The legal team for Cardinal George Pell laid out their case for appeal before Australia’s High Court on Wednesday.
Pell himself remained in his prison cell, not permitted at the proceedings, while his lawyers presented arguments before the seven-judge court in Canberra on March 11.
Pell is seeking to appeal the 2-1 split decision of the Court of Appeal in Victoria to sustain his 2018 conviction on five counts of child sexual abuse over two separate instances.
Bret Walker, Pell’s lead barrister, faced questions from the justices over the course of five hours as he presented arguments in Pell’s favour. Walker outlined a case for appeal grounded in the findings of Victoria Justice Mark Weinberg, whose dissenting opinion in August found that the cardinal had been convicted on the evidence of a single alleged victim, despite the exculpatory testimony of as many as 20 witnesses, and that the jury could not have found him guilty beyond reasonable doubt.
While lawyers argued inside, more than 100 Vietnamese Catholics lined the entrance to the High Court, praying and singing hymns, and aiming to show their support for Cardinal Pell. The demonstrators said they had travelled by bus from Sydney, departing at dawn from their homes.
Many members of the Vietnamese Catholic community in Australia have remained supportive of Pell throughout his trial and appeals, citing the example of Cardinal Francis Xavier Nguyễn Văn Thuận, who was imprisoned by Communist authorities in Vietnam for 13 years, nine of them in solitary confinement. Pell and Cardinal Thuận were friends until his death in 2002, with Pell hosting the Vietnamese cardinal as archbishop of both Sydney and Melbourne.
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.
The case for Pell’s appeal is that when considering the unreliability of the single witness against him, combined with the testimony of so many witnesses in Pell’s favour and the high degree of improbability the Pell could have committed the assaults as described, the original jury could not have been persuaded beyond reasonable doubt of the cardinal’s guilt.
The Court of Appeal in Victoria, Walker argued Wednesday, should have found that reasonable doubt could not be, and was not, excluded by the jury in their decision to convict.
Walker was questioned by Justice Virginia Bell about the relevance of the accuser’s credibility at the appeal stage, noting that it was not for the High Court to determine if the jury should have believed him or not. Walker responded that it was not the perceived credibility of the accuser that was at issue, but that the accuser and the witnesses for the defence present conflicting accounts, creating reasonable doubt.
The evidence of Msgr. Charles Portelli was emphasized to the justices. Walker said the priest testified that Pell routinely stood outside the cathedral door to greet Catholics after Mass, and that his had gone unchallenged at trial, creating at least the reasonable possibility that Pell would not have been at the scene of the alleged assault.
Pell has been in prison for more than a year of his six-year sentence. He must serve at least three years and eight months before being eligible to apply for parole.
The 78-year-old cardinal has maintained his innocence throughout his trial and appeal process. His defence has made central the argument that the alleged crimes would have been, under the circumstances, “simply impossible.”
The High Court in Canberra is Pell’s final avenue of appeal.
After a lunchtime recess, Walker resumed his presentation, with the justices asking question about the nature of the vestments Pell was wearing at the time of the assault, including the knotted cincture, stole, alb, and microphone Pell wore under his chasuble, which the cardinal would have had to manoeuvre around while simultaneously assaulting the two teenage boys.
The lawyer also outlined the discrepancies in the dates presented by the victim over the course of the prosecution.
Prosecutors initially charged that the assault might have happened sometime between Pell’s installation as archbishop in August of 1996 and the end of December of the same year, but during the trial evidence left only two dates for the jury to consider: December 15 or 22, 1996, the first two occasions when Pell celebrated Sunday Mass in the cathedral.
During the appeal before the Court of Appeal in Victoria, Walker had argued that the date given for the second alleged assault was not even supported by the victim’s own testimony and had been chosen simply as “the next time the prosecution could suggest that the archbishop was at Sunday Mass in the cathedral.”
Before the High Court on Wednesday, Walker highlighted the failure of police to interview key witnesses, including the priest who concelebrated Mass with Pell at the time of the alleged second assault, in which the victim was supposedly pushed up against the cathedral wall and groped by Pell.
“There are only so many features of the complaint’s account that can be discarded, without an appellate observer regarding it necessary… that the jury must have had reasonable doubt,” Walker said.
The High Court will continue to hear arguments on Thursday, before either deciding in favour or against granting Pell’s application for leave to appeal. The judges could make their decision tomorrow, or reserve judgment until a later date.
Throughout Pell’s trial and appeal, the Holy See has made statements expressing confidence in the Australian judicial system and highlighting Pell’s right to exercise every opportunity of appeal.
After the denial of Pell’s appeal in Victoria in August, 2019, Matteo Bruni, director of the Holy See press office gave an official statement which said that “as the proceedings continue to develop, the Holy See recalls that the cardinal has always maintained his innocence throughout the judicial process and that it is his right to appeal to the High Court.”
Pell is expected to face a canonical process in Rome once the final disposition of his case has been reached in Australia. If convicted by a canonical court of sexually abusing children, the cardinal would almost certainly be laicized.
Pell is incarcerated in HM Prison Barwon, a maximum-security prison southwest of Melbourne.
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