High Court corrects an injustice but raises some difficult questions

The High Court regularly delves into arcane recesses of the law. Even before the COVID-19 crisis restricted Australia’s most senior judges to their chambers, their methods and reasoning felt remote, sequestered even, from how most of us go about solving our problems.

Not so in the case of George Pell.

Cardinal Pell travelled in a four-car convoy upon being released from Barwon Prison on Tuesday.Credit: Jason South

In their unanimous, 20-page decision, the seven judges of the High Court devote little space and few words to complex legal analysis or obscure precedents. For the most part their reasons are a simple examination of the evidence before them.

Their judgment is that, on this evidence, Cardinal Pell should never have been convicted. This raises the possibility that a grievous injustice has been perpetrated; that Australia’s most senior Catholic cleric spent more than a year in jail for crimes he did not commit.

Nick Papas, QC, a senior barrister and former chief magistrate and crown prosecutor, says a difficult question must now be asked; how could two Court of Appeal judges and the jury in Cardinal Pell’s trial not see the flaws in this case that were so apparent to the High Court.

“It is clearly a matter for community comment and indeed, a proper question to ask, and raises issues as to jury trials in these sort of matters,’’ Mr Papas said.

“The primary question is not what went wrong. The High Court has said what went wrong. This is a real call to consider whether there should be judge-alone cases in Victoria.”

Mr Papas says the critical issue is whether a figure who came to symbolise the failures of the church to protect children from sexual abuse and properly address those abuses once they came to light could ever receive a fair trial for his own alleged crimes.

Melbourne Archbishop Peter A. Comensoli, in an interview with The Age and The Sydney Morning Herald, said each story of abuse needs its own telling and deserves to be heard. Yet, in this case, every story of abuse was shouldered by the Cardinal’s stooped figure as he walked into court.

“For each person who has been abused and wants to come forward and tell their story, we need to listen to and respond to find a way to support, and care and heal,’’ Archbishop Comensoli said. “There has also been a cumulative effect of all of these matters that have come to light over these past few years.

“I think there is a sense in which some people carry the whole burden of all that has come forward.”

In a letter to parishioners, the Archbishop acknowledged that Cardinal Pell had become “emblematic” of clerical abuse. Abuse survivors and their advocates made this clear in their dismay at the High Court decision.

Chrissie Foster, the mother of two daughters who were raped by their parish priest, said she was not expecting Cardinal Pell to be freed from jail.

“For our side, this is just a shock,’’ she said.

Chrissie Foster's two daughters were abused by a Catholic priest. Credit: Jason South

Clare Leaney, the chief executive of the In Good Faith Foundation, a support and advocacy group for survivors of institutional abuse, said many would struggle to come to terms with the court’s decision.

Cardinal Pell has chosen to adjust to life outside prison behind the thick stone walls of the Carmelite Monastery in the Melbourne suburb of Kew.

Whether he serves in a future ministry is a matter for the Cardinal and the Vatican. The decision will depend on what the redacted findings of the royal commission reveal whether Cardinal Pell was involved in covering up clerical abuse in Ballarat in the 1970s and 80s.

Archbishop Comensoli says that for the Catholic Church in Australia, the task ahead is largely unchanged by Tuesday's judgment.

“Even though this particular matter has come to an end, that doesn’t mean that somehow, the questions of abuse within the life of the church have been resolved,’’ he said. “They have not.”

Yet, on the only allegations against Cardinal Pell to be tested at trial, the High Court could not be more clear. Although the former choirboy who testified to being sexually abused by the Cardinal was a credible witness, his account does not fit with the evidence of other credible witnesses who testified at trial.

Where the choirboy said he and another chorister were assaulted by Cardinal Pell, shortly after Sunday mass in the priests’ sacristy of St Patrick’s Cathedral, this could not be reconciled with the evidence of other witnesses who said that, at the time of the alleged assault, Cardinal Pell would have been elsewhere in the cathedral or otherwise attended.

Whatever your view of George Pell, he did not have the opportunity to do this crime.

“It remains that the evidence of witnesses, whose honesty was not in question; placed the application on the steps of the cathedral for at least 10 minutes after mass ... placed him in the company of [Monsignor Charles] Portelli when he returned to the priests’ sacristy to remove his vestments ... described the continuous traffic in and out of the priests’ sacristy,’’ the High Court found.

“Making full allowance for the advantages enjoyed by the jury there is a significant possibility ... that an innocent person has been convicted.”

The strength of the High Court judgment is the unanimity it reached in its assessment of the evidence. A question this raises is why, in the split decision of the Court of Appeal, two of Victoria’s most senior judges, Supreme Court Chief Justice Anne Ferguson and Court of Appeal President Chris Maxwell were unable to correct the jury’s mistake and spare Cardinal Pell a further seven months in jail.

Justice Ferguson, in taking personal responsibility for the high profile appeal, chose to empanel one of Australia’s most experienced and highly respected criminal jurists, Supreme Court Justice Mark Weinberg. Having done so, she was apparently unmoved by his lengthy dissenting judgment which spelt out the same deficiencies in the evidence that troubled the High Court.

The High Court notes that Cardinal Pell himself, as early as 2016, telegraphed the problem that has now proved fatal to the criminal proceedings against him.

When he was interviewed by Victoria Police in Rome, the Cardinal urged the detectives to investigate further, telling them that the “most rudimentary interview of staff and those who were choirboys’’ at St Patrick’s 20 years earlier would confirm that the allegations against him were “fundamentally improbable” and “most certainly false”.

Shortly after the High Court delivered its judgment, Cardinal Pell struck a more conciliatory tone.

“I have consistently maintained my innocence while suffering from a serious injustice,’’ he said. “This has been remedied today with the High Court’s unanimous decision.

“I hold no ill will toward my accuser, I do not want my acquittal to add to the hurt and bitterness so many feel; there is certainly hurt and bitterness enough.

"However my trial was not a referendum on the Catholic Church; nor a referendum on how church authorities in Australia dealt with the crime of paedophilia in the church.

“The point was whether I had committed these awful crimes, and I did not.”

If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or beyondblue 1300 224 636.