JACK WATERORD. A free and innocent Pell, but not a martyr to any causeApr 14, 2020
The jubilation in some quarters, and the dismay and despair in others when the High Court unanimously ordered a judgment of acquittal of Cardinal George Pell on child sexual abuse charges was entirely predictable, if only because the case has become, in spite of every effort, the symbolic battleground for Catholic Church accountability for such abuse.
To some, whose hopes and prayers were answered this week, George Pell was plainly innocent of allegations of abuse of two choirboys in St Patrick’s Cathedral in Melbourne. This was not only because he is a splendid chap, the Australian Catholic cleric who has risen higher, and on merit, in the international Catholic hierarchy than any other. Some would have settled for saying that it was impossible that he could have committed the offences, given what was happening in the cathedral at the time. Others would have affirmed their belief in his innocence based on his personality and what they knew of his character. In the event, some of the muds may stick, so far as those predisposed to believe in his guilt are concerned, but, at law, Pell must be regarded as innocent, and in a manner that can no longer be litigated.
Yet the great satisfaction at what some will regard as Pell’s vindication will be tempered by frustration that Pell’s opportunities to resume his place in public life, whether in Australia or at the Vatican, are likely to be very limited. There is the prospect, it seems of endless litigation, civil, and perhaps criminal, of further allegations against him – each involving alleged assaults on boys, some with striking allegations in common. There is his age, the fact that he has been replaced at his former post at the Vatican. A papal homily with general remarks about criminal injustices were interpreted as the Pope’s expressing great satisfaction with the result, but, even assuming that this was so, it is possible that Pell will still be subject to a church investigation of further allegation against him.
Some of his champions will see this as a form of crucifixion without much possibility of a public resurrection. Even as we now must consider Pell innocent of the only charges against him yet litigated to finality, he is probably too battle-scarred, shop-soiled and out of fashion for rehabilitation in the public square.
This was not a case, as sometimes before appeal courts, of evidence emerging disproving guilt, showing that evidence was wrongly admitted, or wrongly withheld from the jury. Nor was it one in which the court thought the jury was given wrong legal instructions by the trial judge: indeed no-one objected to the way the case had been summed up to the jury.
Instead, the High Court held that the state of the defence evidence was such that the jury must have, as a matter of law, entertained a doubt about Pell’s guilt. The evidence they thought to create such an invincible doubt was the “opportunity evidence”, given by witnesses about what almost invariably happened after a solemn High Mass presided over by Pell, and about what happened around the sacristy when the abuse was said to have occurred. This evidence had been largely uncontradicted.
The High Court was willing, for the purpose of the argument, to accept that the evidence of the alleged victim was true and could have been believed by the jury. But the defence had raised an array of facts they alleged showed the offence was impossible or highly improbable. At least three of these had multiplied the individual improbabilities and compounded to the point that the jury must, as opposed to might, have had a reasonable doubt about Pell’s guilt.
Two judges on the Victorian Court of Appeal had examined each one of the alleged impossibilities and improbabilities, and concluded that while some had considerable weight, it was, first, still possible to imagine a sequence in which the offence had occurred as the victim described. No defence argument led to a locked door.
The two judges were led to this point by their understanding that the juror obviously had believed the victim’s evidence, which had been cogent and not much disturbed by very fierce cross-examination. It was clear indeed, that these two judges believed him.
When an appeal court reviews a conviction, it is not its job to second-guess the jury, or to substitute its view of what the verdict of the jury should have been. Rather its job was to decide whether “on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.’’
The High Court thought that the subjective assessment of the two appeal judges that the victim was a compellingly truthful witness drove their analysis of the consistency and cogency of his evidence. It also affected the assessment of the capacity of the opportunity witnesses to create a reasonable doubt as to his allegations.
“Their Honours reasoned, with respect to largely unchallenged evidence that was inconsistent with those allegations (the ‘solid obstacles’ to conviction) that notwithstanding each obstacle it remained possible that A’s [the alleged victim’s] account was correct…
“The function of the court of criminal appeal [in examining whether a verdict is unreasonable” proceeds on the assumption that the evidence of [the alleged victim] was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.
Considering that the jury could not have been satisfied, the High Court granted special leave to appeal, upheld the appeal, and entered instead a verdict of acquittal. Although, strictly, this means no more than that the prosecution failed to prove guilt beyond reasonable doubt, custom and the law treats such a verdict as a finding of innocence. George Pell, of course, vehemently denies the allegations altogether.
There has been no shortage of commentators, including myself, about the case. I was wrong, because I could not see, on the basis of the judgments, which essentially turned on the facts, the High Court would grant special leave to appeal, let alone hear the case. I did not expect that the notoriety of the defendant would give him any special favours. And, in 50 years of studying High Court judgments, and 45 of watching it in action, I had never seen many of its judges much exercised about intervening just because they, personally or collectively, disagreed with a jury verdict. There’s a long literature of the court’s being unwilling to intervene with suspected miscarriages of justice, on the basis that it is a not a court of general review of findings of fact.
I do not think that Pell got a hearing simply because he was an important person. I suspect, rather that he got a hearing because of the way counsel for Pell, two of the finest advocates in Australia, had framed their arguments. Normal folk simply cannot afford such representation, and such quality of argument – and it does, I am afraid, make a difference. For all of that, however, the case made no new law. The court acted because it had become persuaded that an injustice might have been done. Despite the way the judgment was framed, the idea that there were absolute obstacles to conviction was more a matter of opinion than of law.
Jack Waterford is a former Editor of The Canberra Times