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George Pell and the Golden Thread: What the High Court’s decision means (and does not mean) for the future of the criminal law

The decision to free Cardinal George Pell turned on one central question: How to reconcile a believable accuser with other evidence suggesting the Cardinal had no opportunity to commit the offences?

In this post I will discuss some aspects of the decision, including:

  1. How did a case which turns on its facts end up being granted a full hearing in the High Court of Australia?
  2. Was the High Court’s criticism of the majority in the Court of Appeal justified?
  3. What effect will the decision have on past and future appeals arguing that convictions were “unsafe and unsatisfactory”?
  4. What effect will the decision have on Courts of Appeal viewing video-recorded evidence?
  5. Why some of the discussion of the case in the news media is nonsense.

A Case About the Facts

An extraordinary feature of the case is the willingness of the High Court to delve into the detail of a factual dispute. The High Court of Australia has said, many times, that it is not a court of criminal appeal. If your complaint is that the jury got it wrong, that the evidence failed to prove the crime beyond reasonable doubt, then the High Court will always tell you to go away. [1]

The High Court’s attitude to factual disputes has been clearly stated:

“It has been repeatedly affirmed by this Court that it is not a court of criminal appeal and that it will not grant special leave to appeal in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice… It would not be in accordance with that practice to grant special leave …. where this Court is merely being asked to substitute for the view taken by the Court of Criminal Appeal a different view of the evidence…..” (my emphasis) [2]

How then did Cardinal Pell manage to have a case about the facts decided in the High Court? He framed his argument as an appeal against the process of reasoning, so that the error he claimed was made in the first appeal could be framed as an error of law.

The two judges who refused his first appeal had: (a) believed the accuser, and (b) decided that it was possible Cardinal Pell had the opportunity. That is, the evidence about the Cardinal waiting on the steps of the cathedral, and never being left alone, was not conclusive. It was possible that the Cardinal could have been alone in the sacristy with two choir boys. It was open to the jury, said the two judges, if they believed the accuser, to also find that on this occasion the usual rules and procedures of the ceremony were not followed, and that the Cardinal had been alone when he found the boys.

The mistake made by the two judges, said Cardinal Pell, was that they focussed on whether it was “possible” the Cardinal was left alone. They should have instead asked the question, “Must the jury have had a reasonable doubt about the opportunity?”

The seven judges of the High Court agreed with Cardinal Pell’s argument. The error of law in the first appeal was the test applied to the opportunity evidence. If the two judges found that it was merely “possible” the Cardinal had the opportunity, then it followed there must have been a reasonable doubt about whether he did have the opportunity.[3]

Was the High Court Correct?

For what it is worth, my view from the trenches of criminal practice, is that the High Court’s analysis is artificial. To understand why, it is necessary to read the decision of the two judges in the first appeal. The first ground of appeal, upheld by the High Court, was that the two judges:

“erred by finding that their belief in [the accuser] required [Pell] to establish that the offending was impossible in order to raise and leave a doubt.”

It is true that, in one paragraph, the two judges suggested that impossibility was part of their process of reasoning:

“An argument of impossibility, if supported by the evidence, is effectively unanswerable. As we have said, the onus of proof required the prosecution to defeat that argument. It was both necessary and sufficient for that purpose to persuade the jury that the events were not impossible and that there was a realistic opportunity for the offending to occur.” (my emphasis) [4]

That paragraph was addressed to the argument of impossibility raised by the Cardinal at his trial and on the first appeal. The paragraph is qualified by the words “for that purpose”; that is, for the purpose of defeating the argument of impossibility.

Other parts of the reasons given by the two judges show that they approached the ultimate decision by asking whether the jury must have held a reasonable doubt. In particular, in the part considering whether the Cardinal could have been robed, and alone with two boys in the sacristy, the two judges said:

” The jury were entitled to come to the view, based on the totality of the evidence, that not only was it possible that Cardinal Pell was alone and robed (in seeming contravention of centuries-old church law) but the evidence did not raise a reasonable doubt in their minds about his guilt.” [5]

The two judges also said:

” The Crown case was not based on mere possibility. As the judge instructed the jury, mere possibility ‘is clearly not enough’. On the contrary, the prosecution argued that the account given by A was so obviously truthful that the jury could be satisfied, beyond reasonable doubt, that the events had occurred as he described them. A’s evidence was said to provide a sure foundation for guilty verdicts.” (my emphasis) [6]

Reading the complete reasons of the two judges has persuaded me that they are not guilty of the error of which they are accused by the High Court. They did not require Cardinal Pell to establish the impossibility of his presence in the sacristy. They found that the jury could decide, looking at the whole of the evidence, including the accuser’s evidence, that the Cardinal was in the room and did abuse the boys.

