Why Pell was never ‘found innocent’ — and why it matters

Note: this piece includes discussion of child sexual abuse.

Damian Dignan told police it happened in the summer of 1978-79.

“[I felt] scared, scared but hurt. Very forceful around the anus,” he recollected in a conversation with journalist Louise Milligan. “Towards the end, Father Pell began to hurt me when he threw me up in the air. I didn’t like it and I knew it was wrong.”

Dignan and fellow St Alipius Parish pupil Lyndon Monument say they were eight or nine years old when late cardinal George Pell repeatedly “grabbed” their genitals and anuses as he ostensibly played with them in Ballarat’s Eureka swimming pool.

When pressed by Milligan on whether the touching was accidental or by design, Dignan replied: “Fair enough, one time. But it got to a stage where every time he picked you, [his hand] was there.”

Their allegations were reminiscent of those levelled against Pell by Phil Scott, one of Pell’s earliest and most well-known complainants. As Scott put it, Pell got “a good handful” of his penis and testicles on several occasions in early January of 1961, when the two were on an altar boys’ camp on Phillip Island.

The first incident, Scott said, transpired when he and the then-seminarian were in a tent with other altar boys, all of whom were distracted by a pillow-fight and wrestling antics. Pell, he said, continually put his hands down his pants, using his imposing body mass to shield the assaults from others’ gaze.

Not long afterwards, he said, two further sexual assaults occurred, but this time with Pell trying to guide the resisting 12-year-old’s hands down his own crotch.

On the fourth occasion, it was evening when Pell startled Scott by grabbing him from behind, once again slipping his “big hands” down his pants as Scott and others ventured out on a twilight walk. This incessant molestation occurred once more while Scott was swimming and jumping waves.

Scott claims he also witnessed Pell sexually abuse one of his friends, Michael Foley, at the same camp and in the same manner, leaving Scott with a searing memory of Foley telling Pell to “fuck off” as he freed himself from Pell’s grasp.

At least another two alleged victims have made similar claims against Pell for sexual assaults that occurred in the 1970s. And to these can be added the 2016 Victoria Police investigation into the alleged sexual abuse by Pell of up to 10 boys between 1978 and 2001.

Over the decades, several allegations of indecent exposure on Pell’s part also emerged. Perhaps the most well known of these involved Torquay resident Les Tyack, who says he told the then archbishop to “piss off” after catching him “very clearly” exposing himself to three young boys at the local surf lifesaving club in the late 1980s.

Finally, there lies the now infamous story of Pell’s global fall from grace, following his since-overturned 2018 conviction for sexually abusing two 13-year-old choirboys in the priests’ sacristy of St Patrick’s Cathedral in the late 1990s.

Distilled, these allegations paint the picture of a serial paedophile who used his position of authority to engage in offending across at least four decades of his illustrious clergy career. And yet, none of the evidence of Pell’s prior offending featured in the prosecution of the choirboy case.

Contrary to Pell’s supporters, therefore, and even some of his detractors, the High Court’s acquittal never delivered a sharp rebuke to the notion the man was a paedophile. In reality, the court found Pell innocent of nothing. It merely concluded the cardinal was not guilty beyond reasonable doubt of the choirboy charges, at least on its interpretation of the limited evidence before it.

In this context, use of the word “limited” is particularly apt, says Sydney Law School Professor David Hamer, given the exclusion at Pell’s trial of any reference to the legion of separate historic child sexual abuse allegations against the cardinal.

“None of the allegations from the ’60s, ’70s through to the ’90s came in; none of it was before the jury,” Hamer told Crikey. “All the allegations against Pell were held to be inadmissible as tendency evidence in the trial.”

The upshot of the decision to exclude this evidence from the jury’s consideration, Hamer says, was to ultimately reduce the choirboy case to a “battle of credibility” between the complainant and Pell.

“But it was an uneven battle from the outset,” the expert in evidence law and proof said, “because it meant the complainant had to persuade the jury that he was so credible, so reliable, that it wasn’t even reasonably possible that the [abuse] didn’t occur.

“In these circumstances, it’s very difficult to prove guilt beyond reasonable doubt when all you’ve got is simply the uncorroborated evidence of a single complainant.”

It’s true the law does not expressly require corroboration of a complaint of sexual abuse to secure a conviction. But the “very force” of the presumption of innocence and criminal standard of proof, he said, gives expression to an almost indistinguishable barrier in most cases.

Nevertheless, as the history of the Pell case shows, the complainant did, remarkably, overcome this barrier, both before the jury and in a majority judgment in the Victorian Court of Appeal.

