Cardinal George Pell, the most senior Catholic cleric to be convicted of child sexual abuse offenses, has this week lodged an application with the High Court to appeal his guilty verdict.
The application to the country’s highest court is Cardinal Pell’s last avenue of appeal and comes 27 days after the Supreme Court of the Australian state of Victoria decided, in a 2-1 decision, not to overturn his conviction on one count of child rape and four counts of indecently assaulting minors.
The crimes involved two 13-year-old boys, in 1986 and 1987.
Pell’s legal team had 28 days after the Victorian Court of Appeal rejected his appeal against convictions over child sex abuse in 1996 and 1997.
He remains in the Melbourne Assessment Prison.
In the application, the jailed cardinal’s lawyers claim there was reasonable doubt whether the offending could have occurred.
Pell was found guilty by a jury last year of sex offences against two teenage choirboys at St Patrick’s Cathedral in Melbourne while he was Archbishop.
An appeal to the Victorian Court of Appeal was rejected last month by two-one.
Chief Justice Anne Ferguson and President of the Court Chris Maxwell found the surviving choirboy and complainant in the case was a truthful witness.
Justice Mark Weinberg dissented in his opinion however and found the complainant embellished his account at times.
In the application for special leave to appeal, Pell’s legal team sets out two grounds:
- The majority of the Court of Appeal erred by finding their belief in the complainant required Pell’s team to establish the offending was impossible in order to raise and leave a doubt.
- The majority erred in not finding the guilty verdicts unreasonable because there remained a reasonable doubt as to the existence of any opportunity for the offending to have occurred.
There is no guarantee the appeal will be heard by the High Court and, if it is, it is unlikely to be before next year.
It is common for High Court appeals to be lodged towards the end of the 28-day cut-off, principally because of the high-stakes nature of the application.
In relation to the first ground, Pell’s legal team claim the Justices Ferguson and Maxwell examined each piece of evidence in isolation to determine whether the jury should doubt the allegations.
The lawyers claim this error in approach “infected” the treatment of the body of evidence which contradicted the choirboy’s account.
“Though the majority said … that there was no onus on (Pell) to prove impossibility that is precisely what their analysis required him to do,” the application states.
In the application Pell’s team claim the judges reversed the onus and standard of proof, justifying the approach on Pell’s trial lawyer Robert Richter QC describing opportunity for the offending as “impossible”.
“Rigid application of the onus and standard of proof in 21st century sexual assault trials in Australia is of particular importance,” they said.
In relation to the second ground for appeal, that there was a reasonable doubt opportunity to offend existed, Pell’s team state it was common ground that Pell and the two boys would have needed to be alone in the priests’ sacristy for five to six minutes.
The evidence presented was the area around the sacristy was a “hive of activity” after every solemn Sunday Mass.
Pell’s team claim the prosecution case was that the two boys were in an external procession before breaking off, entering the South Transept, walking to the sacristy, and then drinking altar wine before being caught by Pell and the start of the five to six minutes.
“The majority concluded that if any of the evidence showed impossibility, in one respect or another, then the jury must have had a doubt,” they state.
“The facts as found by (Justices Ferguson and Maxwell) were that the only time when the room was empty for five to six minutes was a time when the complainant and the other boy, on the Crown’s case, were not in the room.
“Thus, according to this aspect of the majority’s own approach, the verdicts were impossible.”
The application states Australian parliaments have modified laws of evidence and procedure over the past 20 years with the effect of “making it more difficult to test allegations of sexual assault”.
“Those who are accused, including by a complete stranger making decades old allegations, cannot, for example, investigate a complainant’s psychological history in the hope of uncovering a reason why a seemingly credible person is accusing them of offending they say they did not commit.”
Pell’s team note that the majority referred to the defence’s hypotheses the complainant was fabricating his story or fantasising.
“They argue that, although the applicant was not obliged to suggest a motive, the failure to do so meant the complainant’s apparent credibility was not damaged on this account.”
Pell’s team further state application of correct judicial method by Justices Ferguson and Maxwell would have led to acquittal.
“The majority’s erroneous judicial method prevented them from recognising that, even on their own incomplete analysis of the evidence, doubt was raised and left.”
Additionally Pell’s team argue that because the majority only found the jury was entitled to have “reservations” about Church witnesses, it did not eliminate a potential alibi for Pell.
“It was also not in dispute that if any number of the practices and routines of the Cathedral were followed there would be no opportunity for the offending,” they argue.
“The majority did not conclude that so many departures from practice would not have been, at least, highly unlikely.
“Indeed, the majority did not engage with the argument about compounding improbabilities at all.”
The legal team claim further that the majority accepted that there was some evidence supporting the contentions of impossibility on virtually every matter raised.
The dissenting opinion was provided by Justice Weinberg, an expert on criminal law.
Pell’s team say Justice Weinberg’s summary should be accepted as a correct interpretation of the evidence including that inability to find the complainant a liar didn’t determine proof beyond reasonable doubt.
“Belief in the complainant is the beginning of the inquiry, not the end,” they said.
“Belief is a prerequisite to conviction but belief does not preclude the existence of doubt raised and left by other cogent evidence.
“To find otherwise would fundamentally alter the burden and standard of proof in a criminal trial and increase the likelihood of miscarriages of justice.”
The abuse was denied both by Pell in his record of interview in Rome, a video of which was played to the jury, and a reported denial by the deceased choirboy.
“Doubt is raised and left by this alone,” Pell’s team claim.
The Pell team submitted to the Court of Appeal that Pell, 78, could not have sexually assaulted two boys in St Patrick’s Cathedral for multiple reasons including that there was not enough time, too many people were in the Cathedral and he was always accompanied.
The jury convicted Pell of the five charges, including oral penetration, with most offending occurring in one of the cathedral’s sacristies, with the door open, soon after Solemn Mass.
Pell is serving a minimum three years and eight months, with a headline penalty of six years.
The Australian and Catholic News Service.