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Twelve Good Men [and Women] True

Following charges being brought against Cardinal George Pell, the Australian judicial system is facing a major challenge in being able to deliver a fair and impartial trial for Pell and providing justice to both the accused and his accusers.

Central to this challenge will be the jury selection process which typically qualifies any Australian citizen to sit on a jury if they are of sound mind – and there’s a bit of leeway there from my observations – and whose name appears on the relevant state electoral roll. Unlike the American system there is no detailed enquiry or investigation of prospective jurors by either the defence or the prosecution and nobody is going to enquire into your personal life, your prejudices, your religious beliefs or lack of such beliefs: as long as you scrub-up OK on the day the jury is empanelled and you are not challenged, you’re good to go.

This trial will take place in Victoria where their is no option for a judge-only trial: a jury must be empanelled in Victorian criminal trials – which usually have 12 jurors with a couple of reserves in case the trial drags on or a serving juror becomes unfit. An accused is entitled to peremptorily challenge up to six prospective jurors and the Crown is entitled to stand aside up to six prospective jurors. Neither party need give any reason why they challenge or stand aside a particular juror.

So, the jury that ultimately gets to hear the evidence, evaluate the credibility of the accused, the persuasive arguments of the prosecution, the responses of the defence, the believability of the accusers and witnesses are then called upon to reach a determination on the guilt or innocence of the accused based on the criminal standard of ‘beyond a reasonable doubt’. This jury is arguably going to have a much heavier burden of responsibility than is normally the case, largely because when it comes to a man of the cloth there are within our community entrenched biases, beliefs, prejudices and matters of faith that go beyond those encountered by other defendants. There is also the intense public and media scrutiny that will attend this trial.

Nobody will know what religious beliefs (if any) the selected jurors hold and if Catholic whether they will be influenced by media support by some prominent Catholic politicians and church-leaders or the extent to which their own religious conscience will influence them. If not Catholic and from another Christian denomination who is to know whether they come from a cohort that traditionally and literally hate Papists, or perhaps they have no religion but hold deep prejudices against religious organisations. Trying to empanel a jury of twelve good men [and women] true is going to be a real challenge if impartial justice is to be delivered to all parties in this case. It may well be beyond the capacity of our justice system.

The verdict, unless the judge orders otherwise, has to be unanimous and this in itself presents a problem when it comes to matters of faith or belief on the part of individual jury members; rational and impartial analysis can easily become a casualty in these circumstances. Remember the trial of former Queensland Premier, Joh Bjelke-Petersen on perjury charges in 1991 where the jury were unable to agree on a verdict and the trial was abandoned? Subsequently it was revealed that the jury foreman, Luke Shaw, was a member of the Young Nationals and was identified with the “Friends of Joh” movement. This information on the possible leanings of a juror did not, and need not under our system of jury selection, come to light prior to the trial. Although had it been known prior to the trial, this juror would undoubtedly have been disqualified. There was no retrial as Bjelke-Petersen – then aged 81 – was considered too old.

What is absolutely essential for all parties in this trial is that our justice system deliver a fair, impartial and definitive verdict. If it doesn’t, we are all losers.

 

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26 comments

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  1. Jennifer Meyer-Smith

    Thanks Terence,

    this is a good article identifying the importance of the jury selection process when considering and deciding on well-known and controversial personages and events.

    I wonder why Victoria does not have judge only trials?

  2. zoltan balint

    In the good old days it could be said that a jury was free of prior knowledge about a case in question and as such presenting them with the facts they will employ their moral view and determine the faith of the accused. The question about this one is which rock do you look under to find a person that has not been exposed to and has formed an opinion already. It would be an odd member of this society that admits he or she does not keep up with all the issues since news is everywhere by the truckload. And the news these days comes with a side order of opinion presented as fact. With Pell personally I don’t know the facts but I do have an opinion already.

  3. Florence nee Fedup

    zoltan do you think you will have same opinion after hearing the evidence? That is the question. Many victims of childhood sexual abuse don’t always come across as sensible adults. Leaves scars.

  4. lawrencewinder

    There’s a lot of comment coming from the “right” about how it is all a witch-hunt against Pell… I think they are deliberately trying to stir the pot so that the “unfair” call can be levied and the trial abandoned!

  5. Jaquix

    The trial will almost certainly not be abandoned on the “unlikely to have a fair trial” basis. These days with everyone able to access news from all directions, this defence could be used in a lot more trials than previously. The jury will be directed by the judge to clear their minds of any preconceived opinions they might have, as best they can, and to concentrate and consider the evidence as its presented. I believe the Police would really have been very thorough in their investigations in this case, not wanting any egg on their faces, and we can only trust that the jury will do as the judge instructs. Not easy, its a big responsibility. The last census showed that 25% of the population identify as Catholic, so there is quite likely to be one or two on the jury. You would have to hope that they remember the Pope’s statements on the subject, and not give the defendant any more “benefit of the doubt” than he should get, just because he is a Catholic.

  6. diannaart

    “Twelve Good People True”

    A difficult ask.

    As much as Pell (and the Catholic church in general) appear to be their own worst enemy, Pell is entitled to a fair trial. Jury selection can be fraught. Contrary to the populism that 12 citizens gets it right most of the time… they can get it very wrong particularly in matters of complexity.

    I expect a great deal of obfuscation on the part of the defence.

  7. Joseph Carli

    ” Prove that I lie.”…an old “catholic girl” like yourself, hava’ you just couldn’t say “NO!”…prove that …I..lie !

  8. helvityni

    You are disgusting, havana, not even the dead escape your low-life abuse.

    How do you think Annie and the family will feel when reading this.

    Michael, why are you allowing this, Bob’s family is still grieving.

