Contrary to first impressions, the judgment of the Victorian Appeal Court will give Cardinal George Pell his path to freedom. It has been constructed – I suspect deliberately and by agreement – to render the certainty of a review by the High Court, which can only find the original conviction wholly unreasonable according to the evidence.
Those are bold claims, what may be dismissed as a wild prophecy. But a careful reading of the entire 322 pages of the judgement gives good grounds for limb-walking.
George Pell v The Queen, blandly cited as VSCA 186, has been the most energetically argued appeal case for many years, involving as it does the incendiary allegations of sexual misconduct against a minor, and the person of one of the most senior prelates in the entire Catholic hierarchy.
Pell had been Archbishop of Melbourne from 1996 to 2001, Archbishop of Sydney until 2014, and Cardinal Prefect of the Secretariat for the Economy in the Vatican. In December 2018, after a trial lasting just over a month, he was found guilty of five charges of historical sexual offending against two young boys. He appealed against that conviction.
The trial, and the appeal had been surrounded with the most vociferous displays of invective towards the Cardinal as he attended the Victorian Supreme Court. In contrast, there were subdued but overwhelming expressions of support from those who simply refused to believe the offences possible or the charges credible. These only increased when the detailed allegations became known.
Four of the charges related to events in the Priests’ Sacristy of St Patrick’s Cathedral, Melbourne, involving one former choir boy who gave evidence, and another who had died; the fifth charge concerned a separate event a month later in a corridor of the cathedral. Cardinal Pell denied the events took place and pleaded not guilty to all charges.
Of all the court transcripts I have read, nothing prepared me for the shoddy, facile, simplistic argumentation of the judgement of the two majority judges – Chief Justice Anne Ferguson and President Chris Maxwell. Their judgement, of 120 pages, went straight to the claimed assumption that an appeal court should not ‘second-guess’ a jury. At paragraph 12, it said:
Where the unreasonableness ground – often referred to as the ‘unsafe and unsatisfactory’ ground – is raised, the task for the appeal court is to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” The High Court has said the appeal court : “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility if determining guilt or innocence, or the consideration that the jury as had the benefit of having seen and heard the witnesses.
The majority judgement placed much reliance on a 1994 High Court case, M v The Queen, quoting:
It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
And it observed that the jury in a criminal trial had the ‘incomparable advantage’ of seeing and hearing the witnesses for themselves. But the learned judges did not go on to point out that this is not what happened in the Pell trial. The jury that convicted him did not see and hear the man who accused the Cardinal of the sexual acts on him in the sacristy. What they saw on a screen was the videotaped evidence and cross-examination in the first trial, in which the jury could not agree!
The two judges seemed to make much of their labours, reading 2000 pages of transcript, watching some of the oral evidence and visiting the cathedral. In a strange definition of the role of judges of appeal, they said, “We have approached our task by trying to put ourselves in the closest possible position to that of the jury.” But they did not read the two police statements made by the accuser – documents which helped establish the variations in his story.
In a remarkably short time, with little reflection and few case precedents, Justices Ferguson and Maxwell were able to conclude, at paragraph 39: “We do not experience a doubt about the truth of A’s account, or the Cardinal’s guilt.”
A few lines later, we have: “His (A’s) evidence was supported by reference to knowledge that he possessed which he could not have come by unless he was telling the truth.” That was in relation to his description of the sacristy, although there was evidence that he had been there before, on a guided tour. And they seemed to be finding excuses to plug any weaknesses. In their view, changes, alterations or additions to what he had said previously “seemed to be typical of what occurs when a person is questioned on successive occasions by different people.” Even examples of A’s uncertainties were described as “striking examples” of “A’s credibility, in our view.”
The accuser had been heavily pressed as to why he had never told anyone of the abuse. The judges quoted without scepticism his answer in cross-examination:
We were nursing, we were carrying forward a lot of hopes and dreams of our working-class families and it meant so much to us to maintain and preserve what we had and the fact that that happened and, didn’t happen so quickly, it started and finished such a quick amount of time and that we went back resuming life and not much really infiltrated after that.”
Surely that decades-later rationalisation should have raised a judicial eyebrow? So the majority decision was to endorse, uncritically, the statement by senior counsel for the Crown, who asserted that A “….was a very compelling witness. He was clearly not a liar. H was not a fantasist. He was a witness of truth.”
No such lazy sentimentality from the dissenting judge, Mark Weinberg. In a landmark 215-page dissection of the case, he worked his way steadily through the evidence, establishing facts before weighing their import, and analysing the prosecution’s arguments step by step. It is what we should expect in an appeal as important as this.
