In Woolmington v. DPP (1935), Viscount Sankey articulated the presumption of innocence as the ‘one golden thread’ running through the criminal justice system. On 22 October 2018, Australian prime minister Scott Morrison apologised in Parliament to thousands of victims of institutional child sex abuse and added: “I believe you, we believe you, your country believes you”.
That’s the mantra of the #MeToo movement. It should mean when complainants come forward with tales of abuse that once carried a powerful stigma, they should be heard respectfully and sensitively, their claims properly but impartially investigated, corroborating evidence duly collected, and conflicting evidence scrutinised and discussed with them in an effort at clarification.
The case of Cardinal George Pell, the highest ranking Catholic Church official to be charged with sex offences in any jurisdiction, is a powerful demonstration of the dangers of using a slogan of empathy and solidarity as the operational standard for criminal investigation, prosecution and trial. It shreds ‘reasonable doubt’ as the essential safeguard against miscarriage of justice. It took Australia’s top court to reinstate the key principles of presumption of innocence and reasonable doubt as the prevailing standard of Australian criminal justice. To that end it was important for the judgment to be unanimous so there is the sense of finality, at least in the legal arena.
If anyone who claims to have been a victim of sex abuse must be believed, then any evidence inconsistent with or contradicting that claim must be ignored or discarded. This is exactly what Victoria Police did in their pursuit-cum-persecution of Cardinal Pell. In March 2013, they launched ‘Operation Tethering’ before any crime had been reported, advertising in the media to solicit complaints of sexual molestation by Pell. Defence barrister Robert Richter QC described it as ‘an operation looking for a crime because no crime had been reported’. On 14 April Cardinal Pell said in a TV interview he wouldn’t be surprised if Victoria Police continued to trawl for more alleged victims of sexual abuse going back to the 1970s.
Because the complainant said no altar servers had been present, none was interviewed despite the availability of lists of those who had served on the relevant dates. Yet they, not choristers, over 30 of whom were interviewed, would routinely have been in the priest’s sacristy during that timeframe after the mass. Nor did police interview a single concelebrant priest who would also be in the sacristy disrobing, or personnel who would be bringing in the collection money. All of them were crucial to Pell’s argument that he could not have been alone in the sacristy with the two boys in the ‘hive of activity’ after any mass he celebrated.
A separate trial on unrelated allegations of sexual assaults on boys in a Ballarat swimming pool in the 1970s collapsed in February 2019 when prosecutors dropped all charges for lack of evidence. One boy complained to the police in 2015 alleging Cardinal Pell had sexually assaulted him and another choirboy in St Patrick’s Cathedral in Melbourne in 1996. Victoria Police duly filed charges and Pell was committed to trial in May 2018. The first jury failed to agree on a verdict. At the second trial, on 11 December Pell was convicted on five counts. On 27 February 2019 he entered prison to begin serving a six-year sentence.
An unknown number of jurors in the first trial had reasonable doubt about Pell’s guilt. None in the second trial did and he was convicted, putting into practice the ‘we believe you’ principle. The conviction was deeply troubling owing to the gap between the complainant’s testimony and the evidence from other good and credible witnesses. The idea that an archbishop, who was interacting with his flock in a crowded public congregation after celebrating mass, would risk discovery during an attack on two boys, whom he had not groomed beforehand, amidst open doorways and in an extremely tight timeframe, is highly implausible. Abusing two boys simultaneously increased the risk: if one complained, the other could corroborate. Either could have walked out of the room while the other was being attacked. The second boy died in 2014, denying to his mother that he had ever been assaulted.
On 21 August last year, in a 2-1 judgment, the Court of Appeal refused to overturn the verdict. The two majority judges did not vote to convict Pell. Rather, they did not find sufficient cause to overturn the jury verdict. In their published comments on the complainant’s testimony, they too effectively prioritised ‘We believe you’ over reasonable doubt. On the other had, Justice Mark Weinberg dissenting noted a significant possibility that the defendant may not have committed the offences.
In a case that hinged largely on a contest of credibility, the complainant turns out to have suffered long periods of psychological problems requiring treatment. Because of changes to the evidence act in 2006 to protect victims, the defence could not access the records to see if this might be relevant to the case; and they could not inform the jury of the history of problems nor of having been denied access. In an unrelated case in New South Wales last year, a man accused of rape was not permitted to tender evidence that the complainant had admitted to several previous false complaints of sexual assaults.
The High Court’s full bench heard the contending arguments from the prosecution and defence on 11-12 March and delivered a unanimous 7-0 verdict on 7 April setting aside the jury’s verdict and acquitting Pell. On fellow prisoners cheering the news of his acquittal, Pell quipped: ‘Only time I heard prisoners taking the side of a priest convicted of paedophilia’. After 405 days, he walked out of prison a free man.
The basis of the acquittal was the argument that the prosecution had effectively reversed the burden of proof. The jury verdict and Appeal Court majority decision had rested on the credibility and compelling testimony of the complainant. As long as it was theoretically possible, no matter how improbable, for the assault to have been committed as described, the defendant was guilty. By contrast, the High Court justices were persuaded by the defence case of several separate improbable contingencies, and the cumulative compounding improbability of all of them. It’s one thing to convict on the basis of compelling testimony from the complainant despite the absence of corroborating evidence. It’s another to do so despite a substantial body of inconsistent evidence which makes it highly improbable, albeit theoretically not impossible, that the offence could have been committed in the place and time alleged.
Justice is not seen to have been done by anyone. Pell’s critics, unable any longer to vilify supporters for backing a ‘convicted paedophile’, are dismayed at the lack of closure for the victims and their families. The justice system failed the complainant whose trauma has been kept alive for naught and all victims of sex abuse whose perpetrators were shielded by powerful institutions like the Catholic Church. Others are horrified that an innocent, elderly man spent over a year in solitary confinement, his reputation trashed and his name forever asterisked in the history books. One Catholic paper drew parallels with the Dreyfus affair in 19th century France.
Some argue the fiasco ‘combined incompetence with malevolence’. Others suspect a ‘Get Pell’ travesty involving a gaggle of journalists and public intellectuals. Still others wonder about a revival of anti-Catholicism. Pell became the fall person for the sins of the Church in turning a blind eye to abuses of children for decades all over the world.
As Hilary Mantel writes in The Mirror and the Light: ‘It seems there is no mercy in this world, but a kind of haphazard justice: men pay for crimes, but not necessarily their own’.
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