PROVERBS 12:22
Rick Morton on George Pell’s High Court appeal
The final bid for George Pell’s freedom began with a test of faith.
Addressing the full bench of the High Court in Canberra this week, the cardinal’s silk, Bret Walker, SC, drew his line in the sand: believing the surviving victim was not enough to convict Pell to six years in prison for historical child sexual abuse. Faith can be wrong, he argued. Faith is slippery.
“It does not mean that all of us when we say, in or out of court, that we believe something are therefore also saying, let alone making true, the fact that we cannot be wrong in that to which our belief leads us,” Walker told the court. “The belief does not drive from the field the possibility of reasonable doubt.”
This was the scaffold upon which Pell’s defence would rest.
The credibility of the victim was not in question, Walker argued, but was he reliable? In asking the court to dismantle the faith placed in the survivor of abuse, he urged them to look elsewhere, at the “whole of the evidence”.
The High Court’s role is not to rehear evidence from the trials though – it has no jurisdiction, no need to re-litigate the case. Successful appeals must hinge on an error of law in either the trial or the process of the appeal court.
So, over two days of hearings, the seven justices of the highest court in Australia tried to determine whether the Supreme Court of Victoria’s court of appeal made failures of law in reviewing the verdict that first convicted Pell. The Victorian court rejected Pell’s appeal in August 2019.
Walker is arguing the jury must have had reasonable doubt if it was acting “rationally” and the appeal judges erred in favouring the testimony of the victim in their review. Victoria’s director of public prosecutions, Kerri Judd, QC, rejects this, saying the appeal judges were sweeping in their critical gaze of the evidence and it was safe for the jury to convict.
In court on Wednesday, Walker was clearly a man with the weight of Catholic institutional expectation upon him. His flighty, soft-spoken manner was a sharp departure from that of Pell’s trial lawyer Robert Richter, QC, who had to apologise after describing the matter as “no more than a plain vanilla sexual penetration case” during the cardinal’s first trial.
Richter was not known for “his excessive subtlety”, Walker noted before the High Court this week. But the senior counsel did choose to resurrect his predecessor’s infamous theory about the cardinal’s robes, asserting it was “proven” that it was impossible to undo them fast enough for the offending to have taken place.
Justice Geoffrey Nettle took pause with this, however, citing evidence from Pell’s colleague Monsignor Charles Portelli that claimed the assault was possible only if the cincture – or rope-like belt around the robes – was loosened.
“Which I would urge means only if you do something which you would not be doing,” Walker countered.
Nettle was unenthused. “Well, unless you had in mind to do what was alleged against him,” he said.
The senior counsel also reanimated the theory of “compounding improbabilities” that, in his view, must have been ignored by the jury to produce a guilty verdict.
In the defence’s version of events, Pell could not have been in the right place at the right time to commit the abuse in the agreed window of “five or six minutes” some time after the end of mass at Melbourne’s St Patrick’s Cathedral in 1996.
Was the then archbishop of Melbourne on the cathedral’s west steps greeting parishioners as they left the mass, as was customary, and, if he was, for how long? How was it possible for the two choirboys to be alone in the sacristy – a room where the priest prepares for mass to the side of a church – when mass had only recently ended, and it ordinarily would have been a hive of activity? How was it possible for Pell to be alone when he was in the archbishop’s robes? Ritual demands an archbishop be accompanied at all times when robed. Did the scheduled choir practice that day go ahead and, if it did, how was the offending not discovered by people coming in and out of the door that leads from the sacristy to the choir room?
These are not new claims, but Walker insists they have been given short shrift by both the jury and the majority of the court of appeal. He said it was common for prosecution teams to pull apart “cock and bull” stories in other cases, but the failure to apply the same scrutiny to the prosecution’s theory in this case amounted to “an inversion of the burden of proof”.
Representing the Crown, Judd parried with Walker’s contention on Thursday. She claimed the defence never presented evidence that amounted to more than what would have happened ordinarily on the dates in question. Portelli, she said, had no specific recollection of whether Pell was on the steps.
“He didn’t remember the mass that day,” Judd said.
“We do have evidence, from choirboys and others, that there were quite a number of occasions where the applicant [Pell] did not stand on the steps, he actually processed and the choirboys had to wait for him.”
