Beyond Reasonable Doubt: Pell v The Queen [2020] unpacked

By Alice Petch

Image Source: Reuters

Trigger warning: sexual assault is discussed in this article.

On April 7 2020 the High Court of Australia handed down its judgement for the appeal to set aside the orders made by the Supreme Court of Victoria on 21 August 2019. The appeal was allowed, and George Pell’s convictions were quashed. This decision is controversial and a lot of people are confused about how this came to be, so let’s unpack the decision. 

The convictions

On 11 December 2018, George Pell was convicted of one charge of penetrating a child under the age of 16, and 4 charges of committing an act of indecency with or in the presence of a child under 16. These offences all occurred in 1996 and 1997 at St Patrick’s Cathedral in Melbourne. In the judgements, the two victims are referred to as “A” and “B”. A made his first complaint about the assault in 2015, by which time B was deceased. Therefore, to quote the High Court, “The prosecution case was wholly dependent upon acceptance of the truthfulness and the reliability of A’s evidence.” 

A and B were 13 years old at the time of the alleged offences. A’s account is that while the choir procession walked through the corridors of the complex and into the choir room at the Knox Centre, which adjoined the Cathedral, they had broken away from the procession and made their way to the priests’ sacristy. Here, they found a bottle of altar wine from which they took a couple of sips before they saw Pell in the doorway who told them they were in trouble, undid his trousers and belt and began “moving…underneath his robes.” A then saw Pell lower B’s head towards his penis, holding his hands around the back of B’s neck while this assault took place (charge 1). Pell then pushed A into “a crouching position” and pushed his erect penis into A’s mouth (charge 2). Pell then instructed A to take his pants off and touched his genitals with one hand (charge 3) while touching his own with the other (charge 4). Each of these assaults is said to have occurred for no more than two minutes. Neither A nor B yelled out but both objected, cried, and asked if they could leave. When the assault concluded, they re-joined the choir and left the Cathedral. They did not discuss the events with their parents or even between themselves. These four offences are said to have occurred on either 15 or 22 December 1996. 

Following Mass about a month later, A claims that he was in the procession walking towards the Knox centre when Pell appeared in his regalia and pushed him against the wall and squeezed his genitalia (charge 5). This offence is said to have occurred on the 23 January 1997.

Pell sought leave to appeal these convictions in the Supreme Court of Victoria and was granted that leave on the basis that “the verdicts were unreasonable and could not be supported by the evidence.” The majority in that court found A to be a “completely credible witness.” The judges concluded that it could not be said that Pell never departed from the usual Sunday Mass routines, which, if true, would have meant there was no opportunity to commit the alleged offences. In the hearing, the key witnesses were A and B, and various individuals working at or engaged in the church, referred to as the “opportunity witnesses” who attested to the usual routines of the church and whether there was an opportunity for him to commit the offences alleged. The majority, with Weinberg JA dissenting, found that the jury was not compelled to entertain any reasonable doubt as to Pell’s guilt. Weinberg JA, conversely, thought that a reasonable jury would have been led to have reasonable doubt.  

The Appeal to the High Court 

The appeal to the High Court of Australia was made on two grounds. The first was that the “majority erred by finding that their belief in A required the applicant to establish that the offending was impossible in order to raise and leave a doubt.” The second was that the majority should not have found that the verdicts were not unreasonable as “there remained a reasonable doubt as to the existence of any opportunity for the offending to have occurred.”

The Decision of the High Court 

It was held that 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.” The High Court allowed the appeal, but declined to remit the matter to the Court of Appeal or to revisit the matter itself (in the High Court). This would have meant that the case and all of the relevant evidence would be re-assessed, however the High Court said that all of the available evidence had already been placed before the court and that the convictions must simply be quashed. 

The Reasoning of the High Court

The High Court describes the layout of the Cathedral at length (see paragraph 11 of the judgment if you are interested). Paragraph 12 lays out the proceedings at the end of Sunday mass, when the choir, attendants and clergy exist via the west door of the Cathedral, followed by George Pell who would then “meet and greet” with congregants for 10-30 minutes. 

Charges 1-4

Pell did not give evidence at the trial but told police that the alleged offences were “most certainly false” but also “fundamentally improbable” due to him always being at the front of the Cathedral after mass for the routine meet and greet. 

A major issue in the appeal was the question of whether there was an opportunity for the offences to have taken place, given the strict routine followed after Sunday Mass. Another issue was the forensic disadvantage faced by Pell due to the allegations being brought over 20 years after the alleged offences.

As Pell and A are the only two people who can truly account to what happened, another major issue was the credibility of A. The Victoria Court of Appeal had found A to be a credible witness whose answers seemed “entirely authentic.”  The court acknowledged that the defence did not have to prove impossibility, and recognised that the test for whether the jury’s verdict was unreasonable would turn on whether on the whole of the evidence it was possible for a jury to be satisfied of the accused’s guilt beyond reasonable doubt.  

The majority in that court  acknowledged that there was no onus on the defence to prove impossibility, and correctly cited the test for whether the jury’s verdict was unreasonable, being “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (M v The Queen [1994] HCA 63). In the Victorian court, A was deemed to be a truthful witness and this led to the judges’ assessment that his evidence was consistent and cogent, while also informing their view that the opportunity witnesses and their evidence did not engender “a reasonable doubt as his allegations.” 

