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 there 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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