A number of times I have claimed that the two (supposedly) eminent judges who rejected Cardinal Pell’s appeal, (Chief Justice Anne Ferguson and Court of Appeal president Chris Maxwell) seem to know nothing about the rules of reason. They seem not to know that abstractly speaking matters of fact can always be otherwise, that nothing is impossible except a contradiction, that judgements about reliability and trustworthiness are based on the empirical evidence.
Chris Merritt, legal affairs editor at The Australian, commented (18 September) on Cardinal Pell’s appeal to the High Court in which the Cardinal’s lawyers take up the question of reasoning – or rather the failure of reason.
The State’s System of Justice Put on Trial
By Chris Merritt
BRET WALKER SC is an old-fashioned stickler
for precise legal language. That is why his clinical evisceration of the judges
who ruled against George Pell is so effective. Without a skerrick of emotion or
one wasted word. Walker has torn the guts out of the Court of Appeal majority
who rejected the cardinal’s appeal against convictions for sexually assaulting
The special leave application drawn up by
Walker and barrister Ruth Shann leads to an unstated but obvious conclusion:
two of Victoria’s most senior judges utterly botched the cardinal’s case, not
just on the facts but on the law. For the two judges who formed the majority,
Chief Justice Anne Ferguson and Court of Appeal president Chris Maxwell, this
document will make extremely difficult reading. Walker is widely regarded as
one of the nation’s greatest lawyers. Yet his signature appears at the end of a
document that accuses Ferguson and Maxwell of effectively reversing the onus of
proof, engaging in “unorthodox reasoning,” “circular
reasoning” and “erroneous judicial method”.
If the High Court agrees to hear this
appeal, it will need to grapple with those arguments and determine whether the
judicial method demonstrated by Ferguson and Maxwell is actually as flawed as
Walker and Shann believe. The stakes are staggeringly high. This affair now
concerns not just the freedom of a cardinal but the continued public standing
of Victoria’s top judges and the man who might well be the nation’s greatest
If the assessment of Walker and Shann is
accepted by the High Court, it will amount to a crippling blow for Ferguson and
But consider the position of Walker and
Shann. If this appeal fails, they will stand accused by their peers of making
extraordinary assertions – amounting to judicial ineptitude – against the two
most senior judges in Victoria. Whoever loses this argument will forever be
damaged goods. But as things stand now, Walker and Shann have the better
argument. It does look as though the cardinal has been the victim of a shocking
miscarriage of justice.
In order to succeed, Pell’s legal team merely needed to show there was a reasonable doubt about the prosecution’s case. The onus of proof was up to the prosecution; it was not up to the cardinal to prove his innocence. Yet the special leave application asserts that the Court of Appeal majority decided the cardinal’s fate on the improper basis that it was up to the defence to prove that the prosecution case was impossible. If this is what happened – and a conclusive ruling is up to the High Court – it will devastate Victoria’s system of Criminal justice.