The Only Reasonable Verdict Against Cardinal Pell Was Acquittal
COMMENTARY: The High Court of Australia’s unanimous decision restored to an innocent man his freedom.
The unanimous decision by Australia’s High Court — equivalent to the Supreme Court — to quash the convictions of Cardinal George Pell is momentous for both Australian justice and for the Church, both in Australia and universally. About the Church, another column.
The acquittal of Cardinal Pell restores to an innocent man his freedom. There was no doubt at the High Court that a massive miscarriage of justice had occurred. Returning the verdict less than a month after hearing arguments, the seven justices eviscerated the judgment of the Court of Appeal, which 2-1 upheld the jury convictions on five counts of sexual abuse of a minor.
“The [Court of Appeal’s] analysis failed to engage with whether, against this body of evidence, it was reasonably possible that [the alleged victim’s] account was not correct, such that there was a reasonable doubt as to the applicant’s guilt,” the unanimous High Court wrote.
Which is to say, in plain English, that the Court of Appeal did not bother to ask whether the evidence was sufficient for conviction. “It failed to engage” the critical question: Did the mountain of evidence against the sole, uncorroborated account of the alleged victim require an acquittal on the grounds of reasonable doubt? It was, without a single dissenting voice, a devastating rebuke of the majority in the Court of Appeal, which ruled against Cardinal Pell.
The High Court Takes Extraordinary Measures
The High Court was so convinced of the wrongful conviction of Cardinal Pell — termed an “unsafe” verdict in Australian judicial parlance — that it handled his case in three unusual ways.
- The High Court reversed a jury verdict. They did not find the process flawed and send the whole matter back for another trial. They determined that the only reasonable verdict was acquittal. Appellate courts are greatly deferential to juries. To flat out rule that the jury got it grievously wrong is rare.
- The High Court did not limit itself to determining whether the Court of Appeal acted properly in applying the law. Rather, it gave itself the scope to examine all of the evidence from the original jury trials. Indeed, the High Court judgment reviewed in comprehensive detail the key evidence, step by step, from the trial. That is not usually what supreme courts do, but it did so in this case to demonstrate that it was simply impossible to convict “safely,” namely beyond a reasonable doubt.
- The High Court moved with great speed. It was three weeks — lightning fast for a supreme court — from hearing the case to announcing that the judgment was ready. There is urgency when an innocent man is in prison, to be sure. But the speed of the verdict reflected the view of all seven justices that there simply was no case against Pell.
Shocking That Pell Was Ever Charged or Convicted
The real news is not that the High Court was so thoroughly convinced that Cardinal Pell is not guilty. The real news is that the jury and Court of Appeal were convinced that he was.
The charges against Pell were fantastic from the beginning. It was alleged that immediately after solemn Sunday Mass at St. Patrick’s Cathedral in Melbourne — his first there as the new archbishop! — Pell somehow slipped away from dozens of people in the procession, rushed back to the sacristy without being noticed by his attendants, found two choirboys there and orally penetrated them while still fully vested for Mass and with the sacristy door open. He then went back to the cathedral steps to greet the people. All this took place in six minutes according to the prosecution.
The secular equivalent would the prime minister of Australia leaving the House of Representatives chamber after a major speech, slipping away from his entourage, moving through a crowded lobby to a small waiting room, sexually assaulting two parliamentary pages with the door open, and then appearing before journalists six minutes later to take questions.
The alleged crime never took place. It could not have taken place as the complainant claimed.
Australian Justice Gets It Wrong, Again
This year marks the 40th anniversary of Australia’s heretofore most prominent criminal case, the “dingo” case, in which Lindy Chamberlain was convicted of murdering her own infant daughter. Chamberlain spent more than three years in prison for a crime she did not commit before her wrongful conviction came to light. Her conviction was the result of public vilification, police incompetence and prosecutorial aggression.
It would take until 2012 for Australian justice to confirm that she had been telling the truth all along. Last month the Australian Broadcasting Corp., which has led the public campaign of vilification against Cardinal Pell, aired anniversary commemorations of the Chamberlain case.
