Neil Addison, a practising criminal barrister and writer on religious freedom and the law, has contributed the following guest post on the outcome of Cardinal Pell’s appeal.
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, Chief Justice Susan Kiefel finished the Summary of the decision of the High Court of Australia quashing Cardinal Pells conviction on two counts of child sexual abuse.
The decision of the High Court in Pell v The Queen  HCA 12 (7 April 2020) was a unanimous judgment by the seven most senior judges in Australia – which should make it clear that the Cardinal was not acquitted on the basis of some minor legal quirk but instead he won because of 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 bringing the charge 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 11 December 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 the 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 choir boys had died in 2018 and prior to his death had never made any allegations against Cardinal Pell – indeed, he 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 Monsignor Portelli who was referred to by the High Court as the ‘Master of Ceremonies’.
(i) The defence evidence showed that Cardinal Pell invariably engaged in a ‘meet and greet’ with the congregation on or near the Cathedral steps after Sunday High Mass;
(ii) it was accepted that the established and historical Catholic church practice required an archbishop always to be accompanied when robed in the Cathedral; and
(iii) the defence evidence was that there was always continuous traffic in and out of the priests’ sacristy for ten to 15 minutes after the conclusion of the procession that ended Sunday solemn Mass.
It was significant that the prosecution never suggested that Monsignor Portelli or the other Cathedral staff were lying in their evidence. The prosecution case was more subtle: namely, that something was the ‘usual practice’ did not mean that there could not be situations where the usual practice had not been followed and so the assaults as alleged could have 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 is not a question of whether or not the alleged offence could have occurred – what matters is whether the prosecution has 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’s judgment was that mere credibility, though important, was not enough. When the prosecution evidence was set against the defence evidence there was clearly a reasonable doubt, and in those circumstances, Cardinal Pell was entitled to be found ‘Not Guilty’
The Pell case is 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’.
What I did find depressing was listening to a reporter outside the High Court who said that the High Court decision will bring ‘dismay’ to victims of child abuse: it was almost as if she felt that Cardinal Pell should be convicted merely to prove a point and regardless of the evidence. The Pell decision may remind police, prosecutors, judges and, perhaps, the media that merely because an allegation is made that does not mean that it is true or that the normal rules of evidence should be circumvented in order to ensure a conviction. 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.