The Precedent Set

With the acquittal this week (Tuesday 7 April 2020) of Cardinal George Pell, many words will be written, both in published media and in social channels. Many people will be appalled by the decision and personally offended that the Cardinal will walk free. For many people, victims of abuse and families of victims, this will come across as a further blow in a society where the odds are already rigged against them. Yet this decision is the only way that justice, in this case, could have been served, and it redresses a terrible travesty of jurisprudence and a frankly horrifying legal precedent.

The case against George Pell has been found insupportable in the High Court of Australia. On the basis of the evidence presented in the trial, the seven judges of the High Court found unanimously that it would be impossible for an unbiased person to dispel all reasonable doubt as to Pell’s guilt.

The prosecution built their case on the sworn testimony of a single victim/witness. Testifying over multiple days, undergoing cross-examination and providing a level of detail the judges and jury found believable and credible, the victim’s statement was damning.

Against that, the defence arrayed a formidable collection of testimony, evidence and witness statements casting doubt on every aspect of the prosecution’s case. From the physical ability to commit the alleged crime, to the opportunity to do so (was Pell really alone with the boys for any length of time after a Sunday service, when his attested habit was to meet-and-greet parishioners on the front steps, and when he was always attended while in robes), right through to personal character references.

By most accounts, the prosecution in the case spent their time explaining why the crime was possible, in the face of this defence evidence, rather than showing that the crime was committed, based on prosecution evidence. According to the statement released by the High Court, the defence evidence was “uncontested” by the prosecution.

It is not the job of the defence to prove that their version of events is true. Which makes it remarkable that the prosecution spent their energies introducing “reasonable doubt” about the defense testimony. It was uncontested, for example, that the Cardinal was in the habit of greeting parishioners on the steps of the cathedral after a Sunday service. All the prosecution could do was argue that it was possible that on this occasion that habit was not followed.

In our modern system of jurisprudence, the accused is considered “innocent until proven guilty”. It is the job of the prosecution to show how and why the accused committed a crime, and provide evidence to support the contention. The defence has the job of casting doubt upon the evidence presented with their own, contrary evidence. The prosecution must then disprove the defence evidence beyond reasonable doubt.

The High Court has concluded that the prosecution in Pell’s case did not do this. Showing that a particular event is possible is not equivalent to proving that it happened, or even is likely. Proving that commission of a crime is possible does not constitute proof that it happened.

A criminal trial rests on one equation and one only: does the evidence for the prosecution outweigh the evidence for the defence? If not, reasonable doubt must remain.

In the case of Pell v The Queen, every piece of evidence tendered – excepting the testimony of Witness A – was provided by the defence. The High Court has adjudged that the prosecution did not adequately disprove that evidence, such that an unbiased jury could dismiss it out of hand. The High Court case was not a judgement on the guilt or innocence of Pell, or the honesty or otherwise of the witness, but a reflection on the flawed processes of the earlier trials. Simply put, the prior trials convicted George Pell on the strength of one person’s testimony and ignored all the evidence to the contrary. The precedent this sets, should it have been allowed to stand, is monstrous.

The requirement for evidence protects us all from abuse by those who would do us harm. The presumption of innocence protects us from being judged before the evidence has a chance to convict. Arguably it has failed George Pell, perhaps because too many people look at him with a presumption of guilt, due to his history, his involvement in church cover-ups, or merely the fact he is a Catholic priest. Pell’s history, his sordid past protecting abusers in the priesthood, his faith and his personal arrogance are irrelevant to the case at hand: was there evidence that he committed the crimes of which he was accused? And does that evidence outweigh the evidence from the defence?

When a citizen is prosecuted for a crime, evidence is required. To successfully make a case, there must be cause to believe the accused person committed the crime. Convicting them in the absence of such evidence is something we have colloquial terms for. Kangaroo Court is one. Witch-Hunt is another. The trial against George Pell edges perilously close to being a witch hunt, and as multiple commentators have noted should never have come to trial. The prosecution did not have evidence to support their case, and could not adequately dispute the evidence that supported the defence.

This will not be a popular opinion. For many, the knowledge that a victim will not get justice rankles. More, it points to the continuing imbalance of power: when those in positions of authority abuse their trust, it can be nigh impossible for the powerless to obtain redress. In cases of sexual or other abuse, there is often no trial-ready evidence available, and in the current system this means that some victims will never receive justice.

Are there only two ways to handle this kind of crime? Either unquestioning acceptance of an accusation, or rigid adherence to a system that makes a conviction nearly impossible in all but the most egregious of cases, the worst of offenders? There ought to be a middle path, where the wronged can be heard and redress made, but the accused sinner might only have their life irrevocably ruined when there is enough proof to convict.

The National Redress Scheme goes some way to accomplishing this middle way, but it will not suit all cases. The shift in public opinion and the way such cases are treated will also have some effect. We now treat allegations of abuse with the importance they deserve and we are not so quick to dismiss or belittle them. We are able to believe the testimony of a victim without necessarily being in a position to bring their abuser to justice.

The fact remains that for many victims the only proof they have is their word, against which can be arrayed an army of evidence and cabals of powerful men. In many cases – maybe even most – it is not worth bringing a case to trial. And this means that many victims will never have their day in court, and that some offenders will never face justice.

Nevertheless, George Pell’s acquittal was the right decision, and should give every Australian some comfort that they, too, cannot be convicted of a crime where there is no evidence to support it. If there is to be any silver lining found in the court’s decision, it is here.

Perhaps a guilty man went free, but that’s a better system than one where the innocent person can be convicted.