George Pell's Final Bid for Freedom Rests on Six Missing Minutes
By Chip Le Grand
Sydney Morning Herald
March 10, 2020
The full bench of the High Court has set aside two days to hear the case of George Pell. If his lawyers are correct, the guilt, reputation and legacy of Australia’s most influential living clergyman will turn on six minutes.
In its final argument submitted in preparation for Wednesday’s hearing, Cardinal Pell’s legal team drew the court to the greatest doubt that lingers over Pell’s conviction for child sex offences.
|Cardinal George Pell arriving at the Melbourne County Court for sentencing last year. |
When, after saying a Solemn Sunday Mass at St Patrick’s Cathedral, would the archbishop of Melbourne find himself alone in the priests’ sacristy with two choirboys for the five to six minutes required to assault them?
And, when this grotesque abuse of trust was being perpetrated, where were the seven altar servers who, at the completion of the mass, file into the sacristy to bow to the crucifix?
These questions mean little to anyone unfamiliar with the arcane liturgical practices of the Catholic Church. They also go to the heart of the central issue before the High Court; whether it was open to the jury, on the whole of the evidence, to find Pell guilty.
The listing of the case in the cavernous Courtroom 1 of the High Court building in Canberra, indicates that all seven judges are presiding. There are three possible outcomes.
The first is that the court may refuse special leave to appeal.
In November last year, the two most junior members of the bench, Justice James Edelman and Justice Michelle Gordon, referred a decision on special leave to the full bench. This means that, even though the court has cleared its calendar to deal with Pell, it hasn’t yet decided whether to grant leave.
The second is the court may grant leave and dismiss the appeal.
In either of these scenarios, Pell would remain a convicted child sex offender and serve the remainder of his minimum, three year and eight month prison sentence.
La Trobe University law professor Patrick Keyzer, a former associate to retired High Court chief justice Gerard Brennan, believes this is the most likely outcome.
“Even though this case is about a very important person and a notoriously significant decision, it is nevertheless still a case about a jury verdict of guilt where a court of appeal has found no legal reason for questioning that verdict,’’ Professor Keyzer told The Age and The Sydney Morning Herald.
“The Chief Judge of the County Court heard the criminal trial and it was for the jury to determine whether Pell was guilty. The jury performed its role.
“A majority of the Court of Appeal very carefully went through the trial judgment, found no errors of law and concluded the verdict was open to the jury on the facts.
“There are hundreds of jury trials going on in Australia every year. We have held on to a tradition of jury trial in many jurisdictions for many types of trial because there is a strong belief that people have a significant role to play in making that assessment of guilt."
Professor Keyzer acknowledged the “significant dissent” of Supreme Court Justice Mark Weinberg, a highly experienced criminal law jurist who made clear his view to his Court of Appeal colleagues that a terrible injustice may have been done.
Matt Collins, QC, a former president of the Victorian Bar Council, said the arguments before the High Court were focused on differing approaches used by Victoria’s Chief Justice Anne Ferguson and Court of Appeal President Maxwell to reach their majority decision and Justice Weinberg to frame his dissent.
“The Chief Justice and President Maxwell said if it was possible for the jury to be satisfied beyond reasonable doubt, the verdict should stand,’’ Mr Collins said. “Justice Weinberg reassessed all the facts and asked himself should the jury have been satisfied.”
The third possible outcome of the case is that the High Court may grant special leave to appeal and quash Pell’s conviction.
No one expects this to happen as early as Wednesday but if it does, Cardinal Pell won’t be there to see it. He is locked up in a high security unit of Barwon Prison, home to some of Australia's most reviled murderers, terrorists and rapists.