Justice Weinberg remarked that unusually, “this case depended entirely upon the complainant being accepted, beyond reasonable doubt, as a credible and reliable witness. Yet the jury was invited to accept his evidence without there being any independent support for it.” Of course he picked up on the fact that the jury in the second trial never actually saw the complainant give evidence live in court, only a video recording from the first trial.
He too turned to the M case. The test the High Court had set, he said, required the members of the appeal court to ask themselves
whether they think that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
and he went on to quote from the judgement by Mason CJ, Dawson and Toohey JJ:
Where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.
In what might be seen as a rebuke to the majority judges, Justice Weinberg goes on:
‘M’ makes it clear that an intermediate appellate court will fail to discharge its duty according to law if it treats questions of credibility and reliability as being of no particular concern when dealing with the reasonableness or supportability of a conviction at trial.
There seem s to be a misconception within some quarters that when this Court deals with an appeal against conviction, it considers only questions of law, and never questions of fact. Section 276(1)(a) of the CPA makes it clear that this is not so.
In a scholarly review of recent High Court cases dealing with the ‘M test’, he concluded that there were a number of instances where, notwithstanding the apparent credibility of a complainant in relation to an allegation of sexual abuse, the countervailing circumstances, including any defence evidence, had led the High Court to quash the conviction, and enter a verdict of acquittal. In a footnote, he cited nine such cases in Victoria and another two interstate. That, in plain language, is the clearest assertion that the Pell case has a good chance of success if the appeal application is accepted.
Weinberg worked steadily through the thirteen so-called ‘solid obstacles’ to conviction which Pell’s defence had adduced. And he dealt with the prosecution’s answer to each one. Finally, he dealt with the credibility of Pell’s accuser. He observed that he did at times embellish aspects of his account. On occasion, he seemed almost to ‘clutch at straws’ in an attempt to minimise, or overcome, the obvious inconsistencies between what he had said on earlier occasions and what the objective evidence clearly showed.
As to the majority decision’s uncritical opinion of the complainant’s evidence, he referred again to the High Court’s observation that:
“….. it can be dangerous to place too much reliance upon the appearance of a witness, rather than focusing, so far as possible, upon other, more objectively reliable matters. These might include, for example, contemporary documents, clearly established facts, scientifically approved tests, and the apparent logic of the events in question”.
Empirical evidence has cast serious doubts upon the capacity of any human being to tell truth from falsehood merely from the observations of a witness giving evidence. That is particularly so in the artificial and stressful circumstances of a courtroom. There is today a substantial body of scholarly writing which cautions against giving too much weight to demeanour when assessing the probative value of evidence.
The critical evidence which the jury – and the majority appeal judges – ignored or rejected, related, just like a television drama, to timing. There was irrefutable evidence that Pell, from the beginning of his appointment, instituted and maintained a practice of greeting parishioners on the cathedral steps after Mass. That lasted from twenty to thirty minutes. Meanwhile the procession of priests, altar servers and choir had wound its way around the building, gone inside to disrobe and disperse. There was uncontested evidence from the church’s Master of Ceremonies and the Sacristan than the archbishop was never left alone, as a rule of canon law. Justice Weinberg saw these two things as hard evidence that should have been sufficient to make the complainant’s account impossible.
In the trial, the prosecution had to prove Pell’s guilt beyond reasonable doubt. The defence had to prove nothing at all. But it is a truism, pointed out by Lord Denning, that the defence has what he termed a “provisional” or “tactical” burden of poof. What he meant was the responsibility of raising such reasonable doubt as to guilt through an ‘alibi’ – in the loosest sense – to show there was not the opportunity. That, in effect, was what Pell’s defence counsel was doing, and Weinberg obviously concurred.
After much careful reflection, Justice Weinberg concluded that he could not agree with his two colleagues. He expressed himself cautiously:
I would not conclude that his (A’s) allegations, in respect of the first incident (in the sacristy) were fabricated……At the same time, I would not myself be prepared to say, beyond reasonable doubt, that the complainant was such a compelling, credible and reliable witness that I would necessarily accept his account beyond reasonable doubt.” And: “There is, to my mind, a significant possibility that the applicant in this case (Pell) may not have committed these offences. That means that in my respectful opinion, these convictions cannot be permitted to stand.
How did two such diverse conclusions draw from the same appeal data? One answer might be that the majority decision was a political finding, tailored even subliminally to reflect the running current of public outrage at juvenile abuse. When it became clear that Justice Weinberg not only reached the opposite conclusion, but also put up a proper body of research and argument to support his view, the Chief Justice and the President decided that the matter would and should go to the High Court, and therefore detailed argument was unnecessary.
Passing the buck has ensured that a higher court will have to decide George Pell’s fate. Given the importance of continually refining the issue of reasonable doubt in criminal appeals, that is no bad thing.