There had been questions about whether A changed his account in regards to how Pell had exposed his penis (it was suggested that it was impossible for him “to pull his vestments aside” in the manner that the first account claimed) and how A and B had re-joined the choir. The Court of Appeal majority did not consider that the variation in his accounts “was such as to have required the jury to entertain a doubt as to the credibility and reliability of his account of the offences.” Members of the majority of the Victorian Court of Appeal, moreover, had found that A’s detailed knowledge of the interior of the priests’ sacristy could operate to support the veracity of his account. The High Court said that “it was, with respect, beside the point to find that it was open to the jury to view A’s knowledge of the priests’ sacristy as independent confirmation of him having been inside it.” 

Pell’s legal counsel submitted to the High Court that the Court of Appeal had reversed the burden of proof by asking whether there was a reasonable possibility that A was correct, rather than proving that Pell was guilty beyond reasonable doubt, or in other words nengativing the “reasonable possibility” that he was not guilty. Essentially, in finding that it was reasonably possible for Pell to not have followed his usual Sunday Mass routine, it was also reasonably possible to find that he did. The prosecution did not prove that it was NOT reasonably possible for Pell to have been meeting congregants on the Cathedral steps following mass, and so did not prove his guilt beyond reasonable doubt. 

The High Court yesterday stated that “notwithstanding that the jury found A to be a credible and reliable witness, the evidence as a whole was not capable of excluding a reasonable doubt as to the applicant’s guilt.”  

The master of ceremonies at the time of the offences, Portelli, conceded that it was possible that on occasion an Archbishop might depart from their usual practice after Sunday mass, although he did not specifically recall it happening. He also recalled accompanying Pell back to his sacristy to assist him to remove his vestments on 15 and 22 December 1996. He conceded that it may have been possible that there was a time when he did not accompany Pell back to the sacristy but that he did not recall this specifically and that he would have made sure someone else accompanied him.  However, he said with certainty that this did not occur on the 15 or 22 of December because there were no other events for him to tend to that afternoon. There were various other testimonies as to both the usual, or “invariable”, practices of Pell and as to his movements on 15 and 22 December specifically.   

The Court of Appeal majority stated that the evidence given by various witnesses about Pell’s usual process following mass “must necessarily be affected by their recollection of the ritual that developed thereafter.” They questioned the witnesses’  actual recollection of what occurred on the specific days. According to the Jury Direction Act 2015 (Victoria), their Honours were required to consider the forensic disadvantage arising from the 20-year delay in the case being brought. This includes the lack of  inquiries at the time, a lack of specific recollection from witnesses of the specific Sundays on which the offences were alleged, the passing of time meaning that “some witnesses no longer presented the lucid and coherent evidence of younger men”, and the loss of B as a material witness. 

The High Court said that evidence of a habit, ritual or practice could help to establish actions on a specific occasion. Furthermore, the judgment stated that: “Contrary to the Court of Appeal majority's analysis, the absence of any "significant and unusual event" associated with solemn Mass on 15 and 22 December 1996 tells against the likelihood of Portelli having departed from his duties as master of ceremonies.”

“The honesty of the opportunity witnesses was not in question”, the High Court judgment states. Also, there was “no foundation for excluding the reasonable possibility that Portelli’s actual recall of accompanying the applicant to the priests' sacristy after solemn Mass on 15 and 22 December 1996 was accurate.” 

The High Court found that there was “a powerful body of evidence” attesting to Pell’s practice of engaging in a meet and greet for 10 minutes or more after Sunday Mass. Further, the High Court found that if A and B had broken away from the procession they “might reasonably be expected” to have run into altar servers, and it was also an “oddity” that they did not encounter any concelebrant priests in the sacristy corridor or in the priests’ sacristy. There were also issues with the timing of the account – the High Court took issue with the Court of Appeal’s analysis eliding the estimate that A and B had 5 to 6 minutes in which they would re-enter the Cathedral and make their way to the sacristy in which they were assaulted. Paragraphs 111 to 117 of the judgment deal with this at length. 

The High Court  found that the jury “plainly” should have “entertained a doubt as to the applicant’s guilt” on the basis of the “unchallenged evidence” of the opportunity witnesses. Therefore the High Court concluded that “there is a significant possibility in relation to charges one to four that an innocent person has been convicted.” 

Charge 5 

The Court of Appeal had found that it was possible that this “brief encounter had gone unnoticed.” They stated that "the evidence once again falls well short of establishing impossibility". They did not go into this charge in detail in their judgement, as they held that the evidence in relation to this charge “suffers from the same deficiency” as the evidence relating to the first four charges.

Conclusion

The conclusion of the High Court of Australia in relation to this matter comes down to the high burden of proof our legal system places on the prosecution to prove the guilt of an alleged offender beyond reasonable doubt. On top of this is the difficulty of proving sexual assault cases, particularly child sexual assault cases two decades on from when they occurred. Regardless of the strong probability that Pell committed the alleged offences, the court cannot hold that his guilt is beyond a reasonable doubt. 

You can find the full judgment at http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/12.html?context=1;query=Pell;mask_path=