Key to the argument from both parties is the testimony of the victim, which has never been seen by the public. The survivor’s evidence was video recorded and has been described as so “compelling” and genuine that it alone won the case against Pell.
An issue raised in Pell’s appeal application is that the majority appeal judges watched the video evidence twice – possibly taking on a role that is reserved only for the jury.
Under criminal law, only a jury can determine the credibility of a witness based on their “demeanour”.
The assessment is “so subjective”, Chief Justice Susan Kiefel said, that appeal judges “really shouldn’t [watch the video] unless there is a forensic reason to do so”.
Judd conceded the appeal judges may have had a cursory view of the demeanour of the victim but that it did not give more weight than the rest of the evidence as a whole.
Walker’s most interesting argument came late on Wednesday afternoon. It hinged upon the need to find a “gap” of five or six minutes for the offending to have taken place in the sacristy during which Pell was not disturbed.
The defence and prosecution agree that the procession of church servers at the conclusion of mass, which included Pell, took 10 minutes. It is less clear whether the cardinal stopped on the steps that day to greet worshippers, as others in the procession continued around the outside of the church. If he did so for more than 10 minutes, both parties agree, the offending could not have happened.
Monsignor Portelli, a senior church figure who says he accompanied George Pell on these occasions, has stated this “meet-and-greet” could have been as short as just a few minutes.
“Portelli is the key,” Judd said.
Early in Pell’s trial, the prosecution ventured, and then abandoned, a theory that altar servers who usually enter the sacristy at the end of the procession were “somewhere else” on this occasion. This would have allowed a greater window in which the offence could have taken place, but the evidence did not fit.
Walker said this theory could not be “revived” in order to vindicate the decision of the appeal majority because it was struck out of the case by the prosecution. A further concoction, as Walker alleged, was the prosecution’s attempt to conflate two separate events as happening at the same time when they could never have. He claimed, in confusion, the appeal majority apparently adopted this approach and said it was satisfied the jury was able to find the assaults did take place in that five- or sixminute window “of private prayer time”.
Walker argued that the majority of the court of appeal judges forging an “equivalence” between these two temporally different events – and possibly confusing private prayer for the offending window, which would be impossible – is a significant error in their judgement.
“The point that, in our submission, the majority got wrong was their illogic concerning the coincidence of this five to six minutes by the factually incorrect misunderstanding that the five to six minutes of the offending could not possibly have commenced at anything like the same time as the five to six minutes of the interval of decorum [private prayer].”
Walker also raised the spectre of a Father Egan, the priest who celebrated mass at the cathedral at the time, who was never interviewed by police or called by the prosecution as a witness at trial.
“There was a man in the same position, literally, that is, in terms of physical proximity throughout the alleged events, and that is the Father
Egan of whom you have read and of whom we know nothing,” he said.
“And that is used against us, if I could put it that way, in the reasoning of the majority, and we think the respondent [prosecution] says in effect, ‘Well, that’s your problem.’ ”
Justice Nettle interjected.
“Well, it is your problem, is it not? You did not ask them to call him.”
Walker was brief in his response: “There is no duty or obligation of any kind for an accused to assist in the assembly of a case.”
Walker was not trying to assert that Father Egan was the abuser in question, but that the failure to interrogate him must have left considerable doubt in the mind of the jury and, so, would not have left them able to convict.
“Mr Walker, this incident is said to have occurred in the course of processing,” Chief Justice Kiefel said. “But Father Egan was placed where on the–”
“Next to the archbishop,” Walker said. “That is the whole point.”
As the matter wrapped later on Thursday, Walker attacked the prosecution with gusto. He said the case against Pell was an “improvised and rickety construction of the Crown to make something fit that will not fit.
“This prosecutorial improvisation really should not be countenanced. It really won’t do for the Crown, as it were, to be cobbling together matters at this stage.
“It is a simple point. The archbishop was not where he had to be in order for the offending to have occurred.”
The justices have reserved their judgement, which could be delivered as early as next week.
As legal watchers filed out of the court, a small cluster of Pell supporters sang the hymn “Make Me a Channel of Your Peace”.
“It is in pardoning that we are pardoned,” they sang.