The presumption of innocence and the legal standard of “guilt beyond a reasonable doubt” are based on a bedrock commitment to safeguard an innocent man’s liberty – and, sometimes, his life. This foundational principle of Anglo-Saxon criminal law had been, it seems, all but lost in the tragic case against Australia's Cardinal George Pell. That is, until the country's high court set things right again.
In a unanimous opinion earlier this month, Australia’s highest court overturned the convictions of Cardinal Pell for molesting two choirboys in the Cathedral of Melbourne some 20 years ago. The 78-year-old prelate (and former Vatican finance minister) had already served more than a year of his six-year prison sentence before being released just days before Easter.
The accusations – that Pell forced oral sex on a chorister in the sacristy of the packed Cathedral after Sunday mass (and tried to do so with another boy) and then fondled him weeks later – were sordid, sensational, and fantastical from the get-go. How could Pell possibly have had time to so egregiously abuse two boys in the ecclesiastical equivalent of Grand Central Station? The accusations were, according to the high court, unsupported as a matter of law. “[T]here is a significant possibility…” the court wrote, “that an innocent person has been convicted.”
What caused Australia’s system of justice to jump so far off the rails?
It starts long before anyone, anywhere, levied charges against Pell as Victorian police contrived “Operation Tethering.” They placed ads in local papers, asking anyone with information on misbehavior at St. Patrick’s Cathedral in Melbourne to give them a call. That was how the accusation in question surfaced. As Father Raymond de Souza noted in the National Catholic Register, “[T]here was no crime being investigated in order to find a criminal, but a cardinal being investigated to find a crime.”
Of course, shoddy police work happens. That’s why criminal prosecutors are expected to exercise discretion and refrain from bringing specious cases to trial. Pell’s prosecutors failed epically to live up to such expectations. They relied solely on the story – the story they solicited – of a lone accuser decades after the events in question. (The other alleged victim died in 2014 before he could testify but after he reportedly told his mother that the abuse never happened.) Granted, sometimes evidence in sexual abuse cases is only the testimony of the victim. That’s why in Australia, and the majority of U.S. jurisdictions, “corroborating evidence” is not required. The problem here, as the high court noted, was that “unchallenged evidence” presented by the defense created “compounding improbabilities” of guilt.
In his treatise on the law of evidence, American scholar John Henry Wigmore offered a simple rule to separate truth from fabrication: “Every day’s experience and reasoning make it clear enough.” The high court judges, citing Wigmore, observed that “[t]he evidence of religious ritual and practice in this case had particular probative value.” Numerous witnesses testified as to the conduct of Pell, his attendants, altar servers, and the choir as they formally processed from the Cathedral at end of mass. Pell’s practice was to remain on the Cathedral steps and greet departing congregants. The Cathedral’s master of ceremonies, consistent with Catholic Church practice, always accompanied the cardinal when Pell was in the Cathedral. There was also a “hive of activity” where the egregious assault was said to have occurred. A jury “acting rationally,” the high court concluded, was required “to have entertained a doubt as to [Pell’s] guilt.”
That didn’t happen. If it had, Australia’s high court would not have had to clean up this travesty in order to exonerate Cardinal Pell. Indeed, before this month’s decision, the only bright spot in this case was intermediate appellate court justice Mark Weinberg. He had the courage and good sense to part company with two of his colleagues when the case came before that court. "The prosecution had to prove [Pell's] guilt beyond reasonable doubt,” he wrote in his prescient dissent. “The defence had to prove nothing at all. It did, however, point to a substantial body of evidence that … left open at least the ‘reasonable possibility’ that the complainant's allegations fell short of the standard of proof required for conviction.” (emphasis added).
Cardinal Pell’s acquittal is a great victory for the rule of law in Australia. More important, in this Easter season, a good and innocent man has regained his liberty.
Andrea Picciotti-Bayer is Legal Advisor for The Catholic Association Foundation.