Many people think the law is something that has some kind of objective existence. But it is often more like a series of somewhat vague or elusive concepts that are required to be applied by courts, as consistently as possible, to a myriad of different circumstances. The concept of “proof beyond a reasonable doubt” has been a central concept of our criminal law for a long time. Yet it is now apparent that some of our best legal minds are capable of reaching quite different conclusions on what the proof of it requires.
In the Pell case, witnesses for the defence (called ‘opportunity witnesses’ by the High Court) described Pell’s normal practices and routines after giving mass. This was circumstantial evidence. I do not mean that pejoratively. Circumstantial evidence is still relevant evidence.
The opportunity witnesses gave no evidence about what actually occurred on the specific day when the complaint says he was sexually assaulted- just the general practice as to what normally would have occurred. The routines and practices they described were:
- Pell’s practice of greeting congregants on or near the Cathedral steps after Sunday solemn Mass;
- The established and historical Catholic church practice that required that Pell, as an archbishop, to always be accompanied when robed in the Cathedral; and
- The continuous traffic in and out of the priests’ sacristy for ten to 15 minutes after the conclusion of the procession that ended Sunday solemn Mass.
The prosecution witness (the complainant) gave direct evidence (not circumstantial evidence) about what he says occurred to him on a specific day. The events he described were not consistent with the routine practices described by the opportunity witnesses above. The complainant’s account was believed by the Jury.
The majority in the Victorian Court of Appeal held the conviction should stand because no opportunity witness could say with certainty that the routines described by them were never departed from. But the High Court held that, even if the jury believed the account of the complainant, based upon the unchallenged evidence of the opportunity witnesses, a rational jury should still have had a reasonable doubt as to Pell’s guilt. As the prosecution could never have disproved the evidence of the opportunity witnesses the implication of the High’s Court finding is that the prosecution of Pell should never have occurred at all. It simply did not matter that the complainant might be believed by a jury.
The general principle of law that appears to arise from the case is that circumstantial evidence (at least if strong enough) can give rise to reasonable doubt even if there is direct evidence to the contrary that a jury believes.
In the video below, Judge Alex from the USA explains his view of what ‘reasonable doubt’ means.
Interestingly, the example he gives involves circumstantial evidence about whether a car was parked in the same spot all day. The driver leaves the car in the spot in the morning, notes the kilometres on the speedometer and returns after work to find the car there with the same number of kilometres showing on the speedometer. Although circumstantial, the evidence is strong. Most people would probably consider there should be no reasonable doubt that the car was there all day. But then some further circumstantial evidence is received from a reliable source suggesting the car might have in fact been towed away and then put back in its spot later in the day. This information is also circumstantial. But now it appears there might be a reasonable doubt as to whether the car remained in the same spot all day. Judge Alex then asks “Might some people still consider that there could be a reasonable doubt about whether the car was there all day without having received the additional information?” Judge Alex suggests this is exactly the sort of thing a jury is there to decide.
Judge Alex’s example is different from Pell’s case. Pell’s case involved weighing credible direct evidence against credible circumstantial evidence. Judge Alex’s example involves weighing two lots of circumstantial evidence. But what is interesting is his conclusion that the weighing of this evidence is the function of a jury.
So did the High Court usurp the proper function of the jury in Pell’s case? Or did it correctly find that any rational jury should necessarily have possessed a reasonable doubt? Watch Judge Alex’s video and see what you think.