my law school.) In their own judgement, Ferguson and Maxwell write that Pell’s jurors “had the advantage not only of a far wider range of life experience than that of three judges but of being able to draw on each other’s experiences in the course of their deliberations.”

I spent much of my doctorate on proof in rape trials championing McHugh’s approach to deciding whether to believe a sexual abuse complainant. In 1994, McHugh had no access to videos of the complainant. Instead, he pored over the transcript, to conclude that “there was much in the detail of her account that made her central allegations ring true,” citing passages like this one:

Q: What did you understand at that point that he was talking about?

A: Then I understood that he meant had I had sex with Mark. So I said, “Dad, we didn’t go all the way” or something like that. And Dad just went, “Right.” Then he got on top of me and he started to push his penis into my vagina, and he kept saying, ‘Lift your hips up and it won’t hurt as much.’”

Ferguson and Maxwell likewise found multiple “rings of truth” in the evidence of Pell’s accuser, while also quoting McHugh at length on the insignificance of more peripheral details. On the often-shifting dates the complainant nominated for when the sexual abuse occurred — a point Weinberg dwelt on in his dissent — the majority judges simply observe that “This is the kind of detail about which honest witnesses make mistakes, as McHugh J said.”

I think the majority of the High Court in 1994 overcompensated in response to their court’s failure in the Chamberlain case a decade earlier. The case before them had several features that make it a much stronger prosecution case than many child sexual abuse trials, including Pell’s. Unlike many abuse victims, including the boys in Pell’s case, the teenager told multiple people about what her father was doing to her: first her best friend, then her sister, then a school counsellor. And, although her father denied all and even testified in his defence, he didn’t come across well. “I would suggest,” he told the police, “that our first priority would be to find out whether in fact K [his thirteen-year-old daughter] is still a virgin.” McHugh thought that those words revealed far too much knowledge about his daughter’s hymen. His words simply frighten me. (I dedicated my doctorate to the unnamed complainant.)

The reason I find Father Flynn’s question about uncertainty so difficult is that there are enormous dangers both in making too much of doubts and in making too little. Too much doubt is why the courts (among others) have allowed far more than one monster to prey on children. While Ferguson and Maxwell refuse to mention the elephant in the room in their judgement, Weinberg states that the royal commission’s findings on that topic “represented a shocking indictment of clerical abuse in this country.” But Weinberg also raises the case of Carl Beech, who was sentenced in late July this year — while the three judges deliberated on Pell — to eighteen years in an English prison for inventing claims that he and others were the victims of half a dozen monsters, many well-known figures.

Beech’s story was exposed because he made claims that could be tested decades later, specifically that the villains had repeatedly broken his bones. Were it not for that detail, it might not have been him who was imprisoned last month. Long before X-rays proved him a liar, the investigation’s head publicly declared Beech’s story “credible and true.” Those words frighten me too.

When I read the Court of Appeal’s judgements on Pell, I see signs of both the majority and the dissent overstepping their respective marks. Weinberg’s stated willingness to believe the complainant’s account of an archbishop raping two choirboys in the St Patrick’s sacristy (but for the “devils in the details”) did not extend to the same witness’s account of Pell striding into a group of choirboys and briefly grabbing his genitals. “I would have thought that any prosecutor,” writes the former director of public prosecutions, “would be wary of bringing a charge of this gravity against anyone, based upon the implausible notion that a sexual assault of this kind would take place in public.” But to the majority (and me), “a fleeting physical encounter of the kind described by A can be readily imagined” and “it seems to us to be quite possible that this brief encounter was not noticed” except by abuser and abused.

But the majority goes further than I would. “What does seem improbable to us,” they write, “is that A would have thought to invent a second incident if his true purpose was to advance false allegations against Cardinal Pell,” noting that more incidents mean more risks of the story unravelling. I find this claim not only dubious — because the same things that make the second incident harder to notice also make it harder to disprove — but dangerous. The majority reasons this way throughout their judgement, asserting that the problems of the complainant’s account — his errors, his uncertainties, some of its improbabilities — are not merely explicable but positively “supportive” of his credibility, on the basis that a liar would have told a more believable story. At the end of that path of reasoning waits Carl Beech.

James: Well. What a relief! He cleared it all up.

Aloysius: You believe him?

James: Of course.

Aloysius: Isn’t it more that it’s easier to believe him?

James: But we can corroborate his story with Mr McGinn!

Aloysius: Yes. These types of people are clever. They’re not so easily undone.

James: Well, I’m convinced.

Aloysius: You’re not. You just want things to be resolved so you can have your simplicity back.

Shanley’s screenplay won a Tony and a Pulitzer, and was also nominated for an Oscar when adapted for film in 2008. The three-hander’s A-list cast — Meryl Streep (playing Sister Aloysius, twenty years after she played Lindy Chamberlain on screen), Philip Seymour Hoffman and Amy Adams — improbably received four acting nominations, with Viola Davis nominated for a stunning ten-minute scene as Donald’s mother, which I won’t spoil here. I saw Doubt on stage in 2006. Later productions in Newcastle and Melbourne in 2015 and Sydney in 2017 overlapped with the royal commission. I’m not sure it’ll be staged here again.

Much has been made of Mark Weinberg’s criminal law experience. It’s true that he has an extensive career in criminal justice and has heard eighty unsafe verdict appeals compared with Anne Ferguson’s five. But Chris Maxwell, the Court of Appeal’s president, has heard eighty-five. I’ve previously noted that none of these judges overturns jury verdicts as often as their colleagues. Ferguson’s limited experience explains why she is yet to overturn a jury verdict, while Maxwell’s rate of one in eight is lower than Weinberg’s one in five. Pell’s case is the first unsafe verdict appeal in which Mark Weinberg was at odds with his colleagues (including Chris Maxwell, whom he’s sat with in such cases twenty times to date), but it’s the sixth time Maxwell has differed from either or both of the other judges on his panel. Each time, the Court of Appeal’s president voted to uphold the jury’s verdict.

And yet, Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty unsafe verdict cases, the same rate as Weinberg’s. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an unsafe verdict argument (a six-year period where Weinberg allowed such appeals seven times as part of unanimous benches and Maxwell dismissed five as part of divided benches). It’s as if, at some point in the last six years, Maxwell simply stopped doubting.

At the end of Doubt, Father Flynn leaves the parish after a single conversation alone with Sister Aloysius, where each confesses to (unspecified) mortal sins. Shanley lets the audience, with Sisters Aloysius and James as their surrogates, decide whether Flynn is a monster. Fifteen years after its debut, the play perfectly catches the tenor of the times, with the exception of its very last spoken line.

Aloysius: In the pursuit of wrongdoing, one steps away from God. Of course, there’s a price.

James: I see. So, now he’s in another school.

Aloysius: Yes. Oh, Sister James!

James: What is it, Sister?

Aloysius: I have doubts! I have such doubts!

(Sister Aloysius is bent with emotion. Sister James comforts her. Light fades.) •

The post A judge’s doubts appeared first on Inside Story.

By contrast, although the first twenty-four people to judge Pell’s guilt or innocence have never been named, we know they weren’t lawyers. Or politicians, cops, public servants, criminals, bankrupts, mentally ill or otherwise barred from sitting on a jury of Pell’s peers. That aside, the first twenty-four owe their right to sit in judgement over Pell entirely to luck.

As one of more than four million or so voters on Victoria’s jury list, each was assigned to a pool of thousands slated to do jury service in Melbourne in the last third of 2018. Each was one of the hundreds drawn from those thousands to make up two panels, members of which were told that they may be selected to serve on Pell’s jury. Having neither opted out nor been successfully challenged by Pell or his prosecutor, each was chosen as one of the thirty people who sat in the jury box for Pell’s two trials. At the end of those trials, each was part of a jury of twelve sent to the jury room to deliberate after excess members were balloted off.

Beating these one-in-170,000-or-so odds is not so lucky. Pell’s first twelve judges bear the burden of being unable to agree on his guilt or innocence, forcing a second trial. We know that at least two of the twelve would have convicted him and two would have acquitted him. Reporters at the trial say that several were in tears when their jury “hung.” Reporters who weren’t there claim that the split was ten to two in favour of acquittal, but don’t explain how they know. The twelve jurors risk up to five years in prison if they tell anyone other than their therapists what the vote was.

Pell’s second jury bears the heavier burden of being able to agree. We know that all twelve found him guilty. They can’t speak about their experiences either. Jurors in trials outside Victoria who have spoken publicly about reaching a guilty verdict describe many different feelings: pride, excitement, frustration, doubt, regrets. The responsibility of putting someone in jail can be very distressing. I quote one juror in my book, The Ouija Board Jurors, who described his jury’s emotional state as they convicted an insurance broker on a double murder in this way:

At that point every juror was crying. Every juror. There’s tears coming out of their faces. They just… this was it. This was the bit they didn’t want to do. This was the bit they couldn’t cope with and they knew you can’t change your mind.

And after:

We went into the jurors’ room again and everyone’s sitting there sobbing. It was… for five weeks nobody had had any physical contact but there was people cuddling, there was holding hands, there was people saying goodbye and we were actually in that room for an hour before we could compose ourselves enough to actually leave the court.

Those jurors were blessed with judging a defendant who nearly everyone believes is guilty. Pell’s jurors were not so lucky.

“Everything is overshadowed by the forthcoming appeal,” wrote George Pell’s anonymous accuser on the day in February when the cardinal was sentenced to six years in prison. He wasn’t wrong. In Australia, criminal appeals are no mere footnotes to the jury verdict but a fundamental part of the criminal justice system. Watchers of American television might think that the sole role of appeal courts is to judge the trial judge, but only two of Pell’s appeal grounds fit that picture.

Like all trials, Pell’s two hearings began with a ritual. Chief judge Peter Kidd confirmed the defendant’s name, read out each of the charges against him and asked for his plea. There were no surprises in what Pell said — his name and “not guilty,” four times over. But none of his jurors were in the courtroom to hear what turned out to be the only words he said at either trial. They were still part of a panel of hundreds, too many to fit in the courtroom. Kidd sensibly arranged for them to watch Pell’s plea on a screen in a different room.

Unfortunately, in 2009 Victoria’s parliament devised a much less sensible way to deal with the problem of oversized jury panels: bring one part of the panel into the jury room to observe the defendant’s plea. Pell’s argument that Kidd breached the statute by not doing so is strong, but it’s a classic technical point. No one seriously thinks he was done an injustice.

The opposite applies to Pell’s second appeal ground, which also concerns a video. Both of Pell’s juries toured the scene of the crime, St Patrick’s Cathedral, but not — for obvious reasons — right after Sunday mass, when the crimes were alleged to have occurred. In his closing argument at Pell’s second trial, Robert Richter asked to show the jury a video animation detailing where church staff were likely walking while Pell allegedly raped two boys in the sacristy. After prosecutor Mark Gibson objected, though, Kidd stopped Richter from showing it.

Here, the law is with Kidd. The video probably counted as new evidence that should have been shown before the defence rested its case. Nevertheless, it was a bad look for justice: the prosecutor’s stance seemed designed more to disadvantage the defence than ensure justice was done. I suspect that Pell has raised this appeal ground not because he expects it to succeed but instead to cast doubt on the claim that he was given every chance to put his defence.

Pell’s third ground, and his real argument, is that the jury’s verdict was unsafe. It is here that Australia’s law on criminal appeals — as well as Canada’s, England’s and New Zealand’s — dramatically parts company with that of the United States. Anyone convicted of a crime in Australia can ask an appeal court to determine for itself whether it agrees with the jury’s guilty verdict. Victoria’s appeals statute says that an appeal court must allow the defendant’s appeal if it is satisfied that “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.” In other words, it judges the jury’s verdict.

How this appeal ground works in Australia was once a contentious question that repeatedly returned to the High Court. The two approaches were on display when Lindy Chamberlain appealed against her conviction for murdering her baby, Azaria, on which the justices of the High Court divided. On one side was future chief justice Gerard Brennan, who said that appeal courts must not take on “the impossible burden of retrying every appeal case on the papers.” Instead, he said, they should exercise their “extraordinary power” only in special cases. On the other side was future governor-general William Deane, who said that Brennan’s test “could sap and undermine the institution of trial by jury” by making jurors bear the responsibility for every injustice. Deane believed the appeal judges should perform for themselves the jury’s own task of deciding the verdict, allowing for the fact that the jurors had the advantage of seeing the witnesses testify.

The outcome of the case starkly illustrated the difference in approach. Brennan, part of the three-judge majority dismissing Lindy Chamberlain’s appeal, thought the task for appeal judges was so easy that it didn’t even merit further scrutiny by the national court. By contrast, Deane, one of two dissenting judges, candidly described his task as “difficult.” In an agonised decision — voicing considerable doubts about the defence’s dingo theory — he concluded that “doing the best that I can, I have finally come to a firm view” that there was reasonable doubt about Lindy Chamberlain’s guilt.

History vindicated Deane on both the facts and the law. A decade later, and six years after the Chamberlains were belatedly acquitted of murdering their daughter, the nation’s top court settled the test for unsafe verdicts in Deane’s favour, with only Brennan objecting. “A reasonable doubt experienced by the court,” the High Court wrote in 1994 when allowing a child sexual abuse appeal, “is a doubt which a reasonable jury ought to have experienced,” adding that if “there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.” This test, stated just sixteen months before Pell’s alleged crimes at St Patrick’s, will decide if the cardinal spends his eightieth birthday inside a prison cell.

Once again, this appeal ground centres on a video, this time one recorded at Pell’s first trial. In it, Pell’s anonymous accuser testified from another location via closed-circuit television. Instead of having him testify at the second trial, the video was simply shown to the new jury. And that means the appeal judges can, if they choose, see exactly what led Pell’s second jury to convict him of all four offences, leaving them free to decide his appeal without any deference to the jury’s advantages.

To date, no one but the judge, the jurors, the lawyers and Pell himself has seen the video, but it is clear that the accuser’s testimony was compelling, even in the face of hostile questioning. We also know that its subject matter concerns horrible events that occurred in the space of minutes, decades ago, out of sight of nearly everyone. The three judges will be well aware that cross-examination can only go so far in questioning such an account. The same is true for a second video the jury saw, in which Pell angrily denied the accuser’s claims put to him by police in Rome.

Pell will argue that neither video is enough to support a safe verdict. This is a make-or-break issue for Pell’s prosecutors, because Pell’s trial is a rare one where there is no other evidence of guilt. Unlike many child sexual abuse trials, there was no evidence of the accuser’s earlier complaints before he went to the police, of the defendant admitting that anything untoward happened, of other similar complaints against the defendant or of any other interactions with the alleged victims. Unlike nearly all such trials, there is no evidence placing accuser and accused even in the same room. The most the prosecution could offer was (disputed) evidence that the accuser’s account was at least logistically possible.

What makes Pell’s trial almost unique is the absence of the other person the jury concluded Pell raped that day in the sacristy at St Patrick’s. That man told no one at all that Pell abused him and even denied it outright when asked. Such denials are entirely consistent with abuse, but also with not being a victim at all. The man’s death, just one year before Pell’s accuser went to the police, means that we can never know what he would have said about the accusations against Pell.

Neither the accuser’s testimony nor the other man’s (and other evidence’s) absence are likely to be enough to decide Pell’s appeal. Rather, the case will likely turn on each judge’s individual view of what is plausible or possible within those parameters. Is it plausible that Pell would rape two boys in an unlocked room after Sunday mass during his first year as a Melbourne archbishop? Is it possible that Pell’s accuser, who has no history of dishonesty, wrongdoing or fantasy, would lie not only to the police but in days of convincing court testimony?

These are questions on which reasonable minds can differ. Pell’s fate will be decided by whichever pair of Anne Ferguson, Chris Maxwell and Mark Weinberg reach similar answers.

Victoria’s Court of Appeal hears around 250 criminal appeals each year, but two-thirds concern whether a sentence is too high or too low and most of the rest concern whether a trial judge made a mistake. Barely a dozen convicted criminals a year argue that the jury’s verdict against them was simply unsafe. Since 2016, ten such appeals have succeeded in Victoria, a success rate of around one-in-four. But Pell’s appeal doesn’t turn on two tosses of a coin: the outcome will be no more random than the choice of which judges would hear his case.

Ferguson, Maxwell and Weinberg may sound like a mid-tier law firm, but the trio sit at the pinnacle of Victoria’s judiciary. Anne Ferguson and Chris Maxwell are the state’s two most senior judges, respectively its twelfth chief justice and its second president of the Court of Appeal. At his retirement in the middle of last year, Mark Weinberg was the state’s most respected sitting judge, unlucky to have missed out on a seat on the High Court. As both a former criminal law academic who rose to be dean of Melbourne Law School and a former criminal barrister who became the federal director of public prosecutions, he is arguably Australia’s most experienced criminal law jurist. He can sit in this case despite his mandatory retirement at age seventy, thanks to a provision in Victoria’s constitution allowing former judges to be appointed as “reserve judges” until they turn seventy-eight.

Placing Pell’s case in solid hands will be good for Victoria’s courts in what is arguably the most high-profile appeal ever to be heard in the state. But Pell himself would probably have preferred to be judged by someone else. The state’s one-in-four success rate for unsafe verdict appeals seems to be mainly due to other judges on the state court.

In the last three years, Weinberg ruled three jury verdicts unsafe, but rejected a further fifteen such arguments, a success rate of just one-in-six. More disturbingly for Pell, the other two judges ruled unsafe none of the jury verdicts they considered. For the chief justice, that simply reflects how few criminal appeals she hears, given the demands of administration and her commercial law background. But for Maxwell, the rate seems to reflect his own scepticism when it comes to reasonable doubts of guilt. He has been left unmoved by all nine unsafe verdict appeals he has heard since 2016, including two in which both of his fellow judges upheld the defendant’s appeal.

Past judgement counts are even worse than federal opinion polls as predictors of future decisions, because criminal appeals are just too varied and unsafe verdict appeals are a very select group. More troubling for Pell is that Chris Maxwell has long expressed the test for unsafe verdicts without any reference to doubts held by the appeal judges themselves, instead asking whether the jury “must, as distinct from might, have entertained a doubt.” By contrast, Mark Weinberg was recently part of a unanimous panel that pointedly rejected any more “stringent” test than the High Court’s 1994 decision, emphasising that the appeal court should “conduct its own independent assessment of the evidence that was before the jury.”

The Court of Appeal would surely be loath to make a high-profile appeal like Pell’s the occasion to choose between these two arguably different approaches. Rather, the three judges are likely to strive to reach a unanimous decision that emphasises the particular facts in Pell’s trial. As David Marr recently observed, Pell will surely take heart from the fact that Weinberg’s reaffirmation of the High Court’s 1994 decision came in a case of institutional child sexual abuse, indeed one that, like Pell’s, involved a police complaint first made in 2015.

There is little comfort for Pell in the ruling’s specifics: the Court of Appeal (including Weinberg) excoriated the prosecution, citing many inconsistencies in the accuser’s testimony, multiple implausibilities in his allegations, and doubts due to the death of numerous possible witnesses before the accuser complained to the police. Pell is not blessed with anything like these flaws in the case against him, which involves much simpler and less ancient allegations. Rather, the decision’s significance lies in the Court of Appeal’s acknowledgement — in a case heard the same day Pell’s guilty verdict was publicly revealed — that Victoria’s police, prosecutors and jurors can all fail — and fail badly — to find justice in a contemporary trial of historical institutional child sexual abuse.

Much like Pell’s jurors, Anne Ferguson, Chris Maxwell and Mark Weinberg would surely rather not be his judges. But performing that role is not only their duty but their job, which includes providing detailed reasons for their decision, ones that will permanently stand next to their names. While by no means certain, Pell’s chances of a ruling that his jury’s verdict was unsafe are good.

But, as is presently the case for his accuser, any victory for Pell will “be overshadowed by the forthcoming appeal,” this time to the High Court of Australia. That court, alone among Pell’s potential judges, has the freedom to choose whether to decide at all. Whoever wins in the Court of Appeal, Pell, his accuser and the rest of us will learn whether the national court will take on the case by the end of the year. If it does, then all bets are off.

Unlike the Court of Appeal, the High Court only rarely hears arguments about the safety of jury verdicts, and does so disproportionately in high-profile cases: Colin Ross, Leith Ratten, Lindy Chamberlain, Gerard Baden-Clay. Nor is it bound to follow its earlier rulings. In these ways, Pell’s potential twenty-eighth through to thirty-fourth judges bear a closer resemblance to his first twenty-four than to his next three. We would hear any verdict of Pell’s final jury of five or seven in the middle of next year. •

The post Pell’s judges appeared first on Inside Story.

But the checklist has a bonus for racist voters. They no longer have to guess each candidate’s ethnicity based on the candidate’s surname and picture. Remember those eight last-minute candidates the major parties nominated who all have Anglo-sounding surnames? The checklist reveals that they are all as (non-immigrant) Aussie as you can get. Just one of their forty-eight parents and grandparents — the paternal grandfather of the lone Labor replacement — was born overseas (in Gloucestershire). Last week, I speculated that ethnicity was probably the sole criterion for their selection. This week, one of them resigned after the media noticed that he had made a homophobic attack on a star Liberal candidate.

Peter Killin owed his selection as the Liberal candidate for Wills to the “Indian heritage” of the preselected candidate, Vaishali Ghosh. Her reported legal problem wasn’t foreign citizenship, but rather the possibility that she is “entitled” to some of the privileges of Indian citizenship. As of 2015, people with Indian ancestors are allowed to live in India as long as they want, without a visa or even registering with the police.

Ghosh likely baulked at giving up that right, which would automatically cancel the same right for her spouse and kids. Even though no one knows if a mere right to live in India (without any right to vote or be elected to India’s parliament, or even to work in the public service) is enough to disqualify someone from Australia’s parliament, the Liberals apparently weren’t willing to risk the embarrassment. Instead, they — and the voters of Wills — got Killin.

To find out who else we’ve got, you need to read each candidate’s checklist. It isn’t easy. Some are illegible. Others make no sense. A few give too much information, such as where a candidate spent last Christmas. More give far too little. “I don’t have a legal father,” declares one. (The Labor candidate for Indi is reportedly the child of a non-anonymous sperm donor from New Zealand.) My father “was not listed on my birth certificate,” says another. (Anthony Albanese omits how he recently tracked down his father after his mother’s death, as well as the constitutionally dangerous detail that Carlo Albanese was Italian.) Many detail their foreign ancestry but barely explain why they missed out on foreign citizenship. (Josh Frydenberg’s checklist simply states that his Hungarian and Polish parents were stripped of their foreign citizenship in 1948 and doesn’t address whether they or he might have regained it.)

Some allegedly lie. The commission has no power to refuse a nomination, but it has referred Rod Culleton to the Australian Federal Police. Culleton was the first person to be disqualified after the 2016 election, thanks to a belatedly annulled conviction for stealing some car keys. His problem now is that the government labels him bankrupt, but he ticked “no” to that question on his checklist. Still, the police referral seems unfair. Culleton wrote “see attached” next to his answer and supplied pages of legal argument as to why he isn’t bankrupt (and also why he remained a duly elected senator until parliament was dissolved in April). Right or (more likely) not, his checklist’s transparency makes it a very poor case for prosecution.

Anyway, take a step back for a moment. Why should Culleton’s theft conviction or his bankruptcy or Ghosh’s free-ranging right to move to India automatically rule out their serving in our parliament? After all, none of these things automatically rules out being an Australian police officer or a bankruptcy judge or a diplomat (though they might bite in some circumstances). Nor do they disqualify anyone from being elected to the parliaments of Canada, New Zealand or (except for fraudulent insolvency) the United Kingdom. The fact that Donald Trump might be a US–British dual citizen doesn’t disqualify him from the presidency, and nor would his bankruptcy.

These things may matter a lot to some voters, who should vote accordingly. But others may think they’re irrelevant, understandable or no worse than other politicians’ questionable pasts. The entire point of section 44 of the Constitution is to stop this latter variety of voters from having their say in Australia.

Alas, section 44 remains very popular with many voters, who blame politicians for not “following the rules.” That is the take of the Rise Up Australia Party, which says that last parliament’s debacle shows a “general lack of accountability within the government ranks to ensure all representatives qualify for the very responsible positions they hold,” and wants section 44 to be applied to state parliaments too. “Does the average Australian want their local MP to be a citizen of, and showing allegiance to another country such as Syria, Iraq, Afghanistan, Palestine, Nigeria, North Korea, China and who knows…?”

The checklists of several Rise Up candidates tell a different story. One sent the Italian consulate an email the week before nominations closed with the subject “Urgent Please heck [sic] my dual Citizenship due to upcoming election.” Several wrote on their forms that they had no idea where one or both of their parents were born or whether they ever became Australian citizens. The checklist of the party’s top Senate candidate in Victoria, Rosalie Crestani, includes a set of cryptic German records and her assertion that her relatives all lost their overseas citizenships when they naturalised as Australians. She includes a statutory declaration sworn before her local chemist, stating that “I may be eligible to apply for restoration of an inherited Lithuanian citizenship, however I have not applied for Lithuanian citizenship and will not apply.”

On my count, Crestani is one of a least five Victorian Senate candidates at the top of their party’s lists — and hence with a chance of being elected — with possible section 44 problems. The Help End Marijuana Prohibition’s #1 candidate has an English father and an Irish mother, while Health Australia’s #1 candidate has an Irish father and a UK mother, but neither supplies any evidence of their renunciation of one or both of their British Isles citizenships by descent, a similar problem to multiple MPs last election.

The Secular Party’s top candidate, meanwhile, admits to having been a Pakistani citizen until just a few weeks before nominations closed and supplies only a letter from the Pakistani consulate forwarding his request to Pakistan as proof of his renunciation, the type of move that felled several Labor MPs last time. Sustainable Australia’s main candidate has a Dutch-born father, which could make him Dutch too in some circumstances, depending on when his father moved to Australia and took up Australian citizenship. His checklist doesn’t say.

There is nothing wrong with voting for a potentially disqualified candidate. Even if his or her election is ruled invalid by the High Court, your next preference will count anyway (in the Senate) or you can vote again in a by-election (in the House of Representatives). But if voting for a disqualified candidate is a problem for you, then you need to read each candidate’s checklist.

The main questions to check are 2 (on ancestors’ known foreign births) and 5 (on ancestors’ known “acquired” foreign citizenships). A “no” to both suggests that there are no dual citizenship problems (assuming they didn’t admit to known unknowns in their ancestry — check for a “no” or “N/A” to question 3 or a “no” to question 4). In my own electorate of Melbourne, three of the candidates — from the Liberals, Reason Australia and an independent — appear safe (assuming they filled in the form properly).

Any other candidates need a closer look. In Melbourne, the Animal Justice Party candidate reveals that he has UK-born grandparents, but that’s it for foreign-born ancestors. Although he provides no further explanation, he’s likely in the clear because British law largely precludes citizenship by “double descent.” On the other hand, the United Australia Party candidate, like many others in his party, submitted a checklist that asserts he has both foreign-born and foreign-citizen ancestors, but provides no details about them and doesn’t explain why. There is no way to check his claim that he isn’t a dual citizen. Or his ethnicity, if that matters to you. (“Melbourne is a great multicultural city, and I hope that Melbourne will always be fair, free and strong,” he says in a UAP press release.)

That left the two candidates with the best chance of winning in Melbourne: Greens incumbent Adam Bandt and (until his resignation) Labor challenger Luke Creasey. Both admit to having foreign-citizen ancestors and provide full details. Each denies having any foreign citizenship themselves, but their denials differ. Bandt, who has a British mother, attaches a recent letter from the UK’s “Nationality Team” confirming that Bandt can “derive no claim to British citizenship.” The excellent British citizenship site explains the queasy details: Bandt was born before Britain ditched its sexist ban on citizenship by maternal descent.

By contrast, Creasey, who has grandparents born in what is now Ukraine and Serbia, simply asserts that he “was incapable of acquiring foreign citizenship by descent from my foreign born maternal grandparents because they were stripped of citizenship and rendered stateless due to the events of WWII.” Understandably, he provides no evidence of these historical claims. Less understandably, he also provides no evidence of his current status under Ukrainian or Serbian law. Voters either have to trust that Labor’s vetters have checked these things or do their own foreign-citizenship research.

Creasey has now resigned from the Labor Party (but remains on the ballot, like all “disendorsed” candidates) because of a different part of his history, his social media antics from seven years ago. In revealing the gory details, the Herald Sun mentions in passing that Creasey is “a teacher at Coburg High School.” If that’s true, then he’s undoubtedly disqualified from being an Australian MP for holding an “office for profit under the Crown,” just as Phil Cleary was when he won Wills back in 1992. But it’s likely that Labor made Creasey quit his teaching job before he nominated, and he probably felt safe to do so because Victoria allows federal election candidates who quit their teaching jobs to apply to get their same job back if they lose. The catch is that it is up to the state government whether to rehire them. Thanks to section 44, Creasey must now hope that the education department doesn’t hold his social media past against him.

Voters have an additional role they can choose to play in the coming election: they can enforce section 44 of the Constitution. After the election writs are returned — presently scheduled for no later than Friday 28 June — all voters have forty days during which they can petition the High Court of Australia to challenge the outcome in their electorate or (for the Senate) their state. Bringing a petition is not for the faint-hearted. Petitioners will face close scrutiny from the High Court or the Federal Court, likely responses from senior lawyers hired by the major parties, and the possibility of paying everyone’s legal fees. They have to deposit $500 as security against the latter possibility.

Nevertheless, we’re likely to see a lot of petitions after the 2019 poll, the first since section 44 morphed from oddball annoyance to mass inconvenience in the last parliament. More importantly, it’s also the first poll since the High Court ruled — in dismissing a challenge to the Nationals’ David Gillespie over his interest in a shopping centre with Australia Post as a sub-tenant — that voters cannot bring a challenge in any other way. The only other option is referral by majority of a house of parliament, and the previous parliament promised that it would only refer MPs if they omitted something from their checklist. So, the voters’ right of challenge forty days after the writs close is use it or lose it, especially when it comes to things admitted to in the 1514 checklists.

As well, whether or (more likely) not the checklists succeeded in their goal of prompting candidates “to actively consider their circumstances,” they will help voters seeking to lodge petitions to find potential grounds for a challenge, without relying on the major-party targeting, long-term investigations, luck and media scrutiny that yielded scalps last parliament. That alone isn’t a recipe for chaos. The richest pickings will be in the minor parties, whose candidates generally only win in the Senate, where the most a petition can do is force a recount that typically puts the next candidate in the party’s list into parliament. Challenges to major-party candidates in the House can force a by-election, but voters to date have always simply re-elected the disqualified candidate or their party’s replacement.

What may cause chaos is the nature of the challenges brought. Last parliament’s disqualifications all came about because of MPs’ resignations or referrals by a house of parliament, generally based on clear legal advice that the MPs were in breach of section 44. As well, parliament opted not to refer candidates in some circumstances because of political or moral squeamishness, for example with descendants of second world war refugees, like Josh Frydenberg or Jason Falinski (or Luke Creasey), and especially sympathetic examples like Anthony Albanese. By contrast, individual voters are free, if they’re game, to bring challenges based on much more speculative legal arguments about the outer limits of section 44 against whomever they want. In some instances, voters’ challenges will allow major parties to extract the strategic advantages of such petitions without paying the political cost.

Any number of speculative arguments could be brought, but the commission’s checklists facilitate an especially broad one. The Constitution bans not only dual citizen MPs, but also MPs who are merely “entitled to the rights or privileges of” a foreign citizen. The potential reach of this ban is huge. In my electorate of Melbourne, the Greens’ Bandt is vulnerable, because his ancestry may give him the right to obtain foreign citizenship, as was Labor’s Creasey.

Bandt’s possible entitlement arises because Britain allows him to reverse the earlier sexism of its citizenship-by-descent laws, though his eligibility depends on his mother’s continuing British citizenship and his satisfaction of a “good character” test. Applications can be made online, but cost nearly $2000. Creasey’s possible entitlement to Serbian citizenship, although based on a more distant ancestor, is broader because Serbia allows anyone with Serbian ancestry to claim Serbian citizenship, on applying at an embassy and paying $367. Neither Bandt nor Creasey has to move overseas or prove a present connection to his ancestors’ homelands, though Creasey would have to sign a statement that he “accepts” Serbia as his “country.”

On the perverse logic of section 44, banning people who are merely eligible to become citizens of another country (without onerous requirements) makes sense because a future allegiance may conceivably conflict with an MP’s loyalty to Australia. However, as Australia’s leading constitutional law academic Anne Twomey has rightly commented, such a ban would cause chaos. And, unlike actual citizenship, which can usually be renounced, a possible entitlement to citizenship is, paradoxically, hard to get rid of.

Still, as Twomey says, no one can know for sure if this argument will work until the High Court so holds. Bringing a petition is one way to achieve that end. The same is true for plenty of other speculative arguments, such as ones based on candidates’ business interests, including their interest in companies that lease space to Australia Post, claim childcare benefits or use Medicare.

What is especially tempting about such arguments is that some of them can be applied to MPs in very marginal seats, where a rerun might buck the usual trend of voters simply re-electing disqualified candidates. Labor’s candidate for Australia’s most marginal electorate, Cathy O’Toole, who won Herbert by just thirty-seven votes in 2016, has a Lebanon-born grandfather, which likely entitles her — under a new scheme enthusiastically promoted by the Lebanese government — to reclaim her Lebanese ancestry for free. The checklist for Anne Aly, the sitting member for another ultra-marginal, reveals that she still lacks proof that the Egyptian government has issued a decree removing her Egyptian citizenship, as Egyptian law seems to require.

