Pell v The Queen

Case [2020] HCA 12

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

GEORGE PELL  APPLICANT

AND

THE QUEEN  RESPONDENT

Pell v The Queen

[2020] HCA 12

Date of Hearing: 11 & 12 March 2020
Date of Judgment: 7 April 2020

M112/2019

ORDER

1.Special leave to appeal granted.  

2.Appeal treated as instituted and heard instanter and allowed.

3.Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 21 August 2019 and, in its place, order that:

(a)the appeal be allowed; and

(b)the appellant's convictions be quashed and judgments of acquittal be entered in their place.

On appeal from the Supreme Court of Victoria

Representation

B W Walker SC with R B Shann for the applicant (instructed by Galbally & O'Bryan)

K E Judd QC with M J Gibson QC and A S Ellis for the respondent (instructed by Office of Public Prosecutions Victoria)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Pell v The Queen

Criminal law – Sexual offences against children – Appeal against conviction by jury on ground that verdict unreasonable or cannot be supported having regard to whole of evidence – Where prosecution case wholly dependent upon acceptance of truthfulness and reliability of complainant's account – Where jury assessed complainant's evidence as credible and reliable – Where witnesses gave unchallenged evidence of specific recollections, practices and routines inconsistent with acceptance of complainant's account ("unchallenged inconsistent evidence") – Where Court of Appeal required to take into account forensic disadvantage experienced by applicant – Whether prosecution negatived reasonable possibility that applicant did not commit offences – Whether Court of Appeal required applicant to establish offending impossible to raise reasonable doubt – Whether unchallenged inconsistent evidence required jury, acting rationally, to have entertained doubt as to applicant's guilt.

Criminal practice – Appeal – Video evidence – Where evidence of complainant and other witnesses recorded – Where Court of Appeal viewed recorded witness testimony – Whether proper discharge of appellate court's function necessitated review of recorded witness testimony.

Words and phrases – "beyond reasonable doubt", "compounding improbabilities", "credibility and reliability", "function of the appellate court", "function of the jury", "impossibility", "improbability of events", "invariable practice", "jury's advantage in seeing and hearing the witnesses", "negatived the reasonable possibility", "opportunity witnesses", "realistic opportunity for the offending to have occurred", "religious ritual", "routines and practices", "significant forensic disadvantage", "significant possibility that an innocent person has been convicted", "solid obstacles to conviction", "standard and burden of proof", "unchallenged evidence", "uncorroborated", "video-recordings of the witnesses at trial".

Crimes Act 1958 (Vic), ss 45(1), 47(1).
Criminal Procedure Act 2009 (Vic), ss 276(1)(a), 378, 379(b)(i).
Judiciary Act 1903 (Cth), s 37.
Jury Directions Act 2015 (Vic), ss 4A, 39.

  1. KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ.   On 11 December 2018, the applicant was convicted following a trial before the County Court of Victoria (Chief…

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AGLC
Pell v The Queen [2020] HCA 12
Case
[2020] HCA 12
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by George Pell against his convictions for historical sexual offences. The prosecution's case relied entirely on the complainant's testimony, which the jury found to be credible and reliable. However, Pell argued that the verdict was unreasonable and unsupported by the evidence, particularly in light of unchallenged evidence regarding specific practices and routines that were inconsistent with the complainant's account.

The central legal issue before the High Court was whether the Court of Appeal had correctly assessed the reasonableness of the jury's verdict. This involved determining whether the prosecution had discharged its burden of proof by negativing any reasonable possibility that Pell did not commit the offences, or if the Court of Appeal had improperly shifted the onus onto Pell to prove the impossibility of his guilt. The Court also considered the weight to be given to unchallenged evidence that presented "solid obstacles" to the prosecution's case and whether the jury, acting rationally, should have entertained doubt. Furthermore, the Court examined the role of video recordings of witness testimony in the appellate court's review function.

The High Court reasoned that the jury's assessment of the complainant's credibility, while important, did not operate in a vacuum. The Court emphasised that appellate courts must consider the entirety of the evidence, including any evidence that casts doubt on the prosecution's case. In this instance, the unchallenged evidence concerning Pell's routines and the availability of the premises created significant inconsistencies with the complainant's narrative. The Court found that this evidence presented a "realistic possibility" that the offending could not have occurred as described, and that the jury may have overlooked or given insufficient weight to these "compounding improbabilities." The Court also noted the significant forensic disadvantage Pell experienced due to his decision not to give evidence.

The High Court allowed the appeal, quashed Pell's convictions, and entered judgments of acquittal. The Court concluded that, when viewed in its totality, the evidence did not establish Pell's guilt beyond a reasonable doubt, and there was a significant possibility that an innocent person had been convicted.

