The important question is not simply whether the verdict in this case is sound but whether a responsible Public Prosecutor should have brought the charges.
A similar situation arose in Queensland in the prosecution of Joh Bjelke- Petersen for bribery and perjury at the Fitzgerald Inquiry. Just prior to this case the Police Commissioner Terry Lewis was found guilty of receiving corrupt money, based on the evidence of alleged accomplice, indemnified bagman Jack Herbert. It was Lewis’s conviction, in the face of warnings to the jury by the trial judge they should be wary that a guilty verdict would rely entirely on the evidence of an accomplice, that prompted me to action.
About four weeks prior to the announced Sir Joh trial date I decided to have a poll conducted of those of jury age in the Brisbane area from whom potential jurors would be drawn.
The poll was to ascertain the views of those polled, on the guilt or innocence of Sir Joh on a charge of corruptly receiving a political donation. Leading pollsters, Reark Research, AGB Australia and Roy Morgan Research were approached but declined considering the poll controversial. Another firm declined but generously briefed me on how to conduct my own poll. Three young student women were engaged to man the three phone lines available in my office and over 600 persons, chosen at random from a Brisbane phone book, were polled on the two weekends before the trial.
The initial question asked whether the person considered Sir Joh to be Guilty or Not Guilty of corruptly receiving a political donation or was of No View. If the answer was Guilty or Not Guilty the person was asked whether they held this view Very Strongly, Strongly or Moderately. The significant comment of the young pollsters was the vehemence of those declaring Strongly and Very Strongly Guilty. The poll showed that in a jury of twelve the most likely makeup would be Very Strongly Guilty 2, Strongly Guilty 2, Moderately Strongly Guilty 1, No View 5, Moderately Strongly Not Guilty 1, Strongly Not Guilty 1, Very Strongly Not Guilty 0. Variations from this average might be expected in practice.
I sent these results to the Chief Justice, to Peter Beattie, then chairman of the Crime and Misconduct Commission, and to Terry O’Gorman, president of the Civil Liberties Council, arguing that a fair trial was not possible with a Brisbane jury. Later, the Special Prosecutor Douglas Drummond, who had been deputy to Tony Fitzgerald in his inquiry, phoned me checking that I was responsible for the polling. Drummond had been quoted in the newspapers as being reluctant to prosecute Sir Joh because he may not get a fair trial. But he had eventually given in to public hectoring from the Attorney- General, Dean Wells.
The result of Drummond’s phone call was that I agreed to go to his office and present him with the results of the poll. By this time the defence and prosecution barristers were meeting with Justice Holman negotiating the dropping of the bribery charge prior to the start of the trial. Drummond asked me to take the results to the defence, but I declined saying it was his job as prosecutor not to proceed if a fair trial was unlikely. He smiled and said the poll only reinforced his judgement that the prosecution would be successful. At his request I agreed he could take the results to the defence, but it was evident that unless Drummond called the trial off or moved it, it would proceed in Brisbane.
I attended most of the trial and near to its end approached Dick Falconer, an ex-Chief of Staff I knew, at his Courier- Mail office in Bowen Hills telling him of my poll results and asking his comments on an article I intended to submit to his paper if Sir Joh were found guilty.
He was incensed with my article and with the vehemence of some referred to earlier said if I made the poll results public the Courier-Mail would say ‘see, this is proof of his guilt’.
A hung jury was eventually declared but only after the prosecuting barrister Nicholas Cowdrey had named a 20-year old juror as a member of the National party and Joh sympathiser, and requested the trial be aborted. The judge who was almost certainly privy to the poll results declined the request with words to the effect ‘that while some jurors might be predisposed towards Joh’s innocence others would be predisposed towards his guilt and some might hold that view strongly and some very strongly.’
Because of Falconer’s threat and the vileness of the newspapers’ and public comment after the hung jury (10-2) was declared, inflamed by the jury accusations of the prosecutor, I was not prepared to become involved. I did however give a full account in my submission to the Joh Jury Inquiry; another travesty that followed the Joh trial. Immediately after the trial Drummond declined to retry Joh; he was a week away from his reward, appointment as a judge. Had a second Joh trial been ordered Joh like Pell would likely have been convicted. And if the second trial was hung the odds are that a third would have delivered a conviction.
This is the difficulty with trials in which the defendant is a controversial public figure and has been demonised among the population from which the jury is drawn. As far as I can determine the predisposition of a jury for Pell’s case, selected from Melbournians would have been at least as hostile as that for Joh in Brisbane. There would have been a vehement and Very Strongly Guilty element in the jury likely to be immediately at odds with a small reticent Not Guilty element.
In these circumstances, a not guilty verdict is near impossible. A hung jury results when the not guilty element is unshaken as for Joh and the first Pell trial where luck favoured the defendants. However, the prejudice is such that if two or three trials take place the ‘guilty’ element will finally dominate the ‘not guilty’ and a guilty verdict will result.
The answer to this is one for the legal profession. It may be trial before a judge or judges or hearing of the case in a less-poisoned community. Whatever, the maxim ‘that it is better for 10 guilty to go free than for one innocent to be convicted’, should prevail.
Philip Breene was an observer of Queensland’s Fitzgerald Inquiry and its aftermath in which he believed many good people were being jailed unfairly