I have been prompted to write this article because of the close parallels with the Bishop Bell case. [See ‘Afternote’ at end of article].
Richard W. Symonds
CARDINAL PELL AND THE PRESUMPTION OF INNOCENCE” BY RICHARD W. SYMONDS OF THE BELL SOCIETY –
The principle of the presumption of innocence is of extreme importance, and the case of Cardinal George Pell has implications for the respect for – and security of – this principle.
That one is considered innocent until proven guilty is a vital pre-condition for our survival and well-being within a civilised society. Undermining such jurisprudence can lead to catastrophic miscarriages of justice which ultimately threaten our humanity.
‘Ei incumbit probatio qui dicit, non qui negat’ is one of the foundational legal principles – a bedrock of our civilization: ‘the burden of proof is on the one who declares, not on one who denies’. The accused is not required to defend or prove their innocence; it is for the accuser to prove guilt – beyond reasonable doubt.
Presumption of innocence is a legal right of the accused in a criminal trial and an international human right embodied under Article 11 of the UN Universal Declaration of Human Rights.
A just law must be a fair law which punishes the guilty, not the innocent. Presumption of innocence is an immunity against unjust accusations.
In the case of Cardinal George Pell, a disturbing and dislocating miscarriage of justice has been exposed within Australia’s justice system – and presumption of innocence has been lethally compromised and undermined.
A basic history of events – a timelined chronology if you will – might help:
July 16 1996 – Bishop George Pell is appointed Archbishop of Melbourne. A former choirboy later testifies Bishop Pell molested him and his friend – both aged 13 – in the vestry of St. Patrick’s Cathedral in Melbourne that year, after Mass.
March 26 2001 – Archbishop Pell becomes Archbishop of Sydney.
October 21 2003 – Pope John Paul II makes Archbishop Pell a Cardinal.
February 25 2014 – Pope Francis appoints Cardinal Pell as his Finance Minister – Prefect of the Secretariat for the Economy.
April 8 2014 – One of the choirboys dies aged 31 of a heroin overdose, without alleging the molestation by Pell and telling his mother he had not been abused by Pell.
August 5 2014 – Victoria police establish a Task Force to investigate how religious and other non-government organizations [NGO’s] deal with abuse accusations.
June 18 2015 – The surviving choirboy gives his first statement to the police, claiming sexual abuse by Cardinal Pell.
December 23 2015 – The Victoria Police Task Force appeals publicly for information relating to allegations of sexual abuse while Cardinal George Pell was Melbourne Archbishop.
March 1 2016 – Cardinal Pell testifies by video link from Rome to the Australian child abuse inquiry. Pell was critical on how the Church had dealt with paedophile priests in the past, but denied he had been aware of the extent of the problem.
October 19 2016 – Victoria police go to Rome to question Cardinal Pell who hears details of the choirboy’s abuse allegations against him for the first time.
June 29 2017 – Police charge Pell with multiple counts of historical sexual abuse. This made him the most senior Catholic cleric to be charged in the Church’s abuse crisis. Pell denied the accusations and took leave of absence from the Vatican to return to Australia to defend himself.
July 26 2017 – Cardinal Pell makes his first court appearance on charges that he sexually abused multiple children in Victoria decades earlier. Details of the allegations were not made public. Pell vows to fight the allegations.
May 1 2018 – A Magistrate commits Cardinal Pell to stand trial. He pleads not guilty to all charges.
May 2 2018 – A Judge separates the charges into two trials; the first dating to his tenure as Melbourne Archbishop and the other when he was a young priest in Ballarat during the 1970’s.
December 11 2018 – Jury unanimously convicts Cardinal Pell on all charges in the Melbourne case.
February 26 2019 – Suppression order forbidding publication of any details about the trial is lifted. Prosecutors abandon trial on the Ballarat charges.
March 13 2019 – Judge sentences Cardinal Pell to six years in prison on five sex abuse convictions in which he must serve 3 years and 8 months before he is eligible for parole.
August 21 2019 – Victoria Court of Appeal rules 2-1 to uphold the convictions, but there is “stinging dissent” by that Court’s leading criminal law expert.
The High Court, Australia’s top court, in an unusual procedural move, agrees to hear Cardinal Pell’s leave to appeal, and his actual substantive appeal, concurrently.
April 7 2020 – All seven judges of the High Court of the Australian Court of Appeal quash the conviction of Cardinal George Pell. In a volte-face, they unanimously agree the appeal has succeeded, dismiss all convictions, and release Cardinal Pell immediately – after he spent 13 months in high-security prisons.
In overturning the jury’s decision of December 2018, the seven High Court judges said the jury, “acting rationally on the whole of the evidence, ought to have entertained a doubt as to the applicant’s guilt with respect to each of the offences for which he was convicted”. 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”. The High Court referred to what it called “the unchallenged evidence of the opportunity witnesses” at the 2018 trial, which suggested there was cause for doubt.
This case has attracted world-wide attention for good reason.
It is clear Cardinal George Pell should never have been convicted. It is clear he should never have spent 13 months incarcerated behind bars. It is clear there was a miscarriage of justice in the December 2018 jury conviction. It is clear Victoria’s Court of Appeal upholding the judge’s March 2019 conviction was wrong.
What lies at the heart of our justice system is Lord Sankey’s ‘golden thread’ which runs through criminal and common law: Guilt must be proved by the accuser’s prosecution beyond any reasonable doubt. This undoubtedly did not take place in the case of Cardinal Pell, before the High Court judges intervened this April to make just the injustice.
It is better many guilty go free rather than one innocent is wrongly convicted and jailed for a crime they did not commit.
The unanimous High Court judgement makes explicit the standard of reasonable doubt and makes implicit criticisms of the Victoria Court of Appeal for not understanding what that means. There was a presumption of guilt on their part, but he has now been found ‘not guilty’ beyond reasonable doubt.The Cardinal is therefore entitled to be presumed innocent because that is what the Presumption of Innocence is all about – innocent until proven guilty.
Yesterday’s Daily Telegraph carried an item about a new abuse allegation having just been made against Cardinal Pell, following his recent acquittal [“New child abuse police inquiry into cardinal”, DT, April 14 2020 – Page 15].