Gans, Jeremy --- "Pell in purgatory" [2020] PrecedentAULA 70; (2020) 161 Precedent 24

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PELL IN PURGATORY

By Professor Jeremy Gans

When George Pell’s jury announced its verdict on Tuesday 11 December 2018, just one thing was certain about his case: it would end in the High Court. Pell was always going to appeal any finding of guilt to Victoria’s Court of Appeal and whoever lost there (Pell again, in the event) was always going to turn to Canberra for redress.^[1]

How the High Court would finish the case was another matter.^[2] It could have ended with a whimper, with Pell’s name appearing in an online list of special leave applications with the word ‘dismissed’ next to it. Or it could have ended with a bang, with Australia’s top judges deciding the case for themselves. On Tuesday 7 April 2020, the latter happened, when seven justices swept away earlier decisions by 12 jurors and three judges.

Pell did not become less guilty on that Tuesday in 2020. Nor did he become less innocent on that other Tuesday in 2018. He has been either guilty or innocent of the rape of two children for the past 23 years, and will remain so forever. No court ruling, punditry or politics can alter what actually happened in St Patrick’s Cathedral during six short – or agonisingly long – minutes after a Sunday mass in 1996.

Instead, the proceedings against Pell have always been about how the courts – and the rest of us – will respond to the claim made against him. For the courts, the sole issue is whether Pell’s prosecutors were able to prove beyond reasonable doubt what happened. The High Court’s key ruling that there is a ‘significant possibility’ that Pell is innocent of the charges against him isn’t a conclusion that he is innocent; it is a conclusion that the prosecution failed to prove that he isn’t.

Outside the courts, the High Court’s ruling is only important to the question of Pell’s true guilt or innocence to the extent that it persuades people one way or the other. People aren’t bound by the presumption of innocence, or the rules of evidence, or respect for the courts, or even by fairness, unless they want to be.

The criminal justice system’s finding that Pell was guilty of child sexual abuse lasted 482¾ days, a fact that prompts many questions. Why didn’t the jury’s verdict stand? What does his acquittal mean for his accuser? And what of the earlier decisions in this case? The High Court’s reasons leave the most important question about his case unanswered.

THE CRITICAL ISSUE OF TIMING

The day before Pell’s jury was sent out to deliberate, Ruth Shann, one of Pell’s two barristers, asked permission to play a 19-minute animation during the defence’s closing address. Derisively known as the ‘pac-man video’, it showed the floorplan of St Patrick’s Cathedral and used coloured dots to represent various church officials’ movements after mass. Accompanying each dot were excerpts of the testimony of the case’s 23 ‘opportunity witnesses’ – every person who was known to be at the church that day and testified at the trial – to support the claimed location of each official as time passed.

Like virtually all of the public, I haven’t seen that video. Nor did any of Pell’s jurors see it. Or any of the High Court justices. That’s because, after the prosecution objected, the County Court’s Chief Judge, Peter Kidd, barred Shann from showing it. Pell raised this ruling at his initial appeal, but all three judges rejected his complaint including Weinberg J, Pell’s lone judicial backer until the High Court’s judgment, who excoriated the video as ‘tendentious in the extreme’.^[3]

Justice Weinberg complained that the video showed a scenario that no one thought actually happened: Pell and his master of ceremonies on the cathedral’s main steps, while the two boys alleged to be Pell’s victims were in the sacristy at the opposite end of the building alongside ‘a large number of concelebrant priests’. Showing the jurors this ‘visual representation’, the Court of Appeal ruled, risked ‘misleading, or at least confusing’ them.^[4]

Pell didn’t bring up the video again at the High Court, but what the dots represented was at the heart of his last-chance appeal and the Court’s decision to acquit him. Most of the Court’s reasons^[5] are a painstaking appraisal of the testimony of those 23 opportunity witnesses. Remarkably, the seven justices said that the majority in the Court of Appeal (Ferguson CJ and Maxwell P) was misled or confused about part of those witnesses’ evidence.

The claimed error by the majority was about timing, which was crucial to the case against Pell. When police put the allegations to Pell in late 2016, he was confident that ‘[t]he most rudimentary interview of staff and those who were choirboys’ would reveal that his accuser’s account was ‘fundamentally improbable’ because ‘the sacristy after mass is generally a hive of activity’.^[6] At the trial, the opportunity witnesses testified as Pell promised: after mass, a dozen or more officials filed in and out of the sacristy to store sacred items and remove their vestments.

To prove Pell’s guilt, the prosecution had to show beyond reasonable doubt that there was a long enough gap when none of those officials (except Pell) was present while the alleged crimes occurred. The complainant estimated that the choirboys’ time in the sacristy – finding and drinking the altar wine, being discovered by the archbishop, his raping and abusing them, and their dressing and leaving in tears – lasted five to six minutes. The majority in the Court of Appeal ruled that the opportunity witnesses’ accounts left just enough time for these events, because the sacristan had a practice of delaying the removal of sacred items to allow parishioners some private prayer time, a hiatus that witnesses estimated lasted five to six minutes.