  9. Roswell

    I just noticed it, helvityni. I deleted it without hesitation.

  10. zoltan balint

    Florance it might confirm my opinion. Pell aside, the volume of abuse was incredible. Any individual with any authority or responsibility during that time can not claim innocence. Police, social services and yes parents included with the church and people working for it. I was one of the lucky kids growing up during those years and was not abused but it sends a shiver through me to just imagin what it felt like to be not only abused but also not having anyone, NO ONE, to believe little alone to help. How much evidence did those people need before they acted or does the old saying ‘if I’ve seen it with my own eyes’ and ‘but he’s a respectable man’ apply as defence even today.

  11. zoltan balint

    One thing that stick in my mind is Pell saying at the Royal Commission someting like ‘I was not responsible so I was not interested’. So when did he become responsible or was he involved to start with.

  12. Florence nee Fedup

    zoltan, I am sorry I also had reason to learn the hard way with my little brother and later on my son. My mother died when he was seven. Dad in desperation boarded him at Kincumber, orphanage as it was called. No orphans but kids deserted and widowed mothers and some dysfunctional families. He loved it there for 4 years.

    They then wanted to send him to Westmead at 11. I objected as it was too near to home. For some reason I wasn’t happy with the situation. I wanted him to go to Boystown. Wasn’t possible. I sent him to local St Simon Stock. Here he went off the rails. Never been able to find out why, but he was put up a year. Treatment appeared to be unfair. My father then sent him to local high school. Westmead as we now know, had one of the the worse paedophile convicted. So did St Simon Stock, which has had name change since then. Three young friends of his all ended up being jailed. Good parents who cared. I believe they were all abused. Had little contact with brother as an adult.

    My son, bought up in a extremely dysfunctional family that involved DV and sexual abuse of my eldest daughter was sent to Boystown, where he flourished, thanks to Father Riley. Sadly another priest, now serving long term brought an end to good work being done. He was not touched but witness too much. His mate who was, if still alive, serving in Boggo Road prison for 2 murders. A beautiful boy who never survived the abused.

    zoltan one knows when they are telling the truth.

    Pell on way home. Ceen in ice cream parlor in Singapore.

    There is one worse. She entrapped him. Not a bad achievement for skinny kid from about 7 to 13. A kid he treated as his daughter.

  13. Florence nee Fedup

    Whether involved or not, he definitely not appalled.

  14. zoltan balint

    This is my wish, to make your pain go away and for anyone else not to feel it. To do this the society must accept what it has done and the trial of Pell whilst it is a symbol of this acceptance by the society the judgment must be articulated by Pell for it to have any healing power.

  15. Jennifer Meyer-Smith

    Very true, zoltan

    FnF, do you agree?

  16. lawrencesroberts

    If I was a betting man The odds would be six to one on that he does not make it to the aircraft.

  17. zoltan balint

    Not facing up is an admission of guilt

  18. Jennifer Meyer-Smith

    It certainly takes decision making out of the realm of ‘balance of probabilities’ to ‘beyond reasonable doubt’.

  19. zoltan balint

    To face your accusers is a privilege under our law and not enjoyed under some.

  20. zoltan balint

    Just a thought, to judge someone under our law we must assume they are a civilian in our country and not a citisen of the Vatican. As a side issue how can we impose our laws on the people on Naru if we do not accept them as Australia citizens to start with.

  21. Terry2

    Zoltan

    The reason we sent the asylum seekers to Nauru and Manus Island was specifically to take them beyond the reach of the Australian judicial system so that they could not have their cases reviewed or evaluated under Australian or indeed international law : it was known as the Guantanimo solution.

    This is why our Immigration Minister consistently says that the responsibility for the welfare and resettlement of these people is that of the respective countries : he is wrong but that’s the fiction that is being promoted by a corrupt government.

    A glimmer of legal sanity was shown when the Supreme Court of Papua New Guinea stood up to Australia and said categorically that holding these people on Manus was illegal and unconstitutional under their laws: Peter Dutton has effectively thumbed his nose at the PNG Supreme Court.

    ‘ Lest we forget ‘

  22. S G B

    Sorry folks but I think this article actually contributes to the conjecture that a fair trial will not be possible.

    I understand what and why it was written bit I think it will only help to promote discussion which brings out feelings of anger and that will be seen as evidence that a fair trial will not be possible

  23. zoltan balint

    Terry it was an example and a comment about the limits of Australian laws and how we can judge people that are not Australian. Laws are made by the people and for the people living in the land. With Pell you can judge his action whilst he was in Australian but to apply any penalty you would need the Vatican to agree and thus force them to show how they view the issue. If you accept the judgment about the people on Naru then you do not need Pell to come here. So Pell is only Invited to attend. How many individuals did the Vatican prosecute or strip their citisanship. Pell was a citisan of the Vatican the minute he put on the uniform.

  24. zoltan balint

    Am I wrong in saying that Pell was and is a citisan of another sate and if the offense happened in a church it did not happen in Australia since the ground and the church is from other state the Vatican. This is why you can enter a church and seek assilum and no mater what you did outside the Australian police can not enter and arrest you unless the church does not give you assilum and asks the police in to remove you. If Pell confest in a church and he was forgiven the church does not recognise him as guilty anymore. This is why the church could move priests to another chutch since the priest no longer had that crime. The question in my mind is what agreement is there between Australia and the Vatican about safe pasage of its citisans.

  25. diannaart

    Zoltan, find yourself a Catholic priest and ask him.

    I believe the entire “church is an asylum” thing has been corrupted to the point of extinction, but I may be wrong, I am not a theologian which is what is needed to have some understanding of religious machinations.

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