A good friend who isn’t a lawyer messaged me in the wake of the Pell decision and asked for my thoughts. I shot back:

”Legally speaking absolute no brainer, there was so much unchallenged evidence that he couldn’t  have had time to commit the offences they said he did.

It is not a case about whether the complainants should have been believed but whether even if they were believed, could a reasonable doubt co-exist. Clearly the court has found it did exist and should have led to an acquittal.

A win for common sense.”

Those criminal lawyers amongst us might have guessed the inevitable next question: “yeah but did he actually do it?”

It’s at that point where we descend into more esoteric territory.

Many feel that the justice system is premised on unearthing ‘the truth’. I understand that sentiment but cannot subscribe to it blindly. The truth should be the desired destination but to get there we must work within a robust framework that protects the innocent. As a result, I explained to my friend that I wasn’t greatly concerned with the answer as we rarely ever know these things definitely. I was more interested in the system and the need to maintain, regardless of the profile of the case, the presumption of innocence. In this case there was certainly enough evidence to establish a reasonable doubt and, most importantly for the High Court, this doubt was not displaced by the Crown.

The illusion of a fair trial

The above analysis pays no heed to the prevailing public sentiment- nor should it. In the wake of the Royal Commission those abused by the Church have, quite rightly, been galvanised in their quest to ensure those responsible for institutional abuse receive the full force of the law. I for one certainly didn’t believe Pell was entitled to any special treatment. But, and it is a big ‘but’, if he was to face the full force of the law he was also entitled to be protected by the law. This means receiving a fair trial. Could such a prominent figure – the personification of all the church’s failings – ever receive a fair trial? We must acknowledge that the impact of the Royal Commission and the media coverage of such high profile cases are not contained in a vacuum. Every juror, consciously or otherwise, must have felt the weight of this expectation, so too the Victorian Court of Appeal. What does this matter? Well it highlights that there are often understandable reasons (none of which are framed by malice) that might impermissibly impact a jury’s decision. In those circumstances appellate intervention acts as a necessary bulwark against injustice.

But what about the sanctity of a jury’s verdict?

I anticipate a lot will be said about the High Court effectively usurping the jury’s verdict. Generally speaking such a criticism is fair, it being well established that the jury’s verdict should not lightly be dispensed with. However, on reading the judgment it is apparent that the Court was awake to this concern. The judgment stresses the necessity for the Crown to eradicate reasonable doubt and that its failure to do so impacted the jury’s verdict. In a football game the result can turn on the way in which the game is refereed; spectators might form the wrong impression on who should have won the match as they witnessed the game through a distorted lens. The same goes for juries – they can only be expected to adjudicate on what evidence they receive and the directions they are given. It follows that while a jury’s verdict ought not be meddled with, such a principle is underpinned by a precondition that a jury must be properly instructed on the law. In this case the High Court recognised that this precondition had not been established leading to a verdict which was not supported by the whole of the evidence.

Compelling complainant cannot overwhelm objective unlikelihood

In the future this case will be cited where the complainant might prove to be a compelling witness but where other evidence, particularly unchallenged evidence, suggests that the offending was inherently improbable.

That takes a little bit of mental gymnastics to get your head around but it is a sound proposition. When we assess the reliability of a witness we can so often be blinkered on the consistency of that evidence, rather than its plausibility. In this sense we, like the jury or Victorian Court of Appeal, may hastily conclude that the reliability of that evidence overrides any doubts about its probability.

Many victims’ advocates will cry foul over this distinction. How can a complainant be a believable witness but the defendant be acquitted? While I am sympathetic to this argument, it is simplistic. While I accept this decision may have a negative impact on the rates of reporting sexual abuse, I unapologetically say that this is the lesser of two evils.

Ultimately, we are aware that false complaints are made. The possibility of an innocent person being convicted is far graver than the potential reticence of victims to come forward. The distinction drawn by the Court was a vital one and in cases where the allegations are historical in nature, goes some way to redressing the prejudice which has been occasioned by the delay in complaint.

A win for judicial independence & Justice Weinberg

More broadly speaking, the decision underscores the importance of an independent judiciary. The decision is undoubtedly unpopular within the general public. Not many tears would have been shed had the conviction been upheld. However, much like in the earlier decisions of Fennell and Coughlan, the High Court has demonstrated that they are not averse to dipping their toes into criminal cases to ensure that miscarriages of justices are not perpetuated. An emboldened High Court demonstrates a robust separation of powers – never a bad thing as we edge closer to the partisanship of the US.

The second takeaway may well be the importance of having judges with extensive criminal experience consider such complex appeals. The dissent of Justice Weinberg QC in the Victorian Court of Appeal was much cited in the High Court’s decision. It seemed he understood what the trial judge and the other members of the Court of Appeal did not- that the way in which the jury was encouraged to reason downplayed the importance of, and perhaps even reversed, the onus of proof. It is fair to comment then that Pell benefited from his matter being heard by Justice Weinberg QC whose dissent provided a roadmap to his ultimate acquittal.

Remy Kurz 7 April 2020

The views expressed above, including any errors, are that of the author and do not necessarily represent the views of Robertson O’Gorman Solicitors