Some have lauded the result; others abhor it. Whatever the analysis that follows – and it will be plentiful – the ruling will leave in its wake a trail of devastation for the numerous victims of sexual and physical abuse perpetrated by the Catholic Church and its most senior and trusted members.
Significantly, the High Court reasoning said:
“…on the assumption that the jury had assessed the complainant's evidence as thoroughly credible and reliable, the evidence of the opportunity witnesses nonetheless required the jury, acting rationally, to have entertained a reasonable doubt as to the applicant's guilt in relation to the offences involved in both alleged incidents”
There are effectively two ways of analysing this proposition.
The first is to see it as a successful expression of the function of the criminal justice system. That is, that the ultimate appellate court has acted to correct an unjust verdict – one that was not properly open to the jury on the basis of the evidence as led at trial.
The second is to view it as an interference by the ultimate appellate court in the role and function of the jury; a transplanting of its own rational assessment of the evidence for that of the jury, on the basis that it considers the evidence the jury heard and saw to be incapable of amounting to a finding of guilt beyond reasonable doubt.
There is a traditional reluctance on the part of appellate courts, let alone the High Court, to substitute its own assessment of the evidence for that of the jury – and there is very good reason for that. Appellate courts, and in particular in this case the High Court, did not hear and see the witnesses, did not examine the faces, demeanour, exhibits and places that the jury did. Indeed, of all the courts that adjudicated on the Pell case, the High Court was the only one not to view the video evidence of the complainant. Rather, it appears that the High Court took the view that the “opportunity evidence”, that is the evidence about whether Pell had the opportunity to commit the offences, was such that even in the face of the complainant’s compelling evidence, it was not open to the jury to find that guilt had been established beyond reasonable doubt.
The High Court concluded:
“With respect to each of the applicant's convictions, there was, consistently with the words the Court used in Chidiac v The Queen (1991) 171 CLR 432 at 444 and M v The Queen (1994) 181 CLR 487 at 494, ‘a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof’"
This is a strong finding. It denotes the proposition that to allow the convictions to stand would occasion a miscarriage of justice.
So where to now following the Pell ruling? The allegations that concern the High Court’s ruling is but the beginning of a real analysis of Pell’s involvement and complicity in child sex abuse in the Catholic Church, and in particular the Ballarat Diocese. In some ways, Pell’s trial and subsequent appeals have shielded him and the Catholic Church from some facts and findings about child sex abuse by this institution. Suppression orders have had the effect of limiting the ability of parts of civil society from speaking about Pell and other Church leaders and their involvement in the scourge of Catholic Church child sex abuse.
The Royal Commission into Institutional Responses to Child Sexual Abuse has withheld findings about Pell due to the trial and subsequent appeals. The indications of the Commonwealth Attorney-General are that those findings will be publicly released in a matter of weeks. Abuse survivors and other witnesses to abuse will now also be able to speak and a fuller reporting on these matters may now be possible.
It has been reported that Pell faces and will face other civil proceedings concerning allegations both of covering up child sex abuse in the Church and of committing acts of sexual abuse himself. It is to be presumed that if there are credible allegations of sexual abuse at Pell’s hands then those matters will be the subject of investigation by police and if there is a case to be answered then Pell will be the subject of further criminal charges.
There is much legal water to pass under the bridge in this Pell matter. But it should be remembered that, as spectacular a legal event as this has been, and as important as it is for many directly and indirectly affected by it, this case is a mere wave in the tsunami of allegations, many proven and/or admitted by senior members of most religious institutions in this country. Ridsdale, Glennon, Claffey, Fox, Klep, Aulsebrook and many others – the list of paedophile priests who have been convicted and jailed by the courts in Australia is impressive. The numbers of civil cases settled by Defendant religious institutions not wanting the exposure of a trial, is even more impressive.
A message has emerged in the media and social media since the Pell decision, questioning the merit of future cases brought in the criminal or civil jurisdiction based on the Pell ruling. It would be unfortunate and legally wrong if the message in the community was that the High Court’s ruling has weakened the strength of, or point in, bringing such cases to court or making properly founded allegations. The risk in this kind of messaging is that victims will give up or not bother coming forward.
The fact is that the Pell ruling will have little or no effect on civil cases and limited effect on future criminal cases, because each case is determined by reference to its own facts and its own evidence. Beyond the fact that all historical sex abuse cases suffer from difficulties associated with the delay between abuse and trial, the Pell decision says nothing more than, on the evidence led in that case, it was not (on the High Court’s reasoning) open to a jury acting reasonably to convict.
Media are welcome to re-publish this article with attribution to Professor Gideon Boas, La Trobe University.
Read more opinions and expertise from La Trobe academics here.
