What’s next for George Pell

By Rick Morton
Saturday Paper
April 13, 2020

https://www.thesaturdaypaper.com.au/news/law-crime/2020/04/11/whats-next-george-pell/15865272009669

Cardinal George Pell left Victoria’s Barwon prison a free man on Tuesday, but there was no great crescendo at the end of the long and bitter legal fight, just a moment of startling grace from the man who accused him of assault.

“I respect the decision of the High Court. I accept the outcome,” read the statement from Witness J, issued at 12.20am on Wednesday.

“… I would like to reassure child sexual abuse survivors that most people recognise the truth when they hear it.

“They know the truth when they look it in the face. I am content with that.”

In his own statement, released after more than 400 days in jail, Cardinal Pell thanked his legal team and described them as throwing light on manufactured obscurity. “I hold no ill will toward my accuser, I do not want my acquittal to add to the hurt and bitterness so many feel,” he said, “there is certainly hurt and bitterness enough.”

Still, this is not the end of the Pell matter. There is at least one civil case waiting. A redacted chapter – involving the cardinal – of the final report of the Royal Commission into Institutional Responses to Child Sexual Abuse will likely be published. There is also the possibility Pell will seek an ex gratia payment from the state of Victoria or sue for malicious prosecution.

Reverberations of the decision have barristers worried about “kneejerk” changes to legislation. There is grief and shock and enraged factions.

On one side, the cardinal’s cadre of powerful conservative backers are spoiling for war. They have already targeted the ABC and “the media” for the crime of reporting the cardinal’s trials, one of which was aborted in silence and the other of which secured a jury verdict of guilty.

Survivors of child sexual abuse and their advocates stand on the other side, feeling as if justice has been ripped from their hands in a case that outgrew its natural proportions.

In the wash-up, these survivors have found themselves meeting resistance from other human rights campaigners who fear calls to “rebalance” the justice system may hurt the poor and dramatically rewrite the rules for criminal cases.

The High Court of Australia’s decision was remarkable in many ways.

For one, it’s rare enough to hear a special leave application to appeal. More than that, though, the court’s seven justices fell unanimously in their decision: they spoke as one voice.

“For the reasons to be given, 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’,” their judgement said.

“… As will appear, the Court of Appeal majority’s findings ought to have led to the appeal being allowed. It follows that the order of the Court of Appeal must be set aside and in its place the appeal to that Court allowed, the applicant’s convictions quashed and verdicts of acquittal entered.”

Neither the High Court nor Victoria’s Court of Appeal was required to second-guess the jury’s assessment of the complainant as credible and reliable. That much was clear and, legally speaking, is assumed by the appeal court.

Indeed, the seven judges of the High Court chastised the Court of Appeal majority for watching the videotaped evidence of the complainant. According to the High Court decision, it had no reason to “duplicate” the assessment of the jury.

“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,” the High Court judgement said.

This is a key point. On the whole of the evidence, including many so-called opportunity witnesses called by the prosecution, the High Court found their Victorian peers had erred in weighting the compelling evidence of Witness J over and above the “solid obstacles” presented by the other facts of the case.

“Their Honours reasoned, with respect to largely unchallenged evidence that was inconsistent with those allegations (the ‘solid obstacles’ to conviction), that notwithstanding each obstacle it remained possible that [Witness J’s] account was correct,” the judgement said.

“The analysis failed to engage with whether, against this body of evidence, it was reasonably possible that [Witness J’s] account was not correct, such that there was a reasonable doubt as to the applicant’s guilt.”

Mike Stanton, a barrister and spokesman for Liberty Victoria, tells The Saturday Paper it was a “resounding judgement” that has not dramatically changed the landscape of jury trials.

“I don’t think this has rebalanced the scales of justice,” he says.

“What the High Court found was that there was a body of exculpatory evidence that was not really challenged and that evidence, that opportunity evidence, had to create a reasonable doubt.”

Witness J’s lawyer, Dr Vivian Waller, agrees with this assessment.

“I would like survivors to draw some comfort from the fact that there is a long record of convictions in the state of Victoria,” she told the ABC on Wednesday morning.

“It is also true that each case must turn on its own facts and, in this case, the High Court was not satisfied that the prosecution had discharged the burden of beyond all reasonable doubt.

“But my message to survivors is: please, do not lose heart.”

On Wednesday, the Law Council of Australia released a statement that emphasised “nothing in the Pell case has overturned or diminished the crucial and primary responsibility of juries, not judges, to determine whether an accused person is guilty of an offence”.

“Rather,” it said, “the appeal has illustrated that there may be exceptional cases in which it appears that a jury has fallen into error because it has reached a verdict that was not reasonably open on the evidence.”

