Opinion: Pell, Baden-Clay cases highlight state courts’ failure

If it was left to the highest courts in Queensland and Victoria, the outcomes of two highly controversial cases would be very different, writes Peter Gleeson.

GERARD Baden-Clay is a wife murderer and Cardinal George Pell is not a sexual predator. Don’t take my word for it. That’s what the most senior judges in Australia, those of the High Court, have ruled.

In his Easter message, Cardinal George Pell asks ‘why did this happen to me?’

Baden-Clay disciplined for “assaulting” prison officer

Chardon tells how Baden-Clay could have got off

Yet if it was left to the highest courts in Queensland and Victoria, the results of these highly controversial cases would be very different.

Baden-Clay would be in jail for manslaughter, not murder, and would likely be a free man anytime soon.

Pell would remain in jail, with at least another three years to serve, after enduring 405 days of incarceration before the High Court ruling.

In both cases, the High Court emphatically overturned decisions that had been made by the states’ highest court, the Court of Appeal.

Today, the question quite rightly needs to be asked – do we need an appeal process within state judicial systems when the highest courts in Queensland and Victoria have spectacularly faltered on Baden-Clay and Pell?

If the seven most senior judges in the country could unanimously and unequivocally rule that Pell was wrongly convicted, how could Victoria’s two most senior judges in the Court of Appeal be so wildly out of step with the High Court ruling?

In the Baden-Clay case, the Court of Appeal downgraded his charge to manslaughter, claiming that the evidence at trial was not able to exclude a reasonable hypothesis that “there was a physical confrontation between (Baden-Clay) and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm’’.

This was despite Baden-Clay never admitting to knowing what actually happened to his wife, and a jury declaring him guilty of murder.

Gerard Baden-Clay

Cardinal George Pell

The High Court rejected the Court of Appeal ruling, which at that time included now Queensland Chief Justice Catherine Holmes, saying it had taken a “piecemeal’’ approach to the evidence.

Similarly, the High Court provided a unanimous 7-0 verdict on Pell.

It was the dissenting judge on the Victorian Court of Appeal, Justice Mark Weinberg, who provided Pell’s lawyers with the template for his High Court appeal.

The rulings of the other Court of Appeal judges, Anne Ferguson and Chris Maxwell, were wholly rejected. Ferguson and Maxwell come from the civil jurisdiction, Weinberg is an experienced criminal judge.

Is it the case that the Court of Appeal system is broken, or simply that civil judges should not be adjudicating on criminal appeals?

Is it not so much a matter of whether the appeal system is failing victims and defendants, as whether the decision-making is a product of those who are in these roles?

Would you send a brain surgeon in to operate on a bloke with a dodgy knee? Probably not. Would we send our top sports reporter to cover the banking royal commission? Unlikely.

Whatever the reason, the appeal system at state level needs an urgent overhaul. That much is clear.

And as for Victorian Premier Dan Andrews, who is working tirelessly and doing a great job on containing coronavirus, his comment that he believes every single victim of child abuse is admirable.

But people get things wrong. Even politicians. That is why we have a legal system, including the High Court. To protect the innocent.