The High Court and Cardinal Pell

I wrote about Cardinal Pell’s trial and his incarceration more than a year ago,
and was then deeply troubled by the whole business. I did not think he had received a fair trial, and probably could not have received one, given the almost visceral fury with which he had been pursued in the media. How could twelve jurors have shut their eyes and ears to what they had seen and heard in the preceding months? Victoria did not have the possibility of a judge-alone trial, which might have produced a fairer outcome. Cardinal Pell appealed, and it took more than 400 days, which he spent in prison and as I understand it in isolation, before the High Court heard the appeal and released its decision.

It quashed the original verdict, saying the verdict was wrong, and that the Court of Appeal of the Supreme Court of Victoria erred in not doing so itself. That Court divided two to one, and the High Court seems to have agreed with the dissenting judge. There have been cries of outrage, and claims that people who have been abused will no longer come forward.

Now the High Court was unanimous in its finding, and it cannot be said, as some have done, that Pell has been freed on a technicality. The decision and its argument are freely available, at Pell v The Queen [2020] HCA 12 (7 April 2020), and I have read the document carefully now three times. It repays such reading. It provides a chronology both of the issues and of the story as it played out from the first trial (in which the jury could not agree), the second trial and its verdict, to the finding of the Court of Appeal, and to the reasoning of the High Court.

I will not go through the whole thing here, but it needs to be said that there was one Complainant, A, who alleged that he and Complainant B, now deceased, were the subject of sexual abuse. Complainant B told his mother that he had not been subject to such abuse, did not go to the police or anyone else, and of course was not present. Complainant A was therefore the sole witness for the prosecution. What was said about Complaint B was therefore hearsay. The jury and the Court of Appeal were impressed with Complainant A, who seemed to them to be a credible witness. The dissenting judge in the Court of Appeal was less impressed.

The High Court has come to the view that, without casting scorn on the lower jurisdictions, there was never enough attention paid to the possibility that an innocent person could be convicted, and that hinged on the notion of “reasonable doubt”. The High Court followed earlier decisions in this domain, one of them being ‘it is evident that there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the required standard of proof”’. The High Court stated that it had the necessary information to enable it to make the judgment that should have been made by the Court of Appeal.

And it went on to do so. The core of its argument was that there was so much uncertainty about where the Cardinal actually was (his master of ceremonies, Monsignor Portelli, was quite clear about this, and was not cross-examined), the nature of the Cardinal’s clothing, the timing of the alleged incidents, the fact that witnesses and Complainant A gave contradictory accounts of procedures and events, and much more of the same, meant that in all the previous trials there should have been ‘reasonable doubt’ as to the Cardinal’s guilt. 

Perhaps more searchingly, the Court of Appeal seemed to have put the onus of proof on to Pell — that is, he and his team had to show that things were impossible rather than highly unlikely. The High Court rejected that approach. As it argued, that Court of Appeal seemed to be setting out to establish that notwithstanding the obstacles from the evidence, it was nonetheless possible that A’s account of things was correct. The High Court said, in effect, that while that might be true it was also reasonably possible that, given the same evidence and conflict, A’s account of things was not correct, and therefore there must be a doubt as the applicant’s guilt. At no time was this possibility canvassed, as it should have been.

The rest of the High Court decision involved a close analysis of the detail, and it is there to support the major finding, which led to the most important outcome, at least for Cardinal Pell: the appellant’s convictions be quashed and judgments of acquittal entered. 

What follows now? Cardinal Pell has moved quickly to a seminary in Sydney, where yesterday a large squad of police arrived. The police put out a statement to say that the group were there to talk with the seminary about security, not about any further allegations of sexual abuse involving Cardinal Pell, one of which refers to incidents alleged to have occurred in the 1970s! I fear that the vendetta against him is not going to go away.

Not being a Victorian, and not having seen much Victorian television or press, I am unable to comment on whether or not there has been some kind of complicity involving the police, the government of Victoria, the media, especially the ABC and The Guardian, and other groups determined to deal with Cardinal Pell and the Catholic Church more generally.

As I said in my earlier essay on this subject, I am not a Catholic or even a Christian of any practising kind, even though I won first prize for Catechism when I was about ten or eleven. But I found the long pursuit of Cardinal Pell creepy. Of course, Melbourne has been the ideological capital of Australia for a long time. It was the home of the DLP, the Communist Party, the lively small magazines, the big protests, and so on.

Perhaps now that he is in Sydney the ageing cleric might be free of some of the abuse. I think it was wildly improbable that he did what he was alleged to have done on these occasions, and the High Court has come down with the correct finding, unanimous, let it be noted.