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George Pell, Bombshells & Evidence in the Family Court

Yesterday, 7 April 2020, the High Court handed down it’s decision granting Cardinal George Pell’s application for special leave and unanimously acquitting him of his conviction for child sexual abuse, which was previously upheld by the Supreme Court of Victoria.  Most of you will be familiar with this high-profile case and the December 2018 conviction that resulted in George Pell’s sentence of six years imprisonment, with a non-parole period of three years and eight months. 
Following the Supreme Court of Victoria’s decision, Cardinal Pell’s lawyers appealed to the High Court of Australia, arguing that the Appeal Court failed to take proper account of evidence which cast doubt upon his guilt.  On appeal, the High Court stated that the Victorian Court of Appeal judges “failed to engage with the question of whether there remained a reasonable possibility that the offences had not taken place”.  Furthermore, the High Court found that other witnesses’ evidence was “inconsistent with the complainant’s account”. 
In essence, the High Court found that there were flaws and inconsistencies in the evidence provided. As a result, the High Court found that the jury should have had reasonable doubt that the events could have occurred, or did occur, in the manner alleged. 
Generally, a Court will give consideration to two primary factors when reaching a decision:
  • Firstly, the relevant legislation;  and
  • Secondly, the facts presented which are relevant to the matter at hand, how those facts apply to the relevant legislation, and whether or not those facts share common traits with case law.  
The facts and documents which the parties present to a Court, (in other words, their evidence), is the basis upon which Court decisions are made.  However, there are strict rules for what is, and is not, admissible as evidence in Court.  These rules are designed to ensure the proper administration of justice and, especially in criminal matters, avoid wrongful conviction.  
In the Family Court of Western Australia, decisions are made by Judicial Officers, not a jury.  Judicial Officers are aware of the rules of evidence and what evidence may be admissible.  Lawyers often argue about the admissibility of evidence, and the Judicial Officer decides whether or not it is admissible.  This is different to criminal matters before a jury, where the Trial Judge provides direction to the jury about how the evidence is to be considered.  Despite this direction from the Trial Judge, juries may still be swayed by having heard evidence which Judges may find is inadmissible. 
However, given the personal nature of Family Law matters, it may not be possible for the rules of evidence to be applied.  Therefore, the Family Court adopts a more relaxed and flexible approach to the admissibility of evidence.  Judicial Officers utilise broad discretion as to what may or may not be admitted as evidence.  This approach within the Family Court is often confusing and frustrating for parties, practitioners, and those unfamiliar with the Court and the presiding Judicial Officer’s role.  
If you are involved in Family Court proceedings, it can relieve a lot of this frustration and stress if you have a basic understanding of the differences between how the Courts function.  It is worth your while to consult with your lawyer to discuss, understand and agree about how your evidence is best presented to the Court to gain the best result in your case. 
Contact us today to speak with our experienced and skilled Legal Team. 
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Tuesday, 27 October 2020

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