Nevertheless, there are moves afoot to lower the standard of proof in criminal cases involving child sex abuse, with one bill to amend the Evidence Act in New South Wales currently before the state’s parliament. The amendments, if passed, would allow as a matter of course “tendency and coincidence” evidence in child sex abuse matters. In short, the changes would allow evidence that shows the accused has a propensity to behave in a way that may indicate he or she committed an offence or assumes it would be a mere coincidence if they did not, in fact, commit the offence based on their history.

The NSW bill explicitly states that a court “is not to have regard to the possibility that tendency evidence or coincidence evidence may be the result of collusion, concoction or contamination”.

In February, Victoria announced it intends to reproduce the same provisions in its jurisdiction.

“What concerns us most at Liberty Victoria is what the legislative response will be based on the visceral outrage at the Pell decision,” Stanton says.

“Pell had significant resources and esteemed counsel at his disposal. He is not the typical defendant, in many ways, and these changes represent a significant weakening of the safeguards that protect the criminally accused.

“There has been a lot of criticism of Pell following the royal commission findings and there seems to be this vein of discussion where people say, ‘Well, Pell was a bad guy because of the Melbourne Response’ or ‘Pell was a bad guy because of the church’ and none of that should matter in the facts of this case.”

Greg Barns, a barrister who is advising the campaign to free Julian Assange, has similar misgivings.

“The danger here is that governments will use this case to further diminish the rights of defendants in historic child sex abuse cases,” he says. “There are wrongful convictions. Juries can and do get it wrong.”

Pell’s statement after being released from prison left open the question of compensation he might seek. Lawyers point to his use of the term “manufactured obscurity” as implying malice from either Victoria Police or the state’s Office of Public Prosecutions.

Barns points to other cases where compensation has been paid in Victoria for wrongful conviction, but says it would be difficult to prove in Pell’s situation. “That tends to come where there is something that shows a bit of malfeasance from the state,” he says. “Could he show that? I wouldn’t think so.”

Other barristers who spoke with The Saturday Paper said Pell could consider suing for malicious prosecution. “But that is a very, very difficult tort to make out and seems pretty unlikely,” one Victorian barrister said. “It seems pretty unlikely because there is no allegation that the prosecution have acted in any way maliciously.”

Pell may apply for an ex gratia payment from the state of Victoria, but there is no right to such compensation in law, and cases where these have been granted are rare, especially when the defendant has had a conviction overturned through the usual course of judicial proceedings.

Lindy and Michael Chamberlain remain a notable exception, receiving about $1.7 million in 1992 for their wrongful imprisonment and appeal costs.

There is a provision in the Appeal Costs Act in Victoria that allows a defendant to be paid “an amount equal to the appellant’s own costs of the appeal” if they are successful in their bid to a superior court to quash convictions.

Pell would be eligible for this provision, though the actual figure paid would be determined by the state’s Appeal Costs Board.

On the other side, the possibility of a civil action against Pell remains. The national practice leader at Shine Lawyers, Lisa Flynn, said her firm will “continue to pursue a civil claim” relating to the family of the other boy whom the cardinal was accused of abusing in the 1990s at Melbourne’s St Patrick’s Cathedral. He died of an accidental heroin overdose in 2014.

In civil courts, the burden of proof is substantially lower. There, a person need only show that something was likely on the “balance of probabilities” – and not beyond reasonable doubt.

On Tuesday, Attorney-General Christian Porter told reporters it was his “strong preference” that the presently redacted chapter involving George Pell from the Royal Commission into Institutional Responses to Child Sexual Abuse be released in a more open form.

Case study 28 examined the serial child abuse by Christian Brothers and Catholic priests in the Ballarat region, including Pell’s role as consultor to then Ballarat bishop Ronald Mulkearns, who was found by the commission to have moved serial paedophile priest Gerald Ridsdale, with whom Pell once lived, from parish to parish.

Much of the document relating to Pell is blacked out. Consultations between the federal attorney-general’s office and his Victorian counterpart could take weeks, Porter said.

“But my strong preference is to have as much of the information that has been redacted tabled with less redaction,” he said.

Pell made his way to Sydney this week after spending a night in a monastery for Carmelite nuns in Melbourne’s eastern suburbs. He may be a free man but his blazing path to the centre of the Catholic Church, where some predicted he would one day become pope, is much diminished.

He turns 80 next year, at which point he will lose the right to even vote for a pope.

Witness J is “relieved” the legal case has ended. “I have my ups and downs. The darkness is never far away,” he said on Wednesday.

“Despite the stress of the legal process and public controversy, I have tried hard to keep myself together. I am okay. I hope that everyone who has followed this case is okay.

“… This case does not define me. I am a man who came forward for my friend who, sadly, is no longer with us.”