Opinion: Justice the new barbie stopper

Tuesday 27 August 2019 by Professor Mirko Bagaric, Bachelor of Criminal Justice and Criminology

Angel of Justice on top of a courthouse.

The Pell decision has created huge interest in the way the criminal system operates.

In summary

  • Opinion piece for The Australian by Mirko Bagaric, Professor of Law, Swinburne University of Technology

No one can contest the fact that more than a few people who are convicted of crimes are innocent. And it debases the legal and democratic process for anyone to insist — as a few prominent commentators have in recent days — that it is impertinent to believe that Cardinal George Pell is innocent despite losing his case in the Victorian Court of Appeal.

The saturation media focus on the Pell prosecution has indirectly drawn many people to examine the operation of criminal justice more closely. This case provides the ideal vehicle to highlight to the community the workings and limitations of the criminal justice system.

A fundamental bulwark of the criminal process is that for defendants to be found guilty, there is no need to establish guilt beyond any doubt. But the courts have refused to explain what “beyond reasonable doubt” means in mathematical terms, and it is a matter left for each juror to define. There is nothing inappropriate with a juror deciding that, say, an 85 per cent likelihood of guilt is sufficient to convict.

Requiring guilt beyond any doubt is not tenable given that it would mean too many guilty people would walk free. The utilitarian nature of the system accepts that convicting some innocent people is an unfortunate but necessary price to pay to ensure that a large number of criminals don’t walk free.

There are no reliable statistics in Australia regarding the rate of wrongful conviction but a US report this year established that about 11 per cent of people who are exonerated after conviction on the basis of DNA evidence actually pleaded guilty.

The system of proof and guilt is similar in Australia. Moreover, in both the US and Australia defendants are given an incentive to plead guilty. In Australia, defendants who plead guilty receive about a 30 per cent discount on their sentence. If they contest the charge and are found guilty, they receive a penalty loading of the same amount. This sometimes can mean the difference between a prison term and a community-based sanction.

The institutional structure of the legal system acknowledges that some convicted people (whether they pleaded guilty or contested the charges) are innocent. So no one should criticise anyone for asserting the innocence of people who have been found guilty. This especially applies in relation to defendants whose cases are still proceeding through the legal system.

Respecting the integrity of a jury and court verdict means it is inappropriate to try to break the defendant out of prison; it does not mean that we cannot and should not question the findings of our courts. All parts of government, including parliament, police and the courts, operate more effectively when their workings are improved through public engagement and oversight of their systems.

Courts are the most opaque organ of government because of the complexity of the law and difficulty involved in understanding legal terminology. Many laypeople no doubt are bemused that judges looking at exactly the same evidence and applying the same legal standard would split two to one on whether Pell should be acquitted.

This highlights a major challenge relating to our system of proof and guilt. The key point of division between the Court of Appeal justices was their assessment of the credibility and persuasiveness of the complainant in the case.

Science tells us that in assessing credibility, the key consideration is what people say, not how they say it. Intuitively many of us associate lying with people who are not assertive with their comments or refuse to look directly at us or who are fidgety. We tend to believe people who report matters with confidence, conviction and assuredness. But we would be mistaken to do so.

There is no established legal methodology for assessing the credibility or reliability of witness testimony, so it is hardly surprising that judges will take different approaches to this task. When I was member of the Refugee Review Tribunal, I used a linear and pragmatic approach that involved taking visual cues from the equation.

In V0214392, September 6, 2004, I said: “The probative value of the evidence produced by the applicant in support of his claim that he will be persecuted … was not high … There is no contrary evidence … Against this background (where the applicant’s claims are not self-contradictory and are not patently contrary to information from the other country and there are no obvious credibility issues) the rational approach to take is to accept the claims — no matter how strongly they may conflict with one’s ‘hunches’. It is cardinal that determinations of this nature are determined on a forensic basis as opposed to intuition.”

This probably resulted in some refugee applicants pulling the wool over my eyes and being granted asylum, but this is preferable to me rejecting their applications on the basis of the “vibe” from the witness. This is the most logical approach to assessing evidence for credibility.

This is not a universal approach. Some judges disagree. In upholding Pell’s convictions, Chief Justice Anne Ferguson and Victorian Court of Appeal president Chris Maxwell stated: “Both the content of what (the complainant) said and the way in which he said it — including the language he used — appeared to us to be entirely authentic.” Justice Mark Weinberg disagreed and stated the “complainant’s allegations against the applicant were, to one degree or another, implausible”. Jurisprudentially, neither approach is manifestly incorrect. If Pell does appeal the matter to the High Court, the result will turn largely on the approach to credibility taken by the High Court justices. This is not predictable. However, whatever the result, the deep community engagement with the legal process is to be welcomed. And no one should ever shout down any of us for examining the workings of any court.

Professor Mirko Bagaric is Director of the Evidence-Based Sentencing and Criminal Justice Project at Swinburne University of Technology. This opinion piece was originally published in The Australian