‘Open to High Court to insist Pell’s convictions were unreasonable’
By Naomi Neilson
March 05, 2020
With the special hearing to determine George Pell’s hearing approaching fast, Sydney law professors have looked into whether or not the cardinal stands a chance.
The High Court of Australia has been asked to decide whether the Court of Appeal of Victoria (VSCA) was right in finding, by majority, that it was open to the jury at Cardinal Pell’s trial to convict him of sexually abusing two young children.
Ahead of the Full Court sitting at Parliament House on March 11 and 12, professors in Sydney Law School Andrew Dyer and Professor David Hammer argue that if the HCA grants Cardinal Pell special leave to appeal, it should reject his argument that VSCA majority reversed the onus of proof when reaching the conclusion that it did.
“[Cardinal] Pell’s claim that the VSCA majority reversed the onus of proof is dubious,” Mr Dyer and Professor Hammer wrote. “But the evidence that Pell had no opportunity to offend was strong; and it does seem open to HCA plausibly to insist Cardinal Pell’s convictions were unreasonable. Against that are considerations of judicial restraint.”
Dr Dyer and Professor Hammer said Cardinal Pell’s submission is partly based on his contention that, regardless of whether the complainant “came across as someone who was telling the truth”, inconsistencies between his evidence and testimonies from the witnesses were that Cardinal Pell was accompanied when the offending occurred.
“[This] prevents our being sure that such offending took place,” they noted. “Indeed, according to Cardinal Pell, on the VSCA majority’s own analysis, the Crown had failed to disprove his ‘alibi’ beyond reasonable doubt.”
They added that even if the HCA rejects Cardinal Pell’s argument that their honours analysis reversed the onus of proof, a large question remains.
“A significant body of evidence made it difficult for the Crown to prove Pell offended as alleged. Could the jury really be satisfied that there was no reasonable possibility of Pell’s innocence? We believe that the HCA is entitled to find that it could not; but we doubt whether their Honours will make this finding.”