Freckelton, Ian --- "Editorial: Appellate litigation in the aftermath of the Pell decision" [2020] PrecedentAULA 24; (2020) 158 Precedent 2

---

APPELLATE LITIGATION IN THE AFTERMATH OF THE PELL DECISION

By Dr Ian Freckelton QC

Appellate litigation is often misunderstood, both in the general community and even within the legal profession. There are stringent prerequisites for a legally viable appeal to establish error at first instance and particular skills are required for the successful conduct of appellate litigation. As David Jackson QC has pointed out, ‘the slate is not clean’ on appeal.^[1] Justice McHugh has gone further, highlighting the need for discernment, focus and restraint: ‘The appeal is not the place to re-fight all the lost battles. Nor is it the place to debate every area which might have some connection with the issues in the appeal. To do so inevitably results in that party’s argument lacking force and coherence.’^[2] Prioritisation of arguments and concentration on what is most likely to find favour with the appellate bench is an important part of the development of an effective forensic strategy.

This issue of Precedent sheds light on the diversity of appeals and a range of constructive strategies that can be deployed in appellate litigation, including in the important domains of the drafting of written submissions and the presentation of oral argument.

Australia has recently had cause to reflect on the role of appellate courts in the context of the High Court’s decision in Pell v The Queen.^[3] Certain issues that arose in this decision were specific to criminal trials, but others have a broader application to appellate litigation generally.

In Pell, the High Court was dealing with a difficult ground of appeal for appellants – whether the jury’s verdict was reasonably open. It ultimately determined that the jury had erred, in that in the particular factual circumstances of the case the jury should have entertained a reasonable doubt as to the guilt of the appellant.

The evidence in respect of the appellant’s guilt came from the evidence of the first complainant and from context evidence, part of which was characterised by the appellant as impossibility evidence or lack of opportunity evidence.

It was apparent that the jury found the first complainant to be a credible and reliable witness. The majority in the Victorian Court of Appeal characterised his evidence as appearing to be ‘entirely authentic’, both in respect of what he said and the way he said it.^[4] However, the High Court unanimously concluded that the evidence as a whole was not capable of excluding a reasonable doubt as to the appellant's guilt.

The conflict between the complainant’s account and the opportunity issue lay in the unchallenged evidence – that an archbishop was not permitted to be unaccompanied from the moment he entered a church, and that a particular altar boy had responsibility for being with the archbishop at all times and would not have left the archbishop alone on the two relevant dates. The evidence was also that the priests’ sacristy after Mass was a ‘hive of activity’. This led the High Court to conclude that in spite of the complainant’s credibility, the jury, acting rationally, should have entertained a doubt as to the appellant’s guilt and thus, making full allowance for the advantages enjoyed by the jury, there was a significant possibility that an innocent person had been convicted. A similar conclusion was reached with respect to the second incident that was the subject of the appeal.

The High Court judgment highlights a challenge that faces an appellant in both criminal and civil proceedings where it is contended that a first instance decision was not reasonably open to a judge or a jury. In Pell, there was a fundamental inconsistency between the credibility of the first complainant and the opportunity evidence, which meant that a reasonable doubt had to exist. The Pell decision is a salutary reminder that rigorous and close analysis of the facts and the evidence can result in a decision at first instance being exposed as flawed if contradictory elements are irretrievably irreconcilable. There is no substitute for such painstaking analysis.

Dr Ian Freckelton QC practises from 16th Floor Castan Chambers in Melbourne and is on Foley’s List. His practice is appellate, trial and advisory. He is the author of Expert Evidence: Law, Practice, Procedure and Advocacy (6^th edn, Thomson Reuters, 2019). EMAIL [e-mail].

---

^[1] DF Jackson, ‘Appellate Advocacy’, Australian Bar Review, Vol. 8, 1992, 245.

^[2] M McHugh, ‘Preparing and arguing an appeal’, Bar News, Winter 2010, 85.

^[3] [2020] HCA 12.

^[4] Pell v The Queen [2019] VSCA 186, [94].