Pell gets his day(s) in Court as leave to appeal is argued

The seven judges of the High Court are hearing Pell’s team seeking leave to appeal the Cardinal’s convictions in the case Pell v the Queen. Rather than quickly ruling on whether they will grant leave for Pell to appeal, the court has begun to hear evidence about the previous Pell trials. Essentially they are hearing the grounds for the appeal without yet ruling formally that Pell has leave to appeal. It is a two-for-one deal.

The proposed grounds of appeal (from the Victorian Court of Appeal’s judgment):

• The majority (of the Victorian Court of Appeal judges) erred by finding that their belief in the complainant required the applicant to establish that the offending was impossible in order to raise and leave a doubt.

• The majority erred in their conclusion that the verdicts were not unreasonable as, in the light of findings made by them, there did remain a reasonable doubt as to the existence of any opportunity for the offending to have occurred.

Pell is not in court, he is in Barwon Prison, maximum security facility near Geelong.

Bret Walker SC Counsel for Pell opens the hearing.  He points out that the trials took place 22 years after the shocking events. While the evidence of the complainant was recorded so it was available for the second trial. It was the only evidence that the alleged shocking offending had taken place, as the second alleged victim had tragically died. He recalled that there were up to fifty persons around the Cathedral at the time of the first episode. This means that the offences would have been relatively public, unusual for most child sexual abuse.

During the morning he developed the argument that the jury did not take the defence evidence into account, and the Appeal Court failed to acknowledge this problem.

He points out that in the original trials, the Crown did not suggest that the witnesses for Pell were lying. He submits that the Court of appeal failed to consider what was open to the jury on the whole of the evidence. The second error of the Court of Appeal was to reverse the onus of proof beyond reasonable doubt.

The Pell team’s case is that there was not a realistic opportunity for the offending to have occurred – there were “compounding improbabilities”. The “compounding improbabilities” is a quote from Justice Weinberg the dissenting judge in the Court of Appeal. Walker points to the instructions to the jury as to the onus of proof by Judge Kidd in the second trial.

He goes into detail about how the procession out of the Cathedral took place. The Archbishop and some attendants would stay at the West Door to talk to parishioners as they left. Remaining on the front steps was one of the activities that there were practices and probabilities of leaving the archbishop at the West Door, with the procession proceeding outside. The complainant’s case was the the boys peeled off from the procession and entered an unattended priests sacristy. If the Archbishop was at the West door “It is a key point and it is a sufficient point” in establishing a reasonable doubt.

He points to the “unchallenged evidence” of attendants accompanying the Archbishop rather than him being left alone. The sacristy in question was one in which the servers came and then moved around clearing away the holy vessels. this was “manifestly at odds” with the offending having taken place.

Justice Virginia Bell asked Walker about whether the servers processed outside (going to whether the Archbishop would have been left alone.)

“Compounding the improbabilities to the point of impossibility” was a choir rehearsal on the days in question. Walker says the improbabilities were not addressed by the crown at the first trial. He claims the Court of Appeal took a “piecemeal approach” to the evidence.

Walker and Justices Bell and Gordon discuss the legal tests for reasonable doubt by a jury and a Court of Appeal. “That a jury or even a judge believes a witness does not mean they are telling the truth,” says Walker. … “Belief does not drive from the field reasonable doubt.”

Asked if the witness “impressed as a witness a of truth”, Walker makes it clear the defence is not contesting that the compliant was impressive. “Belief in a complainant does not preclude the co-existance of guilt and reasonable doubt,” says Walker. Walker says that the complaint’s evidence did not go to the defence’s evidence of improbability.

The complainant’s evidence at the second trail was given by video recorded at the first trial (where a jury did not achieve a verdict). This had been raised before this hearing by the High court justices talking to the parties.

Walker submits that the “cinematography of a courtroom” should not bear on a trial. But with video recording the appellate judges “can see the witnesses blush.” Bell asks whether the Court of Appeal should have viewed video of all important witness, not just the complainant. After a long discussion Walker raises “the canon of fairness”, which he describes as a fallback position.