Orders

Orders of the court

1. Special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and allowed.

3. Set aside order 2 of the orders of the Court of Appeal of the Supreme Court of Victoria made on 21 August 2019 and, in its place, order that:

(a) the appeal be allowed; and

(b) the appellant's convictions be quashed and judgments of acquittal be entered in their place.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If the weather was inclement, the procession processed down the centre aisle to the west door and processed back along the southern aisle, through the double doors in the south transept and into the sacristy corridor. The choristers walked along the sacristy corridor through the door to the vestibule and into the choir room in the Knox Centre, while the altar servers entered the priests' sacristy and bowed to the crucifix.A's evidence A and B were aged 13 years at the time of these events. A was a soprano. It was his evidence that, following Sunday solemn Mass, he and B had broken away from the procession at a point when it was approaching the metal gate to the toilet corridor. The two of them had slipped away and gone back into the Cathedral through the door to the south transept. The double doors from the south transept to the sacristy corridor were unlocked and they made their way down the corridor to the priests' sacristy, which was unlocked. They went inside and were "poking around". In a cupboard in an alcove they found a bottle of red altar wine. They had barely taken a couple of swigs from the bottle when the applicant appeared in the doorway. He was standing alone in his robes. He challenged them, saying, "[w]hat are you doing in here?" or "[y]ou're in trouble". A and B froze. The applicant undid his trousers and belt and started "moving ... underneath his robes". The applicant pulled B aside, took his penis out and lowered B's head towards it. A saw the applicant's hands around the back of B's head. B was crouched before the applicant and his head was down near the applicant's genitals (charge one). B said "[c]an you let us go? We didn't do anything." This assault took place for "barely a minute or two". Next, the applicant turned to A, pushing him down into a crouching position. The applicant was standing and his penis was erect. He pushed his penis into A's mouth. This assault took place over a short period of time that "wouldn't have been any more than 2 minutes" (charge two). The applicant then instructed A to undo A's pants and to take them off. A dropped his pants and underwear and the applicant started touching A's penis and testicles (charge three). As he was doing this, the applicant used his other hand to touch his own penis (charge four). The applicant was crouched almost on one knee. These further acts of indecency occupied "a minute or two". A and B made some objections but did not quite yell out. They were sobbing and whimpering. The applicant told them to be quiet, in an attempt to stop them crying. After the applicant stopped, A gathered himself and his clothing. He and B re-joined some of the choir, who were mingling around in the choir room and finishing up for the day. A and B then left the Cathedral precinct. A recalled that they were picked up by his parents or B's parents. He did not complain to anyone, including his parents, about the incident. Nor did he ever discuss the offending with B. At least a month after the first incident, again following Sunday solemn Mass at the Cathedral, A was processing with the choir back along the sacristy corridor towards the Knox Centre (the procession on this occasion was evidently an internal one). After A passed the doors to the priests' sacristy, but before reaching the door to the archbishop's sacristy, the applicant appeared and pushed A against the wall and squeezed his testicles and penis painfully. The applicant was "in his full regalia". The assault was fleeting. A did not say anything nor did he tell B about this second incident (charge five).

Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

A was uncertain of the date of each incident. He believed that both had occurred following a Sunday solemn Mass celebrated by the applicant in the second half of 1996, before Christmas. He maintained that the two incidents were separated by at least one month. The celebration of Sunday solemn Mass following the applicant's installation as Archbishop of Melbourne The applicant was installed as Archbishop of Melbourne on 16 August 1996 at a ceremony held in the Exhibition Building. The Cathedral was closed from Easter until the last week of November 1996 while renovations were being completed. The archbishop's sacristy was not available for the applicant's use throughout the period of the alleged offending. The applicant used the priests' sacristy to put on and remove his vestments in this period. Portelli and any other priests also used the priests' sacristy for robing. The first occasion on which the applicant celebrated Mass at the Cathedral was the vigil of Christ the King on the evening of Saturday, 23 November 1996. The first time the applicant celebrated Sunday solemn Mass in the Cathedral was on 15 December 1996. The only other occasion on which the applicant celebrated Sunday solemn Mass in the Cathedral in 1996 was on 22 December. The next occasion on which the applicant was present in the Cathedral for the celebration of Sunday solemn Mass was on 23 February 1997. The occasion was unusual in that the celebrant was Father Brendan Egan and not the applicant. The applicant presided at the Mass, a role which did not require him to speak. When presiding at solemn Mass the applicant wore his "choir robes": a purple cassock, which was worn under a white garment called a "rotchet" that extended down to the knees, and over which the applicant also wore a short purple cape. When celebrating solemn Mass, the applicant wore an alb, which is a white, ankle-length tunic, tied at the waist with a cincture, a rope knotted several times to keep it in place; a stole; a cross around the neck; a green and gold cord worn down the back; a chasuble; a purple skull cap; and a mitre. In procession, the applicant carried a crosier. In the way the prosecution case was left to the jury, it was alleged that the first incident occurred on either 15 or 22 December 1996 and that the second incident occurred on 23 February 1997. The applicant's denials The applicant did not give evidence at the trial. In October 2016, he voluntarily participated in a video-recorded interview with the police, which was in evidence. In the course of the interview the applicant emphatically denied A's allegations, stating that "[t]he most rudimentary interview of staff and those who were choirboys" at the time would confirm not only that the allegations were "fundamentally improbable" but also that they were "most certainly false". The applicant told the investigating police that he and his master of ceremonies were at the front of the Cathedral after Mass "as I always did", while the sacristan and his assistant would be in the sacristy cleaning up and bringing out the vessels and other items from the Mass.The prosecution's pre-trial application