Cardinal George Pell has had his day in court, and now awaits a decision in his last possible appeal of his 2018 conviction for five counts of child sexual abuse. The proceedings took place over two days in the Australian capital of Canberra, while Pell awaited an outcome in his prison cell, nearly 500 miles away.
Prosecutors took their turn to present arguments to Australia’s High Court on Thursday on the second and final day of the cardinal’s bid for special leave to appeal. The seven justice panel reserved its judgment at the close of the hearing, with no clear indication of when a decision will be released.
At issue in the appeal is whether the jury that convicted Pell in December 2018 of sexually abusing two choristers could have plausibly found Pell guilty beyond a reasonable doubt, having heard the case presented by the prosecutors and the defense mounted by Pell’s lawyers.
On March 12, the Australian state of Victoria’s chief prosecutor, Victoria Judd, was grilled by the justices, who took issue with decisions made in a prior appeal of the verdict, with the state’s handling of key pieces of evidence in the case against Pell, most especially the evidence of Monsignor Charles Portelli, an aide to Pell.
Portelli’s testimony placed the cardinal outside his Melbourne cathedral at the time he was alleged to be sexually abusing two boys in the cathedral’s sacristy, on the Sunday in 1996 when that crime is alleged to have taken place.
At one point during the hearing Thursday, Judd conceded the Portelli’s testimony undermined the allegations of the prosecution, but urged the High Court justices to look past that fact in its deliberations, citing some inconsistencies in Portelli’s recollection of the Sunday, now 24 years ago, in question.
As the High Court considers whether the jury could be certain of Pell’s guilt beyond a reasonable doubt, Judd told the justices that “just because some evidence pointed to innocence doesn’t mean the jury wasn’t entitled to convict.”
Asked more about Portelli’s testimony, Judd told justices that “I do accept that when you look at Monsignor Portelli on his own, we may not be able to negate this to the standard we need to. But in my submission, when you look at the whole of the evidence, it does.”
The justices also considered the actions of the three-judge panel of the Victoria Court of Appeals, which upheld Pell’s conviction August last year. The Victoria judges chose to watch a video of the single victim-accuser’s testimony instead of reading the transcript. Pell’s legal team argued that this made them to dispassionately weigh the “reasonableness” of the jury being able to exclude reasonable doubt on the basis of his evidence alone.
Although Judd insisted the Victoria judges had acted properly, Chief Justice Susan Kiefel said “It’s very difficult to say how [the video] affected an intermediate appellate court judge in terms of how they read the transcript.”
“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?” Kiefel asked.
At various points, the judges also appeared to take issue with the prosecutor’s presentation of her case, at times correcting her use of legal terms, noting as she repeatedly attributed evidence to the wrong people, and implying she was underprepared for the case.
At one point, Judd struggled to find a transcript as she referred to it and voiced her frustration at the volume of evidence. The chief justice told Judd that justices had the same frustration. “But you’re supposed to be taking us through [this] efficiently,” the chief justice observed.
Jeremy Gans, a professor of law at Melbourne Law School, tweeted during the hearing’s lunch break that the morning had been “a really bad session for the DPP [Judd],” adding that the morning had “a back foot feel for the prosecution.”
When the court reconvened for the afternoon session, Judd informed the judges that she did not feel it necessary to address several of the Crown’s points of argumentation, focusing instead on the the burden of proof, which Pell’s legal team have argued was effectively reversed during the trial, leaving the cardinal to prove his innocence beyond reasonable doubt.
Judd sought to address the defence’s charge that the place and manner of the first alleged assault, in the cathedral sacristy, were practically impossible in the busy circumstances
Referring to the defense’s presentation on Wednesday, Gans tweeted that “Pell absolutely did not have a bad day.”
On that day, Bret Walker, Pell’s lead barrister, faced questions from the justices over the course of five hours as he presented arguments in favor of Pell’s appeal, grounding his case in the findings of Victoria Justice Mark Weinberg, who made a dissenting opinion in Pell’s initial appeal, which upheld his conviction last year.
Weinberg found that the cardinal had been convicted on the evidence of a single alleged victim, despite the unchallenged exculpatory testimony of as many as 20 witnesses, and that the jury could not have found him guilty beyond reasonable doubt.
Walker outlined four different lines of argument, beginning with the logistics of Pell’s alleged 1996 sexual assault on two teenage choristers in Melbourne’s cathedral. Pell was convicted of committing acts of sexual assault on two choir boys simultaneously for five to six minutes in the cathedral sacristy, while he was fully vested after Mass. Walker suggested that would be practically impossible.
The lawyer then highlighted testimony from multiple witnesses offering an alibi for Pell during the time the assault is supposed to have taken place, and noted that the sacristy would have been a “hive of activity” at the time of the assault.
Finally, Walker pointed out changes and inconsistencies in the narrative of the sole witness-accuser to give evidence against Pell. The second alleged victim died in 2014, before the trial began; before his death he told his mother that he was not a victim of sexual abuse.
Pell’s case for appeal is that a single witness, even a highly credible one, set against the testimony of so many contradictory witnesses and the high degree of improbability that Pell could have committed the assaults as described, could not have allowed the original jury to find Pell guilty beyond reasonable doubt.
After Pell was briefed by his lawyers following Wednesday’s session, friends of the cardinal told CNA that Pell is in good spirits and that he has been told to be “cautiously optimistic.”
On Thursday, Judd attempted to dispel Walker’s arguments, but in the process appeared to concede even further grounds for doubt.
Attempting to argue against the defense that the sacristy was a “hive of activity” at the time of the alleged assault, Judd said that the timeline and circumstances were not so certain as to be open to that defense, suggesting at the same time that the prosecution’s entire narrative was itself doubtful.
Judd closed by telling the seven justices that if they found that the timeline of events showed that the assault could not have happened they would be in effect rejecting the victim’s testimony.
Walker, invited to make a closing response by the justices, rounded on Judd’s performance, saying that the prosecution was changing its case at every stage of appeal and even during the Thursday session.
“We should not have to deal with that kind of prosecution at this point,” Walker said.
Pell’s lawyer added that prosecutors convicted Pell with an “improvised and rickety construction of a Crown case,” that tried “to make something fit that will not fit.”
He urged the High Court to overturn Pell’s conviction.
Thursday’s session closed with the justices deferring their decision, inviting lawyers to submit answers within the next few days to a point raised by the judges on the defense’s request for an order quashing Pell’s convictions.
Whatever the final outcome of Pell’s criminal appeal, the cardinal will likely face a canonical proceeding, overseen by the Vatican’s Congregation for the Doctrine of the Faith, soon after the Australian case reaches a definitive resolution.
Pell has told friends he remains faithful to God’s providence and committed to living his time in prison in the spirit of a monastic retreat.
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