• Cardinal George Pell was released from prison on April 7, 2020 after the High Court quashed his five convictions for child sexual abuse.
A full bench of the High Court will start hearing George Pell’s final bid for freedom in Canberra on Wednesday.
As the disgraced cardinal spends another day in solitary confinement at a Victorian prison, either five or seven judges will consider his legal team’s arguments.
The 78-year-old is one year into his six-year sentence, handed down last year for sexually abusing two choirboys at St Patrick’s Cathedral while he was Archbishop of Melbourne in 1996.
Pell was convicted by a jury in 2018 of raping one 13-year-old choirboy and sexual assault of another. The first boy gave evidence against Pell; the second died in 2014.
Pell was steadfast in his claims of innocence through two trials – the first ending in a hung jury – and last year’s Victoria’s Court of Appeal hearing which upheld the verdict in a 2-1 ruling.
The High Court has not formally granted Pell’s application for appeal, instead referring it “for argument”.
That means after the hearing, the court can refuse the application for special leave, or approve it. It can then either allow or dismiss the appeal.
The trial centred around five or six minutes after Mass when the jury found the abuse occurred.
The jury did not accept the defence claim the sacristy after Mass was a “hive of activity” which would not have given Pell the required opportunity to offend.
Pell’s lawyers are arguing the appeal on two grounds.
First they say the Court of Appeal majority – Chief Justice Ann Ferguson and President Chris Maxwell – erred in requiring Pell to prove the offending was “impossible” in order to raise reasonable doubt.
They say there was evidence which in combination raised and left doubt as to Pell’s guilt, but the judges “examined each piece of evidence in isolation”.
His lawyers Bret Walker SC and Ruth Shann also argue believing the complainant’s account did not eliminate reasonable doubt.
“The majority accepted there was some evidence supporting the applicant’s contentions of impossibility on virtually every matter raised,” they said.
The third judge, Justice Mark Weinberg, found in Pell’s favour, noting the prosecution was required to eliminate any reasonable possibility there was no opportunity for offending.
This was the right approach, Pell’s lawyers say.
Secondly, they argue since the majority found there was a reasonable doubt as to the existence of any opportunity for Pell to have offended, they made an error in concluding the guilty verdicts were not unreasonable.
They want Pell’s convictions on five charges to be quashed, resulting in his immediate release from prison.
But prosecutors countered the submissions by accusing the defence of giving the court an “incomplete and inaccurate picture of the facts”, glossing over evidence supporting the complainant.
“The fact that the appellate court considered there to be multiple views of the evidence open to the jury, including a view consistent with innocence, does not necessarily mean that the jury verdict was unreasonable,” chief crown prosecutor Kerri Judd QC wrote in joint submissions with trial prosecutors Mark Gibson QC and Angela Ellis.
“The assessment of the evidence is a matter for the jury.”
The High Court is also expected to examine whether Victoria’s Court of Appeal judges were legally allowed to watch video recordings of trial evidence in considering the case.
They watched evidence of 12 witnesses, including the complainant, visited St Patrick’s Cathedral and examined the ornamental robes worn by Pell at the time.