June 12, 2019

On appeal: Cardinal Pell historic child sexual abuse case

Background

Cardinal George Pell has long been a controversial figure in Australian society.

To many he is a longstanding symbol of conservative Australian Catholicism whose aggressive reputation in respect of the defence of historical child sexual abuse cases involving the Catholic Church was confirmed during his testimony at the Royal Commission into Institutional Responses to Child Sexual Abuse.

To his supporters, including former Australian Prime Ministers, Tony Abbott and John Howard, he is seen as a conservative stalwart who is misunderstood. They say that Cardinal Pell has become a scapegoat for all real and alleged failures of the Catholic Church in Australia. These supporters point to Cardinal Pell's establishment of the first compensation scheme for sexual abuse victims in Australia, the Melbourne Response in 1996, as an example of his good deeds.

Prior to the Trial

In 2018, Cardinal Pell returned to Australia from the Vatican to face historical criminal charges of child sexual abuse. Cardinal Pell faced a committal hearing, which began in March 2018. At the conclusion of the committal hearing, the magistrate threw out the most serious charges owing to credibility issues of witnesses, other charges were withdrawn by prosecutors and Cardinal Pell was committed to stand trial for sexual assault allegations involving two then 13-year-old choirboys. The allegations were in respect of events alleged to have taken place in 1996.

The Trial

The original trial was held in August 2018 and resulted in a hung jury. A mistrial was declared and the trial was held a second time, beginning in November 2018.

On 11 December 2018 the jury returned a verdict of guilty on five charges; one count of sexual penetration of a child under the age of 16 and four counts of indecent assault of a child under the age of 16. Cardinal Pell was sentenced to six years gaol with a requirement to serve a minimum of three years and eight months before eligible for parole.

The Appeal

An appeal lodged on behalf of Cardinal Pell was heard in the Victorian Court of Appeal on 5 and 6 June 2019 before three Court of Appeal judges — Justice Anne Ferguson, Justice Chris Maxwell and Justice Mark Weinberg. Bret Walker SC appeared on behalf of Cardinal Pell and Prosecutor Chris Boyce QC, accompanied by trial prosecutor Mark Gibson QC, appeared on behalf of the Crown.

Cardinal Pell's appeal was based on a number of grounds, the key grounds being unreasonableness and the prohibition of video evidence in the defence's closing address.

Ground 1 - Unreasonableness

The key ground of appeal is that the jury came to an unreasonable verdict based on the evidence before them during the trial.

In respect of the unreasonableness ground of appeal, Cardinal Pell's appeal is complex in circumstances where at the trials there was only one complainant, with the second alleged complainant having denied being assaulted by Cardinal Pell prior to that complainant's death in 2014 from a heroin overdose.

The prosecution’s written submission to the court stated, in part: “When looking at the whole of the evidence, the integrity of the jury’s verdict is unimpeachable."

In response, Mr Walker SC argued that a "formidable list" of factors and events needed to line up for the alleged offending to have been possible and the jury would have had to believe every one of those factors had occurred. The factors put forward included that:

  1. Cardinal Pell being alone for about six minutes with the boys in the priests’ sacristy completely undisturbed and possibly with the door open after mass;
  2. The ability of Cardinal Pell to remove his robes to allow the alleged abuse to occur;
  3. The dates of the alleged abuse; and
  4. Doubt should have been raised among jurors from evidence that Pell’s second victim denied he had been abused before he died. 

When considering the unreasonableness argument, it should be noted that appeal courts generally trust a properly directed jury will comply with their duties and jurors are allowed to convict on the basis that they found one person believable. As a result, the Court of Appeal is likely to be cautious when considering this ground of appeal as it largely rests on the credibility of the complainant and it is the jury's role to assess credibility.

Additionally, we anticipate that the Court of Appeal will likely place significant weight on the fact that the complainant's evidence at the first trial lasted two and a half days and he was cross-examined for more than a day by Cardinal Pell's defence barrister, Robert Richter QC, who has a reputation for being one of the toughest cross-examiners in the legal profession.

Ground 2 - Prohibition of video evidence in the closing address

The second ground of appeal was that Chief Judge Peter Kidd erred by preventing the defence in its closing address to the jury from using an animated visual aid, which purported to show that the alleged abuse committed by Cardinal Pell was physically impossible.

Chief Judge Kidd did not allow Mr Richter QC to show a video during his closing address on the basis that the jurors might have viewed the video as evidence, and new evidence is not allowed to be introduced during a closing address. The law in Victoria is not clear in respect of the use of visual aids during closing addresses, and ultimately it’s a matter of discretion for the presiding judge.

During the appeal, the Court and Bret Walker, SC, discussed the complexities of appeal courts analysing videotaped evidence.

Conclusion

Cardinal Pell's appeal was watched with great interest by his supporters, detractors and the Australian public more generally. The Appeal Court judges have reserved their decision to be handed down at an unspecified date.

If Cardinal Pell loses his appeal, it is anticipated that the Australian government will strip Cardinal Pell of his Order of Australia honours and it will leave the Vatican in an awkward position in respect of its response to the confirmed conviction.

If Cardinal Pell's appeal is successful, the Court of Appeal may order a retrial, or allow the appeal and order that Cardinal Pell be acquitted. If this occurs, we can expect a public outcry from vast sections of the broader Australian community, including sexual abuse victim supporter groups and critics of the Catholic Church in Australia.

Whatever the outcome of Cardinal Pell's appeal, we can expect that the lively public debate in respect of his alleged innocence or guilt will continue for some time to come.