In December of last year, controversial Catholic Church Cardinal George Pell was convicted of one count of sexual penetration of a child under the age of 16 and four counts of an indecent act with a child under the age of 16 over allegations of abusing choirboys at Melbourne’s St Patrick’s Cathedral in the 1990s. This followed a previous trial that resulted in a hung jury.
The complainant said he and another choirboy left the liturgical procession at the end of one Sunday mass and went fossicking in the off-limits sacristy where they started swilling altar wine. Pell allegedly arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments, proceeded to commit three sexual acts, including oral penetration of the complainant. The complainant said the sacristy door was wide open and altar servers were passing along the corridor. The complainant said he and the other boy then returned to choir practice.
Prior to both trials, Pell had been subject of substantial adverse pre-trial publicity, including a Royal Commission into child sex abuse, a book by Louise Milligan described as a hatchet job and an abusive song by Tim Minchin. His conviction was highly controversial, and criticised by a number of commentators.
At common law, a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law (Woolmington v DPP  AC 462; Howe v R (1980) 32 ALR 478). The presumption is not that the accused is not guilty, it is that the accused is innocent (R v Palmer (1992) 64 A Crim R 1).
The presumption of innocence has been enshrined in s25(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption of innocence is only relevant to the accused. It is a misdirection to tell the jury that witnesses are presumed to be innocent (Howe v R (1980) 32 ALR 478).
Section 141(1) of the Evidence Act 2008 (Vic) provides that:
“In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.”
Section 45 of the Crimes Act 1958 (Vic) as amended by the Crimes (Amendment) Act 2000 (Vic) provided that:
Sexual penetration of child under the age of 16
(1) A person who takes part in an act of sexual penetration with a child under the age of 16 is guilty of an indictable offence.
Section 47(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991 provided that:
Indecent act with child under the age of 16
A person must not wilfully commit or wilfully be in any way a party to the commission of an indecent act with or in the presence of a child under the age of 16 to whom he she is not married.
Penalty: Imprisonment for 10 years.
A majority of the Victorian Court of Appeal has dismissed the appeal against conviction:
“By a majority of two to one, Victoria’s Supreme Court dismissed the appeal ordering Pell to “return to prison”.
“He will continue to serve his sentence of six years imprisonment,” Chief Justice Anne Ferguson said.
“He will remain eligible to apply for parole after he has served three years and eight months of the sentence.”
Cheers were heard from inside the courtroom and outside as dozens of supporters watching the appeal on the livestream heard the three judges slap down Pell’s appeal.”
An appeal to the High Court is likely.
UPDATE: footage of the Victorian Court of Appeal decision being handed down can be found here.
That footage is ©Supreme Court of Victoria.Posted on Categories Criminal law