The Acquittal of Cardinal Pell

If these were normal times, the acquittal of Cardinal George Pell by the High Court of Australia might have received more international attention, though it did get some. See Pell v The Queen [2020] HCA 12. In December 2018, Pell was convicted by the County Court of Victoria on five charges (one of sexual penetration of child under 16 years and four of committing an indecent act in the presence of a child under 16 years). He was sentenced to 6 years’ imprisonment, with a non-parole period of 3 years and 8 months. The Court of Appeal of the Supreme Court of Victoria, by a majority of two-to-one, upheld the conviction ([2019] VSCA 186). However, on 7 April 2020, the High Court of Australia, in a single judgment by all seven judges who had heard the appeal, quashed the convictions and ordered that judgments of acquittal be entered in their place. The case has many interesting aspects, but here I will mention only four.

(1) This was one of those relatively rare cases where a court of final appeal is asked to quash a conviction simply because the jury verdict was unreasonable. Appeals are more commonly based on legal errors alleged to have been committed in the course of the trial or in the judge’s charge to the jury. The test to be applied in Australia in an “unreasonableness” case like this was stated as follows by the High Court in Pell (at [39]):

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to the proof of guilt.”

The prosecution case was that Pell had committed the offences against two choirboys, A and B, on dates between July 1996 and February 1997 in St. Patrick’s Cathedral in Melbourne. This was shortly after Pell had been installed as Archbishop of Melbourne. The boys were about 13 years of age at the time. A first complained in 2015. B had died in accidental circumstances several years earlier. The first offence was alleged to have been committed when Pell caught the two boys drinking altar wine in the sacristy. The High Court judgment consists largely of detailed analysis of the evidence, including the so-called opportunity evidence, referring to evidence showing that it was improbable that the defendant could have committed the offences as alleged. Eventually, the High Court concluded (at [9] where is set out its disposition) 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” (quoting earlier authorities establishing this as the test).

(2) During the trial a suppression order had been made in respect of the complainant’s evidence, and a transcript of that evidence was not made publicly available. Other restrictions were also imposed. Further, Pell’s conviction was not publicised until two months after it happened, and then only when a second trial involving further allegations was dropped. There has been some academic criticism within Australia about this withholding of information. The strongest criticism came from American journalists covering the trial who found it difficult to understand why there was so much secrecy, even while accepting that the identities of the complainants should be protected. See, for example, Damien Cave and Livia Albeck-Ripka, “Cardinal Pell’s acquittal was as opaque as his criminal trial” (New York Times, 7 April 2020). Yet, there is also support for the practice within Australia. The President of the Law Institute is quoted as being opposed to releasing transcripts of a child complainant’s evidence lest it might reveal the complainant’s identity and deter abuse victims from coming forward. What we see here is, to some extent at least, a clash of legal cultures. In the United States, largely because of the First Amendment to the federal Constitution, there is a strong attachment to free speech and freedom of information. Few reporting restrictions are permitted before, during or after trial. This is not to say that fair trial rights are ignored or downplayed in the United States. They are protected different ways, as reflected in the very lengthy process that is often involved in selecting a jury. We would be closer in spirit and in practice to Australia than to the United States in this respect.

(3) The trial judge delivered a lengthy and detailed sentencing judgment: DPP v Pell [2019] VCC 260 (13 March 2019) available at http://www.austlii.edu.au. (A video of him delivering the judgment is still available at http://www.countycourt.vic.gov.au). If different views of the proper relationship between free speech and criminal justice values, discussed in the previous paragraph, reflect legal and cultural differences, the sentencing judgment reveals a strong element of legal convergence. The approach adopted by the trial judge and the principles he applied ring very familiar in this country and, indeed, in most common-law jurisdictions. Needless to say that sentence, of which Pell served over a year, has now been quashed, but the trial judge obviously had to sentence in accordance with the jury verdict. It was a difficult case to sentence. Pell was then a 77-year-old man, without previous convictions, otherwise of good character, with significant health problems and convicted of charges dating back more than 20 years. He also occupied one of the most senior positions in the Catholic Church. Further, in the lead up to his trial, he had been subject to an enormous amount of adverse public comment. The trial judge dealt with the last mentioned issue under the heading “Extra-curial punishment and public opprobrium”. While frankly accepting that the extent to which this should be treated as a mitigating factor was far from settled, he granted some reduction for it. He also accepted that imprisonment would be a more onerous experience for the defendant because of this factor. Another issue he had to address is also very familiar to the rest of us, and that was the long interval between the offences and the trial. On this point, he said:

“I am prepared to act upon the proposition… that sentencing practices for these offences were lower at the time of your offending.

That all said, I also take account that there is now a much greater understanding of the impact of sexual offending on child victims, and that this must be reflected in my sentence. As recently stated by the Victoria Court of Appeal: ‘In approaching the sentencing task, the court may bring to bear its present understanding of the devastating impact that offending of this kind has even though such an understanding may not have been a feature of sentences imposed at the time the relevant offending occurred.”

The judge did however consider the delay relevant to the extent that it allowed the defendant to show that in the intervening 22 years he had led an otherwise blameless life.

There is great value in trial court sentencing judgments such as this being made publicly available. I am not suggesting that all of them should be and, needless to say, anonymity, where legally required, should always be preserved. But trial judges often go to great trouble in crafting sentencing judgments in serious cases, judgments that could prove very useful if they were generally available.

(4) The High Court of Australia may have been unanimous in Pell, but the Victoria Court of Appeal was not. Two judges of the latter court decided to dismiss the appeal, but one, Weinberg JA, dissented. In fact, his dissent occupies paragraphs 353 to 1180 of the judgment. He concluded that the jury, on considering the whole of the evidence, ought to have had a reasonable doubt about the appellant’s guilt. The High Court, as we have seen, effectively agreed with him. Here in Ireland, the Court of Appeal is subject to a one-judgment rule when dealing with criminal matters. unless the case involves a challenge to the constitutional validity of a law (Courts (Supplemental Provisions) Act 1961, s.7A inserted by the Court of Appeal Act 2014, s.8). The Supreme Court, on the other hand, is under no such restriction when dealing with an appeal from the Court of Appeal, even in a criminal matter. See, for example, People (DPP) v Brown [2018] IESC 67 and People (DPP) v Forsey [2018] IESC 55. Arguments can certainly be made in favour of the present Irish rule, but the Australian experience shows that the sky does not fall if judges of a penultimate or intermediate criminal appeal court are permitted to give dissenting (or concurring) judgments. They might even be beneficial at times.

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