Secrecy the enemy of justice, as the George Pell case proves

The suppression order in this important trial was nothing short of a disgrace.

Illustration: Eric Lobbecke

I had a sense of foreboding when, together with everyone else, I first heard of George Pell’s conviction — on February 26 last year, although the “guilty” verdict had been delivered on December 11, 2018. The trial itself — indeed two trials, because the first jury could not agree — had been held in utter secrecy, unreported because of a suppression order.

I couldn’t quite believe that news of the most significant criminal prosecution in the country had been suppressed at the time it happened and for months afterwards. Secret trials happen only in nasty dictatorships; indeed, in my textbook on media law, I had declared that “a secret trial is not a trial at all”. They are associated with political persecutions and are prone to produce miscarriages of justice.

The “open justice” principle, namely that “every court in the land is open to every subject of the king”, is the most important legacy of English common law and is echoed in every human rights treaty that has ever been devised.

In the 17th century, Oliver Cromwell’s Puritans insisted that proceedings ending in punishment must be open to the approbation of God (the trial of Charles I, unlike that of Anne Boleyn, was watched by thousands and reported by 26 shorthand writers). It fell to philosopher Jeremy Bentham to formulate the rationale, that of accountability: “Publicity is the very soul of justice. It keeps the judge, while trying, under trial.” To this imperative was added an evidential necessity: members of the public would come forward to confound lying witnesses only if they knew they were telling lies.

Then, of course, there is the public interest: justice must be seen to be done. “Open justice” has become a defining characteristic of every democratic society (in marked contrast to the clandestine proceedings in China and military courts in Russia, and the current ludicrous trial in Saudi Arabia of the fall guys for the crown prince’s killing of Jamal Khashoggi).

So why was Cardinal Pell’s trial held in secret? Because of misguided legal protocol devised because lawyers lack faith in juries. The suppression order was imposed, with the consent of Pell’s lawyers, because there were additional charges of indecently assaulting boys at the Ballarat swimming pool in the 1970s, and it was feared that at this second trial the jury would be prejudiced by having heard evidence from the first — about an alleged rape of choirboys at St Patrick’s Cathedral in the 1990s. The obvious solution, to maintain the open justice principle, would have been to hear both sets of charges together. Although they were years apart, they both alleged molestation of powerless young boys. But separate trials were, perhaps unnecessarily, ordered.

The other solution would be to have sufficient faith in the jury at this second trial to expect them to obey a direction to put the evidence about what may have happened at the cathedral out of their minds when deciding whether Pell’s alleged misconduct in the pool had been proved beyond reasonable doubt. But it was assumed — and apparently it’s quite a common assumption in Australian courts — that juries will not obey such directions, and so media reporting of the first trial was banned until the end of the second.

But the second trial never took place. The evidence on which the prosecution wanted to rely was ruled inadmissable after a two-day preliminary hearing in February last year, so the prosecution dropped the charges and the suppression order was lifted. Exactly why this dispositive hearing could not have taken place much earlier, before the first trial, is something only the Victorian justice system can explain. It could have been held at any point before the first trial started, so that a suppression order would never have been possible because there would be no second trial in prospect. Alternatively, the DPP could have dropped the swimming pool charges — more than 40 years old and comparatively less serious — and proceeded with the rape trial, which could then have been fully reported. On appeal, Pell’s lawyers faced the difficulty of overturning a jury verdict. Judges do not like to declare that jurors are irrational because that upsets society’s faith in jury trials (this is ironic because the suppression order was imposed precisely because of the fear that jurors behave irrationally).

The very fact the trial was secret hinders the search for any explanation of the “perverse” verdict, other than the much-published belief that the jurors were prejudiced against the cardinal because of the sins of his church. This may not have been the reason at all, but it is a crime for jurors in Australia to speak out, even to defend themselves (so much for free speech).

One possible reason is that the jury was swayed by the fact that Pell did not go into the witness box and face cross-examination. This right not to self-incriminate (said by Bentham to be the first right that great criminals, should they meet, would choose to protect themselves) has been cut back in Britain and jurors often take a commonsense view that a defendant who fears to face cross-examination has guilt to hide.

However, the trial transcripts are available and will form the basis of a number of books being planned to lament the cardinal’s conviction and to put Victorian police and prosecutors in the dock of history. Transcripts do not make up for the fact that the trial was secret when it happened and that the interested public could not understand it at the time, nor could potential witnesses come forward to disprove — or to prove — Pell’s guilt.

My experience is that jurors sometimes get it wrong — usually by acquitting the guilty, although occasionally by convicting the innocent — and to deal with such occasions we must allow appeals and respect the final decision of the judges. I have no idea — not even an inkling — about whether Pell was guilty. I’ve criticised some of his public activities, notably his campaign against a human rights charter and his “Melbourne Response”, which I condemned as a cover-up in my 2009 book, The Case of the Pope. But personally, I thought him a good sport: we have watched cricket together at Lord’s (the Ashes, when his health was said to have prevented him flying to Australia to front the royal commission) and he accepted my in­vitations to appear on several Hypotheticals, where I once induced him to give mouth-to-mouth resuscitation to a gay man with AIDS. All I can really say of him is that his secret trial was a disgrace and that lawyers (and newspaper editors) have a duty to ensure nothing of the like occurs in our country again, because secrecy is the enemy of justice.

Geoffrey Robertson is the author of Rather His Own Man: In Court with Tyrants, Tarts and Troublemakers (Penguin/Random House, 2018).