The High Court’s Judgement

The High Court of Australia concluded differently to the Victorian Court of Appeal. They quashed Pell’s convictions and ordered a judgement of acquittal be entered.

The Disposition stated:

For the reasons to be given, it is evident that there is “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof.” [9]

This means that the prosecution failed to prove on the evidence that the charges against Pell could be proven beyond reasonable doubt.

1. Presumption of innocence

The presumption of innocence is the principle that a person is considered to be innocent and not guilty until the prosecution proves guilt beyond a reasonable doubt. In a criminal case, the prosecution is required to prove the case beyond all reasonable doubt and if there is any evidence that would raise doubt, then the accused cannot be convicted. The prosecution is not required to prove the guilt of the accused “beyond any possible doubt” but beyond reasonable doubt.

Pell contended that although the Court of Appeal correctly stated the standard and burden of proof, “their Honours reversed it by asking whether there existed the reasonable possibility that A’s account was correct. Rather than whether the prosecution had negatived the reasonable possibility that it was not”. [54]

“Their honours said, in relation to the second incident occurring the “the evidence once again falls well short of establishing impossibility” [122]

The Court of Appeal, instead of requiring the prosecution to eliminate all reasonable doubt, required Pell to prove the offending was impossible.

As the High Court said, “The majority in the Court of Appeal’s judgement proceeded by asking in relation to each piece of evidence that was inconsistent with A’s account, whether it was nonetheless realistically possible that that account was true”. [41]

This was an error by the Court of Appeal majority because the burden of proof is on the prosecution to, as dissenting Judge Weinberg noted, “exclude the reasonable possibility that the applicant did not commit the offences”. [42]

The High Court found that even though the Court of Appeal consistently stated that the prosecution had the burden of proof, their method of reasoning and the process they adopted to arrive at their decision did in fact reverse the burden of proof.

2. Reasonable doubt

a. A’s evidence seen as credible and reliable

The jury in the Court of Appeal assessed A’s evidence as thoroughly credible and reliable. [119] This was accepted by the High Court. [118]

Therefore the issue for the Court of Appeal was “whether the compounding improbabilities caused by the unchallenged evidence required the jury, acting rationally, to have entertained a doubt as to the applicants guilt.” [119]

b. Compounding Improbabilities

To accept A’s account of the first incident, would also require acceptance of a number of compounding improbabilities arising at the same point. These being:

(i) “contrary to the applicants’ practice, he did not stand on the steps of the Cathedral greeting congregant for ten minutes or longer;

(ii) contrary to long-standing church practice, the applicant returned unaccompanied to the priests’ sacristy in his ceremonial vestments;

(iii) from the time A and B r-entered the Cathedral to the conclusion of the assault , an interval of some five to six minutes, no other person entered the priests’ sacristy.” [57]

c. Unchallenged evidence

The Court of Appeal majority acknowledged:

“there was general consistency and substantial mutual support in the account of the opportunity witnesses, as to what occurred after Sunday solemn Mass in the period when the applicant was archbishop” and that “a defining feature of religious observance is adherence to ritual and compliance with established practice”. [5]

The Court of Appeal majority concluded that

“not only was it possible that the applicant was alone and robed in contravention of centuries-old church law, but that the evidence of the witnesses to the contrary did not raise a reasonable doubt as to the applicants guilt.” [94]

The High Court stated that the honesty of the opportunity witnesses was not in question and Pell’s Master of ceremonies evidence was unchallenged. [101]

They concluded for the first incident that “it remains that the evidence of witnesses, whose honesty was not in question,

(i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996;

(ii) placed him in the company of Portelli when he returned to the priests’ sacristy to remove his vestments’ and

(iii) described continuous traffic into and out of the priests’ sacristy for ten to fifteen minutes after the altar servers completed their bows to the crucifix”[118].

The High Court concluded for the first incident that when you consider the compounding improbabilities caused by the unchallenged evidence summaries in (i), (ii) and (iii) required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. [119]

The High Court stated that A’s evidence of the second incident:

“suffers from the same deficiency as the evidence of the assaults involved in the first incident”. [125]

“The unchallenged evidence of the applicant’s invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement of the Catholic church practice that the applicant always be accompanied when in the Cathedral, were inconsistent with acceptance of A’s evidence of the second incident.”[127]

This evidence, High Court said “ought to have caused a jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident.”

For those reasons, the High Court gave the following orders:

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and allowed.

3. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 21 August 2019 and, in its place, order that:

a) the appeal be allowed; and

b) the appellant’s convictions be quashed and judgements of acquittal be entered in their place.