Melbourne Catholic Cathedral vandalised / 9 News

The substantial ongoing hostility directed towards Cardinal Pell including vandalism of Church property despite the unanimous High Court judgment in his favour emphasises the need to promote community understanding of the reasons why the Court overturned his conviction.

The case against Pell rested entirely upon the unsupported allegations of one complainant. That in itself should not, and does not, preclude a jury from finding an accused guilty as convictions for sexual assaults and other crimes that occur in private demonstrate.

However, the case against Cardinal Pell was not one involving a factual dispute solely between a complainant and a defendant with no witnesses or other evidence available to assist in determining the truth of the accusation.

In support of Pell’s innocence was the unchallenged evidence of witnesses that affirmed (i) his practice of meeting congregants after Mass at the time when he was alleged to have committed the offences, (ii) that the Master of Ceremonies would accompany him at all times after Mass including to the priests’ sacristy where the offences were alleged to have occurred, and (iii) that after Mass the sacristy would be a ‘hive of activity’ with many individuals entering and leaving the room.

The High Court held that these three factors ‘required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt … [which meant there was] a significant possibility … that an innocent person has been convicted’. A similar finding was made in relation to the second assault that the complainant alleged had occurred in the Cathedral.

The High Court made reference to other factors that brought further doubt on the merits of the conviction but considered that these three factors alone provided a sufficient basis to acquit Pell.

The significance of the decision

It is unfortunate that some commentators are arguing that the High Court acquitted Pell on a technicality.

The use of the term ‘technicality’ implies that Pell was acquitted on the basis of some obscure legal rule or a ‘loophole’ in the law that has allowed a guilty person to walk free.

Such a position demonstrates ignorance of the High Court’s reasoning that affirmed that the jury should have acquitted Pell for the three reasons mentioned.

This is not an acquittal based on a ‘technicality’ but rather a finding that goes to the fundamental pillar of our criminal justice system: that the evidence against Pell failed to reach the evidentiary standard of ‘beyond reasonable doubt’.

That juries and courts can reach incorrect verdicts that need to be overturned should not surprise anyone as the many cases of wrongful convictions demonstrate. In Australia, for example, some of the more notable cases where unjust convictions have been overturned include Colin Campbell Ross, the Mickelberg brothers, Andrew Mallard and Lindy Chamberlain.

Those with ongoing doubts about the merits of the acquittal should actually read the High Court decision and the judgment of Justice Weinberg in the Court of Appeal, Australia’s most experienced criminal appeal court judge.

Many of those in the community who are angered about the acquittal would likely change their view after reading these judgments from some of the best legal minds in Australia explaining why the conviction had to be overturned.

What now?

Australians should be grateful that the High Court’s unanimous decision to acquit Cardinal Pell will go some way to remedying the harm his unjust conviction has caused to the national and international reputation of Australia’s justice system.

The case also highlights the need for changes to the Victorian legal system. In particular, the widespread hostility directed to Pell by the media and other sections of the community raised serious doubts about whether it was possible to empanel a jury that could fairly assess the evidence against him.

In New South Wales, South Australia, Western Australia, Queensland and the Australian Capital Territory it is possible to have a judge-alone trial that can assist in providing a fair trial of an unpopular defendant.

The Victorian government should give careful consideration to amending the law to provide judges with the discretion of allowing judge alone trials when it is in the interests of justice.

Consideration should also be given to establishing an inquiry into the conduct of the Victorian police to determine whether they adhered to appropriate professional standards in fulfilling their duties to the community.

An unfortunate outcome of the acquittal of Cardinal Pell may be to discourage individuals from reporting sexual assaults and other crimes to the police especially against a high-profile individual.

There must also now be grave concerns that there may be other individuals in Victorian prisons who have similarly been unjustly convicted but lack the resources necessary to appeal a conviction to the High Court.

One of the many benefits of a public inquiry could be to rebuild community confidence that Victoria Police has the capacity to respect the rights of both the accused and complainants and to competently investigate a complaint to determine whether there should be a prosecution.

The case also raises many questions about the professionalism of the media, especially the ABC in the light of its legal obligations under its founding Act to be accurate, impartial and objective.

Commentators such as Andrew Bolt and Gerard Henderson have provided detailed evidence of the failures of ABC journalists to fairly report on the investigation and legal proceedings.

These failures provide compelling grounds for also holding an inquiry into the conduct of the ABC.

The need to establish inquiries into Victoria Police, the ABC and other relevant organisations could easily be overlooked with the ongoing challenges of COVID-19 and the passing of time.

To help restore the confidence of Australians and the international community in our justice system and media organisations it is essential that this does not happen.

The opinions expressed are the author’s and do not express the views of his employer. Commentary is welcome and can be sent to greg.walsh@nd.edu.au

Greg Walsh

I am a Senior Lecturer in the School of Law at the University of Notre Dame Australia teaching a variety of units including Human Rights Law, Legal Philosophy, and Medical Law. My previous teaching...