Labor’s candidate for another key seat, Banks, claims that he lost his Indian citizenship (acquired by descent) when he became an Australian, but that assertion is murkier for people born in Australia. His candidacy raises questions about the significance under Indian law of acquiring an Australian passport and the significance under section 44 of his ability to live in India for life without a visa.

Like many, I think all of the challenges to major-party candidates have long odds (although I’m often wrong about these things). But the lodging of so many petitions in the High Court is still likely to be consequential if the election result is close. If there are lots of petitions, particularly in marginal seats in the lower house, then the size of the incoming government’s majority, or perhaps even its identity, will be uncertain. As well, a large number of petitions — and a disparate set of complex arguments, involving uncertain facts, uncertain foreign laws and novel constitutional issues — will take a long time for the High or Federal Courts to resolve. In short, I predict months of post-election chaos.

But it’s not all bad. If anything could convince voters that the parliamentary qualification problem is mostly down to our dodgy Constitution rather than our dodgy politicians, it’s a lengthy lawyers’ picnic. Perhaps even the major parties will come on board and provide the requisite political support for an urgent referendum. Or perhaps not. Labor’s answers on the smartvote Australia website reveal that it “definitely” opposes allowing dual citizens into parliament. The Liberals “mostly” oppose it. Only the Greens — who played an ignoble role on the issue in the last parliament — “definitely” support change, in the form of replacing the whole section with a new ban on proved corrupt politicians. Discriminating voters — of either sort — should pay especially close attention to those opposing policies. •

The post How to be a discriminating voter appeared first on Inside Story.

But we know what she meant. In her maiden speech in 2003, she declared that her childhood in Sydney’s Armenian community “taught me to be proud of my cultural background but, more significantly, to value the importance of being a good Australian. This includes being proud of my surname. I thank the good people of Willoughby who voted for me, even though they could not pronounce it.” It was a near-run thing, and maybe her razor-thin victory in the North Shore seat of Willoughby against a local mayor came because she dropped that surname from her campaign posters that year. She had handier wins after that, perhaps because of name recognition.

“What is most important to me,” she declared last month, “is that, no matter what your background — where you live, what your circumstances — everybody in this state has the chance to be their best.” But is that true for federal elections? In the weeks leading to the close of nominations on 23 April, nine candidates preselected by major parties were unceremoniously dropped. Just two — Melissa Parke and Murray Angus — were removed because of opinions they expressed. The other seven lost their chance because of their background or circumstances.

Nine months ago, Mary Ross explained why she wanted to enter politics: “I’m particularly interested in some of the policies Labor has to offer in the area of healthcare and medical services. I’d like to broaden the services available in the drug and alcohol sector, and” — drawing on her experience as a GP founding Wagga’s only bulk-billing medical centre — “I’m very committed to improving access for patients to general practice.” Her profile and six-year membership of the Labor Party led her colleagues to consider her for both the NSW Legislative Council and the Senate. When they opted for the latter, she said, “I’m super excited — I never thought I would be in this position — especially now, when Labor is so strong and has such relevant policies, particularly for the country.”

So, why, just two days before nominations close, did she suddenly delete her social media pages and withdraw from a winnable third position on Labor’s NSW Senate ticket? She referred all inquiries to a party representative, who insists, “Dr Ross has made the decision not to stand at the election as she did not want to spend time away from her patients.” Maybe that’s true. But, if so, why won’t she elaborate and why doesn’t the party deny media reports that there were concerns about her constitutional eligibility? We’re left to speculate on her possible legal problems. Her British ancestry is a possibility, but her commitment to bulk-billing — which may be seen as an agreement with the federal public service, potentially breaching section 44 of the Constitution — and to assisting federally supported Indigenous patients is the more likely culprit.

We do know why the other six withdrew. Liberal Helen Jackson was a victim of the High Court’s cruel ruling in 1992 that constitutional disqualifications bite at the time of nomination rather than election. She was reportedly not willing to quit her job at Australia Post for a quixotic run in the safe Labor seat of Cooper. As for the other five, the answer lies in their surnames: Harker-Mortlock, Kayal, Nguyen, Ghosh and Oski. The first three are victims of the High Court’s ruling last year that it is not enough for a dual citizen to try to renounce a foreign citizenship well before a federal election; rather, they have to succeed before they nominate, a rule that leaves their candidacy at the mercy of a foreign government. Sam Kayal grimly explained last week that his political career “doesn’t seem to be of concern to the president of Lebanon.” The remaining two seem to have the still-hazier problem of possibly being “eligible” for some or all of the benefits of citizenship in India and Poland respectively.

I’ve written before about the reasons why I can’t be elected to federal parliament, including my Jewish-German surname, which reveals my eligibility to reclaim the citizenship Hitler stripped from my father. “Gans” is funny in more ways than one. As was explained in a 2014 article in Slate, European Jews were compelled to take family names in the eighteenth century, and some were “insulting names… foisted on Jews who discarded them as soon as possible, but a few may remain: Billig — cheap; Gans — goose; Indyk — turkey; Grob — rough/crude; Kalb — cow.” After an outcry from (presumably) my namesakes, the author issued a correction for Gans: “While it does mean ‘goose,’ it is a respectable Jewish surname that predates our modern sense of ‘silly goose.’”

I’m not convinced. Consider Daniel Gans, a distant relative of mine who came off the boat from Frankfurt some five decades before my father fled Hitler’s Germany. I first spotted him as the appellant in a 1913 High Court case, and the judgement wasn’t pretty reading. “This is a perfectly hopeless appeal,” begins chief justice Samuel Griffith, before detailing Gans’s claim that the sale price of his heavily indebted leatherworking business four years earlier was so low that it must have been the result of fraud by his own lawyer. Rather than Gans having been hard done by, Griffith observed, it was the people he was suing who got a bad deal, because they were still paying off his debts. Justice Isaac Isaacs (who was presumably unaware that he was distantly related to Gans’s wife) twisted the knife, exonerating Gans’s lawyer for the case’s failings: “The only gross inadequacy in the case that I can see is in the plaintiff’s evidence.”

A search of Trove reveals a fuller litany of Daniel Gans’s litigation woes. At the earlier trial of the same case, Judge Henry Hood said that “he had never seen in all his forty years’ experience of the law a charge brought against two innocent men on such flimsy evidence.” A decade earlier Gans was fined for striking and trying to kick a deliveryman in a dispute about payment for a bag. Decades after, he was sued for calling a trusted employee a thief and a scoundrel, words Gans denied using even as he slandered others from the witness box. The judge found that he was “carried away by indignation” and noted that “three former employees had appeared in court and [Gans] had trouble with all them.” In short, what a goose!

One story did give me pause, however. In July 1916, the short-lived Graphic of Australia devoted itself to a “campaign to oust Germans from Australian trade or positions on teaching staffs of colleges, or other public or semi-public offices,” noting the prevalence of “men born in Germany or of German parentage” in Victoria’s councils and among its justices of the peace. And there, on page seven of this bile, is a story about “Gans of Frankfurt,” who was accused of calling his caretaker a “dirty British rotter.”

The article matter-of-factly records that the caretaker had provoked Gans by using “language of an unpublishable nature referring to the latter’s Hunnish origin in terms of violent abuse” and that Gans’s denials of using a racist term were supported by a “British-Australian.” The Graphic explains that “searching investigations have found nothing to show, in Gans’s trading transactions, that he is disloyal to his naturalisation,” but it had nevertheless reported him “to the military authorities, who are making inquiries.” Daniel Gans had been in Australia for at least thirty years. A later article notes that a “correspondent draws attention to the fact that the Ganses, who run a leather business in Flinders-lane, are pure-bred Huns.” Edith, the daughter of London-born “old colonist” George Isaacs, seemingly acquired pure-bred German status with her husband’s surname.

None of this approaches the racism routinely experienced across Australia from the first fleet to the boats ScoMo stopped. But it does demonstrate the mindset that yielded section 44(i) of the Constitution, the provision that bans dual citizens from being federal MPs. Even the Greens, of all parties, raised it in their submission to the High Court’s Citizenship Seven case:

The provision prevents people with foreign loyalties and obligations from serving in the Australian parliament. This is one aspect of the purpose of safeguarding the integrity of parliament and Australian sovereignty, because the potential for the foreign power to call upon a citizen’s duty, even if it had never done so in the past and even if the person concerned was hitherto unaware of the citizenship, remains a real possibility.

It was this purpose that prompted the High Court to rule that section 44(i) disqualifies even people who were entirely unaware of their foreign citizenship. Because the section “is concerned with the existence of a duty to a foreign power as an aspect of the status of citizenship,” the court held, “proof of actual allegiance as a state of mind is not required.” It is this persistent idea that immigrants and their descendants always have a potential “split allegiance” that explains why Vaishali Ghosh, James Harker-Mortlock, Sam Kayal, Courtney Nguyen and Kate Oski had to withdraw their nominations.

Defenders of the Constitution — including the High Court — say that it doesn’t discriminate against foreigners in general, it simply discriminates against foreigners too lazy to put their affairs in order. As the court found:

While it may be said that it is harsh to apply s 44(i) to disqualify a candidate born in Australia who has never had occasion to consider himself or herself as other than an Australian citizen and exclusively an Australian citizen, nomination for election is manifestly an occasion for serious reflection on this question; the nomination form for candidates for both the Senate and the House of Representatives requires candidates to declare that they are not rendered ineligible by s 44.

Unsurprisingly, the High Court is far and away the least diverse branch of the Australian government. Not only has there never been an Asian, African, Arab or Aboriginal justice, there has never been an Italian or a Greek one. Out of the court’s fifty-three past and present justices, just five were born overseas, four in the British Isles and one in Canada (to Australian diplomat parents). The court’s longest surnames are Piddington and Gavan Duffy. Its rarest surname (relative to the modern Australian population) is Evatt. The only two that are marginally difficult to pronounce belong to current justices: Susan Kiefel who, like her father Abe, was born in Cairns, and Stephen Gageler who, like his father John, was born in the Hunter Valley.

More importantly, the only background tests that each current judge has surely ever faced are the ones for admission to legal practice and for becoming a judge. In the High Court, the test isn’t onerous. The appointees either have to already be Australian judges or have been enrolled as Australian lawyers for at least five years. The last High Court justice to nominate for an election was Lionel Murphy, who last ran for the Senate in 1974, a year before section 44 was first applied. So, it is no surprise that the seven justices would write something like this:

It is necessary to bear in mind that the reference by a house of parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the parliament,

As I’ve argued before, the court’s view that questions of foreign allegiance turn on “knowable” “facts” is only true for Australians who (like most of the High Court but less than half of Australia) have ancestors largely born in Australia or in a handful of countries with well-understood citizenship rules. For the rest, resolving these questions requires costly and often equivocal genealogical and foreign legal research to unearth the “facts,” a powerful disincentive to nominees and their parties but much less so to their political opponents who can choose which cases to fight.

The court’s approach also idealises the decision to seek political office as a long-term process of personal reflection accompanied by the careful shaping of a political identity, the cultivation of allies and the requisite genealogical research. However desirable that may be, it does not reflect the experience of those without deep party links (or other acquired or received advantages) whose nomination is the result of impulse, invitation and circumstance. Many of the 1514 candidates for the 2019 election fall within that category, usually making hopeless runs for office but sometimes succeeding in an upset or creating enough of an impression to make less hopeless attempts down the track. As Mary Ross’s candidacy shows, even Labor’s feted vetting team cannot always do the required legal work for such candidates in time.

It is no surprise that, Ross aside, the other withdrawn candidates are all non-Labor candidates running in safe Labor seats and therefore a questionable priority for government parties facing likely electoral defeat. In any case, as recent events show, sometimes the major parties — if they are to offer all Australians a choice of major candidates on election day — have to find new candidates in a hurry. In the case of Mary Ross’s Senate position, Labor was simply able to move its next Senate candidate, Jason Yat-Sen Li, up to the winnable third slot, presumably because he had already been vetted. But, otherwise, and especially for candidates who are likely to lose in May, the major parties had to find a much simpler way to vet. You can see the result (and perhaps their method) in the surnames of the eight newly endorsed nominees for lower house electorates: Blewitt, Bell, Killin, Meecham, Miller, Murphy, Thomson and Wentworth.

(There is also a difficult-to-explain “first name” effect possibly at play. The first names of the seven candidates who withdrew because of their background are Courtney, Helen, James, Kate, Mary, Sam and Vaishali. This follows the pattern in the 2016 parliament, where, despite making up less than a third of MPs, the majority of politicians who resigned or had their elections voided because of section 44 were women. While nearly all disqualified house MPs were re-elected, the replacement senators had to be chosen from further down the ballot paper; nearly all those chosen were men. While Labor has simply opted not to nominate a new Senate candidate in New South Wales to replace Mary Ross, the Coalition hastily found new people for its lower house seats. Their first names? Alistair, Andrew, Gayle, Peter, Robert, Shayne, Stephen and Wayne. Just two women replace the five who were dropped. Previously, I thought that the best explanation of the gender effect of section 44 in the 2016 parliament was coincidence. Now I’m not so sure.)

The nomination process is just one part of section 44’s impact on the next parliament. Last year’s preselections could have been affected in a less obvious way: some people vying for a spot, especially in winnable seats, may have discovered that their funny surnames placed a thumb on their opponents’ scales. Another will play out in the campaign proper, as parties deploy their lawyers to find flaws in the nominees from opposing parties, either to lift their own candidates’ chances or just to embarrass their opponents for their lazy efforts at vetting. And yet another will occur after election day, especially if the result is close, when challenges are brought against elected MPs who fall within the murky outer limits of section 44.

All of this means that there is no chance of section 44 being amended in coming years. Because so many share the High Court’s views about foreign allegiance and lazy politicians, the uphill battle could not succeed without an unreserved commitment from both sides of politics. But, as the Greens’ submissions to the High Court in 2017 amply demonstrate, even the most progressive parties are willing to dilute their traditional support for immigrants and others if they see a political advantage in using section 44 to attack their rivals.

Still, there is one change that could be made without a referendum. If we are going to maintain a ban on federal MPs (and hence ministers) who have potential split allegiances from unknown foreign citizenship, and require all immigrants who run to engage in extensive research and renunciation efforts to show their seriousness, shouldn’t we apply that same test to the third branch of government? The fear of an office holder becoming (or appearing to become) subject to a duty to a foreign government courtesy of an unknown dual citizenship is surely equally applicable to judges who decide the meaning of our Constitution. And, of course, given the seriousness of the decision to become a judge in a protected position until the age of seventy, is it too much to ask any prospective High Court justices — and the governments who are thinking of appointing them — to fully research and resolve their genealogical history long before they are even considered, let alone appointed?

All that is needed is a simple change to the High Court of Australia Act 1979 to bar anyone from being chosen or continuing to sit in the nation’s top court if he or she is not eligible to sit in the nation’s parliament. Such a change would mean that whenever the High Court is asked to interpret one of the cryptic requirements of those sections in the case of a seemingly elected MP, the justices will also be ruling on their own — and all of their successors’ — right to sit on the bench. In other words, what’s sauce for the goose would be sauce for the gander. •

The post Second-class surnames appeared first on Inside Story.

The prisoner is a man who preyed upon the young, the vulnerable, the impressionable, the child needing a friend or a father figure and the child seeking approval from an adult. And for what? For his own sexual gratification, without thought or concern for the feelings or the sexual development of his victims. How can a man, who showed a kind and friendly face to adults, but who sexually abused so many young boys in so many ways over such a long period of time, be considered to be a good man? I accept that to some people there is good in everyone, but I cannot see any good in the prisoner.

Two decades ago, NSW District Court judge John Nield addressed these words to one of Australia’s worst sex offenders, who had abused dozens of children in his congregation. The priest was already serving a six-year term — the same sentence George Pell is now serving — for twenty of those offences. Nield’s task was to increase that sentence after three new victims came forward and the priest himself confessed to dozens of other crimes. He gave the priest a further sixteen years.

But in 2001 the High Court ruled that the judge had mistakenly refused to take account of the eight witnesses who had described how good the priest was at his job. Fellow clerics spoke of the marriages the priest saved, the bereaved he comforted, the sick he tended and the charity he gave to all, in the same years that he raped children. The district’s vicar-general told Nield that so many had benefited from the priest’s ministry that it “would be tragic if the good he has done were lost sight of in the situation that he is in at present.” Parishioners whom the priest had comforted in their darkest hours told of visiting him in Long Bay prison, but Nield dismissed their evidence tersely: “Whatever he had done and achieved, he is not a good man.”

Should we sentence people for what they did or who they are? When Victoria’s County Court chief judge Peter Kidd sentenced George Pell last week, he was at pains to say that he was not sentencing him for all the bad deeds in his life. “You are to be punished only for the particular wrongdoing you have been convicted of on this indictment, of sexually abusing two boys in the 1990s, and only of that wrongdoing.” Not for Pell’s alleged abuse of other children, on which charges had been dropped. Nor his alleged failures to stop other priests’ abuse, on which charges have never been brought. And also not for Pell’s many bad but legal acts as one of Australia’s most reviled religious leaders: against his opponents in the Church, against the faithful who differed with his doctrinal views, against victims seeking compensation, against humility, even against art. Just for what he was found to have done to two boys in 1996.

But the law’s laser focus doesn’t hold for the other side of the personal ledger — not since the High Court weighed in over what Nield said to his prisoner. “Reading Judge Nield’s remarks on sentence,” observed Justice Michael Kirby, “reminded me of nothing so much as the judge’s remarks to Oscar Wilde.” He was referring to events a century earlier, when judge Alfred Wills told the playwright, whom a jury had just convicted of gross indecency, “It is no use for me to address you. People who can do these things must be dead to all sense of shame, and one cannot hope to produce any effect upon them.” Kirby joined a majority of the High Court in ruling that Nield’s words to his prisoner lacked “the detachment that his role required” and wrongly offered a “one-dimensional” take on the priest’s character. Holding that the priest “was entitled to some leniency for his otherwise good character,” they ordered a re-sentencing that shaved a year off the priest’s sentence.

We don’t know exactly by how much George Pell’s sentence was reduced because of the evidence of his ten character witnesses, including former prime minister John Howard, who described Pell as a “lively conversationalist” who “frequently displayed much courage and held to his values and beliefs, irrespective of the prevailing wisdom of the time.” The chief judge didn’t mention Howard, but noted how people who knew Pell “for many years in various professional and personal capacities” had written that he “dedicated his life to service, in particular to vulnerable members of the community.” Kidd observed that the prosecution left unchallenged claims that Pell was a “compassionate and generous person, especially to those experiencing difficulties in their lives,” and assertions about his commitment to “social justice” and youth education. Ruling that his offending was “isolated,” he told Pell: “I make substantial allowance for your good character and otherwise blameless life.”

Remarkably, almost everyone was able to hear all of Kidd’s words at the same time Pell did. The chief judge explained his decision to let the ABC broadcast his sentencing remarks as “simply a clear demonstration of transparent and open justice and an accessible communication of the work of the court to the community of a case of interest.” It’s surely no coincidence that he had recently seen for himself how dangerous it can be to leave the communication of Pell’s fate to courtroom journalists. Two weeks earlier, the reporting of Pell’s sentencing hearing — where lawyers and judge debated the ground rules for punishing him — was largely botched. Journalists’ live-tweeting of single sentences or phrases without any context led some to think that Pell’s counsel had admitted his client’s guilt and others to attack him outside the courtroom.

By contrast, last week’s rare instance of very modern open justice sits well with studies that suggest that frustration about sentences switches to satisfaction when members of the public hear the judge’s reasons directly, rather than from the media. In Pell’s case, the immediate benefits were exemplified by Waleed Aly’s celebrated take the next morning. “A judgement is not an act of advocacy,” Aly explained. “It is not an essay arguing a single point relentlessly until its inevitable conclusion, but the balancing of competing interests and principles.” Much the same could be said for Aly’s own essay, which puts the one-sided advocacy that has largely dominated media reporting of Pell’s case to shame.

The discussion of Pell’s sentence and Kidd’s reasons for it may bring another, much more fraught, public benefit. Freed of the usual tropes about whether or not the judge “got it right,” Australians are now well placed to debate whether or not the sentencing law Kidd applied is fit for purpose. Sarah Krasnostein, the author of a recent critical report on how Victorian judges sentence child sexual abuse, thinks not. “I cannot agree,” she writes in the Saturday Paper, “that ‘good character’ should be mitigating when that same good character facilitated the commission of the offence.”

She isn’t alone in questioning the High Court’s 2001 ruling. The two dissents in the case argued that “there must come a point where the ‘bad’ outweighs the ‘good’ in the sentencing process.” Seven years later, the NSW parliament barred sentencing judges from taking account of a child sex offender’s good character or lack of prior convictions if they were “of assistance to the offender in the commission of the offence.” On the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, Victoria adopted the same rule in 2018, in time to cover Pell’s trials.

But Pell’s prosecutor, Mark Gibson, told Kidd that the new rule didn’t apply to Pell. Neither Gibson nor Kidd explained why, but it is clear that the rule is a tricky one. How can we tell if a religious leader’s abuse was “assisted” by his lack of criminal charges? Does the rule apply if the offender’s “good character” reflects things like ministering to childless adults? Or if, as in Pell’s case, his character witnesses speak to his compassion or advocacy in the decades after the abuse?

The real questions go deeper. Why should we give criminals lower sentences just because they did good at some other point in their life? Should it matter if an offender was a good worker? Or a bad or indifferent one? Was loved or respected by many? Or a friendless loner? Pulled a child from a fire? Or tried and failed? Or didn’t try? If such things do matter — say to the offender’s prospects for rehabilitation or reoffending — then why should we ignore them if they also facilitated the offender’s crime?

Australian sentencing law is full of difficult questions like these that Australian judges often strive to avoid answering. Justice Michael Kirby is a notable exception.

Back in 2001, in discussing Nield’s sentence of the priest, he asked a lot of very difficult questions. Was Judge Nield right to emphasise that the priest before him had not only sexually abused children but, in doing so, breached his vow of celibacy, sinned against his religion’s teachings and failed to fulfil his ministry? Kirby, somewhat ahead of his time, asked about the culpability of the Church itself, which — as in so many other cases — learnt of the priest’s offending at an early stage but simply shuffled him from congregation to congregation. But Kirby’s startling point was that the Church’s failings may reduce the priest’s culpability: “If, in 1975, his case had been handled more effectively, one might say, then it may be that all these later victims might have been spared and he might have, in a sense, been spared.” He even asked, as some now do, whether the demands the Church makes of all of its priests are also a factor: “in a sense, people in this position are, in part, victims themselves; that they are denied any sexual life and they are in a situation where they are in a position of temptation and it is all coming from the one source.”

To say the least, Australia was not ready for such a discussion. The priest’s various prosecutors and lawyers — three of whom are now judges, including Roy Ellis, who recently cleared Bishop Wilson of his conviction for failing to report child abuse — all declined to pursue Kirby’s points in the High Court. After Kirby and Ian Callinan nevertheless canvassed them in their judgements, they were criticised by two other justices for needlessly entering dangerous waters. The following year, Kirby found himself the victim of false claims of sexual misconduct read into the parliamentary record by senator Bill Heffernan, bolstered by selective quotes from Kirby’s ruminations about how to sentence priests.

Despite questioning whether Kirby’s thoughts could fit with either traditional legal principles or current community standards, Justice Michael McHugh agreed that the hard issue of how to sentence priests is of “great importance.” “Sooner or later,” he wrote, “it will have to be addressed by this Court.”

As everyone learnt simultaneously at 11.08am last Wednesday, Peter Kidd sentenced George Pell to imprisonment until mid February 2025. While the four-year term Kidd gave Pell for “sexually penetrating” J, the surviving choirboy, was unsurprising, the chief judge was less harsh than I expected on the other four charges of “indecent acts,” which carried the same maximum sentence. Despite their involving equally damaging (albeit different) abuse, two different victims and two separate incidents, Pell’s other four crimes added just two more years to his sentence and less than that to his non-parole period.

As Kidd explained, though, Pell’s sentence was lowered because of what he would experience in prison, not only because of notoriety — which he shares with Carl Williams and, more recently, Tony Mokbel — but also because of prisoners’ hatred of child sex offenders. To manage this, Pell would be kept in isolation and, Kidd feared, could die there. Instead, the chief judge’s mercy almost guarantees that Pell will be out on parole in late 2022 when he is eighty.

Chances are, Pell will be out earlier. His appeal against conviction will be heard in early June, although, if the High Court gets involved, his final fate may not be determined before next year. Pell may also seek (and perhaps get) bail pending his appeal. And, if all else fails, he may appeal against Kidd’s sentence. While I don’t think Pell can plausibly challenge his six-year sentence as excessive, he has one good argument to make at a sentencing appeal.

In what is rightly the most celebrated part of his remarks, Kidd rejected Pell’s argument that he should be sentenced as if he simply abused two boys he didn’t know. While the chief judge conceded that Pell had never actually met the two choirboys and was neither their priest nor “master,” he held that it wasn’t sheer chance that placed the three of them together in the sacristy that day:

Adults working at institutions no longer stand as mere strangers in relation to children who attend those institutions. This is because the institutional setting affords these adults with an opportunity to interact with children within that setting, an opportunity they would not have as a mere stranger.

Working without clear precedents, Kidd held that this institutional setting heightened Pell’s crime because it breached the trust the boys’ parents placed in the Church. In any case, he told Pell, the boys themselves trusted the Church and “you breached that trust and abused your position to facilitate this offending.”

Kidd’s analysis of the reality of the relationship between choirboys and church officials in St Patrick’s Cathedral in 1996 is, I believe, impeccable. But it is also legally vulnerable, because Kidd (who prosecuted for decades before he became chief judge of Victoria’s busiest trial court) may have overstepped the line that separates prosecutor and judge. The problem is that Pell’s prosecutor, Mark Gibson, made some important — and controversial — choices when he charged Pell with “sexual penetration of a child under sixteen,” which in 1996 carried a maximum penalty of ten years in prison. Based on J’s account, Gibson could have brought much more serious charges against Pell.

As Kidd acknowledged in his sentencing remarks, Gibson could have charged Pell with raping J, an offence that (then and now) has a maximum penalty of twenty-five years in prison. Obviously, J didn’t (and indeed couldn’t) consent to Pell placing his penis in his mouth. But Gibson chose not to bring that charge. And that means, as Kidd acknowledged, he couldn’t punish Pell for rape. Instead, Kidd followed a landmark sentencing ruling from Australia’s High Court in 1981 that required Kidd to pretend that there was no rape, even though there clearly was. In an awkward footnote that wasn’t read out on TV, Kidd explained that he would pretend that Pell was somehow unaware that J didn’t consent.

But Kidd failed to address another option that Gibson didn’t take: charging Pell with sexual penetration of a child who is under his “care, supervision or authority,” an offence that in 1996 carried a maximum penalty of fifteen years’ imprisonment. Gibson’s choice meant that Kidd was required to ignore any evidence that the two choirboys were under Pell’s “authority.” And that is difficult to square with Kidd’s statements to Pell that “the full weight of your authority and position of power must have been very obvious to your victims, and to you”; that “the brazenness of your conduct is indicative of your sense of authority and power in relation to the victims”; and that “the authority you carried within the Cathedral setting in relation to the choir boys, carried with it a significant responsibility of trust, not to do anything to the detriment of the boys.”

I can only assume that Kidd was unaware of this limit on his sentencing discretion. If he had been aware, he surely would have been at pains to distinguish his remarks about abuse of trust and position from the question of whether J was under Pell’s “care, supervision or authority.” Instead, he made it clear that this issue was a key factor in Pell’s sentence:

Your obvious status as Archbishop cast a powerful shadow over this offending. Not only do I consider that you offended in breach of your relationship of trust, and in abuse of your power and authority, I would characterise these breaches and abuses as grave. You were the Archbishop of St Patrick’s Cathedral — no less — and you sexually abused two choir boys within that Cathedral. This connection and the depth of the breaches and abuses is self-evident.

In short, Kidd punished Pell, not only as a priest — the approach Kirby questioned decades earlier — but also as an archbishop.

I think these events ought to prompt more public debate. Why didn’t Victoria’s public prosecutor charge Pell with sexually abusing a child under his authority, or with rape, exposing him to the much higher penalties Victoria’s parliament specifies for such crimes? And, if a prosecutor failed to bring charges that fit Pell’s crimes, is it right, as the High Court ruled four decades ago, that his sentencing judge should be forced to pretend that the facts of the offence are something other than he believes them to be? As well, should an offender benefit at a sentencing appeal if both prosecutor and sentencing judge fail to fulfil their respective roles? Like most sentencing questions, these are very difficult ones to answer.

For reasons I’ve argued elsewhere, I don’t think any of these questions is likely to be resolved in Pell’s case. Rather, chances are he will be acquitted altogether by Victoria’s Court of Appeal sometime this year. It would be a pity, though, if that outcome prevents full debate about the many difficult questions Pell’s case raises, questions about how to sentence priests, lowly or high, that the High Court dodged in 2001 and is yet to return to. •

The post How to sentence a priest appeared first on Inside Story.

“The way I see it at the moment,” Kidd told Pell’s counsel Robert Richter, “is that some of this publicity was designed to put improper pressure upon me.” No kidding. While the Australian media didn’t dare say anything about Pell, they desperately wanted to say something about Kidd: that the chief judge’s suppression order was ill-conceived. And they were right.

In mid 2018, Kidd banned anyone anywhere from publishing “any report of the whole or any part of” any of Pell’s child sexual abuse trials. This publication ban included what Kidd called “electronic communications,” better known as the internet. His order listed some examples of things that no one was allowed to mention: how many complaints or charges Pell was facing; what they were about; the fact that he was to face more than one trial. But the order’s actual terms covered so much more.

The media couldn’t mention any of the evidence the prosecution or defence presented at Pell’s trials, the arguments made by either side’s lawyers, any incidents in the courtroom, any decisions made by Kidd, any appeals from those decisions, any questions from the jury, any actions by court staff. Every single thing that happened in one of the most important trials in Australian history had to be top secret. Most dramatically, the entire country couldn’t be told about — or talk about — what the Daily Telegraph rightly called “THE NATION’S BIGGEST STORY”: the jury’s guilty verdict. Not until this week.

Peter Kidd has been the head of Victoria’s County Court — the Jan Brady of the state’s court system, hearing the matters that are too big for the magistrates but too small for the Supremes, especially sexual-offence cases — since 2015. Before then he had spent twenty-five years prosecuting and… prosecuting: Tony Mokbel, police killers, schoolgirl killers, war criminals. Maybe he could prosecute again? He mused about doing a “summary-type procedure” to bring Australia’s journalists to justice, allowing that he was “a little uncomfortable” acting as the media’s prosecutor, judge and jailer. “Your Honour, my preference would be for you to leave this to me,” was the diplomatic response of Victoria’s director of public prosecutions, Kerri Judd.

That was not the first or last time the chief judge has battled the press. Before Pell’s retrial, he wrote to the Age complaining that a harrowing account of a very different long-delayed sexual-assault prosecution had mentioned decisions by two judges “without any examination of their reasoning.” After journalist Richard Baker defended his report (correctly, in my view) as “factual and not critical of the judges,” Kidd complained that the Age’s subsequent apology “should have been issued following my letter to the editor.” A fortnight ago, Kidd attacked the Herald Sun for complaining (unusually) that a recent sentence had been too harsh. Having pointed out some mild errors in the details, the chief judge then went further, declaring that reporting “that omits highly relevant information, draws inappropriate comparisons and provides false information, has no benefit to the community.”

These views aren’t surprising from a judge who prosecuted during the years when Victorian courts became world leaders in suppression orders. On his appointment as chief judge, he promised he would be “a fierce advocate for judges of this court.” He kept that promise, but also a second one: “I intend to conduct trials.” As chief judge, he can decide who runs any trial, including Pell’s. He chose himself as the right judge to preside over the most high-profile trial in Victorian history.

Judge Kidd’s order was not designed, as some conspiracy theorists would have it, to protect Pell from embarrassment. Nor was it to protect the person who accused him of child sexual abuse at St Patrick’s, though his name remains suppressed and no one apart from Kidd, Pell, the lawyers and the jurors heard his testimony. Rather, his goal was to keep Pell’s first trial secret from twelve or so people: the jury in his planned second trial on totally different child sexual abuse charges.

There’s nothing unusual about an order of this kind. People are generally tried for what they are charged with doing on one occasion, not for what they may have done at other times in their lives. Ordinarily, stopping the local paper or TV station from covering the verdict in one trial until all the trials are done and dusted is an effective and unexceptionable way of keeping the trials separate. But Pell’s case is anything but ordinary.

Usually — as Kidd is wont to complain — the media, and indeed the public, has little interest in what goes on in a criminal trial. The only real story is whether or not the alleged villain is going to jail and for how long. But when famous people or crimes are prosecuted, the opposite is true. When Lindy Chamberlain, O.J. Simpson and Oscar Pistorius were tried, everyone wanted to know every detail of the evidence and events, and the media filled that public demand with blanket coverage. These cases (and their aftermaths) were also occasions for wider and very important discussions about how well the courts do their jobs and about how we should understand and talk about criminal prosecutions, all drawing on the earlier detail.

