In an unanimous joint judgment delivered on 7 April 2020, all seven judges of the High Court of Australia allowed the appeal of Cardinal George Pell and quashed all his convictions for child sexual abuse. Although this was a criminal law case, there are important features just as relevant to employers and professional regulator’s decision-making about complaints involving sexual matters, bullying or harassment (whilst the standard of proof is lower, these features are equally relevant).
The question for the employer
The question to be asked is not what the decision maker thinks is (or might be) true, but whether, on considering all of the evidence, the allegation is proved to the relevant standard (on the balance of probabilities).
The unsupported, but impressive, complainant
The difficulties facing decision makers, common in such cases, are particularly challenging where, as in Cardinal Pell’s case “… the prosecution case was wholly dependent upon acceptance of the truthfulness and the reliability …” of the complainant’s evidence.
Forming a favourable view of the complainant’s evidence is the beginning, not the end, of the enquiry.
As the Court said:
“It suffices to refer to the evidence concerning (i), (ii) and (iii) to demonstrate 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 the applicant’s guilt.”
Interestingly, the Court commented:
“The division in the Court of Appeal in the assessment of A’s credibility may be thought to underscore the highly subjective nature of demeanour based judgments”.
Impossible or improbable
Accused persons not uncommonly claim that something is impossible (this is a risky approach in many cases and should not lightly be used). For the decision maker, the critical point is that, even if that claim is rejected, improbability must still be considered, especially where there are a number.
As the Court said:
“Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making 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.”
Habit or practice
The Court observed:
“Evidence of a person’s habit or practice of acting in a particular way to establish that the person acted in that way on a specific occasion may have considerable probative value”
and noted that it was “powerful” in that case. Whilst much will depend on the particular case, what is important is that such evidence should not be lightly dismissed.
These can be challenging cases for all parties, in which early advice on how to respond or how to approach decision-making can improve fairness to the accused and reduce the risk of legal and managerial expense and reputational damage for employers and professional regulators.
Author: Andrew Knott
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Andrew Knott