Hi Michael Some months ago you accepted a comment from me, Manning, on the Pell matter. I think I posted it on a Friday (or Thursday). There was a lot then going on then(like now!), so it wasn't long before the article (the topic of which I don't recall) was overtaken by others. However with the High Court hearing starting tomorrow, I wonder if it is worth you posting it again in its own right, maybe under the heading:
Overreach in Pell jury direction?
Is the legislation which led to Pell's conviction unconstitutional?
A judge giving proper directions to a jury in a criminal trial is a fundamental principle of justice.
Common law directions have been built up over centuries in the UK and Australia. This carefully crafted body of wisdom and experience was ever mindful of "the golden thread" - the horror of a civilisation which could send an innocent person to prison without due process.
In the various States and Territories, judges have "bibles" (updated as required) . These contain model directions, guidance notes and details of specific cases which deal with specific matters to make the tricky procedure easier for the judge.
The Pell case was before the Chief Judge of the County Court. He is highly experienced.
So what could go wrong?
The problem is that the Victorian Parliament has thrown itself into the matter of judges' directions. Historically, the courts have always known the dangers of easily made accusations of sexual offences. But in recent years the presumption of innocence has been eroded by "victims' rights". And the Victorian Parliament is not your typical Parliament (if such a thing can exist). It is dominated by unreconstructed Marxists determined to show their virtue signalling on every cause du jour. It enacted the following.
Section 164(4) of the Evidence Act provides that "if there is a jury in a criminal proceeding, the judge must not –
a. Warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or
b. Direct the jury regarding the absence of corroboration.
In other words, the judge may not express a truism which might not have occurred to the jury.
How can one test the legislative limits on statutory prohibitions on judges' directions? One way is to use the traditional philosophical device of reductio ad absurdum ie push it to its limits. So, for example, if the Victorian Parliament enacted an amendment to its Jury Directions Act so that judges could give no directions whatsoever in criminal trials, then one could be fairly confident that this would be unconstitutional. Quite apart from general principles of constitutional law, there would be a raft of UN type human rights issues which jurists might be attracted to. And, remarkably, there is a Victorian Act titled Charter of Human Rights and Responsibilities Act 2006 (usually called "The Charter") which contains "a right to a fair hearing". My understanding is that, to date, no case has been before the courts as to whether statutory control of a judge's directions can amount to a breach of a fair trial.
It may be the case that Parliament's overreach on jury directions has gone too far. In my opinion, it has. This is because it prohibits a judge from saying something - which is no more than common sense - at the end of a trial involving serious charges and the prospect of long imprisonment.
This argument was not presented to the Victorian Court of Appeal, so it is not strictly an appellable point. But the High Court can sometimes motivate itself when it smells injustice.
This is a vexed and technical area. Anyone doubting this can wade through the extremely long Law Reform Commission reports which have issued in recent years in all our eastern seaboard States (and many other jurisdictions) on the topic of jury directions. If the issue is so vexed and if Australia's leading criminal law judge (Mark Weinberg in the Victorian Court of Appeal) thinks the jury decision in Pell was unsafe, then we are presently looking at an obscene miscarriage of justice.