Returning to the main issue. “The whole matter is not believing beyond reasonable doubt in the complainant, but of whether there is reasonable doubt from the whole of the evidence,” says Walker.

The court resumed at 11:30: Walker continues to examine the issue of what was open to the jury acting on the whole of the evidence. He quotes Weinberg (the minority judge in the Court of appeal) who said that the complainant’s evidence could not stand if the defence witnesses were only reasonably credible. He says the Crown, and the Court of Appeal majority, did not engage with their argument (about improbability). He argues that the onus of proof has been reversed. There was no route to guilt beyond reasonable doubt. That guilt was possible was not sufficient.

The  prosecution failed to challenge the defence witness at trail Walker argues. :”He quotes Weinberg “unrebutted by the prosecution”.

Because the Archbishop was attending his first mass in his role, the memories of Portelli a key witness of Pell’s greeting people at the West Door made it difficult to remove reasonable doubt. Justice Bell asks whether the Court of appeal majority did find reasonable doubt “but did not recognise it as such.” Walker asks whether he can consider that approach over the lunch break. If the Archbishop greeted people at the west door, for the time that witnesses said he did, there was no time for the offending to take place. (The prosecution argued that practise of greeting people at the West Door after the offences took place.)

(An explanation: the emphasis on the Archbishop (Pell) standing at the West Door after the mass is significant because it is the opposite end of the Cathedral to the Sacristy where the offences were alleged to take place. A sacristy is a room where vestments and articles of worship are kept.)

Walker introduces the evidence of  key defence witnesses, and the challenge they gave for the prosecutions case in fitting the timeline on the days the alleged offending took place. Court rises for lunch.

Asked to whether the Court of Appeal should have watched the complainant’s video – Walker makes it clear the defence thinks that it should not have. He calls on the High Court to give “thoughtful consideration” to whether an appellate court should watch video testimony, regarding that as a”usurpation of the jury’s role.”

The defence raises issues of timing. For the (first) offence to take place it requires  three people, Archbishop and the two choir boys, to be alone for 5 to six minutes – that is common ground for persecution and defence. The activity had to start after the procession had headed towards the west door – and occur after the boys had left the procession. “Supposedly the boys peeled of unobserved from the procession then make their way to the Sacristy. On the crown case the offending 5 to 6 minutes would have had to be some time after the procession leaves the sanctuary.”

In order to find a gap long enough when the Sacristy room is empty and unattended the prosecution had to argue that the servers(who handled the communion vessels)  were somewhere else. They suggested that a private prayer time for the congregation which occurred at the end of the mass as the procession left the sanctuary as the time when the offences took place. The prosecution allowed the jury to equate these two activities because  they  lasted about the same time. But Walker suggested there was a “hive of activity’ during this congregations prayer time  as the servers brought the sacred vessels into sacristy. “It is not possible to fit 5 or 6 minutes for the offences to take place before the servers come into the sacristy,” Walker argued. he also made the point that 22 years after the event it is not possible to know exactly how long things like a procession down the Cathedral took.

Walker argues that the majority at the appeal equated the prayer time and the time of offending – but the evidence was that the clearing away of the holy vessels started too quickly to allow that. (In addition, as noted above, the procession and the time taken for the boys to get to the sacristy would eat into that time.)

The evidence from witnesses that assisted in robing – that the Archbishops robes could not be moved to commit the offences – was not challenged by the prosecution at trial. the Appeal Judges”preferred their consultations in their chambers” to the evidence in trial. For the Judges to experiment with robes, is something not placed before the Jury – or the defence.

Towards the end of the day Walker raised what he saw as other discrepancies in the prosecution case. The fact that Father Egan, who was leading the mass at the second incident, was not a witness at the trail – although the prosecution could have called it, raises the issue of “inadequate investigation,” according to Walker. (The complainant claimed that Pell performed mass that day.)

Another discrepancy was that a choir rehearsal occurred on the day of one of the masses – which contradicts the complainant’s description of seeing the choir disrobe

The Court Adjourned with the respondent’s case (the prosecution side) to commence tomorrow.