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:
- How did a case which turns on its facts end up being granted a full hearing in the High Court of Australia?
- Was the High Court’s criticism of the majority in the Court of Appeal justified?
- What effect will the decision have on past and future appeals arguing that convictions were “unsafe and unsatisfactory”?
- What effect will the decision have on Courts of Appeal viewing video-recorded evidence?
- 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. 
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) 
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.
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) 
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.” 
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) 
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:
- there is a believable (credible and reliable) accuser; and,
- 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. 
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
 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.  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.
 Pell v The Queen  HCA 12 at  ” the Court of Appeal majority’s findings ought to have led to the appeal being allowed”
 Pell v The Queen  VSCA 186 at 
 Pell v The Queen  VSCA 186 at 
 Pell v The Queen  VSCA 186 at 
 Pell v The Queen  HCA 12 at -
 Woolmington v DPP  AC 462;  UKHL 1 per Viscount Sankey LC