Where he did not, of course, was before the High Court, which did not watch the recorded testimony of the complainant and instead focused the brunt of its judgment on highly procedural considerations which, ultimately, dismantled the prosecution’s case.

Among these was the seeming unfairness visited on Pell by virtue of the allegations being linked to events from long ago — and, no less, the failure of the prosecution, in the court’s view, to properly adhere to the rule in Browne v Dunn, which requires witnesses to be put on notice and given an opportunity to rebut challenges to their evidence before the jury can be invited to reject it.

Against this thorny backdrop, Hamer said it was difficult to gauge the precise bearing or impact of the trial judge’s decision to exclude the tendency evidence on Pell’s acquittal. But, he said, it’s undeniable the absence of the other historic allegations of child sexual abuse against Pell materially weakened the prosecution’s case.

“A lot did rest on the complainant’s credibility, clearly,” he said. “In these kinds of cases, the prosecution is often left with little evidence other than the complainant’s evidence.

“This is because such offences are generally committed in secret and victims, for a variety of reasons, often delay in reporting the abuse. And so with no medical or forensic evidence and other corroborating evidence, the [tendency] evidence of other alleged victims of the defendant is extremely important.”

Such evidence, Hamer added, is typically used to prove the defendant has some propensity to behave in a certain way: for example, with respect to Pell, that he had a sexual interest in boys and a tendency to act on that interest.

“The fact remains the general population don’t commit child sexual offences — its prevalence is astonishingly low, around 1%,” he said. “So, evidence the defendant has committed similar assaults on other occasions really does distinguish the defendant from the vast bulk of the population.

“It identifies the defendant as one of those rare people in society who might commit this kind of offence, and for that reason it can be highly probative and tip the balance in favour of the complainant.”

The overriding reason the tendency evidence in the Pell case was excluded owed to more than a century of absurdly messy and highly restrictive case law which traditionally treats such evidence with suspicion.

The courts, Hamer said, had long taken the view that the jury commonly couldn’t be trusted to use such evidence properly, and would therefore impede a fair trial by too readily inferring guilt on the defendant’s part should the evidence be admitted.

“I agree this risk exists, but in my view it’s a relatively low risk and one completely outweighed by the high probative value of the evidence,” he said.

Notably, it’s a sentiment reflected in the conclusions of the royal commission into institutional child sexual abuse, which found the law had long overstated the risk of unfair prejudice carried by such evidence and, equally, had understated its true weight in the context of the sexual abuse trials.

“Unless one believes the many complainants of child sexual abuse are lying or mistaken about the abuse they alleged, it is clear many perpetrators of child sexual abuse are being acquitted,” the commission’s report said, citing the low conviction rate.

Noting the distorting effect excluding such evidence has on the jury’s perception of the totality of such evidence, including the complainant’s credibility, the commission recommended “urgent reform”.

“Fundamentally, we consider that the law in this area has become unnecessarily complicated and unfairly protective of the accused,” it said. “Current approaches are causing unjust outcomes in the form of unjustified acquittals.”

Since the royal commission, NSW, the ACT and Northern Territory have introduced a rebuttable presumption of admissibility with respect to tendency evidence in child sexual abuse cases.

Hamer, however, said there was growing concern these legislative reforms do not go far enough. On the contrary, they appear to have introduced arbitrary and unnecessary distinctions between certain child sexual abuse cases, between child and adult sexual abuse cases, and between other areas of criminal misconduct more generally.

“The reform does make it easier for this evidence to be admitted in child sexual abuse cases,” he said. “But it only worsens the complexity of the law. It’s this complexity which may hinder the ability of the courts to deal with these kinds of cases in the right way in the future.”

Whether these reforms will materially alter the law remains to be seen.

What is clear is that no one in these cases, apart from the victim and perpetrator, ever really knows the full extent of the truth. But the logic underpinning tendency evidence at least allows the jury to make a more informed assessment of the defendant’s guilt.

This much, at least, should be borne in mind before we presume — by virtue of the High Court’s decision — that Pell, one of the most significant Catholic figures in Australian history, was not, and never was, a perpetrator of child sexual abuse.

Survivors of abuse can find support by calling Bravehearts at 1800 272 831 or the Blue Knot Foundation at 1300 657 380. The Kids Helpline is 1800 55 1800.

If you or someone you know is affected by sexual assault or violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au.

For anyone seeking help, Lifeline is on 13 11 14 and Beyond Blue is on 1300 22 4636. In an emergency, call 000.