High Court’s controversial Pell decision freed him on a technicality

By Joe Montero

George Pell has been released from prison, the Pope has welcomed it and the small band of loyalists claim the Cardinal has been vindicated.

Others are dismayed by what they consider a miscarriage of justice, and victims of child sex abuse feel devastated.

George Pell: church abuse victims shocked as cardinal walks free

Video from Guardian News

I am reluctant to say too much about what goes on in a particular case. For good reason. Not being privy to the complex details that are usually involved the court, and that each case is different, means that generalisations are usually wrong, and can bring harm to those affected. There is far too much of this about.

But the Pell case is of special public interest. Proceeding carefully, there are few things that can be said with confidence on the information available.

Before anyone gets carried away, they should consider that the High Court hearing this appeal, did not ask or answer whether Pell was innocent or guilty. All it considered, was the process of the original trial, and this means the result was based on a technicality.

A decision to grant special leave to appeal was made. It means that the court said that there are grounds for appeal. Given the nature of the case, the this case is not likely to be revisited and sent to trial again, and Pell got to walk out free.

Unlike the claim made by some, he hasn’t been declared either innocent, or guilty for that matter.

The difficulty with this case, was always, that it depended on the testimony of one witness, which could not be corroborated. How could it be? Child sex abuse is carried out in private, and there are not likely to be any witnesses to the act, who can come out and say they saw it.

The traumtised victim usually wearing a sense of shame and not wanting others to know about it, is likely to be loath to speak about it. Then there is reliance on memory over the details of what happened along time ago.

Thus it is possible to use said discrepancies in the testimony of the victim/witness, and between this and the testimony of Pell himself and his own witnesses, to suggest there could be an element of doubt.

Of course, this doesn’t automatically make George Pell guilty. It all depends on the details of this particular case.

Secondly, the jury in the second trial, was able to witness the parties in the flesh, to pick up their demeanor and body language, and consider this part of the evidence before it. The High Court did not consider this relevant.

There is a case to be made that non-verbal testimony is important. After all, this is the way human beings communicate.

The High court saw that the original trial judge and the judges of the Court of Appeal, who had earlier reviewed the case, had made an error in the application of legal principles. It was said that there should have been an instruction to the jury that there “might be” reasonable doubt.

‘Anger and disgust’: Father of Pell accuser slams Cardinal’s acquittal

Video from Sky News Australia

Note that the decision did not say there was reasonable doubt. Might be is an important distinction.

This decision is controversial, for it confronts public opinion, and more importantly, has a major implication on how the courts and jury system operate.

The ability of a jury to decide how the evidence stacks up may have been compromised.

This should not be the end of the Pell case. Further investigation is warranted, if justice is to be done and seen. Otherwise, the issue will continue to smoulder, bring more suffering and continue to damage the Church.

Those who have spoken out, and those others who will speak out from now, on deserve to be heard.

I have spoken to a number of Ballarat locals, who claim that the community has known about the abuse over the decades, and that anyone trying to do something about it, has run up against a brick wall of official cover up.

Some of the claims may be fact. Some may have been picked up from hearsay. It remains that they are so persistent, that they should be looked into further.

George Pell’s trouble are not over yet. Cases over a number of other cases are still pending.

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