19 minute read
Cardinal Pell’s Case – A Trial and an Appeal Gone Wrong
By Warren Pyke*
Lord Atkin in Société d’avances Commerciales (Société Anomyne Egyptienne) v Merchants’ Marine Insurance Co. (‘The Palitana’) (1924) 20 Lloyds L Rep 140, 152
Cardinal Pell was installed as Archbishop of Melbourne on 16 August 1996. In 2018, Cardinal Pell was found guilty by a County Court jury in the State of Victoria of one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years. There had been an earlier trial, at which the jury were hung. While serving a term of imprisonment, he unsuccessfully appealed to the Court of Appeal in Victoria; one of the grounds was that the verdicts were unreasonable (Pell v The Queen [2019] VSCA 186, Weinberg JA dissenting). He was denied bail pending appeal.
On 7 April 2020, the High Court of Australia unanimously quashed all convictions on the ground that the verdicts were unreasonable (Pell v The Queen [2020] HCA 12). Cardinal Pell has since been restored to Holy Orders.
This case note examines why the High Court unanimously held that the jury and the State appeal court got it wrong. I also argue that grants of bail pending appeal ought to be more favourably considered where plausible and substantial grounds of appeal are raised and the appellant is of previous good character, or is vulnerable.
The circumstances of the alleged offences
The offences were allegedly committed in St Patrick’s Cathedral, East Melbourne (“the Cathedral”), following the celebration of Sunday solemn Mass on two occasions, within months of Cardinal Pell’s installation as Archbishop of Melbourne. The victims of the alleged offending were two Cathedral choirboys, “A” and “B”. By the time A made his complaint, B had died in accidental circumstances. The prosecution relied entirely upon the testimony of complainant A to establish guilt, and nothing more.
The setting and solemn procession
One cannot understand the High Court’s judgment unless the setting in which the offending was alleged to have occurred is visualised. The precinct buildings and ceremonies are described in detail in the judgments (the Court of Appeal’s judgment includes diagrams and extracts from the evidence).
The following were the circumstances in which the alleged offending occurred. After the dismissal at the end of each of the two solemn Masses, the choir, attendants and clergy formally processed down the Cathedral’s centre aisle. The choir processed in strict order. It was Cardinal Pell’s practice to leave this procession and remain on the steps of the Cathedral accompanied by his master of ceremonies (" the Master "), enabling him to greet congregants as they were leaving. While he did so, choristers returned to the choir room in the adjacent Knox Centre; altar servers and priests entered the Cathedral through the nearby sacristy corridor.
When presiding at solemn Mass, Cardinal Pell wore his choir robes, being a purple cassock worn under a white garment called a rotchet that extended down to the knees, and over which he wore a short purple cape; he also wore an alb, which is a white, ankle-length tunic, tied at the waist with a cincture (a rope knotted several times to keep it in place), a stole and a cross around his neck, with a green and gold cord worn down the back. In procession, he carried a crosier (a stylized staff that is a symbol of the governing office of a bishop).
The Allegations
A and B were aged 13 years at the time of the alleged offences. A was uncertain of the date of the two alleged incidents, which were separated by at least one month. He believed that both had occurred following a Sunday solemn Mass celebrated in the second half of 1996.
A alleged that he and B had broken away from the procession and had gone back into the Cathedral to the priests’ sacristy, which was unlocked. There, they found a bottle of red altar wine and drank some of it, whereafter the appellant was alleged to have appeared alone in the doorway saying, “[w]hat are you doing in here?” or “[y] ou’re in trouble”. A alleged that the appellant undid his trousers and belt and started “moving ... underneath his robes”; he is alleged to have taken B aside, taken his penis out and lowered B’s head towards it for “barely a minute or two”. A said that the appellant then pushed him down into a crouching position, while standing with his penis erect, and allegedly pushed his penis into A’s mouth; this was said to have occurred over no more than “2 minutes”. A also alleged that he was told to undo his pants; he dropped his pants and underwear whereupon the appellant touched A’s penis and testicles; as he was doing this, the appellant was alleged to have touched his own penis. These further acts of indecency occupied “a minute or two”. A said that he and B made some objections, and although they were sobbing and whimpering, they did not yell out. He added that the appellant told them to be quiet.
A and B then re-joined some of the choir in the choir room before leaving the Cathedral precinct to be picked up by their parents. A did not complain to anyone about this first incident. Nor did he discuss it later with B.
At a later Sunday solemn Mass at the Cathedral, A alleged that while he was processing with the choir back along the sacristy corridor towards the Knox Centre, but before reaching the door to the archbishop’s sacristy, the appellant, while dressed “in his full regalia”, appeared and pushed A against the wall, whereupon he briefly and painfully squeezed his testicles and penis. A did not say anything to anyone about this, nor did he tell B about it.