But the majority’s solution didn’t work, the High Court said, because the private prayer hiatus and the alleged crimes started at different times. The hiatus commenced when mass ended, while Pell and the choirboys were processing out of the opposite end of the cathedral. On the complainant’s account, the boys must have taken over three minutes to reach the sacristy, at which point the hiatus would have been mostly over.

On top of that factual mistake, the High Court ruled that the majority made legal errors in dealing with a set of further problems raised by the opportunity evidence, including Pell’s practice of spending up to thirty minutes on the church steps speaking with exiting parishioners, the long-standing protocol that the master of ceremonies stayed with the archbishop until he left the cathedral grounds, and evidence that a dozen or so concelebrant priests change their outfits in the sacristy during the hiatus.

The High Court held that the majority’s answer to this evidence – that, given the passage of time, the opportunity witnesses could have been thinking of later-arising practices or have forgotten ad hoc exceptions to them at one of the two masses where the crimes must have occurred – was not only unconvincing (as those masses were especially memorable ones) but also legally forbidden. The prosecution either didn’t ask the witnesses about those particular scenarios or didn’t challenge their denials if they did. Also, Victorian law forbids judges from relying on the delay between alleged crimes and the trial – something that jurors are told leaves defendants at a disadvantage^[7] – to improve the prosecution’s case.

The Victorian judges’ errors didn’t mean that Pell had to be freed. That depended on what the Court of Appeal ought to have decided if those errors hadn’t been made.

The High Court justices’ particular words – that there was ‘a significant possibility that an innocent person was convicted’ – were the same ones coined by Deane J to explain why he would have freed Lindy Chamberlain at her High Court appeal.^[8] But the Pell and Chamberlain proceedings differ in more than just their outcomes. Every aspect of the Chamberlain case was contemporaneously reported by dozens of journalists and onlookers. Its later twists and turns – the narrow loss in the High Court, the fresh inquiries and the Chamberlains’ belated acquittal – were received by a public deeply familiar with the evidence for and against them.

By contrast, the alleged crimes in St Patrick’s Cathedral preceded news of the investigation by decades, and almost no one has seen the complainant’s account of them, or ever will. Pell’s trials and their outcomes were kept secret from the public as they happened, meaning only a handful saw all of the opportunity witnesses testify. Journalists could only report on each party’s case after the public learned which side won. None of those who watched noticed – or at least reported on – the timing error made by Ferguson CJ and Maxwell P. It is not clear whether any journalists have access to the trial transcripts that Pell and his prosecutor asked the High Court to review.

The High Court’s reasons are clear and convincingly written, but those who would like to check for themselves whether Victoria’s top two judges really misread some key evidence before them, and whether there really is a significant possibility that Pell is innocent, need to find a way to read the transcripts, or hope that some journalists do so and reliably fact-check. Otherwise, we must decide whether to take the High Court’s analysis of that evidence, and its findings about it, at face value.

OPINING ON HONESTY

The High Court’s finding of a significant possibility of Pell’s innocence doesn’t mean that they found or even thought that his accuser was actually wrong, much less a liar.

In its judgment, the High Court chastised Pell’s Victorian judges for opining on the honesty of Pell’s accuser, adding that the Court of Appeal’s split on that issue shows how ‘subjective’ such assessments are. In the case’s sole major pronouncement of law, it was held that questions about demeanour, candour or memory are exclusively for jurors to thrash out as a group.^[9] Appeal judges should proceed on the obvious assumption that the jurors found every crucial prosecution witness to be credible and reliable and then look to the transcripts for reasonable doubt.

But what do those transcripts mean for Pell’s accuser? The seven justices said that they contain no independent support for his account. They disagreed with Ferguson CJ and Maxwell P’s finding that his accurate description of the interior and use of the priest’s sacristy from that period corroborated his claims of abuse rather than just his presence in the sacristy at some point. To the contrary, they found that the transcripts leave no room for his account to be correct, because there was no time for what he described to occur when and where he said it did. Does that mean that his account must be wrong, and that he was lying or deluded?

There are at least two other possibilities. One is that Pell’s accuser was seriously mistaken about when and where the claimed abuse occurred. People can and do get significant things wrong when they recount distant events, even when describing horrible moments in their lives. Plenty of prosecutors have gone to jurors on the basis that their key witness was honest and correct in describing the wrongs done to them even though they got many surrounding details incorrect. While that makes such trials challenging for everyone, many convictions have been achieved that way and upheld on appeal.^[10]

The other possibility is that the opportunity witnesses were seriously mistaken about the practices, protocols and rituals that applied in St Patrick’s Cathedral in 1996. Although the High Court observed that rigidity is a key part of religious life, that doesn’t exclude the possibility that the details can be described erroneously. Nor does it rule out overconfidence about the predictability of the practices or understatements about exceptions – such as ones that could have allowed for a much longer hiatus, or afforded much more privacy to a high-ranking abuser, after Sunday mass.

