On 7 April 2020 the High Court of Australia unanimously allowed Cardinal George Pell's appeal against his convictions for 5 charges of sexual assault after two trials and an unsuccessful appeal to the Full Court of the Victorian Court of Appeal.
It is useful to consider the process against the background of football. As an example, to put this in perspective, consider the following:
- The Plaintiff brings action in the District Court in a civil action and obtains judgement against the Defendant. [Score: Plaintiff – 1, Defendant – 0]
- Defendant appeals to the Supreme Court. The appeal is heard before a single judge. The appeal is dismissed. [Score: Plaintiff – 1, Defendant – 0]
- Defendant then appeals to the full Court of the Court of Appeal, where his appeal is successful by a 2-1 majority. [Score: Plaintiff – 1, Defendant – 2]
Notwithstanding that 3 judicial officers have determined that the Plaintiff's claim was preferable to that of the Defendant, the Defendant is successful despite losing overall 3-2.
How then did Cardinal Pell fare?
There were two separate sets of allegations against Cardinal Pell. The first involved allegations by two former choir boys that he sexually abused them at St Patricks Cathedral in 1996 and 1997 whilst he was Archbishop of Melbourne. The second batch of charges related to allegations that Cardinal Pell molested boys at the Ballarat swimming pool in the 1970's, when he was a priest there.
All charges were pursued by the prosecution and a committal hearing commenced in the Victorian Magistrates Court on 29 March 2018. On 1 May 2018, Magistrate Belinda Wallington delivered her decision ordering Cardinal Pell to stand trial over multiple sexual offences, although many of the charges before the magistrate were in fact dismissed. The charges were to be split into two trials which were known as "the Cathedral trial" and "the Swimming Pool trial". Score at this stage: Prosecution 1, Pell – 0
On 15 August 2018, the Cathedral Trial began. A jury of 14 was selected and empaneled.
The jury retired to deliberate on 13 September 2018 and was unable to reach a verdict. On 20 September 2018, a mistrial was declared. I will call the score this round a draw at 7 all.
A second trial began on 7 November 2018. On 6 December 2018 the jury retired to deliberate. The jury in this case returned a unanimous verdict of guilty on all 5 charges after 4 days of deliberation. Score in this round: Prosecution 14, Pell 0.
On 26 February 2019, the Swimming Pool charges were dropped due to a lack of evidence. One of the complainants had died in January 2018.
On 13 March 2019, Cardinal Pell was sentenced to 6 years imprisonment with a non-parole period set of 3 years & 8 months.
Cardinal Pell appealed and the appeal was heard on 5-6 June 2019. This was before the Appellate Division of the Supreme Court of Victoria comprised of 3 judges.
There was a single ground of appeal namely that the "verdicts were unreasonable and could not be supported by the evidence".
The appeal was dismissed 2 to 1. Ferguson CJ and Maxwell P concluded the jury were not compelled to entertain a doubt as to the appellants guilt. Weinberg JA, dissenting, concluded that a jury acting reasonably ought to have had a reasonable doubt as to the appellants guilt.
Score for this round: Prosecution 2, Pell 1.
On 12 March 2020, Cardinal Pell was granted special leave to appeal to the High Court of Australia by Gordon and Edelman JJ. The matter was referred to the full court for argument on an appeal and heard over 12 and 12 March 2020.
In a unanimous judgement delivered 7 April the High Court found that there was a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof.
By then Cardinal Pell had spent 400 days in prison. He walked out a free man.
As Gordon and Edelman JJ joined Kiefel CJ and Bell, Gagelon, Keane & Nettle JJ for the hearing I don't give any points to the Cardinal for being successful in the special leave application.
Accordingly I call the score for that round: Prosecution 0, Pell 7.
So what was the final score?
Leaving out the mistrial on the basis that it can't be certain what the jury numbers were on either side, there were 16 persons including 2 senior judicial officers found the Cardinal guilty beyond reasonable doubt with one satisfied, at least, on the balance of probabilities, that there was a case to answer. On the other hand, 8 judicial officers in total were not convinced beyond a reasonable doubt of the Cardinal's guilt.
The range is therefore 24-15 against Cardinal Pell including the mistrial (at 7 all) and 17-8 against him if you exclude the mistrial completely.
The 7 High Court judges had little difficulty in acquitting Cardinal Pell of all 5 charges.
Considering the public interest in the outcome there was very little comment expressed in the media or on social media at the time about this. The public seemed to have accepted that the High Court knew what it was doing and got it right.
As lawyers, two of the tenets of our collective faith in the legal system are trust in the jury system and a belief that the appeal courts exist to correct the errors made by the lower courts and that the senior judicial officers occupying those positions have the wisdom and experience to do that.
Even if the High Court had been split 4-3 in favour of acquittal that would have been sufficient to carry the day however it was far from that and in fact constituted a unanimous rejection of everything that had been accepted by jury in the trial court and the majority of the senior judicial officers comprising the Victorian Court of Appeal. The more interesting question perhaps is how so many got it wrong. The answer to that, it seems, will forever remain a quandary and leaves open a more fundamental question perhaps about the continuing role of a jury trial in the criminal justice system.
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