Cardinal George Pell arriving at the County Court in Melbourne.
Cardinal George Pell arriving at the County Court in Melbourne.

Pell’s appeal over ‘unreasonable’ guilty verdict begins

The hearing into disgraced Cardinal George Pell's bid to overturn his conviction for child sexual abuse has begun.

Pell's lawyers have argued he was outside church greeting congregants after mass, therefore could not have possibly been in the sacristy abusing choirboys.

It was added that prosecutors failed to challenge credible evidence that raised serious doubts about Pell's ability to have committed the offences when he is said to have done.

Pell was found guilty in December of molesting two St Patrick's Cathedral choirboys, one on two separate occasions, months after being appointed Melbourne Archbishop in 1996.

The guilty verdicts to count of sexual penetration of a child and four indecent act charges followed a retrial after an original jury were unable to reach a majority verdict.

Opening the appeal, after a several minute wait for Pell to take his seat, Chief Justice Anne Ferguson said the appeal judges were very familiar with the material.

She said the judges had each read submissions from both parties and reviewed a considerable amount of other evidence including recordings, transcripts, photographs, robes and documents.

Parts of the parties' closing submissions and the judge's rulings and charge to the jury were also reviewed.

Pell arrives at the Supreme Court of Victoria in Melbourne Picture: Julian Smith
Pell arrives at the Supreme Court of Victoria in Melbourne Picture: Julian Smith


A view of the Cathedral was also undertaken as revealed by the Herald Sun.

"As a consequence of the work we have already undertaken, we are quite familiar with the evidence and the arguments that are to be made by each party," she said.

"Nevertheless, we expect that counsel will wish to take us to parts of the evidence today and tomorrow. That will only be a small part of the evidence. Of course, in reaching our decision, we will have regard to the whole of the evidence."

The Chief Justice said the appeal bench would test the arguments being put by both parties.

"When we ask a question, that does not mean that we are particularly focussed on that issue. Nor does it mean that we take a particular view about the issue - we are simply testing the argument," she said.

Pell arrived at the Melbourne Supreme Court to a huge crowd of media and onlookers.

Pell's brother David and family have also arrived at court. His brother hasn't attended any of his previous court hearings.

Pell is wearing his clerical collar, unlike during his sentencing.

Because of his status as a high security inmate, he is flanked by four SESG prison guards.

Survivors and protesters react to the announcement of the sentencing of George Pell at the County Court in Melbourne in March. Picture: David Crosling
Survivors and protesters react to the announcement of the sentencing of George Pell at the County Court in Melbourne in March. Picture: David Crosling

Extra security measures have been put in place ahead of Pell's appeal today amid serious concerns for his safety.

Some of the measures include blacking out some windows inside the Supreme Court, and designing a unique route for Pell to be escorted through the court.

The Herald Sun has chosen not to detail other measures.

The Herald Sun can reveal the judges were last week taken on a private tour of the cathedral so they could inspect for themselves what the jury had seen.

They were accompanied by legal representatives for both Pell and prosecutors who were also consulted before the visit.

"The visit was undertaken solely for the purpose of understanding the evidence that was considered by the jury. It was not new evidence," Supreme Court spokeswoman Sarah Dolan said.

"The judges were shown exactly the same parts of the Cathedral as the jury had seen during their visit," Ms Dolan said.

"Legal representatives for both parties were consulted before the judges' visit. They agreed to it and were present throughout."

Extra security measures are in place for the hearing.
Extra security measures are in place for the hearing.

 

 

WHAT PELL'S LAWYERS WILL ARGUE

Submissions on behalf of Pell's lawyers and prosecutors were this morning made public.

In his appeal application Pell's lawyers have raised a string of reasons they say the offending was simply impossible.

Pell wants each of his five convictions quashed and replaced by verdicts of acquittal.

Among the reasons they pointed to witness evidence at trial saying "witnesses gave evidence, either explicitly or to the effect, that the offences alleged did not or could not have occurred".