Crucially, neither of these scenarios was put to the witnesses at Pell’s trial, meaning they couldn’t be put to his jurors and in turn be considered by the High Court. So, the seven justices’ finding of a significant risk that Pell was innocent turned on the evidence and argument at his trial. It is possible that different evidence and argument at his trial would have produced a different finding on appeal. But they may also have yielded a different jury verdict.

FAILURE OF THE CRIMINAL JUSTICE SYSTEM?

The former choirboy isn’t Pell’s only accuser. The High Court’s ruling has potential implications for his official accusers: the police, prosecutors, jurors and appeal judges. If the High Court is right that Pell’s guilt was never proved beyond reasonable doubt, then doesn’t that mean that these other decision-makers got the case wrong?

Disagreement between official decision-makers is a regular occurrence in the justice system and is why we have so many decision-makers on questions of proof of serious crimes. The history of miscarriages of justice explains why all criminal defendants are given multiple opportunities to argue that there isn’t sufficient proof of their guilt.

On the other hand, the timing issue could have been picked up by any of those earlier decision-makers. The criminal justice system is usually too busy, stretched and adversarial to engage in comprehensive reviews of possible failures to detect a problem early enough. But soul-searching and independent reviews are normal in high-profile cases where an error is picked up in a spectacular way. Pell’s case should be no exception. Given the unfortunate secrecy surrounding the original trials, a comprehensive inquiry is perhaps the only way to overcome the understandable public perception that, at one point or another, justice was not done in this case.

In that vein, I think it is worth setting out why it is possible that none of the official components of the criminal justice system failed on the timing issue raised by the High Court.

While police make many crucial decisions when they investigate crimes, and those decisions merit close scrutiny, it is not usually their role to make judgements about proof. Their role is to gather evidence for prosecutors, which they must do despite having no power to make most people talk with them. A gap in time between alleged crimes and an investigation also obviously hampers police. In Pell’s case, where every likely witness is someone who worked for Pell in 1996 and some are now infirm, those disadvantages could account for the police’s failure to recognise the timing problem.

Nevertheless, the police did make a decision about whether there was proof that Pell was guilty when they charged him in 2017,^[11] a decision ultimately shared with Victoria’s then Director of Public Prosecutions John Champion and his successor, Kerri Judd, who could have stopped the prosecution if they disagreed with the police’s call.

But the bar for decisions to commence a prosecution is lower than those later in the criminal justice system. Public prosecutors can bring charges whenever there are reasonable prospects of a conviction and the proceeding is in the public interest.^[12] This test was plausibly satisfied in Pell’s case. As Judd rightly pointed out in the High Court, testimony about events lasting mere minutes recalled from decades ago ought to be taken with a grain of salt. She lost the argument on appeal because – the Court said – the trial witnesses weren’t challenged on their timing claims, including the possibility of a much longer private prayer hiatus. But prosecutors wouldn’t have known that before the trial.

It’s at the trial where it’s harder to understand why a critical timing issue didn’t bring proceedings to a halt. It’s worth noting that trial judges only test whether the evidence the prosecution supports (here the accuser’s account) could prove guilt. The question of whether other evidence (such as from the opportunity witnesses) created too much doubt is one for prosecutors, jurors and appeal judges, who notably all reach their decision in groups. No one argues that Pell’s magistrate or judge made any major errors on things in their remit, such as courtroom procedures, rulings on the evidence or jury direction.

But why didn’t Pell’s prosecutors stop the trial because of the timing issue? And why didn’t his jurors acquit because of it? If the High Court is right about the timing evidence then those things should have happened in one or both of Pell’s trials in 2018. The best defence I can offer is speculative and uncomfortable: the prosecutors and jurors quite possibly didn’t notice the issue. There is some compelling evidence behind this guess: two senior judges seemingly didn’t notice it either and nor did any of the journalists who watched and described Pell’s trials.

THE TRUE CULPRIT

Even my generous take may seem quite damning of Pell’s prosecutors and jurors (and others), but the true culprit could be the idea of resolving complex questions at a single ‘trial’. Trials – and, especially, questioning dozens of witnesses in sequence and then summarising their evidence orally days later – are poorly suited to identify crucial issues out of a mass of arguments, including fine issues of timing.

