The high profile barrister Bret Walker SC has argued jurors who convicted Cardinal George Pell of child sexual abuse were wrong to reject arguments from his defence about the improbability of the offending occurring.
On Wednesday morning Pell’s final chance of appealing his verdict begun before the full high court bench of seven justices in Canberra. The court is yet to grant Pell leave to appeal his conviction – first, it is hearing arguments from Walker as to why the appeal should be allowed. It may grant or deny the appeal at any time.
Outside the court, Pell supporters gathered holding crosses and a sign that read: “We are praying for you Papa.”
Walker opened by telling the bench, led by the chief justice, Susan Kiefel, that questions of the complainant’s credibility combined with the improbability of the offending occurring should have led jurors who convicted Pell to hold a reasonable doubt as to his guilt. The jury’s perception of the complainant’s credibility should not have alone persuaded them beyond reasonable doubt, Walker said.
“It is an extreme fallacy for anyone to assume the credibility of the complainant will supply an answer to reasonable doubt raised via evidence to which the complainant says nothing,” Walker said.
Justice Virginia Bell put it to Walker that the high court was not concerned with credibility, given it was up to jurors to decide that. If the court did decide to hear the appeal, Bell said it would proceed with the acceptance that “the witness impressed the jury as a truthful witness”.
Walker said he was “at pains to point out” that belief in a complaint did not eliminate coexisting reasonable doubt as to the accused’s guilt.
Doubt “…could not be eliminated [just] because the jury had manifestly been impressed by the complaint,” Walker said. He said this was because the complainant’s evidence, even if it was impressive and believable, did not address questions of doubt raised by the defence, such as a lack of opportunity for the offending to have occurred.
The court also grappled with whether Victorian appellant court judges, who dismissed Pell’s first appeal by a majority of three-to-one, may have been unduly influenced by the complainant’s testimony by watching a recorded video of it rather than just reading the transcript. Walker said it may have led the judges who dismissed the appeal to give too much weight to the complaint’s evidence rather the evidence in its entirety.
Pell, 78, is serving a prison sentence of six years, with a non-parole period of three years and eight months. In December 2018 a jury found him guilty on four counts of an indecent act with a child under the age of 16 and one count of sexual penetration with a child under the age of 16.
They believed Pell sexually assaulted two choirboys in the priest’s sacristy after Sunday solemn mass at St Patrick’s Cathedral in Melbourne in 1996. Pell orally raped one of the boys, the complainant in the case, during this incident and indecently assaulted both of them. Pell offended a second time against the complainant one month later, when he grabbed the boy’s genitals in a church corridor, once more after Sunday solemn mass.
By the time the complainant spoke to police in June 2015, the other victim had died from an accidental heroin overdose at the age of 30.
The hearing continues.
source https://www.theguardian.com/australia-news/2020/mar/11/george-pell-appeal-cardinals-lawyers-argue-jury-wrong-to-reject-improbability-claim
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