OPEN JUSTICE, 'BACK-TO-BACK' TRIALS AND JUROR PREJUDICE: EXAMINING THE SUPPRESSION ORDER IN THE TRIAL OF GEORGE PELL.

• Date: 01 April 2022
• Author: Bosland, Jason
• Published date: 01 April 2022
• Author: Bosland, Jason

Contents I Introduction II Departing from Open Justice and the Reasons for the Order in Pell A The Open Justice Principle and Suppression to Avoid Juror Prejudice B Chief Judge Kidd's Reasons for the Order in Pell III The Right to a Fair Trial and the Faith Placed in Jurors A The General Position B Suppression Orders and the Capacity of Jurors to Disregard Prejudicial Material C Juror Robustness and the Suppression of Prior Convictions IV The Order in Pell and Compliance with the Strict Approach A Did Kidd CJ Follow the Strict Approach in Granting the Order in Pell? B The 'Reasonableness' of the Order in Pell Based on Analogous Cases V Conclusion I Introduction

On 11 December 2018, Cardinal George Pell was found guilty by a jury in the County Court of Victoria of committing a series of historical child sex offences against two choirboys in St Patrick's Cathedral in 1996 and 1997. (1) The reaction to the verdict was deeply divided. While the case was a turning point in the long-running battle to obtain justice for victims of institutional child sex abuse, (2) some argued that the trial was profoundly unfair and that the evidentiary basis of the prosecution's case was so improbable as to make the jury's verdict unsafe. (3) As it transpired, the latter claim had legal merit. On 7 April 2020, the High Court of Australia overturned the guilty verdict on the basis that no jury, acting reasonably, could have found Pell guilty based on the evidence presented at trial. (4) However, it was not only the guilty verdict that proved to be contentious: so too was the fact that a wide-ranging suppression order had prevented the Australian media from reporting on Pell's trial until several months after the verdict had been handed down.

The suppression order was put in place by Kidd CJ upon the application of the Director of Public Prosecutions. (5) It was granted due to the risk that media publicity of the allegations, evidence and outcome in the trial, which became known as the 'cathedral trial', (6) would cause prejudice to a separate trial on similar charges that Pell was set to face shortly after the conclusion of the trial. (7) The charges in the second trial, known as the 'swimmers trial, (8) related to allegations that Pell had indecently assaulted two boys at a swimming pool in Ballarat in the 1970s and the concern was that, unless a suppression order was granted, jurors in the second trial would be improperly influenced by any knowledge they might obtain about the first trial, particularly knowledge of a guilty verdict. (9) The suppression order that was granted was effectively in the form of a blanket ban: it prevented publication anywhere in Australia of 'any report of the whole or any part of' the proceedings, (10) and of 'any information derived from' the proceedings, (11) including the evidence, the verdict, the number of complainants, the precise nature of the charges, the fact of multiple trials, and even the fact that a suppression order was in place. (12) However, publication was permitted of the bare fact that Pell was 'facing prosecution for historical child sexual offences in the County Court of Victoria'. (13) As it turned out, the swimmers trial was discontinued by the prosecution on 26 February 2019 after Kidd CJ ruled that crucial evidence in the case was inadmissible. (14) The discontinuance of the swimmers trial meant that the risk of prejudice arising from the media's reporting of the cathedral trial no longer existed and the suppression order was immediately lifted. (15)

The flurry of media and legal commentary that followed the revelation of the suppression order in Director of Public Prosecutions (Vic) v Pell (Suppression Order) ('Pell') (16) was largely confined to two broad themes. The first theme focused on the supposed futility of the order. From the outset, it was evident that there would be significant international media interest in the case due to Pell's high profile and the global controversy surrounding the Catholic Church's response to allegations of child sexual abuse within its ranks. (17) It was predicted that even if local media entities complied with the order, foreign media organisations without a presence in Australia would be likely to defy its terms and publish reports of the case online and, in doing so, would make information about the cathedral trial readily accessible in Australia. (18) As anticipated, shortly after the jury reached its decision in the first trial but long before the suppression order was revoked, news of Pell's guilt began to appear in media reports online. (19) While some foreign mainstream outlets, such as The New York Times, complied with the order in their online editions, (20) others did not, including The Washington Post, (21) The Daily Beast, (22) the New York Post (23) and Fox News. (24) Of course, once the news of the guilty verdict had been disclosed on such internationally popular sites, it was only a matter of time before it began to trend heavily on social media sites accessible within Australia. (25) Publication of the verdict by mainstream media outlets outside of the Court's jurisdiction and on social media subsequently prompted questions about the limited effectiveness of suppression orders in the digital media environment. (26) Some even went as far as to suggest that the borderless nature of the internet had rendered suppression orders completely pointless as a means of controlling prejudicial publicity and called for them to be jettisoned outright. (27)

