High-profile lawyer Bret Walker SC argued that jurors who sentenced Cardinal George Pell for child sexual abuse were wrong to dismiss his defense’s arguments about the improbability of the offense.
On Wednesday morning, Pell’s last chance to appeal his verdict began in front of the bench of seven Canberra judges. The court has yet to grant Pell permission to appeal for his conviction – first, he is listening to Walker’s arguments as to why the appeal should be allowed. You can grant or reject the appeal at any time.
Off the pitch, Pell’s supporters who arrived together on a bus gathered with crosses and a sign saying “We are praying for you, Daddy”. A victim lawyer raised a sign saying “Go to Hell Pell”.
Walker opened by telling the bench, led by the chief judge, Susan Kiefel, that questions about the complainant’s credibility, combined with the improbability of the crime, should have prompted the jurors who sentenced Pell to have reasonable doubt about his guilt. The jury’s perception of the complainant’s credibility should not have convinced them on their own beyond reasonable doubt, Walker said.
“It is an extreme mistake for anyone to assume the complainant’s credibility which will provide an answer to the reasonable doubts raised through evidence to which the complainant says nothing,” Walker said.
Judge Virginia Bell told Walker that the high court did not care about credibility, since it was up to jurors to decide. If the court decides to hear the appeal, Bell says it would proceed with the acceptance that “the witness impressed the jury as a true witness”.
Walker said he was “in trouble to point out” that the conviction in a complaint did not eliminate the reasonable coexistence of the defendant’s guilt.
Doubt “… it was not possible to eliminate it [just] because the jury had been clearly affected by the complaint, “Walker said. He said this was due to the fact that the complainant’s evidence, although impressive and credible, did not address issues of doubt raised by the defense, such as the lack of opportunities for offenses to have occurred.
The court also addressed the question of whether the Victorian court judges, who rejected Pell’s first appeal with a majority of three to one, may have been unduly influenced by the complainant’s testimony by watching a recorded video rather than simply reading the transcript. Walker said it may have prompted the judges who dismissed the appeal to place too much weight on the evidence of the complaint rather than on the evidence in its entirety.
Pell’s master of ceremonies at the time of the infringement, Charles Portelli, demonstrated during the trial that Pell would remain on the steps of the cathedral after greeting the parishioners for up to 20 minutes. If so, Walker said, Pell would have no chance of offending the sacristy. Prosecutors argued at the trial that while on the steps it became Pell’s custom, it was not yet customary after becoming archbishop in 1996, and other witnesses showed that there were occasions when this meeting could be skipped or shortened.
Walker told the court that the prosecution had not discredited Portelli’s evidence. His evidence was “material on the basis of which it is not possible to eliminate the possibility that the archbishop was on the front steps”. This “forensic” has put a “firm point” on any possibility of offending, Walker said. “This is another point that says it wasn’t open to blame, on balance, beyond reasonable doubt,” he said.
He claimed that it was not the role of the defense to prove that Pell was innocent, but “to demonstrate that there were possibilities that were not excluded from proving that it was not possible to condemn the jury”.
Judge Michelle Gordon asked Walker: “What is the evidence that gives rise to the possibility that it was on the front steps?”
Walker replied that the evidence Portelli and others gave “shows at least the possibility that it was with the archbishop who met and greeted at the opposite end of the cathedral [from] where it was supposed to be at the time of the alleged crime “.
Pell, 78, is serving a six-year prison sentence, with an unconditional three-year and eight-month term. In December 2018, a jury found him guilty of four acts of an indecent act with a child under the age of 16 and a sexual penetration count with a child under the age of 16.
They believed Pell had sexually assaulted two choirs in the priest’s sacristy after the solemn Sunday mass in St. Patrick’s Cathedral in Melbourne in 1996. Pell orally raped one of the boys, the complainant in the case, during this incident and attacked them indecently. Pell offended a second time against the complainant a month later, when he grabbed the boy’s genitals in a church corridor, once again after Sunday’s solemn mass.
When the complainant spoke to the police in June 2015, the other victim had died of an accidental heroin overdose at the age of 30.
The hearing continues.