The acquittal of Cardinal Pell: A belated and painful victory for justice

The acquittal of Cardinal George Pell by Australia’s High Court this week was greeted with jubilation by many, and with a mixture of dismay, scorn, and anger by many others; for the former, the unanimous decision to quash all charges against the cardinal was a simple case of justice being done, whereas for the latter it seemed that a powerful man had won out over the pleas of victims. 

The Pell saga began in late 2015 when the Victoria Police began an operation to seek evidence of any wrongdoing by Pell around Melbourne’s St Patrick’s Cathedral during the now cardinal’s time as archbishop of Melbourne, a trawling exercise that produced just one complainant whose allegations went to trial. 

This complainant, a onetime chorister at the cathedral claimed that he and a now deceased companion were sexually assaulted by Pell in a cathedral sacristy immediately after solemn Sunday Mass in late 1996. He also alleged that the then archbishop assaulted him in a corridor after another mass some weeks later in early 1997. 

The cardinal was convicted on 11 December 2018 on five charges of sexually abusing the two boys after a previous trial for the same charges had left the jury deadlocked with – it is said – ten out of twelve jurors backing a ‘not guilty’ verdict.

Victoria’s Court of Appeal

August 2019 saw the Supreme Court of Victoria upholding the decision of the lower court, though it was remarkable that the Reasons for the Court of Appeal ran to 325 pages, of which fully 200 were devoted to the forensically detailed dissenting judgment of Australia’s most experienced appeal court judge Justice Mark Weinberg, compared with which the rather more brief judgment of Chief Justice Anne Ferguson and Court of Appeal President Justice Chris Maxwell looks, it might be said, complacent and scanty.

In his lengthy dissent, Justice Weinberg made it clear that he did not disagree with his fellow judges in arguing that the original conviction was unreasonable because he was convinced that an orthodox defender of the Church’s teaching on sexuality could ever have been an abuser. Rather, his dissent on this issue was because he believed that given discrepancies in the prosecution evidence and the litany of improbabilities necessarily involved in the case, there were simply no grounds to convict Cardinal Pell and that the jury in the trial should have realised this.

According to the evidence of a onetime choirboy identified only as ‘A’, on 15 or 22 December 1996, the then archbishop had discovered A and another choirboy drinking altar wine in a cathedral sacristy right after Mass and sexually assaulted them, publicly assaulting them sometime later in a corridor where lots of choristers were milling about.

For this to have happened, the defence had maintained from the beginning, the distinctively dressed choirboys would have needed to have broken from the procession out of the cathedral without being noticed. They would have needed to go to a sacristy where the altar wine was, contrary to practice, not locked away. The archbishop would likewise need to have broken from the procession despite his normal behaviour, with nobody remembering this irregular move. He would have needed – on his first or second Sunday solemn Mass in his newly refurbished cathedral – to have refrained from chatting to parishioners outside the cathedral door.

The archbishop’s master of ceremonies would need to have failed, despite regular practice and church requirements, to have accompanied the archbishop at all times. The priests’ sacristy would need to have been unlocked but without the sacristan going to and fro such that the two choirboys would have had a chance of getting at the altar wine. It would need to have been empty of people other than the two boys and the archbishop in the ten to fifteen minutes after Mass during which it and the corridor outside it were typically a hive of activity.

In short, for the allegations to have even been plausible, a whole series of highly improbable things would need to have happened.

Justice Weinberg’s Dissent

For two of the appeal court last year, A’s claims had a “ring of truth”, such that any doubt the jurors might have had could reasonably have been eliminated, but for Justice Weinberg, in his lengthy dissent, subjective talk of a “ring of truth” simply wasn’t a good enough basis for upholding a conviction, especially given the abundance of evidence challenging A’s evidence.

“There were inconsistencies, and discrepancies, and a number of (A’s) answers simply made no sense,” said Justice Weinberg, explaining that he had grave problems with A’s evidence even without considering the evidence of others, with that evidence suggesting that A’s account was, realistically speaking “impossible”.

At the same time, he had noted, the notion of impossibility had become a keyword in the trial, expressing concern that in talking about impossibility, the defence had put a needless forensic hurdle in the minds of the jury.  The onus had always been on the prosecution to establish guilt beyond reasonable doubt, Justice Weinberg said, which meant that “something considerably less than ‘impossibility’ was clearly sufficient to create such a doubt”.

With hindsight it might have been better if the potentially misleading term ‘impossible’ had been entirely avoided, he said, since the focus on impossibility had enabled the case to become in many ways one about possibility such that the jury in the retrial had clearly found Cardinal Pell guilty because it was possible that he had committed the crime, not because it was probable to a degree beyond reasonable doubt that he had done so. 

