The article quoted below, by our Founder and President , Mr Robin Speed was published in the News Weekly recently. It discusses the George Pell Appeal case in Victoria and addresses the issue of how the rule of law functions in appeal cases, especially those that have attracted considerable media and public attention.
Is Cardinal George Pell guilty of the sexual attacks with which he was charged? Having sat down before the Court of Criminal Appeal, listened to the appeal and read the evidence, there are two opposing camps.
There are those who start with the presumption of innocence, to which we are all entitled, and weigh up the uncorroborated evidence of the complainant with the corroborated evidence of Cardinal Pell and have a reasonable doubt about the accuracy of the attacks.
Then there are those who start with the presumption of guilt, ignore the corroborated evidence of Cardinal Pell and arrive at the opposite conclusion.
In arriving at a conclusion, I will not repeat the evidence, which is readily available elsewhere, nor advocate a conclusion, but will answer some commonly asked questions about the appeal.
Q A jury has decided that the Cardinal had committed the sexual attacks. Why is that not the end of the matter?
A The Cardinal, like any other convicted person, can seek leave to appeal to the Court of Criminal Appeal that the jurors’ verdict was in error as it was unreasonable or cannot be supported having regard to the evidence.
Q How does the Court of Criminal Appeal decide the matter?
A The Court of Criminal Appeal engages in a two-stage process: first, it considers whether the jury made a mistake; and, second, it considers whether the jurors’ decision was unreasonable or could not be supported having regard to the evidence. In practice, these merge into one – whether the decision was unsafe.
Q Is it a retrial before the Court of Criminal Appeal?
A No, it is not a retrial. The Court of Criminal Appeal reviews the evidence that was given before the jury rather than hearing the case over again.
Q Isn’t this case about who you believe, the complainant or the Cardinal?
A No, the complainant has said how the attacks occurred – on such and such a day, at such and such a time, in the presence of no witnesses, in such and such a room, where there was no lock on the room, while the Cardinal was robed for mass, while the Cardinal was seeing people after mass and so on. These are all facts the complainant said which made up the alleged attacks and they can be disputed by the evidence of others.
Q Why doesn’t the prosecution simply fail on appeal because the evidence of the complainant was only of one person and there was no corroborating evidence?
A In Australia the prosecution can succeed even if the evidence is of a single complainant and is not corroborated.
Q It does not matter if the Cardinal is innocent of what he was charged with, he was guilty of other sexual attacks.
A No, you can only be found guilty of something in Australia if you have been properly prosecuted and found guilty.
Q Was the jury entitled to presume the Cardinal was guilty and leave it to him to prove his innocence?
A No, everyone is presumed innocent. The prosecutor must prove in a criminal case that the accused was guilty beyond reasonable doubt. There is good reason for this. First, it reflects how we treat others, with justice and fairness. Second, it reflects social policy. The prosecution, as the government, has significant resources, time and money. The accused, no matter how rich, has not the same resources, time or money. We require the prosecution in Australia to bear the burden of proving what it alleges.
Q Why is it that, before the appeal, the fact that Cardinal Pell did not give evidence at his criminal trial is not the end of the matter?
A An accused person does not normally give evidence at his trial. In this case, the video of the Cardinal answering detailed questions from the police was played to the jury.
Q The presiding chief judge at the trial, Judge Peter Kidd, ensured there was a fair trial by ordering, in the course of the trial, that no evidence given in the trial be reported in the media.
A No, this did not ensure a fair trial. The jurors had already been subject to extensive publicity about the guilt of the Cardinal that made it impossible to have a fair trial: that is, a trial in which the jury could reasonably have been expected to find Cardinal Pell innocent. A damning book about the Cardinal had been published in which author Louise Milligan epitomised and culminated the media attack. Moreover, police had leaked information to select journalists about Cardinal Pell.
Added to that was the Royal Commission into Institutional Responses to Child Sexual Abuse, which served to create the impression that children were routinely abused by Roman Catholic priests as bishops stood by and did nothing.
Q Was it sufficient for the prosecution to prove on appeal that there were parts of the prosecution case that were believable?
A No, the question for the Court of Appeal is whether on the whole evidence it was open to the jury to find beyond reasonable doubt that Cardinal Pell was guilty.
Q Did the first trial end in a 10-2 acquittal?
A This has been reported but I have not been able to verify it.
For my part, I have more than a reasonable doubt about the accuracy of the uncorroborated evidence of the complainant and see the Cardinal’s conviction as a grave injustice.
Robin Speed is president of the Rule of Law Institute of Australia. He was awarded an Order of Australia Medal (OAM) in the Queen’s Birthday honours for services to the law and charities.