That is not to say that I agree with the two judges about whether there was a reasonable doubt. Nor is it to say that I disagree with the seven judges of the High Court about their findings of fact. Where I disagree with the High Court is on the threshold question. I say that the High Court mis-characterised the reasoning of the two judges in order to turn what was an ordinary debate about facts and evidence into a question of law which could be decided by the High Court.

The General Effect of the Decision on Other Cases

The High Court made no change to how a court of criminal appeal should decide arguments on the “unsafe and unsatisfactory” ground. The decision in Cardinal Pell’s case will make little difference to other people convicted of criminal offences. There may be a few cases where the reasoning becomes important to an appeal, but they will only be cases where:

  1. there is a believable (credible and reliable) accuser; and,
  2. there is other, independent evidence, to suggest that the accused person did not have the opportunity to commit the offence.

There may be some past appeal cases where the decision can be characterised in the same way as the Cardinal’s first appeal- where the judges found it was “sufficient” that there be a possibility of offending, despite strong exculpatory evidence.

The Viewing of Video Recordings by Appeal Courts

One area where the Pell decision will change practices is in the viewing of video evidence by appeal courts. The High Court has positively discouraged it. Courts of Appeal should not routinely watch the video-recorded evidence of witnesses. That should only be done in exceptional cases for identified reasons. The judges should not watch the video evidence in order to form their own view of a witness’ credibility or reliability. Assessments of credibility and reliability remain the job of the jury. [7]

Discussion of the Case in the News Media

The Conversation published an article by Professor Ben Mathews and Mark Thomas entitled, “How George Pell won in the High Court on a legal technicality”. The headline is quite wrong. The standard of proof, beyond reasonable doubt, is not a technicality. There is nothing new, or even unusual, about a conviction being overturned because an appeal court holds a doubt about guilt.

“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.” R v M
[1994] HCA 63; (1994) 181 CLR 487 at 494.

The requirement for proof of guilt, beyond reasonable doubt, has been long described as the “golden thread” of the English legal tradition. [8] If a Court decides that the offence was not proved, that decision can hardly be described as a technicality. It is the very opposite. The decision was ultimately about the fundamental issue at the heart of the trial. Although I identify a “technical” issue of procedure, about how the High Court accepted a case of this nature as suitable for a grant special leave, the decision was ultimately one about the substance of the case. Those who would characterise it as a guilty man escaping on a technicality are not only wrong, but misleading the public about the process which was followed.

Vice-Chancellor of the Australian Catholic University, Greg Craven, told the ABC that ” The biggest problem that [the accuser] had he was in a case that was never going to go through to, from his point of view, a successful ending. The reason that case was prosecuted, the reason that case went as far as it was, was precisely because of the media fracas that I have been talking about. “

This is nonsense. It is very common after an acquittal for supporters of the accused to claim the case should never have been brought to court, and was doomed to fail. However, even Professor Craven accepts that the accuser was “highly credible” and “there is no reason to believe that he did not believe he was telling the truth.” There was a public interest in prosecuting the case, and the verdict and the decision of the majority of the Court of Appeal, demonstrate that there was a reasonable prospect of a conviction.

It is also common for the media to report a jury verdict as establishing the facts. No room for doubt is left in most reports of a conviction. The Cardinal’s supporters complain that he was reported to be “a convicted paedophile”. If that was unfair, then it is an unfairness suffered daily by people convicted after trials.

An attempt by Margaret Simons to weigh the competing arguments how journalists should have reported allegations of crimes committed by the the Cardinal was published by The Guardian. It is one of the better recent articles discussing the story of the story.

Hetty Johnson in the Courier-Mail wrote a piece headed, “George Pell release sets precedent in keeping child abuse offenders out of jail: The message from the High Court today is that there is a new normal, and that the voices of child sexual assault victims are overwhelmingly inconsequential.” Everything about the headline, and nearly everything in the article is simply wrong. Ms Johnson made no effort to explain or grapple with the court’s reasons. She wrote:

” The message from the High Court is that there is a new norm. The voices of child sexual assault victims are inconsequential, except possibly where they are accompanied by an offender’s clear admission – or perhaps if someone independent, someone who was not also a victim or family member, sees it and is alive to testify or – if it is clearly captured on video. Logically, in any other scenario, there will always be doubt … the victims’ word against their offender.”

None of that accurately reflects the High Court’s judgement. The reasonable doubt arose because there was independent evidence which tended to contradict the accuser. That is rarely the case. The Pell decision will have no impact at all on the typical “word against word” trial.

Ms Johnson finished with a plea for reform of the Evidence Acts, without any detail of what reform she wants, or any explanation of what difference that would have made to the Pell case.