The Pell case was like the Chamberlain case. Public passions were inflamed against the defendant for religious reasons — Pell as a scapegoat for Catholic misconduct and mishandling of sexual abuse, Chamberlain as a member of a supposedly suspicious sect, Seventh-Day Adventists.
The High Court saved — albeit late in the day — Australia from another internationally embarrassing miscarriage of justice. Pell spent “only” 400 days in prison compared to Chamberlain’s more than three years, but that Australia got both of its most prominent cases wrong is a black eye for Australian justice. Cardinal Pell was able to get his case to the High Court. What about those less able defendants, victims of prosecutorial excess and jury mistakes, that languish wrongfully in jail because they could not manage an appeal with the country’s top lawyers?
A Corrupt Police Force
The High Court’s decision will do nothing to rescue the Victoria police, which handled the Pell case, from the disgrace into which it has descended. The state police force was revealed in 2018 to have engaged in an astonishing corruption of justice for nearly 15 years in organized-crime cases. The highest levels of the Victoria police used as a confidential informant the defense lawyer of the same accused it was prosecuting. And they lied to cover it up.
When the High Court became aware of the perversions of justice in Victoria, it characterized the police conduct as “reprehensible … and debased fundamental premises of the criminal justice system.” It was this police force that led the investigation into Cardinal Pell.
Now the case against Cardinal Pell has emphatically been dismissed, it is worthwhile to review the key dates of how the Victoria police and prosecutors orchestrated the matter:
- 2013 — Victoria Police set up Operation Tethering, which was an investigation into Cardinal Pell, even though there were no accusations against him. The police solicited — including with newspaper ads — potential charges. The Cardinal Pell investigation was never an investigation of a crime in search of the criminal; it was an investigation of a cardinal in search of a crime.
- 2014 — The charges against Pell were that he abused two choirboys in 1996 in the Melbourne cathedral immediately after Sunday Mass. One of the two boys, now an adult, died in 2014 of a drug overdose, having previously told his mother that he had never been abused. He had never made a complaint against Pell.
- 2015 — The other alleged victim comes forward/is solicited by the Victoria police. That the other choirboy is now dead, and unable to contradict the charges made, is convenient.
- 2016 — The Victoria police interview Cardinal Pell in Rome, in which he emphatically and utterly denies all such charges as false.
- 2017 — The Victoria police bring a vast array of charges against Pell, not limited to the alleged 1996 incidents in Melbourne. There are charges from more than 40 years earlier in Ballarat, accusing Pell of grotesque sexual assaults and rapes in public places, including a movie theater with other patrons present.
- 2018 — After a four-week preliminary hearing, the judge throws out many of the charges conjured up by the Victoria police, but permits the Melbourne cathedral charges to go ahead, as well as another set of much less severe charges from the 1970s in Ballarat. A jury convicts Cardinal Pell of the Melbourne cathedral charges in December 2018.
- 2019 — The prosecution drops the Ballarat charges from the 1970s, declaring that there is insufficient evidence for conviction.
- 2020 — Australia’s High Court throws out the convictions, ruling that there is a “significant possibility that an innocent person has been convicted.”
What’s Next for Australian Justice?
The High Court was never going to be the last stage in the Pell prosecution. Wrongful convictions are rarely rectified in the normal course of appeals, as Cardinal Pell’s was. Usually, it is new evidence that comes to light later, as it was in the Chamberlain dingo case. Alternatively, an official involved has a crisis of conscience and blows the whistle on police and prosecutorial malfeasance.
Had the High Court ruled against Cardinal Pell, exhausting the appellate process, there would have been further post-judicial developments. That’s how a wrongful conviction is usually overturned. There are no shortage of cases in Australia, Canada, Britain or the United States. In fact, the U.S. has something of a thriving artistic subculture in making movies about the wrongfully convicted.
The High Court’s judgment means that no new evidence is needed. But there still remains a reckoning to be had for the police and the prosecutors who abused their office. Justice, finally, has come for Cardinal Pell, but justice still remains to be done in this case.
Father Raymond J. de Souza is the editor in chief of Convivium magazine.