On April 7, 2020 the High Court of Australia overturned Cardinal George Pell’s abuse
convictions, acquitted him of all charges, and ordered him released from prison.
Pell had been convicted a year and a half earlier on charges of abusing two boys back in 1996.
One of alleged victims testified at trial; the other had already died.
In this video I will summarize parts of the opinion’s 129 sections, noting some logical
errors the High Court finds in the prosecutors’ and lower court’s reasoning.
I will link the full opinion in the description below.
The opinion begins by giving the procedural history of the case and describing the High
Court’s proper role in reviewing it.
It then describes the layout of the Cathedral, where the assaults were alleged to have taken
place, and notes Pell’s habit of greeting people on the steps for 10-30 minutes after
each solemn Mass.
Sections 15-21 describe the allegations in graphic detail.
Pell is accused of two separate assaults, one month apart, in the vestry room of the
Cathedral, by the cardinal “in full regalia,” that is, still wearing his priestly robes.
The only dates Pell served mass at the Cathedral that fit the allegations are December 15 and
December 22, 1996, and February 23, 1997.
The prosecution alleged the assaults took place on the two latter dates.
Pell denied the allegations, citing his routine and entourage.
The prosecution made the case to the jury that all the evidence together left a reasonable
possibility the assaults had occurred.
In sections 32-42, the High Court concludes that the (lower, first) Court of Appeal erred
in viewing recorded witness testimony, as this is inconsistent with an appeals court's role.
After viewing the recorded testimony, the (lower) Court of Appeal determined the accuser
was a compelling witness.
The defense claimed the allegations were impossible, and the lower court then allowed the possible-vs-impossible
question to become a main focus of the trial.
Here the High Court cites Justice Weinberg's earlier dissent.
In sections 43-49, the High Court explains what I think is the central logical error
of the Pell trial.
The Court of Appeals' determination that the accuser was credible drove them to ask (erroneously)
whether his evidence *could* still be true in the face of contrary testimony.
Instead, the proper question was whether it was reasonably possible that his evidence
was *not* true.
According to Pell’s submissions on appeal: The lower court erred in "asking whether there
existed the reasonable possibility that [the accuser]'s account was correct, rather than
whether the prosecution had negatived the reasonable possibility that it was not."
I think the logical error here is one of burden shifting, from “Is X not possibly-false?”
to “Is X possibly true?”
Or let me put it this way: instead of asking “Given all the testimony, is the accusation
true beyond a reasonable doubt?” the lower court asked “Is there any reasonable possibility
the accusation could still be true?”
The lower court’s mistake was to convict Pell because there was a reasonable possibility
the accusation was true, instead of asking whether there was no reasonable possibility
the accusation was false.
Thus they used too low an evidentiary standard.
Section 54 of the High Court’s opinion describes one of Pell’s attorneys’ further arguments:
that the lower court's "conclusion that it was reasonably possible that [Pell] had not
adhered to his practice [of greeting people after mass] on the date of the first incident
necessarily carried with it acceptance that it was reasonably possible that he had."
Therefore reasonable doubt existed.
That is, if it is “reasonably possible” that he broke his custom that day, it must
also be reasonably possible that he followed his custom that day.
The High Court concludes Pell's usual practice of greeting people for 10 minutes after mass
is not the only factor weighing against probability of the accusations' truth.
There is a "compounding effect of the improbability of events having occurred as [the accuser]
described them."
The opinion then analyzes these compounding factors.
It begins in sections 57 and 58 with three specifics for further analysis.
If the accusations are true, then (1) Pell did not remain on the cathedral steps for
10 or more minutes after mass, (2) Pell returned alone to the sacristy room in full vestments,
and (3) for the 5-6 minute duration of the assaults, no other person entered the sacristy.
The Court of Appeal accepted "evidence of four witnesses in concluding not only that
it was possible [Pell] was alone and robed in contravention of centuries-old church law,
but that evidence of witnesses to the contrary did not raise a reasonable doubt as to [Pell's] guilt."
The four witnesses who gave evidence in the lower court reported seeing Pell at various
times in the corridor outside the sacristy, sometimes accompanied or alone, sometimes
robed or not robed.
Some witness memories seemed to me general and not very specific.
Prosecutors did not challenge the Master of Ceremonies’ testimony that he was with Pell
for 15 or more minutes after both December masses.
Nor did they challenge testimony that the Church requires the Archbishop to be accompanied
while robed.
The High Court concludes that the "slim" testimony of the 4 witnesses is "no foundation" for
disregarding this other testimony.
The lower court also erred in accepting the four witnesses' testimony and ignoring the
"powerful body of evidence" that Pell's habit of greeting congregants for 10 or more minutes
after mass was invariable.
The High Court opinion then analyzes weaknesses and gaps in the four witnesses' testimony.
Section 107 and following analyze some logistical improbabilities of the accuser’s specific accusation.
It is difficult to find a 5-6 minute interval during which the sacristy and the corridor
outside it would have been empty of all people.
The lower court concluded this was "possible," but this possibility is laden with problems.
The lower court conflated two distinct time intervals: (a) the 5-6 minutes the sacristan
allowed for private prayer in the cathedral before clearing the altar and taking the vessels
to the sacristy, and (b) the 5-6 minutes during which the alleged assault took place in the sacristy.
The 5-6 minute prayer time began during the recessional, while Pell and the altar boys
were walking down the center aisle to the exit; by the time the accuser arrived in the
sacristy, some of this time would already have passed.
Where were the other altar servers during this interval?
No evidence was presented that they were not then returning to the sacristy as usual.
Whatever the credibility of accuser's testimony, however, the lower court faced other, uncontested
testimony that (1) Pell was on the cathedral steps for at least 10 minutes at both December
masses, (2) Pell was always with the MC while vested, and (3) the sacristy corridor was
full of activity after mass.
Even accepting the accuser's testimony as credible and compelling, the lower court should
have asked whether the evidence just cited "nonetheless required the jury, acting rationally,
to have entertained a doubt as to the applicant's guilt. Plainly they did."
The High Court continues: "Making full allowance for the advantages enjoyed by the jury, there
is a significant possibility in relation to charges one to four that an innocent person
has been convicted."
The opinion’s analysis of the second alleged incident, dated by prosecutors to February
1997, starts at section 120.
This allegation involved Pell pinning a choirboy to a wall in the sacristy corridor, in full
view of dozens of people, none of whom noticed it.
The second incident allegation also falls to the same uncontested evidence cited above:
that Pell's habit of staying on the steps for ten minutes was invariable, that he was
always accompanied while robed, and that the sacristy corridor was a hive of activity after mass.
To quote from the final section of the opinion, section 129: "For these reasons, [this court
orders]: ... the appellant's convictions be quashed and judgments of acquittal be entered
in their place."
My final comment is this: It looks like the prosecutors tried to prove that it was *possible*
Pell did what he was accused of doing, but even this required ignoring evidence that
the prosecutors did not attempt to impeach.
The lower appeals court committed logical errors and conflated the two time periods.
By the time the 5-6 minutes in the sacristy started, some of the 5-6 minutes of cathedral
prayer time had already elapsed.
At some point the process became mostly about interpreting events and testimony to be compatible
with the accuser's testimony, which was already accepted as compelling.
This led to procedural errors, and is incompatible with the burden of proof and the rights of defendants.
Thus the High Court ordered Cardinal Pell acquitted, meaning he cannot be re-tried for
the same offences.
He was released from prison shortly afterwards.
I hope you’ve benefitted from my summary of the High Court’s Pell opinion.
Thanks for watching today; goodbye.