Victoria judicial system did not give George Pell a fair trial: Tom Percy QC

In my view, the judicial system in Victoria didn’t really give George Pell a chance at a fair trial.

Why? Well think about what’s recently dominated the headlines in WA.

Anyone who has been in WA over the past fortnight and experienced the tsunami of media coverage about the Bradley Edwards Claremont serial killer case would have to admit that, were it not for him being able to have a trial by judge alone, he would effectively be untriable.

Leaving aside the 20 years of notoriety of the events in question, the impending trial has generated an unprecedented level of publicity — mostly negative — that would have made a trial by jury all but impossible.

Had it not been for the capacity of the system in WA to provide a judge-alone trial, Bradley Edwards might well have been successful in arguing for a permanent stay of the proceedings on the basis that he couldn’t get a fair trial.

But perhaps I use the word “unprecedented” too loosely.

On the other side of the nation this week with the Cardinal Pell case we were finally made privy to the outcome of the trial that has probably been responsible for at least as much press, and again largely negative, as that in the Claremont serial killer case.

The only difference is that in Victoria the system doesn’t allow for trial by judge alone.

Pell had to take his chances with a jury selected at random from a community that had been subjected to several years of vitriolic media — not just about his case but the potential guilt of any number of Catholic clerics around the country and around the world.

Pell didn’t seek a permanent stay of the proceedings.

He was probably forced into that position by having insisted from the outset that he wanted his day in court with a view to clearing his name.

A permanent stay of the proceedings would never have achieved that.

Applications to stay serious criminal proceedings permanently are rarely granted, the theory being that no matter how prejudicial the publicity about any given case, it can all be cured by a judge telling the jury to put it out of their minds.

Just how effective that is however, I have always had my doubts.

I didn’t sit through Pell’s trial and I am not about to express any view on the evidence that supported or detracted from the conviction.

But the history of the case does leave some concern as to the confidence that an objective out-sider might have in the ultimate conviction.

First, a number of similar complaints against Pell were dismissed out of hand by the magistrate at the committal proceedings.

Those allegations could have been resurrected by the prosecution by way of a direct presentment, that would have seen those allegations go to trial in the higher court despite having been dismissed by the magistrate. But, in Pell’s case, the prosecutors declined to resurrect them.

Similarly another trial that was scheduled to go ahead this week involving a separate set of allegations by other complainants was discontinued by the prosecution on the basis that there was no reasonable prospect of a conviction.

Then we have the fact that the initial jury couldn’t agree.

And, on top of that, the present convictions were only arrived at after three days deliberation at a second trial.

I’ve always thought that the essence of a reasonable doubt is where 12 people — after a relatively short trial — can’t resolve a fairly simple question (in this case: “Did it happen or not?”) within a reasonable time. My own view is that Pell was probably untriable by a jury in much the same way as Bradley Edwards is.

Whatever the outcome of Mr Edwards’ case, he, his defence team and the public will know the reasons for his conviction or acquittal.

Justice Stephen Hall will explain his reasoning, but this is a luxury Pell will never have. He just heard the word “guilty”.

And everyone will also know that the verdict, whichever way it goes, was never the product of the deluge of publicity which preceded it.

That’s also something that neither Pell nor the public will ever know.