George Pell
(Image: AAP/Daniel Pockett)

George Pell’s appeal against his conviction of child sexual assault turns on one question that resists examination and another that must survive it. What is a reasonable doubt? Was it reasonable for the jury that convicted him not to have it?

Two days of courtroom submissions in early June left us little the wiser on the first question. The ensuing analysis was more intent on exploring the narrative possibilities than the basis for them. On Wednesday we’ll learn whether the jury’s guilty verdict is affirmed or set aside. Either way, the reasons provided will offer an overdue insight into the uncertain latitudes of reasonable doubt.

The High Court authority to which the Victorian Court of Appeal must defer is 25 years old and not overly expansive: “A reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced”. The court must examine the evidence afresh and decide for itself whether it proves the charges to the required standard.

Beyond reasonable doubt is a high standard of proof, that much we know. Beyond that, its meaning is still somewhere on the spectrum between self-evident and inescapably subjective.

Justice Chris Maxwell, President of the Court of Appeal and one of the judges who will decide Pell’s fate, spoke to the blurred contours of the task during the hearing. “It’s the very inscrutability of the verdict that is its most striking feature,” he said, contemplating the task of getting inside the jury’s mind. “We have to give reasons. They don’t.”

Even before the appeal it was difficult to understand how a jury could have been sufficiently doubt-free to convict. The uncorroborated evidence of a single witness usually isn’t enough to ground a conviction.

In this case the improbability of the offending was supported by about 20 witnesses at the trial and remarked upon by two of the judges during the appeal. Those witnesses placed Pell in locations that would have made it very difficult for him to commit the crimes at the specified times. It would have required a number of church officials and functionaries to coincidentally depart from their normal practices and for Melbourne’s (then) newly-appointed archbishop to push the extremities of risk-taking.

A dry recounting of the case details does little to dispel the reasonable doubts. The victim’s account changed during the investigation and again under cross-examination at trial. The case put to the jury by the Crown differed again from the victim’s final evidence. The abuse was only reported after the second victim died of a drug overdose in 2014, having denied being abused. The dates of the offending were also subject to variation — at least one other date was proffered and then withdrawn.

Inconsistencies in a victim’s recollection of sexual abuse are no longer regarded as inherently adverse to the victim’s credibility. There is general acceptance of forensic authority that the passage of time — in this case, 22 years — can affect a victim’s recollection of detail without rendering the memory inaccurate or unreliable. Nor is denial unusual in victims of abuse. But these belated acknowledgements go some way to negating a disadvantage rather than conferring an advantage. They don’t lower the standard of proof or shift the onus of establishing it.

That Pell was advised against taking the stand probably reflected a realistic concern that he would not make a particularly sympathetic witness. That the victim was plainly a most convincing witness suggests the renowned demolition tactics of Pell’s trial QC, Robert Richter, backfired badly. Richter said the victim was a fantasist and his story an impossibility. The witness held up. The question for the court is whether that is enough to overcome the significant improbabilities and high standard of proof.

A remark ventured by Justice Mark Weinberg on the first day of the appeal may prove instructive. “It’s unfortunate in some ways that the case was pitched at the level of impossibility”, the judge said. “The risk of running it that way is that the jury, faced with competing arguments, answers the wrong question. It answers the question: was it possible?”

We don’t know whether the jury applied the standard of proof correctly because juries don’t give reasons. We do know the victim’s testimony was given by closed-circuit television away from the court, and the first jury couldn’t reach a verdict. We know the second jury watched a recording of the same evidence and the appeal court judges watched the same recording. So the proper deference an appeal court owes to the jury is diminished.

Should the judgment go Pell’s way, it won’t be a victory for arcane legal logic over common justice. It will simply mean the high standard of proof that still applies was not met in this exceptional case. It will portend a great deal more if the trial verdict holds because it will vindicate the high value placed on the first-hand testimony of victims.

The two other grounds of the appeal are not likely to have occupied the court for long. The verdict will stand or fall on the question of reasonable doubt.

“Each of us has had very wide experience of the circumstances that can give rise to a doubt,” said Justice Maxwell, presumably in reference to his two colleagues.

There is every reason to believe they’ll get it right.

If you or someone you know is impacted by sexual assault call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. Lifeline is on 13 11 14. In an emergency, call 000.

Peter Fray

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