Andrew L. Urban.
In Part 2, we examine the controversial case of Cardinal George Pell; his conviction and failed appeal, asking whether the evidence meets the standard of proof beyond reasonable doubt and whether the majority in the appeal court was justified in rejecting his appeal. The High Court this week heard arguments from both sides and is considering the case. (see Part 1, published January 15, 2020)
This highly controversial case continues to inflame passions. Some have pointed to the many historic accusations against Pell and the accumulation of guilt for child sexual abuse uncovered in the Royal Commission … and Pell’s perceived aloofness or indifference to the victims. Have those elements interfered with him getting a fair trial on the charges for which he was tried?
But our examination is not about Cardinal Pell: it is about the process that convicted him. What if the accused was not the controversial Pell, the bearer of much guilt for sins committed by his church; would the conviction still be a cause for concern? Was the jury entitled to find him guilty on the evidence before it or was the onus of proof flipped? Was this also an example of tunnel vision – a special kind of tunnel vision?
In seeking leave to appeal to the High Court, George Pell’s lawyers argued that the approach taken by the majority judges at his appeal required Pell to “establish actual innocence”, rather than “merely pointing to doubt”, which was a reversal of the onus and standard of proof, adding, “Rigid application of the onus and standard of proof in 21st-century sexual assault trials in Australia is of particular importance.”
The conviction was based solely on the uncorroborated testimony of the alleged victim, then a child, now an adult. Two of the three judges hearing the Appeal upheld the conviction, but the third, Justice Weinberg, wrote a powerfully argued dissenting opinion – with which I strongly agree.
In one section, he writes: Portelli had been Master of Ceremonies to the applicant from September 1996 through to the end of 2000. In re-examination by Mr Gibson, Portelli reiterated that he accompanied the applicant to all his Masses after September 1996. Portelli’s account, if accepted, would put a complete end to the prosecution case in respect of both incidents. The same result would follow from that account being regarded as a ‘reasonably possible’ version of events, because any such conclusion would render the complainant’s account literally impossible.
If the alibi evidence is so cogent as to engender in any reasonable mind a doubt of the accused’s guilt, the conviction must be quashed and a verdict of acquittal entered however cogent the prosecution evidence would otherwise be.
Weinberg also notes:
In the past, in cases of alleged sexual abuse, juries were warned, in strong terms, of the dangers of convicting in the absence of corroboration. The law has changed in that regard. That makes the task of intermediate appellate courts charged with having to review the safety of convictions in such cases a particularly important and onerous one.
Perhaps most crucially in the absence of any corroborative evidence, Weinberg lists several elements that corroborate Pell’s claim of innocence, including:
The timing of the complainant’s story is ‘impossible’
Not possible that the applicant was robed and alone after Mass
Not possible that the boys could be sexually abused by the applicant in the Priests’ Sacristy after Mass, undetected
Not possible for the boys to have ‘nicked off’ from an external procession without being seen by a single person
In the hearing this week (March 11 and 12, 2020), the seven High Court judges are engaged in one of the most important legal decisions of their careers.
They are now considering the cardinal’s argument that he is in prison only because two judges on Victoria’s Court of Appeal rejected his appeal after engaging in circular logic and making a series of legal errors. Judgement has been reserved – a date for their decision has not been set but is expected within days or weeks.
In the submissions, Pell’s legal team (Bret Walker and Ruth Shann) argue that his convictions risk a fundamental departure “from the defining safeguards of the accusatorial system of criminal justice”.
COMING SOON: Justice derailed – Part 3