The Pell Verdict

Cardinal George Pell walked free from prison yesterday following the High Court of Australia’s decision to grant special leave for him to appeal his convictions for sexual offences against children, allow his appeal, and quash his convictions.

Pell was sentenced last year to six years imprisonment with a non-parole period of three years and eight months after being found guilty by a jury of one count of sexual penetration of a child under 16 and four counts of committing an indecent act with, or in the presence of, a child. The offences were alleged to have occurred in the 1990s while Pell was the archbishop of Melbourne.

Pell maintained his innocence throughout the court process. He spent over 400 days in custody before being released yesterday.

Some are arguing that the High Court’s decision will undermine public confidence in the jury system and even the justice system as a whole. Ultimately, the decision highlights how difficult it is to successfully prosecute historical child sexual offences due to the lack of corroborating evidence in many of these cases and the high standard of proof in criminal cases.

The Appeals Process

Pell was found guilty of the charges in the County Court of Victoria in 2018. He then pursued appeals in the Victorian Court of Appeal and the High Court.

Victorian Court of Appeal

Pell unsuccessfully appealed the verdicts in the Victorian Court of Appeal in 2019.

Leave is required to appeal a conviction in the Court of Appeal and there are limited grounds for an appeal. Pell’s counsel argued three grounds of appeal. Two of these related to the conduct of the trial. Leave to appeal was unanimously refused on those grounds.

Leave to appeal was granted on the ground that the verdicts were unreasonable and could not be supported by the evidence. Pell’s lawyers argued that based on all of the evidence, it was not open to the jury to be satisfied of his guilt beyond reasonable doubt on the complainant’s evidence alone.

However, the appeal on this ground was dismissed by a 2-1 majority.

High Court of Australia

Pell applied for special leave to appeal to the High Court, with the judgment being handed down yesterday.

It is very difficult to gain special leave to appeal to the High Court. Strict criteria apply and the Court has wide discretion to refuse leave to appeal. The criteria include whether the case involves a question of law that is of public importance or requires differences of opinion between different courts about the law to be resolved, and whether the interests of justice require the High Court to consider the case.

Pell’s lawyers applied for special leave to appeal on two grounds. Firstly, that the Court of Appeal majority made a mistake by finding that their belief in the complainant’s testimony required Pell’s lawyers to establish that the offending was “impossible” in order to raise a reasonable doubt. Secondly, that the Court of Appeal majority made a mistake by concluding that the verdicts were not unreasonable as there was a reasonable doubt about whether Pell had the opportunity to be able to commit the offences.

The seven High Court Justices unanimously granted special leave, allowed the appeal, and quashed Pell’s convictions.

Reasonable Doubt

The key issue raised in these appeals was whether the jury’s guilty verdicts were unreasonable because there was insufficient evidence to prove Pell’s guilt beyond a reasonable doubt.

In criminal cases, the prosecution must always provide enough evidence to prove a defendant’s guilt beyond a reasonable doubt. This is a high standard of proof. If a jury has any reasonable doubt that the defendant committed the offence, it should not find them guilty.

The prosecution had relied on the credibility and reliability of the testimony given by the complainant to convince the jury of Pell’s guilt. This was the only direct evidence of his guilt.

The defence relied on evidence from “opportunity witnesses” – people who testified that Pell could not have had the opportunity to commit the offences because he usually stood on the steps of the cathedral after mass to greet people, he was never by himself when he was robed, and there was a “hive of activity” near the location of the alleged offences after mass.

The Court of Appeal majority accepted the evidence of the complainant and found that it was sufficient to prove Pell’s guilt beyond a reasonable doubt. They found that no witness could say with certainty that the routines described by the opportunity witnesses were never departed from.

In contrast, while the High Court did not find the complainant to be dishonest or unreliable, it did decide that the evidence of the opportunity witnesses meant that the jury should have had a reasonable doubt that Pell was guilty. The evidence of the complainant alone was not enough to find Pell guilty when weighed against the evidence given by the opportunity witnesses of Pell’s practices and activities.

The High Court’s decision underscores how difficult it is to prove historical child sexual offences beyond a reasonable doubt when there is little evidence to corroborate the complainant’s testimony.

The Jury System

The High Court’s decision has also raised questions about the place of juries in the justice system and drawn accusations that it will undermine public confidence in the justice system.

A jury consisting of a dozen of Pell’s peers had heard all of the evidence and deliberated for about five days before finding him guilty. In most cases, this is the end of the story.

Juries are regarded as having the skills to reach a proper verdict and are considered to be an important feature of the justice system. Because juries are seen as fundamental to the value and reliability of the justice system, judges are often reluctant to overturn their verdicts.

The High Court’s decision in this case reminds us that, despite the high regard that juries are held in, their decisions are not immune from scrutiny. They sometimes make mistakes. Regardless of individual opinions on this decision, it is important that there is a check on the power of juries.

Brooke Winter Solicitors

8 April 2020