There is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof.” With these words, Australia’s Chief Justice Susan Kiefel finished the summary of the decision of the High Court of Australia quashing Cardinal Pell’s conviction on two counts of child sexual abuse.
The decision of the High Court, Pell v The Queen  HCA 12 (7 April 2020), was a unanimous decision by the seven most senior judges in Australia. Their words should make it clear that the cardinal was not acquitted on the basis of some minor legal quirk, but on fundamental principles of law. In Australia, as in Britain, a defendant does not have to prove that they are innocent; a person is “innocent until they are proven guilty”. In every trial juries are told that the prosecution bring the charge and must prove it “beyond reasonable doubt”. In this case, the High Court was clear that on the basis of the evidence there was a “reasonable doubt”.
On December 11 2018, following a trial by jury, Cardinal Pell was convicted of five charges of sexual abuse involving two choirboys in Melbourne Cathedral on two occasions in 1996 and 1997, when he was Archbishop of Melbourne. The alleged assaults were claimed to have occurred in the cathedral sacristy after High Mass said by then Archbishop Pell, when he was on his own and still robed for High Mass.
The prosecution case had two unusual aspects. One of the choirboys, prior to his death, had told his parents that he had never been abused. The prosecution case depended entirely on the evidence of one ex-choirboy referred to in Court as “A”. There was absolutely no other supporting or corroborating evidence whatsoever.
There was however clear defence evidence that the assaults could not have happened. Much of it was given by Mgr Portelli, the cathedral’s master of ceremonies, who helped to establish that:
(i) Cardinal Pell invariably engaged in a “meet and greet’ with the congregation on or near the cathedral steps after Sunday High Mass;
(ii) Established and historical Church practice required an archbishop always to be accompanied when robed in the Cathedral; and
(iii) There was always continuous traffic in and out of the priests’ sacristy for 10 to 15 minutes after the conclusion of the procession that ended Sunday Mass.
It was significant that the prosecution never suggested that Mgr Portelli or the other cathedral staff were lying in their evidence. The prosecution case was more subtle: just because that something was the “usual practice”, that did not mean it always occurred. The prosecution case, as summarised by the High Court, was that the totality of the evidence left “a realistic possibility that the offending … had occurred.”
As the High Court said, this “analysis failed to engage with whether, against this body of evidence, it was reasonably possible that A’s account was not correct, such that there was a reasonable doubt as to the applicant’s guilt.” In other words, the Court of Appeal had asked the wrong question. In a criminal trial it wasn’t a question of whether the alleged offence could have occurred. What mattered was whether the prosecution had proved that the alleged offence has occurred.
The High Court accepted that the jury, and the Victoria Court of Appeal, had both found the evidence of “A” to be credible. But the High Court judged that mere credibility, though important, was not enough. When the prosecution evidence was set against the defence evidence, there was clearly a reasonable doubt. In those circumstances Cardinal Pell was entitled to be found “Not Guilty”.
The Pell case was a peculiar one, partly because of the high status of Cardinal Pell and also because of the extreme paucity of the prosecution evidence. Usually in any child abuse case, there is some supporting prosecution evidence, or at any rate a lack of defence evidence. But that didn’t happen in this case, which as we lawyers say “turns on its own facts”.
Some of the reaction to the verdict gives the impression that Cardinal Pell should have been convicted in order to reassure sex abuse victims that their allegations will be believed. However the Pell decision should remind police, prosecutors, judges and perhaps the media that the normal rules of evidence are not to be circumvented. Cardinals and bishops are not above the law, but they are entitled to be treated fairly by the law. Even a cardinal is entitled to a fair trial.
Neil Addison is a practicing criminal barrister and a writer on religious freedom and the law
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