Legal: Cardinal Pell - a complaint but no confession
Queensland Teachers' Journal, Vol 123 No 4, 5 June 2020, page no. 27
In a unanimous joint judgment delivered on 7 April, all seven judges of the High Court of Australia allowed the appeal and quashed all convictions against Cardinal George Pell.
Although Cardinal Pell’s convictions had related to historical allegations of abuse, the legal principles are equally relevant to historical allegations against teachers.
Should all victims be believed?
Had Cardinal Pell’s convictions stood, the general societal move towards placing increased weight on the very fact of an allegation, without corroboration, might have become more embedded in the law.
The decision confirms that the question to be asked is not what the decision-maker thinks is true but whether, on considering ALL of the evidence, the allegation is proved to the relevant standard.
The difficulties facing decision-makers, common in such cases, are particularly challenging where, as in Cardinal Pell’s case, “… the prosecution case was wholly dependent upon acceptance of the truthfulness and the reliability …” of the complainant’s evidence.
But forming a favourable view of the complainant’s evidence must be the beginning, not the end, of the enquiry.
As the Court said: “Notwithstanding that the jury found A to be a credible and reliable witness, the evidence as a whole was not capable of excluding a reasonable doubt as to the applicant’s guilt.”
Interestingly, the Court commented: “The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanour-based judgments”.
Anything is possible
Accused people not uncommonly claim that something is impossible (this is a risky approach in many cases and should not lightly be used). But for the decision-maker, the critical point is that, even if that claim is rejected, improbability must still be considered.
As the Court said: “Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.” (underlining added)
Habit or practice
When trying to recreate past events, defendants often recall what “they would have done” or what it was their common practice to do. This is not a positive statement that they did do something on the occasion alleged, just that they know that it is what they would normally have done.
In Pell’s appeal, the Court observed that “evidence of a person’s habit or practice of acting in a particular way to establish that the person acted in that way on a specific occasion may have considerable probative value” and noted that it was “powerful” in that case.
The pendulum has swung very far from the time when victim’s complaints were disregarded or simply not believed, but not so far that an allegation has become proof that an event has actually occurred. All the evidence must still be examined, and if a reasonable doubt remains, the court must acquit.