Cardinal Pell’s lawyers make final case in High Court appeal

Pell himself remained in his prison cell, not permitted at the proceedings, while his lawyers presented arguments before the seven-judge court in Canberra March 11.

Australian Cardinal George Pell arrives at the Supreme Court of Victoria in Melbourne Aug. 21, 2019. (CNS photo/AAP Images, Erik Anderson via Reuters)

Canberra, Australia, Mar 10, 2020 / 11:30 pm (CNA).- The legal team for Cardinal George Pell laid out their case for appeal before Australia’s High Court 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 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 favor. 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 favor 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 defense 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 defense 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 maneuver 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 favor 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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  1. It sounds like the Cardinal is being railroaded by the equivalent of the “Me too” crowd. I would have expected better and more common sense application of fairness from the Aussies. Or are THEY just looking for someone to victimize and make an example of, even if the evidence indicates he is NOT guilty?? I for one am SICK of accusations being taken at face value as though it is EVIDENCE. An accusation is NOT evidence. Who in their right mind would even attempt to abuse TWO teenage boys at the SAME time, thus creating a witness to his crime?? This case stinks and if the Aussies are smart, they will drop their anti-catholic bias and reverse the conviction. Disgusting.

    • And “You have to believe the victim!” is nonsense on the fact of it. Only if the claim is true is the person a victim, so what they’re really saying is “Believe the accuser!” What kind of justice is that?

    • The original trial defence barrister was Robert Richter. The first jury was discharged being unable to reach a unanimous decision [but reportable voted 10 – 2 to acquit]. The second jury voted 12 – 0 to convict. For the appeals cases different barristers were used.

  2. “Pell is expected to face a canonical process in Rome once the final disposition of his case has been reached in Australia.”

    A rather demoralizing capper on this tale. If the case is truly based on the testimony of a single witness, how could there possibly be a trial of any substance. It’s a classic case of “He said/she said,” decades after the details did or did not take place. I continue to be mystified by the whole thing.

  3. We believe that most Cardinals are cherished as pillars of the church. Members of an elevated and sacred body with a mission to bring everyone to God. What’s wrong?

    There are many issues and several will be solved if we keep the faith and pray incessantly for their effort.

    Homosexuality is rampant in the church with hundreds of priests being charged with sexual assault of a same sex individual. How do we find this veritable clerical cult and stop the individuals before they can strike? What is the bigger sin, allowing unvetted male only clerics who either have a history of child abuse, have strong and unsatisfied libido or learn the toxic sin to develop as they find they are in charge. The possible answers…

    Allow women to be ordained. Women are historically more spiritual and loving and most will not be predators of children, they will nurture them. Don’t forget that males are hunter gathers. Celibacy is a man made myth. Mythical tenets not dogma reduces the stature of truth in our faith.

    Cardinal Pell has what might be called a “he said, he said” dilemma or a circumstantial evidence case. History has shown that most women have little chance of proving rape in court, perhaps if a rape kit is analyzed the guilty subject may be brought to justice. Many defense lawyers will use them ploy of “he said, she said” and try to influence the jury that the claim was untrue because it was consensual sex. And, most sinful dilemma is that women who were sexually abused are afraid to come forward. Coincidentally, it is said that this dilemma poses the same forced silence of children raped by a priest.

    • I’ll leave aside your illogical and, truth be told, stupid “solution” to the problem of homosexuality in the clergy. You do agree, then, that the unsubstantiated allegation of one individual against Cardinal Pell, in the light of all the other facts and evidence that render it very improbable, is woefully inadequate to prove his guilt?

    • “Allow women to be ordained. Women are historically more spiritual and loving”

      What a bunch of tripe.

      “and most will not be predators of children, they will nurture them.”

      Most priests are not predators of children or anyone else.

      “Don’t forget that males are hunter gathers. Celibacy is a man made myth.”

      Celibacy is not a myth, it is a discipline that has been in place for century upon century. I can just imagine your next argument: “I told my wife that yes, I was cheating on her, but after all men are hunter gatherers, and monogamy and fidelity are man-made myths.