High-profile cases put the justice system itself on trial, and rightly so. How do the courts treat powerful people? Or people who complain about them? How good — or fair — are our prosecutors? Our defence lawyers? Our chief judges? Pell’s case is one of the highest-profile opportunities to debate one of the law’s toughest questions: do courts respond fairly to claims of sexual abuse? And aren’t people interested not only in whether Pell is going to jail but also in whether Australia’s highest-ranking Catholic is also its highest-ranking paedophile? Was the complaint against him believable? Was the defence compelling? Was there doubt? Or not?

This week, we are finally reading attempts to debate these issues across the media. But everything we read is written in hindsight and without the benefit of earlier public discussion. Even the longest articles compress the many weeks of Pell’s trial and retrial into just a handful of pages or paragraphs. As readers, we are wholly dependent on whatever caught the attention of the dozen or so journalists (and their editors) who sat through both trials in silence. And all the details — from Pell’s shirty responses to the police’s questions to the minutiae of his priestly robes to the arguments of famed defence lawyer Robert Richter — will be swept away in a day or two by the next story to dominate the press. Open justice delayed isn’t open justice denied, but it is open justice diminished.

Moreover, Peter Kidd’s goal in making his order, while worthy, was impossible to achieve. There is far too much interest in Pell’s case for its secrets to remain remotely secret. Yes, Australian media could be expected to obey Kidd’s order (until they didn’t), but international media are another matter altogether. As for social media, plenty of people were willing to breach Kidd’s order, out of ignorance or otherwise. I found out about Pell’s conviction hours after it happened the way many did: because his name trended on Twitter.

All the chief judge could really achieve was to keep Pell’s verdict out of the mainstream local media. In the past, that might have been enough. But today the many breaches of Kidd’s order meant that the real story was always just a web search or an overheard conversation away. Yes, the order would have assisted in finding twelve jurors willing to say that they knew nothing about the first trial or verdict. Many of them might even have been telling the truth. And some of them might somehow have refrained from googling Pell or mentioning the trial to a spouse or neighbour until the verdict was in. But what are the odds that any of them, let alone all of them, would remain spoiler-free by the trial’s end? And yet, that goal was the sole point of Kidd’s order.

We now know that, even in an imaginary world where a County Court judge could truly silence the internet, the order would still have been totally pointless. This week, all remaining charges against Pell were dropped. (If it hadn’t been for Kidd’s order, that would have been the nation’s biggest story this week.) Kidd himself ruled last week that the prosecution could not try to prove charges that Pell molested kids at a Ballarat swimming pool by relying on a separate, uncharged alleged incident at a lake. Apparently, that ruling was enough for prosecutor Fran Dalziel to drop the case altogether.

Kidd’s ruling on the evidence could have been made weeks ago. Indeed, DPP Kerri Judd asked the chief judge to do so at the very hearing where he slammed the media. His response? “No, it’s just impossible. I’m not here for a period in January and nothing will change that,” noting that Pell’s retrial (after his first jury hung) had thrown out his schedule. No doubt the judge deserved a break, but his delay (and his seeming refusal to let another judge hear the next trial) meant that his suppression order continued for weeks longer than necessary. In theory, he could have made his ruling on the evidence before Pell’s first trial began, which would have allowed it to be fully reported.

The chief judge did have room in his schedule to explain what crimes he thought Australia’s journalists might have committed. The first was that he thinks the journalists’ vague coverage may have breached his suppression order. The media, he said, “seem to be operating on a misinformed basis that it’s okay to print everything and anything apart from” Pell’s name. Kidd’s view is that you can breach his order simply by stating, as the Age (among others) did, that “a very high-profile figure was convicted on Tuesday of a serious crime.” In addition, Kidd’s view is that there is a “serious question” that journalists were committing contempt of court, “namely bringing inappropriate and improper pressure upon me to vary or revoke my suppression order application.”

These claims are adventurous ones that (once again) push at the boundaries of Victorian contempt and suppression law. Kidd was also willing to opine that “a number of very important people in the media are facing, if found guilty, the prospect of imprisonment and indeed substantial imprisonment,” words he ordered should be distributed to the media immediately. When the local media read the transcript, which included Judd musing on the possibilities of extraditing journalists, bizarrely mirroring earlier discussions about Pell himself, they all pulled their stories. Meanwhile, baffled overseas papers one by one opted to report the truth.

Now that the suppression order is gone, the media is free to report that dozens of them have received “show cause” letters from Judd, the first step in the deliberately unsettling process often used to prosecute journalists. The journalists’ lawyer claims that the letters were even sent to people who were not at work when the stories ran. I don’t blame the DPP for going over the top. Judge Kidd’s comments put her in an invidious position.

If the past is any guide, the media will apologise and the prosecutions will end without jail sentences. But I have a slim hope of a different result. Last Monday, lawyers learnt of the death of one of Victoria’s leading criminal law judges (and scourges of many a criminal), Phil Cummins. This led me to re-read one of his most celebrated judgements from two decades ago. In a literary classic of the courtroom that it is very much worth reading, Cummins narrates how a solicitor engaged a bulldozer to destroy the boundary line between his property and another that was auctioned that day. When the vendors and police arrived at the solicitor’s home with an injunction from Supreme Court Justice Barry Beach, the solicitor declared, “Justice Beach has got his hand on his dick.” Informed by the vendor’s solicitor, the Supreme Court’s chief clerk initiated a hearing on contempt of court.

Fatefully, the judge who was assigned to hear the charge was Phil Cummins. While Cummins made his contempt of the solicitor very clear, his judgement in the case was a model of wisdom. He observed that the solicitor “interrupted but did not prevent oral service upon him of the Court process. He then complied with it.” Cummins famously opined, “It may be offensive, but it is not contempt of court, for a person to describe a judge as a wanker.”

Cummins is right. Everyone has to obey the law but absolutely no one has to like it. And no one should ever be punished for saying exactly that, using whatever words he or she considers best. •

The post Pell’s freeze is over appeared first on Inside Story.

One of Mokbel’s team of barristers must have felt a little conflicted by these arguments. Ten days earlier, she had herself signed on as a police informant and was already giving her handlers information about Mokbel and his associates. “If this gets out,” she told them at the time, “say nice things at my eulogy, because I will be gone — and enjoy the royal commission.” She must have been heartened when the Supreme Court largely rejected Mokbel’s arguments. Over the next three years, she went on to meet her handlers daily, keeping them apprised of Mokbel’s planned tactics during the trial (while formally defending him) and his later plans to avoid extradition from Greece (when he thought she was providing him with free legal advice).

Lately, Ashton, who is now the chief commissioner, has had much less success making similar arguments. Since his 2015 promotion, he has spent his entire term trying to suppress a report by the state’s anti-corruption commission into the police’s use of the barrister, whom the media had dubbed Lawyer X. Last month, his final defeat was dispensed by Australia’s top court, clearing the way for Victoria’s top prosecutor to send the report to some twenty affected criminals, including Mokbel. True to Lawyer X’s prediction thirteen years earlier, this disclosure swiftly prompted a royal commission. Thankfully, there have been no eulogies for her to date, but the professional days of those who approved the barrister’s role as an informant, including Ashton himself, are clearly numbered.

The stakes are much higher than the careers of Victoria’s senior police or even the lives of the barrister and her two young children. For starters, it is certain that some of the state’s most significant criminal convictions, including Mokbel’s, will be re-examined and, most likely, overturned. Still more seriously, the royal commission will surely need to grapple with the question of how both the Bar and, especially, Victoria Police went so dramatically awry in this case (and perhaps others). The fact that both Ashton and former commissioner Simon Overland, who reportedly championed the informer’s role, both came to Victoria from the Australian Federal Police may draw the latter’s integrity into question. Both police forces are long overdue for the sort of root-and-branch inquiries into governance and culture that occurred in Queensland in the late 1980s and New South Wales in the mid 1990s.

If it were up to me, the recriminations wouldn’t stop there. I’m with Ashton, who told the media last week that he “hoped that the context in which these events occurred is not forgotten.” He had in mind Melbourne’s “gangland wars” early last decade, which he labelled a “desperate and dangerous time” where “a genuine sense of urgency was enveloping the criminal justice system, including police.” His reference to the wider “system” is key. While there is no reason to think that the courts or parliament knew of the police’s use of Lawyer X until this decade, they both played an ignoble part in allowing the Victorian public’s understandable “sense of urgency” in the mid 2000s to develop into something far more dangerous.

The High Court’s judgement on Lawyer X is a slim affair. Procedurally, it merely signalled the seven judges’ belief — reversing an earlier decision by two of them — that the fight between Victoria’s police and prosecutors was worth the court’s time. But the judgement makes up for brevity in vehemence. The justices dish out verbal blows to Lawyer X herself (questioning not only her “appalling” ethics but even her care for her children) and Victoria Police (“reprehensible,” “atrocious” and unfaithful!). Their sharpest line has a broader target: “the prosecution of each convicted person was corrupted in a manner which debased fundamental premises of the criminal justice system.” Corrupted! Debased! These carefully chosen words signal that the hard-fought drug trafficking convictions of Mokbel and his associates are already as good as gone.

The court’s anger had been clear a few weeks earlier, during another high-profile case, when five judges took the extraordinary step of permanently ending four prosecutions arising from Australia’s worst bribery scandal. Victorian courts had found that, in their eagerness to prove the allegation that executives of a Reserve Bank subsidiary had bribed foreign officials into adopting the bank’s plastic currency, Australia’s two top investigative agencies had hopelessly blurred their distinct roles. In particular, the Australian Crime Commission illegally lent its most powerful tool — its Star Chamber powers allowing anyone to be forced to confess all on pain of criminal punishment — to the Australian Federal Police and wrongly allowed prosecutors to reap the rewards. The High Court overruled Victoria’s Court of Appeal, which refused to stay the prosecution, declaring that investigators must not be allowed to think that they can violate both the law and suspects’ rights “confident in the knowledge that this court would wave through the results.”

Alas, the High Court’s approach differed in the past. In the “desperate and dangerous times” of the early 2000s, Victorian police detectives, frustrated with criminal suspects’ refusal to talk to them, devised a complex scam in which they pretended to be fellow criminals running a lucrative gang that required a full confession as the price for joining (much like the legal profession Lawyer X joined). When that alone didn’t prompt admissions of serious crimes, the police added new twists to the scenario: real officers would offer fake evidence of the suspect’s guilt, which the pretend criminals would then offer to make go away through their corrupt contacts in the force. Not one of the scheme’s targets expressed the slightest surprise that Victorian police officers would either fit them up or corruptly clear them.

Neither prosecutors nor courts stopped the police’s scheme. As the gangland war heated up, Victoria’s Supreme Court judges repeatedly allowed prosecutors to present admissions gathered from the sting, while holding their noses at some of the details. Later, halfway through Lawyer X’s double dealings, the High Court waved the confessions through, holding that “no corruption of the legal system took place” and that excluding the confessions would reward criminals for trusting gangsters and corrupt police. Their sole “cautionary note” was that such operations carry the risk of “seduction of the officers.” Just one Australian judge dissented. Justice Michael Kirby wrote:

The state is a great teacher in society. If it sets debased standards for itself, there is a risk that such standards will proliferate and result in a lowering of confidence in the state and its officials and of respect for the rule of law.

Again, the word “debased” was no accident, and neither was Kirby’s reference to the role of the state. In prohibition-era America, Justice Louis Brandeis, dissenting while the US Supreme Court waved through evidence federal agents had found using illegal wiretaps, famously called the government “the potent, the omnipresent teacher.” (Four decades later, the same court reversed its earlier ruling.)

What lessons have Australia’s top courts taught this past decade? Is it okay for police to trick a young suspect into confessing by deliberately leaving out the second half of the official caution (“anything you say may be given in evidence”)? Sure, said chief justice Murray Gleeson and justice Dyson Heydon, because “every day police officers take advantage of the ignorance or stupidity of persons whom they eventually prosecute.” Is it okay for police to supply a young suspect with a hand-picked “youth liaison officer” who was willing to pass on anything he said to his investigators? Sure, said justice Virginia Bell, because that’s no different to someone confessing all to his or her mother. Is it okay for Australian police to gather admissions from a man while he was being held and tortured in Pakistan? No, Victorian judges (eventually) ruled, but the Commonwealth director of public prosecutions could still prosecute him by using an ABC interview he gave shortly after an earlier judge allowed the prosecution to use his Pakistan admissions to convict him.

The courts’ rulings sometimes vary. Late in 2011, the High Court stopped the prosecution of the Solomon Islands attorney-general for alleged child sex offences because Australian officials connived in his illegal deportation. A few weeks earlier, Victoria’s Court of Appeal permitted the state’s trial judges to toss out evidence because of Victoria Police’s widespread practice of obtaining search warrants without actually swearing (that is, orally declaring) the truth of the affidavits they presented to magistrates. But when Tony Mokbel responded by seeking to withdraw his guilty pleas to drug offences because the evidence against him was founded on illegal warrants obtained by anti-drug and anti-gangland taskforce officers, Victoria’s parliament hurriedly stepped in. Within hours of a Supreme Court ruling on Mokbel’s application — which justice Simon Whelan said that he would have rejected anyway — parliament rushed through retrospective legislation validating over a decade’s worth of invalid search warrants.

Attorney-general Robert Clark said parliament wasn’t excusing the police’s failings, only remedying all their “grave” consequences. Victoria Police could scarcely have missed the lesson: the courts or, failing them, parliament could be counted on to make good any and all of their mistakes and misdeeds on the way to ending the gangland war. It was during this period that Victoria Police first acknowledged that its handling of Lawyer X may have been an error.

Although rumours of Lawyer X’s double dealings eventually spread throughout the police, legal, media and criminal communities, the wider public knew almost nothing about them until last week. Victorians should be well used to this situation. For half a decade or more, court orders barred local media from reporting on the gangland war or its legal aftermath, with the aim of ensuring that dozens of individual jury trials could be held with each jury supposedly oblivious of the rest. The nadir of this “don’t mention the war” phase was when the courts banished the first season of Underbelly from Victorian screens, rejecting even the airing of its first three episodes (which were confined to the 1990s), despite Mokbel being unnamed and even actor Robert Mammone’s face being pixelated.

More recently, it has been the war between police and prosecutors over Lawyer X that no one could mention. For the past two years, the courts insisted that the chief commissioner be called AB and the director of public prosecutions CD, while Lawyer X was EF. When the case reached the High Court, the registrar omitted it altogether from the court’s official monthly bulletin and took the (probably) unprecedented step of holding a full hearing before all seven judges in total secrecy, omitting even the alphabet soup from its court list. The court’s dramatic judgement was itself kept hidden for nearly a month, postponing the resulting controversy from three weeks before Victoria’s state election to one week after. Lawyer X’s name remains unspeakable until at least next year, and the more detailed lower-court judgements in the case keep appearing and disappearing from internet repositories without explanation.

Given its courts’ reputation for suppressing anything and everything, the fact that all of this has happened in Victoria is no surprise. No one questions the importance of the orders’ purpose — fair hearings for alleged criminals and protecting the lives of Lawyer X and her kids — but their effects are another matter. Only the courts seem to believe that their lengthy ban on discussing the gangland war somehow caused Victorian juries to forget the war’s events and the criminal records of its participants. Indeed, the ban on Underbelly guaranteed widespread interest in the show, which was estimated to have reached a quarter of the population in the form of unpixellated bootlegs of the DVDs. Likewise, thanks to what is said (and never denied) to be the leaking of Lawyer X’s identity to the media in 2014 — simultaneously the greatest scandal of the Lawyer X story and the main reason we know about it — her informing has been widely known to her clients for years.

The courts reveal the pointlessness of their own orders whenever they are asked to consider the consequences of their own failure to suppress any secrets. When he ruled on yet another attempt by Mokbel to avoid prosecution in 2009, justice Stephen Kaye decided that the showing of Underbelly came at no great cost to Mokbel because the series portrayed everyone — including his alleged murder victim, Lewis Moran, and the anonymous chief prosecution witness in his trial — in a negative light. Anyway, he opined, media coverage rarely stays focused on anything and much of the publicity Mokbel received was due to his flight from justice three years earlier. More recently, Victoria’s courts were likewise sceptical of the risks of publishing Lawyer X’s identity to criminals who everyone agreed already knew about it. The judges were rightly dubious about claims by Victoria Police that gangland criminals would be loath to execute an alleged double agent until officials confirmed her role. Indeed, why would Mokbel and others try to kill her at all, given that she is now their latest and best chance for freedom?

While suppression orders are often ineffective at achieving their stated goal of keeping dangerous secrets from jurors or criminals, they are effective at keeping them off newspapers’ front pages. And that means that police officers contemplating improper deeds can rest assured that any significant consequences — in the form of the detailed media investigations of their role that prompt governments to order official inquiries — will be many years, perhaps decades down the track. By that time, the police can claim, as Ashton did last week, that the problems revealed are from a past era about which the proper lessons have been learnt. Never mind that Ashton himself was at the centre of those past scandals and was promoted in 2015, without his role being known, to a position that allowed him to fight to keep it secret.

Very occasionally, the courts reflect on their own role in the debasing of society. Justice Kaye, while hearing evidence from Mokbel’s lawyers about the publicity in his case, was shocked to learn that the Supreme Court itself was displaying an article detailing the defendant’s background outside its ceremonial courtroom, as part of an exhibition titled “Ned Kelly to Underbelly.” Kaye reflected that “it is appropriate that I note that the lapse from the high standards, by which our society has traditionally protected the presumption of innocence, has become so endemic, that an instance of it occurred in the building in which this court seeks to uphold the fundamental rights of the citizen.” But like so many of his fellow Victorian judges, Kaye drew precisely the wrong lesson from these events. In performing their role as “the great teacher,” Victoria’s courts have never been consistent, much less effective. Rather than being potent and omnipresent, their lessons have been too little, too late and, all too often, mixed. If even judges fail to learn the right lessons, then more scandals will be inevitable. •

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The contrast between Thomas’s two Gold Walkeys goes well beyond their medium. Thomas’s first win was founded on his prescient argument that federal authorities’ case against Dr Haneef was shaky. Mundane behaviour on his part — giving his British second cousin his mobile phone when he moved to Australia; seeking to fly urgently to India following his wife’s difficult delivery of their child; taking a snapshot of a Gold Coast high-rise — was treated as damningly suspicious. The police and prosecutors, Thomas argued, were too quick to detain, too quick to charge and too open to political pressure. And journalists were too willing to accept the police’s (false) leaks and too slow to engage with the real heroes, Haneef’s lawyers, who risked professional criticism by leaking the police’s scattergun interrogations of Haneef to Thomas and winning their client crucial public support.

The 2007 Gold Walkley united the fractious media in praise, guaranteeing Thomas’s place in the Australian journalism pantheon. It also did much to bolster the Australian’s reputation as it geared up for Labor’s years in power. Most importantly, the articles permanently pricked the credibility bubble of Australia’s counterterrorism agencies.

Ten years later, Thomas’s hit podcast couldn’t be more different. In an early episode of The Teacher’s Pet, Thomas tells us of a man “who murdered his wife to be with his new lover” — pause — “according to NSW detectives and two coroners.” That man, former high school teacher Chris Dawson, has never been charged, let alone convicted, of anything. According to Thomas, the police (in the early years) and prosecutors (throughout) were too timid to bring him to justice.

Dawson insists that he had nothing to do with his wife Lyn’s disappearance in early January 1982, but Thomas believes that Dawson’s sexual misconduct with a teenager at his school — the eponymous “teacher’s pet,” the couple’s babysitter and later Dawson’s wife and ex-wife — says otherwise. Thomas’s view is widely shared by other journalists who have covered the case, as well as by a bevy of investigators, relatives and pundits and, now, by the millions of listeners to his podcast. While plausible, there is hardly any evidence to support it.

Instead, The Teacher’s Pet is largely an attack on Dawson himself. It details claims that he abused his first two wives both physically and emotionally; uncovers a handful of alleged lies and some possibly odd remarks about renovations at the former matrimonial home; and recounts increasingly lurid tales of sexual misconduct by Dawson, his twin brother (who is also said to have slept with the babysitter) and other teachers in Sydney’s Northern Beaches. Its centrepiece is a “long lost” handwritten statement (supplied mid-broadcast by an “unlikely source”) that Dawson wrote for police after he reported his wife missing in mid 1982. The statement made no mention of his relationship with the babysitter, and Thomas thinks that the only “really credible explanation” for why a schoolteacher would fail to tell police that he was “utterly infatuated” with one of his students is that he was covering up his wife’s murder.

As admissible evidence goes, the podcast’s case is even less compelling than what the federal police thought they had on Dr Haneef. As for wider lessons, all Thomas can offer is a poignant but unsurprising reflection on how few people took domestic violence or sexual misconduct seriously in the early 1980s.

The Teacher’s Pet falls squarely within the pattern of true crime podcasts in Australia. The new genre owes its massive popularity to a This American Life spin-off, Serial, which in 2014 pioneered and exemplified the merits of a deep dive into a single criminal case through the medium of podcasting. Like many overseas hits that came after it, Serial was an investigation of a case that had already been through the criminal justice system and had landed a man in jail for life. It explored the evidence in the case afresh and challenged both the official verdict and the process that led to it, while maintaining that the real truth about the case is largely unknowable.

To date, no Australian podcast has taken this approach. Rather, nearly all have probed unsolved cases and argued that the authorities have failed to investigate obvious suspects adequately, be they rich boyfriends, local thugs, molesting priests or dodgy teens. The best American podcasts involve years of fieldwork: the crew of the In The Dark podcast’s second season, for example, located, combed through and followed up thousands of dusty court records in Mississippi to demonstrate a local prosecutor’s racial bias, evidence that prompted a Supreme Court review. By contrast, many Australian podcasts draw heavily on the work of coroners, combined with lengthy interviews with grieving relatives, retired cops and lawyers, and the windfalls of “shaking the tree” to see what emerges after the podcast’s first couple of episodes.

The path to The Teacher’s Pet was laid a year earlier by Trace, the ABC’s first true crime podcast and the first Australian one to become a talking point. Its stunning first episode details how, one morning in mid 1980, Maria James cried out and then went silent during a phone call to her ex-husband. He raced to her suburban bookshop and discovered his wife’s bound and stabbed body, as the culprit fled the scene. The investigation’s former head tells reporter Rachael Brown of multiple persons of interest — an ex-lover with an alibi, a loner with blood-stained trousers, a crush who suicided days later, a garbo who fancied her, a family friend later imprisoned for paedophilia — but she devotes the bulk of her podcast to two local priests, who were later credibly accused of child abuse and have since died.

Brown’s theory, that one of them killed James to cover up their abuse of one of her children, had some support from the evidence in one of the child abuse cases (albeit from decades-late-emerging witness accounts whose credibility she never questions) but none from the other. In the third episode of the original four-episode run, Brown airs a bizarre theory that the priest was secretly a ritual serial killer whose many murders are wholly unknown to authorities. In short, her investigation went off the rails.

Brown’s motives only become apparent when she belatedly tells viewers of her bond with James’s two children, who believe their mother was killed by a priest, and of her goal of giving a voice to them and to victims of institutional child abuse more generally. “How do you remain independent as a storyteller, and not an activist?” asked fellow ABC reporter Will Ockenden in an interview on the ethics of podcasting. “It’s not my responsibility to solve this case,” she replied. “That’s others’ responsibility.”

Trace’s sole claim to actual investigative impact was that it prompted the police to review the file and realise that a DNA sample they thought was the offender’s was actually from another case altogether. But this was a serendipitous finding that Brown never anticipated. Indeed, she spends part of an episode mulling over how to obtain DNA from one of the dead priests, though she later added new episodes speculating that the mix-up was a police cover-up. Last year, Trace scored three Walkley nominations for investigative journalism, audio features and innovation, but only won the latter.

The ABC’s second true crime podcast, Blood on the Tracks, is also a medium for victims’ voices, in this instance the relatives of a teen whose body was found on a country railway track near an overturned stolen car. Reporter Allan Clarke devotes an episode to the relatives’ efforts to accuse an innocent man of killing the teen to hide a drug deal, and advocates their belief throughout that local police were indifferent to the death of an Indigenous boy. But everyone could have seen the final revelation a mile away: the teen was killed in a car crash that was clumsily covered up by other teens.

Some of Clarke’s journalism is pure Today Tonight: “Did you kill him?” he asks one subject, before adding, “We’ll tell you his answer later in the episode.” (The answer turns out to be, “No, I don’t even know him.”) A later episode records his pursuit of the victim’s former girlfriend down a small town street as she desperately tries to get away. (He later received a lawyer’s letter telling him to keep clear.) Blood on the Tracks also won a Walkley last week, for coverage of Indigenous affairs.

Thankfully, the ABC’s third true crime podcast, Barrenjoey Road, avoids these journalistic missteps. Ruby Jones and Neil Mercer fully investigate the case — another woman who disappeared from Sydney’s Northern Beaches in the early 1980s — without victim- or police-prompted tunnel vision, exploring multiple possible suspects with an open mind and exposing genuine links to proven police corruption. Also this year, a non-ABC podcast showed how to tell a personal crime tale in a way that is deeply sensitive to an Indigenous murder victim and to the nature of domestic violence. In my view, Nina Young’s My Father, the Murderer is easily Australia’s best true crime podcast.

And yet The Teacher’s Pet is the podcast the Walkley judges chose for their highest accolades, even though its production values are far lower than any of its predecessors and its fourteen episodes — the latter ones exceeding ninety minutes each — are repetitive and longwinded. Why? Impact. Of three sorts.

First, the judges explained, Thomas’s “investigation uncovered long-lost statements and new witnesses.” Aside from her husband’s handwritten statement, the new evidence about Lyn Dawson’s disappearance consists of decades-delayed revelations from family, neighbours, friends and acquaintances, each apologetic for not saying anything earlier about Chris Dawson’s allegedly odd behaviour or the bruises on his wife’s arms. The podcast also prompted a string of former students of Northern Beaches high schools to describe a culture of sexual misconduct by the teachers there.

While the latter revelations led the NSW police to form “Strike Force Southwood” to investigate, Thomas’s sensibility — exemplified by the podcast’s coquettish nickname for the student whose accounts of abuse by the Dawsons were repeatedly aired — is the opposite of contemporary concerns about sexual abuse of children. Moreover, nearly all of this new evidence has a common flaw: it was generated not by Thomas’s gumshoeing but by the podcast itself. If any high school teachers, or Dawson himself, are eventually prosecuted, they can compellingly argue that the new statements are distortions or fabrications prompted by Thomas’s own lurid claims of weird twins, grooming gangs and police cover-ups.

The podcast’s second impact, “prompting police to dig again for the body of Lyn Dawson” at the couple’s former matrimonial home, was clearly Thomas’s ultimate goal. Throughout the series, he painstakingly details the Dawsons’ wooded Bayview property and the landscaping that accompanied and followed Lyn Dawson’s disappearance. He notes Dawson’s supposedly bizarre behaviour of driving past his old home on return trips to Sydney and pointedly criticises earlier police digs for failing to explore some “soft soil” later concreted over, dismissing their claims that searching for human remains is a typically fruitless task.

Here, Thomas’s arguments tapped into the NSW law-and-order cycle. Radio presenter Ben Fordham came on board his campaign and predictably extracted an on-air apology from the state police commissioner for his predecessors’ failings. As the podcast closed, a team of officers spent five days digging up parts of the property. Had they found human remains, Thomas could rightly claim the credit. By the same token, he must take the credit for handing Dawson yet another powerful argument if his case ever comes to trial — why didn’t the police find any human remains at his former property?

Did the Walkley judges actually listen to all sixteen hours of Thomas’s podcast? I very much doubt it. Rather, it is surely the final impact of The Teacher’s Pet that best explains his second Gold Walkley. The podcast has “more than twenty-seven million downloads at latest count,” the judges gush, and “is the only Australian podcast to go to number 1 in the United States, the United Kingdom, Canada and New Zealand.”

In short, Thomas got his Gold Walkley for cracking the international podcast scene. Had he done so via solid journalism or an innovative approach or a startling discovery, that would be fair enough. But the secret to his podcast’s popularity is banal: the spectre of violence combined with lots of sex, even more innuendo and an unwavering certainty that a single theory about an unsolved disappearance is the absolute truth. In other words, Thomas used all the worst tropes of the true crime genre to tap into the overseas market. For this, the Walkley judges feted him as this year’s greatest journalist. With friends like these, the media doesn’t need its many enemies. •

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Section 44 now taints Australian politics in all sorts of ways, big and small. Two weeks back, both the White Australia policy and a “final solution” were mentioned approvingly by Fraser Anning, whose presence in the Senate and belated maiden speech came courtesy of section 44’s ban on dual citizen MPs. Anning replaced Malcolm Roberts, whose own maiden speech ploughed the safer ground of climate scepticism. The following day, the Senate, having united briefly against Anning, split bitterly on euthanasia. The razor-thin majority who voted against Territorians’ right to die when they choose included Steve Martin, whom the High Court installed in place of the pro-euthanasia Jacqui Lambie, and Jim Molan, a Liberal also-also-ran who replaced (dual) National Fiona Nash, adding a staunch Abbott ally to Turnbull’s divided caucus.

More dramatically, section 44 was directly responsible for our US-style electoral Super Saturday four weeks ago. When (as always happens) the voters returned all four constitutionally ousted incumbents, Shorten’s leadership woes became Turnbull’s and his fall became inevitable. Or so it seemed until, shortly after Peter Dutton launched his ambush, he too found himself ambushed by section 44. The morning after journo Hugh Riminton revealed the Queenslander’s possible disqualification, the Liberal caucus rejected his first challenge 48–35.

This time, though, the constitutional problem wasn’t anyone’s ancestry. Dutton’s citizenship register declares that he, his parents and his grandparents are all Australian-born — indeed, they are all Queenslanders. Instead, the trouble is buried in his register of financial interests, which lists his family trust and, through it, his wife’s ownership of two Brisbane childcare centres. Like most such centres since the Whitlam era, Camelia Avenue and Bald Hills Childcare receive plenty of federal cash, mainly in the form of subsidies for parents’ fees. Riminton detailed how some of the resulting financial windfalls flowed to Dutton. He also produced two leading constitutional law academics, Anne Twomey and George Williams, to declare that the Queenslander had a case to answer under the last paragraph of section 44.

The list of cryptic constitutional disqualifications (foreign citizenship, criminality, bankruptcy and public salaries) in section 44 is rounded out by a ban on any federal MP who has “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth.” This ban has featured twice before in Australian history. The first time came in 1975, during the nation’s biggest constitutional crisis (so far), when the Senate, nudged rightwards by several unelected casual vacancies, was threatening the Whitlam government’s survival. In March of that year, the Age reported that Country Party member Jim Webster’s family timber company was selling planks to federal departments in possible breach of section 44.

In a telling contrast to recent times, the major parties were united in their response, quickly voting to refer one of their own to the High Court amid concerns that duly elected MPs may unwittingly unseat themselves. Chief justice Garfield Barwick controversially opted to hear the case alone and declared it “a matter for great regret that the composition of a house of the parliament should depend upon such highly technical differentia.” Represented by future High Court judge and governor-general William Deane (one of the few other High Court judges to fret about section 44’s overreach), Webster survived the challenge. Barwick deemed the timber sales too sporadic to expose the senator to pressures from the Whitlam government.

Alas, the next time a “pecuniary interest” case reached the High Court, over four decades later, the justices tore open the constitutional sore. Early last year, Family First’s Bob Day became the only MP (to date) to be disqualified because of his financial dealings. Overruling Barwick and presaging their citizenship rulings to come, the court declared section 44 to be no technicality. Instead, it was a bulwark against split allegiances, specifically Day’s simultaneous role as (effectively) a private landlord and a public tenant of an ugly office building just east of Adelaide’s CBD. Within months, the threats some MPs faced for their innocuous connections with foreign countries overshadowed the danger the Day ruling posed for MPs with innocuous connections with our own government.

Behind the scenes, however, parliamentarians’ pecuniary interests were being quietly weaponised for later deployment.

Imagine the Labor Party’s delight if Dutton’s section 44 problem were only revealed after he was declared our thirtieth prime minister (or perhaps even during the next election campaign). Alas, Riminton’s scoop revealed the story too early and unconvincingly. Dutton quickly deployed his own QC’s advice declaring what all constitutional lawyers know: that the Constitution doesn’t bar MPs from having financial interests in federal money, but only in federal “agreements.” That forced shadow attorney-general Mark Dreyfus to publish advice he had been sitting on for at least four months that argued that the three-way flow of cash between parents, centres and the federal government fell within section 44’s vibe. The bombshell was that its co-author was Bret Walker, the first among equals of the High Court bar. Walker, who apparently penned the advice during a break from his role as royal commissioner into water theft, declared Dutton “incapable of being chosen for the forty-fifth parliament.”

Or did he? The trick with all legal advice is to distinguish between “could,” “should” and “would.” While Walker’s view was that Dutton should be unseated, he baulked at saying he would be. Instead, there was only “a reasonable prospect” that the court would so hold. And details of his argument were all about what the court “could” decide. The childcare subsidy scheme, Walker unconfidently declared, contains what “can be said to be mutual obligations” that are “not beyond the so-called outer limits of the notion” of an “agreement,” mainly citing some examples listed in the judgement of Justice Stephen Gageler in the Bob Day decision.

But, as Walker knew, Gageler used his list to demonstrate that such “patently benign” transactions — things like buying a money order at the post office — must be outside section 44. In Gageler’s view, that section only covers specific “agreements with the Public Service of the Commonwealth,” not the to-and-fro of federal cash regulated by general statutes. All Walker could muster in response was the claim that childcare subsidies aren’t for everyone. But nor are most government benefits, including welfare, HECS debts or even Medicare rebates.

