Russell Marks
George Pell’s appeal to the High Court

The High Court’s decision to hear George Pell’s appeal against his conviction for five counts of sexually assaulting choirboys was met with dismay by survivors of clergy abuse and their advocates. But lawyers had expected the court would grant leave, given the way it has determined cases of historical child sexual abuse since 1994.

Most media coverage of the Pell convictions and appeal has been polarised, and this polarisation has worked to obscure. At News Corp and Spectator and Quadrant magazines, right-wing commentators have led an often ferocious attack on the judiciary in support of Pell.

That is an odd turn of events. It was the Murdoch-owned Herald Sun that first broke news of Victoria Police investigating Pell for historical sex crimes. In her book Fallen, former Herald Sun journalist Lucie Morris-Marr recalls News Corp’s bewildering about-face following her front-page report in February 2016. She later left the paper.

The role of News Corp in the cultural defence of Pell warrants further attention. In reaction, perhaps, suggestions that Pell’s convictions in December 2018 might have been unsafe have sometimes been met in mainstream media with denial and, occasionally, ridicule.

I’m no defender of George Pell’s. As David Marr’s researcher for his 2013 essay examining Pell’s complicity in the Australian church’s cover-up of child sexual abuse, I was very open to suggestions that he might have been more directly implicated. But as well as providing avenues for successful prosecutions, the justice system must afford people – even people we don’t like – opportunities to defend themselves against allegations that cannot be proved beyond reasonable doubt.

Nobody apart from Pell and his accuser can know with certainty whether the allegations against Pell are true. The legal question is whether the evidence gives rise to doubts that are reasonable.

In his application to the High Court for leave to appeal – it was the decision on this application that was made on Wednesday – Pell’s lawyers, Bret Walker, SC, and Ruth Shann, argued forcefully that the reasoning used by Victorian Supreme Court Chief Justice Anne Ferguson and the Court of Appeal’s president, Justice Chris Maxwell, produced an “unsafe” result.

That reasoning went as follows: a single complainant gave an improbable account, alleging serious sexual assaults; the jury was entitled to believe him based on his demeanour and consistency in court; the appeal judges then went sifting through the remaining evidence to ask whether the complainant’s account was objectively possible. As Walker and Shann pointed out, it is an approach almost entirely dependent on the believability of the single witness – or, put another way, on the ability of the witness to convince. Was it possible the complainant was telling the truth? Yes, said the majority justices – and so it was open for the jury to believe the complainant beyond reasonable doubt.

But our assessments of witnesses’ believability fall a long way short of scientific. Rather, they rely on proxies: impressions that are open to all kinds of unconscious bias. Is the witness consistent? Is his account coherent and internally logical? Did it hold up under intense questioning?

There were problems with the complainant’s version in the Pell trial. He was vague and initially mistaken on dates; he’d forgotten some details and conceded he was mistaken on others. Yet these problems became, for the two majority justices on the Court of Appeal, reasons the jury could have assessed him as believable. It was a long time ago, after all. As Walker and Shann argued, these problems could alternatively have provided jurors with reasons to doubt the complainant’s account.

A witness who gives an overall impression of honesty, reliability and reasonableness must be believed by a court. If there’s no other contradictory evidence, witness testimony that makes out the charge will generally result in a defendant’s conviction.

But in Pell’s case, there was contradictory evidence. There were Pell’s own forthright denials, which would need to be rejected on a rational basis. There was a lot of what the majority justices called “opportunity evidence” from witnesses who, together, gave accounts that made the complainant’s allegations improbable to the point of implausibility. Memory failures in these witnesses became, for the majority justices, gaps through which to thread the complainant’s account. In other words, the evidence of these witnesses was assessed according to different standards to the evidence of the complainant.

But this is not how the criminal law is supposed to work. The High Court has said as much for 25 years. It has consistently overturned state appeal courts that have confirmed original guilty verdicts at trial, in cases where the state appeal courts have engaged in reasoning inconsistent with the High Court’s approach since a case it decided in 1994, M v The Queen. What’s surprising is how often state appeal courts depart from this approach.

M v The Queen was a case similar to that against Pell: a 13-year-old girl gave uncorroborated evidence that her father had assaulted her. The girl seemed to be doing her best to tell the truth but there were memory fades and inconsistencies in her evidence. The father strongly denied the allegations but was found guilty at trial and then by the New South Wales Court of Criminal Appeal. By a 5-2 majority, the High Court held that the jury should have had a doubt because (1) the girl’s evidence was inconsistent with available medical evidence, and (2) there was no reason to dismiss the father’s evidence.

Importantly the High Court set out a two-part test, which was later clarified in 2002, that appeal courts must use when hearing an appeal: are there “solid obstacles to conviction” that give rise to a doubt in the mind of the appeal judge; and, if so, does that doubt persist notwithstanding the advantages the jury had at trial?

Time and time again, the High Court has asserted this test, and it is surprising how often state appeal courts depart from it. Take a 2011 case, SKA v The Queen, also from NSW: a man had been convicted at trial of sexually assaulting a 10-year-old child; the convictions were upheld on appeal but then overturned by the High Court. In that case the majority expressed concern about the appeal court’s reasoning: “The Court concerned itself with whether … there was evidence to support the verdicts, rather than making its own independent assessment of the evidence.” The majority in the Pell appeal decision also went looking for evidence to support the verdicts, rather than following the M test.

The most recent statement by the High Court was August this year, when it refused leave for Victorian prosecutors to appeal against a decision of the Victorian Court of Appeal in the case of Tyrrell. Justice Mark Weinberg was one of the three judges who had unanimously decided to overturn the guilty verdict in Tyrrell, and Weinberg was the only judge who employed the proper M approach in Pell’s appeal hearing.

The Pell case is unique in a number of ways. While the lack of corroboration is not unusual, the fact there was no defence-friendly objective evidence, such as inconsistent medical evidence, is unusual. Pell’s accuser, it seems, held up much better under cross-examination than the complainants in the other cases, but the majority in the Court of Appeal still needed to forgive memory gaps and inconsistencies to arrive at their verdict.

What is perhaps most striking in the Victorian majority’s reasoning is that it effectively allowed no possible defence for Pell: there was nothing his lawyers could have said or done, because the judges appeared to argue it was enough to simply believe the complainant on the basis of his performance under cross-examination.

People who allege serious historical sexual assaults against them continue to face enormous hurdles to securing a conviction. If the High Court does overturn its 25-year-old approach and endorse the Victorian majority, it will certainly make it easier to secure convictions in historical sexual assault cases – but it will also dramatically lower the bar for successful prosecutions, which increases the risk of wrongful convictions.

Ultimately, the debate must surely turn to whether the criminal courts – which have very high burdens of proof and whose processes are notoriously traumatic – are the appropriate venues through which historical child sexual abuse cases should be run. People who make complaints very rarely achieve a successful prosecution. Other approaches – which emphasise healing, recovery and responsibility rather than fact-finding and punishment – have been trialled and have demonstrated much greater success in terms of preventing recidivism, but these approaches have been shut down by governments claiming to represent the will of an angry public.

Pell’s appeal will now be heard by the High Court, most likely next year. Its consistent approach to these cases means there is a good chance Pell will succeed. If that happens, the court could acquit him of all charges, in which case his story will become a cautionary tale about the dangers of wrongful convictions. Like everything else about this case, the cultural fallout will be immense.

This article was first published in the print edition of The Saturday Paper on November 16, 2019 as "Pell’s appeal to the High Court".

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Russell Marks is an adjunct research fellow at La Trobe University and works as a criminal defence lawyer in the Northern Territory.

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