Hetty Johnson has been around the criminal courts for a long time. It is difficult to believe she is really as ignorant of the law as this article suggests. What it smacks of is a deliberate attempt to generate outrage, the facts be damned. Is this the work of a serious reform activist, or a populist with political ambitions?

Ms Johnson’s inflammatory and counter-productive post might be contrasted with the dignified, measured statement issued by the Cardinal’s anonymous accuser. It read, in part:

“There are a lot of checks and balances in the criminal justice system and the appeal process is one of them. I respect that. It is difficult in child sexual abuse matters to satisfy a criminal court that the offending has occurred beyond the shadow of a doubt. It is a very high standard to meet — a heavy burden. I understand why criminal cases must be proven beyond all reasonable doubt. No-one wants to live in a society where people can be imprisoned without due and proper process. This is a basic civil liberty. But the price we pay for weighting the system in favour of the accused is that many sexual offences against children go unpunished. That’s why it remains important that everyone who can report to the police does so.”

An otherwise thoughtful and informative article in The Guardian by Peter O’Brien contained this alarming claim:

“it is also a reality that there are hundreds of prisoners in Australia convicted on the uncorroborated evidence of complainants, where there was an open possibility of innocence that was rejected by the jury. The only reason they are languishing there, and Pell is no longer, is because they do not have the funds nor fame to appeal to the high court in the manner Pell did. And in those rare cases where they are able to attempt it, they are extremely unlikely to be granted special leave to appeal.”

A misleading impression is created by the suggestion that money and fame were “the only” reason Cardinal Pell succeeded where so many others fail. There will be few (probably not hundreds) of cases where the defence could point to such strong evidence that the accused had no opportunity to commit the offence.


[1] Bataillard v. The King [1907] HCA 17; (1907) 4 CLR 1282, at p 1289; Collis v. Smith [1909] HCA 53; (1909) 9 CLR 490, at p 495; Liberato v. The Queen [1985] HCA 66; (1985) 159 CLR 507

[2] Liberato v. The Queen [1985] HCA 66; (1985) 159 CLR 507 at 509. See also Raspor v The Queen [1958] HCA 30; (1958) 99 CLR 346 at 349-350

[3] Pell v The Queen [2020] HCA 12 at [10] ” the Court of Appeal majority’s findings ought to have led to the appeal being allowed”

[4] Pell v The Queen [2019] VSCA 186 at [151]

[5] Pell v The Queen [2019] VSCA 186 at [291]

[6] Pell v The Queen [2019] VSCA 186 at [149]

[7] Pell v The Queen [2020] HCA 12 at [36]-[38]

[8] Woolmington v DPP [1935] AC 462; [1935] UKHL 1 per Viscount Sankey LC



6 Comments

6 thoughts on “George Pell and the Golden Thread: What the High Court’s decision means (and does not mean) for the future of the criminal law
  1. 20.04.2021
    Ken Mackenzie
    Thanks for your article which comes out in favour of Pell. Unlike a long list of lawyers who have spoken against Pell, some even after the High Court decision.

    I recognise that the High Court is not infallible (it found against Chamberlain, who languished in jail until the matineed jacket was found in the bush), But I have never believed there was an iota of truth in the accuser’s story. I have not been a churchgoer for 55 years, and am not a Pell supporter in the sense that I have no alignment with what church figures say.

    A.
    Your own statement is: [ There may be some past appeal cases where the decision can be characterised in the same way as the Cardinal’s first appeal- where the judges found it was “sufficient” that there be a possibility of offending, despite strong exculpatory evidence].

    In your own words: [The first ground of appeal, upheld by the High Court, was that the two judges:
    “erred by finding that their belief in [the accuser] required [Pell] to establish that the offending was impossible in order to raise and leave a doubt.”]

    Your own words show precisely that the first ground of appeal was correct, and is demonstrated by your own paraphrase of what the first appeal judges said.

    B.You say [They did not require Cardinal Pell to establish the impossibility of his presence in the sacristy. They found that the jury could decide, looking at the whole of the evidence, including the accuser’s evidence, that the Cardinal was in the room and did abuse the boys].

    I take this to be saying that Pell has to prove that he was not in the room, in order be cleared by the first Appeal Court. What else could it be saying if it does not say this?

    C. The High Court did not need to look at the video evidence. I don’t understand how they could be restrained from looking at such evidence if they wished do. I do not understand how they could advise a lower appeal to not look at video. Unless thisi is simply advice that one is not obliged to follow.

    Isn’t it in fact nonsense for the first Appeal Court say that they looked at “the whole of the evidence”, if they did not view (not only some of the video – which they did not do) but the whole of the video.
    How could an appeal court be restrained in its right to make any enquiries it wishes to, including looking at video, and for example making its own enquiries into the background of the accuser?
    It may be that “justice” (perhaps in inverted commas) would be unaffordable in terms of time and even money, if appeal courts were being forced to make such wider enquires, and this would explain why a ruling to not look at video would be made. However I do not see how such a ruling could be binding on a lower court judge.