Are practising doctors (like Bob Brown) or recent students (such as current Greens senator Jordon Steele-John) unelectable to the federal parliament? Every honest and competent constitutional lawyer would answer, “I don’t know for sure.” Section 44 is just too vague and the High Court’s judgements on it too rare, sparse and cryptic for anyone to confidently rule most Australians in or out of constitutional electability. Hence, solicitor-general Stephen Donaghue’s advice, released last Friday morning, was mostly about what the High Court “should” so hold about Dutton: that the Queenslander is indeed the beneficiary of federal cash, but not in any agreement with the federal government. Instead, the only agreement in play was between parents and childcare centres. (If you need convincing of just how capricious section 44 is, consider this: Donaghue’s view was that Dutton’s biggest problem isn’t the subsidies given to most parents but federal funding paid directly to Camelia Avenue Childcare to hire an extra staff member to care for a disabled child.)

As for what the High Court “would” hold in Dutton’s case, Donaghue, unlike Walker or Dutton’s lawyer, bluntly told the nation that “it is impossible to state the position with certainty.” There were no precedents, no detailed facts and a divided High Court that “might endeavour to create a clearer line in the interests of certainty.” The division appeared in Day’s case. Gageler was the only judge who committed himself to allowing people like Dutton to stay in parliament, while the two Victorian judges, Geoffrey Nettle and Michelle Gordon, said they would largely focus on the question (dangerous for the Queenslander) of potential conflict of interest. The rest didn’t say or, in the case of one, thought it “unnecessary to reach a concluded view upon the outer limits” of section 44 to resolve Day’s position. Dutton’s fate was very likely to be in the hands of the current court’s troika of Patrick Keane, Virginia Bell and chief justice Susan Kiefel.

Dutton got his forty-third signature and Scott Morrison narrowly won the party-room vote around the same time that I was showing Donaghue’s advice to my law students as an example of how to communicate effectively about genuinely uncertain issues. The mystery of Dutton’s constitutional eligibility didn’t decide who now leads the nation, and rightly so, although no one can know whether it was a factor. In a startling coda, the party room elected Josh Frydenberg to be its deputy leader (and our next treasurer), ignoring his own unresolved section 44 problems arising from his possible past and future Hungarian or Polish citizenship. I am sure that, soon after, a Liberal Party staffer gathered up the party’s own set of QC advices about Labor Party luminaries’ constitutional problems — notably Anthony Albanese’s possible Italian citizenship via his biological father — to hand over to the new leadership team.

Malcolm Turnbull’s last substantive vote in parliament concerned whether Peter Dutton should be referred to the High Court. Labor’s motion was defeated by a single vote. Does this leave the true composition of our parliament open to question? Does it even threaten our Constitution? Many lawyers would say so, but I don’t. For all their missteps when it comes to section 44, our founding fathers got one thing right: they didn’t leave the question of whether an MP is qualified in the hands of the courts; rather, it was a matter for parliament itself. That is as it should be when it comes to the essentially political question of whether an elected MP has a conflict of interest. The High Court’s role only arises if parliament decides to leave the issue of an MP’s election in the hands of our judges. In my view, that should only happen in cases where there is a genuine threat of split allegiances arising unless certain groups of people — investors in childcare centres, say, or potential Italians — are barred from political office.

As I’ve argued previously, though, the cryptic words of section 44 do more than just determine whether an MP was or wasn’t properly elected. They also profoundly influence who seeks office, who gets preselection and — potentially — who wins the vote. All the forces at play last week — the secret advices, political ambushes and pundits weighing in about what the High Court could, would and should do — are just as likely to play a role in all federal elections to come. No one will shed a tear if that means Dutton will soon have to choose between running for re-election and divesting himself of his wife’s childcare centres. But the nation will be much the poorer if public sector investors, GPs, or people with HECS debts or on welfare payments are forced to give up these things altogether just to nominate for federal office. Unless people like Dutton are referred to the High Court, we will never know whether any of this is necessary.

So, Australia, I have a proposal. My ancestry means that I’m someone who sits on the (current) outer limits of constitutional electability in multiple ways: I might be a Pole, or I might be an Uzbek. I only have to write a letter to become a German or, with a plane ticket, an Israeli. I hold two possible offices for profit under the Crown (as a professor at a public university and an adviser to a parliamentary committee) and perhaps have a pecuniary interest in our federally subsidised students. I’m also amenable to make a small investment in a closely held childcare centre and more than willing to commit contempt of court.

So, why not vote me into federal parliament as a constitutional canary in the coalmine? I promise that I’ll take no salary and cast no votes, except to refer myself repeatedly to the High Court, where I’ll represent myself at no expense to the public purse. In short, I’ll cost you absolutely nothing. And I might just pave the way for a good many much more qualified people to serve the nation in the future, free of constitutional shadows. ●

The post The outer limits appeared first on Inside Story.

Labor’s gamble paid off handsomely. With a 5 per cent swing her way, Aly won the outer-Perth seat of Cowan by the narrowest of margins, bringing Bill Shorten within a seat of the prime ministership. But a High Court decision this week means that a nomination like Aly’s will almost certainly never happen again. In finding ACT senator Katy Gallagher’s election invalid, the High Court doubled down yet again on its strict reading of the constitutional provision that bars Australians from electing whom they choose.

Aly, for one, backs the court’s strict approach. “There should be really no excuse for everyone checking,” she said in July last year, after the ABC’s Belinda Varischetti asked if she had any sympathy whatsoever for the Greens senator Larissa Waters. Waters had announced that she was a Canadian just a day after her fellow Greens senator Scott Ludlam revealed he was a New Zealander. Aly’s response is the one that Labor has consistently given on the citizenship crisis: “Really, it should come down to the parties and the nomination processes in ensuring that they vet their candidates thoroughly and ensure that their candidates are eligible.”

The repeated claim that the only problem in this parliament was a lack of due diligence started life as a convenient way for the major parties to paint minor ones, such as the Greens and the Xenophon Team, as too incompetent to govern. When National and then Liberal MPs started to fall, Labor used the same line to mercilessly torture the hapless Malcolm Turnbull. Now it is Labor’s well-deserved turn to squirm. Five of the last six MPs to be felled by section 44(i) of the Constitution are from Labor, which now boasts the most invalidly elected parliamentarians of any party.

Labor’s confidence that the constitutional crisis would pass it by rested on the party’s renowned process for “vetting” its nominees. As Aly told Varischetti, “The party was very much about following up and ensuring that I did take all the measures that were necessary.” It made sure that she quit her professorship at Edith Cowan University, for example, removing any argument that she held an “office for profit under the Crown.” But all that took was a letter from Aly to her employer. Labor’s vetting revealed that Aly had a much bigger problem.

“There’s some people, once they take on Australian citizenship, they automatically lose their country of birth citizenship or any other dual citizenship that they have,” Aly explained last year. “For other people it’s a bit more difficult.” For Aly, who was born in Egypt, it was a lot more difficult. Like Waters, she moved to Australia as an infant and never held a foreign passport. And, like Waters, it seems that she nevertheless remained a foreigner, even when she had been nominated for Australian of the Year in early 2016.

Egypt, like Waters’s birthplace of Canada, doesn’t automatically dump its citizens when they become foreigners. To the contrary, Article 10 of Egypt’s nationality law says:

An Egyptian may not acquire a foreign nationality except after obtaining a permission therefor, to be issued by decree of the Minister of Interior. Otherwise, he shall continue to be regarded in all cases as Egyptian from all points of view, unless the Council of Ministers decide to strip him of the nationality according to the provisions of Article 16…

Aly may have first realised her problem back in 2007, when she was briefly in third place on the Greens ticket for the Senate in Western Australia before pulling out for some reason. (The first on the ticket, Scott Ludlam, got into the Senate that year, invalidly as it turns out.) Aly was certainly well aware of her citizenship problem on 8 May 2016, the day writs were issued for that year’s federal election. The same week, she wrote to the Egyptian embassy asking to renounce her Egyptian citizenship and (thirty-two years late!) for permission to take up Australian citizenship.

What took her so long? Part of it would have been her surprise candidature. Aly had probably given no thought at all to her Egyptian citizenship for years, until Labor asked her to run for Cowan. The other part is the complexity of renouncing Egyptian citizenship. The consulate gave her the relevant form, but it was in Arabic and asked her for things she didn’t have, like her Egyptian ID number. Labor gave her “a lot of help in filling out the form,” she later told the ABC. “I then had to get the form signed by a justice of the peace, and then by a notary public, and then take it to our offices here in Australia and get it signed by our Department of Foreign Affairs and Trade and get a seal on it and then send it back to Egypt.” Even with her party’s help, it took her at least three months just to complete the paperwork.

According to this week’s High Court ruling, that’s her problem. The Constitution does not “ensure the ability of foreign citizens to nominate” at any election, much less a “snap election.” Rather, as one judge lectured, prospective candidates for office must be vigilant “not simply as to the taking of available remedial action but also as to the timing of that available remedial action.” For the roughly 50 per cent of Australians who are (mostly unknowing) dual citizens, neither Australia’s unpredictable electoral cycle nor foreign countries’ paperwork is any excuse at all.

The High Court’s ruling left many things murky as usual. But its consequence for future candidates like Aly is crystal clear. The political practice of drafting high-profile figures into political office as an election looms (or the preselected candidate quits) must now exclude the half of the population who might have inherited an unwanted foreign citizenship. The parties may be willing to punt on a British or Canadian or New Zealand Australian sometime, as those countries’ bureaucracies are amenable to being hurried along. But no party will ever take such a risk with someone with a more obscure citizenship that requires navigating an unfamiliar language or culture or legal system. Those folks can wait until next time, if at all.

Aly herself was lucky to slip into the parliament two years ago, before any of these problems were realised. But her political future is much more difficult. She told the ABC last year that her Egyptian citizenship has always been a barrier: “I’ve had the question from the day I was announced actually. You know, people have been asking me this question for a long time.” Again, she repeated her party’s line: “I don’t, you know, really take offence to it, it’s in the rules,” though she added, “if people keep pressing it, say ‘well I want to see proof’ or anything like that then it might get a bit tiresome.” She’s about to get very tired.

Late last year, all MPs were required to fill in a questionnaire about their citizenship. Aly’s was very short. She denied ever acquiring foreign citizenship (including from either of her foreign-born spouses) but admitted that she was an Egyptian at birth. She simply declared, “I received confirmation of my renunciation from the Egyptian Embassy.” But the one-page letter she appended has two problems. One is that it is dated 31 July 2017, fifteen days after she spoke to the ABC and over a year after she was elected to parliament. The other is that it doesn’t confirm her renunciation at all. Instead, it simply says: “This request was presented by Mrs Aly on the 4th of May 2016.”

The High Court has now ruled that a mere request to renounce isn’t enough, unless the foreign law says it is. Egypt’s nationality law says a request isn’t enough. Article 16 of that law says:

The Ministers Council may issue a decree stripping the Egyptian Nationality off anyone enjoying it, in any of the following cases:

1. If he enters a foreign nationality, in a manner other than what is set forth in sub article 10.

(As a bonus, the council can also strip Aly of her Egyptian citizenship “if at any time [she] has been qualified as a Zionist.”) What is required in every case is a government decree that (according to Article 22 of the Egyptian nationality law) must be published and can’t be retrospective. Aly’s register has no proof of the date of any decree by the Egyptian government, in particular whether it occurred before she nominated (on 9 June 2016). Worse, there’s no proof that the decree has been made at all. She may well still be Egyptian.

Mark Dreyfus, who pursued Liberal Party MPs like Jason Falinski and Josh Fryberg over their possible citizenship via descent or restoration under murky European laws, now says that Aly lost her citizenship when she became an Australian in 1984. The Egyptian embassy did indeed tell another Labor MP, Peter Khalil, that that is how Egyptian law works, but that advice concerned his parents, who became Australian citizens in the early 1970s, before Egypt adopted its current nationality law. As always, Australian foreign-descended MPs’ fates will now turn on esoteric disputes about the meaning of changeable and vague foreign laws.

Labor’s problem is that its vettors took a relaxed approach to many of these issues on the basis of what has turned out to be incorrect legal advice. Last year, Aly told the ABC: “The rules do state that as long as you’ve taken all reasonable measures and done everything that you can to renounce your citizenship.” But, this week, the High Court did not so hold: “It is not sufficient that a person in her position has taken all steps reasonably required by the foreign law which are within her or his power.” Decisions of foreign officials, as required by the foreign law, are no more optional than mailing in the paperwork.

In short, unless the Egyptians removed Aly’s citizenship either when she became an Australian in 1984 or when she tried to renounce before June last year, her stunning election win in 2016 is almost certainly invalid. Worse still, if her Egyptian citizenship remains intact right now, then her ability to stand again — whether in a by-election or in the next federal election — rests entirely on how quickly she can get the Egyptians to act. With the next federal poll expected to be tight, it’s unimaginable that Labor would allow her to run again unless she has a copy of the interior minister’s decree (or some ironclad Egyptian legal advice) in her hand.

This week, the High Court provided an escape for people like Aly. The constitutional bar on electing dual citizens doesn’t apply where foreign law contains “an insurmountable obstacle, such as a requirement with which compliance is not possible.” The majority gave just one example of such a law: a requirement to travel to a dangerous country. A further example was given by another judge: a requirement to complete overseas military service first. Neither of these seem to apply to Egypt. Indeed, no one knows if they apply to any country at all — for example Iran, where Sam Dastyari spent tens of thousands to (perhaps!) renounce his citizenship, or the United States (which now expressly demands thousands up front to do the same).

The irony with the High Court’s “insurmountable obstacle” test is that there is an insurmountable obstacle to its being tested. Before the court can rule on whether a particular country’s requirements are insurmountable, a dual citizen from that country must first run for office, be elected, and then be challenged. But what party would risk nominating such a candidate? Instead, dual citizens’ only practical option in such cases is to surmount the insurmountable (and to do so long before they seek preselection).

Last year, a clearly puzzled Belinda Varischetti asked Anne Aly whether she agreed with the ban on dual citizens being elected. After all, Aly had spent years researching how terrorism is caused by ostracism, had faced a year of questioning of her own citizenship and had criticised the government’s policies on immigration. Alas, the member for Cowan parroted Labor’s politics of convenience: “If you want to serve your community, then you have to tick the boxes.”

Four months later, the High Court endorsed the bizarre view that the ban on dual-citizenship MPs is designed “to ensure that members of the Parliament do not have split allegiance.” The irony, though, is that this week’s ruling puts Australia’s major parties in an appalling bind when it comes to their own dual-citizen MPs and candidates: their political fate has been put in the hands of foreign governments. In response to Aly’s urgent request, the Egyptian embassy has now published a new and rather odd letter stating:

Dr Anne Aly renounced Egyptian citizenship on 6 May 2016 having completed all the steps required and as of that date had completely renounced her Egyptian citizenship. Nothing further needed to be done to make her renunciation effective. In addition, according to Egyptian Law Article 16 of Law Number 26 issued in 1975, that any Egyptian who obtains another Nationality without permission will lose his/her Egyptian Nationality by default.

This letter curiously — and for the Labor Party, very conveniently — omits any mention of the requirements for decrees by the interior minister and the Ministers’ Council, and flat out contradicts the text of Article 10 of the law, set out above. The letter could be correct (perhaps relying on a court decision interpreting the law, or some sort of general decree) or it could simply be wrong. Either way, you can bet that the government will be following up with more queries to the embassy and seeking its own advice about foreign law.

In the meantime, though, what is the likelihood that either Malcolm Turnbull or Bill Shorten will take a hard line against the government of Egypt on a policy issue in coming months? And what will the successful side owe to the government of Abdel Fattah el-Sisi if, by some stroke of good fortune, Aly’s citizenship problem is resolved by the Egyptians, one way or another, before then? Variations on this same theme will become a permanent part of the Australian process, unless the parties stop nominating people of difficult ethnicities altogether.

None of this is necessary. If, back in October last year, the High Court had had the wisdom to “so hold” that section 44 only bars people with plausible split allegiances — and certainly not people who either didn’t know they were foreign citizens or had made good-faith efforts to permanently rid themselves of that citizenship — then we wouldn’t be here now. Alternatively, if a majority of Australians were willing to vote to replace section 44 with the same rules that apply to every state parliament and every other nation like ours, then we wouldn’t be here next year. But these things are unlikely to happen, because Australian political parties and chatterers of all stripes — Green, Red and Blue, and the media — are all too willing to put their self-interest ahead of a sensible resolution of the citizenship crisis.

I have enormous sympathy for the many individual MPs who have lost or will lose their careers because of our inept Constitution, court and representatives, including the five politicians whose elected careers at least paused this week. But I do agree with Aly on one thing: when it comes to politicians, “I think it should be very clear where your loyalties lie.” Do politicians who have made it clear that their allegiance lies with their political party rather than their principles, their experiences or their fellow dual citizens deserve to be in office? •

The post Anne Aly and the insurmountable obstacle appeared first on Inside Story.

In Australia’s top court, it’s a different story. All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons). This contrast between Australia and the United States is new. The nine justices of the US Supreme Court have long divided, often sharply, in around half of their cases. Canada’s top court is the same. And, just a decade ago (and two chief justices back), so was Australia’s.

In recent years, though, the High Court has become like Britain’s top court, whose judges agree roughly three-quarters of the time. Only in about fifteen cases a year in each court does a judge disagree with the rest. Close decisions, like the five–four decisions that are common in America, now only happen here about once a year.

Many people like our newly harmonious top court. Our current chief justice, Susan Kiefel, says that she thinks the High Court’s judges should think long and hard before disagreeing with the majority: “It could just be that one is wrong.” The court reaches its decisions quickly and without rancour. Australian lawyers and law students have fewer messy rulings to deal with. But some people — I, for one — dissent.

What’s not to like about judicial agreement? Nothing at all, if the judges are judging easy cases. But the top courts in Britain, the United States, Canada and Australia usually hear only the toughest, most controversial cases. If top judges constantly reach the same decision on hard cases, we’re entitled to start wondering why.

The US Supreme Court learnt that hard lesson eight decades ago. In the 1930s, four of the court’s nine judges agreed so regularly on (often novel) constitutional challenges to the New Deal legislation that the media dubbed them “the four horsemen.” This pointed label allowed an aggrieved Franklin Delano Roosevelt to tell Americans, shortly after his thumping second election victory, that “in our courts we want a government of laws and not of men.”

Detailing the four’s shared decisions (in majority and dissent), he declared “a quiet crisis” and announced his plan to appoint extra judges “who will act as Justices” and “save our national Constitution from hardening of the judicial arteries.”

No politician will ever accuse Australia’s High Court of being a “third house” of parliament (a term FDR coined long before Malcolm Turnbull used it in a different context). Our Constitution places very few restrictions on what our parliaments can do. Indeed, the High Court only makes a couple of politically important decisions a year and the bulk of its work is made up of regular court appeals. That is why Australia’s High Court has never developed political blocs like the liberal and conservative wings of the US Supreme Court.

But Australia’s High Court has had a long and proud history of internal debate about Australian law, often propelled by particular judges — known as Great Dissenters — who routinely criticise the majority’s approach. Past examples are Sir Isaac Isaacs (the first Great Dissenter), Sir Owen Dixon (often regarded as our greatest judge) and Lionel Murphy (whose radical views became the orthodoxy when Sir Anthony Mason was chief justice). More recently, Michael Kirby and Dyson Heydon have taken on the role of “appealing to the future” with particular vigour, dissenting in up to half of their cases.

But no more. Since Heydon’s departure five years ago, the High Court has no Great Dissenters — or even middling ones. The closest thing to a regular dissenter is former solicitor-general Stephen Gageler, who has disagreed in barely one out of eight cases.

And that’s how Chief Justice Kiefel likes it. In a speech late last year, she hearkened to a time in England when judicial dissent was regarded as “a serious thing” reserved for the most important cases, lest it detract from the court’s authority. She declared that it was “perfectly proper” for “senior judges” to persuade dissenting judges to tone down their language in the name of dignity and others’ feelings. Dissents, she said, aren’t courageous and may even be cowardly if majority judges opt not to “enter the fray.”

Kiefel advises law students to pay more attention to “more mundane majority judgements” and legal commentators to stop encouraging dissenters’ “self-indulgence.” (In passing, she mentions a recent book edited by UNSW’s Andrew Lynch on Great Australian Dissents, which includes a chapter by me feting the dissenters in Lindy Chamberlain’s failed High Court appeal).

She certainly practises what she preaches. Kiefel now dissents in fewer than one in forty cases, or just one a year. It’s been more than two years since her last dissent (over the meaning of a trust deed).

The “court packing scheme” FDR proposed in 1937 never eventuated. Just as the scheme was announced, the court’s two swing voters swung behind the New Deal legislation, isolating the four horsemen. Shortly after, the bloc’s oldest member, Willis Van Devanter, retired to a Maryland farm and a freshly legislated pension. The Washington Post bid the judge a cold farewell:

Justice Van Devanter might have been called “The Great Assenter,” in contradistinction to the term “The Great Dissenter,” often applied to the late Justice Oliver Wendell Holmes. His record up until the last or present term of the court shows that of the forty-one cases in which acts of Congress were held unconstitutional, Van Devanter assented forty-one times and dissented none.

His replacement, Hugo Black, had voted for every New Deal statute as a senator.

By the Washington Post’s standards, Australia’s current High Court has three Great Assenters, each of whom has dissented in fewer than one in forty cases in the past four years. In addition to Chief Justice Kiefel, there are Justices Patrick Keane and Virginia Bell. Since the start of 2014, Bell has been the court’s Greatest Assenter, with just two dissents out of 164 decisions.

What is different about these three judges? After all, the entire current bench are a very agreeable bunch. But these three stand out in how often they agree with each other. Most pairs of judges on the court agree between 80 per cent and 90 per cent of the time. But, in the past four years, both Keane and Bell have sided with the chief justice in 97 per cent of the cases where they sat with her (and about 95 per cent of the time they sat with each other). The three reach the same decision in nine out of ten cases where they are together on the bench.

On a seven-member court with no political blocs, three judges routinely agreeing is enough to allow them to determine nearly all of the court’s orders. As a past judge, Michael McHugh, candidly admitted of his time on the bench in the 2000s:

I regard [chief justice] Murray [Gleeson] and myself as irrelevant players while we were on that court together, for the reason that [Bill] Gummow and [Ken] Hayne always seemed to come together. And they usually had Mary [Gaudron]… So, as long as those three were there, it didn’t matter what they decided, they would either pick up [Ian] Callinan or pick up [Michael] Kirby.

But that court’s power trio was much less constant than the current one — Gummow and Hayne agreed with each other in 95 per cent of cases, but with Gaudron much less.

The upshot is that a trio of current Great Assenters — Susan Kiefel, Virginia Bell and Patrick Keane — have quietly become the three most powerful judges in contemporary Australia. Indeed, they are almost certainly the most constant (and arguably therefore the most powerful) bloc of judges Australia’s High Court has ever seen. And, in a uniquely Australian twist, their bloc isn’t political, either in cause or effect.

Unlike New Deal America’s four horsemen (elderly, white, conservative), these three Great Assenters have little or nothing in common: Kiefel and Keane are both Queenslanders (and formerly on the Federal Court) but Bell is from the NSW Supreme Court. Keane and Bell are both Labor appointees; Kiefel was appointed by Coalition governments, both to the bench and as chief justice. Kiefel and Bell share no relevant characteristics at all. Unlike the horsemen, their agreement isn’t limited to constitutional cases, but applies to everything the High Court decides: criminal appeals, contract disputes, administrative challenges, whatever.

Rather than shared policy goals, the trio simply seem to have remarkably similar minds on everything. Australia’s answer to America’s sombre four horsemen (who notoriously shared a car to court to plan their judgements) is a much sunnier troika (who, coincidentally — because this is determined by seniority — always sit beside each other on the bench).

Strangely, their shared dance is relatively recent. When Kiefel and Bell first joined the court, they spent some five years disagreeing with one another (and dissenting) at the same rate as the court’s other judges. But, not long after Keane joined the bench in 2013, the pair’s rate of disagreement and dissent fell to just one decision a year and has stayed there ever since. Whether the change is mere coincidence or even conscious is impossible to know.

Is a court in which three out of seven judges routinely agree a bad thing? The arrangement certainly brings benefits. The High Court has, for instance, been enmeshed recently in several national political controversies about the same-sex marriage survey and the validity of the 2016 federal election. It has settled these disputes speedily and unanimously, avoiding both political instability and controversy. The court’s harmony on these topics is almost certainly aided by, and may have been the result of, that core alliance of three judges. The same may be true for many of the three-quarters of regular cases on which the court routinely agrees, settling hard case after hard case quickly and with little rancour or lingering questions.

But speed and stability aren’t the only measures of a top court, which must deliver wise answers to hard questions. Chief Justice Kiefel’s most famous slogan is “collegiality is not compromise,” but saying that does not make it true. The court’s last Great Dissenter, Dyson Heydon, famously disagreed, publishing a thinly veiled critique of his own bench — and especially the pairing of Gummow and Hayne — as “The Enemy Within,” a threat to judicial independence. While Heydon feared that strong judicial personalities were dominating weak ones, I suspect a less extreme explanation in the current bench: that three judges — consciously or otherwise, and whether for personal reasons or institutional ones — desire consensus above all.

Whatever the benefits or threats posed by the troika of Kiefel, Bell and Keane, they are not long-term ones. In contrast to the US Supreme Court, Australian judges must retire at seventy. That means that the current trio will be broken up in three years and all but gone in four. With them may well go a number of legal doctrines they established only by a slim margin (such as the role of proportionality in constitutional law, whether state tribunals can hear interstate disputes, and how to assess the weight of disputed evidence).

But even the short-term situation has potentially significant drawbacks. One worry I have is that Australia will largely be deprived of the independent thoughts of seven of its finest judicial minds over the better part of a decade, lost to the banality of reflex consensus, sidelined diversity and discouraged dissent. But my main concern is for ordinary litigants with cases before the nation’s highest court during this period — ranging from accused drug traffickers to private hospitals to alleged killers to restaurateurs to land councils to child abuse defendants — who have reason to worry that their disputes (and in some instances, their futures) may have been decided by a court, not of laws, but of men and women. ●

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In his new autobiography, a recently retired NSW judge explains how he came to be chosen. One day, Michael Finnane was attending “a morning tea celebration” for another judge when “Reg” — District Court chief justice Reginald Blanch — “asked me if I was prepared to be a judge.” The fifty-seven-year-old barrister “thought about it for a few days and then said yes.” A “formal offer” from state attorney-general Bob Debus followed “shortly afterwards.” Every Australian judge — from lowly magistrates to High Court justices — is selected this way, behind closed doors and without explanation.

Finnane is no fan of Dutton, criticising him in his book, The Pursuit of Justice, for attacking sitting judges. But Dutton, who routinely complains about Australia’s “lily-livered judges and magistrates,” is probably a fan of Finnane. His “public reflection” proposal is surely aimed at selecting more judges like him. In the admittedly small field of judges most Australians have ever heard of, he is far and away the most popular, courtesy of the unprecedented fifty-five-year term he imposed on teen rapist Bilal Skaf in 2002.

Finnane describes how the sentence led to rare judicial fame: a hagiography in the Daily Telegraph, an interview offer from Andrew Denton, Australia-wide talkback radio fandom and a stream of mail with messages like “Thank you Sir, you are our hero and we would like to nominate you as Australian of the Year.” (To date, the only judge to collect Australia’s top prize took the more typical route by chairing Brisbane’s 1982 Commonwealth Games.)

Finnane is no fan of how Americans choose judges — “it seems common to refer to American judges, even justices of the Supreme Court of the United States, as being Republicans or Democrats” — but he never tells his readers why Reg and Bob chose him to be a judge. Those looking for clues have a long read ahead of them, for the bulk of Finnane’s book is about his life before, after and away from the bench. He describes his Rose Bay childhood (“Life in the 1950s was very much different to what it is now”), mentions where he was when he learned that JFK had been shot (cloistered in a Melbourne seminary), and devotes chapters to his service as a military lawyer (“The Army and What It Meant to Me”) and his mission of social justice (“My Contact With Aboriginal People”).

Close readers may piece together a possible origin story for this unlikely judicial superhero. When he received his morning tea appointment, Finnane had been a member of the Australian Labor Party for thirty-three years. In his early years at least, he was a very active party member, serving on the left faction steering committee and on branch, state and federal electorate councils, and even running for the NSW party presidency in the 1970s. Although he left the party on becoming a judge — “it is important that a judge have no political ties” — he rejoined on his retirement, despite regretting its “abandonment of socialist principles.” Finnane stands as a one-man rebuttal of Dutton’s repeated assertion that Labor-appointed left-leaning judges are to blame for soft sentencing.

The ex-judge disclaims any political patronage, noting that his left faction was marginalised in New South Wales and that “my involvement in the 1990s was largely only as a branch member.” But his professional life had a political slant from the very beginning, when he joined the justice department during Jack Renshaw’s premiership. After a decade of private practice during the Askin years, he received his first public role during Neville Wran’s first term as premier, when the state attorney-general offered “a most unusual brief.” Finnane’s job was to inquire into the financial affairs of the late father of the federal primary affairs minister because the attorney-general “didn’t trust” the state’s corporate regulators.

Eventually but dramatically, Finnane accused Ian Sinclair of forging his father’s signature, forcing the son’s temporary resignation from Malcolm Fraser’s cabinet. While his inquiry was beset by leaks and condemned by the prime minister, and the prosecution against the future National Party leader soon failed, Finnane relished his public role and later “had the good fortune to be involved in many royal commissions and inquiries.” During the Wran government, he was appointed to inquiries into drugs in Griffith and local terrorism in Sydney, and he represented Barrie Unsworth’s government at the royal commission into Aboriginal deaths in custody. His final executive role was in the Wood royal commission into state police corruption, set up in the last years of John Fahey’s Liberal government and continuing well into Bob Carr’s first term.

Which brings us to Finnane’s best-known case. In the month before the Sydney Olympics, several young women were cajoled from the city’s shopping centres, schools and trains with promises of drugs or a ride, only to be taken to isolated parks or buildings and raped repeatedly by large groups of men. Eighteen-year-old Bilal Skaf (whose brother was known to one of the victims) was arrested after he was identified by two victims and DNA evidence. Finnane’s appointment to the District Court came that October and the next year he was assigned to preside over the trials of Skaf and his co-accused. “On my way to court for the first Skaf trial,” he writes, “a senior judge expressed to me the view that the only judge to do this sort of trial should be someone with a lot of experience.” At that time (shortly after 9/11 and amid the Tampa federal election campaign), Finnane “had been a judge for a little over a year.”

The new judge would spend most of the next ten months in a courtroom with a bulletproof dock in the Downing Centre, presiding over three consecutive high-profile trials. Each involved claims of gang rape, multiple charges and defendants, disputed identification and confession evidence, and concerted media scrutiny. The trials were also intensely political, and not just because of widespread claims that the rapes were racially motivated.

Two months before the first Skaf trial, Premier Carr met with NSW chief justice James Spigelman to condemn six-year sentences handed down by District Court judge Megan Latham to three teens who pleaded guilty to a different gang rape from the same period. “Nothing I do or say would ever trespass on the independence of the judiciary,” the premier assured the public, “but the fact that the chief justice undertook to meet me I think says something about community concerns.” Midway through Skaf’s second trial, the Court of Criminal Appeal pronounced Latham’s sentences “manifestly inadequate” and doubled them.

Following Skaf’s third trial and conviction, Finnane sentenced the twenty-year-old to the maximum punishment of twenty years for each rape. Allowing for other offences but also some overlap in the charges, Skaf’s total sentence came to fifty-five years, with no possibility of parole until he turned sixty. The judge issued an unusual public denial of having any conversation about the case with the premier. Six months later, Carr had his best (and last) election win.

But Skaf’s hefty sentence didn’t stick. Six weeks after Carr’s resignation from parliament, a panel of three Supreme Court judges ruled that Finnane was wrong to give Skaf the maximum sentence of twenty years because that is reserved for worse rapes, such as those of the elderly, or at knifepoint, or penetration with weapons. As well, the total sentence of fifty-five years seemed aimed at isolating the twenty-year-old from the community rather than punishing him for his crimes. The now twenty-two-year-old’s sentence was ultimately reduced to thirty-seven years and he will be eligible for parole when he is fifty.

Finnane recounts visiting Goulburn jail a decade later and encountering three of Skaf’s co-defendants, then near the end of their own sentences (like Skaf’s, reduced on appeal). The trio told him that “we are innocent; we will become bitter as a result of wasting the best part of our young lives in jail,” leaving the judge to marvel at their “great preoccupation for themselves and no concern about the plight of their victims.” But, as he acknowledges in his book, the evidence against these co-accused was much weaker than the evidence against Skaf. Indeed, they largely owed their convictions to the word of a rapist, Skaf himself, who placed them at the scene when testifying that his victims consented to sex with a group of strangers.

Finnane himself has no regrets about the Skaf trials or the sentences, writing that “my sentences imposed on members of this gang were warranted.” He adds that the appeal judges’ views must “prevail,” but the Court of Criminal Appeal later accused him of refusing to respect their views. In 2008, he was expressly chastised over his management of a trial of a man who brutally raped his ex-partner. According to the court, Finnane not only made wrong rulings about the evidence and distracting, irrelevant and incorrect remarks to the jury, but also gave the offender a sentence for his attack (some twenty-seven years) that exceeded the usual punishment for murder.