The judgments on appeal record that the prosecutor relied heavily upon an emotional exchange between the complainant and defence counsel during cross examination of A, in the context of questioning about why he had not told anyone about his allegations at the time.
Cardinal Pell’s denials
In October 2016, in a video-recorded interview with the police, which was played in evidence, Cardinal Pell emphatically denied the allegations, stating that “[t]he most rudimentary interview of staff and those who were choirboys” at the time would confirm not only that the allegations were “fundamentally improbable” but also that they were “most certainly false”. The applicant said that he and the Master were always at the front of the Cathedral after Mass, and that the sacristan and his assistant would have been in the sacristy cleaning up and bringing out the vessels and other items after the Mass; they would have been able to see the areas where the acts were alleged to have occurred. He added that the number of people milling about on such days meant that there was no chance that the allegations could be true.
Evidence given at trial
Numerous witnesses were called by the Crown who were unfavourable to the prosecution’s case; leave had been granted prior to trial for the prosecutor to cross examine them. These witnesses were asked whether the Archbishop’s vestments could be moved to the side or parted (to allow exposure of his penis), about accessways through corridors and the doors to the priests’ sacristy, whether the sacramental wine was always locked away, and whether it was possible for two choirboys to separate from the procession without being noticed. The answers were not helpful to the prosecution case. The prosecutor did not, at trial, pursue examination on these topics at any length, nor did he assert that these witnesses’ testimony was wrong or unreliable.
The Master explained that his church office had a long history, the duties of which are set out in learned works, which date back centuries. The teaching in these texts required that an Archbishop not be unaccompanied from the moment he entered a church. The Master gave evidence at trial that the two occasions in question were memorable because there were many congregants who wished to meet the new Archbishop. Further, that, at the conclusion of the “meet and greet”, he accompanied the appellant to the priests’ sacristy and assisted him to remove his vestments. His evidence on these points was unchallenged. An altar server also gave evidence that the occasions were memorable because the appellant was drawing a deliberate contrast between his administration and that of his predecessor, Archbishop Little (by adopting the practice of greeting congregants after Mass). A witness who had served as the Cathedral’s sacristan for 38 years testified that the appellant would never return to the sacristy unaccompanied, and that it was his responsibility to assist the Archbishop with removal of his vestments and to make sure that they were properly hung. He said that there was always a priest present to assist, or “one of us”. This evidence was corroborated by other witnesses; all of it was unchallenged.
The assistant organist described the priests’ sacristy as a “hive of activity” after every Mass. The choir marshal recalled that there were “people everywhere” in the sacristy corridor, with people “coming in and going out”, including altar servers bringing implements into the priests’ sacristy. He said that there were almost always several other priests acting as concelebrants who would vest and de-vest in the priests’ sacristy. This evidence was also not challenged.
The unreasonable verdict ground of appeal – the law
The High Court affirmed that the function of a court of criminal appeal in determining a ground of appeal that a verdict is unreasonable proceeds on the assumption that the evidence of a complainant was assessed by the jury to be credible and reliable; beginning with that assumption (unless it was obviously untenable), the appellate court’s task is to examine whether the jury were entitled to reach their verdicts based on that assessment. The appellate court should closely examine the trial record to see whether, notwithstanding the jury’s assessment – either by reason of inconsistencies, discrepancies, or other inadequacy, or considering the evidence taken as a whole – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt. This approach accords with authority from the Supreme Court of New Zealand, in R v Owen [2007] NZSC 102; [2008] 2 NZLR 37. In Owen, the Supreme Court held that a verdict will be unreasonable if, having regard to all the evidence, no jury could reasonably have reached a verdict of guilty to the standard of beyond reasonable doubt (observing at [5] that “a verdict of guilty based on some evidence is not necessarily a reasonable verdict”).
Another way of putting it is to ask whether a verdict of guilty can be supported by a reasoned and logical assessment of the evidence, set against the standard of proof. It is not enough that the appellate court might reach different conclusions about some of the evidence. The case for different verdicts must be clear and well-reasoned, in keeping with the historic restraint of appellate courts when determining appeals from jury decisions.
The Court of Appeal judgments
Both the Court of Appeal and the High Court had the advantage of being able to view for themselves the evidence in chief and cross examination of A, which had been visually recorded. This diminished any advantage the jury had by having seen and heard the witnesses.