The High Court speaks

Justice Weinberg’s dissent must have given the cardinal’s lawyers hope that a fresh appeal to Australia’s highest court stood a good chance of succeeding, and so it proved with the Supreme Court last week issuing a rare unanimous verdict in favour of quashing the allegations, all seven Supreme Court judges ruling for the same reasons that the Cardinal should be regarded as innocent.

He did not, as some have had it ‘get off on a technicality’. On the contrary, the charges were quashed because they simply did not meet the basic legal test of withstanding reasonable doubt. 

“The High Court found that the jury, acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant's guilt with respect to each of the offences for which he was convicted, and ordered that the convictions be quashed and that verdicts of acquittal be entered in their place,” the summary judgment declared.

The High Court accepted that the Court of Appeal majority had assessed the evidence from the trial as leaving open the possibility that the complainant’s account was correct, but had failed to engage with the question of whether there remained “a reasonable possibility that the offending had not taken place, such that there ought to have been a reasonable doubt as to the applicant's guilt”.

Noting that the evidence of the opportunity witnesses was unchallenged, the High Court noted that their evidence had described the then’s archbishop usual practice of greeting congregants on or near the Cathedral steps after Sunday solemn Mass, the established and historical Church practice that required an archbishop always to be accompanied when robed in the cathedral, and the continuous traffic in and out of the priests' sacristy for ten to fifteen minutes after the conclusion of the procession that ended Sunday solemn Mass.

Given the lack of challenges to this evidence and the assumption that it was accepted as credible and reliable, this should have 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”.

As such, the seven members of the High Court unanimously agreed, there was “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”, and they ruled that Cardinal Pell’s convictions “be quashed and judgments of acquittal be entered in their place”.

It is well worth reading the judgment in full.

Looking forward

The cardinal’s troubles have not ended, of course: he still faces a range of civil complaints around allegations, not least ones detailed fully by Louise Milligan in her book Cardinal: The Rise and Fall of George Pell, though these are systematically shown to be implausible by Julia Yost in her 2017 First Things article ‘The Case against Cardinal Pell’.

On top of this, the cardinal will have to face a canonical investigation, in which the burden of proof ought to be lower than in Australian criminal trials: if the State is expected to judge matters on the basis of ‘reasonable doubt’, the Church takes the approach that weighs the balance of probabilities. Given how most canon lawyers, however, would know what the logistical realities of solemn Masses celebrated by a bishop in his own cathedral would entail, it is difficult to see the cardinal facing censure in Rome.

It is important, in this light, to study the responses of Australia’s bishops to the acquittal.

Speaking on behalf of the Australian Catholic Bishops’ Conference, Archbishop Mark Coleridge said the court’s decision would be devastating for some.

“Many have suffered greatly through the process, which has now reached its conclusion,” he said. “The result … does not change the Church’s unwavering commitment to child safety and to a just and compassionate response to survivors and victims of child sexual abuse.”

Noting that Cardinal Pell had steadfastly maintained his innocence throughout the legal proceedings, Melbourne Archbishop Peter Comensoli said that the right of abuse survivors to bring forward charges and tell their stories is vital and must be protected.

“I want to firstly acknowledge the person identified through the courts only as ‘J’ (A in the High Court ruling), who brought forward his story of abuse for examination in the courts of law. This is a right we value and honour,” he said. 

Thanking the judges for their “meticulous review of the facts”, Sydney Archbishop Anthony Fisher OP said the affair invited a broader reflection on Australia’s justice system.

“The cardinal’s vindication today invites broader reflection on our system of justice, our commitment to the presumption of innocence, and our treatment of high-profile figures accused of crimes,” he said. 

It seems now that the cardinal should never even have been brought to trial, that the Victoria Police and the Director of Public Prosecutions had been given information from the beginning that should have established the implausibility of A’s allegations. In a febrile anti-clerical atmosphere, however, against the background of the Victorian parliamentary inquiry, the federal royal commission, and even Tim Minchin's song ‘Come Home (Cardinal Pell)’ and Louise Milligan's aforementioned book, it seems that an innocent man was offered up as a scapegoat. 

In doing so, parts of the Australian civil establishment offered false hope to real victims of child sexual abuse and must bear the blame for any disillusionment and dismay that this week’s decision has caused them. Whatever solace, however misplaced, survivors found in the cardinal’s conviction will in so many cases have been washed away, leaving them hurting from the dashing of false hopes. 

The celebrations, in particular, will be painful, but it is important to remember that the celebrations that greeted the releases of the Guildford Four and the Birmingham Six thirty years ago were not celebrations of bombings or violence, but were celebrations that because the wrong people had been convicted of terrible crimes years earlier, and that justice had eventually been done.

Those supporters of Cardinal Pell who are celebrating his release are not denying that abuse has happened in the Church, that abuse has been covered up, or that countless people have been terribly hurt: rather, they are celebrating a victory for truth and justice. However painful this may feel now, and however damaging it may be for the Church’s reputation today, in the long term this will be good for victims.