Pointing out that “it is impossible to believe that his Honour was not aware of” the appeal court’s rulings in the Skaf case, the unanimous court wrote that sentencing “should not be an idiosyncratic exercise. First instance judges are required to adhere to standards set down by this Court. His Honour would have been well advised to do so in this case.” Unlike Megan Latham, the other District Court judge to sentence the Sydney gang rapists, Finnane would never be promoted to a higher court.

Finnane’s title, The Pursuit of Justice, cleverly captures two related ideas — justice as both mission and vocation. But being a judge was never Finnane’s goal nor, it seems, his passion. He describes choosing a career in the law (albeit with a failed detour to the seminary) at age eleven after seeing The Winslow Boy. The scene that moved him came when a “dominant” barrister conducted a crucial cross-examination in front of a “rather old, worn, man who was the judge.” Admitting to “pondering for most of my working life, what it is that makes judicial life so attractive to lawyers,” he lists an odd grab bag of perks: the District Court’s broad remit, the salary and pension, the “large, usually well-appointed room for the judge,” ten weeks’ break each year and not having “to deal with fractious clients or solicitors.” “Most of all,” he adds, “when you become a judge you feel that you have got to the top of the legal profession.”

So it is no surprise that his book has very little to say about his fifteen years on the bench beyond the expected (and inexplicably early) chapter devoted to Skaf. Near the book’s end, he reveals that, shortly after his “sense of honour was reinforced by the swearing-in-ceremony,” he found that he “was quite cut off from the members of my previous floor.” The floor in question was his professional home away from home, the “Ninth Floor at Selbourne Chambers,” where he “stayed for twenty-one years, most of them happy, but eventually the happiness ceased and I left.” He explains that his subsequent isolation was due to the need for judges to “use considerable discretion about where they go to socialise” and the convention that he be addressed socially as “judge.” (“The conversation at times was quite forced.”)

Finnane’s book doesn’t discuss the last occasion he attracted public attention. In 2011, a lawyer for ex-priest Brian Spillane, then awaiting sentencing by Finnane for child sexual abuse, swore an affidavit about a conversation he’d had with the judge. At (yet another) morning tea, Finnane allegedly told the lawyer and others that “all these paedophiles… should be put on an island and starved to death” and that “they’re all guilty.” The Court of Appeal generously ruled that any “fair-minded observer” would have regarded any such remarks as merely “incautious” and “flippant.” But Finnane ultimately never got to sentence Spillane. A month before he was cleared of bias, he moved from the District Court to the Dust Disease Tribunal, where he served out his time until mandatory retirement.

Was Finnane a good judge? As he explains in his book, lawyers “do not tell you how you are going.” He does recount how “a senior barrister told me in court” that he had “a reputation for rarely being reversed on a question of law.” But he doesn’t mention a newspaper’s calculation that, in 2011 and 2012, his sentences “have been challenged thirty-one times in the Court of Criminal Appeal — more often than any other District Court judge — and the appeals have been upheld nineteen times.” The newspaper quotes an unnamed judge explaining that “once a judge has a reputation for being notoriously tough, it is much more likely that there will be an appeal,” while an unnamed barrister labels him as the type of judge who doesn’t “have a pattern and can be categorised as rogue.” In his book, Finnane candidly recounts that, after his retirement, several barristers confessed to fearing him and one told his wife that he “was cranky and difficult.” He apologises for this, adding that he “did not intend to be anything but relatively relaxed and easy to get on with.”

In bemoaning the plight of American judges, Finnane celebrates how Australian ones “cannot be removed from office merely because a radio commentator or a newspaper campaigns against them.” He probably has in mind California’s Aaron Persky, an elected judge who currently faces a popular recall after giving a six-month sentence to a nineteen-year-old who raped a semi-conscious woman behind a dumpster. This aberrantly low sentence (albeit recommended by the probation service) has few defenders, but the media has found no credible claims of a pattern of low or biased sentencing by Persky, and his defenders say that his removal will force all judges into tougher sentences.

Australian judges can’t be removed for their sentences, low or high, but that doesn’t mean they are completely free of external pressures, especially if they hope for promotion to a higher court while in office or interesting appointments once they retire. Nor are they immune from internal motivations, like gratitude to those who appointed them or the desire for attention or appreciation in office or after.

The publication of Finnane’s autobiography coincides with a tough period for Australia’s many magistrates, who decide the bulk of the nation’s sentences and lack most of the perks of higher judicial office. One week after Dutton suggested exposing prospective magistrates to public reflection, he told Ray Hadley that “people are angry about sentences where there’s a maximum eight-year penalty and people are given two months or no conviction recorded for kicking the head of a police officer, as we’ve seen in Victoria in the last couple of days.” He was referring to a teen parolee who kicked a police officer’s head at Melbourne’s Highpoint Shopping Centre. Egged on by the Police Association, the media and the police minister attacked Victoria’s summary judges for their decisions to grant him bail and probation.

A month later, undaunted, magistrate Stephen Myall reportedly deferred further charges against the teen until December to allow him to finish high school. A week later, Melbourne’s legal community mourned Myall’s sudden death, aged sixty, and sought a review of magistrates’ workplace safety in the face of high workloads and a “steady stream of confronting evidence of violence and sexual abuse.” At his funeral in Kyneton, his family and colleagues spoke of Myall’s love of being a magistrate, his lack of interest in money, his endless committee work and how “the political debate on law and order did his head in.” A solicitor friend said he “wondered why then attorney-general Rob Hulls thought a crazed, part-time lumberjack rev-head who dressed like a vagrant was an ideal person to make decisions about other people’s lives,” adding that Hulls had made “a wonderful decision.”

Finnane’s own story ends with a chapter recounting his retirement work for Sri Lanka and Tuvalu and his advocacy on fair trade coffee and climate change. “Life has enabled me to engage with many wonderful people and because of my knowledge of law, to help them,” he writes. Celebrating his healthy, friendly and large family, he concludes, “Life is good.” I certainly don’t begrudge the ex-judge his contentment in retirement, nor for that matter his successful career or his recognition of the seriousness of rape in his sentencing decisions. Yet I find his evident pride at receiving “a comment about the Skaf case and my part in it just about every week” disturbing, given the awful crimes that lie behind those words and the miserable politics that thrive on such horrors. ●

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The court is yet to publish its reasons, but it is likely that its seven judges have decided to read six of the Constitution’s most enigmatic words — “office of profit under the Crown” — narrowly rather than broadly. That’s the first narrow reading of section 44 in nearly fifty years. This welcome development follows recent hints by Australia’s chief justice that her court is tiring of the current constitutional mess.

But some things never change. By the end of the week, Martin was on the way out of the party he campaigned with, the Jacqui Lambie Network. After the High Court ruling, Lambie asked him to resign so that she could return to the Senate seat she lost because of her dual citizenship. Martin opted instead to quit serving the people of Devonport and take up the Senate seat (and salary) for what’s left of the parliamentary term.

This is what always happens. The first Australian to reach the Senate this way was author and film-maker Irina Dunn. As a student, she made her mark (literally) by scrawling the words “a woman needs a man like a fish needs a bicycle” on various bathroom walls. Her phrase was picked up by the Sydney Morning Herald’s Column 8 in 1975 and eventually became a U2 lyric. But she owes her later spell as a federal MP to an unemployed Englishman. Robert Wood led the Nuclear Disarmament Party’s NSW ticket in 1987’s double-dissolution election and scraped into the state’s twelfth Senate spot with 1.5 per cent of the vote. Following an abortive constitutional challenge, though, he was declared ineligible after it emerged that he had only just taken out Australian citizenship. Dunn took his seat.

This game of musical chairs arises because there are two very different ways to replace fallen senators. If a senator quits of her own accord (or dies), then her replacement is picked by the party she was elected with. (The rule was included in the Constitution by three-quarters of Australian voters the last time it was successfully amended, over forty years ago.) One senator, the Liberals’ Jeannie Ferris, even used this method to quit the Senate and then be immediately reappointed, apparently because she feared that she had invalidated her election by briefly working for another senator.

But the problem for Wood and Lambie (and, indeed, Ferris) is that this method isn’t available for senators who were ineligible to be elected. The High Court has always ruled that such people can only be replaced by a fresh count of the Senate ballot papers, modified to exclude the disqualified senator (who is treated, macabrely, as if she’s dead). Typically, the recount propels the next person on the party list into the Senate. That’s what happened to Dunn (the only other Nuclear Disarmament Party member on the NSW list) and Martin.

Dunn is one of two women who have ridden into the Senate on a man’s coat-tails. The reverse is much more common: to date, four men have replaced a disqualified woman and more are likely after the current job lot of High Court challenges to two more female senators. Dunn is also one of four coat-tail MPs to become turncoats, quitting or being expelled from the party whose flawed ticket propelled them to office. Dunn, like Martin, faced expulsion from the Nuclear Disarmament Party after refusing to resign her validly held seat to allow the newly Australian Wood back into parliament.

A senator’s party-hopping is usually only a political issue, not a legal one. But the High Court has now been asked to weigh in in the case of the replacement for dual-citizen senator Skye Kakoschke-Moore from the Nick Xenophon Team. Tim Storer, the next person on the South Australian ballot paper for the Nick Xenophon Team, is no longer part of the “Team” because Xenophon passed him over for his own abandoned Senate seat and Storer unsuccessfully challenged that decision. In January, Kakoschke-Moore raised a novel argument that any recount of the South Australian Senate ballot should exclude Storer (because he has left the party listed on the ballot paper) but should include Kakoschke-Moore (thanks to her speedy renunciation of her British citizenship).

Faced with these unlikely arguments, the High Court asked a better question: would a recount that replaces a Xenophon Team senator with an independent “distort the true intention of the voters” (especially the vast majority who vote “above the line”)? There’s considerable irony in that question. Thanks to section 44 (and resignations), the current Senate is probably the least democratic in Australian history. Just 85 per cent of current senators owe their positions to an actual electoral victory.

This is no accident. Rather, section 44’s raison d’être is to stop voters freely choosing their representatives, instead barring them from electing anyone who falls foul of one of five obscure and outdated disqualifications. Tellingly, whenever voters are given the chance, they speedily re-elect such candidates. There’s been an unbroken run of five such results — from ex–high-school teacher Phil Cleary in 1992 to ex–dual citizen John Alexander late last year — in the House of Representatives, where all replacements are chosen by by-election. Even the position of a current dual citizen in the lower house, Labor’s Susan Lamb, seems to be safe because voters are likely to sympathise with her family predicament.

By contrast, no coat-tail senator has ever been re-elected to the Senate. Dunn herself was booted out by voters in 1990 with just 0.8 per cent of the vote, less than half the support Wood received both in 1987 and when he recontested. One Nation’s Len Harris, who succeeded Heather Hill after she was disqualified owing to British citizenship, received just 0.2 of a quota after his six-year term. Given that, it’s not surprising that many of the current batch of coat-tailers and turncoats — including Martin — are angling for six-year terms rather than three-year ones (another legal knot the High Court may have to unravel).

My view is that this sort of behaviour by politicians is the true cause of the current constitutional mess. At present, the prospects of a successful constitutional fix by referendum are close to nil, because many people (wrongly) see a fix as making life easier for a group of people who are (justifiably) seen as having little integrity. A parliamentary committee is currently mulling over how politicians can talk the talk on constitutional change by treating it as a matter of fairness (or at least convenience or thrift). But I have a better idea: politicians — especially coat-tail senators — should walk the walk.

Take Australia’s newest MP, the Liberals’ Jim Molan. His first week as a senator saw attacks on his war record and his tweeting (reflecting an underlying hostility to his conservatism and ties to Tony Abbott). But in my view the real scandal is that he owes his seat not to the voters of New South Wales but to the worst excesses of the High Court’s brutal literalism, which saw two NSW Coalition women with more votes — Fiona Nash and Hollie Hughes — disqualified over minor and temporary technicalities. Molan hasn’t resigned, of course. No one has even asked him why not. That’s because the answer is obvious: like all the coat-tail senators, he couldn’t care less what voters truly wanted.

At the end of last week, the Greens senator Andrew Bartlett, who replaced Larissa Waters after an accident of birth capriciously left her with an unwanted Canadian citizenship, added his name to the list of coat-tail senators who won’t be re-elected to the Senate. Next election, Waters will probably be the first disqualified senator to regain her seat, albeit three years after voters wanted. Alas, Bartlett, who devoted his previous spell in the Senate as a Democrat to campaigning for reform to section 44, didn’t withdraw from the next Senate ballot to respect voters’ true intentions, but rather because he calculated that contesting a seat in the lower house instead would better suit his and his party’s prospects.

What if all of our politicians — or at least the major parties — responded to the flaws of section 44 by acting together to restore the voters’ intentions? Current coat-tail senators who came to parliament because of others’ temporary disqualification — Fraser Anning, Richard Colbeck, Jordon Steele-John, Bartlett, Molan and Martin, and soon perhaps Storer and David Smith (all men) — could swiftly resign to allow the now perfectly qualified people who the voters actually chose — Malcolm Roberts, Stephen Parry, Scott Ludlam, Waters, Nash (or Hughes), Lambie, Kakoschke-Moore and Katy Gallagher (mostly women) — speedily back into their seats.

Likewise, in the lower house, major parties could opt not to contest any by-elections of representatives under a purely technical cloud, among them Anne Aly, Julia Banks, Jason Falinski, Josh Frydenberg, Alex Hawke, Lamb, Justine Keay, Nola Marino, Rebekha Sharkie and Josh Wilson. Such selfless bipartisan acts would make an eventual constitutional fix both much more achievable and much less necessary. •

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Four months later, the parliamentary website now boasts nearly 2000 pages of paperwork from all the MPs who survived (and some who were given seats by) the ensuing crisis, other than rookie parliamentarian Barnaby Joyce. Just as all of them swore to their eligibility when they nominated, all have ticked “no” to the question: “Are you now a citizen of any other country than Australia?” Two have already been referred to the Court of Disputed Returns. Dozens more wait nervously. The one member who can relax is Canavan, the lone sitting MP to survive a court challenge.

It would take a PhD thesis to fully explore Jason Falinski’s current citizenship.

Here’s how to read the paperwork. Only two parts of each MP’s register are worth looking at. The first is the second page, where each MP lists the birthplaces of herself and her parents, grandparents and spouse. If all eight of those places are in Australia, then the MP is probably in the clear. But the register doesn’t seek other information that could possibly affect citizenship, such as the birthplaces of previous spouses, spouses’ ancestors and MPs’ great-grandparents, as well as anything anyone did after being born that might have landed him or her with a foreign nationality. (The register also asks nothing about other constitutional disqualifiers: adherence, criminality, bankruptcy, employment and finances.)

As a group, the page-twos are mildly interesting reading. They show, for instance, that only 11 per cent of MPs are born overseas (compared to 28 per cent of Australian residents, but that includes people who can’t stand for office, such as children and tourists). More revealingly, members’ spouses are twice as likely to be born overseas as the members themselves are, and senators are twice as likely to be born overseas as members of the House of Reps are. A third of MPs have at least one overseas-born parent and over half have at least one overseas-born grandparent (though the latter figure drops to a quarter if you exclude UK-born grandparents, who can’t pass on citizenship to their grandchildren).

Several birthplace lists provide for more sober reading. Ten MPs report that they don’t know the birthplaces of one or more of their parents or grandparents. Anthony Albanese, for instance, has left his entire paternal side blank (seemingly omitting a much more complex story). In at least some cases, the holes in the record are distressing, notably for Indigenous MPs, for whom the audit meant capricious unearthing of their family histories. What adds salt to that wound is the fact that the gaps can generate suspicions of an unconstitutional “split allegiance” with a foreign country. Indigenous accounts make me wonder whether Di Natale consulted with any of Australia’s minority communities before he demanded a citizenship audit. Others facing similar difficulties include the adopted, the abandoned and many refugees, past and contemporary.

Particular page-twos are simply fascinating, such as that of Western Australia’s Nola Marino, who has an Italian spouse, an American father, two Italian grandparents and one Swedish one. Her register includes the latter’s 1914 certificate naturalising him as British, which reveals that he emigrated to Australia aged eleven without either of his parents (who lived their entire lives in Sweden). The certificate also reveals that Marino’s mother was born just one year before her grandfather lost his Swedish citizenship. This example shows why the only other important part of the register is the end, where members can include documents supporting their claims. Those documents need to be read carefully, both for what they contain and for what they don’t.

As for the rest of the register, the part where MPs provide narrative accounts of their own citizenship research: just ignore it. Marino’s register includes her claims that she has been “assured” that she is not an Italian citizen by marriage, that her understanding of the High Court’s ruling on Canavan is that she is not an Italian by descent and that the internet informs her she is not an American. These assertions have no more relevance than ex-Senator Malcolm Roberts’s infamous “I choose to believe.” The sole other document Marino provides is a letter from the Italian embassy, asserting (without explanation) that she isn’t Italian (that is, as far as the embassy knows). She has lodged no documentation at all about her American father or her marriage, and asserts privilege over the legal advice she cites. Unsurprisingly, she is one of four government MPs whom Labor and the crossbenchers have since sought to refer to the High Court.

The audit has unearthed many important citizenship-related documents, some seemingly settling doubts about some MPs’ citizenship, others confirming or revealing them. The latter show how multiple MPs were possibly ineligible to sit in previous parliaments, and that some — such as Labor’s Katy Gallagher, now referred to the Court of Disputed Returns — may be ineligible for this one. These cases reveal a key flaw in Labor’s (otherwise superior) vetting process, as detailed in David Feeney’s register, which includes a four-page note from the Kevin07 “legal unit” advising him to renounce his possible British and Irish citizenships. Feeney’s register dramatically lacks any other evidence that he sent in the paperwork, much less received positive responses from either British Isle, and he, too, has been referred to the High Court.

In a radio interview after Larissa Waters’s resignation in July, new MP Anne Aly claimed that Labor now does things differently: “The party was very much about following up and ensuring that I did take all the measures that were necessary. They were continuously in contact with me.” Nevertheless, while her register has a letter from Egypt confirming that she lodged her paperwork, it lacks any documents confirming when (or even whether) she successfully renounced.

More importantly, the audit highlights the impossible situation the Constitution creates for many Australians. As I outlined in an earlier article, the details of some Australians’ foreign citizenships, including my own, simply cannot be documented at all, either to prove or to disprove them. Bronwyn Bishop’s successor in the safe seat of Mackellar, Jason Falinski, has my problem: a parent born in the heart of the second world war. Falinski’s grandparents fled their birth towns, one surviving the Nazi invasion of Krakow and the other the siege of Leningrad. After his grandfather’s stint in the Red Army, the pair met near the border of Kazakhstan and Kyrgyzstan. Falinski’s father was born in 1943 in Tokmok, a town of 50,000 that was later the childhood home of the Boston Marathon bombers.

Or so Falinski now believes — he has only his father’s (and, for the most crucial events, only his grandparents’) say-so for any of this. All we know for sure is that the three emigrated to Australia from Russia in 1958 when his father was fifteen, and that Falinski himself was born in Manly twelve years later. Falinski’s register omits his father’s immigration record, including its nomination of the trio as Polish. That’s fair enough in my view, as such documents merely record what individuals said in the past about their citizenship, claims that can be made for many reasons. If they exist at all, the only useful documents on Falinski’s past are likely to be buried in a basement somewhere in the former Soviet Union.

Falinski’s other problem is negotiating the citizenship laws of three different non-English-speaking countries — Krygyzstan, Poland and Russia — including relevant laws over the past century. The past laws are especially daunting, as none of these countries existed continuously throughout that period, and each has experienced multiple conquests, revolutions and political transformations. It would take a PhD thesis to fully explore Falinski’s current citizenship.

In legal advice Falinski belatedly added to his register, Melbourne law firm Arnold Bloch Leibler offered a heavily caveated argument for eligibility, relying on factual minutiae such as Falinski’s grandfather’s Red Army service, his father’s illegitimacy and the renunciation of other nations’ citizenship that was part of Australia’s citizenship oath in the 1960s. It also largely ignores more recent liberalisation of each country’s citizenship laws, simply noting that Falinski should “seek independent legal advice from foreign experts.”

Cases like Falinski’s illustrate the utter foolishness of those who dismiss the current citizenship crisis as arising merely from politicians’ lack of due diligence (a view stated by the current High Court) or as a problem that only affects Australians of British descent. The most useful outcome of the audit would be to put an end to the current shortsighted partisanship that is blocking urgent constitutional reform. To date, the lone sign of internal political dissent has come from Labor’s Michael Danby, who has publicly clashed with his shadow attorney-general on the question of whether the Liberal’s Josh Frydenberg should be referred.

Frydenberg’s register lacks any documentation at all about his possible citizenship through his mother born in 1943 Budapest, as well as through his Polish-born paternal grandparents. Speaking to the Australian Jewish News, Danby cited “political, historical and ethical issues” for why “Josh Frydenberg’s mother’s statelessness should not be raised as part of the citizenship debate.” When Labor and crossbenchers recently voted to refer a slate of Labor and Liberal MPs to the Court of Disputed Returns, Falinski — whose grandparents fled both the Nazis and the Communists — was on the list, while Frydenberg wasn’t. •

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In the lower house, the replacements are chosen by voters at a by-election. The dozens of nominees for New England, Bennelong and wherever else becomes available have (some) time to check with their lawyers and get their affairs in order. But the Senate is another matter.

Every ineligible senator gets replaced by someone from “below the line” on one of those ginormous Senate ballot papers from 2016. The “big red flashing letters” the High Court switched on last month came far too late for them. If they weren’t eligible when they were nominated, they’re out. And the problem isn’t just limited to dual citizens. Section 44 of the Constitution bars other groups from parliament too: criminals, bankrupts and, most importantly, anyone with certain links to government. Lots of people fall in that last category: public servants, teachers, police, people who provide various kinds of services to government… the list goes on.

Ben Chifley was an alderman of Abercrombie Shire at the same time he was (perhaps!) our nineteenth prime minister. But no one would bet on the current High Court continuing to let local and federal government mix.

And nearly all of the replacements didn’t think they had much chance of winning in 2016. That matters, because it affects the decisions they made when they nominated. It’s one thing to give up your foreign citizenship to run for parliament. It’s another thing altogether to quit your job.

In 1992, ex-footballer Phil Cleary ran for Bob Hawke’s seat in a by-election. As an independent running alongside twenty-one other candidates in a safe Labor seat, he was a long shot. So it’s not surprising that he took leave to campaign rather than quit his then job as a high-school teacher. After he won, the High Court, in the first of its many “brutal” readings of section 44, said that wasn’t good enough. Unless he’d irrevocably quit before he was nominated, he was ineligible.

Much as the present High Court judges (and some commentators) like to lecture candidates about how they must be “serious” to run for office, it’s easy to see the impact of a rule that requires many people to quit their jobs simply to nominate. It’s a rule that discourages all but the rich, privately remunerated professionals, the self-employed, the unemployed or the anointed major-party candidates from running for federal office.

If that wasn’t capricious enough, the precise rules about what jobs you have to give up are completely unresolved. Do you hold an “office for profit under the Crown”? A “pension” payable at the Crown’s “pleasure”? An “indirect” pecuniary interest in any “agreement” with the federal public service? No lawyer could tell you for sure. Only the High Court can decide. And in the Senate, this means that the court must work its way down, and then across, the 2016 ballot until it finds someone eligible. The tests are so unclear that the process can behave like a constitutional version of the Japanese slot machine, pachinko.

Take British dual citizen Jacqui Lambie’s potential replacements from the 2016 Tasmanian Senate ballot. The next person on the Lambie Network list is Steve Martin, the mayor of Devonport. Past parliaments have contained sitting local councillors, notably Ben Chifley, who was an alderman of Abercrombie Shire at the same time he was (perhaps!) our nineteenth prime minister. But no one would bet on the current High Court continuing to let local and federal government mix.

If the mayor falls, the next man in line, Rob Waterman, says that he’ll quit if he is belatedly made a senator, because he wants to stay in his current job. But his current job is a problem: he manages public health in parts of Tasmania. While (to my mind), that’s an ideal qualification for a senator, it also bristles with section 44 problems. If Waterman’s ineligible, then Lambie’s dream return is over, as the entire Jacqui Lambie Network will be off the ballot. The constitutional pachinko ball will then bounce over to One Nation. My bet is that Kate McCulloch, dubbed the “next Pauline Hanson,” will follow her idol by taking an unlikely path to the national parliament.

This may seem like mainly a minor-party problem. Major-party candidates are vetted and can take more risks when they run. But then, last week, the High Court sprang a very nasty surprise on the Liberal Party. The surprise involves Moree’s Hollie Hughes, a long-time member of the NSW Liberal Party executive. She was sixth on the Coalition Senate list for that state in the 2016 election and, this time five months ago, had moved on (as had everyone else).

A year after NSW voters chose to have only five Coalition senators, she began a new career as a member of the federal Administrative Appeals Tribunal, hearing immigration appeals and the like, a plum job courtesy of attorney-general George Brandis. A week later, Scott Ludlam made his shock announcement that he was a New Zealander. The ensuing chain of events led Hughes to leave her new job after four months — just forty-five minutes after the High Court sacked five MPs, including National Fiona Nash, who was third on the NSW Coalition Senate list.

Unlike those five (and others), Hughes was undoubtedly eligible to be an MP when she was nominated. And she’d also be eligible if a fresh election were held right now. But the High Court, after hearing about her previous short stay at the Tribunal — an “office for profit under the Crown” — this week refused to name her to fill Nash’s place. The new Liberal senator will probably be Abbott ally, major-general Jim Molan. (Don’t worry! The founding fathers had no problem mixing the military and legislature, so they expressly permitted “an officer or member of the Queen’s navy or army” to be an MP. Their lack of foresight extended not only to the possibility of an Australian coup, but also to the creation of an air force.)

The High Court is yet to explain its Hughes decision, which came as such a shock that several journalists who were in the courtroom misheard it. What’s clear is that the court considers the 2016 federal election to be very much still running, meaning that the Constitution’s (non-military) bans continue to apply to every also-ran in the 2016 federal election. If any of those (seeming) losers took up a public job (as a teacher or cop or ministerial staffer, for instance), or signed an agreement with the federal government (perhaps even a student loan?), or went bankrupt, or whatever, for just an instant in the past year, then they’re out of the game.

Is there any reason to put a person who got fewer votes than Hughes into parliament in her place, simply because she took a public job when she (and everyone else) thought she had lost the election? The government-funded “friend of the court” suggested some bizarre hypotheticals about how any other rule could let the government of the day manipulate the parliament through selective plum jobs to Senate also-rans. But it seems doubtful that any of that mattered to the High Court, which reached its unanimous decision in minutes (after giving the parties scarcely a weekend to prepare their cases).

As constitutional scholar Graeme Orr later tweeted, “This Court neither cares for nor understands electoral concerns. Section 44 is a nuisance to them, so they continue a doubling down on it.” Any solution to this constitutional problem is never going to come from the current seven justices. Instead, the best hope for now is that the current MPs can put aside their own self-interest long enough to pursue meaningful constitutional reform (or perhaps some sort of parliamentary or administrative work around).

Ironically, the strongest proponent for reform in the present parliament owes his position to the crisis. Incoming Greens senator Andrew Bartlett made repeated calls for reform of the Constitution’s bans on dual citizens and public servants when he was leader of the Australian Democrats. But he is only back in the Senate now because he was next on the list after Larissa Waters, who capriciously lost her seat owing to her involuntary Canadian citizenship. In a further irony, his own position is at risk because he was (until recently) an academic at the Australian National University, which may (perhaps) be an “office of profit under the Crown.” Bartlett’s potentially brief journey through parliament’s revolving door may prove to be the perfect illustration of the need for constitutional reform.

There is one small measure of justice in all of this. Contrary to some predictions three weeks ago, the High Court’s Citizenship Seven decision has left a great many things unclear about section 44 of the Constitution. Many of the incoming High Court cases will require the judges to decide some very tricky legal issues. While the current judges will no doubt continue to answer these questions with “brutal literalism,” their deliberations will take a lot of time, work and money. Usually, the High Court takes a lengthy break from December until February. But, appropriately, there’s a good chance that the judges will have to forgo all of their holidays until the 2016 federal election finally ends. ●

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The majority of the new batch are like most of the Citizenship Seven. They say they had no idea they were dual citizens, and acted to rid themselves of their status (more or less) as soon as they could. But a sizeable fraction, mostly from the Labor Party, are the opposite.

Take Tasmanian lower house MP Justine Keay. Labor’s lawyers told her that she might be a Brit in February last year. But the party’s much-vaunted vetting process turns out to be hands-off when it comes to whipping candidates into action. Keay did nothing for three months, acting only when Turnbull called a double dissolution election.

She explains that the delay wasn’t due to incompetence, distraction or laziness, but rather the “serious reflection” the High Court now demands of all candidates for public office. “It’s one of those things with the citizenship I knew I could never get it back. If I don’t get elected I can’t get my citizenship back and, for me, it was a very personal thing. I try not to be upset about it but it was that last tangible connection with my dad.”

Her words go to the true purpose of section 44(i). It is not a test of political candidates’ intelligence, knowledge of their family history, googling skills or respect for the law, but rather of their “allegiance” to a foreign country. As Keay’s (perhaps too honest) account makes clear, her own split loyalties were not to a foreign power, but rather to her own family.

Her explanation notes one of the Constitution’s cruellest details: its requirement that prospective politicians irrevocably rid themselves of disqualifying attributes — foreign citizenship, jobs in the public service, government business ties — not only before the election results are known, but before they even nominate.

Last week, a High Court judge refused to tell a regular ACT senate candidate whether his trick of withdrawing his renunciation of British citizenship every time he loses an election passes constitutional muster. In the end, Keay opted to abandon her British citizenship and managed to win a seat in parliament. The problem is that her hesitation on the former may be fatal to the latter.

Her renunciation of her British citizenship didn’t take effect until two days after she won her seat (and, crucially, a month after she nominated). Indeed, unlike most of the Citizenship Seven, it could be argued that she committed the criminal offence of knowingly making a misleading declaration when she ticked “yes” next to constitutional eligibility on her nomination form. If she were prosecuted and, say, fined for that offence, that would also disqualify her from being an MP.

For now, Keay’s future (and that of several other Labor MPs and a crossbencher) rests on a different argument. Unlike Malcolm Roberts, who remained a Brit on nomination because he fumbled the formalities of renunciation, Keay filled in the right forms, made the right declaration and paid the right fee a month before she nominated.

“What’s frustrating,” she has complained, “is I have done everything possible and I have taken the constitutional requirements that I have very, very seriously.” Citing belated legal advice she received last week, she says, “I would be incredibly confident of getting through that process” of going before the High Court.

She shouldn’t be. Keay and her lawyers seem to be drawing on a widespread misconception that all the Constitution requires of political candidates is “reasonable steps” to comply. Just two weeks ago, though, the High Court adopted Tony Windsor’s argument that “the operation of the constitutional guarantee of single-minded loyalty provided by s 44(i) should not be made to depend upon the diligence which a candidate brings to the observance of the provision.” In other words, there is no try. There is only done or not done.

The sole exception accepted by the High Court is where a foreign country’s processes make it impossible for Australians to rid themselves of foreign citizenship or entitlements. Then, and only then, will reasonable steps suffice. The examples the court gave were about laws that require Australians to travel to an unsafe country or, perhaps, countries with opaque and unhelpful renunciation systems. The British system is the opposite of all that.

To keep their seats, Keay and others like her will have to convince the court that Britain’s (sometimes) two-to-three-month renunciation process is just too slow and unpredictable given the reality of Australia’s nomination process and a candidate’s election chances. That argument might help SA lower house MP Rebekha Sharkie, who lodged her paperwork in mid April, some six weeks before the nomination date (and before the election was even called), but it is unlikely to help Keay.

Indeed, there are sound reasons for the Brits not to rush things, including ensuring that renouncers don’t accidentally render themselves stateless or aren’t the victims or perpetrators of some sort of fraud, matters that are much more serious than Australia’s silly constitutional requirements.

For her part, Keay says that she won’t refer herself to the High Court, citing her legal advice. Her position exposes the unworkability of the tradition of not launching “partisan” referrals, especially when so much about section 44 of the Constitution remains hopelessly unclear. Her legal advice (like the understandable but wrong advice the solicitor-general gave to Malcolm Turnbull months ago) is worthless until it is tested in court.

Keay seems to realise that her position is precarious: “Should the government decide to act in a partisan way and do that, that’s for them to determine. If they want to try to take me out on the way through their crisis, so be it, I’ll deal with that.” Many will say that she has only herself to blame for her predicament. But she is by no means the main culprit. Rather, the blame falls on the Constitution and the High Court’s interpretation of it. The real problem is a rule aimed at weeding out “split allegiances” with other countries that unseats a MP who spent no more than two days in office as a British citizen.

Ex-MP Barnaby Joyce makes a better point about the new rush of potentially disqualified MPs: “Maybe the High Court, if they’d seen them all turn up as a job lot, might have a different perspective on how big this issue is.” I suspect he is right. But that ship has sailed now and can scarcely be turned to save members from just one side of politics. The High Court now demands not only “serious reflection” by all future politicians but irreversible action long before an election is called. Current MPs who understandably hesitated before taking the plunge must now brace for a very rough landing. ●

The post The hesitators appeared first on Inside Story.

The simplest half of the puzzle is my father’s birth as a German citizen in Frankfurt in the 1930s. Thanks to Adolf Hitler, whose Eleventh Decree to the Law on the Citizenship of the Reich stripped my Jewish father of his citizenship in 1941, years after he arrived in Australia, I am certain I’m no German.

