OPINION
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The jubilation in some quarters, and the dismay and despair in others, when the High Court unanimously ordered a judgment of acquittal of Cardinal George Pell on child sexual abuse charges was entirely predictable, if only because the case has become, in spite of every effort, the symbolic battleground for Catholic Church accountability for such abuse.
To some, whose hopes and prayers were answered this week, George Pell was plainly innocent of allegations of abuse of two choirboys in St Patrick's Cathedral in Melbourne. This was not only because he is a splendid chap, the Australian Catholic cleric who has risen higher, and on merit, in the international Catholic hierarchy than any other. Some would have settled for saying that it was impossible that he could have committed the offences, given what was happening in the cathedral at the time. Others would have affirmed their belief in his innocence based on his personality and what they knew of his character. In the event, some of the mud may stick, so far as those predisposed to believe in his guilt are concerned, but, at law, Pell must be regarded as innocent, and in a manner that can no longer be litigated.
Yet the great satisfaction at what some will regard as Pell's vindication will be tempered by frustration that Pell's opportunities to resume his place in public life, whether in Australia or at the Vatican, are likely to be very limited. There is the prospect, it seems, of endless litigation against him. There is his age, and the fact that he has been replaced at his former post at the Vatican. A papal homily with general remarks about criminal injustices were interpreted as the Pope's expressing great satisfaction with the result, but, even assuming that this was so, it is possible that Pell will still be subject to a church investigation of further allegations against him.
Some of his champions will see this as a form of crucifixion without much possibility of a public resurrection. Even as we now must consider Pell innocent, he is probably too battle-scarred, shop-soiled and out of fashion for rehabilitation in the public square.
This was not a case, as sometimes before appeal courts, of evidence emerging disproving guilt, showing that evidence was wrongly admitted, or wrongly withheld from the jury. Nor was it one in which the court thought the jury was given wrong legal instructions by the trial judge: indeed no one objected to the way the case had been summed up to the jury.
Instead the High Court held that the state of the defence evidence was such that the jury must have, as a matter of law, entertained a doubt about Pell's guilt. The evidence they thought to create such an invincible doubt was the "opportunity evidence" given by witnesses about what almost invariably happened after a solemn High Mass presided over by Pell, and about what happened around the sacristy when the abuse was said to have occurred. This evidence had been largely uncontradicted.
The High Court was willing, for the purpose of the argument, to accept that the evidence of the alleged victim was true and could have been believed by the jury. But the defence had raised an array of facts they alleged showed the offence was impossible or highly improbable. At least three of these had multiplied the individual improbabilities and compounded to the point that the jury must, as opposed to might, have had a reasonable doubt about Pell's guilt.
Two judges on the Victorian Court of Appeal had examined each one of the alleged impossibilities and improbabilities, and concluded that while some had considerable weight, it was, first, still possible to imagine a sequence in which the offence had occurred as the victim described. No defence argument led to a locked door.
The two judges were led to this point by their understanding that the juror obviously had believed the victim's evidence, which had been cogent and not much disturbed by very fierce cross-examination. It was clear indeed, that these two judges believed him.
When an appeal court reviews a conviction, it is not its job to second-guess the jury, or to substitute its view of what the verdict of the jury should have been. Rather its job was to decide whether "on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
The High Court thought that the subjective assessment of the two appeal judges that the victim was a compellingly truthful witness drove their analysis of the consistency and cogency of his evidence. It also affected the assessment of the capacity of the opportunity witnesses to create a reasonable doubt as to his allegations.
"Their Honours reasoned, with respect to largely unchallenged evidence that was inconsistent with those allegations (the 'solid obstacles' to conviction) that notwithstanding each obstacle it remained possible that A's [the alleged victim's] account was correct...
"The function of the court of criminal appeal [in examining whether a verdict is unreasonable] proceeds on the assumption that the evidence of [the alleged victim] was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in the light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt."
Yet, whether it meant to or not, the signal sent out by the High Court was hardly likely to encourage victims of child sexual assault to come forward for justice.
Considering that the jury could not have been satisfied, the High Court granted special leave to appeal, upheld the appeal, and entered instead a verdict of acquittal. Although, strictly, this means no more than that the prosecution failed to prove guilt beyond reasonable doubt, custom and the law treats such a verdict as a finding of innocence. George Pell, of course, vehemently denies the allegations altogether.
There has been no shortage of commentators, including myself, about the case. I was wrong, because I could not see, on the basis of the judgments, which essentially turned on the facts, the High Court would grant special leave to appeal, let alone hear the case. I did not expect that the notoriety of the defendant would give him any special favours. And, in 50 years of studying High Court judgments, and 45 of watching it in action, I had never seen many of its judges much exercised about intervening just because they, personally or collectively, disagreed with a jury verdict. There's a long literature of the courts being unwilling to intervene with suspected miscarriages of justice, on the basis that it is a not a court of general review of findings of fact.
I do not think that Pell got a hearing simply because he was an important person. I suspect, rather, that he got a hearing because of the way the counsel for Pell, two of the finest advocates in Australia, had framed their arguments. Normal folk simply cannot afford such representation, and such quality of argument - and it does, I am afraid, make a difference. For all of that, however, the case made no new law. The court acted because it had become persuaded that an injustice might have been done. Despite the way the judgment was framed, the idea that there were absolute obstacles to conviction was more a matter of opinion than of law.
