by Vivi Teshuva

I first heard of Cardinal George Pell in 2013. The Royal Commission into Institutional Responses to Child Sexual Abuse was uncovering in great depth the degree to which senior officials of religious institutions had failed to exercise their duty of care by covering up sexual assault of children. Since then, four years have passed and a lot has taken place and now, in 2017 are witnessing a historic moment taking place within our courts, the trial of one of the highest ranking members in the Catholic Church. As a law student, I wrote this piece to have some clarity about this upcoming trial.

Who Is Cardinal Pell and why is his trial so monumental?

On June 29th 2017, after a long investigation by Victoria Police’s SANO Taskforce, Cardinal Pell’s lawyers in Melbourne were served with multiple charges of historical sex offences. These offences are alleged to have occurred in the 1970s when Pell was an ordained priest in his home town of Ballarat. After receiving advice from the Office of Public Prosecutions, Victoria Police concluded that the evidence they had collected was substantial enough to be tested in court.

Since the 1970s, Pell has gone on to become one of the most influential people in the Australia Catholic church. He became Archbishop of Melbourne in 1996 and set up the way the church would respond to child sexual abuse claims. In 2003, he became a Cardinal, which gave him exclusive rights to vote for a new Pope. In 2014, Pell was appointed to look after the Vatican’s budget and financial planning. He is currently ranked the third most important person in the Catholic church and was even tipped to one day become Pope. In 2016, he was called before the Royal Commission into Institutional Responses to Child Sexual Abuse but gave evidence by video link after saying he was too sick to travel. Now Cardinal Pell is back in Melbourne to “have [his] day in court… and clear [his] name” of the allegations of sexual assault made against him.

It is unprecedented that a cardinal of the church in the modern age in a free society go to trial for such charges. The only other similar case was that of Archbishop Jozef Wesolowski, who was the Apostolic Nuncio (an ambassador of the Church with diplomatic immunity) to the Dominican Republic. He was called back to the Vatican in 2013 where he was charged under Vatican law for claims of child abuse. He was defrocked and stripped of his diplomatic immunity but he died in 2015 while awaiting trial.

When and under what circumstances will Pell next be in court?

Pell attended the Magistrates Court in Melbourne on July 26th 2017 for a filing hearing. This is the first hearing in the committal process at which the Magistrate (Duncan Reynolds) set a timetable for the exchange of information between the prosecutor (Andrew Tinney, SC) and the defense (Robert Richter, QC). Next will come the committal process which will play out as follows. The prosecution has been ordered to serve a brief of evidence by September 8th with Pell to return to court for a committal mention on 6 October. At the committal mention, matters in dispute will be discussed and a date for the committal hearing will be set. Permission may also be given to cross-examine Pell. After this will come the committal hearing at which the magistrate will hear the prosecution’s evidence and decide based on this, whether a jury could potentially convict Pell. The threshold will most likely be met and the matter will proceed to a higher jurisdiction.

Will The Charges Be Heard Together or Severed?

In Australia, the starting point is that there will be a joinder of counts against Pell. There is a possibility that the defence will make an application for severance, meaning they will seek separate trials for each offence. This is due to the possibility of prejudice to Pell, which could arise from a joint trial. The defence might argue that jurors might use evidence relating to one offence to decide that Pell has also committed a different offence, even though there may be insufficient evidence supporting a conviction for the second offence. Thus, the prosecution’s case would be weakened if an application was granted for separate trials since the defence would be able to conduct each trial in isolation from the other charges. The defence would have a better chance at arguing that each complainant has fabricated their evidence given the lack of corroborating evidence from other victims, increasing the likelihood of acquittal.

Under section 193(3) of the Criminal Procedure Act 2009, an application for severance may be granted if the court decides that:

(a) the case of an accused may be prejudiced because the accused is charged with more than one offence in the same indictment; or
(b) a trial with the co-accused would prejudice the fair trial of the accused; or 

Nevertheless, in 1997, Victoria established a presumption in favour of joint trials in sexual offence cases. The presumption is now located in s 194(2) of the Criminal Procedure Act 2009 (Vic), which provides that:

(2) … if in accordance with this Act 2 or more charges for sexual offences are joined in the same indictment, it is presumed that those charges are to be tried together.

In Pell’s case, it will be open to the Court to use its discretion to order separate trials if the probative value of a joint trial is outweighed by the prejudicial impact it will have on the defendant’s case. In deciding this, the Court may consider the need to reach finality as expeditiously as possible.

Can Cardinal Pell have a fair trial?

In five Australian jurisdictions—New South Wales, South Australia, Western Australia, Queensland and the Australian Capital Territory, an accused may make an application to be tried by judge alone as opposed to being tried by a jury. There is no capacity for such an application to be made in Victoria or Tasmania. Concerns have been raised by some about the impact this can have on high-profile defendants such as Pell. The question is whether a jury can put their perceptions of Pell and the Catholic church out of their minds given that sexual abuse has been so widely canvased in Australia by the media.

While this story has been dominating the news, it appears that news outlets so far have been careful in complying with their obligation not to report anything in a manner that would influence the trial. A great deal of faith is put in juries by the court and it is highly unlikely that a permanent stay would be granted based on the adverse publicity.

In a statement made to the press, Deputy Commissioner Shane Patton explained that;

“Cardinal Pell, like any other defendant, has a right to due process and so therefore it is important that the process is allowed to run its natural course. Preserving the integrity of that process is essential… it is important that it is allowed to go through unhindered and allowed to see natural justice is afforded to all the parties involved, including Cardinal Pell and the complainants in this matter.”

The trial of Cardinal Pell is currently one of the major news stories in the world. It is a criminal trial that will cover complex and sensitive issues. It will be open to media coverage and widespread public scrutiny. Nevertheless, the Pope granted Pell leave from his duties at the Vatican acknowledged that he will obey the civil law of Australia. Consequently, the Cardinal returned to Australia on his own volition. This patently shows the Vatican’s recognition that the Australian law and Court processes are capable of affording Pell a fair trial.

The outcome of this case cannot be predicted at this time. What is clear, however, is that while it is Cardinal Pell is the one on trial, the spotlight will also be on Australia’s criminal justice system.