On 21 August 2019, the Court of Appeal of the Supreme Court of Victoria dismissed Cardinal George Pell’s appeal. Late last year, Cardinal Pell was convicted of five sexual offences by a jury and sentenced to 6 years’ imprisonment with a non-parole period of 3 years and 8 months.
At the time of offending, Cardinal Pell was the Catholic Archbishop of Melbourne. While Pell has indicated that he will appeal the decision, the case demonstrates is a strong reminder that organisations must respond swiftly to allegations of child abuse, particularly allegations against trusted senior leaders.
In 1996, Cardinal Pell was appointed Archbishop of Melbourne and introduced the Melbourne Response to provide support towards victims of sexual abuse. However, the effectiveness of this response has been heavily criticised. In 2001, Pell was scrutinised for his role in spending $1 million fighting a legal claim by John Ellis, the case that set up the Ellis defence for churches which has now been set aside.
Allegations of unlawful sexual conduct against Cardinal Pell arose in 2002 when Pell was accused of sexually assaulting a 12-year-old boy at a Catholic youth camp in 1961. The investigation by Retired Victorian Supreme Court Justice, Alec Southwell, found that there were forensic difficulties given the length of time that had based and stated that he was “not satisfied that the complaint has been established”.
During the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), Cardinal Pell was asked to appear in several hearings in relation to the criticised Melbourne Response, the Ellis defence and claims that he was aware of other allegations of sex abuse by priests but failed to intervene.
In 2017, Cardinal Pell was charged with multiple sexual offences. The allegations relate to abuse that occurred on two occasions in 1996 – 1997 against two choirboys in the St Patrick’s Cathedral choir. The first instance was said to involve two boys (one of whom was now deceased) and the second instance only involved one. The first instance is alleged to have occurred in the priest’s sacristy and involved forced oral sex. The second instance is alleged to have included groping and molestation in a corridor at the back of the cathedral.
In December 2018, after less than four days of deliberation, the jury returned a unanimous verdict of guilty on all five charges.
Cardinal Pell’s appeal was based on three grounds. The first ground related to the argument that the guilty verdict was unreasonable and could not be supported having regard to the evidence. The other two grounds related to procedural and technical points, including that the plea of not guilty was not made in front of the jury.
The procedural grounds of appeal were both unanimously dismissed by the Court of Appeal in George Pell v The Queen  VSC 260.
In relation to the first ground, the judges had to determine if the evidence presented to the jury meant it was reasonably open to the jury to convict Cardinal Pell. The judges had to consider the evidence of other witnesses, the evidence of the complainant and its reliability. Cardinal Pell’s case on the appeal raised 13 ‘obstacles’ that meant it would be impossible for the jury to convict beyond a reasonable doubt.
Chief Justice and Justice Maxwell dismissed all 13 ‘obstacles’ and made the following key observations:
- The complainant was a compelling witness. Throughout his evidence, he came across as someone who was telling the truth. Nothing about his account of the events suggest that it was either fabricated or a product of his imagination.
- Cardinal Pell’s defence also argued that it was improbable or implausible for the events to occur given his seniority and the gravity of the risk as both offences occurred during high risk times. The justices noted that previous proven allegations against high profile offenders of sexual abuse demonstrated that sexual offending does take place in circumstances carrying a high risk of detection.
- The claim by Cardinal Pell’s defence that it was ‘impossible’ to pull aside his robe to commit the sexual abuse was rejected. The justices found that the robe, which they and the jury physically examined, was not as heavy or immoveable as contended by the witness statements relied on by the defence.
- Cardinal Pell was “not to be made a scapegoat for any [perceived] failings…of the Catholic Church”. His conviction and sentence were only concerned with the five offences alleged to have been committed by him.
Interestingly, Justice Weinberg dissented and found that the evidence presented made it “impossible to accept” the complainant’s account. In particular, Justice Weinberg did not find the complainant to be a credible and reliable witness, finding that at times he embellished his account and that there were discrepancies in his account. He also found the witnesses presented by the defence to be compelling.
Nonetheless, the majority means that Cardinal Pell’s appeal was dismissed. Cardinal Pell has foreshadowed that he will seek leave to appeal to the High Court. It is not clear whether the Catholic Church will be paying for the cost of the appeal.
Lessons on child safety
As stated by Commissioner Robert Fitzgerald AM who presided over the Royal Commission, one of the biggest mistakes an organisation can make is to assume allegations of child abuse will not happen in their organisation. The dismissal of Cardinal Pell’s defence of ‘impossibility’ signals a growing reluctance to accept that senior leaders of organisations would be less likely to “risk it all” and commit child abuse.
It is important that all organisations have in place clear and strict reporting requirements. In states with a Reportable Conduct Scheme like Victoria, additional obligations need to be considered such as the requirement to investigate. We further recommend that organisations undertake training with their employees and volunteers to clarify that trusting a person is not reasonable grounds on which to fail to report, including senior leaders of that organisation. The recently introduced Bill adding religious and spiritual leaders as mandatory reporters and removing confessional privilege demonstrates the resolve of legislators to require organisations to proactively report child abuse.
For more information on preparing your organisation’s response to child safety concerns, please do not hesitate to contact us.