Prosecution as an obstacle race
Many people who had opinions about Pell's guilt or innocence will retain them despite the High Court's decision. Whether they fall on one side or another, there are several words of caution:
First, very very few people have much first-hand knowledge of how the actual case went. The alleged victim gave his evidence, and was cross-examined, in front of a TV camera in closed court. The jury could observe his demeanour and hear his words, but he was not actually present in court. We know broadly what he alleged - sometimes, because it was quoted by judges or counsel, actually in his own words - but no transcript is available. The trial itself was in closed court, in part because other sexual assault charges against Pell (that have since been dropped) were intended to proceed after this trial, and the judge did not want those cases prejudiced. Pell himself did not give evidence, but the jury saw and heard a video of his being interviewed by police. Few, if any, of the commentators were actually there, even if they were informed by public views expressed by judges or counsel.
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Second, the jury and the trial judge heard all of the excellent points made by those supporting Pell about how the alleged crime was "impossible" or such a concatenation of improbabilities as to be a solid obstacle against conviction, as the High Court unanimously thought. The arguments were first put by defence counsel in his summing up. The trial judge repeated them in the instructions given to the jury. Though one critic has disputed my assessment that the trial judge agreed with the verdict, he plainly did not think that the obstacles were such that "as a matter of law" the jury had to come to a not guilty verdict. In finding Pell guilty, the jury must be assumed to have considered every possible matter raised by defence counsel before concluding that they believed the victim. As the two judges in the court of appeal found, the obstacles may have made it more difficult for Pell to assault the boys, but they did not make it impossible.
Third, it should be noted that all of the arguments suggesting that it was improbable or almost impossible for Pell to have committed the assaults were raised from the beginning. Brett Walker, SC, argued them again on appeal, and they were adopted holus-bolus by Justice Weinberg, the dissentient judge in the court of appeal, and rehearsed, in writing and oral argument, before the High Court. No new arguments were put. The High Court seemed more interested in the supposed errors of the court of appeal, than of the jury or the trial.
Despite what some people have asserted, this case does not establish a new principle requiring corroboration of allegations of sexual assault. That is very important, because it is of the nature of sexual assaults that they are generally in private, without independent witnesses. If the allegation involves abuse of power, as in this case, it is far from uncommon for defendants to have lofty powers of complete denial, witnesses denying the likelihood or possibility of such a defence, and a good many institutional pressures undermining the victim. One has only to look at the record of the Royal Commission into Institutional Responses to Child Sexual Abuse to see accounts of victims being disbelieved by people, including church officials, who should have been on their side. It's a very different question whether this occurred in this case, but if those cases prove anything it is that people of prestige and high reputation can be offenders, and that it is clear that opportunistic predators can be very bold without some people ever noticing.
Yet, whether it meant to or not, the signal sent out by the High Court was hardly likely to encourage victims of child sexual assault to come forward for justice. The accuser was, in many respects, a classic victim, if one of particular courage and coherence. His story was tested over days of cross-examination and not shaken. He was believed by a jury, and by two experienced judges, who saw, heard and read his evidence, as well as exhaustive descriptions of its alleged inadequacy from Robert Richter, probably the best criminal advocate in Australia. But seven judges, who seemed to make a virtue of the fact that they had not seen, or heard, or even closely considered his account, decided to substitute their own verdict, on account of a greater weight they attached to some evidence of ritual and usual practice inside the cathedral. That the reaction of many people, including politicians, to the acquittal was to reaffirm belief in the accounts of victims, and dedication to their getting justice, was very telling. The uncommonly plain language of the judgment (my guess is that the first draft and continuing skeleton came from Patrick Keane) will be much quoted; if rather more to make successful prosecutions in skilfully defended sexual assault cases much more difficult. Even juries might find it difficult to summons much enthusiasm, aware that until the court loses its newfound zeal for interfering in cases where they have a suspicion of a wrong result, their work will be regarded as of little account.
There was repeated emphasis during the case that Pell was to be judged on facts, not on opinions about how he, or the Catholic Church generally, had handled allegations of child sexual assaults by others. Many of his supporters feared that he was at a disadvantage because of the reputational damage he, and other bishops, had received after being accused of covering up abuse, of putting the interests of the church ahead of victims, and, in some cases, of perpetuating abuse by predators by moving them about. The combative Pell style and an apparent want of empathy for victims did not help. Yet Pell was one of the first bishops in the world to establish a tribunal for assessing allegations of abuse and making redress.
Quite apart from that, Pell was a hero to some, and a villain to others, because of where he stood on general matters of church government, and on litmus issues such as the rights of homosexuals, and freedoms inside the church. He was the leading voice of church conservatism and church traditionalism, the representative of Rome in pushing a top-down system of authority. He epitomised clericalism. He also played a full forward role in wider Australian culture wars, and very much on the conservative side. None of this made him more or less likely to be guilty of crimes. But not a few people who were opposed to his public opinions, and somewhat astonished by the way he argued them, not only felt that they "knew him" but that they were entitled to judge him. We cannot accuse the jury of that, but the outrage by critics of the church, or critics of his style over the years, was quite palpable and unlikely to be softened by respect for the High Court as an institution.
That some of those now praising the judges as Daniels come to judgment have been over the years the ones most likely to rail against unelected judges underscores the point that nearly everyone went into this argument with a settled view about George Pell. Few minds changed, and none can yet claim we have seen a dispassionate and disinterested analysis of the facts, as opposed to the marshalling of material favourable to the original opinion.
Pope Francis seemed to compare George's sufferings to Jesus; on this one, my guess is that Jesus was, as usual, on the side of the little guy.
- Jack Waterford is a former editor of The Canberra Times. jwaterfordcanberra@gmail.com