CHRIS GERAGHTY. The Pell Decision.

Apr 9, 2020

Finally the George Pell dilemma has been put to rest by the illustrious High Court of Australia. Or has it?

A unanimous team of Justices have at last decided that the members of the jury who had unanimously found the Cardinal guilty of all charges were not thinking straight, or reasonably.

The jury team had been thoroughly and properly instructed by the chief judge of the County Court in Victoria that having heard and carefully considered all the evidence, if they were to entertain a reasonable doubt as to the prelate’s guilt, they were duty-bound to enter verdicts of NOT GUILTY.

They had been summoned off the Melbourne streets, sat for weeks in secret listening to the evidence, presumably paid attention as the judge delivered his solemn instructions to them, spent a few days going through the evidence they had heard in court and discussed it among themselves in the jury room, back and forth, over and over again, only to conclude in the end that not one of them had a reasonable doubt that Pell was guilty as charged.

All twelve of those chosen out of the barrel to become George’s judges of the facts agreed that the evidence demonstrated beyond reasonable doubt that the accused was GUILTY as charged.

Well, these were the lay contingent of judges, the ordinary street-wise men and women of Melbourne, about whom an elite team of lawyers were later to reveal that they had been thinking unreasonably when they found George guilty, and that they had not done their job properly – even though the law would tell them that what constituted “reasonable doubt” was so obvious to everyone, to the man and woman on the tram and in the factory, that the meaning of the term did not need, and should not be given, any further explanation or amplification. It was not a term of art. No mystery to it. Plan and obvious. No judge worth his salt should ever try to explain the concept to a jury, even if he was asked by a member of the jury.

Then a team of seven elite lawyers gathered to scrutinize the evidence which the 12-member jury had heard and seen, and after two long days of discussion in public (and who knows how many hours of private sifting), and without knowing anything of the discussions and disagreements which had occurred in the jury room or anything about the individual members of the jury (only that all 12 had agreed on the findings of GUILTY), all seven agreed as one that the jury finding had been wrong, that all the jury members, if they had been doing their job properly, should have had a reasonable doubt about the guilt of the accused, and that when they had all agreed on their verdicts, they had all been thinking “unreasonably”.

Though in the end, they did not have a reasonable doubt, they should have had one. According to the Justices of the High Court, the evidence they had heard and discussed should have led these 12 people off the street to entertain a reasonable doubt. They had condemned a man whom the law presumed to be innocent until proven beyond reasonable doubt – and at least to them, the doyens of the Law, the proof had not reached the proper high standard. The system of trial by jury had failed. Sometimes the wisdom of the professional elite trumps the nous and good judgment of the hoi polloi.

Now, where does this whole painful and expensive process leave Pell – and the complainant whose evidence the jury and the Victorian Court of Appeal had found to be credible and reliable, perhaps even compelling. Where does it leave Pell’s friends and supporters, and the complainant’s family, and the public at large?

Some want it said that justice has been done, or that the Cardinal has been proven innocent, that Truth has prevailed in the end.

Certainly, a form of justice has been done. The charges have progressed through the system of justice in Australia, and Pell has come out the other end with a finding that the evidence did not support, beyond reasonable doubt, the verdicts of guilt and therefore, on the law as it stands in this country at least, Pell can enjoy the presumption of innocence until his guilt is proven.

But it is still only a presumption. It is not a declaration that the prelate did not do to the altar-boys what was alleged by the complainant. Witness J’s reliable, credible, eye-witness evidence still stands – the allegations are still out there, denied by Cardinal George (but not under oath at the hearing), and counterbalanced in the scales of our justice by the“opportunity” evidence.

We’re back where we started so many years ago. Nothing has been proven beyond reasonable doubt. The Cardinal has not been proven to be innocent – or guilty. We still don’t know where the Truth lies. It has not been proven that he did not do what is alleged by the complainant. He goes free because the Crown could not prove to the satisfaction of the members of the High Court (only to the members of the jury and the majority of the three justices of the Victorian Court of Appeal) that the members of the jury were thinking straight when they decided on the evidence that they entertained no reasonable doubt and that George was guilty.

There has been no finding of Truth – in fact, no finding at all. No finding of innocence – or any satisfactory, reasonable finding of guilt. No finding that the Cardinal did not commit the crimes alleged. All we can now say is that there is a reasonable doubt as to his guilt. Maybe he’s not guilty. He has said he’s not.

Circumstances show that there is a real probability that he’s not guilty. But nothing is certain. The doubt as to his guilt, and therefore as to his innocence, remains. The complainant has said that the Cardinal assaulted him and his mate, but (though his evidence was credible and reliable), he may be wrong. After all this time, all we’re left with is a serious allegation, reasonable doubt and the presumption of innocence.

If I were George, I would not be happy. And now, in addition, he faces the redacted findings of the Royal Commission and a series of civil claims against him by alleged victims claiming piles of damages.

The civil proceedings may prove even more painful and damaging since in the civil jurisdiction there is no presumption of innocence, no right to silence and the onus of proof for the allegations is less burdensome – not beyond reasonable doubt, but on the balance of probabilities.

The civil contest is more even. Party against party. The Cardinal will presumably be a party to the proceedings and will need to give his version of the facts and submit himself to cross-examination. That might prove to be compelling theatre. If I am any judge, the road ahead for this senior cleric may be full of hazards and pitfalls.

Chris Geraghty, former priest and District Court judge now living in retirement – and author of a recent publication, Virgins and Jezebels – the Origins of Christian Mysogyny.

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