It is convenient to look first at the dissenting judgment of Weinberg JA, since it accorded with the High Court’s opinion. Weinberg JA, who would have allowed the appeal, considered that there was ample material upon which A’s account could be subject to legitimate criticism: there were significant inconsistencies and discrepancies, and a number of his answers “simply made no sense” (Pell v The Queen [2019] VSCA 186 at 455). Weinberg JA did not assess A to be such a compelling, credible and reliable witness as to necessarily accept that his account proved the elements of the offences beyond reasonable doubt.
Other aspects of the case were reviewed, including the prosecutor’s questionable discounting of evidence of practice and habit (the prosecutor argued without an evidential basis that it was “entirely possible” that on the occasions in question the usual practice was not followed – this was an invitation to discount this clear evidence based on nothing more than speculation). Weinberg JA observed at [947] that an argument that a habit or custom may not have been followed on a particular occasion is not proof that it was not followed on that occasion: such speculation does not entitle the finder of fact to put such evidence to one side. Further, if the second incident occurred in the way A described it, it was highly unlikely that none of the many persons present would have seen what was happening. His Honour concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.
The eminent majority (Ferguson CJ and Maxwell P) disagreed; they held that the jury reasonably convicted the appellant based on A’s testimony alone, finding that the events as recounted by A could have occurred, since they were fleeting; and that evidence of practice and habit provided no answer at [333] to [351]. Relying heavily on statements of abstract orthodox principle about the constitutional importance and role of juries at [40] and [41], the majority saw no evidence that A “had been caught out or had tripped himself up” at [73], which experienced judges ought to have known is not common in criminal cases of this type – real criminal trials are not scripted like an episode of Perry Mason]. The majority deployed a familiar but questionable cliché, that the jury were “well equipped” to determine A’s reliability and honesty at [75]. The majority also referred to A’s knowledge of the interior layout of the priests’ sacristy, which their Honours found considerably enhanced the credibility of his account (however, the observation must be made that the Cathedral was not a mediaeval monastery: i.e., the sacristy was not a secret passageway known only to priests). “More striking still”, the majority said, was the fact that A identified the priests’ sacristy as the setting of the assaults given that, at all other times, the appellant would have used the archbishop’s sacristy: however, that observation was equally consistent with a fabricated account.
The High Court’s judgment
The High Court opined that the division in the Court of Appeal over the assessment of the case drew attention to the highly subjective nature of demeanour-based judgments (citing Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ, also cited in the Court of Appeal; for similar doubts about the weight to be given to demeanour, see Taniwha v R [2016] NZSC 121; [2017] 1 NZLR 116). Caution over the reliability of demeanour assessments is now settled law, which was recognised by all of the judges.
The High Court observed that the mere fact that A had been inside the priests’ sacristy did not afford any independent basis for finding that he had been sexually assaulted by the appellant, adding: “On any view of the matter, acceptance of A’s account involves that the appellant was not acting in accord with his regular practice and that he was an opportunistic sexual predator. A’s account would be neither more nor less inherently credible if the Archbishop’s sacristy had been available for the appellant’s use at the time” (at [51]). The High Court, at [53], added this important point: “There is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it. Nonetheless, it was not correct to assess the capacity of A’s evidence to support the verdicts on a view that there was independent support for its acceptance.”
The High Court added that an assumption that a group of choristers, including adults, might have been so preoccupied with making their way to the robing room as to fail to notice the extraordinary sight of the Archbishop of Melbourne dressed “in his full regalia” advancing through the procession and pinning a 13-year-old boy to the wall, was not rational. The Master’s evidence of having an actual recall of being present beside the appellant on the steps of the Cathedral as he greeted congregants on 15 and 22 December 1996 was unchallenged; it followed that the Court of Appeal majority was not entitled to have reservations about the reliability of the Master’s affirmative answers on this key issue. While he had demonstrated a lack of detailed recall of certain of the events, this was to be expected after the passage of 20 years. The High Court observed that the majority’s view echoed the prosecutor’s closing submission to the jury. Tellingly, this line of argument was not pursued by the respondent on appeal to the High Court. Further, the majority’s reasoning gave rise to an inconsistency in the way in which a jury must be directed under the Jury Directions Act 2015 (Vic): namely, the requirement to take into account the forensic disadvantage experienced by the appellant arising from the delay of some 20 years before being confronted with the allegations (a 10-year period of delay triggers this caution in New Zealand, see s 122(2) (e) Evidence Act 2006). By discounting a body of cogent evidence that raised real doubts as to the commission of the offences, the High Court considered that the majority in the Court of Appeal overlooked a likelihood that the memories of honest witnesses as to details might have been affected by delay, meaning their evidence should not be wholly rejected by reason of any such frailty.