Other reasons relied on include:

THE timing of the alleged assaults was impossible,

IT was not possible for Pell to be alone in the sacristies only a few minutes after the end of Mass,

IT was not possible for Pell to be robed and alone in the priests' sacristy after Mass,

IT was not possible for two choir boys to be sexually assaulted in the priests' sacristy after Mass by Pell undetected,

IT was not possible for two robed sopranos to leave an external procession without being noticed,

OFFICIALS near the sacristy corridor door at the time did not see the complainant or the other boy,

IT was not possible for the complainant and the other boy to be absent from the choir room unnoticed,

IT was not possible for the complainant and the other boy to re-enter the choir room unnoticed,

THE criminal acts attributed to Pell were physically impossible,

THE Crown case that the second incident occurred in 1997 was contrary to the complainant's evidence,

NO one corroborated the second incident though the complainant said it happened in the midst of a 50 person choir,

IT was not possible for Pell to be in that part of the sacristy corridor at the time of the second incident.

They have also raised a concern that the "learned trial Judge gave a significant forensic disadvantage warning and an honest but erroneous memory warning."

Pell's lawyers are relying on three grounds of appeal.

The first is that the guilty verdicts are unreasonable and cannot be supported having regard to the evidence.

They argue "it was not open to the jury to be satisfied beyond reasonable doubt on the word of the complainant alone."

"There was a significant body of evidence demonstrating, in various ways, that the offending not only did not occur but could not have occurred," the submission states.

" Where such evidence exists, its evaluation is a fundamental aspect of any determination of whether a verdict is unsafe.

"This evidence constituted a catalogue of at least thirteen solid obstacles in the path of a conviction.

"No matter what view was taken of the complainant as a witness, it was simply not open to the jury to accept his word beyond reasonable doubt.."

Pell's second ground of appeal is that trial judge Peter Kidd, the chief judge of the County Court, erred by preventing the defence from using a moving visual representation of its impossibility argument during the closing address.

"His Honour found that the visual argument was a piece of "reconstructed evidence" which did not (and could not) represent the state of the evidence overall," it is argued.

"But the visual was not to be tendered as evidence and a defence argument does not need to represent the whole of the evidence or be based on an agreed statement of facts.

"Here it was a response to the prosecution narrative about where each participant was while the alleged offending occurred which the prosecution had orally set out "frame by frame" in closing."

The third ground is that there was a fundamental irregularity in the trial process because the accused was not arraigned in the presence of the jury panel.

"Due to the size of the jury panel required, the empanelment process was conducted by having the jury panel remain in the jury pool room until after excuses were ruled on," the submissions state.

"A video-link was set up between the courtroom where Pell and counsel remained and the jury pool room where His Honour and instructing solicitors attended.

"Pell was arraigned only once and it occurred when no jury panel members were physically present in court, albeit a video link was in place."

In their response prosecutors said most of its 22 witnesses were not in a position to say the offending did not happen.

"Rather, the evidence from a handful of witnesses suggested that certain scenarios, such as the Archbishop being alone and robed, were unlikely," the response states.

They also pointed to some corroborative or supportive evidence.

Where Pell's lawyers have argued certain events impossible, prosecutors have refuted the claims saying they were indeed possible.

"The evidence given by the complainant was not only plausible, it was credible, clear and entirely believable as is reflected in the jury's verdict," they argue.

" The ability of the complainant to so accurately describe the layout and wood panelling of the Priests' Sacristy (including the alcove) - an area in which he could not recall having ever seen either before or after this event - was a

significant aspect of the Crown case. It bespoke both truthfulness and reliability.

"Any inconsistencies in the complainant's evidence were of little moment and could not have been said to have impacted on his credibility in any material way.

"Where confronted with something that might be viewed as contrary to earlier evidence he'd given, the complainant readily made concessions where appropriate."

Prosecutors backed the jury's verdict arguing they applied simple common sense and world experience.

"When looking at the whole of the evidence, the integrity of the jury's verdicts is unimpeachable."

shannon.deery@news.com.au

Pell is appealing his conviction for sexually abusing two boys in the 1990s.
Pell is appealing his conviction for sexually abusing two boys in the 1990s.


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