But there is a complication: Article 116(2) of Germany’s Basic Law provides that people in my father’s position “and their descendants, shall on application have their citizenship restored.” Although I haven’t applied, it seems arguable that I am “entitled to the rights or privileges of a subject or a citizen of a foreign power” (a phrase that the current High Court says is part of the same “limb” as section 44(i)’s ban on foreign citizens). This interesting legal question can only be tested if someone like me is elected as an MP and then has her eligibility challenged in the Court of Disputed Returns.

If I were ever elected to a very narrowly divided parliament, there would be a good many people with much better resources and motivation than me to solve the mystery of my citizenship.

The trickier part of the puzzle is my mother. She was born during the second world war somewhere on the Soviet side of the front. However, precisely where in the former Union she was born (and hence her potential current foreign citizenship of a former Soviet Republic) is something that only my long-dead grandparents know for sure.

My mother obviously can’t confirm her birthplace with any certainty. Her earliest memories are of crossing countless borders as a refugee. (My grandparents themselves were very vague about the details and timelines of their respective wartime ordeals. It is obvious that they were awful experiences.) While none of these facts concern me at all, every single detail would be crucial to determining my current eligibility under section 44(i).

Yet the current High Court’s judges (some of whom would also be my future electoral executioners) saw fit to declare:

It is necessary to bear in mind that the reference by a house of parliament of a question of disqualification can arise only where the facts which establish the disqualification have been brought forward in parliament. In the nature of things, those facts must always have been knowable. A candidate need show no greater diligence in relation to the timely discovery of those facts than the person who has successfully, albeit belatedly, brought them to the attention of the Parliament.

If I were ever elected to a very narrowly divided parliament, though, there would be a good many people with much better resources and motivation than me to solve the mystery of my citizenship. Somewhere, there may be an old Soviet record, or a wartime refugee camp form, or a surviving acquaintance of my grandparents, that could belatedly confirm me as a citizen of one of a potential dozen or so nations, each with its own highly complex and shifting citizenship laws. My own ignorance of these matters (no matter how diligent my personal search) would be absolutely irrelevant to my future eligibility. So holds the High Court in its judgement in the case of Senator Matt Canavan.

And for me to do my constitutional homework would, at a minimum, be punishingly expensive, much more so than the truly ridiculous sums that Sam Dastyari had to pay to (probably) rid himself of his Iranian citizenship. Worse, there is every likelihood that I would be unable ever to be sure that I wasn’t a foreign citizen, much less satisfy any party contemplating nominating me. The likely result of any “serious reflection on the question” of my eligibility (as the court put it) is that nominating me would not be worth the risk. And I am hardly an unusual case (outside the “came with the First Fleet” set, that is).

The court — which a week earlier struck down Tasmania’s vague anti-forestry protest laws because of their “effect of inhibition or deterrence on the freedom” of political communication — seems entirely blind to the “significant deterrent effect” its judgement will have on a sizeable fraction of Australians who might otherwise seek to exercise their right to participate in Australia’s representative system of government.

Just imagine a future federal election, called (as they often are) by surprise:

● First, many Australians will contemplate a stab at elected office. For most, it’s just a matter of finding the deposit and some signatures. But for others with a bit too much foreign blood, it’s a time for “serious reflection” and even more serious expense. For many of those, there’ll be far too little time to feasibly nominate.

● Next, the parties race to finalise their nominees. The faceless men will face the following non-quandary: should they punt on the Australian with immigrant parents from tricky countries, or a multi-generational Australian? Backers of the true-blue Aussie will ponder a whisper campaign about her opponent’s “High Court problem.”

● Then the nomination date closes. The media will immediately demand that all candidates furnish “proof” that they aren’t dual citizens. Naturally, it’s the “ethnic” candidates who will come under the closest scrutiny. If any baulk at detailing their heritage, their political opponents will dog whistle by quoting the Kiefel Court’s words on “split allegiances.”

● At last, the election result is announced and it’s a close one! Rather than negotiate over a minority or coalition government, the parties hurriedly conduct background research into a small subset of suspect opposition MPs, while the media frets about the party’s carelessness in nominating them. The internet buzzes with speculation, well-founded or otherwise, about the veracity of the foreigners’ paperwork, speculation that never entirely fades.

● Finally, the new government forms. But wait! Given academic speculation that ineligible ministers’ decisions can “possibly” be challenged, should the new PM really risk appointing an MP whose status isn’t 100 per cent certain to the cabinet? If she’s a risk-taker, the new PM may take a punt on some of the new ethnic MPs, but certainly not for a senior position.

I hope my prediction will be wrong (again). I am confident that, one day, despite all this, we will have a prime minister from a minority ethnicity. But can we be sure that an outdated constitutional provision won’t tarnish, or even undercut, that crucial moment in our nation’s history?

Professor George Williams, who (unlike me) correctly predicted the government’s humorous but lingering predicament, sees only two ways out of this debacle:

One is to conduct an audit of the eligibility of all parliamentarians to identify those MPs who may now be disqualified due to the High Court ruling. There is now sufficient certainty about the state of the law on section 44 to enable this to be conducted immediately. The second option is to recognise that section 44 of the Constitution is ill-suited to modern times and should be amended.

These are lousy options. The first (which matches a similar call by some crossbenchers and a growing number of journalists) would basically guarantee my prediction, and indeed accelerate it. The second assumes that we live in a bizarro Australia where sensible proposals for constitutional amendments aren’t routinely derailed by politicians seeking short-term political gains.

I have two alternative proposals. The first is to think outside the (Australian) box. Why not negotiate with the major sources of Australian immigrants — Britain, New Zealand, India and China, for starters — to have them insert a provision into their own citizenship laws that instantly revokes the citizenship of Australians who nominate for a federal election, without fees, paperwork and, crucially, the nominees’ awareness of their dual citizenship? (The nomination form could duly warn nominees of this possibility.)

To be sure, this would be a highly embarrassing request for one government to make to another, but it would provide the clearest legal way to reduce the continuing instability imposed by section 44(i), in the absence of a debilitating constitutional campaign.

Not every foreign country will change its laws to suit Australia’s quirks, so the problem would remain. My second proposal is to shift the “homework” burden to all Australians, rather than just the foreign ones. Much as the Mormons’ penchant for posthumous baptisms has led Utah to expertise in genealogy, it seems likely that section 44(i) will enrich many Australian lawyers in the esoteric field of foreign citizenship law. But there should be no need for nominees, or even political parties (especially minor ones) to bear the enormous costs of finding and engaging those experts, much less sorting through and acting on their (potentially conflicting) advice. Rather, the government should fund an independent agency that provides a “foreign citizenship assessment and renunciation service” to all prospective nominees for federal election who make a timely request. It will be for that service to research all relevant laws and each potential nominee’s background, do all the legwork (aided, perhaps, by intergovernmental cooperation) and bear all the expense of effecting a renunciation (or reasonable steps to that end).

To be clear, both of these proposals are expensive, but section 44(i)’s considerable financial costs are already imposed on prospective nominees and their parties, well-resourced or not. Now that our nation’s grandest pooh-bahs, judicial and otherwise, have opted to follow the script of that thinly disguised lampoon of British bureaucracy, The Mikado, such extreme measures have truly become a “constitutional imperative.” ●

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Although it was never published, the letter’s content is clear from a lengthy article published in News of the World that Sunday. The article began: “The murder trial jurors who used a ouija board before reaching their verdict held the séance after a bawdy booze-up, says the colleague who blew the whistle on them.”

The tabloid’s headline — “BOOZE, DIRTY JOKES AND THEN THE OUIJA BOARD” — somehow gave an entirely sex-free case a sexy angle. Apparently, between drinks at the bar and talk of séances at dinner, the jurors told some off-colour jokes. But that was the least of their alleged sins.

The rest of the article reported the sombre words of the juror, Adrian, who had penned the letter:

I just couldn’t live with myself. To me, this was a miscarriage of justice. I thought to myself, “This is someone’s life we’re dealing with.” I was astonished that these grown-up people had played this child’s game.

Jobless Adrian, a former factory hand, was the youngest member of the jury at the trial of Stephen Young. The tabloid even published a picture of him — a nondescript young man wearing a denim jacket — superimposed on an image of hands resting on a glass tumbler surrounded by pieces of paper.

According to News of the World, Adrian spent the weeks after the verdict “lying awake at night thinking about it” and “even dreaming about Harry Fuller,” the victim supposedly contacted in the séance. After a talk with his parents, he consulted the Citizens Advice Bureau, which advised him to “see a solicitor and think it over.” But he had trouble finding a solicitor who wanted to help him, with three of them telling the former juror they couldn’t assist (perhaps because English law seemed to say that such disclosures of what jurors said was illegal).

The tale might have ended there, but by then word of the alleged events in the hotel had reached at least eighteen people: the twelve jurors, Adrian’s parents, a volunteer at the Citizens Advice Bureau, and three solicitors. In the end, a fourth solicitor “agreed to listen” to him and was left “astonished and speechless.”

Adrian’s experiences with his jury were entirely as part of the group of twelve (or fourteen, including the two bailiffs at the hotel), he told News of the World. When talk of séances came up at dinner at the hotel where they were sequestered for a single night:

I was interested to hear what they said, but found it funny. Those who had done it before were laughing about it, but those who hadn’t were quite serious. We had a curfew of 11 pm and had to be in our rooms before then. I went ten minutes early because I’d had three pints and was a bit tipsy. Another woman had a headache and went to bed early. I didn’t get a good night’s sleep, because I’d drunk too much and felt a bit rough and the bed wasn’t too comfortable. One of the jury produced two pieces of paper and started talking about the previous night. I overheard, and at first I couldn’t believe it. They had secretly gone to one of their rooms and gone through with it.

While the Old Ship Hotel probably didn’t appreciate this review of its beds, Adrian had no doubt what the real problem was that night. As the News of the World’s headline emphasised, the evening had been anything but sober:

Everyone had a few to drink and we were laughing at the girls who had too much. There was a real holiday camp atmosphere. We really needed to relax because the trial had gone on so long. There were a couple of dirty jokes told and everyone was in a good mood.

He added: “What went wrong, I think, was that a few beers came into it and mouths started talking.”

It would be naive to think that the four jurors at the Old Ship were the first or last to secretly meet up in one of their rooms after lights out. Human nature suggests that the rule is that what happens in a juror’s hotel room stays in that hotel room. Indeed, one of the hotel-room jurors would later describe how the evening’s events ended when “we retired to our rooms and agreed not to relate what we’d done to anyone.” Had that vow been kept, the story would have ended there.

But it wasn’t:

I didn’t think anything else about ouija boards until the next morning, when it was raised again halfway through breakfast. The twelve of us on the jury and the two court bailiffs were sitting round a long table.

He just came out with it and said: “We’ve done a ouija board and got in contact with Harry and Nicola.” He said he and three female jurors went to one of their rooms. They’d had a few drinks and just decided to do it.

The two bailiffs either didn’t care or (as they later told the Court of Appeal) didn’t hear:

We should add that more than one juror admitted on affidavit to having had more drink than was good for them whilst in the hotel and to feeling the worse for it the next morning. Neither of the bailiffs, according to their affidavits, seemed to have been aware of that or of the fact that four jurors had got together in one room over an ouija board.

Adrian didn’t care at first either. He “was lost for words and couldn’t stop laughing — but I could see they were all taking this\seriously.”

As a formal matter, the Court of Appeal was investigating a murder conviction. But, given Adrian’s letter, it was the jurors themselves (or at least some of them) who were under investigation. Much like criminal suspects, they would be contacted at their homes and then questioned by a senior police officer about their conduct, which was alleged to be potentially criminal.

Indeed, jurors can be prosecuted for their trial behaviour. A startling example occurred in Canada a year after Young’s appeal. Participants in an eight-month Vancouver murder trial noticed a juror, Gillian Guess, “flip[ping] her hair and look[ing] seductive” towards one defendant. After the jury acquitted all of the accused, the police pursued their suspicions by tapping Guess’s phone, eventually discovering that the pair had been sleeping together throughout the trial. Guess was convicted of attempting to pervert the course of justice and both she and the defendant were sentenced to prison, in her case for eighteen months, even though no one claimed that she reached a false verdict. British Columbia’s highest court rejected her appeal:

That the appellant well knew what she was doing in carrying on an affair with an accused was not in accord with her duties as a juror is clear from the evidence. She was secretive about the matter and in discussions with her sister and friends she acknowledged that what was occurring was wrong. She observed that she felt “conflicted.” That, of course, precisely identifies the difficulty — she was in a position of impossible conflict. Would this conduct have a tendency to pervert or obstruct the course of justice? The answer to this question is obviously in the affirmative. The juror would be privy knowingly or unknowingly to information not possessed by other jurors and because of the emotional ties between her and the accused would be hampered in properly performing the impartial functions of a judicial officer.

The four hotel-room jurors were also (briefly) “secretive about the matter” and they acknowledged (among themselves) that they “had gone too far,” were “privy… to information” (of a sort) “not possessed by other jurors” and (in some cases) became “emotional.” So, a conviction for attempting to pervert the course of justice couldn’t be ruled out, had any of them been prosecuted. The upshot is that at least some of the jurors would indeed have been well-advised to refuse to participate in the investigation, which they were entitled to do, unless they were promised immunity from prosecution.

The Lord Chief Justice ruled that his court would cross this bridge if it came to it:

Our view is that if problems arise of that kind, we will have to deal with them as and when, but for the moment we propose to direct that affidavits should be obtained from all the jurors and from the two bailiffs, and there should be investigation of the matters contained in the letter of 18 April from solicitors to the Lewes Crown Court, only so far as the matters in that letter relate to how the allegation of the irregularity arose and how it was communicated.

He also postponed the question of the jurors themselves being asked to testify:

I think what we ought to do, so far as attendance of witnesses is concerned, is to see the affidavits when they are prepared. If those can be produced to the court, then the court can indicate which witnesses ought to attend the hearing, if any, with a view possibly to being called. If a witness cannot contribute anything, there is no point in having them all come. We should like to see the fruits of the inquiry on paper in affidavit form, and then decide which witnesses ought to attend.

As it happens, none of these contingencies arose. All the jurors agreed to be interviewed and none were either called as witnesses or charged as criminals.

The decision to ask all twelve jurors what they knew about events at the hotel was risky, as an Australian example shows. In 2014, Australia’s High Court told a lower court to investigate a note that was handed to a bailiff after a jury verdict. The note said: “I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote.” The High Court glibly forecast a simple investigation:

Any doubt or ambiguity as to the true meaning of the note might be resolved relatively easily by inquiry of the juror who made the note. An inquiry may reveal, either that the “physical coercion” referred to in the note was no more than robust debate, or that whatever pressure was described, it had, in truth, no real effect upon the decision of the juror who wrote the note… [I]t cannot be assumed that the inquiry would be “wide-ranging and intrusive… into the deliberations of the jury, [involving] the interrogation of all twelve members of the jury.”

The inquiry took the better part of two years. The lower court struggled first to locate the juror who wrote the note and then to convince (and ultimately compel) him to explain it. When the juror (who turned out to be the foreperson) finally spoke, he said that he was indeed assaulted by another juror to make him change his vote. In the end, all twelve jurors testified in person before the appeal court. Their accounts varied on all manner of details, from the sequence and length of deliberations, to how and when the foreperson left the discussion, the layout of the toilets where the assault was said to have occurred, and even whether the lead prosecutor was blind.

Ultimately, the appeal court found that there was no coercion, because there was little or no support for the foreperson’s claims of hostility in the jury room or any opportunity for such an assault in the toilets. “The shadow of injustice has been dispelled,” the court declared, and “the integrity of the verdict has been put beyond question.” Not all who read the jurors’ account of the chaotic deliberations would agree.

For all its many oddities, the ouija board case did not suffer this fate. The result of the Court of Appeal’s investigation was to broadly confirm what Adrian had told the News of the World. But that certainty meant the English court had to resolve an unprecedented question: whether a criminal defendant must receive a new trial if some of his jurors used a ouija board.

The English court that heard Stephen Young’s appeal concerning his jurors’ use of a ouija board while staying overnight in a hotel was not the first to assess the talking board’s utility. A quarter of a century earlier, in 1958, Connecticut’s Supreme Court considered a will that Helen Dow Peck, a wealthy widow “of literary knowledge and artistic tastes,” had made when she was seventy-one, fourteen years before her death. After providing for her debts and gifts to two servants, she bequeathed the remainder of her $158,000 estate as follows:

Third: I give, devise and bequeath to John Gale Forbes all the rest, residue and remainder of my estate, real, personal and mixed of whatsoever name and nature and wheresoever situated.

Fourth: If the said John Gale Forbes be deceased, I direct that my estate be liquidated in part or whole as my executors may determine and the sum be reinvested and the income applied toward the investigation of telepathy among the insane for their understanding and cure. This sum is to be known as The John Gale Forbes Memorial Fund.

Alas, the executor was unable to locate Forbes and it turned out that Peck had never actually met him:

In 1919, the testatrix had purchased a ouija board which she used with her husband. She told a friend sometime after 1940 that she played with this board and “John Gale Forbes resolved out of space.” Through the board he became her correspondent, and she believed him to exist although she had never seen him.

The Supreme Court upheld the trial court’s finding that “John Gale Forbes was an imaginary person who had never existed” and “that he was the product of a mental delusion, a monomania, which obsessed the testatrix prior to and in 1941 when she executed her will.” It ruled that Peck’s entire will, including the gifts to her servants and the memorial fund, was void, allowing her surviving nieces and nephews to claim the estate.

Rejecting the possibility of life after death certainly makes it much easier to rule on the effect of a will. Oddly, though, Stephen Young’s appeal could have been much more easily resolved if the court accepted that the four jurors really did speak with the ghost of one of Young’s alleged victims, Harry Fuller. Young’s counsel argued that the hotel-room séance was a “material irregularity” in three ways:

First, it was an attempt to acquire further evidence or information beyond the evidence in the case. Secondly or alternatively, [it] was in the nature of an experiment which, as indicated above, cannot be countenanced. Thirdly, on any view of what occurred, only a third of the jury was present, so that matters relevant to the case took place when the jurors were not together as a group.

If the hotel-room jurors actually did speak with the deceased, then each of these arguments would guarantee a new trial. The legal difficulty would be the same if the four jurors had uncovered non-paranormal messages from Harry, such as finding a note he wrote before his death hidden in an exhibit in the jury room.

The main problem in each instance is that Young’s lawyers would have had no opportunity to respond to the implications of such significant information. And the trial judge would not have been able to rule on the evidence’s admissibility or direct the jury on how it could be used. And, if they weren’t present, nor could the other eight jurors properly debate the worth of the new discoveries.

A good example of such difficulties arose four years after Young’s appeal. In a Bristol trial of charges that the defendant handled three stolen tyres, his defence was that he had purchased them recently. The jury sent the trial judge the following note:

One of the jurors is a tyre specialist. The code 088 on the tyre signifies that the tyre was manufactured in the eighth week of 1998. The defendant claims to have had the tyres in his house around this period — certainly very little time for the tyres to have gone through normal purchase before being acquired by the defendant. May we take this into consideration?

While the trial judge and counsel were debating how to respond to this question, the jury returned with a guilty verdict. The Court of Appeal said that the trial judge should have instantly declared a mistrial, holding:

It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background to a particular case to draw upon that specialised knowledge in interpreting the evidence. However, that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.

The difference between using knowledge as evidence and using it to interpret is certainly a subtle one, but there is no doubt that drawing on Harry’s words from the afterlife would fall on the wrong side of this line.

Of course, the Court of Appeal was never going to find that the hotel-room jurors actually spoke to Harry, but neither did it find that they didn’t:

It seems to us that what matters is not whether the answers were truly from the deceased, but whether the jurors believed them to be so or whether they may have been influenced by the answers received during this exercise or experiment.

At first blush, the court’s holding that it didn’t matter either way whether the four jurors spoke with Harry Fuller makes sense. The question of whether an irregularity is “material” depends on what the jurors believe, not whether those beliefs are true or even rational. But, by removing the link between the jurors’ conduct and reality, the Court of Appeal’s approach significantly broadens what can count as an “irregularity,” allowing the jurors’ mere thoughts to overturn a conviction.

On the day after Young’s appeal was allowed, law lecturer Gary Slapper described the problem in a column in the Times:

But suppose the jurors in the hotel had sought advice from their god through prayer? Would such a course of action invalidate their decision? They would, after all, be consulting something non-corporeal and something other than the evidence in the case. The divine and “superstitious” oracles both rely on the faith of the juror.

Will the Court of Appeal be able to argue, when its reasons are eventually given, that consulting a god for guidance is permissible but that consulting any other non-corporeal entity is not allowed? The court could avoid such a quandary by saying that absolutely nothing must guide jurors other than the evidence given in court. That option, however, would prevent religious people from receiving divine guidance when many must often be in great need of it. This would be an awkward decision from judges with the courts’ motto Dieu et mon droit on a shield above them.

An American court (with “In God We Trust” on its wall) was required to make exactly that awkward decision six years earlier.

In 1986, Tom DeMille became the first person in Utah to be convicted of murdering a child in his care, based on evidence of the child’s extensive injuries before he was taken to a hospital emergency room. However, a juror later swore an affidavit that another juror told the rest that she had prayed about the case. Specifically:

that while the defendant’s attorney was giving his closing argument, she prayed, “that if said attorney made eye contact with her she would know he was telling the truth, but if he did not she would know he was not telling the truth about the defendant; that he did not make eye contact with her, so she knew said attorney was not telling the truth” concerning the defendant… Said juror… was one of the leaders, during the deliberations by the jury, of the faction seeking a speedy and early determination of guilt of the defendant.

In 1988, a majority of Utah’s Supreme Court dismissed DeMille’s appeal. They held that upholding the defendant’s complaint would amount to “implicitly… holding that it is improper for a juror to rely upon prayer, or supposed responses to prayer, during deliberations,” something they said would breach Utah’s constitutional right to freedom of conscience. Only one judge would have ordered an inquiry on the ground that:

if jurors were to agree that a verdict would be based on a “divine sign,” a ouija board answer, or some fortuitous event, such a verdict, in my judgment, would constitute a denial of due process and the right to trial by jury… The majority fails to draw a critical distinction between the legitimacy of jurors’ seeking divine assistance in accurately and dispassionately weighing the evidence and the illegitimacy of jurors’ abdicating their sworn duty to decide the case on the evidence and instead relying on some supposedly divine sign.

The difficult questions raised by such cases are not limited to spiritual matters. The problem in DeMille’s case (though not the constitutional angle) would also have arisen if the juror had come up with her theory about the defence counsel’s eye contact by reading a book on pop psychology (or, for that matter, recalling a parent’s advice, or a movie scene, or a university lecture, or her own specialist experience).

The Utah Supreme Court majority argued that personal beliefs, including irrational ones, are simply part of the jury system:

The affidavit submitted in this case does not aver facts that would disqualify any juror. At most, it suggests that one juror may have been personally influenced by her own “revelation” and that she told others of her experience as one means of persuading them to her point of view. This is certainly not an illegitimate inter-juror dynamic.

Six years later, the English Court of Appeal reached the opposite conclusion:

There is, in our view, a clear distinction between the views of one juror however strongly expressed, intended to influence others, and on the other hand revelations purporting to come from outside the jury and to be invested with some external authority however specious.

But the court did not spell out what, apart from ouija boards, could be “revelations purporting to come from outside the jury and… invested with some external authority.” Prayer? Something a juror read in a book? Or saw on TV? Or was told by a friend? Or learnt from her work?

Or simply believed for whatever reason? The closest English courts have come to examining this question was a Newcastle trial in 1998, when a juror sent the trial judge a note asking for the defendant’s date of birth, for use in determining his star sign. According to a court official, after the trial judge dismissed the juror from the panel, the juror:

stood his ground and asked why. He seemed genuinely surprised he was being removed. He had been warned by the judge, as all jurors are, to try the defendants only on the evidence put before them in court.

While the trial judge was certainly right to refuse the juror’s request for evidence that was not before the court, the juror was right to question why he was being dismissed. He surely isn’t the only juror to believe in astrology (and others will often legitimately learn the defendant’s birth date as part of the evidence). The remaining jurors acquitted the (Cancerian) defendant of violent disorder.

When dealing with people who believe in the supernatural, courts often suspect manipulation by a cynical third party. On 7 March 1930 in Buffalo, sixty-six-year-old Nancy Bowen knocked at the door of Clothilde Marchand, a woman she barely knew, and beat her to death with a hammer. She later explained that her deceased husband had spoken to her via ouija board, telling her the name of his killer and directing her to:

Go to 576 Riley Street. It’s a little house in the rear. She is short. Her hair is black with grey. It is bobbed. She has some teeth out — upper teeth. She has a police dog.

The police arrested not only Bowen but also her ouija board partner, Lila Jimerson, who was having an affair with Clothilde’s husband, Henri. After a “Trial of the Century” (one of several in the United States that decade), Bowen was imprisoned for just one year and Jimerson was acquitted completely, apparently because the public came to blame Henri Marchand, a noted sculptor (who had speedily remarried, this time to his eighteen-year-old niece) for beguiling two credulous women into disposing of his wife.

The Court of Appeal never voiced the possibility that one of the four hotel-room jurors — most obviously, foreperson Ray, the only one of the quartet to claim any prior experience using ouija boards — had used the incident to manipulate more credulous members of the panel. If there was such manipulation, its goal was not murder, but rather only a murder verdict. Of course, none of the jurors admitted convicting Young on the basis of what the ouija board said. To the contrary, the court conceded that the participants all described the incident as a “joke,” hence the prosecution’s argument:

This was, says Mr Lawson, no more than a drunken game and the court ought not to consider that it could have had any practical effect on the case. Nothing that happened, it was submitted, fell outside the scope of influences which jurors can properly bring to bear on one another.

It was the Court of Appeal’s response to that claim — a factual assertion, not a legal one — that ultimately gave Stephen Young a new trial and made his jury infamous. •

This is an edited extract from The Ouija Board Jurors: Mystery, Mischief and Misery in the Jury System, published this month by Waterside Press.

The post The ouija board jurors appeared first on Inside Story.

After a few turns at pushing the glass back and forth between lettered scraps of paper, during which two jurors conversed with relatives, the evening took a turn. “Who is it?” asked Ray, the jury foreman. The glass spelt out H-A-R-R-Y-F-U-L-L-E-R, one of the newlyweds who had lived in a heritage-listed house in the Sussex village of Wadhurst until their execution-style killing a year earlier. The jury had spent the afternoon pondering the guilt of the alleged killer, so it was hardly surprising when Ray asked, “Who killed you, Harry?”

How do juries reach their verdicts? Dennis J. Devine, an American psychology professor, knows the answer for one jury, at least. Somehow, he got to perform jury service despite telling the prosecutor that the only thing he believes we can know for certain is “maybe gravity.” He still wonders whether his jury reached the right verdict. As a social scientist, he knows that making any guesses about the other roughly 150,000 jury trials held every year is about as useful as holding a séance. And yet he has written a book about Jury Decision-Making subtitled “the state of the science.”

The science Devine describes is drawn from a selection of the estimated 1500 studies of jurors published over the last six decades, nearly all (like the vast majority of jury trials) in the United States. These include the first major jury study, which was conducted in the 1950s by a psychologist, a sociologist and a legal academic from the University of Chicago. The Chicago trio not only surveyed hundreds of judges and thousands of jurors but actually taped the deliberations of five juries (with the permission of the lawyers and judges in the cases but without the knowledge of the jurors themselves). The ensuing outcry from lawyers’ groups led to America-wide laws guaranteeing that what happens in the jury room must stay in the jury room. A similar law applies in England, but — after a juror went public with the Brighton Ouija board incident — a court ruled that it didn’t extend to a juror’s hotel room.

Given these legal limits, what do Devine’s juror studies actually study? Most of them look at “mock” jurors. That is, they examine how people act when asked to play the role of jurors in pretend trials. Such studies make up two-thirds of Devine’s sample and they are indeed easy to mock. For starters, most of the pretend jurors are psychology students, whose main resemblance to real jurors is that they, too, are forced to participate. Researchers lack Hollywood’s resources when it comes to simulating real trials and many therefore opt for paper summaries of the evidence. Even the best studies, which use representative participants and true-to-life scenarios, lack the two singular features of real trials: real evidence and real consequences. Only a very special mock jury would try to commune with a fictitious murder victim.

Devine argues that there’s a major upside to this lack of realism: fake trials can be used to conduct interesting experiments. For instance, a 1976 study showed three groups of captive psychology students the same fifty-minute rape trial re-enactment with just one variation: how the judge defined the iconic term “beyond reasonable doubt.” The students who were told that they had to be “sure and certain” before they convict (as English jurors are told) were much more likely to acquit than ones who were told to consider whether any doubts they had were “substantial” or “fair” (as some American jurors were once told). Especially after the students “deliberated” as six-person juries, these differences translated into diametric outcomes on a line-ball dispute. This and later studies have been carefully considered by the top courts in the United States, Canada and New Zealand when they were developing jury directions on the meaning of reasonable doubt.

Not so in Australia. Our High Court has long maintained an absolute ban on any definition of “beyond reasonable doubt.” The two reasons for its stance — that the term is “understood well enough by the average man” and that defining it risks diminishing it — are at odds with the 1976 study. The third group of psychology students — given no definition at all, just like every Australian jury today — split evenly in their individual verdicts and were much more likely to produce “hung” verdicts as groups. Given that, it’s no surprise that Australian juries frequently ask for a definition. A jury trying three men for the 2000 murder of Melbourne lawyer Keith Allan, for example, asked their judge if “beyond reasonable doubt” meant “70 per cent or 80 per cent sure?” The three accused won a new trial because the judge failed to admonish the jury for attempting to put a number on reasonableness.

When the trio were convicted again, they complained to the High Court that their new jury (which didn’t ask for a definition) may have been as confused as the earlier one. Their timing was propitious. A year earlier, a NSW government agency published the results of its survey of more than 1000 jurors just after they had rendered verdicts in real trials. The survey asked whether they thought “proof beyond reasonable doubt” meant “sure,” “almost sure,” “very likely” or “pretty likely.” The good news is that 80 per cent picked the two most stringent definitions, suggesting that most Australian verdicts are reached on this basis. The bad news is that the High Court’s approach amounts to a role of the dice for defendants in close cases. There’s always a chance that they may get a jury consisting largely of the 20 per cent who were evenly split between “very likely” and “pretty likely.”

On this matter, unfortunately, our High Court isn’t moved by the research. Justices Susan Crennan and Virginia Bell refused even to give the trio leave to appeal. Without apparent irony, they added that they saw “no reason to doubt” that the trio were fairly tried.

The Fuller case started with a phone call. “Emergency, which service?” The sounds at the other end of the line were unintelligible. The operator kept saying “pardon?” until the sounds began to resemble squeals, followed by a bang and the sound of the phone hitting the floor. The operator listened to a few more minutes of footsteps and doors opening and closing and then logged the call as “child on the line.” The truth is almost too awful to relate.

Nicola Fuller spent the last moments of her life trying to get local police to walk just 200 yards from their station to the house she shared with her new husband Harry. She couldn’t speak clearly because her jaw had been shattered by three bullets fired at close range. Her killer calmly listened in on another phone and then entered her marital bedroom to finish her off, shooting her again through a pillow. Her father, who was the first to discover the dead newlyweds days after, vowed to sue British Telecom for crushing his daughter’s final hopes of rescue.

At the murder trial, one of the jury’s tasks was to try to work out whether the footsteps on the tape of the call were of one person (Stephen Young, the insurance broker who prosecutors said was the lone killer) or two (matching Young’s claim, backed up by two unrelated teens, of seeing a pair of strangers in the house after he knocked at the door). When one juror listened to the tape, she burst into tears and fled the courtroom, prompting the judge to discharge the entire jury. The new, more stoic jury included the quartet who later tried to solve the mystery of the footsteps with a Ouija board.

One of the main jobs of criminal trial judges is to try to keep jurors sane while they perform an alien and sometimes awful task. For instance, the judge in Young’s trial had to decide not only whether letting the jury hear the emergency call was worth the emotional cost and consequent risk of an irrational verdict (apparently it was), but also whether parts of it should be edited out (the worst parts were) and whether a witness somehow claiming to be an expert in distinguishing the sounds of two shoes from four should be allowed to tell the jury what he thought (he was). A few years ago, the US Supreme Court was asked to decide whether the music of Enya, playing in the background of a movie about the victim’s life shown to a jury deliberating whether to impose the death penalty, was soothing (assisting the jury in calmly assessing the images) or stirring (which might make them too emotional). It ducked the question.

Trial judges receive no training for their informal role of court psychologist and have no time to read up on the research (such as a recent Australian study that Devine describes which suggests that the link between gruesome photos and convictions has more to do with the fact that they are photos than their gruesomeness). For time-poor judges, the closing chapter of Devine’s book may serve as a useful primer. He draws together a range of studies to flesh out the current “model of choice” among psychologists about jury thinking. At its core is the creation of stories. Jurors come to the trial with stories already in mind based on their own experiences, gradually develop a more detailed scenario over the course of the trial and then compete to inject the main elements of that account into the discussion with other jurors. Importantly, the model’s implications — in particular, that jurors aren’t much concerned with the sources of the information they receive, almost never separate out different pieces of evidence and don’t wait out the trial before making big decisions — sit very poorly with the methods Australian judges try to use to keep jurors rational.

