Cardinal George Pell’s formidable defence team presented Victoria’s county court and the court of appeal with what they described as “13 solid obstacles in the path of a conviction”, which they said proved the abuse of two choirboys by Pell in 1996 could not have happened.
This week, two out of three appellant judges decided that those 13 reasons fell “well short” of such a conclusion. It was not the role of those judges – chief justice Anne Ferguson, court of appeal president justice Chris Maxwell and justice Mark Weinberg – to decide Pell’s guilt. Rather, the question they needed to consider was whether the 12 jurors who found Pell guilty in December must have held a reasonable doubt as to his guilt based on the evidence before them; not that they could have, or should have. This was vital to Pell’s appeal on the key ground that the jury made an unreasonable decision.
Ferguson and Maxwell found the complainant’s evidence against Pell was “rightly characterised” by prosecutors “as compelling, both because of the clarity and cogency of what [he] said and because of the complete absence of any indication of contrivance in the emotion which [he] conveyed when giving his answers”.
Their finding has not satisfied some public figures insisting on Pell’s innocence, certain that jurors got it wrong. Pell supporters have focused on Weinberg’s disagreement with Maxwell’s and Ferguson’s findings on the unreasonable ground of appeal. Much of this commentary has ignored the fact that in a criminal trial, it is entirely up to jurors to decide the facts of the case, and that it is not uncommon for appellant judges to disagree on appeal.
Jurors are entrusted with reaching a verdict based not on gut instinct or emotion, but an analytical view of the evidence, combined with clear and strong directions from the judge and their own life experiences and reflections. It can be acceptable for jurors to believe the word of the complainant above all others, even in the absence of other witnesses. If this were not the case, rapists and abusers would never get convicted since these crimes rarely have an audience. On exceptional occasions jurors, like judges, get it wrong. But being wrong usually occurs in conjunction with misinterpretation and misapplication of the law, poor directions or a clumsily held trial.
What the public did not see during Pell’s trial, which began in November and ran for five weeks, were the exhaustive arguments and discussions that occurred in the absence of the jurors between prosecutors, Pell’s defence team and the chief judge, Peter Kidd. These discussions involved how evidence was to be presented to jurors and what jurors were not to be told. They laid the framework for cross-examination and re-examination. Importantly, there were robust but amicable discussions about the directions and warnings the jurors were to be given by Kidd.
One decision was that jurors would not be told that Pell’s second victim died from an accidental drug overdose. Jurors might have read too much into the cause of death, deciding he was not to be trusted due to his drug use, or that he turned to drug use because of the abuse. What is not told to jurors can be as vital to a fair trial as what is.
The jurors listened to Kidd intently. He repeatedly directed them not to make Pell a scapegoat for the Catholic church. He told them it was not enough to simply believe the complainant. In order to convict, they had to believe the complainant beyond reasonable doubt. These comprehensive, clear and, at times, stern directions included warnings not to research Pell on the internet, warnings that Pell was at a significant forensic disadvantage given the passage of time since the offending, and reminders that it was up to the prosecution to prove the case, not Pell to prove his innocence.
The jurors were diverse, and included a church pastor, a mathematician and a tram driver. Over four days of deliberating, they reached the same conclusion: that in 1996 Pell sexually assaulted two 13 year-old boys after Sunday solemn mass at St Patrick’s Cathedral in the priest’s sacristy. Pell orally raped one of the boys during this incident and indecently assaulted both of them. Pell offended a second time against one of the boys a month later, when he grabbed the boy’s genitals in a church corridor, once more after Sunday solemn mass. He was convicted on four counts of an indecent act with a child under the age of 16 and one count of sexual penetration with a child under the age of 16.
Ferguson and Maxwell said in their written reasons for dismissing Pell’s appeal that “it can be said with confidence that no advance in technology can ever replicate the unique features of jury deliberation and decision-making”.
There has been debate since Pell was first charged about whether Victoria should introduce judge-only trials. The thinking in other jurisdictions is that a judge, with all their experience and training, is more capable of casting aside prejudices and making a fair decision.
But there is also little empirical research to support this claim, even in complex, high-profile cases. A 2018 paper from the University of Sydney law school, led by Rebecca McEwen, found: “The danger is that the assumption that a trial by judge alone is an adequate response to the problem of prejudicial publicity may stymie efforts to evaluate the true impact of such publicity and the best ways to ensure a finder of fact (judicial or lay) is able to make an impartial decision. That, in turn, risks undermining the integrity of the criminal justice system.”
The jury system is a fundamental pillar of Australia’s legal system. To suggest there is something fallible about the jury system in Pell’s case in the absence of any procedural unfairness is to suggest the entire criminal legal system is fundamentally flawed. It would be to suggest that every jury trial might have been better or differently decided by a judge alone.
We can never know what discussions occurred between the jurors who heard Pell’s case. But perhaps some of them knew that grooming is not always a hallmark of child sexual abuse. That children often don’t tell anyone about being abused for years, or decades. Perhaps they knew, as the child sexual abuse royal commission revealed in its exhaustive five-year inquiry, that children were frequently abused by members of clergy, in churches, in sacristies, in private homes and public places, and this abuse sometimes occurred while offending priests were wearing their robes.
Much has been made of the fact that the full transcript of the complainant’s evidence in the trial has not been made public. Every day, rape and assault cases are written about in the media, with the victim’s evidence occurring behind closed doors in front of the legal teams and jurors alone. No one demands the full transcript of the victim testimony in those cases. The way the complainant has been written about in Pell’s trial would leave some thinking we know nothing about his evidence, when, in fact, we know comprehensive details of his testimony because it has been heavily quoted, both during the trial and the appeal.
We know that he and the other choir boy were sobbing during their assault, in shock, and whimpering. During the offending, Pell told them to be quiet. We know the boys did not complain to anyone. The complainant said during the trial that he feared losing his prestigious scholarship to St Kevin’s College in Toorak if he said anything, given singing in the choir was a condition of the scholarship.
There can be no public service or interest in interrogating the complainant’s evidence during trial without the context and benefit of the jury directions from Kidd, and the full addresses from the legal parties. In the words of Ferguson and Maxwell: “The purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters.
“It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.”
Pell supporters will hope Weinberg’s comprehensive dissenting judgment will see Pell through an appeal to the high court. Few defence barristers in Victoria will weigh-in publicly on the case or the prospects for high court success, so heated and divisive are opinions on the trial. The founder of O’Brien Solicitors and criminal defence lawyer Peter O’Brien, who practises in NSW, says those relying on Weinberg’s dissent for the case to be heard in the high court may be disappointed.
“The high court is not generally interested in questions of fact but matters of law,” O’Brien says. “They are also interested in issues of high public interest. The fact Cardinal Pell is a very public figure who has been convicted doesn’t mean it’s a matter of public interest, it has to be a matter of public interest so far as law is concerned.
“Very rarely will the high court descend into matters associated with facts of a case. If I had a client in this situation, I would be advising them that their chances of high court success are very slim.”