George Pell: High Court Reserves Decision on Granting Special Leave for an Appeal
By Melissa Davey
March 12, 2020
| Cardinal George Pell’s lawyer told the high court that just because the complainant was believable, it should not discount other evidence that placed his evidence in doubt. Photograph: Mark Dadswell/Reuters|
The full bench of the high court in Canberra has reserved its decision about whether to grant Cardinal George Pell special leave to appeal his case for a final time, after listening to two days of arguments from his barrister and the prosecution.
The seven judges asked for further written submissions from the legal parties and have given them two business days to deliver. The bench will then consider those materials before returning to deliver their decision at a date yet to be determined. Once they return to court, if the court does grant special leave, the bench may then immediately decide whether to accept the arguments from Pell’s team and acquit him, or they could dismiss the appeal in which case the verdict would hold.
Pell, Australia’s most senior Catholic and the former financial controller of the Vatican, was in December 2018 convicted on five charges. They found him guilty of sexually abusing two 13 year-old choir boys in the priest’s sacristy after Sunday solemn mass when he was the Archbishop of Melbourne in 1996. He then assaulted one of the boys again a few weeks later. Pell is one year in to serving a six year prison sentence, with a non-parole period of three years and eight months.
On Wednesday Pell’s barrister, Bret Walker SC, argued that just because the complainant was believable, it should not discount other evidence that placed his evidence in doubt. Walker told the court that Victoria’s appellant judges, which dismissed Pell’s first appeal in 2019 by a majority of two-to-one, may have been unduly influenced by the complainant’s testimony by watching a recorded video of it rather than just reading the transcript of his evidence.
On Thursday as the director of the Office of Public Prosecutions, Kerri Judd, began her response, the bench questioned the decision of Victoria’s appellate court to watch video evidence from the complainant in Pell’s trial, asking whether it may have caused the majority of judges to give too much weight to the complainant’s compelling and believable demeanour rather than the trial evidence as a whole.
Judd responded by saying that given Pell’s legal team made so much of the complainant’s lack of credibility and believability, Victoria’s appellate court was entitled to watch the video. It did not mean they had elevated it above other evidence, or that they had not given due weight to other evidence from the trial, she said.
The chief justice, Susan Kiefel, responded that the difficulty with the appellate judges having viewed the complainant’s video was that “... the assessment of a witness by demeanour is so subjective”.
“It’s very difficult to say how it [the video of the complainant] affected an intermediate appellate court judge in terms of how they read the transcript,” Kiefel said. “That’s why you really shouldn’t do it [watch the video] … unless there is a forensic reason to do it. To what extent is this court to determine the extent to which the court of appeal was influenced by the video?”
It is not common for an appellate court to view video evidence, though it is becoming more common as technology is more frequently used. Appellate courts are often cautioned about usurping the jury’s role, and by viewing a transcript alone may be more capable of leaving questions of the demeanour of witnesses to the jury.
One of the witnesses Pell’s legal team says should have called the credibility of the complainant into doubt and raised reasonable doubt as to Pell’s offending was Monsignor Charles Portelli. Portelli gave evidence at trial that it was Pell’s practice to remain on the front steps of St Patrick’s Cathedral after Sunday solemn mass greeting parishioners. If this were the case, he could not have been in the priest’s sacristy abusing two choirboys.
But Judd responded that Portelli did not have convincing specific recollection of what Pell did on the dates in 1996 when the offending occurred. Portelli could not even remember if the choir processed out of the buildings on those occasions internally or externally, she said.
She said Portelli’s evidence should not be viewed in isolation.
“Quite a number of choirboys and others do say there were occasions where he [Pell] did not stand on the steps and processed, and the choirboys recall having to wait for him,” Judd said.
“There’s also some evidence from choirboys saying they saw him in the choir room pretty soon after mass. So if he’s standing on those steps for a long period of time he’s not going to be able to see those choirboys.”
Justice Virginia Bell put it to Judd: “The appeal had to be allowed if it was reasonably established that the archbishop was present on the western steps at the time the complainant was offended against.”
Judd responded the bench needed to consider: “The evidence on a whole, not just based on Portelli, that’s why the supporting evidence is extremely important.” She added Portelli’s memory was not necessarily reliable.
During the trial, prosecutors put it to the jury that practices take time to develop, and Pell’s practice of greeting parishioners on the front steps would not have developed until some time into his position as archbishop of Melbourne. Judd faced frequent questions from the bench throughout the day, and while some in the court said it was a difficult day for the prosecution, others said it was exactly the kind of questioning to be expected in an appeal.
In his response to Judd on Thursday afternoon, Walker said all the Crown had done was raise the possibility that certain events may have happened that allowed the offending to occur. That was not good enough to prove beyond reasonable doubt the offending had occurred, he told the bench.
There were many examples, Walker said, of the Crown engaging in “an inappropriate and over-engineered attempt of improvisation to make fit matters which won’t fit”.
Judd told the bench that the complainant’s accurate description of the priest’s sacristy which was off-limits to choir boys and where the abuse occurred added to his truthfulness. But Walker responded: “There is nothing about the knowledge of the room that means the archbishop must have been in it”.
Justice Geoffrey Nettle asked Walker what the court should do if it found there was error by the appellate court but that alone did not satisfy them that all of the evidence should have left a reasonable doubt.
Walker responded that if his team won the argument that there was an error made, then “we wish the matter to be over”.
“The best way for it to be over is this court entering an acquittal,” he said.