Last week, Cardinal Pell’s appeal was heard at the Supreme Court of Victoria’s Court of Appeal, presided by Chief Justice Anne Ferguson and Justices Chris Maxwell and Mark Weinberg.
Pell’s legal team appealed the trial-by-jury conviction in December 2018 on three grounds. First, that the jury “on the whole of the evidence, including unchallenged exculpatory evidence from more than 20 Crown witnesses”, could not be satisfied beyond reasonable doubt to form a conviction. Second, that trial judge Justice Peter Kidd “erred” by preventing the defence from showing an animated recreation of the cathedral space, where the offence was said to occur, during the closing address. Third, because Cardinal Pell was not arraigned in the presence of the jury.
The success of the appeal hinges on the outcome of the first ground.
If the appeal is successful on the second or third ground alone, the cardinal may be sent to a third trial. “This is not a good result for anybody,” said one Victorian-based barrister.
The third ground, while not decisive, does suggest the questionable nature of the trial. Arraignment is a key part of all criminal trials where the accused is asked, in front of the jury, if they plead guilty or not guilty. As one barrister commented: “I have never, ever seen anyone overlook the arraignment”.
Between 9:30am and 4:15pm on Wednesday June 6, Cardinal Pell’s lawyer Bret Walker outlined the 13 “solid obstacles”, explaining how it was “literally impossible” for the cardinal to commit the crime of which he was convicted.
Thursday was given to the Crown prosecutor, Christopher Boyce QC. Boyce was visibly nervous. He stuttered, stammered and even let slip the name of the complainant. Chief Justice Anne Ferguson asked if he needed “more time” and negotiated an extra 15 minutes for lunch.
One person who was present for all the trials described it as “farcical”. “It was torturous how evasive the Crown was to avoid the probing questions from the bench,” he said. Several commentators noted that the mood of the court “shifted” on the second day, with two of the judges saying that the offence was highly “improbable”.
At face value, the appeal seemed to be a success for the cardinal, but it still has to go through a thorough process.
The Court of Appeal’s decision is expected anytime within the next four to 12 weeks.
At the time of writing, the cardinal has returned to his solitary confinement cell in Melbourne’s Assessment Prison. He celebrated his 78th birthday on Saturday, June 8.