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Snapshot

  • It is the province of the jury, but not an appeal court, to determine the weight to be given to a witness’ evidence by reference to the manner in which it was given.
  • Video recordings of evidence should only be viewed by an appellate court in exceptional cases where there is a real forensic purpose in doing so.
  • Assuming that the jury assessed the complainant as a credible and reliable witness, the ‘compounding improbabilities’ caused by unchallenged evidence which was inconsistent with the complainant’s account required the jury, acting rationally, to have a doubt about Pell’s guilt.

On 7 April 2020, the High Court upheld Cardinal George Pell’s appeal against conviction and acquitted him of five sexual offences. A single judgment was given for the full court, which held there is ‘a significant possibility that an innocent person has been convicted because the evidence did not establish guilt’ (Pell v The Queen [2020] HCA 12 at [9], [119], [127] (‘Pell’)). A majority of the Victorian Court of Appeal had earlier upheld Pell’s convictions, finding that his accuser, witness ‘A’, was ‘very compelling’ and a ‘witness of truth’ (Pell v The Queen [2019] VSCA 186 at [90]).

Few would doubt the importance of the High Court’s decision. The trials and punishment of George Pell were matters of high public interest. Cardinal Pell’s senior position in the Catholic Church and the work of the Royal Commission into Institutional Responses to Child Sexual Abuse impelled that outcome. However, the legal significance of the judgment lies elsewhere. The close appellate scrutiny given to the case comes at a time when criminal justice systems in this country are struggling to strike the right balance – between the expectations of victims and their supporters and the rights of the accused – in trials of child sexual offences. The High Court’s reasoning has important implications for the role of appellate courts in reviewing ‘unreasonable’ guilty verdicts and our understanding of the criminal onus and standard of proof.

Procedural history

Pell was committed for trial in relation to five sexual offences committed on two 13-year-old choirboys in late 1996 and early 1997. At that time, Pell was the recently appointed Archbishop of Melbourne. The boys are anonymised in the judgment as ‘A’ and ‘B’. It was alleged that on the first occasion Pell came across the boys in the priests’ sacristy of St Patrick’s Cathedral in East Melbourne after performing Sunday solemn Mass.

A and B had slipped away from the procession and located a bottle of altar wine. After rebuking the boys, Archbishop Pell, still fully robed, allegedly exposed his penis and committed various sexual acts upon A and B. The most serious act involved receiving fellatio from A. A also alleged there was a second incident at least a month later. On that occasion, after the procession following Sunday Mass, Archbishop Pell, again fully robed, allegedly pushed A against a wall of the sacristy corridor and squeezed his genitals.

A did not complain to police about the alleged assaults until mid-2015. B had died of accidental causes by this time. In 2001, B was questioned by his mother and denied that he had ever been ‘interfered with or touched up’ when he was a member of the Cathedral Choir. Pell consistently denied the offences when he was interviewed by police in Rome in October 2016. He did not give evidence at trial.

Pell was first tried in August 2018. The jury was unable to reach a verdict. He was tried again later that year and the second jury found him guilty of all five charges. He was sentenced to a period of imprisonment. He appealed against conviction to the Victorian Court of Appeal. His appeal was dismissed by majority (Ferguson CJ and Maxwell P). Weinberg JA, a criminal law specialist and former Commonwealth Director of Public Prosecutions, wrote a detailed dissenting judgment which concluded that the jury ought to have had a reasonable doubt about Pell’s guilt. Weinberg JA would have ordered acquittals on each charge.

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