Insight from our team of leading criminal lawyers: Cardinal George Pell – a startling example of the appeals process – Part 1
This article looks at a startling example of the appeals process. On 7 April 2020, the High Court delivered one of the most stunning and controversial decisions in Australian legal history. It overturned Cardinal George Pell’s guilty verdicts, ending a legal battle that started in 2017. Essentially, it meant that Pell finally won and he was immediately released from prison.
Background of the appeals process
In a two-part series, I will explain why this decision was so significant. But firstly, in case you are not familiar with it, I will explain the background to the matter. That is, what happened when Pell appealed to the Victorian Court of Appeal. And, ultimately what happened in the High Court as part of the ongoing appeals process.
There are two reasons why this matter will become one of the most important criminal cases in Australian history. Firstly, it was because of who Pell was. As a Cardinal, Pell was one of the highest-ranking Roman Catholic Church leaders in the world and was second only to the Pope. Following his conviction, he became the highest-ranking Roman Catholic Church leader ever to be convicted of sexual abuse, anywhere in the world. Secondly, it is extremely rare for appeal courts to overturn jury verdicts, let alone the High Court. I’ll explain this in more detail below.
The criminal charges
In 2017 Pell was first charged with sexual offences against two boys. It was alleged that after Sunday solemn mass at St Patrick’s Cathedral in Melbourne in 1996, Pell orally raped one of the boys in the priest’s chambers and indecently assaulted both of them. Pell offended again against one of the boys about a month later, when he grabbed the boy’s genitals in the church corridor, once more after Sunday solemn mass.
Typically in trials for sexually-based offences, a lot will turn on a witness’ credibility and reliability. Credibility refers to whether or not they’re someone who appears to be telling the truth. Reliability refers to whether or not they’re someone who appears to be accurate in their recollection. A victim would say that one thing happened, the defendant would say that it didn’t. So it falls to the jury to decide whose version they should accept.
Because the charges against Pell involved allegations from the mid-1990s, the trial took place nearly 30 years later. This adds a lot of complexities to how trials are conducted. This is because juries need to account for things such as the fading of memories and the absence of potential witnesses, who, for example, may have already passed away.
In 2018 the jury unanimously found Pell guilty “beyond reasonable doubt” of five child sexual offences. This standard of proof is high but does not require absolute proof. The jury believed the complainants and rejected Pell’s defence.
If a defendant is not satisfied with a decision before the original court, whether it is a guilty verdict or a sentence that they believe is too harsh, they have the right to start the appeals process by appealing to the relevant state’s appeal court. In Pell’s case, that was the Victorian Court of Appeal.
The appeal before the Victorian Court of Appeal
The Court of Appeal is comprised of three of the most senior judges in the State. Typically winning appeals before the Court of Appeal are very difficult because it must be demonstrated that either the judge or the jury in the original court have made some sort of error. This is why the appeals process is rarely successful.
Even more difficult are winning appeals where the argument is that the jury got it wrong. The reason for this is because appeal judges are very reluctant to substitute their views on the evidence with those of the jury. It becomes even more difficult if the trial was one largely based on credibility. That is, who is telling the truth and who is not. That is because even though the appeal judges might be far more knowledgeable than the jury when it comes to the law, this does not necessarily mean that they are far knowledgeable that the jury when it comes to determining when a person is being truthful. And, of course, when they are not. That is something that a person only needs life experience, not a university degree, to decide. It is one of the reasons we have a jury system.
In the Victorian Court of Appeal Pell argued the verdicts “could not be supported on the whole of the evidence”. The question for the court was not whether it thought Pell was guilty, but whether (in its opinion after reviewing all the evidence) it was “open to the jury” to be satisfied beyond reasonable doubt the accused was guilty. To show the verdict was “not open”, Pell had to meet a very high legal threshold. Essentially, Pell had to show that not only did the jury get it wrong – but that got it very, very wrong.
The question of reasonable doubt
Pell had to show more than the jury “might have” had a reasonable doubt. He had to show the evidence “precluded” a guilty verdict. When a complainant is credible, and their account is detailed, plausible and consistent, it is difficult to show a jury must have had a reasonable doubt. To meet the standard of “beyond reasonable doubt”, evidence is assessed as a whole. Every piece of evidence does not itself have to be proved to that standard. It is “open to the jury” to convict even if aspects of the evidence are “imperfect”.
All three Court of Appeal judges thoroughly and independently considered all the evidence. Two judges thought the verdict was open to the jury, and one did not. In other words, two judges thought it was open to the jury to be satisfied beyond reasonable doubt the accused was guilty. One did not. Accordingly, the court dismissed the appeal.
The next stage in the appeals process
But if a person is not successful in the Court of Appeal, that is not the end of the matter. They have the right to apply for special leave to appeal before the High Court of Australia. This is an even more difficult task in the appeals process. In my next article, I’ll explain what Pell argued before the High Court and what the High Court determined.