"Sheer Unlikelihood in the Sequence of Events" around Pell Child Abuse, High Court Told
By Chip Le Grand
Sydney Morning Herald
March 11, 2020
The case of George Pell, now before Australia’s highest court, has returned to the problem that has plagued this extraordinary legal saga in the five years since a former choirboy first told his story to police – when exactly, could the alleged abuse have taken place?
In putting forward Cardinal Pell’s arguments to have his conviction for historic child sex offences overturned, Bret Walker SC led the High Court through the needle the prosecution was required to thread to show Pell had an opportunity to commit these appalling crimes.
|Rival groups clash outside the George Pell hearing at the High Court in Canberra.|
To anyone who has followed this case through its protracted judicial course, Mr Walker’s recounting of select evidence to the full bench will be familiar:
How could the then Archbishop of Melbourne have sexually assaulted two boys in in the priests’ sacristy of St Patrick’s Cathedral in 1996 when, according to Monsignor Charles Portelli, the congregation’s master of ceremonies, Pell would have been on the front steps, greeting parishioners after Sunday Mass at the time of the offence?
How could a jury and Victoria’s Court of Appeal discount this evidence, without the prosecution having sought to discredit Portelli’s testimony, when it was supported by other witnesses whose testimony was allowed to stand by the Crown?
When exactly did Pell find himself alone in the sacristy with two choirboys, for the five or six minutes required to commit the offences? Where were the altar servers who’d normally come to the same room. Where was Monsignor Portelli and the sacristan, Maxwell Potter?
Mr Walker submitted that these obstacles, each on their own, should have caused a jury to have reasonable doubt. If it was Pell’s practice to stand on the steps for 10 to 20 minutes at the end of Mass and he did so on the day in question, he could not have committed the assault.
“Forensically, there’s your full stop,’’ he said.
Pell was convicted of five child sex offences and was in March 2019 sentenced to six years in jail with a non-parole period of three years and eight months. He is currently housed at Barwon Prison and does not have access to the High Court proceedings.
On Wednesday, his senior counsel invited the court to consider the police investigation and preliminary hearings of the charges and how the year, month and date of the alleged offences shifted to navigate inconvenient facts and contradictory accounts of other witnesses. He spoke of police searching for a date that would fit and how the prosecution reshaped a critical aspect of its case, even after it was before a jury.
He said the “sheer unlikelihood in the sequence of events,” vagaries of the timeline and the absence of evidence from at least one material witness not called by the Crown should have led to acquittal.
“There was simply not the available time for it to occur,’’ he said. “It is not possible to fit five to six minutes of offending.’’
All these matters were put to the Victorian County Court jury that convicted Pell of four counts of child sex offences and all these arguments were considered by the Court of Appeal, which upheld the verdict in a 2-1 split decision.
Although Justice Mark Weinberg, in a dissenting opinion of unusual length and strength, found it was not open to the jury to convict Pell on the whole of the evidence, it is not known whether the High Court, which is yet to grant special leave to appeal, will agree to entertain the same question.
The judges of the High Court, particularly Chief Justice Susan Kiefel, Justice Virginia Bell and Justice James Edelman, posed questions on whether the Court of Appeal should have watched a video recording of the choirboy’s testimony when they reviewed the evidence.
This will provide little comfort to Pell, who has not adopted the appellate court’s method of review as grounds for appeal. “We don’t believe this case provides a vehicle for determining those matters,’’ Mr Walker said.
Pell is serving a six-year jail term with a minimum sentence of three years and eight months.
Mr Walker told the court that Victoria’s two most senior judges, Supreme Court Chief Justice Anne Ferguson and Court of Appeal President Chris Maxwell, had embarked on a “terribly damaging wrong route’’ by requiring Pell to prove it was impossible for him to have sexually abused the choirboys.
Walker SC said the approach taken by the majority of the Court of Appeal had reversed the onus of proof and misapplied the “essential requirement” for establishing guilt in a criminal trial.
“In what might fairly be called a piecemeal or one by one approach their honours dealt with these circumstances, concluding in each case that, that which had been described by the defence as impossible was not impossible,’’ Mr Walker said.
“That is a wrong question which sends the enquiry off in a terribly damaging wrong route.”
Victoria’s Director of Public Prosecutions, Kerri Judd QC, will have her say on this point and others raised by Mr Walker when the hearing concludes on Thursday.
The DDP’s view is that, whatever uncertainties linger over the guilt of George Pell, the jury did its job, a majority of the Court of Appeal found no fault and there are no grounds for the High Court to intervene.