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(Image: AAP/Lukas Coch)

George Pell is a free man. He will be released from prison today after 405 days of incarceration. He has also, according to law, had restored to him the status that we all enjoy if not convicted of a crime: innocent until proven guilty.

The High Court of Australia is the last station on the railway of justice. For all legal purposes, what it declares to be true is the truth. 

It has, unanimously, upheld Pell’s appeal from his conviction for child sexual assault, quashed the convictions (meaning they never happened), and ordered his release. No retrial; that’s the end of the road.

The issue was reasonable doubt. There are two bases on which the High Court will intervene in a criminal case and overturn a conviction: either there has been an error of law egregious enough to make the verdict unsafe (for example, that exculpatory evidence was wrongly excluded by the trial judge); or the conviction is inherently unsafe because the jury cannot have rationally come to the conclusion that there was no reasonable doubt as to guilt.

Pell won on the second limb, which only happens very rarely. The court determined that there was a “significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”.

It boiled down to a contest between two strands of evidence. On one side was the surviving alleged victim’s testimony that Pell had cornered him and raped him and another choirboy in the sacristy of St Patrick’s Cathedral after mass one Sunday morning, and had molested him on a second occasion in a corridor. On the other was the evidence of the so-called “opportunity witnesses”, who had testified as to Pell’s usual practice after mass and the inherent unlikelihood that he would have had an adequate opportunity to do what the complainant had alleged.

The opportunity witnesses’ evidence was unchallenged. They had described, as the court recorded, three circumstantial matters as to what ordinarily happened on Sundays:

  • Pell’s practice of greeting congregants on the cathedral steps after mass
  • “The established and historical Catholic Church practice that required that [Pell], as an archbishop, always be accompanied when robed in the cathedral”, and
  • “The continuous traffic in and out of the priests’ sacristy for 10 to 15 minutes” after mass.

The court proceeded on the assumption that the jury had assessed the complainant’s evidence as “thoroughly credible and reliable”.

However, in relation to the alleged rape in the sacristy, the court concluded that the opportunity witnesses’ evidence of usual practice was enough to “place” Pell on the cathedral steps, “place” another priest with him when he entered the sacristy, and establish that there was continuous traffic in and out of the room. That would have made it impossible for Pell to rape two choirboys.

As to the second alleged assault, which also took place after mass but in a corridor, again the court accepted that Pell must have stood on the cathedral steps for a while and then must have been accompanied by another priest. That would have made it difficult for him to push a choir boy up against a wall and squeeze his genitals.

The problem, concluded the court, was that the unchallenged evidence of the opportunity witnesses was inconsistent with the complainant’s version of events. Even accepting the complainant as a witness of truth, as the jury did, that still left the conflicting evidence, and therein lay the reasonable doubt.  That evidence “ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt”.

When Pell was first convicted, and again after the Victorian Court of Appeal upheld the conviction, I wrote that those who sought to second guess the jury and judges should pull their heads in. 

Those who wish to deny the High Court’s judgement should do the same.  The High Court is never wrong. Our rule of law dictates that we accept that, whether we agree with it or not.

It’s okay to be perplexed, to not understand, to wonder how it is that judges can find their way to a logical conclusion that the evidence of what some witnesses said Pell usually did every Sunday after mass should be preferred over the evidence of what the complainant said Pell did. To him.

However, while I’m struggling with this somewhat too, I’d point you to a key distinction that might get easily lost in the noise. The High Court did not rule that the opportunity witnesses were telling the truth, or that their evidence established as a fact that Pell could not have committed the crimes.

The court did not need to do that, and it wasn’t its job. What it did was find that, even if the complainant was telling the 100% truth, the prosecution case never found a way to sufficiently dismiss the doubt that the opportunity witnesses’ evidence raised. 

That doubt lingered. For the High Court, that forced the conclusion that an innocent man may have been convicted — and that would be an injustice.

This is not a victory for Pell, or his boosters. He is entitled to be presumed innocent of these charges, forever more, as it should be. He can go back to being a prince of the Catholic Church, and perhaps his social status will be restored too. So be it; he shouldn’t be the centrepiece of our thoughts.

But it’s a dead loss for Pell’s accusers, no question. It’s a blow for victims of institutional child sexual abuse, because for many it will shatter their faith in justice. 

My plaint that justice still exists, that this was a controversial but — on the law — defensible outcome, will ring very faintly in their ears.

However, the fact is that this is not the end of justice. Other cases will be brought, and serial predators who enjoyed the protection of the church will be unmasked. If you want to do something useful in processing this moment, spare your thoughts for the uncountable victims for whom justice has not yet been served.

Peter Fray

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