Accusation as Proof: Uncorroborated Historic Sexual Abuse Allegations

Abstract

This article examines the potential miscarriage of justice upheld in the Supreme Court of Victoria in Pell v The Queen. Firstly, the alibi evidence produced by the defence team was sufficient to make the probability of Cardinal Pell not having an opportunity to perpetrate the crimes a real issue. Once an alibi had been made an issue, the Crown had to prove beyond reasonable doubt that there was no probability above 15 per cent that Cardinal Pell had an alibi—not rely on the defence submission that there was a 100 per cent probability of no alibi because of impossibility. The evidence at a minimal demonstrated that the alibi was at least probable: even a conservative estimate would allow a fact-finder to safely conclude that there was 35 per cent probability that Cardinal Pell could not have been alone with the complainant. It might be difficult to argue that it was more probable than not that Cardinal Pell had an alibi, but the evidence shows that the probability of Cardinal Pell having a valid alibi was too high (even if short of a 50 per cent probability) for the reasonable doubt standard of proof to be satisfied. Secondly, there was at a least 35 per cent probability that second sexual attack alleged by the complainant could not have been perpetrated in the circumstances described by the complainant. Thirdly, Ferguson, CJ and Maxwell, P did not apply the beyond reasonable doubt standard to these probabilities. Instead, they erroneously held that since what the complainant had alleged could possibility have happened as described by the complainant, the Crown had proved beyond reasonable doubt that these things did happen. This was to misinterpret and misapply the law concerning the quantum of proof required in criminal cases. The fact that there was a real possibility that what the complainant alleged could have happened does not prove that there was an 85 per cent an above probability that it did happen, which is what the beyond reasonable doubt standard requires. It requires such strong evidence that any objective fact-finder reviewing the evidence would 85 times out of 100 conclude that they are sure that the person is guilty.