The most superior Court in Australia, the High Court, has ruled in favour of Cardinal Pell and quashed his convictions for historic child sex offences.
But, what does this actually mean to the greater community?
Many people are very upset by this decision, which is completely understandable as those who are aggrieved by the decision believe that a peodophile has escaped unpunished. This is understandable as George Pell was convicted of heinous crimes against children. He is a clergyman and there have been many clergymen found to have committed these crimes in the past. People do not want child abusers to be free.
The legal system is tasked to take the emotion out of their decision, to look at the facts, as they are presented to them and to make decisions on the evidence presented to them only. The Courts are not allowed to make emotive, or rash decisions, that would serve to appease the community feel. This must be quite difficult for our Judges as they are people who often have families themselves. They are however the best legal minds in our country and take their position to be unbiased, decision makers very seriously.
Ultimately, every person who is charged with a crime is considered innocent until proven guilty. This is the mainstay of our legal system and is very important in maintaining our way of life.
It is an unpopular position however, arguably, the decision of the High Court is the one that should have been made at the end of his trial. This will be explained in more detail later in this article.
Appeal Point
The appeal point is what Cardinal Pell’s legal team were asking the High Court to base their decision on. There was only one and that was:
“…that the verdicts were unreasonable and could not be supported by the evidence.”
At the end of many trials there are no appeal points. That is the evidence has been presented, tested, considered and the decision has been made that the charged person is guilty of the crime.
To appeal a decision of the original Court the legal team need to mount a well-founded argument that the Court (Judge or Jury) have made a mistake on a matter of fact or law. This cannot be mounted on a whim or fancy and must have sound legal basis.
Beyond a Reasonable Doubt
A Court (Judge or Jury) must be satisfied beyond any reasonable doubt that the person charged with the crime has committed that crime. That is, there cannot be any questions left, there can be no ‘what ifs’, prior to the Court being satisfied that there is no doubt at all that the crime was committed as the prosecutor is saying.
Background to Complaint
The complainant first complained to Victorian Police in June 2015 about historical sexual assaults, he said were perpetrated against him and another, by Cardinal George Pell in 1996 and 1997 while he was a choir boy.
The assaults were said to have happened between 1 July 1996 and 28 February 1997. All were said to have happened in St Patrick’s Cathedral in Melbourne, immediately following Sunday solemn Mass, in the Priest’s sanctity and within months of Cardinal Pell being appointed as the Archbishop of Melbourne.
While the complainant was unsure of the exact dates the evidence showed that the dates of the allegations were either 15 or 22 December 1996 and 23 February 1997.
The offences were said to have happened within a ten minute window on each occasion, immediately after mass.
By the time the complaint was made one of the two men had passed away. The second man did not make a complaint against Cardinal Pell prior to his death and in fact told his Mother that he had not been offended against.
The one remaining complainant stated that the acts were perpetrated against he and the second man and this is why we have always heard about two choir boys as the victims of Cardinal Pell.
Procedural History
On 11 December 2018, when Cardinal Pell was originally convicted, it was after his second trial. The first trial ended without the jury being able to reach a unanimous decision. A number of them could not convict, on the evidence. They could not say that the offences had been committed as they had some doubt and therefore, they could not say beyond a reasonable doubt that the offences had been committed.
On 21 August 2019, the Victorian Court of Appeal heard the first appeal. This was before three Judges. Two agreed with the original verdict and one stated that he could not support the original decision because of the doubt raised in the evidence.
On 17 September 2019, an appeal was lodged with the High Court. After some consideration, the matter was heard by the Full Court of the High Court (all of the seven Judges of the High Court). This hearing took place on 11 and 12 March 2020 and found that there was reasonable doubt on the evidence that the original Court had in front of it.
After the first trial has finished no new evidence was presented to the appeal courts. The later decisions have all been made on the same evidence as the original decision.
Why was there doubt?
During the original hearing of the case, Cardinal Pell, introduced evidence of what occurred in the 10 to 15 minutes after Sunday solemn Mass. A number of witnesses gave evidence that:
- there was a procession down the aisle and out of the Cathedral which concluded the Mass;
- immediately after the Sunday solemn Mass procession, Cardinal Pell’s practice was to greet congregants on or near the Cathedral steps;
- there was established and historical Catholic church practice requiring Archbishops (as Cardinal Pell was at the time) to always be accompanied when robed in the Cathedral; and
- there was continuous foot traffic in and out of the priests’ sacristy for ten to 15 minutes after the conclusion of the procession that ended Sunday solemn Mass.
These witnesses were given the name, “opportunity witnesses” and are referred to as that in the decisions of both the High Court and the Court of Appeal decisions.
During the original trial the opportunity witnesses’ evidence of the procession, Cardinal Pell’s usual meet and greet, that he was always accompanied when robed and the foot traffic through the sacristy was not challenged or disproven.
The allegations were very specific. The complainant stated that the incidents happened immediately after Sunday solemn Mass (within 10 minutes of Mass ending), while Cardinal Pell was robed and alone and in the Priest’s Sacristy.
This is why all seven of the High Court Judges determined that it was unreasonable for the jury to decide that the incidents happened, as stated, with no doubt in their minds of it occurring.
While this decision is completely unpalatable to the community it is one that is very important for all Australians. It is a decision that means that if someone is charged with any criminal offence and there is evidence showing that there is doubt over the allegations that the law and justice system will see that and determine that they cannot be convicted.
Rowena Ferrall – Legal Practitioner Director