Finally, the High Court criticised the majority’s discounting of evidence of habit or practice. The High Court cited Professor Wigmore as follows: “[e]very day’s experience and reasoning make it clear enough.” (Wigmore, Evidence in Trials at Common Law, Tillers rev. (1983), vol 1A, §92 at 1607). The majority’s assessment of the evidence of four witnesses to the effect that it was possible that the applicant was alone and robed, in contravention of centuries-old church law, overlooked the crucial missing element of this evidence: no witness said they saw him alone when robed. The majority’s reasoning entailed an implicit reversal of the burden of proof which led them to falsely reason that it was “quite possible” for the priests’ sacristy to have been unlocked, and that it was “open to the jury” to find that the assaults took place in the five to six minutes of private prayer time, before the “hive of activity” in the priests’ sacristy. The High Court found, in allowing the appeal, that this reasoning erroneously discounted any possibility of the boys running into others and failed to properly analyze the effect of the unchallenged evidence.
Bail and implications
Cardinal Pell was denied bail pending appeal. He suffered considerably while in prison. This caused Cardinal Pell psychological damage, as an interview after his release from prison shows (go to https://www.youtube.com/ watch?v=3OX2aUvG51I).
It is difficult in Australia and New Zealand for appellants to obtain bail pending appeal. I successfully argued recently in the Court of Appeal, in Waters v R [2019] NZCA 117, that an overlay to the statutory test, that bail pending appeal should be “exceptional”, “unusual”, or “rare”, should be rejected (such words cannot be found in the relevant test in the Bail Act 2000). While agreeing with this point, the Court held at [25] that these words may yet accurately describe the mountain that appellants must climb in order to get bail pending appeal, since appellants “have already been convicted and that will always be a very influential consideration.” Kós P (sitting alone) reinforced this point when observing, in Lock v R [2019] NZCA 163, that: “It would be wrong to conclude that Waters has parted substantially from the past, materially lowering the threshold for bail pending appeal. The language of adverse presumption has been the language of prosecutors, but it has not been the language of the Court. The reversal of onus, non-application of the presumption of innocence and undeniable fact of a considered determination of guilt, are all distinct obstacles to a successful application for bail pending appeal. Such applications are statistically less likely to succeed than applications pending trial, where those obstacles are for the most part absent. The passage quoted from Waters in the preceding paragraph reflects that reality.”
With respect, the language of adverse presumption had been the import of the language of the Court until Waters, and it is almost always the starting incantation of prosecutors. The ongoing use of such language tends to water down the individual applicant’s circumstances; it moves the focus away from human realities, particularly important when an appellant is a person with no prior or no serious prior convictions (and therefore who has never been to jail before). Such language can be a way of avoiding a confrontation with the hard realities of what imprisonment entails: the destruction of ordinary life, loss of regular contact with family and whanau, and often long periods of solitary confinement. Many inmates waiting for an appeal to be heard have been, to my direct knowledge, severely assaulted (including broken bones); they have been stuck in solitary cells for 23 hours a day, over many months; some have not been given adequate bedding and amenities; some have serious medical conditions that are not always adequately treated, and sometimes they are shifted to prisons at a distance from their family/whanau, supporters and lawyers (owing to muster overloads); these inmates are often friendless and alone.
What tends to dominate the analysis for bail is the strength of the grounds of appeal. In sexual offence cases it is not often possible to reliably predict the outcome of the appeal before written submissions are filed. The hearing of appeals can be unavoidably delayed while funding is obtained, and while attempts are made to obtain fresh evidence. Appellants' resources are not unlimited - these steps necessarily take time.
It ought to have been obvious that the Crown case against Cardinal Pell was built on a flimsy foundation of weak testimony and emotional appeal. The Court of Appeal observed at [3] that “he was ‘not to be made a scapegoat for any [perceived] failings … of the Catholic Church’ nor for any failure in relation to child sexual abuse by other clergy”. Cardinal Pell had no previous convictions and a compelling good character; he was elderly and unaccustomed to the rigours and horrors of jail; he faced a long period of solitary confinement. Such people should be considered more favourably for bail pending appeal.
Those interested in learning about the human effects of imprisonment might find reading Cardinal Pell’s prison journal instructive (published by Ignatius Press, November 2020). The lesson from Cardinal Pell’s case is not just that the justice system can do better (a self evident truth for all human institutions), but that the process of appeal ought to take more account of the human costs of miscarriages of justice.
*Warren Pyke is a leading criminal appeal barrister with over 28 years of experience. Contact Warren at wcpyke@gmail.com
