Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Quick Post: Pell decision and legal intuitions

[T]here is a significant possibility that an innocent person has been convicted.

Any discussion of Pell v The Queen has to, in my view, begin with an acknolwedgement of the social dimension of this judgement.  Survivors of sexual assault will feel disappointed by the High Court’s decision.  It’s not a legal argument: it’s purely human.  Campaigners have been fighting for the justice system to give them the outcomes they want, to give them outcomes where people who do terrible things are punished, to give them the satisfaction of knowing that they are believed and supported by their community.

If I were in that position and if I heard the news as presented by journos rushing to get out the first tweet, I would be devastated.  They didn’t get the outcome they wanted; a reminder of how difficult it is for them to get the sort of justice that they want.

The response from the commentariat, on the other hand, has been unhinged.  While the High Court found that ‘there is a significant possibility that an innocent person has been convicted’, Australia’s professional chatterers announced that ‘this was a day that justice did not win‘, and ‘paedophilia is now legal in the state of Victoria‘.

One of my repeated arguments is that Australia desperately needs its legal theorists to do more to lead public discussion about complex topics about justice.  It is appalling that Australia funds a bunch of legal theorists through the university system, and yet members of the public get absolutely no benefit from them when it needs it.  It’s especially a slap in the face of survivors who need a way to understand what happened today, beyond the feeling of just being let down by an ancient institution impervious to change.

I am not an expert in criminal procedure, and today’s decision opens difficult and complex questions about the nature of evidence, about the role of the jury, and the responsibility of judges to second-guess the jury’s deliberations.  Not my area of law.

We can move away from the technicality of the decision to focus instead on the public’s understanding of the law.  Under what circumstances should the State be allowed to imprison somebody?  Most people would, I think, say something along the lines of ‘Only if it were proven beyond reasonable doubt’, even if they didn’t quite know what ‘proven’, ‘beyond’, or ‘reasonable doubt’ actually meant.

We should find it strange and worrying that this intuition does not appear to quell the immediate public outrage that Pell had his convictions quashed.  The High Court found that the case was not proven beyond reasonable doubt, that ‘there is a significant possibility that an innocent person has been convicted’.  In these circumstances, isn’t the correct intuition that it’s good that the High Court stopped a person from being punished when it wasn’t proven beyond reasonable doubt that they committed the offence?

I imagine that this is going to be what we see in the media.  Left wing outlets will emphasise the views of survivors; right wing outlets will emphasise the legal standard of proof.  Both will use the word ‘justice’ as if everybody means the same thing about it.

We can do better.  We can say, ‘Hang on. Is the balance between survivors and the accused right?  The expression might be: “Better that nine guilty men walk free than have one innocent man imprisoned.” Or it might be: “Better that 99 guilty men walk free than have one innocent man imprisoned.” But do we start to think that our legal system is not functioning when we have 999 guilty men walking free for the protection of the one innocent man? How do survivors get justice in this system?’

We can also look the issue through race, gender, and class perspectives.  First, why does the evidence threshold look so much higher for some people than for others?  If Pell had been black or from a less privileged background, would he have been encouraged to plead guilty?  Would he have even had the means to get his case before the High Court?

When we take this step, we move away from criticising the decision of the High Court and move into a discussion about what we want from our legal system and how we might rethink the system to value the views of survivors.  That is, we move away from ‘Boo!/Hooray!’ responses to the decision, to a conversation about the public’s expectations.

Because, let’s face it, the loudest voices in the public debate are not going to be from people who’ve read the decision (or, if they have read it, they are unlikely to have understood it).

Finally, we can also discuss public reactions to High Court decisions generally.  If the decision had come down the other way, those making absolutely unhinged criticisms of the decision today would instead be roasting the News Corp hacks for making absolutely unhinged criticisms of the decision.  Public discussion of High Court cases is less interested in the legal dimension of the case, and significantly more with whether or not we–based on utterly nothing–like the outcome.  The Love and Thoms decisions earlier this year are really good examples.  Even people who liked the outcome had absolutely no way of explaining what they liked about the decision (or even what the decision meant), but they were champing at the bit to let loose on right wing critics of the decision (who, similarly, had absolutely no way of explaining what they disliked about the decision, or what the decision meant).  We are locked in a public debate where the people who know the least have the loudest megaphones.

We need legal theorists to lead the public discusison in times like this, or we risk having a public that only trusts and respects the High Court when the High Court coughs up popular outcomes.  The Court has neither purse nor sword; it depends on leaders in the community to help the community to accept unpopular decisions.  The Pell decision is likely to be unpopular, but it’s important for public debate to move into a space where it can say, ‘I dislike the decision.  I think Pell got away with a terrible crime.  I understand why the High Court made the decision that it did.  I can be involved in discussions about how to support survivors of these crimes better.’

2 responses to “Quick Post: Pell decision and legal intuitions”

  1. Hi Mark, this is a great take.

    Now that the full judgment has been released, are you satisfied with the High Court’s approach to legal reasoning (not with the particular outcome, per se)?

    The decision – and the difference between HCA and the VSCA- seems to hinge on the difference between (a) the evidence raises a reasonable doubt, and (b) the evidence is such that a jury ‘must’ have had a reasonable doubt. It looks like the High Court took this test, said the VSCA’s interpretation/application of it was wrong, but then gave no interpretation of its own. Rather, it simply rephrased the test a few times, then said the evidence was such that (b) was satisfied.

    Is it possible that people’s legal intuitions are confused in part because the Court, when confronted with genuine legal ambiguities, often fails to address the substantive logical problem at their core? Instead, it appears to take a semantic approach: it comes up with a certain magical combination of words and claims that the substantive ambiguity is thereby resolved (see, e.g., the “operating and substantial cause” test for causation in criminal law”).

    Do you think that this approach potentially contributes to the public perception that courts are simply applying their personal moral intuitions, while dressing them up in legal rhetoric?

  2. This is interesting re your point about 999 guilty men: Alexander Volokh, “n Guilty Men,” University of Pennsylvania Law Review 146 (1997) 173-216, have you seen?

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