Cardinal George Pell was sentenced to imprisonment for serious crimes against a young man in his charge.

Before that could happen, the Crown (the DPP or prosecution) had to clear three hurdles.  The DPP must have found that there was a ‘reasonable prospect of conviction.’  Then a magistrate had to consider all the evidence and conclude that the available evidence was ‘of sufficient weight to support a conviction of’ an indictable offence.  Thirdly, at the conclusion of the prosecution case, it is open to the accused to submit that a verdict of not guilty should be directed on the ground that ‘there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’

The Crown satisfied the first two tests and as far as I know the accused did not submit that the case warranted a verdict of not guilty under the third heading above.  There were two further obstacles.  One of the protections afforded the accused is that the verdict of the jury must be unanimous. The first jury could not agree, and the verdict was only obtained on the re-trial.

The Crown case also survived on an appeal to the Court of Appeal by a majority decision.  All three justices reviewed all the evidence given by the accused, and the majority found the complainant to be a ‘compellingly credible witness’ and that the circumstantial evidence did not entail that the jury had been compelled to entertain a doubt about the guilt of the accused.

The accused then sought and obtained special leave to appeal from that decision to the High Court.  That court allowed the appeal and directed a verdict of acquittal. The seven justices unanimously concluded that there was ‘a significant possibility that an innocent person had been convicted because the evidence did not establish guilt to the requisite standard of proof.’

In R v Doney (1990) 171 CLR 207 (par.  11) the High Court said:

There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict.

In the case of Pell [2020] HCA 12 (par 39), the High Court said:

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.., in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

My first reason for finding this case curious is that for a lawyer who does not practice in crime, I have great difficulty in following what if any is the substantive difference between the role of the trial judge in ruling against a submission of no case (as in Doney) and the role of the appellate court appellate court in determining whether the verdict of the jury can be found to be unreasonable.  The question then is this: if the verdict directed by the High Court is as plain as that court found, and only by reference to the evidence of the Crown, why was not the issue raised and dealt with in any of the procedures that led to the verdict in this trial?  It looks like I and others have had to foot the bill for the accommodation of the Cardinal on grounds that look to have been apparent from the start.

The second ground of curiosity relates to reviewing the video of the complainant’s evidence.  The accused argued against that course.  Not surprisingly, the Court of Appeal ruled against him.  But the High Court is at best very wary and a little terse about this practice.  Their Honours did not apparently view the videos.  In the result, a clear majority of those who saw the videos – part of the jury in the first trial, all of the jury in the second, and by a majority of justices on appeal – had no reasonable doubt about the guilt of the accused.  The verdict of acquittal was directed by those who did not see the tapes.

It may be that the High Court would have reached the same result after looking at the tapes, but logic is not an absolute master when it comes to observing due process in the administration of justice.  Among other things, it would be a shame if forensic ingenuity was thought to count for more than witness integrity.  Such a view would buttress a common prejudice of the type that was immediately on show when the High Court gave its judgment.  It was obvious that the views within the nation were split, among other things on sectarian grounds, and it was vital that any judgment should be determinative both in law and on the merits.  The results so far are not good – even if, as may have been predicted, the ignorance of some parts of the press was matched only by its arrogance.

It is a very strong thing for one appellate court to overturn the finding of another appellate court on the evidence as a whole without reviewing that evidence in the same form that the first court did.  In the fullness of time, we may learn how that process differs from a decision to ban a book taken without reading the book.  And some may prefer the simple and humane approach of the majority of the Court of Appeal to the Euclidian sterility of those who reached a different result.  The former is clearly more accessible to the community at large.

This then was not an ideal way to put to rest a fierce contest that is and will long remain in the public domain.  And it is out of tune with the felt need to give victims of sexual abuse a decent hearing.  What is the message that we are sending to victims of sexual abuse by those in power?  ‘Go ahead and complain.  Then give evidence.  And be cross –examined painfully and insultingly for days.  Then watch on as the accused refuses to submit himself to the same ordeal.  Then have your version – that has not been contradicted on oath by the man who attacked you – accepted by a jury and acted on by the court’s sentencing your assailant to prison.  Then have a majority of judges also accept your version on appeal.  And then watch the prisoner walk away because another group of judges takes a different view of the evidence to the first group.  Although they did not take the time to watch you giving your evidence.  When the effect of the evidence is under our law primarily a matter for the jury.  And when your version on oath has been accepted by the jury and the accused has never had to give his version in the same way.’

The so-called ‘best evidence rule’ may be dead as a dodo, but its rationale – common sense and ordinary decency – is not.  And our law knows a long history of preference for direct oral evidence over that which is ‘only circumstantial’.  (I refer to an observation of Holt, CJ in 1701 referred to in Thayer A Preliminary Treatise on Evidence at The Common Law, Little Brown, 1898, 489.)

We are of course here discussing only the criminal standard of proof.  If the Cardinal sued for libel on an allegation of sexual abuse, the onus would be on the defendant, but only the balance of probabilities.  And as a matter of fact, he would have to go into the witness box.

Similarly, if there was an issue about whether this man could be trusted in a position with access to young men in the future, then that issue would not be determined by saying that this man should retain the trust of his employer until a court found him guilty beyond doubt of a relevant offence.  This is not the first time this man has been the subject of a complainant by someone who was found to be an honest witness.  That as I recollect it was the result of a finding of Justice Southwell in a private hearing into complaints of sexual abuse against this priest.

There have therefore been two cases involving the Cardinal where people have found in favour of the honesty of the victim.  Just how an employer might assess the significance of such a history may require some judgment.  And no such issue would properly be resolved by giving the Cardinal the benefit of the doubt.  It is those who may be hurt that have to be looked after.  Putting the interests of the employer over those in possible harm’s way is precisely the cause of so many of our present discontents.

A lot of this is unclear to me.  But two things are clear enough.  First, we would not be having this discussion if the accused had given evidence.  As far as I know, we are yet to hear why he declined to face his accuser from the witness box – a course that it is very difficult to square with his loud assertions of innocence and desire to have his day in court and see justice done.

The second is that Lindy Chamberlain must be asking what star she was born under or what bus she was run over by if Cardinal Pell could get a verdict set aside but she could not.  For we now know that not only was Lindy not guilty – she was also actually innocent.  Only the keenest of the faithful would ever say that of the Cardinal.