11 October 2019 | Comment | Article by Samuel Barker

HJ Talks About Abuse: Cardinal Pell Sexual Abuse Case Update - Appeal Verdict

Cardinal Pell was convicted in the County Court of Victoria by a Jury for sexually assaulting two children in the sacristy.  This was appealed to the Victorian Court of Appeal. In this week's episode of the HJ Talks About Abuse podcast, we are discussing the outcome of this appeal, what Cardinal Pell's next move might be and the larger consequences of this case.

There were three central grounds of appeal, two were legal and one based on the factual outcome.  Those were:

  1. Pell was not arraigned “in the presence of” the Jury pool. The argument being that the accused ought to be able to enter their plea in front of the potential Jury.  Given the size of the Jury, Pell entered the plea by video link.
  2. Pell’s defence team was not permitted to screen to the Jury a video animation of the alleged crimes, which Pell says would have shown he was unable to commit the crimes as alleged without someone witnessing it.
  3. The Jury’s verdict was so unreasonable that no reasonable juror would have arrived at that opinion on the basis of the evidence.

Split decision of the Court of Appeal, with all three judges agreeing on the two points of law and two of the three finding the Jury verdict was not unreasonable, the third finding that it was unreasonable on the evidence.

The unanimous opinion in relation to the first two points is not surprising – those are technicalities and do not result in a miscarriage of justice.  The judges in fact found that playing the virtual representation would have in itself been extremely prejudicial to the prosecution and would mislead the Jury.

The final point – whether the finding was open on the evidence, requires a very technical analysis of the evidence shown to the jury and the jury’s verdict.  It is not a matter of retrying the facts of the case; it is a matter of analyzing whether the verdict was open to the jury on the facts.  This is a very high bar because it is at first principle the jury which is required to be the arbiter of the facts – not the court.  Therefore, a substantial miscarriage of justice would need to be shown to overturn the jury verdict.

The Court of Appeal needed to assess this, along with an assessment of the complainant – is the complainant credible and reliable and the account detailed, consistent and plausible?  If so, then it is difficult to justify overturning the jury’s verdict and this is indeed what transpired.

Two of the three justices found the complainant a credible witness and so the verdict stands.

So where to from now?    

Pell has one final avenue of appeal – to the Australian High Court, the highest court in Australia. 

In order to do this, Pell must obtain leave from the High Court to bring the appeal.   Pell’s legal team will need to convince the High Court that:

  1. Whether the proceedings involve a question of law that is of public importance or in respect of which the High Court is to resolve differences of opinion between different courts or within the one court, as to the state of the law; and
  2. Whether the interests of or administration of justice require consideration by the High Court.

As outlined at the start, two of the questions were those of law and the Court of Appeal judges agreed unanimously.  It seems unlikely the High Court would consider these points of law – technicalities at that – are sufficiently important to the public to require consideration by the High Court.  

The third point – whether the jury verdict was unreasonable and not open on the evidence, is, as noted earlier, not a question of fact as the facts can’t be retried, but a question of whether, on an assessment of the evidence, the verdict was open to the jury and reasonable.

It is difficult to see the High Court granting leave for a third consideration of the factual matrix.  The importance of the jury assessing the evidence and returning a verdict in Australian criminal courts is enshrined in the constitution.  This is why the bar is so high in overturning the verdict.  The Court of Appeal then undertook the enormous task of itself analyzing the evidence and attending viewings of the same sacristy (the room in the church where the abuse was alleged to have been committed) the jury was shown and upheld the verdict – with one dissenting opinion.  The High Court engaging in further scrutiny appears to undermine the process itself. 

Further, what message does this send to survivors of sexual abuse?  Your allegation will not just be subject to examination by a jury, but also the Court of Appeal and then the High Court?  This wouldn’t, of course, be the case in most matters, but regardless, it is the message sent in this instance if Pell is allowed to make an appeal to the High Court.

The jury’s verdict has been scrutinized by fine legal minds.  The verdict was upheld.  A further examination would undermine the public’s faith in the judicial system.  Historic sex cases are by their very nature difficult to prosecute. 

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse found that 57% of survivors first disclosed as adults and it took an average of 31.9 years to disclose.  This undoubtedly plays to the benefit of those who sexually abuse children.  There is no doubt evidence will not be of the best quality 31 years after the fact, but this should not avoid prosecutions for crimes involving child sexual abuse – instead, rigorous measures to scrutinize the facts should be implemented. 

In Pell’s case, this has occurred.  Pell had the best legal defence money can buy.  He was represented by two of Australia’s leading Queen’s Counsel – one of the best criminal defence advocates in the land and one of the best appellate advocates.  The facts were scrutinized by a jury and then a bench of three Court of Appeal judges.  The matter should be finalised.

Having said this, given the public division on the case and how seemingly important it is to many faithful – it might be that the High Court is convinced a third go is justified.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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