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Why it’s wrong to claim George Pell “won … on a legal technicality”

8 April 2020

10:33 AM

8 April 2020

10:33 AM

The High Court ruling on George Pell is a testament to the integrity of our legal system. It shows that the presumption of innocence still carries great weight in our courts, and that the High Court rightly remains unaffected by public sentiment.

Yet yesterday, in their analysis for The Conversation, academics Ben Mathews and Mark Thomas disagree. They say the Cardinal won his case on a ‘legal technicality’. They say the High Court’s decision represented ‘strange justice’ and was ‘perilously close to retrial by the court’ because it repudiated the decision of the jury, the Victorian Court of Appeal, and public opinion.

None of these claims are correct.

The High Court held that the jury, having regard to all the evidence — including all the unchallenged evidence that contradicted the prosecution’s case — should have entertained reasonable doubt as to Pell’s guilt. The Court also held that the majority of the Victorian Court of Appeal (VCA) ‘failed to engage with the question of whether, against this body of evidence, it was reasonably possible that … there was a reasonable doubt as to [Pell’s] guilt.’

The contradicting evidence pointed to a lack of opportunity — Pell could not have committed the alleged offences, either because he was outside on the steps of the Cathedral at the time the offences were supposed to have been committed, or because there were others with him, and so on. None of this evidence was challenged by the prosecution at trial or at appeal to the VCA.

Mathews and Thomas’ claim that the High Court gave ‘claims about lack of opportunity an elevated technical legal status’ that ‘outweighed the jury’s belief in the complainant’s testimony’ is unsound.

This is because whether a jury believes a complainant is not sufficient to establish guilt beyond reasonable doubt. The legal question before the VCA and the High Court was not whether the complainant should be believed, but whether there was reasonable doubt as to Pell’s guilt notwithstanding the credibility of the complainant.

There are good reasons for the ‘reasonable doubt’ requirement. If criminal trials came down solely to whether the jury believed the complainant, guilt and innocence would be decided on completely subjective grounds. Juries can be misled by convincing witnesses, and the standard of reasonable doubt serves to mitigate this problem.

Our system of appeal courts also functions as a way of correcting unjust jury verdicts. It would also undermine the point of the appeal system to claim that jury verdicts should always stand, as long as the jury believed the complainant. This was the problem with the VCA’s decision — the majority based its decision on the fact that they found the complainant credible.

Moreover, claims about Pell’s lack of opportunity are not mere legal technicalities. They constituted an essential counter-narrative to that spun by the prosecution. They strongly supported Pell’s innocence. In other words, they created reasonable doubt.

The High Court did not give the standard of reasonable doubt an elevated status — the standard already, and rightly, possesses it. The primacy of this standard in criminal law is a golden thread that runs through the history of the common law. It is one of the basic principles of our legal system. That the majority of the VCA failed to apply it in such a high-profile case is alarming.

Mathews and Thomas also criticise the High Court because its decision goes against ‘a substantial body of public opinion’. But our law does not operate on the principle: ‘innocent until found guilty by public opinion’. History provides us with a deluge of examples of why it should not.

Procedural fairness is often what stands between an innocent person and their conviction. It is the great equaliser that affords us the same rights and privileges in court as government ministers, CEOs, Catholic priests, and the local plumber. It protects individuals from the ravages of public opinion. We should cherish this legal artefact, not discard it.

The decision also affirms that our law is not a vehicle for public scapegoating.

There are those who are prepared to sacrifice George Pell on the altar of their hatred for all those clergy who committed hideous crimes against children in their care. However, the High Court has reminded us that the law will not commit one evil to rectify another.

The High Court’s decision does not give many the moral restitution they sought (and believed they were given) in Pell’s original conviction. Neither does it prove that Pell is sinless. The state of his soul is not for us, or the High Court, to determine.

The decision shows that there was reasonable doubt as to Pell’s guilt, and that he is therefore innocent of the crimes of which he was accused. Some may find that decision a bitter pill to swallow, but they cannot call it unjust.

Lukas Opacic is a doctoral candidate at Sydney Law School

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