On 21 August 2019, the Victorian Supreme Court handed down its decision in Cardinal George Pell’s appeal against findings of guilt for child sex offences that occurred in Melbourne in the 1990s. The court dismissed Pell’s appeal by a majority of two to one, with Justice Weinberg dissenting. Pell will continue to serve his sentence of six years imprisonment and will be eligible to apply for parole after he has served three years and eight months.
The Pell verdict
A jury found Pell guilty of two counts of sexual penetration of a child under 16 and four counts of indecent act with a child under 16. The jury heard evidence from 24 witnesses and also attended a view of St Patrick’s Cathedral, where the offences were alleged to have been committed. The jury also heard the police interview conducted with Pell before he was charged. It found him guilty unanimously after deliberating for several days.
Grounds of appeal
Pell’s first ground of appeal was that the findings of guilt were unreasonable and were not open to the jury having regard to the evidence. The second ground of appeal related to the refusal of the judge to allow Pell’s lawyer to show an animated video to the jury. Thirdly, he argued there was an irregularity in trial procedures because his pleas had not been entered in the presence of the jury.
The unreasonableness ground
The offences were alleged to have been committed during 1996 and 1997 against two choir boys at St Patrick’s Cathedral. The first incident was alleged to have occurred in the Priests’ Sacristy of the cathedral and the second incident in the corridor of the cathedral.
By the time the first victim made his allegations, the second victim had died.
Evidence was heard from a number of other witnesses (the opportunity witnesses) about the processes and procedures at the cathedral. This evidence was relevant in assessing whether the defendant had a realistic opportunity to commit the offences.
Pell’s case was that the complainant’s story was a fabrication or a fantasy. He argued that it was implausible and that the allegations were either impossible or so unlikely as to be no realistic possibility.
The court rejected this ground of appeal, finding that it was open to the jury to find Pell guilty beyond a reasonable doubt based on the evidence. It found that there was nothing about the evidence that meant that the jury ‘must have had a doubt.’ The Chief Justice and Justice Maxwell also stated that they did not experience a doubt. They found that the complainant was a compelling witness and a witness of truth. They said:
Throughout his evidence, [the complainant] came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution. As might have been expected, there were some things which he could remember and many things which he could not. And his explanations of why that was so had the ring of truth.
There was generally consistency and support in the picture painted by evidence provided by the opportunity witnesses. Their evidence varied as to the level of detail and recall, but this could be explained by the passage of over twenty years between the events and the trial and the fact that trying to recall events is difficult when the events were repeated week after week for many years.
Pell argued that the acts alleged were physically impossible and relied on statements made by the Prefect of Ceremonies and the Sacristan to the effect that it was not possible to pull the cardinal’s robes to the side. The robes were made available to the jury and to the judges on appeal and were found not to be so heavy or so immovable as had been suggested.
In his dissenting judgment, Justice Weinberg found that there were discrepancies and inadequacies in the complainant’ evidence that gave rise to a reasonable doubt.
The second ground
Pell further argued that the court made an error in refusing to permit the defence to show an animation video to the jury as part of its closing address. The animation in question showed a series of dots and lines moving through the Cathedral complex, each dot or line representing a particular person proceeding out of mass on a Sunday.
A window of text was featured on the screen, with quotes from witnesses that were favourable to Pell’s case fading in and out throughout the animation. The trial judge held that the video should not be used in the way Pell’s lawyers intended. The Court of Appeal agreed, finding that it had the potential to mislead or at least confuse the jury.
The third ground
Pell’s third ground of appeal was that his pleas were not taken in the presence of the jury as required by the Criminal Procedure Act. Pell had entered his pleas while the jury was in another room, watching by video link. The Court of Appeal found that ‘in the presence of the jury’ includes presence by video link and dismissed this ground as well.
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