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What do we tell historic sexual offence complainants now?

Rebecca Cohen

Today, the full court of the High Court of Australia – the nation’s seven most senior judges – unanimously allowed Cardinal George Pell’s appeal from a decision of the Victorian Court of Appeal and quashed his convictions.

Cardinal Pell has been a high profile and somewhat controversial figure in Australia for decades. On 11 December 2018 – when 12 jurors found him guilty of one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years – the former Vatican treasurer became the most senior Catholic figure ever to be jailed for such offences. A previous trial had resulted in the jury being unable to reach a verdict. Cardinal Pell’s sentence of six years’ imprisonment and subsequent appeals through different levels of Australia’s court system have been closely followed on an international scale.

The Complainant

In stark contrast, the complainant in this case has kept a remarkably low profile. At the time of the alleged offences, he was a choral scholar at the exclusive St Kevin’s College – a school which has recently been the subject of renewed scandal after its pitiful response when one of its students was groomed by an athletics coach. The complainant alleged that over two incidents in late 1996 and early 1997, he and another 13-year-old choirboy were subjected to the offences by Pell, the then Catholic Archbishop of Melbourne, in and near the priests' sacristy at St Patrick's Cathedral in East Melbourne, following the celebration of Sunday solemn Mass.

In a compelling article last year, journalist Louise Milligan spoke to family members of the second choirboy. They detailed how their son had always been “a normal child” but from the age of about 14 became disengaged and disruptive at school and “his life spiralled”, with a descent into heroin abuse. He died from a heroin overdose in 2014, aged 30. The complainant had drifted apart from the second choirboy, after they left the choir and both changed schools. However, he attended his funeral and it was this “breaking point” which led him to come forward.

Australia had seemingly been on the path to better supporting and recognising victims of historic sexual offences. Between 2012 and 2017, the nation underwent a Royal Commission into Institutional Responses to Child Sexual Abuse. Over 16,000 individuals contacted the commission and 8,013 private sessions were held. The final report makes for harrowing reading. Of note, it was reported that before disclosing sexual abuse, victims often weigh up the potential risks and benefits of telling others:

“Unsurprisingly, victims are less likely to disclose if they feel they will not be believed, expect a negative reaction or response, or believe the disclosure will have negative consequences for them, their families or their communities. Of survivors who told us during their private session about barriers to disclosure, more than one in five (22.6 per cent) who said they had disclosed as an adult and more than one-quarter (26.1 per cent) who told us they disclosed in childhood said they had thought they would not be believed if they spoke up.”

The Royal Commission’s final report also observed that survivors took, on average, 23.9 years to tell someone about the abuse – and men took longer to disclose than women (the average for females was 20.6 years and for males was 25.6 years).

Milligan describes the complainant as university educated and a pillar of his community; “the sort of complainant you’d want as a Victoria police detective alleging historic crime”. She adds that he was “never interested in going on television” and has sought to maintain the anonymity afforded by the law – “he complained because he wanted justice”.

The First Appeal – The Court of Appeal of the Supreme Court of Victoria

When Cardinal Pell sought leave to appeal his conviction, three Victorian Court of Appeal justices watched recordings of evidence given by 12 of the 24 witnesses at trial; reviewed the 2000 page transcript; and – like the jury, were taken to view St Patrick’s Cathedral. Leave was granted to appeal on the ground the verdicts were “unreasonable and cannot be supported having regard to the evidence”. However, by majority (2:1), the appeal was dismissed.

Ferguson CJ and Maxwell P held that it was open to the jury to be satisfied beyond reasonable doubt that Cardinal Pell was guilty of the offences charged. They found the complainant’s evidence to be very compelling. Of note, they wrote:

“Throughout his evidence, [the complainant] came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution. As might have been expected, there were some things which he could remember and many things which he could not. And his explanations of why that was so had the ring of truth”.

Moreover, Ferguson CJ and Maxwell P found that there was nothing about the opportunity evidence (witnesses who had described the movements of Cardinal Pell and others following a Sunday solemn Mass could not say with certainty that the routines were never departed from) which meant that the jury “must have had a doubt” about the truth of the complainant's account.

Dissenting, Weinberg JA was not impressed by the complainant’s evidence – observing that it contained discrepancies, inconsistencies and his account of the second incident was entirely implausible and quite unconvincing. Weinberg JA held there was a significant body of cogent, unchallenged opportunity evidence casting serious doubt on the complainant’s account, so that the jury, acting rationally on the whole of the evidence, ought to have had a reasonable doubt.

The Second Appeal – The High Court of Australia

The High Court heard Cardinal Pell’s appeal application on 11 and 12 March 2020. Defence counsel, Bret Walker SC, argued that the “open to the jury” test had been applied incorrectly by the Victorian majority. He contended that by asking whether there existed the reasonable possibility that A's account was correct, rather than whether the prosecution had negated the reasonable possibility that it was not, they effectively reversed the onus and standard of proof requiring Cardinal Pell to prove it was impossible for the offending to occur.

Mr Walker SC also pointed to the “sheer unlikelihood” of events and times aligning in the way put forward by the prosecution so that Pell could have been alone with the choirboys for five minutes. Mr Walker SC added:

"Belief in a complainant does not eliminate the possibility of co-existent reasonable doubt as to guilt… The people we believe may be wrong — either lying ... or simply wrong".

Today, with their decision handed down to an almost-empty building, the High Court noted that the Court of Appeal majority had assessed the evidence of the opportunity witnesses as leaving open the possibility that the complainant's account was correct. However, the analysis was deemed to have then failed to engage with the question of whether there remained a reasonable possibility that the offending had not taken place, such that there ought to have been a reasonable doubt as to the applicant's guilt.

The High Court held that, while the jury had presumably assessed the complainant’s evidence as thoroughly credible and reliable – the evidence of the opportunity witnesses required them, acting rationally, to have entertained a reasonable doubt as to the applicant's guilt in relation to the offences involved in both alleged incidents. The convictions were ordered to be quashed, with verdicts of acquittal to be entered in their place.

What now for complainants?

Questions abound following the High Court’s judgment, not least of which is: what are the implications for trial by jury if a verdict can be overturned by appellate judges who do not hear live evidence? A unanimous jury found the complainant credible and discounted Cardinal Pell’s case regarding a lack of opportunity. This decision was subsequently supported by the Victorian Court of Appeal’s majority judgment. It is the jury’s role to decide the facts of a case, and this role has ultimately been usurped by the High Court in this instance, which The Conversation has described as “perilously close to retrial by the court”.

Of particular concern are the reverberations that will be felt by survivors of sexual offences around the world following this decision. The complainant in this case went through not one, but two County Court trials – followed by two appeals – ultimately for naught. The Royal Commission referred to victims being less likely to disclose if they fear not being believed, expect a negative response, or believe disclosure will have negative consequences for them. Such fears must only be bolstered by this case.

In response to the judgment, Lisa Flynn, the solicitor acting for the father of the alleged victim, who died in 2014, has stated:

“Our client says he is heartbroken for [his son’s friend, the accuser in the case] who stuck his neck out by coming forward to tell his story but was ultimately let down by a legal process that forced him to relive his pain and trauma for no benefit”.

The Victorian Premier, Daniel Andrews released a statement saying:

“I make no comment about today’s High Court decision.
But I have a message for every single victim and survivor of child sex abuse:
I see you.
I hear you.
I believe you.”

Rebecca Cohen is a second six pupil barrister specialising in criminal and family law. Rebecca was formerly a research assistant at the Law Commission.

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