Whenever the criminal justice system is able to resume empanelling new juries, the High Court has given potential jurors a new reason for being excused from their duty: that they are wasting their time.

Cardinal George Pell is released from Barwon Prison on Tuesday after the High Court quashed his conviction. Credit:Jason South

For the best part of 800 years, juries have had a single function in criminal trials that higher courts could not meddle in. The jury was the finder of fact. In Australian law, this began to change in the 1994 case of M v The Queen, when the High Court said an appeal court could ask "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". Victoria’s Criminal Procedure Act gave statutory back-up to this evolution of the courts’ role in 2009.

In the trial in which George Pell was found guilty, only 12 people saw and heard the 50-plus witnesses questioned, and only those 12 people were qualified to say whether or not Pell committed crimes. All of those 12 decided, beyond reasonable doubt, that he did. And yet their months of service, and their first-hand experience, has been overturned by the High Court not for reasons of law, but because the seven justices would have come to a different conclusion. Those jurors are entitled to ask what, then, was the point of the original trial?

For centuries since the Magna Carta, appeal courts used not to judge facts. They judged judges, ruling on legal errors. Did the trial judge allow the jury to hear ineligible witnesses? Did the trial judge misdirect the jury? These are the matters for a higher court to rule on as a tribunal of law, not fact. Appeal courts have never been designed to hear cases again and pretend to be jurors themselves.