On 7 April 2020 the High Court granted former Cardinal George Pell leave to appeal against the decision of the Victorian Court of Appeal to uphold the jury’s findings of guilt against the Cardinal in December 2018. After hearing his appeal, the High Court found that the jury ought to have entertained reasonable doubt as to Pell’s guilt of each of the offences based on the evidence that was before the court. It acquitted him of the five charges.
Pell was found guilty of one count of sexual penetration of a child under 16 and four counts of committing an indecent act with or in the presence of a child under 16. The offending was supposed to have occurred on two occasions, one in December 1996 and the other in February 1997. Both incidents were alleged to have occurred at St Patrick’s Cathedral after Sunday mass. The alleged victims were two 13-year-old choirboys, one of whom had passed away before the charges were laid.
George Pell was found guilty on all charges by the second jury to hear the evidence (the first jury was unable to agree on a verdict). He was sentenced to six years imprisonment with a non-parole period of three years and eight months.
Court of Appeal
On 21 August 2019, the Court of Appeal upheld the jury’s findings of guilt by a majority decision, with Justice Weinberg dissenting.
The majority found that the complainant was a compelling witness and that despite the court hearing evidence of several ‘opportunity witnesses’ whose accounts were inconsistent with the facts alleged by the complainant, there was no compelling evidence that the routines and practices described were never departed from and therefore the jury need not have found there was reasonable doubt.
Justice Weinberg, dissenting, found that the unchallenged evidence of the opportunity witnesses should have been found to give rise to reasonable doubt.
High Court Appeal
George Pell appealed to the High Court on two grounds. The first ground was that the Court of Appeal erred in finding that the appellant needed to establish that the offending was impossible in order to raise reasonable doubt. The second ground was that the testimony of the opportunity witnesses raised reasonable doubt as to whether the alleged offending occurred.
The High Court found that despite the jury’s assessment of the complainant’s evidence as credible, it ought to have found that there was reasonable doubt as to George Pell’s guilt based on the opportunity evidence, which is summarised below.
Greeting congregants after mass
The court heard evidence that George Pell’s usual practice was to spend at least ten minutes after mass greeting congregants on the stairs of the cathedral. If he had adhered to this practice, the defence argued, he could not have been in the corridor outside the sacristies when the choir processed back through it.
Archbishop always accompanied while robed
The court heard evidence from the Master of Ceremonies that he always accompanied the Archbishop as he processed along the aisle to the west door after mass. George Pell always left the procession at the west door and stood there greeting congregants as they were leaving the cathedral for a period of between 10 and 20 minutes. The Master of Ceremonies then accompanied the Archbishop to the priests’ sacristy and assisted him to remove his vestments. He and other witnesses gave evidence that long tradition required that an archbishop not be unaccompanied in a church or cathedral during ceremonies.
The court also heard evidence from the cathedral’s sacristan, who said that Pell never returned to the sacristy unaccompanied and that if the master of ceremonies wasn’t there, then he would accompany Pell to the sacristy.
Other witnesses also gave evidence that Pell was never unaccompanied when robed.
The timing of the assaults
The court heard evidence that the sacristy was generally locked during mass, that the corridor outside it was always ‘a hive of activity’ after Mass, with people coming and going, altar servers bringing in implements and other priests vesting and de-vesting.
The prosecution alleged that the assaults occurred after the altar servers had processed into the sacristy and bowed to the crucifix and before the ‘hive of activity’ commenced. This left only a very short period of time – a couple of minutes – in which the assaults could have occurred.
The High Court found that the Court of Appeal did not err in finding that the complainant gave compelling evidence that was free of inconsistencies that would have required a jury to find reasonable doubt. However, it found that evidence had been heard from witnesses whose honesty was not in question, that George Pell was on the steps of the Cathedral for at least ten minutes after Mass on the day of the alleged offending, that he was accompanied by the Master of Ceremonies when he returned to the sacristy and that there was continuous traffic in and out of the sacristy for 10 to 15 minutes after the altar servers completed their bows to the crucifix.
This evidence led to a level of improbability that the offending occurred that required the jury to have had a reasonable doubt that Pell was guilty of the offences. There was a significant possibility that an innocent person had been found guilty.
In relation to the second incident, when Pell was alleged to have pinned the complainant to a wall and squeezed his genitals during a procession through the sacristy corridor after Mass, the High Court found the evidence suffered from the same deficiencies.
The complainant’s evidence of what happened in the second incident was inconsistent with evidence heard by the court from other witnesses that:
- The archbishop was always accompanied when robed in the Cathedral;
- The archbishop always spent time greeting congregants after Mass;
- The archbishop, as the most senior person in the procession, would be the last to proceed through the corridor, while the complainant, as one of the youngest members, would have been towards the front of the procession.
The court quashed George Pell’s convictions and entered judgments of acquittal in their place.
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