The second theme focused on the impact of the suppression order on the widespread and resounding public interest in the trial. Commentators variously claimed that the embargo infringed the public's legitimate interest in knowing about the case, (28) was an affront to freedom of the press, (29) and had the potential to undermine public confidence in the administration of justice. (30) Importantly, these concerns were sometimes expressed in terms of the legal principle of open justice (31)--the longstanding principle that 'justice should not only be done, but should manifestly and undoubtedly be seen to be done'. (32) Some intimated that the significance of the case meant that Pell's right to a fair trial should not have taken precedence over the public's interest in open justice and their 'right to know'. (33) Others suggested that a suppression order was not the only mechanism available to protect Pell's right to a fair trial. (34) The latter view was expressed most forcefully by Arthur Moses SC, then President of the Law Council of Australia, who said that any potential prejudice to Pell could have been negated by appropriate instructions to the jury in the second trial to disregard their knowledge of the first trial. (35) He was quoted as saying that, on this basis, he would not have made the order if he had been the presiding judge and that, while he believed that Kidd CJ acted in good faith, 'other judges would [have] come to a different view'. (36) It is obvious from these comments that Moses considered that the suppression order made by Kidd CJ was not necessary to ensure the fairness of Pell's second trial.

Moses' claim raises the question of whether the order in Pell was properly made according to law. This is because, as explained in this article, the power relied upon by Kidd CJ to grant the suppression order can only be exercised in circumstances of strict necessity. Thus, leaving aside the vexed issue of the futility of suppression orders in the digital age, the purpose of the present article is to consider the lawfulness of the suppression order in Pell in light of Moses' claim that directions to the jury would have been sufficient to protect Pell's right to a fair trial. It proceeds as follows. Part II begins by briefly describing the principle of open justice and the power that courts have to grant suppression orders where an accused's right to a fair trial might otherwise be placed at risk. It also describes the reasons provided by Kidd CJ for granting the order in Pell. In response to Moses' claim regarding the efficacy of jury directions, Part III examines the level of confidence that is required by the law to be placed in the capacity of jurors to follow judicial directions to ignore adverse pre-trial reporting in deciding an accused's guilt or innocence. In the context of a decision to grant a suppression order, it is argued that judges must proceed on the strong assumption, well established in the law, that jurors are robust and can ordinarily disregard any prejudicial knowledge that they may possess. The case law indicates that this includes the assumption that jurors can ordinarily disregard knowledge of a guilty verdict arising from recent proceedings involving an accused, and that such an assumption will only be displaced, and a suppression order granted, in exceptional circumstances. Finally, in light of the principles and authorities discussed in Part III, Part IV considers whether Kidd CJ placed sufficient confidence in the capacity of jurors to disregard knowledge of Pell's first trial. It also considers, irrespective of the precise reasoning adopted by Kidd CJ, whether the ultimate decision to grant the order was reasonably open on the facts of Pell by examining decisions made by other judges to grant suppression orders in analogous circumstances--that is, where an accused is facing multiple, 'back-to-back' trials. While the available case law is extremely limited, it suggests that Kidd CJ's decision to grant the order in Pell was undoubtedly within the scope of what was reasonable in the circumstances.

II Departing from Open Justice and the Reasons for the Order in Pell

A The Open Justice Principle and Suppression to Avoid Juror Prejudice

In order to understand the legal significance of the suppression order in Pell and the precise issues raised by Moses, it is necessary to commence with a brief discussion of the principle of open justice...