Legal team says there does remain a reasonable doubt of any opportunity for the offending to have occurred
Tue 15 Oct 2019 09.14 BST
Cardinal George Pell’s legal team has accused Victoria’s crown prosecutors of “mischaracterising” Pell’s complaint against his conviction as being based on factual errors rather than legal ones.
The 78-year-old was sentenced to a six-year prison sentence for sexually abusing two 13-year-old choirboys at St Patrick’s cathedral when he was the archbishop of Melbourne in 1996. He will be eligible for parole after serving a term of three years and eight months.
His final avenue of appeal is to the high court. In their application of appeal to the court, Pell’s lawyers, led by Bret Walker SC, said the appellant division of the supreme court was wrong when it dismissed Pell’s first appeal in August by a majority of two judges to one. “There did remain a reasonable doubt as to the existence of any opportunity for the offending to have occurred,” that application said.
“The majority [of judges] erred by finding that their belief in the complainant required the applicant (Pell) to establish that the offending was impossible in order to raise and leave a doubt.”
Last week the director of the office of prosecutions, Kerri Judd QC, filed a response to Pell’s team and challenged their grounds of appeal altogether, urging the high court to refuse to hear his arguments.
“The [special leave to appeal] identifies no error in the majority approach and no question of law for this court to resolve; it does no more than ask this court to substitute for the view taken by the majority and the jury a different view of the evidence,” her response said. She added that the appeal decision “raises no question of law of public importance”.
But on Monday, Pell’s team filed their reply to Judd, saying she had failed to address “the question whether belief in a complainant can coexist with reasonable doubt due to the burden and standard of proof”. In order for the Crown to have successfully argued that Pell’s alibi witnesses, including his master of ceremonies Charles Portelli, were unreliable, the Crown should have eliminated “any reasonable possibility that their evidence was true and correct”, Pell’s legal reply states. They argued that failure to produce this evidence should have sparked reasonable doubt in the jury during his trial.
“In the absence of any challenge to the correctness (let alone honesty) of that recollection by the prosecution at trial, the ‘alibi’ was not, on proper application of the law, anywhere near eliminated,” the reply states.
A decision is yet to be made by the court as to whether the appeal will be heard.
Prosecutors lodge documents opposing George Pell’s high court appeal
Victoria’s office for public prosecutions confirms it has submitted a response to Pell’s bid for appeal to be heard
Prosecutors will oppose the grounds of a high court appeal bid by jailed paedophile cardinal George Pell.
Victoria’s Office of Public Prosecutions on Tuesday confirmed it had filed a summary of its argument in response to a special leave application from Pell, lodged last month.
Pell, 78, was found guilty by a jury of the rape of a 13-year-old choirboy and sexual assault of another at St Patrick’s Cathedral in Melbourne in 1996, but Australia’s most senior Catholic has always denied any wrongdoing.
His 12-page application to the high court – the first step in his final bid for freedom – included an argument that consenting judges overseeing his previous appeal erred in their finding.
Victoria’s court of appeal in August upheld Pell’s convictions by two votes to one.
But his lawyers say a mistake occurred because Pell was required to prove the offending was impossible, rather than leaving that onus to prosecutors.
Second, they argue the judges erred in not finding the jury’s verdicts unreasonable, claiming there was reasonable doubt about whether opportunity existed for the crimes to have occurred.
They also claim that changes in law over the decades since the crimes occurred make it more difficult to test sex assault allegations.
They argue Pell should be acquitted of all charges for a number of reasons including inconsistencies in the complainant’s version of events.
But the director of public prosecutions, Kerri Judd QC, has challenged Pell’s grounds in Tuesday’s summary.
The high court will consider Pell’s special leave application documents in conjunction with Judd’s submission and permit or deny the motion.
If leave is granted, Pell will need to lodge a formal appeal.
The process can take up to six months and is sometimes completed behind closed doors.