What does Pell mean for me?

The recent decision of the High Court in Pell has captured the interest of not only Australians, but also the world. But what does the case mean for individuals who also find themselves accused of historical sex offences?

George Pell was tried before a jury in relation to allegations of five historical sex offences made by one complainant in relation to both himself (male A) and another young male (male B).

The allegations put before the jury were that in December of 1996, males A and B, who were both members of the Church choir, broke away from the choir procession after Sunday mass and entered the priests’ sacristy where they were located by Pell still dressed in his ceremonial robes. Male A alleged that Pell exposed himself to male B and forced male A to perform oral sex on Pell. He further alleged that Pell touched male A genitals, and whilst doing so also touched his own penis.

It was also alleged that in February of 1997 Pell cornered male A after Sunday mass during the choir procession, and forced him against a wall grabbing him by the genitals, despite being surrounded by other choir members.

Whilst male A was not the only witness to give evidence, the evidence provided by male A was unsubstantiated by any other witness. The other witnesses, ‘opportunity witnesses’, included other members of the Church or choir. Largely their evidence went to the usual routines and practices following Sunday mass, which was inconsistent with the allegations of male A. None of the evidence of the opportunity witnesses was challenged by the prosecution.

The decision of the High Court was not one which refuted or minimised the testimony of male A. Rather, the decision emphasised the need for complainant’s evidence to be considered within the entirety of the evidence in determining a verdict. Essentially the High Court found that the verdict of guilty was not reasonably open to the jury in consideration of the whole of the evidence, and that the Victorian Court of Appeal had, by majority, misapplied the legal test in determining an unsafe verdict.

The High Court found that there were a number of inconsistencies between male A’s evidence and that of the opportunity witnesses, all of whose honesty was not in questions, which:

  1. Placed Pell on the steps of the Cathedral for at least ten minutes after Mass on both occasions;
  2. Placed Pell in the company of the Master of Ceremonies when he returned to the priests’ sacristy to remove his robes on both occasions; and
  3. Described the priests’ sacristy as a ‘hive of activity’ in the 10-15 minutes after mass.

Therefore, in order for the jury to find the offences proved beyond reasonable doubt, the High Court found that the jury must have determined that there was:

  1. A departure from long-standing Catholic church practice that the archbishop never be left unaccompanied in the Cathedral whilst robed;
  2. Despite opportunity witnesses evidence regarding the continuous traffic in and out of the priests’ sacristy after mass, there remained a possibility that male A and B left the choir procession unnoticed, got into the sacristy, and were found and assaulted by Pell before anyone else entered;
  3. Pell departed from his traditional practice of greeting congregants on the steps of the Cathedral for a minimum of 10 minutes after mass;

Whilst High Court left open the possibility that the events occurred as alleged by male A, it found that the evidence as a whole demonstrated there to be compounding improbabilities that left open a reasonable possibility that the offending did not take place. Where such reasonable possibility is left open on the evidence, a finding of guilt is not available.

It is important to note that the High Court’s decision does not express new legal concepts or principles, but instead reaffirms decisions that require a jury to take particular caution where the entirety of the prosecution’s case depends on unsubstantiated evidence of one witness, and there is other evidence available which credibly challenges the witness testimony.

To argue a finding of guilt can be maintained simply because there is a possibility that the events occurred as alleged, would be to reverse the onus of proof onto the accused, requiring the accused to prove their innocence. To do so would ultimately undermine the principles on which the Australian justice system relies. The decision of the High Court therefore restates the responsibility of proving an offence beyond reasonable doubt lives with the prosecution alone, and as reaffirms the high standard of ‘beyond reasonable doubt’, particularly in relation to uncorroborated evidence.

BY Cara Maynard, Associate, Criminal Law, Sydney

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