The news is much grimmer if you look beyond mock-jury studies to the wider field of psychology. Consider a German study that Devine’s book doesn’t cover, but which is described in Daniel Kahneman’s recent book Thinking, Fast and Slow. The researchers’ goal was to test whether the well-known phenomenon of “priming” — where people who are asked to estimate things (the population of Kenya, for example) change their guesses if a particular number (“Three million?”) is casually mentioned first — may affect legal thinking.

In this experiment, German judges were asked to perform the standard task of sentencing a thief. The researchers’ trick was to insert a pretend phone call from a journalist into the mock scenario. All the judges insisted that they totally ignored the journalist’s query about whether a certain number of years was likely. And yet the researchers found that the judges’ sentences differed depending on what number the journalist mentioned. The same happened again when the researchers told the judges that the suggestion was randomly generated. Even more astonishing, the effect was repeated when the judges were simply asked to roll some (loaded) dice and add up the numbers before issuing their sentence. When questioned about their thinking, the judges primed with a higher number emphasised the bad features of the theft and the others emphasised the sad features of the thief’s life, each oblivious to the profound impact of meaningless numbers on their professional judgement.

One Australian judge who pays attention to social science research on how jurors think is Peter McClellan, a senior judge of the NSW Supreme Court. In a 2010 murder appeal, McClellan made a surprising ruling about how jurors should be informed of the chance that two people might have the same (incriminating) DNA profile. He ruled that it is better to express that chance as the odds that someone would have the same profile (for example, “one in 1600”) rather than (as many state witnesses prefer) as the percentage of people who wouldn’t have that profile (for example, “99.9375 per cent”). McClellan’s judgement detailed mock-jury research by Northwestern University’s Jay Koehler, who found that jurors are more likely to convict under the second formulation than the first, even though the numbers are mathematically identical. As Devine explains, Koehler’s findings are consistent with the central role of stories in jury decision-making: using a percentage makes jurors focus on the fact that most people have quite different DNA profiles (which suits the prosecution case), while using the odds make jurors think about the few people who might have the same profile (which suits the defence case).

Alas, last year, the High Court gave McClellan a dressing down. His sin was reading articles about “not the law but psychology.” Chief Justice Robert French, together with the same two judges who were unmoved by the research on “beyond reasonable doubt,” held that judges shouldn’t rely on non-law studies themselves, but instead should wait for the parties to call the academics as expert witnesses. But Koehler and Devine shouldn’t start planning their down-under holidays quite yet. As the High Court well knows, no Australian criminal defendants have the spare cash to fly in an overseas academic psychologist to read out a journal article to a judge.

Having dispatched Koehler’s studies without needing to read them, the nation’s top judges went on to reject McClellan’s preference for frequencies over percentages. After all, they explained, the expressions are mathematically identical. So, how could a rational jury be affected by a meaningless difference between two numbers?

When word of the English jurors’ séance got out, the prosecution argued that it was just a drunken game. But the Court of Appeal, noting that Harry Fuller’s alleged words prompted two of the jurors to tears, overturned the verdict as a material irregularity. An op-ed in the London Times queried the court’s view of rationality: “suppose the jurors in the hotel had sought advice from their god through prayer?”

As it happens, courts routinely make decisions based on their own peculiar faith. The English appeal judges made an order barring the press from reporting the actual words Fuller spoke from beyond the grave until after the retrial. As if anyone would have any trouble working out which mystery man Fuller had fingered for his own murder the night before the jury unanimously returned a guilty verdict against Stephen Young.

Today, a trial judge would probably be relieved if a jury spent its downtime playing with a glass and some scraps of paper. All Harry Fuller told the Brighton jury was the name of his killer. He was understandably stumped by their detailed follow-up queries about the events following his death. After a few vague guesses, he directed them to the police. Two decades on, a juror seeking extra information will doubtless go to a different, much more forthcoming medium.

Devine’s jury studies largely pre-date the era of the internet. Many quaintly use made-up “slanted” newspaper articles to test how jury deliberations are affected by non-trial information. Their findings are mostly predictable — articles that tilt against the accused (as most do) lead to more guilty verdicts in close cases — but occasionally surprising. For example, exposure to media accounts dampened some jurors’ pre-existing biases in rape cases (such as an inclination to sympathise with either the defendant or the complainant). The most interesting results confirm Devine’s story model and trial judges’ worst fears: jurors make no apparent effort to ignore outside information and sometimes come to believe that what they read in the newspaper was actually evidence in the trial itself. Noting studies showing that judicial directions make little difference on these matters, Devine concludes that the only way to counter media coverage is to change a trial’s venue.

Only an American would fail to even mention the preferred solution in Australia, England and most everywhere else: censoring the media. But it is only our past that is a foreign country. Technology has given all Australians what our constitution won’t: a robust freedom to deliberate freely in public about questions before our criminal courts. Victoria’s courts conclusively demonstrated as much in 2008 with their clumsy ban on the broadcast of Underbelly, proving that judges are as powerless as TV networks when it comes to stopping Victorians from watching shows at the same time they are shown elsewhere.

That same year, Victoria’s parliament unwittingly staged a real-life jury study of its own. Partway through a long-running Melbourne terrorism trial, printouts from Wikipedia about the meaning of some key legal terms were discovered in the jury-room rubbish bin. The defendants drew on that discovery to press the same point repeatedly found in Devine’s studies: that judicial directions telling jurors to ignore the outside world (including non-Victorian media reports about the terrorism trial available online) were ineffective. Perhaps in response, parliament enacted legislation partway through the terrorism jury’s deliberations that criminalised such research by jurors. Although the jury had earlier been chastised for researching legal terms and was specifically told of the new offence provisions, a forbidden dictionary was later found in the jury room and the jury freely admitted to using it to research the same terms.

As the courts have slowly lost control, Australians have become accustomed to a bizarre public ritual in high-profile cases. The first step involves the courts, prosecutors and defence lawyers uniting in public outrage at the presence of information all over the internet that local media are forbidden from publishing, with potentially dire implications for the fairness of any future trial. The most obvious effect of these statements is to publicise the existence of such sites. The ritual’s second step occurs at the trial itself and in subsequent appeals, where courts and prosecutors suddenly part company from defence lawyers. It nearly always turns out that a fair trial can be had after all, despite the illicit information at the jury’s fingertips. Australian courts continue to insist that judicial directions (and, where they apply, criminal offences) permit them to assume that jurors won’t google.

Even when a court discovers that jurors have succumbed to temptation, it will almost always find (again contrary to virtually every one of Devine’s studies) that the verdict wasn’t affected. A disturbing example is the trial of Kathleen Folbigg, who remains just about the only mother who still stands convicted of killing her own children after each died of apparent SIDS. When it was belatedly discovered that a juror had uncovered and shared internet accounts of the young Folbigg’s having witnessed her father shoot her mother, Peter McClellan and Virginia Bell (who would later chastise McClellan for reading jury research) were in agreement: they did “not believe that there was any likelihood” that the jury would have seen any link at all between Folbigg’s previous victimhood and her alleged later crimes.

Devine begins his book by observing that “like all human institutions, the jury system is not perfect.” At the end, he predicts both “more high-quality research on juries” and “more application of what we have learned in the courtroom” and concludes: “Much more will be learned in the next fifty years about a unique societal institution that may yet represent the best way to make important legal decisions in a world without certainty.”

Others are more pessimistic about the benefits of understanding jurors. The Times op-ed about the Ouija board case observed that many think that if the veil of secrecy around the jury room were abandoned then “trial by jury would eventually go the same way.” Maybe that is why Australia’s courts steadfastly refuse to consider a vast body of research into an institution whose care is one of their key tasks.

But it is the “trial,” not the “jury,” whose frailties stand most exposed by Devine’s studies, especially the judiciary’s prized role as the gatekeeper of criminal evidence. Having destroyed the courts’ monopoly on providing information to the nation’s juries – just as it has broken the traditional media’s monopoly on the news – the internet may eventually force a choice between having serious criminal trials decided by judges on admissible evidence or by juries on all the evidence. If Australian judges stick to their traditional rules of thumb, folk psychology and finger-crossing about what happens in the jury room, then it is not at all clear whether it is jurors or trial judges who will eventually go the same way as the broadsheets. •

The post Divining the jury appeared first on Inside Story.

A centrepiece of the book’s earliest case is a presumed confession to a horrific murder in Garrett’s home state of Virginia. Asked by two detectives what he used to tie up his victim, David Vasquez first suggested rope, then a belt, then a clothes line — answers his supposed interrogators rejected in turn. Finally, they simply told him he used a cord from some Venetian blinds:

Vasquez: Ah, it’s the same as rope?

Detective 2: Yeah.

Detective 1: Okay, now tell us how it went, David – tell us how you did it.

Vasquez: She told me to grab the knife and, and, stab her, that’s all.

Detective 2: (voice raised) David, no, David.

Vasquez: If it did happen, and I did it, and my fingerprints were on it…

Detective 2: (slamming his hand on the table and yelling) You hung her!

Vasquez: What?

Detective 2: You hung her!

Vasquez: Okay, so I hung her.

The cops must have thought Vasquez was toying with them, or stupid, or simply crazy. So must the jury, which convicted him of murder. But, like all 250 people found guilty of horrible crimes in Garrett’s book, the United States criminal justice system now accepts a quite different story: that Vasquez was wholly innocent.

Garrett’s genre of “false crimes” has a worthy lineage. Convicting the Innocent shares its title with a book written by another American law professor, Edwin Borchard, eighty years ago. That was an era when justice officials proudly declared that wrongful convictions in criminal courts were “a physical impossibility.” Borchard’s response was to detail sixty-five tales of innocent people found guilty in the preceding decades in American and (in a few cases) English courts.

Nowadays, the task of convincing Americans that their courts can make the worst of mistakes requires just one, repeated, tale: exoneration by DNA evidence, the common thread running through the 250 cases examined by Garrett. Vasquez’s exoneration came four years after his trial, when pubic hairs from his file were genetically linked to Timothy Spencer, the “Southside Strangler,” who had been convicted of three similar strangulation murders in Virginia in 1987. Vasquez was the first of nearly 290 prisoners (including seventeen facing the death penalty) exonerated so far by DNA, many decades after their alleged crimes. Spencer was the first person executed on the basis of DNA evidence.

Because no thinking American now needs to be convinced that their criminal justice system can and does make terrible mistakes, Garrett sets himself the different task of finding common threads in this extraordinary set of cases, examining available trial transcripts, news reports and court judgments to uncover “systemic” causes of error.

The first half of Convicting the Innocent is devoted to the flawed evidence America’s criminal justice system used to wrongly convict those 250 people. Three-quarters of the cases, including Vasquez’s, involved eyewitness identifications and forensic evidence. Garrett’s study of available transcripts suggested that almost 90 per cent of the eyewitness identifications were transparently marred by procedures that “suggested” identifications to witnesses and by discrepancies between the witness’s initial description and testimony in court. More than 60 per cent of the forensic evidence, meanwhile, involved claims that exceeded or contradicted even the shonky standards of dubious techniques such as hair comparison. Rounding out the categories of flawed evidence are the suspects’ alleged confessions to police and jailhouse informants; almost all were bolstered by claims, evidently false, that they must be accurate because they included details (like the type of cords used to tie a victim’s hands) that only the real culprit could have known.

Flawed evidence alone isn’t enough to explain these wrongful convictions. After all, the criminal justice system is meant to separate the wheat from the chaff. So, in the second half of his book, Garrett turns his attention to flawed court processes, including superficial trials during which the case for innocence was barely mentioned, appeal courts that turned a blind eye to the dangers, and authorities who actively resisted efforts to uncover or act on exculpatory DNA evidence.

Because DNA exonerations tend to occur in particular sorts of cases, Garrett is quick to caution against generalising from the cases he examined. The 250 exonerations were “limited to a small set of mostly rape convictions, mostly from the 1980s, in which the evidence happened to be preserved.” According to the compilers of a new US National Registry of Exonerations, the DNA-based cases make up just one quarter of the miscarriages of justice uncovered there since 1989. The remaining three-quarters include people cleared after key witnesses changed their stories, the real culprit confessed or a court or the executive belatedly acknowledged that the state’s evidence had never been adequate. One possible contender for inclusion is Carlos DeLuna, who, according to yet another law professor’s recently published work, was executed for a murder that was probably committed by a different Carlos (who looked like DeLuna, had been fingered by him as the true culprit from the outset, had committed a string of similar offences and admitted to committing the murder).

Australia’s most famous modern miscarriages of justice, including the cases of Lindy Chamberlain, Andrew Mallard and Farah Jama, would fall outside a similar Australian study to Garrett’s because none were uncovered by DNA evidence. Indeed, Australia has nothing like America’s string of belated DNA-based exonerations. Our best known DNA-revealed error – corrected after post-trial tests of the linen of the accused rapist Frank Button – was labelled a “black day for justice” by the Queensland Court of Appeal, even though (unlike every case in Garrett’s book) it was uncovered before the defendant’s first appeal.

But it is surely noteworthy that contemporary Australian courts still use all four categories of flawed evidence that Garrett found dominated the trials that were overturned in the United States. An example in the first category occurred when Queensland police breached their own procedures by asking three bank robbery witnesses to go to a courthouse and keep an eye out for the robber; all three picked Brunetta Festa, who was being committed for the robbery that day and was the only woman under forty present. The trial judge’s admission of this patently dangerous identification evidence was upheld by the High Court in 2001. The evidence used in 2004 to convict Bradley Murdoch of the notorious murder of Peter Falconio had two kinds of flaw. Not only did it include Joanne Lees’s eyewitness identification (made after she saw his photo in a British paper with a caption revealing that his DNA was linked to the case) but it also featured a Sydney academic’s “body mapping” technique (never explained in court) that “matched” Murdoch to a grainy truck stop video (and has since been rejected by NSW courts as inadmissible for that purpose.)

Three years later, at Glenn McNeill’s 2007 trial for the murder of Janelle Patton on Norfolk Island, the prosecution told the jury that McNeill’s confession to the Federal Police included “information that was not in the public domain.” Not only is such a claim ludicrous in a close-knit island community, but it’s also the case that all the “information” was detailed in a book on the case by ABC journalist Tim Latham published five months before the police first spoke to McNeill. And Australian prosecutors continue to rely on prison informants – the fourth of Garrett’s flaws – in difficult cases, including last year’s trial of Peter Dupas for the murder of Mersina Halvagis, which was partly based on Dupas’s alleged confession to disgraced Melbourne lawyer Andrew Fraser while the pair were gardening at Port Phillip Prison.

Some of the systemic problems identified by Garrett in the United States – decentralised and nakedly politicised courts and prosecutors, hopelessly inexperienced attorneys assigned to defend capital murder cases, and the nation’s tortured and cursory appeals process – do not resonate so strongly in Australia. And some of the reforms he advocates, such as the recording of police interrogations, have been legal requirements throughout Australia for decades.

But the contrast with America isn’t always flattering. The US system for post-conviction reviews by courts, which Garrett excoriates for its slow pace and procedural tangles, is still superior to the systems operating in much of Australia, where defendants who have exhausted their appeals must plea for mercy to politicians if they want to obtain DNA evidence for fresh testing or rely on the results to overturn their convictions.

Nor have either of Australia’s two most populous states followed Britain and some American states in creating independent commissions to comprehensively investigate claims of innocence. The failure of political will was most apparent in 2003, when the Carr government hurriedly suspended a modest “Innocence Panel” it established a year earlier simply because one of the people convicted of murdering Janine Balding asked the panel to arrange DNA testing of some of the evidence against him. It seems that our new foreign minister, like many a hick American prosecutor, thought that the interests of victims of notorious crimes necessitated non-negotiable “closure.” Garrett would no doubt direct Carr’s attention to the Florida prosecutors who spent a decade opposing Frank Lee Smith’s requests for DNA testing in a child murder case. While the prosecutors presumably thought they were protecting Smith’s victims, the person who they were really protecting was the real killer, Eddie Lee Mosley, who committed sixty rapes and seventeen murders, including some during Smith’s lost decade in prison.

THE several hundred Americans who now owe it their freedom are only a tiny part of the story of forensic DNA. The very things that allowed DNA evidence to convince a sceptical American public of the innocence of a fraction of their prisoners – its foundation in mundane lab work and peer-reviewed science, its independence of the biases and memories of eyewitnesses, its longevity and robustness – have also driven its dramatic take-up by police worldwide as a means of convincing courts of the guilt of countless accused. This part of the DNA tale has been told in the many “true crime” books that show how dogged investigators have used emerging technology to zero in on criminals who would otherwise have gone to their graves with their villainy undiscovered.

In Genetic Justice Sheldon Krimsky and Tania Simoncelli offer a different take. Their foreword commences with the story of Lily Haskell, who was arrested at a demonstration against the Iraq war in 2009 and whose DNA profile is now one of more than eight million permanently stored by US law enforcers. This is despite the fact that she has never been charged with, let alone convicted of, any crime, much less a horrible one. The book reviews developments in the United States and (more briefly) five other countries, including Australia, to argue that the once rare use of DNA profiling to catch (and sometimes exonerate) violent criminals “has given way to a massive and ever-expanding system of collecting and permanently retaining DNA for ongoing investigation and use.”

The easy part of Krimsky and Simoncelli’s case is their argument that supposedly strict government regulation of the investigative use of DNA is anything but. Take Australia, where a Model Forensic Procedures Bill was developed at the turn of the century, creating an elaborate regime of orders for “intimate” and “non-intimate” forensic sampling and a complex DNA profile database whose use was regulated by a table of “matching” rules. The Bill was so packed with poorly drafted protocols creating sham protections for defendants (such as a rule requiring everyone who has their hair plucked to be handed one of their own hairs for independent testing) that no Australian jurisdiction adopted it in its entirety. In any case, the sampling regime proved to be irrelevant in practice because nearly all DNA was obtained through people “consensually” swabbing their own mouths; and the matching table has been gradually amended so that virtually all matches are now allowed.

Although the move to allow uncharged people’s DNA profiles to be held in the database is relatively recent in the United States, such holdings have been permitted in Australia from the outset, with any samples taken to test a person’s link to one crime automatically placed on the full database for matching against all unsolved crimes. In England, a significant fraction of the DNA database (the world’s first) is now made up of non-offenders who were only briefly of interest to investigators, such as suspects whose DNA samples were taken to investigate (and often dispel) suspicion and people who volunteered their samples as part of mass DNA screenings aimed at excluding entire sub-populations from a police inquiry.

In fact, few nations prevent the police from asking for DNA samples from anyone they wish or from gathering samples (from cigarettes, cans of Coke and the like) abandoned by people who refuse a request or where the police have insufficient grounds to obtain an order. But perhaps you think the police haven’t got your DNA profile because they never ordered or asked you to provide one (and you don’t smoke or drink Coke)? Think again. Anyone who has been at a crime scene (including many victims of crime) may have their DNA profile unknowingly stored on the database, ready for matching against all unsolved crimes. And, for every profile they’ve obtained, by hook or by (convicted or suspected or even exonerated) crook, the police can also explore the link between any unsolved crime and everyone who genetically “resembles” that profile (that is, all of the close blood relatives of the profile’s “donor”).

Having pricked the balloon of rhetoric about close regulation of genetic forensics, the two American Civil Liberties Union associates (one a research fellow, the other the organisation’s Science Adviser) embark on a far tougher sell: that this mother of all genetic sweeps is a bad thing. Not surprisingly, their first argument concerns forensic DNA’s impact on our privacy – not just of our individual DNA but also our bodies, our health, our relationships and our movements. Krimsky and Simoncelli contrast the high levels of protection afforded to genetic privacy in medical and research contexts with the “different playing field” that applies in forensics. They bemoan the focus by the police and the courts on the relatively trivial bodily intrusion of DNA sampling rather than on the informational value of DNA, and predict that public anxiety about genetic privacy will eventually force a reckoning. But that argument ignores the quite different contrast that can readily be drawn between the informational intrusion of DNA profiling (even in its most extreme forms) and the everyday indignities imposed on criminal suspects by police questioning, or body searches, or entry into homes, or tapping of phones, or searching of government records, which are part and parcel of modern investigations.

The manhunt for the killer of backpacker Peter Falconio is a good example. The Northern Territory police relied on tip-offs, a blurry service station photo and Joanne Lees’s even blurrier memories to generate a shortlist of thousands of “persons of interest.” Because of the legal and political complexities of cross-border investigations, few were forced to provide DNA samples and only a few others were asked politely, despite the police obtaining a DNA profile from a spot of blood on Lees’s shirt. Instead, the investigators worked through every man on the list, questioning them personally, investigating their alibis and searching phone and banking records to determine their movements. It was only information from a fellow drug dealer that led the police to refocus on Bradley Murdoch, who’d politely refused to provide his DNA early in the investigation. Scared of spooking him, they sought DNA from his brother and later used a sample repurposed from an earlier investigation into rape charges that Murdoch claimed were trumped up and that a jury later dismissed. Those who argue against contemporary DNA profiling face the twin burdens of advocating a return to old-school policing methods such as these and barring the police from some of the unorthodox methods that eventually netted a killer.

Ultimately, Krimsky and Simoncelli don’t advocate a retreat from genetic forensics. Instead, they ask whether more of a good thing is necessarily better. They question the extent of the benefits of DNA profiling, pointing out that the evidence offered by administrators about the utility of their database – the proud recitals of “hits” – tells little about outcomes the public actually cares about, such as the number of matches of interest (as opposed to belated confirmations of already known links), the number of convictions that follow (as opposed to charges dropped because the match proves to be uninteresting) and the number of crimes prevented (a matter about which much is claimed but little can be proved).

Krimsky and Simoncelli also question whether the well-publicised successes in forensic DNA’s heartland – the matching of convicted serious criminals to unsolved sexual or violent crimes – will continue as the emphasis moves to arrestees, minor criminals, and property or drug offences. It is one thing to apply cutting-edge science to Joanne Lees’s t-shirt, but another altogether to gather, analyse and identify all of the samples found in every stolen car or drug lab, each yielding dozens of (typically spurious) investigative leads and generating lengthy backlogs at overburdened, demoralised labs. Rather than revolutionising criminal investigation, the expansion of DNA databasing may simply replicate the failings of regular criminal justice, including the social and racial disparities in its application. In short, a lot of contemporary and future DNA databasing may simply be a very expensive way of rounding up the usual suspects.

Alas, this clever argument will find no purchase among voters and politicians who are quite comfortable with the unprincipled face of criminal justice. Many of the reform “principles” set out in the final chapter of Genetic Justice (mostly requiring court involvement in any envelope-pushing steps, such as mass screenings and familial searches) were recommended in 2003 by Australia’s Law Reform Commission but remain unimplemented. Indeed, the trend here is to oust courts from the system, with parliaments in South Australia and Victoria repealing various court-enforced rules after judges had the temerity to apply them against the police. In the United States, broad DNA databasing laws have been approved by popular referendums and the Ninth Circuit Court of Appeals recently rejected a constitutional challenge by Lily Haskell, the briefly arrested protester.

Indeed, Krimsky and Simoncelli’s complaints about the inequities and inefficiencies of contemporary DNA databasing suggest a quite different way forward: putting absolutely everyone’s DNA profile on an investigative database. Their chapter titled “The Illusory Appeal of a Universal DNA Data Bank” actually sets out a compelling case for such a step, which would remove racial and social disparities and considerably reduce the problem of unidentified profiles and spurious matches. The authors’ main counter-arguments – the logistics of establishing and securing such a depository and the failure to tackle the inequities in the rest of the criminal justice system – are far from overwhelming.

“How many offenders might we tolerate escaping in order to avoid an innocent person being wrongfully condemned?” This familiar question is at the heart of Convicting the Innocent, yet it is also the closing plea of Genetic Justice, whose authors invite us to factor in the plight of innocents like Haskell who have been swept up in the worldwide DNA dragnet. But a case that features in both books suggests a different answer to the one they favour.

In Garrett’s book, Darryl Hunt is just one of hundreds of men convicted of a horrific murder on the basis of flawed identification procedures and supposed confessions. Even after DNA profiling proved that the semen on the victim wasn’t his, US courts refused to clear him until the true killer, Willard Brown, confessed to acting alone. The details of Brown’s capture are recounted in Krimsky and Simoncelli’s chapter on familial screening, in which they reveal that police had run DNA from the semen through the North Carolinian database and had obtained a partial match with Anthony, Willard’s brother. Willard’s confession came after the police gathered DNA from a cigarette he discarded and matched it to the semen on Hunt’s supposed victim.

There’s no doubt that the world’s Haskells vastly outnumber its Hunts, but who would baulk at “condemning” any number of innocent people to having their DNA profiles placed on a database if that allowed just one more innocent man to “escape” the true hell of wrongful imprisonment?

THERE’S another story about innocence and DNA that neither book mentions because it’s too recent and too distant from America. It’s the story of a Melbourne teenager, Farah Jama, who recently spent a year in jail for a rape that he didn’t commit (and, indeed, that never happened at all). At Jama’s trial in 2008, there was no witness identification, no junk science and no confessions to the police or anyone else. Nor was his wrongful conviction due to lying complainants, dodgy lawyers, sleepy judges or bad juries. Instead, there was just one unsanitised medical trolley at a rape crisis centre that allowed a single intact spermatozoon (and some fragments) to move from one woman’s hair to a swab taken from a second woman who had passed out at a nightclub. The presence of a male DNA profile on a vaginal swab was enough to wrongly convince everyone (the police, the prosecution, the defence, Jama and, of course, the woman who’d passed out) that there’d been a horrific rape. And a match to Jama’s DNA profile (who, like Haskell, was in the database despite being cleared of the crime that led to his sample being there) was enough to convince a judge and jury that an innocent teenager was a monster with an alibi from a family of perjurers.

Jama’s case highlights two huge problems with DNA profiling that can lead to disasters. The first is that DNA is messy, fiddly stuff. The cells that contain our DNA move from our bodies to other people’s bodies, to surfaces or just through the air. As a result, crime scenes (and victims’ bodies) are typically dotted with various people’s DNA, all mushed together. Labs must do their best to isolate a specific profile through educated guesswork and processes of elimination, subjective choices that complicate the estimates of how rare that profile is in the community. Because DNA, like any complex molecule, is fragile, the profiles in a sample may be only partial ones, albeit still mixed up with others. And because DNA can’t be seen and must instead be “amplified” by the same mechanism that builds life itself, there’s no way to tell whether the bit of DNA that matches a person on a database was in the sample to start with, or whether it just floated there or was introduced at one of the many choke points in the forensic system where evidence from different sources brushes together – places such as a busy crime scene, an evidence bag, a police station, a rape crisis centre or (most disturbingly) a DNA lab.

Messiness is nothing new to crime investigation. What makes it disastrous in the case of forensic DNA relates to its second problem: that most people who use DNA know next to nothing about it. In the courtrooms that are its ultimate consumer, DNA testimony is universally recognised as a punishingly dull affair. Inevitably, everyone snoozes while a lab technician with no background in talking to lay people drones on about alleles and electrophoresis in front of a series of PowerPoint slides. In response, defence counsel resort to scattergun questions that worked once-upon-a-trial or sometimes wheel in experts of their own to go head-to-head in the boredom stakes with warnings about “allelic ladders” and “peak height ratio protocols.”

What about the lab technicians themselves, you might ask. Well, these are people who do hundreds of analyses a week following set procedures, are employed by the police, have learnt to fear defence lawyer tricks and, as a result, often seem to have tunnel vision. When a nervous police officer in the Jama case asked the lab about the possibility of contamination, a technician duly made a perfunctory check of a couple of lab records and gave the all-clear without so much as considering the possibility of a contamination before the swab reached the lab.

And the jury? Actually, Jama’s jury was terrific. They asked the question no one else did: why had the teenager’s DNA been on the database in the first place? The true answer – because Jama had been briefly accused of rape by the woman who attended the rape crisis centre with Jama’s semen in her hair the evening before the woman who passed out in the nightclub – would have cracked the case. But Australia’s rules of evidence prevent jurors from learning about (apparently) unrelated allegations, so the judge hurriedly told them that their question was irrelevant. It was a serendipity – the chance coincidence that the same doctor treated both women at the rape crisis centre – that led to the belated recognition that Jama was innocent.

GARRETT, Krimsky and Simoncelli are all alive to the potential failings of forensic DNA. Three of the 250 wrongful convictions described in Convicting the Innocent were partly due to sloppy DNA analysis revealed by more accurate or advanced DNA profiling, and a chapter of Genetic Justice is devoted to the many ways that DNA analysis can go awry. But both books underplay the implications of these flaws. Krimsky and Simoncelli argue that the science’s fallibility must be factored in when considering “whether justice is advanced by DNA,” but ignore it when considering the potential for genetic privacy to be invaded by individuals or governments. More dubiously, they claim that the risks of error only affect “inclusions” (matches, typically probative of guilt) and not “exclusions” (non-matches, typically probative of innocence), even though contamination can obviously affect either. Indeed, they had already noted the ease with which an offender could leave a trail of artificial DNA (or just some chump’s cigarette butts) at a crime scene as a genetic alibi.

By contrast, Garrett properly concedes that “it is possible that an erroneous DNA test could lead to the exoneration of a guilty person.” But he nevertheless insists that the close scrutiny given to the 250 cases in his study allows everyone to be “quite confident that these convicts are actually innocent.” He, of all people, should know better than to make such claims. For instance, neither Willard Brown’s DNA on a victim’s body nor his confession to acting alone conclusively prove that Darryl Hunt had no hand in her killing.

Neither book’s final chapter, setting out the authors’ recipes for a safer, fairer criminal justice system, contains any recommendations aimed at avoiding convictions that are founded on DNA errors. Justice Frank Vincent, who inquired into Farah Jama’s wrongful conviction and recommended a series of changed evidence-gathering processes, saw it as obvious that no one should ever be convicted on the basis of DNA evidence alone, not least because of the inevitable, albeit often small possibility, that someone else might match any DNA profile.

Vincent’s proposition was tested soon after when Ben Forbes appealed to Australia’s High Court against his conviction for a rape near a Canberra bike path. The prosecution case against Forbes rested solely on a match between his DNA profile and mixed samples from the victim’s bra and jeans, with experts testifying that the chance of a random person having that profile was less than one in a million. While that figure clearly allowed some possibility of other matches in the region, the High Court, a booster of forensic evidence from way back, dismissed Forbes’s appeal on the ground that the prosecution had agreed to keep a more damning (but wholly untested) DNA statistic from Forbes’s jury in return for their experts being allowed to (meaninglessly) label their own evidence against Forbes “extremely strong.” It’s the kind of ruling that makes you wonder whether Justice sometimes peeks from under her blindfold. The seven High Court judges would not have needed to look far. Forbes’s prior conviction for sexual misconduct on a Canberra pathway, inadmissible at his trial, was fully detailed in the court file.

And that’s always the seduction. Yes, we know the risks and we believe in justice, but sometimes we just know the truth too. We know Ben Forbes is a rapist. We know Frank Button and Farah Jama aren’t. We know who Janine Balding’s killers are. And Peter Falconio’s and Janelle Patton’s and Mersina Halvagis’s too. And precisely because we know all that, we also know that there will be more books called Convicting the Innocent written in the decades to come. •

The post Genetic injustices appeared first on Inside Story.

IT WAS JUST LIKE on television. The son of a German banker was missing and a kidnapper was demanding a million euros. The police covertly watched the ransom drop-off and discovered that this real-life Dr Evil was a young law student. Magnus Gäfgen had paid (some) attention in his classes and stonewalled at the interrogation. Perhaps the vice-president of Frankfurt’s police was equally attentive to the methods of Agent Jack Bauer on television’s 24. Desperate to find the missing ten-year-old, Wolfgang Daschner authorised another officer to inflict “great pain” on their suspect. The mere mention of that was enough to prompt Herr Gäfgen to take the police straight to the missing child.

Alas, the child was long dead, but later events tracked the plot of the controversial TV show. Officer Daschner was prosecuted for his actions, but got off with only a slap on the wrist. The German public lauded him as a true professional. But 24’s real-time format means that it never has to confront the toughest question of all: what are courts of law in a democracy to do with a villain who was forced by the state to lead them to evidence of his guilt?

The Grand Chamber of the European Court of Human Rights is mulling that over right now in Gäfgen’s case, with judgment due next month. This week the very same issue was resolved by Victoria’s chief justice, applying the state’s new human rights statute. Not everyone will like her answer.

REMEMBER 2004? The gangland war was raging in Melbourne’s streets and its details weren’t yet banned from the city’s televisions. Amid public outrage about the carnage, Victoria Police was forced to extremes. Some cops took to pretending to be criminal gang members to convince some foolish thugs to confess all to their supposed mates. Other police did a bit more than pretend. To beat those canny sorts, yet another set of cops convinced the government to take a lead from the Howard government’s War on Terror.

A year earlier, the Australian parliament had given ASIO new powers to order anyone who may know anything about terrorism to attend a secret interrogation. This wouldn’t be your average police chat. The feds could make you fess up to all your crimes. No dress-ups required. Failure to show up, failure to answer, wrong answers or even telling anyone you were there would land you very serious jail time indeed. No, not torture. But, as ex-prosecutor cum Supreme Court judge Bernard Bongiorno pointed out during Melbourne’s recent terror trials, Barwon Prison’s Acacia Unit for high-risk prisoners comes pretty damn close.

Because Victoria has no official spooks, the government had to invent a new office called (no joke) the Office of the Chief Examiner to question suspected organised criminals. A criminal barrister named Damien Maguire took that job. Similar powers were later given to two other offices occupied by ex-judges: the Director, Police Integrity to investigate corrupt police and the Special Investigations Monitor to investigate corruption of the other two special investigators.