    D. You say: [Although I identify a “technical” issue of procedure, about how the High Court accepted a case of this nature as suitable for a grant special leave, the decision was ultimately one about the substance of the case.]
    You seem to suggesting here that the High Court should not have taken the case. If not, what else could you be suggesting?

    E. You mention the dignified statement by the accuser. It is of course, ghost written by his lawyers – just as I assume his original evidence has been manufactured. There are psychologists who (for payment of course) will encourage you to fantasise (for years) about imagined sexual abuse in order to “recover memories”. I got a free download of a book on this from internet. Link supplied on request.

    Kind regards,
    Richard Mullins
    portal1943@gmail.com
    twitter @telfercronos

    1. There are a few factual inaccuraccies in your comment.

      Firstly, I said nothing for or against Cardinal Pell, and I express no opinion as to whether he sexually assaulted the boys.

      The point about appeal courts viewing the video evidence is interesting. All 3 judges in the Victorian Court of Appeal watched the video evidence given by the accuser, as well as videos of some other witnesses. The judges also visited the Cathedral to see the scene for themselves (paragraphs [31] and [32] and [1036]). The High Court suggested that this is a practice which should not usually be followed.

      I tend to agree with you that an Appeal Court should usually watch video evidence where it is available. It will not always be necessary. Watching all of it will not always be necessary to resolve the issues raised in the appeal.

      In your section B, you wrote:
      “I take this to be saying that Pell has to prove that he was not in the room, in order be cleared by the first Appeal Court. What else could it be saying if it does not say this?”
      That is not at all what it meant. The jury’s job was to look at all of the evidence and decide if they were satisfied beyond reasonable doubt that the Cardinal assaulted the boys. They decided that they were. The job of the Court of Appeal was to decide whether the jury could reach that conclusion on the evidence. Two judges decided that they could, if the jury believed the accuser and it was otherwise possible for the Cardinal to have been in the room. No-one put a burden on the Cardinal to prove that he could not have been in the room. However, if he had proved that he could not have been there, that would be a complete answer to the charge. But it does not follow that if he tried and failed to prove the impossibility that he would be found guilty, or that he would lose the appeal. For the reasons I gave in the post, I say the High Court mischaracterised the reasons of the two judges in the Court below.

      I cannot discern a logical point from your section A. Re-stating the ground of appeal does not prove it was correct. But perhaps that was your lead-in to section B.

      Your question in section D is interesting. It seems to me that the Cardinal was given a High Court hearing on the facts. Most people are not. The principles were stretched to fit him in and, if I am right that the reasoning of the two judges below was misconstrued, then it was wrongly done by the High Court.

  2. I’m not sure if your account is “jesuitical hair splitting”, or simply mumbo jumbo.

    You are disadvantaged in the debate because you may not be allowed, by legal convention, to attack the prosecutors or judges. I am not a lawyer and feel no such restrictions.

    You have not published my last post (or a reply to it from you).
    I am happy to continue the debate iwith you f this will help

    Kind regards,
    Richard Mullins

  3. 25.4.2021
    Ken Mackenzie
    Your own blog post said “There may be some past cases where the decision can be characterised in the same way as the Cardinal’s first appeal – where the judges found it was “sufficient” that there be a possibility of offending, despite strong exculpatory evidence”.
    I look again at your blog post.
    You give no reference for your claim that there may be some past cases. (I do not have the resources to search for such cases without a reference).
    Have I misunderstood something? (It is easy for me to make mistakes).
    It is such an extraordinary claim. Without evidence, why would we accept that such cases exist, let alone that they were judged correctly). It looks to me like evidence from a witch trial, where Jean Bodin, the medieval witch hunter, said that we not be able to convict witches if we used normal rules of evidence).

    Kind regards
    Richard Mullins

    1. You are correct that it is supposition that other cases involve a similar issue. However, there are reasons to suppose the Pell case was not unique. Defendants in sexual cases frequently try to argue that there is something inherently impossible about the allegation – often to do with the sexual positions described, or the fact that there were other people in close proximity. The defence in Pell’s case was very close to being an alibi defence. A court confronted by alibi evidence will often have to weigh strong evidence that the accused committed the offence against alibi evidence which may be powerful, but still leaves open the possibility that the offender could have been at the scene. My point was not that similar cases have been correctly decided, if there have been such cases. My point was that the reasoning in the Pell case will have a very limited effect upon the conduct of other criminal trials. That is because the issue raised is comparatively rare.

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