By Sonia Hickey and Ugur Nedim
Crown prosecutor Mark Gibson SC has foreshadowed that a number of criminal charges brought against Cardinal George Pell, Australia’s highest-ranking Catholic, will be formally withdrawn because the complainant they relate to is “medically unfit to give evidence”.
It is expected that six charges will be dropped when the committal hearing resumes next week.
The committal hearing
A committal hearing is currently underway in Melbourne Magistrate’s Court to decide whether there is enough evidence to commit Cardinal Pell for trial. Mr Pell was charged with multiple counts of sexual assault last year, which relate to alleged conduct against several boys during the 1970s.
Charges were laid after a lengthy investigation by Victoria Police into multiple complaints of inappropriate sexual conduct by Pell in Ballarat. In October 2016, three Victoria police detectives flew to Rome to interview Cardinal Pell, and charges were formally laid in July 2017.
A number of complainants alleged that Pell touched them inappropriately during the summer of 1978/79, while swimming with them at the town’s pool.
Pell is also accused of committing child sex offences at a cinema, church, and during a waterskiing outing at a lake in rural Victoria. The allegations emerged during the Royal Commission into Institutional Responses to Child Sexual Abuse.
The four-week committal hearing has already heard evidence from family members of the complainants. The sister of one man testified that her brother spoke of being sexually assaulted under the water at a public swimming pool.
Pell denies all accusations
Mr Pell’s is being represented by eminent Queen’s Counsel Robert Richter. The Cardinal vehemently denies any wrongdoing.
While declining to appear at two public hearings of the Royal Commission in 2015, citing health problems, Pell foreshadowed returning to Australia to face the allegations – which he has done.
Presumption of innocence until proven guilty
The committal hearing is expected to last until Good Friday, after which magistrate Belinda Wallington will make her decision about whether there is enough evidence to commit Mr Pell for trial.
In the meantime, the Cardinal has the right to be presumed innocent until and unless he is proven to be guilty.
What is a committal hearing?
In New South Wales, serious criminal cases are normally finalised in the higher courts such as the District or Supreme courts.
However, cases will almost invariably commence in the Local Court and proceed until they reach an administrative process known as a “committal hearing”
Committal hearings are where the prosecution is required to prove that a case is strong enough to progress towards a trial in a higher court.
Under section 64 of the Criminal Procedure Act 1986 (NSW), a magistrate’s task at a committal hearing is to decide whether there is a reasonable possibility that a properly instructed jury would convict the defendant.
If there is such a chance, the magistrate will ‘commit’ the defendant for trial. If there is no such prospect, the magistrate will discharge the defendant in respect of the charge.
Types of committal hearings
One of three processes will generally occur at the committal stage:
- A waiver of committal
- A paper committal, and
- A defended committal hearing
Waiver of committal – this is where a defendant chooses not to have a committal hearing at all.
The prosecution will need to consent to a waiver of committal and if they do, the committal process is skipped and the case moves along towards a trial. These have proven to be very popular as they can save time and expense caused by the committal process.
Paper committal – this is where the prosecution’s ‘brief of evidence’ is handed up to the magistrate who then decides whether there is enough evidence for the case to continue to the higher court.
In practice, the magistrate will normally only have a very short glance at the materials and then order the case be committed to the higher court.
Defended committal – this is one where the defendant fights to have the charge/s dismissed.
There is no general right to have a witness attend a committal hearing; the defendant must provide “substantial reasons” in the interests of justice for the witness to be attend and give oral evidence.
An application to have witnesses attend is made by a defendant under section 91 of the Criminal Procedure Act.
It is not unusual for the prosecution to agree to the attendance, and also about the scope of questioning.
However if there is no agreement, the defence will normally prepare written submissions as to why certain witnesses should be ordered to attend.
That application, called a ‘section 91 application’, will be heard on a date before the committal hearing itself.
A section 93 application is similar, but will apply when the witness is a complainant.
The courts are generally reluctant to order the attendance of alleged victims, and the Criminal Procedure Act requires the defence to establish “special reasons” for attendance; which is a higher test than the “substantial reasons” requirement.
The reasoning behind this is that complainants should only have to go through the trauma of testifying once; at the trial.
Pros and cons
Criminal lawyers may advise against a defended committal hearing in a given case on the ground that:
- It may ‘show your cards’ to the prosecution,
- It may give the prosecution witnesses a ‘practice run’ and allow them to correct mistakes in the lead-up to trial, and
- It can be very expensive.
These may all be valid reasons for opting for a waiver or paper committal.
Another disadvantage is that, even if the magistrate dismisses the case, the prosecution can still choose to ‘revive’ the case ie to keep it going by issuing what’s called an ‘ex officio indictment’.
That said, it should be kept in mind that prosecution guidelines stipulate there must be a very good reason to revive a dismissed charge.
It will often be beneficial to run defended committals in cases where the issues are narrow, such as cases based upon identification or forensic cases, especially where that evidence is tenuous.
In fact, cases based upon identification by a single witness can often fall-apart through effective cross-examination of that witness at committal, and the defence can often make significant inroads or even have cases dropped where there are significant problems with the DNA or fingerprint evidence.
A defended committal may also be run to clarify particular issues, even if the defence is not primarily aiming to have the case dismissed altogether.
Asking certain questions to witnesses may clarify issues and thereby narrow the scope of trial preparations and/or serve as a pointer for further defence investigations.
If a case is dismissed at committal, it may be possible for the client to have costs awarded in their favour.
A cost application can be made under section 213 of the Criminal Procedure Act which allows for costs to be ordered in the situations outlined in section 214, which include where the prosecution acted in bad faith or without any reasonable cause, where the investigation was improper or unreasonable or where the prosecution failed to properly investigate a matter which may have suggested innocence.
So there are certainly cases where a contested committal will be the best option.
Indeed, the decision to run a defended committal hearing in the case of Mr Pell seems to have already produced dividends for him and his legal team.