That’s why Shann wanted to show Pell’s jurors her animation. She argued that illustrating the timing issues in this way aligns with contemporary approaches to presenting information, which jurors would be familiar with from their own devices. Without it, she prophetically suggested, ‘it was possible that they might not understand the full force, cumulatively, of the defence argument in relation to opportunity’.^[13] Justice Weinberg’s retort – that there is more risk of confusion from presenting such ‘material in this highly questionable form’^[14] – ought to be reconsidered now, as should trial prosecutor Mark Gibson’s decision to object to the video in this case.

But trials’ deficits in complex cases go well beyond their low-tech approach. Trials require a dozen or so people to work – and, to an extent, fight – in a single room, while a dozen strangers must sit for weeks and absorb information silently before being locked away and asked to reach a consensus. The key question of proof, and the details it turns on, must vie for attention with concerns about fairness, interest, distress, comfort, time, money and personalities. The trials’ strengths – the atmosphere, the rhetoric, the high stakes, the group work – are also its weaknesses.

All of this may sound like a call to do away with trials, but it isn’t. Rather it’s a call for the system we have, where anyone who is found guilty can ask one or more appeal courts to robustly review that trial finding at leisure and from a distance. The High Court held that one reason the Court of Appeal may have gone wrong in this case is that its judges acted too much like jurors, watching much of the trial via video recordings and focusing on which of the witnesses was believable. That may explain why, as the seven justices put it, the majority ‘failed to engage’ with whether the opportunity witnesses’ testimony left a reasonable possibility that a credible accuser was nevertheless wrong.^[15] The same may also be said of Pell’s prosecutors and jurors.

But maybe not. The above is just a possible account of what happened. There are less benign explanations, not to mention rival conspiracy theories. Those theories are one of many reasons why the High Court’s acquittal of Pell ought to prompt an independent review of all the decision-making in this case.

CONCLUSION

‘I would like to reassure child sexual abuse survivors that most people recognise the truth when they hear it,’ Pell’s accuser said in his statement at the end of the day on which the High Court acquitted his alleged abuser. ‘They know the truth when they look it in the face. I am content with that.’ Hours into the freedom the High Court granted him, Pell said, ‘I hold no ill will toward my accuser, I do not want my acquittal to add to the hurt and bitterness so many feel.’^[16] I have no idea if either of these statements is sincere, but it doesn’t matter much. They both put to shame the cynicism of public commentators for and against Pell, and provide a path forward for the less cynical.

But the future is not the most important thing in this case. The past is far more important. It may be that one of these men is genuinely deluded in his recollection of what happened all those years ago. If not, then one of them is a liar who put the other one through a living hell. If that’s the case, then both know which man that is. The rest of us can believe what we want, but we will never know unless that man confesses. Most likely, both will carry this shared knowledge to their graves.

This is an edited version of an article originally published on 13 April 2020 in Inside Story (https://insidestory.org.au/pell-in-purgatory/). It has been republished with permission.

Jeremy Gans is a Professor at Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. EMAIL [e-mail].

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^[1] J Gans, ‘Pell’s judges’, Inside Story, 3 June 2019, <https://insidestory.org.au/pells-judges/>.

^[2] J Gans, ‘Pell the suppliant’, Inside Story, 19 November 2019, <https://insidestory.org.au/pell-the-suppliant/>.

^[3] Pell v The Queen [2019] VSCA 186, [1128] (Pell VSCA).

^[4] Ibid, [1128]–[1130].

^[5] Pell v The Queen [2020] HCA 12 (Pell HC).

^[6] ‘George Pell’s police interview [full]’, The Sydney Morning Herald (online), 28 February 2019, <https://www.smh.com.au/world/george-pells-police-interview-video-full-20190228-5c1li.html>.

^[7] Jury Directions Act 2015 (Vic), s39.

^[8] Chamberlain v R (No. 2) (‘Chamberlain case’) [1984] HCA 7.

^[9] Pell HC, above note 5, [37].

^[10] See for example, WG v R; KG v R [2020] NSWCCA 155, [42].

^[11] ‘Victoria Police’s full statement concerning charges against Cardinal George Pell’, The Sydney Morning Herald (online), 29 June 2017, <https://www.smh.com.au/national/victoria-polices-full-statement-concerning-charges-against-cardinal-george-pell-20170629-gx0xh5.html>.

^[12] K Judd, Policy of the Director of Public Prosecutions for Victoria (Policy, 17 September 2020) 2.

^[13] Pell VSCA, above note 3, [1126].

^[14] Ibid, [1132].

^[15] Pell HC, above note 5, [46].

^[16] R Eddie, ‘“I am OK”: Pell’s accuser accepts High Court decision’, The Sydney Morning Herald (online), 8 April 2020, <https://www.smh.com.au/national/i-am-ok-pell-s-accuser-accepts-high-court-decision-20200408-p54i2m.html>.