Insight from our team of leading criminal lawyers: Cardinal George Pell – a startling example of the appeals process – Part 2

In my previous article, I discussed a startling example of the appeals process. This relates to the trial and appeal before the Court of Appeal of Cardinal George Pell. Pell is the highest-ranking Roman Catholic Church leader ever to be convicted of a sexual offence against a child. There was only one opportunity left for Pell after being found guilty at trial, and then having his appeal Victoria’s highest court (the Court of Appeal) dismissed. That was the High Court of Australia.

A jury found the cardinal guilty beyond reasonable doubt of five offences. In doing so, the jury assessed the testimony and credibility of the complainant. They also considered the strength of the claims made by Pell about the timing of his whereabouts. That is, who was with him at the relevant times and whether the offences could have happened. The jury saw and heard all the evidence, in the context of the trial. It was their legal function to make this decision.

The case goes to the High Court

A person or party is not automatically entitled to be heard before the High Court. They must first obtain ‘special leave’. This is essentially the  ‘permission’ of the Court. It can only grant leave if the case involves a question of legal principle. Or, if – as found here – there’s a question of the administration of justice.

The question for the High Court in whether to give special leave was not whether Pell was guilty, or whether the jury was right. It was whether the case involved an issue engaging the interests of the administration of justice. Ultimately, the High Court found the interests of the administration of justice required their involvement. This does not itself indicate any view about Pell’s guilt. By giving special leave, the High Court took a very unusual step. This is because special leave applications arguing an unreasonable verdict are frequently refused, including in child sexual offence cases.

What did Cardinal George Pell argue in the High Court?

In the High Court, Pell claimed the Court of Appeal misapplied the legal test causing a miscarriage of justice. Pell argued the Victorian majority judgment’s application of the “open to the jury” test was wrong. He argued they effectively required him to prove it was impossible for the offending to occur. This would serve to reverse the responsibility and standard of proof. This is because a defendant ordinarily does not need to prove anything. It is up to the Crown to prove that the offending to occur. He argued the majority’s belief in the complainant was not enough to overcome evidence about lack of opportunity to commit the offences.

He also argued there was sufficient doubt about whether the offending was possible. This is because complainant’s account required them to be alone in the relevant room for five to six minutes. His legal team argued that there was enough doubt about this. This is because the majority on the Court of Appeal incorrectly found it was open to the jury to find the offending occurred during this period. The Crown rejected these claims. They argued there was no reversal of the responsibility of proof. That is, the majority judges were justified in concluding the evidence about lack of opportunity was not persuasive enough to create a doubt that “obliged” the jury to find him not guilty.

So why did Cardinal George Pell win?

Based on their summary reasons, the High Court found the Court of Appeal did not apply sufficiently strong reasoning when it assessed the evidence. The High Court concluded an independent assessment of the evidence by the Court of Appeal should have concluded there ought to have been sufficient doubt in the jury’s minds to preclude the verdict from being open.

They found the Court of Appeal failed to consider whether there was a reasonable possibility the offending had not taken place, such that there ought to have been a reasonable doubt as to Pell’s guilt. They also found that despite the complainant’s credibility and reliability, the evidence of the witnesses required the jury, acting rationally, to have entertained a reasonable doubt as to Pell’s guilt. It is difficult to reconcile this outcome with the fact this is exactly the conclusion the jury did make. The jury’s conclusion was further supported by the Appeal Court majority judgment’s careful and extensive evaluation of that same evidence.

The High Court has given claims about lack of opportunity an elevated technical legal status that outweighs the jury’s belief in the complainant’s testimony and their evident discounting of Pell’s claimed lack of opportunity. As opposed to a complete acquittal, it is perhaps preferable that the matter was sent back to court for a retrial,

Concluding thoughts

Careful analysis of the full reasoning of the High Court is required to fully assess it. It will be difficult for many to understand and even more difficult for many to accept. The High Court decision may undermine confidence in the legal system, especially in child sexual abuse prosecutions, However, it is the law.

Civil legal actions against Pell are ongoing. So, his legal battles aren’t over yet. More civil lawsuits may well follow, especially after the release of the Royal Commission’s findings of his conduct in other proceedings.

Thank you for reading this article. If you require a defence lawyer for a criminal case in all forms of Criminal related Law, contact Brisbane’s Number 1 Criminal Lawyers and Defence Lawyers – Cridland Hua.

 

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