The Cardinal Pell High Court Appeal

Cardinal George Pell has successfully overturned his convictions for sexual abuse at his High Court appeal.

The Australian High Court found that Cardinal Pell should never have been convicted on the basis of the evidence that was placed before the jury at his trial.

On 11 December 2018, following a trial by jury in the County Court of Victoria, the applicant, who was Archbishop of Melbourne at the time of the alleged offending, was convicted of one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years.

The successful appeal, of course, adds to the controversy that the prosecution and conviction in themselves created. There are those who are convinced that Pell was and is innocent and has spent unjustly a year in prison, and there are those who remain convinced of his guilt.

In this podcast we look at the issues and what the successful appeal may mean for future investigations and prosecutions?

We need to understand why the appeal was successful.

The Pell case in many ways was no different to many a prosecution in the UK and Australia where the allegations are far from recent. It is commonplace for victims- survivors of sexual abuse to come forward many years after the assaults were committed. This invariably brings challenges for any investigation and prosecution or, indeed, a civil claim.

The case has to be proved to a very high standard. In the criminal case beyond a reasonable doubt, and in the civil sphere on the balance of probability.

The complainants have to be reliable. To put it simply they need to know what they are talking about, and in our experience they usually do. Sometimes that is enough, but not always and particularly so where the allegations are disputed as in the Pell case. Therefore the lawyers bringing the case are looking for reliable corroboration that is evidence that backs the complainants’ accounts. This can be difficult because sexual abuse frequently occurs behind close doors, but there may be other victims who can give similar fact evidence, or there may be a history of complaints.

In the Cardinal Pell case, there were plenty of witnesses but as the High Court has pointed out in its judgment their evidence undermined the prosecution not supported it. Their evidence pointed to the lack of opportunity and potentially the impossibility of the offence being committed. Consequently, the jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to Pell’s guilt with respect to each of the offences for which he was convicted.

There is an argument that that cases such as this should be tried by judge alone but that does not stand up to scrutiny. If the High Court is correct in allowing the appeal then it has demonstrated that a series of judges got it wrong. To put it crudely they ignored the weight of the evidence that pointed to a verdict of “not guilty”. If the judges get it wrong don’t blame the jurors.

Juries weigh-up the evidence and are directed by the judge as to the law. The judge when summing-up will remind the jury that if he/she has misdirected them then it's not their fault. Juries are reminded that if there is doubt they must acquit, but they are dependent on the evidence before them and the judge’s directions.

The successful appeal highlights the challenges in bringing a prosecution or a civil case. The evidential burden is tough to discharge because, if there are flaws in the evidence, the case runs the risk of ultimately failing.

It cannot be ignored that the sight of Pell gaining his freedom may well discourage victims coming forward. Further, it may encourage those institutions who face allegations of child sexual abuse to fight the cases when, perhaps, they should not.

The High Court judgment needs to be considered objectively because regardless of whether you agree with it, there are clearly lessons to be learned and they all revolve around in ensuring that the evidence stacks-up. That is a constructive lesson that needs to be understood by all those concerned with these cases whether advising, defending or prosecuting.