By Ed Condon
Canberra, Australia, Mar 17, 2020 / 04:00 am
Cardinal George Pell remains in prison, while the seven justices of the Australian High Court consider his petition for special leave to appeal. After two days of arguments from lawyers, the justices reserved their judgment last week as Pell seeks to overturn his conviction on five counts of child sexual abuse.
It is not known how long they will take to deliver a decision, but there are four options open to the court.
The first option is to grant Pell special leave to appeal and find in his favor, overturning his conviction and immediately setting him free.
Last Thursday, the Victoria state prosecutors who put Pell behind bars more than a year ago took their turn before the High Court to defend their case. It was widely agreed that Kerri Judd, the state's chief prosecutor, had a very bad day at the office.
Led by Chief Justice Susan Kiefel, Judd fielded a series of questions from the judges, probing at first and then impatient, as she sought to defend the original jury's ability to find Pell guilty beyond reasonable doubt, despite the unchallenged testimony of more than 20 witnesses who disputed the prosecution's version of events.
The justices also drilled down on the evidence of Pell's former aide, Msgr. Charles Portelli, who told the original trial that Pell would have been on the front steps of Melbourne cathedral at the time of the alleged offending, and that the cathedral sacristy -- where Pell is meant to have simultaneously abused two teenagers while he still fully vested for Mass -- would have been full of people at the time.
Key to Pell's appeal is that the testimony of his single accuser accounts for all of the evidence against him. Although Pell was found guilty of sexually abusing two choristers in 1996, only one of them appeared in court. The second alleged victim died in 2014, having told his mother that he was not a victim of sexual abuse.
The timeline of events put forward by Pell's lone accuser has shifted throughout the legal process, changing from his initial statements to police and submissions in court. Different dates, months, and even years have been suggested by the prosecution for Pell's alleged abuse, and the final timeline presented by the prosecution gave different dates to the victim's own narrative.
Early in the Thursday session, Justice Bell put it to Judd that "while it is a matter for the jury to assess credibility based on the demeanor of the witness, there may be occasions where the witness's evidence contains such inconsistencies or improbabilities, or something of that character, that one can say of that evidence: its nature and quality is incapable of supporting a conclusion of guilt to the criminal standard."
At the close of the two-day hearing, Brett Walker, Pell's lead attorney described the Crown's case as "an improvised and rickety construction" with a "fallacious core."
Walker said that, despite repeatedly shifting their argument at every stage of the trial, prosecutors had failed to displace "the overall reasonable doubt which the jury, acting rationally, must have felt."
By the end of Walker's final arguments, Justice Bell asked him: "if your application succeeds and were error to be found, what is the proper order? You seek an order quashing the convictions?"
Yes, Walker said, but the subsequent exchange with several judges suggested a second possible outcome, which many commentators believe to be more likely.
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Even if they are persuaded by Pell's legal team, the Australian justices could order the case back down to the Court of Appeals in Victoria, who denied Pell's appeal last August.
Thursday's session opened with the justices questioning Judd on the decision by the appeals court to watch video testimony of the single witness-accuser, instead of relying on court transcripts, and choice, the justices noted, could have led them to favor the appearance of credibility over the substance of what he said.
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It would have been better, Justice Nettle observed, for the three-judge panel to have made their decision "on the basis of the evidence; not on the basis of looking at videos," "the only point of looking at which would be to make an assessment of [the] demeanor of the witness, which is the function of the jury."
"There was an attack made on the witness' credibility by reference to the inconsistencies in his evidence and his propensity to change his evidence when put under pressure," Nettle said, "but it was not suggested that that was to be assessed by looking at the video to determine the demeanor of the witness. It was contended that it was to be assessed by looking at the record of his evidence as recorded and making an assessment accordingly."
At the end of the session, Walker was asked if he thought the matter might be best sent back to the Court of Appeal.
"If one were to find error in the process of reasoning of the Court of Appeal which did not of itself dictate that the jury should have experienced a reasonable doubt it would have to be sent back, would it not – unless we could do it?" Nettle asked.
Walker agreed it was an option open to the court to decide either way, and that it would probably depend on the scope of any error in the Appeals Court's decision. If the case were returned to Victoria with instructions from the High Court, it is not clear if the case would be heard again by the same three judges – which included the Chief Justice of the state's Supreme Court, Anne Ferguson, and the President of the Court of Appeals, Chris Maxwell – who made the decision to uphold Pell's conviction in August, 2019. The third judge, Mark Weinberg, retired from the bench in 2018 but heard the case as a reserve judge. He authored a minority opinion condemning Pell's conviction and the decision of Ferguson and Maxwell.
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The third possible outcome for Pell would be for the High Court to find that both the jury and the Court of Appeals had made "unreasonable" decisions against Pell, but order a full retrial, effectively sending the three-year legal battle back to the beginning.
While such an outcome would likely see Pell freed in the interim, at age 78 he would face the real possibility of spending the rest of his life in court. On the other hand, Pell was convicted in a trail conducted under a court-enforced media blackout, with several local outlets facing legal action for even alluding to the case.
During both stages of appeal, lawyers from both sides have had to allude to evidence which has not been available to the wider public.
The prosecution have repeatedly insisted that, whatever the inconsistencies of their case as presented on appeal, it makes sense within the context of the evidence presented during the first trial. A full retrial, conducted in open court, could have the benefit of putting this unscrutinized evidence out in the open, moving some of the public debate away from Pell's personal supporters and detractors and onto the actual facts of the case.
Of course, the fourth and final possible outcome of last week's hearing is that the High Court could deny Pell's petition for special leave to appeal, cementing his conviction and ending his legal options.
While legal commentators and Pell's own supporters both appear to be cautiously expecting some sort of positive result for the cardinal, this was also the broad expectation last summer before the Court of Appeals upheld his conviction.
With little indication of when the judges might return their decision, Pell faces an indefinite and anxious wait.