      “Mythical tenets not dogma reduces the stature of truth in our faith. ”

      The disciplines are not mythical. And, oh, we’re back to your saying you’re Catholic again, are we? Do you wake up each morning and flip a coin: “Heads, I’m Catholic, tails, I’m not?”

      It is a lot more than “he said, he said” in the case of Cardinal Pell. If you haven’t read Justice Weinberg’s opinion, you really ought to. He points out the long string of improbabilities one would have to believe in order to believe Cardinal Pell guilty. And one must ignore, what, twenty of the prosecution’s own witnesses whose evidence shows that the accuser’s story is so far-fetched as to be absurd.

      • @Leslie, Appologies, I stopped reading your post originally because it was as stated codswollop. Then after posting realised you were quoting and then refuted the codswollop. I do apologise.

        • Understandable. It’s hard to follow the threads of comments sometimes. (And “codswollop” is a delightful word. 🙂 )

  4. For all you deluded folk out there that still believe in the “Pell witch hunt” all I say to you is note carefully the shocking, arrogant and illegal comment made by his lawyer when the verdict was delivered. It only takes one incident to shatter a child’s life forever. It is murder of the soul.

    • I have no idea to what “shocking, arrogant and illegal comment” you mean, but if it was anything milder than a shouted “This is a gross miscarriage of justice, a travesty, a disgrace; and anybody who voted ‘guilty’ is either a bigot, an idiot, or culpably ignorant of the concept of presumption of innocence,” then I have to congratulate him on his self-control.

      When the Victorian police decide that you, Hanora Brennan, must be guilty of something and post advertisements seeking someone to come forward and accuse you, and you are convicted on the basis of one accuser whose testimony is contradicted by the testimony of some 20 other people, I hope that you will ponder the fact that you think that is justice.

      “It only takes one incident to shatter a child’s life forever. It is murder of the soul.”

      Which doesn’t mean that someone can’t make up an accusation and lie. Maudlin appeals to emotion are a poor way to serve justice.

      • The comment referred to was made in the sentencing process. Richter described the offence that the jury had convicted Pell of was “plain vanilla”. He subsequently apologised. What he was attempting to do, badly, was – as part of the process of pleadings to minimise a sentence- argue that in the spectrum of sexual assaults this was at the lower end.

    • You don’t understand what you are talking about, either because you are not a lawyer, or not thorough in forming judgments.

      When Robert Richter QC, the most feared, respected and experienced criminal trial barrister in Victoria referred to “vanilla-type offending”, he was speaking to the Chief Judge of the County Court in the hearing about SENTENCING, meaning that, if Pell were to be found guilty, Richter QC had to argue mitigating factors, NOTWITHSTANDING THE FACT THAT HE WAS DEFENDING HIS CLIENT ACCORDING TO HIS PLEA OF NOT GUILTY. Richter cannot continue to argue that Pell is innocent as well as contrite. That would be absurd. As Pell’s defense counsel, he has an affirmative duty to minimise the penalty suffered to his client, and so for this reason, had to argue that the charges for which Pell was accused, if proven unanimously in the eyes of a jury beyond reasonable doubt, would warrant the least severe penalty in the range that the statutes permitted. His expression “vanillia-type offending” is clearly a reference by comparison to the other types of offending within the statute, that incur higher or the most severe sentencing penalties. Furthermore, Richter is speaking hypothetically about the conduct Pell has been accused of, not any actual conduct per se.

      At no time

  5. “Pell is expected to face a canonical process in Rome once the final disposition of his case has been reached in Australia-” Given that the Church has its own independent legal system which is older than any Western one, an investigation by some prestigious prosecutor or investigator should have been carried out and a Canonical Trial in the rather unlikely case of there being found a justification a trial or simple the case being thrown out. The Pope ought to have ordered Pell not to face any kangaroo trial in Australia. All the papers of this investigation could have been published. After all, Pell was at the time a high Vatican official. The idea that the Church should be dependent on civil courts for its judicial processes is preposterous. If the Press attacked that, then let them go and jump in the lake. This could be a precedent for the Pope himself to be arrested on visiting some country. Besides, a somewhat similar case took place in France where the Cardinal of Lyon was falsely accused to covering up sexual abuse which happened before he was even bishop of the place. Enough is enough. However, for this strategy to work, the Vatican would need to clean up its act.

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