The failure of Victoria’s Court of Appeal – Cardinal Pell

In a previous comment, I wondered what motivated Victoria’s Court of Appeal judges, Anne Ferguson and Chris Maxwell, to reject Cardinal Pell’s appeal. I watched the delivery of the verdict. I was stunned to the point of feeling faint. I could not believe what I was hearing from the smug mouth of Ferguson with her superior ‘Karen’ airs. I asked whether it was incompetence, ideology or spinelessness that was the motivation. Damon Johnston’s article below on the appalling record of the Appeal Court under Maxwell suggests incompetence was the problem.


Victoria’s Court of Appeal savaged in landmark legal study

JULY 23, 2020 The Australian


Victoria’s Court of Appeal has been rocked by a landmark legal study finding that 18 criminal judgments under its president, judge Chris Maxwell, have been overturned by the High Court.

The report, by Victoria’s former chief crown prosecutor Gavin Silbert QC, concluded that during Justice Maxwell’s reign the court had “cast off its near-perfect record”.

“The first 10 years of the Court of Appeal in its criminal jurisdiction saw its judgments affirmed on 10 occasions and reversed twice by the High Court,” Mr Silbert writes in his report, published in the Australian Law Journal.

“The next 14 years (under Justice Maxwell) have seen the Court of Appeal’s judgments reversed 16 times and affirmed on six occasions, with a large number of its decisions criticised, particularly in … sentencing.”

The Silbert report delivers a major blow to the credibility of Victoria’s highest court, already reeling from April’s damning unanimous High Court ruling that quashed Cardinal George Pell’s child-sex convictions and freed him from jail.

It finds the “Maxwell court” was overturned 16 times, and analyses each of those cases.

It notes a further two cases were overturned after the report was completed, including the case of Cardinal Pell, bringing the number of High Court rejections to 18.

The Silbert report covered the first 24 years of the Court of Appeal and contrasts the Maxwell court in unfavourable terms with the court under the decade-long rule of judge John Winneke from June 1995.

“The first 10 years of the court (under Justice Winneke) are notable on two counts; first, the relatively few grants of special leave by the High Court and, second, the fact that only two decisions of the Court of Appeal were reversed,” Mr Silbert finds.

“The next 14 years (under Justice Maxwell) are notable for an increase in the applications for special leave to appeal and the number of judgments reversed on appeal.”

The cases analysed in the study are all criminal matters covering a range of sex crimes, murder, theft, drug-trafficking and dangerous driving offences.

The report suggests that under Justice Maxwell the Court of Appeal’s reputation, particularly on sentencing issues, has been compromised.

“Between 2006 and June 2019 there were 216 applications for special leave to appeal to the High Court from the Victorian Court of Appeal, of which 37 were granted,” Mr Silbert writes.

“In that period, Victoria rose from the lowest number of grants of special leave among the mainland states to second only behind NSW, on 65.

“Further, the Victorian Court of Appeal cast off its near-perfect record for being upheld and was reversed 16 times, behind NSW, which was reversed 32 times and well in front of Queensland and South Australia, which were each reversed 12 times, and Western Australia, which was reversed seven times.”

Justice Maxwell declined to comment.

The Silbert report is a second blow to the Victorian Court of Appeal’s legal standing, and follows the High Court’s demolition of its decision to uphold the guilt of Cardinal Pell on child sex-abuse charges.

In freeing the cardinal, the High Court found it was “evident that there is a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.

Mr Silbert’s report focuses much attention on the Court of Appeal’s record on sentencing for serious criminal offences.

“The Maxwell court embarked on a series of decisions which had wide-ranging effects, particularly in the field of sentencing. The court was overruled by the High Court on an increased number of occasions,” he writes.

Mr Silbert notes that the Maxwell court approved a practice whereby the crown prosecutor was obliged to provide a judge with a range within which it was submitted that a sentence should be imposed.

“The expressed rationale was to promote consistency of sentencing and reduce the risk of appealable error,” he writes, going on to blast this as a “fallacy”.

“For the following six years, sentencing in Victoria proceeded as an auction, with the crown offering a range, the defence offering a lesser range and the sentencing judge splitting the difference between the two, effectively sandbagging the sentence from appeal by either party.”

Mr Silbert notes that this practice was subsequently overruled by the High Court.

In the case of Cardinal Pell, the Court of Appeal suffered a major blow to its legal reputation.

The High Court was critical of the manner in which the VCA, including Justice Maxwell, ruled in its majority verdict, arguing that there was doubt around the convictions but that only judge Mark Weinberg had dissented.