Make no mistake, this is serious stuff. Underworld killers, drug lords, standover men, corrupt police. Victoria has those in spades. Maybe the CE, DPI and SIM can lighten the mood by getting together every now and then to don some silly hats and scream: “Nobody expects the Spanish Inquisition!”

YOU PROBABLY don’t remember that 2004 was also the year when attorney-general Rob Hulls started Victoria on its human rights consultation (just like the one Frank Brennan is currently doing federally.) Fast-forward to the present and Justice Bongiorno has been raising the freshly enacted Charter of Human Rights and Responsibilities all over the place, in petty bail matters and major terrorism trials alike. Late last year he announced that he would stop the chief examiner from questioning people awaiting criminal trials until someone sorted out whether their charter rights against self-incrimination were being respected.

Given that the chief examiner was making suspected crims incriminate themselves on pain of going to prison, you might think that the rights problem would be clear enough. But, so long as they have legislative backing, government agencies have always been able to circumvent this problem by promising not to use what they learn against the people forced to talk. That way, you’re not compelling self-incrimination. Incrimination of third parties is fair game. It’s a clever but fraught solution. For example, it might prompt the crim to identify a serial killer, but what if he identifies himself?

Justice Bongiorno’s problem was that the Victorian parliament (again copying the federal terrorism law) opted for a different bargain in its legislation on organised crime and police corruption. The cops were still barred from using a person’s words against them, but they were free to use anything they learnt from those words.

Here’s how it works: “Carl, tell us where you buried the body. If you don’t tell us, or we can’t find the body, then we’ll lock you up. If you tell us, we can’t use your answer against you.” Two hours later. “Hey Carl, we found the body. Thanks. And the body links you to the crime. We’re going use that against you. What was that? Rights? Are you having a laugh?”

What’s the problem? A lot of people would say there isn’t one. After all, the evidence being dug up – in some cases, quite literally – is pretty good. And it was found without all those man hours, investigative dead ends and pesky search warrants.

But, believe it or not, the purpose of the right against self-incrimination is actually to stop investigators from doing things the easy way. That isn’t because anyone cares less about nailing the crims. Rather, it’s because some people worry about what investigators will turn into if they’re allowed simply to make suspects confess. They’re worried about the investigators’ souls. See Mr Bauer.

NO ONE’S ALLOWED to know the identity of the suspected crim who is awaiting the chief examiner treatment. The entire courtroom was closed to the public at the appeal against Justice Bongiorno’s orders. Even the cop assigned to ask Justice Bongiorno for permission is only known by his or her initials, DS. I’m guessing Daryl Somers. Or maybe Darth Sidious? But at least the name of the judge asked to adjudicate Bongiorno’s challenge is no secret.

Daryl Somers might well have been pleased to draw Chief Justice Marilyn Warren in this case. She had been involved in two earlier judgments on Victoria’s rights charter. As part of an appeal bench, she gave short shrift to the free speech claims of Channel 9 when it wanted to show a TV show about the recently raging gangland war. And she was later dismissive of a cop’s claims to free speech in an action alleging that she had leaked an innocuous speed camera manual to a buddy.

The lawyer representing Darth Sidious was the government’s very own Special Counsel, Human Rights. Did Joanna Davidson know when she applied for that job that her task would be to convince Victoria’s judges to read Victorians’ human rights as narrowly as possible? Fair hearing rights? Not for the mentally ill. Security of the person? A-OK with forced injections. Bail? The charter makes no difference. Last year, the government’s lawyers even convinced a Supreme Court judge to read the presumption of innocence, of all things, down into a tiny dot, based on a vague heading to a section of the charter and cherry-picked sentences from overseas judgments.

But, this time round, Davidson hit a big wall, perhaps because her brief forced her to argue that the charter’s rights were narrower than the common law itself, having been whittled away by countless statutes… like the very ones at issue in this case! Chief Justice Warren’s judgment is a fiery defence of the common law against statutory incursion. She scorned the narrow Hong Kong precedents about insider trading and vague procedural protections relied on by the government. Instead, she agreed with the Human Rights Commission that Victoria’s human rights standards should be no less than those of Canada, the nation that invented the type of human rights law that Victoria chose to adopt. If the Canadians could fight and win against domestic terrorists without sacrificing Canadians’ rights, she reasoned, then Victorian police could do the same against the Underbelly mob.

Most dramatically, she boldly held that Victoria’s charter must never be hedged by technicalities and weak remedies, effectively killing off the government’s entire litigation strategy. Declaring that a bar on using compelled words but not on what is learnt from them is no bar at all, she reinterpreted the coercive questioning statute in a subtle way: the chief examiner could examine whomever he pleased, but only if prosecutors were barred from ever using evidence against those people that could not have obtained without the threat of prison.

PERSONALLY, I’ve never been moved by either side in the debate about human rights protection. All I’ve cared about is that any such statute should be properly applied, as a bad charter is clearly much worse than no charter at all. But I’ve got to say that reading a judgment that actually gets the charter right for a change is a powerful experience. Here, Hulls’s rights statute yielded a nuanced solution to a crucial question – a solution that the common law’s all-or-nothing approach to human rights could never have come up with.

But many will be unhappy. The anti-charter movement will be frothing at the mouth at the thought of judges improving on a duly enacted law (even though Warren relied on exactly the same common law rights that the anti-charter folk say are sufficient protection of individual rights.) Bob Carr will presumably stick his head out of his gold-plated office at the Macquarie Bank once again to tell the elites: “Hands off our democracy. It’s working just fine!”

I fear that the pro-charter lobby will be even less pleased. This first genuine application of the charter has shifted the goalposts significantly in favour of suspected organised criminals, whose ranks include those perennial crowd favourites, paedophile rings. And its main effect, the exclusion of very cogent evidence of guilt from Victorian criminal trials, is the tabloid’s greatest legal bugbear. The chief justice’s decision also has major implications for Frank Brennan’s national human rights consultation, confirming that any federal charter will come at a tangible cost to the nation’s counter-terrorism infrastructure.

Least happy of all will be the Victorian government, which must now choose between enduring weakened coercive questioning laws or forever tarnishing its signal constitutional experiment. Oh, to be a fly on the wall when police minister Bob Cameron and attorney-general (and charter father) Rob Hulls sit down to nut this one out… •

The post Chartered waters appeared first on Inside Story.

AMIDST ALL THE NOISE about the proposed federal human rights law, presently under consideration by Frank Brennan’s committee, there’s been relatively little said about Victoria’s Human Rights Charter. That’s because, for both sides of the debate, it’s been a frustrating sixteen months since the Charter came into operation.

Supporters of human rights laws have had to look on uncomfortably while a line of criminals, suspected criminals and opportunists have raised their Charter rights before Victoria’s courts and tribunals. Charter opponents, who denounce the new law as a massive transfer of political power to unelected judges, must have found those same judges’ tendency to turn down (or dodge) claim after claim quite frustrating. So, hooray for the first likeable human to actually win a rights claim in Victoria.

Gary Kracke hasn’t committed any crimes. He isn’t after anyone’s money or reputation. He isn’t rich or famous. He doesn’t have a political agenda, liberal or conservative, broadsheet or tabloid. Best of all, he has a valid complaint. Since 2005, because he has a mental illness, he’s been forced to endure medical treatment against his will under Victoria’s mental health laws. But the government agency that’s responsible for ensuring compliance with those laws has breached them itself. Not just once, but repeatedly over many years and, indeed, in multiple cases.

The agency at fault, Victoria’s Mental Health Review Board, admits all this. Some readers may wonder what else there is to litigate. But one of the hardest questions in the law is the consequences of breaking it. Kracke says that the board’s mistakes mean that he can’t be forced to endure further treatment (at least until the involuntary treatment process is restarted). The board says that its mistakes don’t matter at all, legally at least. Victoria’s mental health law doesn’t say. And the general law of Australia doesn’t help much either. Enter Victoria’s human rights Charter.

KEVIN BELL, a part-time viticulture student at Charles Sturt University, runs a winery business with his wife on the Mornington Peninsula. In his other job, he was once a lawyer, representing a variety of community legal claimants. The same year that Kracke was first forced to take medicine for his mental illness, Bell was appointed to the bench of Victoria’s Supreme Court.

The balance of Bell’s siblings on the bench have reacted to Charter claims by the like of sex offenders with barely concealed contempt and a bevy of technical objections. Recently, two judges barred an unrepresented litigant, who claimed that he had received threats from Victoria police, from raising human rights arguments on appeal. In any event, they declared, claims of state death threats “are simply not engaged by the Charter.”

Bell, by contrast, raised the human rights law himself on behalf of litigants before him. A notable example was the brothers Mirik, who faced a compensation claim for a hideous and degrading assault. Bell called for submissions on whether or not the Miriks’ human rights were being breached because they had no lawyer. At the next hearing, they had a government-funded lawyer, courtesy of a change of heart by Victoria Legal Aid.

Perhaps unsurprisingly, Bell has since moved away from the Supreme Court to take up the presidency of its much less glamorous counterpart, the Victorian Civil and Administrative Tribunal, or VCAT. A major part of his task is a root-and-branch review of the legal body that Victorians are most likely to deal with. The VCAT presidency also carries the perk of allowing Bell to “call in” the tribunal’s most interesting cases.

Kracke’s human rights complaint is one of several Charter claims presently in Bell’s hands. Such cases have an importance that extends beyond the lives of individual litigants or even their immediate subject matter: mental health or tenancy law or freedom of information and the other stars of VCAT’s low key docket. Instead, given the tepid treatment of the Charter by senior courts to date, they represent an opportunity for Bell to show how to apply the Charter properly.

While the text of human rights laws, actual and proposed, are endlessly debated, the true test of such laws comes from their application. Many laud the plain language of human rights, in comparison to other statutes. But they are really only talking about individual words. “Right” and “privacy” are simple enough, but a “right to privacy” isn’t and “A person has a right not to have his or her privacy arbitrarily or unlawfully interfered with” is fiendish. Bundle fifty such sentences together with no apparent links between them and mix in some feel goodness, party politics and gobbledegook and you have the Charter.

In the hands of judges born or made mean or timid, the Charter can easily be strained into a thin gruel. It’s certainly a lot of work to take such basic ingredients and boil up a rich soup. Bell’s reasons for judgment in Kracke’s case, which considered only a fraction of the Charter, were a thesis-length 75,000 words, or well over ten times the length of the Charter itself.

Much of the judgment was directed to Bell’s own present and past colleagues on the bench. Victoria’s courts and tribunals are exempt from the Human Rights Charter, except when interpreting statutes and in their administrative functions, courtesy of a wholly speculative constitutional concern backed by Victoria’s solicitor-general. Bell’s response was to give the words “interpretation” and “administrative” their widest possible reading, ensuring that much of his own tribunal’s behaviour would be governed by the Charter.

And he went further, taking advantage of an embarrassing typo in the Charter’s application clause, which purports to give courts and tribunals other undefined “functions.” Courts must be bound by some of the Charter in all their functions, Bell ruled, lest that clause’s “powerful opening words” be ignored. Those powerful words? “This Charter applies to: …” It’s not exactly “We the People,” is it? So, it’s not surprising that, in the end, words were all that Victoria’s Charter could offer to Kracke.

EVERY DAY SINCE 2005, Gary Kracke has swallowed a tablet of sodium valporate. Every fortnight, he attends a nurse for an intramuscular depot injection of slow-release risperidone. He doesn’t want to take either drug, because they have unpleasant side effects and change his mood and thoughts. But his psychiatrists want him to and, because of his illness, their orders are law.

In 2007, Kracke was listed as AWOL by staff at Victoria’s Mental Health Review Board. Being AWOL would have had enormous consequences, permitting him to be involuntarily detained. In fact, he was still diligently taking his tablet and reporting to the Mid West Area Health Service. It was the board that was AWOL.

The MHRB is the only barrier to stop the good intentions of psychiatrists from paving a road to hell for their patients. Its job is to check the doctors’ orders on a strict timetable. While it rarely disagrees with the doctors – it does so in fewer than one in twenty cases – it’s common for the doctors to change their orders before the hearing. As the board observes in its annual report, a looming review of your work always makes you think again.

Hence, the tragedy that the board was completely unable to perform its review function. In Kracke’s case, his request for an adjournment back in 2006 to seek a second opinion – a common occurrence – caused his compulsory eight-week review to disappear into a two-year administrative black hole. Thousands of other cases similarly slipped behind, well into 2008, until the board (citing the Charter) got its act together.

SINCE 2007, Kracke, like every other Victorian, has had a right not to have medical treatment without his consent. But, when President Bell’s attention turned from the courts to Kracke, his generous reading of the Charter suddenly narrowed. The statute had no legal effect on law before 2008, he ruled. And, anyway, no one was in the wrong so long as Kracke’s rights were being limited “reasonably.” Which they were, Bell found, because his doctors were applying “strict criteria” and reviewing them (themselves of course) periodically.

The apparent reason for Bell’s mid-judgment transformation from grand jurist to Yes Minister bureaucrat is his repeated concern that Kracke’s arguments would cause chaos for the mental health system. Given that so many other cases had slipped past their deadline, that’s quite a problem. But equally worrying is that anything from one in twenty of those cases to many more could have involved orders that ought to have been overturned.

While the government may be displeased at some of Bell’s adventurism in Kracke’s case, they’ll be well satisfied with his willingness to factor in the interests of the state – which caused the problem through shoddy legislation and administration, and would otherwise have had to pay in hurried new laws, more resources and some hefty political capital – when determining the rights of individuals like Kracke.

Bell did find, though, that one of Kracke’s rights was unreasonably breached. That was his right to a fair hearing, which included a right to a timely hearing. The government, which has opposed each and every Charter claim to date, argued that only court litigants had a right to a fair hearing. But Bell refused to treat Kracke’s compulsory medical treatment order as if it was a fishing licence. And he also rejected another argument that would have required Kracke to go to the Supreme Court to get a remedy.

On the other hand, his earlier rulings meant that the only available remedy was a pyrrhic one. And that’s why Kracke is now the first Victorian to be given a piece of paper that records the solemn fact that his human rights have been breached. As he takes his medicine and struggles to hold onto his personality, he is surely one of the last Victorians to need such a reminder. •

The post This Charter applies too appeared first on Inside Story.

THE TROUBLE STARTED in September 1997, a few weeks into Julia Elliot’s trial for killing and dismembering her ex-lover. She sacked her defence lawyer and hired a new one, who started claiming that the government had breached Elliot’s rights under Canada’s Charter of Rights and Freedoms. An initial complaint that the police had failed to disclose mysterious phone calls made to the victim’s house before his death quickly morphed into broader allegations of a cover-up. When the police’s case manager confessed to perverting justice in an unrelated case, the defence began to pursue a fully fledged conspiracy.

Justice Paul Cosgrove, an ex-Trudeau government minister and political appointee to the Ontario judiciary, later admitted that he was completely unprepared for these events. He not only allowed the defence to pursue its claims but openly fanned the flames, issuing hundreds of extraordinary orders to facilitate the inquiry. Elliot’s trial, which was meant to be over by the end of the year, sailed past one Christmas, and then another, and nearly a third, without any findings being made about her murder charge. The 150 Charter breaches Cosgrove ultimately found related not only to the investigative and prosecutorial process, but also to Ontario’s immigration system, funding for forensic sciences and halfway houses, and even the relationship between the government and telco Bell Canada.

Four years later, Ontario’s appeal court, observing that Canada’s rights Charter “has introduced additional complexity into our system,” found that nearly every decision Cosgrove made was wrong.

AUSTRALIANS will be hearing a lot of stories like these in the next six months. The federal government has promised a community consultation about how best to promote human rights in Australia. Similar consultations in the Australian Capital Territory and Victoria led quite quickly to the passage of landmark statutes, including the latter’s Charter of Human Rights and Responsibilities. A lot of the tales the anti-Charter squad will bandy about in response to the federal consultation will be either exaggerations or outright false. The Cosgrove case, alas, is neither.

But Canada’s Charter is very different from Victoria’s. The Canadian document is part of its 1982 Constitution, the product of prime minister Pierre Trudeau’s career-long ambition, televised deliberations of an expert committee, tortured negotiations with ten provinces and decisions by both the imperial parliament and Canada’s Supreme Court. By contrast, Victoria’s Charter is just a simple act of its local parliament, largely based on a relatively short report by a four-person committee comprising an academic, an ex-politician, a disability advocate and a basketballer. The law most resembles a forgotten piece of Canadian history, its Bill of Rights Act 1960, an ordinary statute that is now regarded as a misfire. By that reckoning, Victorian misadventures akin to Cosgrove’s are some thirty-five years in the future.

The ordinariness of Australian charters of rights (proposed and actual) is their political raison d’être. Australian parliamentarians would simply never enact a statute that would limit their capacity to pass whatever laws they want. Moreover, other powerful branches of the government, like the executive and the police, would never accept a broad human rights law without the promise that any problems the document causes for them can be fixed by a further statute. The Charter’s legal weakness has put its opponent on the back foot. They’re forced into Trojan horse arguments, such as the claim that Australia will follow Canada down the constitutional path (despite the many legal and political barriers to such a step in Australia) or that the courts will usurp parliament’s power on their own (as if other statutes and the judge-made common law don’t already provide the same opportunities for such treason).

But where does all this ordinariness leave Charter supporters? Nervous. Like Pierre Trudeau, Rob Hulls conceived of his Charter as the state attorney-general. Trudeau, though, achieved his goal a decade later as Canada’s most successful leader and sold his Charter as a transformation of his nation. Hulls, by contrast, shepherded in his Charter alongside twenty-four other law reforms packaged into a five-year plan for modernising Victoria’s justice system. His second-reading speech to parliament described the Charter as a “powerful tool” for “assessing” human rights and “educating” people about them. The state opposition voted against the statute as a pointless extravagance and added it to their list of matters to use to hassle the government. It’s doubtful that most Victorians even know that the Charter exists.

When Hull was questioned about the financial costs of the Charter (one of the opposition’s key criticisms) at an estimates hearing this June, he remarked: “I am somebody who is pretty passionate about the human rights charter and I want it to become a permanent part of the legal landscape in this state; I do not want it to become a political football. I hope that whoever is in power over the next ten years in Victoria will ensure that the human rights charter remains in this state.” The flipside of Hull’s “hope” is a chilling fear: that Victoria’s Charter, the first human rights document to be enacted by an Australian state, may also be the first to be repealed. Legally, all that would be required is another simple act of parliament.

Politically, repeal is much harder. Recent reforms to the Victoria’s voting system ensure that neither party will ever again control the upper house, where the Greens and minor parties presently hold the balance of power. As Hulls observed, the Charter will only come under threat if it becomes a political football – in other words, if something jolts the public from its present mood of indifference and ignorance.

ELLIOT’S AND COSGROVE’S trial began with Julia Elliot’s arrest on 25 August 1995. A week earlier, two men fishing the Rideau River near Ottawa found a pair of human thighs. Police divers soon located the lower legs, feet, arms, hands and head of 64-year-old Larry Foster. The retired auto-mechanic had met Elliot on a holiday in Barbados two years earlier, but the pair soon fell out over a debt. That August, she happened to be back in Canada for a short holiday visiting another man. Witnesses linked her to Foster’s apartment and a bridge near the river; in each instance she was driving a car containing what appeared to be a rolled-up carpet and many of Foster’s belongings. Foster’s and Elliott’s DNA was found on various items respectively linked to her or the crime. In her sole admissible statement to the police, she blamed her new lover for Foster’s death. Justice Cosgrove, citing Elliott’s lack of roots in Canada, refused her application for bail.

The trial concluded on the fourth anniversary of her arrest, when she made her third request for a permanent stay due to state misconduct. Cosgrove granted her request, citing not only the multitude of Charter breaches he had found but also her Charter right to a speedy trial, wrecked by the two year inquiry. Fearing just such a ruling, the police ensured that an officer was at the ready to detain Elliott under a warrant relating to criminal charges she faced in Barbados. But Cosgrove, at the defence’s request, quashed that warrant without taking evidence. The Canadian authorities, frantically trying to lodge an appeal, lost track of her half an hour after she walked out of Cosgrove’s courtroom.

It was a further four years before the Crown’s appeal against the stay was decided. Elliott was represented in her absence by new lawyers, who disowned both her trial lawyer and Justice Cosgrove but nevertheless argued that the stay should remain. Their argument, that Cosgrove himself had breached her Charter right to a speedy trial by his flawed conduct of her hearing, was frostily dismissed by the Court of Appeal. Soon after it ordered a new trial, Elliott disappeared from her residence in Barbados. It was another year before Interpol tracked her down to Costa Rica. On her return to Canada, ten years after Foster’s death, she pleaded guilty to his manslaughter. The prosecutor later explained that the long delay, the reluctance of witnesses to participate in a further trial and the practice of double-counting remand years when calculating the sentence were significant factors in his decision to accept the plea.

IN VICTORIA, just about the only political football that is bigger than football itself is a dangerous person escaping on a “technicality.” Promoters of human rights charters like to speak of the rights of minorities, the disadvantaged and “ordinary citizens.” But in the two dozen or so reported Charter cases to date, there’s only been one that involves a litigant from central human rights casting: a mother of three facing eviction from public housing because her criminal ex-spouse coerced her into letting him and his pots of cannabis stay over for three days. A handful of others have ranged from the ordinary (a woman in a commercial dispute who missed her conciliation conference) to the weird (a dentist wanting to proselytise to his patients while they were in the chair).

The overwhelming majority of Charter cases to date involve people accused or convicted of crimes (although some of these had only modest goals, such as regaining their licence to drive a bus). Indeed, the first ever Charter claimant is arguably the most hated man in Victoria. Carl Williams’s failed attempt to use the Charter to obtain an adjournment for his murder trial remains the most cited precedent on the statute. Other notorious Victorians who have tried to rely on the Charter include the dozen accused allegedly linked to Benbrika’s terrorist organisation, the gun-totin’ former director of the Australian Wheat Board, Trevor Flugge, Tony Mokbel and, most recently, Derryn Hinch. This pattern is well-known overseas and reflects both the many human rights that are specific to criminal process and the heightened incentives of those involved to make a claim.

One can imagine how disappointed the human rights community were when Kelly Gray took a permanent place in history as the first Victorian to succeed in a Charter claim. The prospective Bandidos member from Echuca, charged with bashing someone with a baseball bat, faced a year on remand due to delays in the County Court list. Justice Bongiorno, a former prosecutor and antagonist of the Kennett government, ruled that this breach of Gray’s Charter right to a speedy hearing could be remedied in only one way: bail. Bongiorno’s ruling, which seems to ignore some of the legal obstacles to granting Charter remedies, would probably have been made regardless. Doubtless, the spin doctors have such arguments ready if the worst happens and a person released because of the Charter emerges as a public threat.

In fact, the Charter has already had just such a near miss, but the threat posed no risk for Victorians. Barely a month after the Charter was enacted, Victoria’s Court of Appeal mentioned it in passing while construing a recently enacted law allowing the “monitoring” of sex offenders who had served their sentence. The courts in New South Wales, where a similar law exists, initially rejected the Victorian decision simply because of the Charter reference, but later reluctantly followed it in the name of national “comity.” Paedophile Ray Cornwall, the first NSW sex offender to be released to community “supervision” under the new ruling, shed his ankle bracelet within thirty minutes. He was found in Wollongong the next day, standing near a children’s playground and watching some boys playing beach volleyball. The media frenzy missed the link to Victoria’s Charter, which was in any case more symbolic than causal. Cornwall’s release would have been even more likely if the NSW court had acted according to the view it held before it adopted Victoria’s supposedly Charter-inspired interpretation.

The Victorian government, however, has left little to chance. In late 2007, barely a fortnight before the main provisions of the Charter were due to come into operation, the government issued a surprise regulation exempting the state’s three main parole boards – who, among other things, administer the sex offenders monitoring regime – from the statute’s obligation to act compatibly with human rights. This exemption gives lie to the Charter’s singular feature: any legal “problem” it creates can be easily reversed by legislation. The flipside of this principle is that legislation, publicly debated and analysed for its human rights impact, is the only way such concerns ought to be managed.

That Hulls opted instead for a quiet executive solution a week before Christmas seems to suggest that his worry isn’t about the Charter’s actual impact, but rather how it may be perceived. The fear of a public relations problem is, it seems, enough to deny the Charter’s protections to all prospective and actual parolees (and, for that matter, victims and other stakeholders in the process). The parole boards are now seeking a further extension to their exemption and Hulls has said that he is reluctantly considering their request. In fact, the boards were unlucky. Some much more powerful Victorian institutions are the beneficiaries of a permanent exemption built into the Charter from the get-go.

LARRY FOSTER’S RELATIVES looked on with dismay as events unfolded in Cosgrove’s court. When Elliott’s trial commenced, the judge had a reputation for favouring the prosecution. Indeed, one of the defence’s first salvos at her trial was to ask him to step aside for bias. Early the next year, when the judge began to enthusiastically back the defence’s increasingly wild claims and started to find government Charter breaches in their dozens, the state side made its own, unsuccessful, application. Courts can be both heroes and villains when it comes to human rights. They are one of the most powerful and reliable protectors of people’s rights. But their everyday activities can also limit, even destroy, them.

A year into the trial, Steve, the victim’s son, confronted Elliott’s lawyer in the court’s cafeteria and a shouting match ensued. He ended up having to hire his own lawyer after Cosgrove threatened him with a charge of contempt. Contempt powers are the courts’ strongest weapon in their dealings with the outside world, providing the main means to enforce their orders. But they are also a criminal justice anomaly, where judges act as prosecutor, jury and sentencer, applying rules that are typically unwritten and whose boundaries seem to constantly shift. Those sorts of processes, which seem to embody Acton’s maxim about power and corruption, are anathema to human rights law.

Steve Foster was not alone in being threatened with contempt; several police and prosecutors also ultimately received citations. Cosgrove was also liberal in his use of subpoena powers, agreeing to defence requests to force four of Elliott’s prosecutors to testify. That immediately disqualified them from acting in the case. Fearing a widening of the conspiracy, the judge also barred those prosecutors and various police officers from communicating with their replacements. Cosgrove’s actions left the tiny prosecution office in Brockville in disarray, forcing the trial to move to Ottawa and restart with a fresh jury. When the defence voiced its concern that the loss of corporate memory might make it impossible for the Crown to comply with the very disclosure obligations at issue, Cosgrove casually assured Elliott that the prosecution’s disarray was good news for her.

Four years later, the Court of Appeal was unable to say whether Cosgrove’s mistakes “stemmed from a misunderstanding of the basic principles that govern the Charter and its application or from his bias toward the Crown or both.” This damning verdict prompted Ontario’s attorney-general to refer the matter to Canada’s Judicial Council. The council can make recommendations that parliament sack a judge for misconduct. Cosgrove responded with a challenge of his own, backed by Canada’s defence lawyers and judges’ associations, arguing that the referral system undermined judicial independence and breached his own Charter right to free speech. After a further four years, Canada’s federal court ruled that independence is not to be equated with immunity – quite the opposite – and that the right to free speech exists to protect individuals from the state, not the reverse.

VICTORIA’S CHARTER, unlike Canada’s, protects the courts from many human rights claims. Carl Williams’s landmark claim was to ask Justice Betty King to adjourn his trial to allow him to ensure that he is defended by the lawyer of his choice, a Charter right. Her response was that, even if the gangster’s argument was otherwise sound, it wouldn’t help him, because she was free to ignore his Charter rights if she wanted. Justice King and, indeed, every other judge and tribunal member in Victoria is the beneficiary of an exemption from the Charter. The exemption covers their non-administrative work – everything they do in determining someone’s civil liability, criminal guilty or legal rights – and will stymie many efforts by criminal defendants and offenders to find a toe-hold for their human rights claims.

Indeed, exemptions and gaps in the Charter have been the main story of the statute’s first full year of operation. In what ought to have been a landmark Charter proceeding, Channel Nine sought to raise the new human rights law in its bid to be allowed to show its racy docudrama, Underbelly. Nine relied on a judgment of the Supreme Court of Canada that held that courts should refrain from ineffectual or disproportionate suppression orders. With a keen eye for the future, the Canadians in 1994 referred specifically to the role of computers in distributing information, fourteen years before the internet made a mockery of the ban on Underbelly. But Nine couldn’t even get its foot in the door in Victoria in 2008 because of exemptions banning the Charter from proceedings commenced before 2007 and preventing corporations (including most of the Australian media) from making any rights arguments. When Nine tried to raise a speculative argument that the Supreme Court should comply with the Charter anyway, the attorney-general responded with a constitutional objection, in effect calling the validity of his own statute into question.

The Charter’s over-the-top transitional provision means that people sued or charged in 2006 or earlier cannot raise any Charter rights at all. In 2008, the landmark Victorian trials of Thomas Towle, Evan Goussis, Joseph Thomas and Abdul Benbrika were all run as if the Charter had never been passed. Shane Kent, whose jury hung on his alleged involvement in Benbrika’s organisation, won’t even be able to raise the Charter in his next trial slated for 2010. Perversely, Tony Mokbel, whose alleged crimes occurred in the same time period as all these others, will be the first man associated with the gangland wars to be able to claim his Charter rights, due to a delay in charging him while he was in Greece. Even those who are lucky enough to be eligible to make Charter claims in Victoria’s higher courts will first have to comply with a provision requiring them to notify the attorney-general of their claim. This mechanism, introduced to prevent courts from being swayed by poor legal arguments, makes it difficult to raise the Charter instinctively, routinely or regularly. Miserly and technical constraints such as these have combined to make 2008, the Charters bellwether year, one of the least just in Victoria’s recent history.

Even when the statute does apply, Charter arguments are currently being dodged, rather than debated. Recently, a Victorian doctor asked the Supreme Court to overturn a ban on his practice, pending the outcome of a complaint against him. He argued that the practitioners’ board limited his right to be presumed innocent, because the ban coincided with rape charges being laid against him. While there are many good answers to this argument, Justice Elizabeth Hollingworth spent much of her judgment arguing that a Charter section containing fourteen rights of criminal defendants shouldn’t apply at all outside criminal courtrooms. The major basis for her argument was the wording of the heading of that section, which was narrower than the rights listed within it. If accepted, her argument would have far-reaching implications, denying Victorians the benefits of landmark human rights judgments on innocence and self-incrimination outside of the courtroom.

A different technical knock-out faced Catholic doctors who argued that their freedom of conscience was limited by the Abortion Law Reform Bill. The Charter contains a savings provision for abortion and child destruction laws, supposedly to stop the human rights law from being politicised. It prevents the Charter from being used to interpret not only the recently passed abortion bill, but also any future law, no matter how far pro-life or pro-choice it tilts. Indeed, it would even exclude a Charter challenge against the apocryphal bill requiring that all blue-eyed babies be killed at birth. The government relied on the provision to avoid a Charter requirement that every bill be accompanied by a parliamentary statement explaining how it is compatible with human rights.

Proponents of human rights laws often say that a Charter can only add to rights, not detract from them. But this reassuring claim isn’t entirely true. Last year, the High Court, in a series of cases responding to novel police methods of prising confessions out of suspects, cited earlier Victorian legislation giving rights to criminal detainees as a reason not to adapt the unwritten common law to meet the new challenges. So, for better or for worse, the development of Australian law in response to novel threats to rights is now in the hands of written statutes like the Charter. If the fear of public disapproval continues to be the driving force behind how those statutes are devised and developed, then they may leave Australians with less rather than more protection.

TWO MONTHS AGO, Justice Paul Cosgrove apologised to the attorney-general of Ontario, to the prosecutors, police and private citizens involved in Julia Elliot’s trial, and to the Canadian public and the family of Larry Foster. Fighting for his career before Canada’s Judicial Council, he admitted that he had lost his way in a difficult trial, but also maintained that the humbling experience had made him a better judge. His counsel pointed out that some landmark court decisions on the Charter’s role in such trials had been brought down years too late for Cosgrove. Barred from deciding cases since 2004, he has worked tirelessly presiding over less glamorous mediations and administrative programmes. The Council is presently considering whether or not Cosgrove will be able to return to the bench in the final year before his mandatory retirement. Despite a line of fellow judges attesting to his good work and intentions, it is clear that his reputation will never recover.

The singular aim of human rights law is to ensure that all branches of government never lose sight of the impact of their work on individual humans. But it is important to remember that those who make and apply laws, including human rights laws, are human too. Sometimes, they are very human. Humanity is the source of the resolve and hope that led to the enactment of both Canada’s Charter and Victoria’s. But humanity can also bring hubris, in the form of blind confidence that good intentions alone will suffice and defensive bristling in the face of criticism. And it can also bring fear, a fear that has been written into Victoria’s Charter, insulating it from dangerous paths but also reducing its capacity to bring hope to others and potentially stunting its development by the courts.

The final week of October brought news of a development that might at last allow the Charter out of its shell. Justice Bongiorno has called for submissions in a major human rights challenge to “coercive questioning” laws introduced to fight Melbourne’s gangland war. The case bristles with political dangers. Attorney-general Rob Hulls could respond by raising countless technical arguments to deflect the threat or simply exercise his prerogative to ignore any judicial declarations of Charter incompatibility. Or he could step back and allow the courts, the parliament and the public to engage in the human rights dialogue that is meant to be the statute’s raison d’être. It’s a step by the Charter’s founding father that would exhibit considerable faith in Victorians, courage in the face of political risk and trust in his Charter. •

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