On April 7, 2020, the High Court of Australia released judgment in the highly anticipated appeal Pell v The Queen.1 Australia’s highest court set aside the convictions of Cardinal George Pell on charges of child sex abuse involving two thirteen-year-old choir boys. The offences were alleged to have been committed at St Patrick’s Cathedral in East Melbourne while Cardinal Pell was the Archbishop of Melbourne. Cardinal Pell had served as Pope Francis’ finance minister at the Vatican. In 2018, Cardinal Pell was convicted following a jury trial at the County Court of Victoria.2
The Decision of Court of Appeal of the Supreme Court of Victoria
The Court of Appeal of the Supreme Court of Victoria granted leave to Cardinal Pell to appeal his convictions on his alleged grounds that the verdicts were unreasonable and could not be supported by the evidence.3
The majority of the Court of Appeal assessed the victim, “A”, as a compelling credible witness and concluded that the jury had not been compelled to entertain a doubt as to Cardinal Pell’s guilt.4 The dissenting justice concluded that “the jury, acting reasonably on the whole of the evidence, ought to have had a reasonable doubt as to the applicant’s guilt.”5
The High Court granted Cardinal Pell’s application for special leave to appeal the judgment of the Court of Appeal on two grounds: (1) the majority erred by finding that in light of their belief of A’s evidence, in order to raise a reasonable doubt Cardinal Pell was required to establish that the alleged offence was impossible; and (2) the Court of Appeal erred in concluding that the verdicts were not unreasonable because, even in light the majority’s findings, there remained a reasonable doubt as to the existence of any opportunity for Cardinal Pell to commit the alleged offence.6
The Decision of the High Court of Australia
The High Court concluded that it was evident that there was a “significant possibility” that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof.7 Much of the High Court’s analysis focused on the evidence and Cardinal Pell’s submission of the improbability of events having occurred as A described them. The Court noted that, “notwithstanding that the jury found A to be a credible and reliable witness, the evidence as a whole was not capable of excluding a reasonable doubt as to [Cardinal Pell’s] guilt.”8
The High Court identified a number of issues with the evidence: first, concerning Cardinal Pell’s movements after the mass where the alleged incidents were said to have occurred; second, whether the Cardinal would have been alone in the Cathedral to have been able to commit the alleged offences; and third, regarding the “hive of activity” that existed at the time of the alleged offences.
After assessing the evidence the High Court noted, “[m]aking full allowance for the advantages enjoyed by the jury, there is a “significant possibility” in relation to charges one to four that an innocent person has been convicted.”9 The Court observed:
The unchallenged evidence of the applicant's invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement under Catholic church practice that the applicant always be accompanied when in the Cathedral, were inconsistent with acceptance of A's evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant's guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury's advantage, there is a significant possibility that an innocent person has been convicted.10
The Court ordered that the order of the Court of Appeal must be set aside and the convictions quashed and verdicts of acquittal entered.11
Application to Canada
Whether this approach would have been followed in Canadian courts poses an interesting question. The High Court’s assessment in Australia relied on the “significant possibility” test, meaning that there was a “significant possibility” an innocent person has been convicted. However, such test, does not appear to be a part of Canadian law and is unlikely to be part of the courts inquiry on appeal.
For the most part, Canadian courts are reluctant to interfere with jury verdicts. In Canada, s. 686(1)(a) of the Criminal Code, provides that a convicted person may have his or her conviction set aside…on the basis that the verdict is unreasonable or cannot be supported by the evidence. Thus, the review of a jury verdict by an appellate court may be warranted where a verdict is unreasonable.
The Supreme Court of Canada in R v W.H.,12 considered the test for assessing the verdict of a jury noting:
Appellate review of a jury’s verdict of guilt must be conducted within two well-established boundaries. On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded. The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.
On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence. A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court. Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para. 36) and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”: para. 39 (emphasis added). Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience: Biniaris, at para. 40.13 (emphasis added)
The Court went on to provide examples of cases in which accumulated judicial experience may suggest that a jury’s verdict is unreasonable including:
- Circumstances in which a special caution to the jury is necessary about a certain witness or a certain type of evidence are reflective of accumulated judicial experience and may well factor into an appellate court’s review for reasonableness.
- Some examples include the evidence of jailhouse informants and accomplices, and eyewitness identification evidence.
- Other circumstances that generally do not require, as a matter of law, any particular warning to the jury may nonetheless, in light of accumulated judicial experience, contribute to a conclusion of an unreasonable verdict, for example the risks of accepting bizarre allegations of a sexual nature and the risk of prejudice in relation to psychiatric defences: Biniaris, at para. 41.14
The Court noted that the type of examples where a jury’s verdict is unreasonable all have one thing in common: “they constitute an explicit and precise circumstance that creates a risk of an unjust conviction.”15
In light of the Supreme Court of Canada’s comments in R v W.H., it is possible that Canadian courts would have taken a similar approach to the assessment of the High Court in Australia.
This decision emphasizes the evidentiary challenges involved in historic sexual abuse cases and the importance of testing the evidence in these types of cases. While an Australian decision in a unique context, the decision also points to the importance of the evidentiary record in any jury trial—criminal or civil, Australian or Canadian—for the prosecution or the plaintiff to make their case to the requisite standard of proof. The court will look to the totality of evidence, which may have been overlooked by the jury in this case.
1Pell v The Queen,  HCA 12.
2Ibid at para 1.
3Ibid at para 4.
4Ibid at para 5.
5Ibid at para 6.
6Ibid at paras 7-8.
7Ibid at para 9.
8Ibid at para 58.
9Ibid at para 119.
10Ibid at para 127.
11Ibid at para 10.
12R v W.H., 2013 SCC 22.
13Ibid at paras 27- 28.
14Ibid at para 29.