Cardinal George Pell leaves prison in Victoria on his way to Sydney

The High Court of Australia, in a unanimous decision by its seven judges, delivered on 7 April 2020, declared in the case of Pell v The Queen [2020] HCA 12 (at 9) that:

it is evident that there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.

The High Court did not, as child protection lobbyist Hetty Johnston has claimed, “set a new norm” or introduce a new test for “reasonable doubt”.

Nor was its decision based, as Professor Ben Matthews and Mark Nicholas Bernard Thomas assert, on a mere “legal technicality”.

Rather the High Court, in carrying out its judicial function as the final appellant court whose decisions are “final and conclusive”, was applying the test set out in Victoria’s Criminal Procedure Act 2009 which requires a conviction to be set aside if: “the verdict of the jury is unreasonable or cannot be supported having regard to the evidence”.

This High Court decision contains absolutely no new interpretation of the law. It simply applies established principles of justice to the case before it.

The specific principle the judges say they are applying is that where there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof” the conviction must be set aside and the accused acquitted.

Those decrying the High Court’s judgement should acknowledge that in doing so they are effectively calling for jury verdicts to be accepted as absolutely final – even where on the evidence there is “a significant possibility that an innocent person has been convicted”. In the decision this phrase is footnoted “Chidiac v The Queen (1991) 171 CLR 432 at 444 per Mason CJ, citing Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 618-619 per Deane”.

It is very interesting that Chief Justice Anthony Mason cited Justice William Deane’s dissent in the Chamberlain case. In that case Justice Mason, as he was then, had been with the majority of three judges which upheld the jury conviction of Lindy Chamberlain for the murder of her daughter Azaria.

Justice Deane was in the minority of two which favoured quashing the conviction and acquitting Mrs Chamberlain. He wrote:

Involved in the jury’s verdict was a rejection of the evidence of the Chamberlains and of the evidence that Azaria was heard to cry after the Crown alleges she was dead. Doing the best that I can, I have finally come to a firm view that, notwithstanding the jury’s verdict of guilty, the evidence did not establish beyond reasonable doubt that Mrs. Chamberlain killed Azaria.

That being so, the verdict that she was guilty of murdering her child is unsafe and unsatisfactory and constituted a miscarriage of justice. It necessarily follows that the evidence failed to establish beyond reasonable doubt that Mr. Chamberlain was guilty of the crime of which he was convicted.

All those who are in essence asserting that the High Court should never overturn a jury verdict on the grounds that there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof” should, for consistency, be calling for Lindy Chamberlain to be returned to jail to serve the rest of her life sentence without parole.

Indeed, having lost her appeal to the High Court, she would still be doing just that if the matinee jacket had never been found.

There is no need to rehash here the facts of the Pell case. The 43-page decision of the High Court is eminently lucid and entirely free of legal technicalities. It should be read in full by anybody wishing to understand the compelling nature of the case for his acquittal.

The seven judges of the High Court were in full agreement that any jury acting rationally ought to have had a reasonable doubt that Pell had committed the alleged criminal acts.

The evidence showed that there was, at the very least a reasonable possibility, that (a) Pell stood on the steps of the Cathedral greeting people for at least 10 minutes after Mass; (b) Pell was accompanied at all relevant times by his master of ceremonies or the sacristan and was therefore never alone; (c) that the priest’s sacristy was never unoccupied during at least this period, and certainly not for the 5 to 6 minutes required if the criminal offences had taken place in the manner alleged by the complainant.

Cardinal George Pell has steadfastly maintained his innocence. He pleaded “not guilty” to the charges. He has been acquitted by the High Court of Australia. His plea of innocence has been upheld.

There are some significant lessons which should be learned from the prosecution of Cardinal Pell.

First, do those who publicly barrack for an outcome rather than dispassionately assess the prospects of success do a disservice to complainants and victims? It may well be that the barracking clouded the ability to assess the obligation to prove a case beyond a reasonable doubt.

Those advising persons with allegations of child sexual abuse need to explain to them clearly what is required to obtain a verdict of guilty in a criminal trial in Australia – proof beyond a reasonable doubt. In those cases where this is unlikely, it is no service to complainants of child sexual abuse for police and prosecutors to pursue criminal charges.

Second, police and public prosecutors, whilst committed to obtaining a conviction, should never lose sight of their obligation to gather all the evidence and to assess it against their duty not to expose complainants to criminal trials which may last for many years, where on a rational testing of the evidence against the criminal standard of proof there is little chance of success.

It should have been evident very early in the police operation that the weight of evidence demonstrating that then Archbishop Pell could not have committed the crimes as alleged was such as to make a conviction unreasonable. Why did the police and the prosecutors proceed?

In conclusion, any reasonable person must thank the High Court for the clear restoration of the Rule of Law in criminal cases and not the Law of the Mob.

Damien Tudehope

Damien Tudehope is the New South Wales Minister for Finance and Small Business and a Liberal member of the state upper house.