Cardinal George Pell to find out if child sexual abuse appeal has succeeded (tomorrow)

On Wednesday the most senior Catholic cleric to be convicted of child sexual abuse, Cardinal George Pell, will find out if his appeal has succeeded and if he will be released from custody.

The 78-year-old has been in Melbourne assessment prison since being sentenced in March to six years in prison for sexually abusing two 13-year-old choirboys in 1996 when he was the archbishop of Melbourne. He was ordered to serve a non-parole period of three years and eight months.

The jurors heard Pell sexually assaulted the two boys after Sunday solemn mass at St Patrick’s Cathedral in Melbourne in the priest’s sacristy. Pell orally raped one of the boys during this incident and indecently assaulted both of them. Pell offended a second time against one of the boys one month later, when he grabbed the boy’s genitals in a church corridor, once more after Sunday solemn mass. He was convicted 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.

Pell’s appeal was heard in June before a full bench of the supreme court including the chief justice, Anne Ferguson, the president of the court of appeal, Chris Maxwell, and Mark Weinberg. Only two of the three judges needs to agree as to whether Pell’s conviction should be overturned.

Pell’s high-profile appeal barrister Bret Walker appealed Pell’s conviction on three grounds, with the first ground – that the jury was unreasonable in reaching its verdict – the most likely to succeed. However, the unreasonable threshold is a high one to meet.

Does Australia have a state court system and a Federal system as the US does? If so is this being appealed in a state court or a federal court?

Yes, we do. This appeal is being heard by a state court - the Court of Appeal of the state of Victoria, which in simple terms can be seen as a subsidiary of the Supreme Court of Victoria.

I guess what I'm trying to say is...is this the highest (last) court that would hear the case? Or if this court rules against him could it go to a different (or higher) court?

Yes, it's possible - the case could be appealed to the High Court of Australia (which is our highest Court) - it is much more likely for the High Court to agree to hear an appeal from the Defence (so if Pell's claims are dismissed, I would except his lawyers to seek leave to appeal to the High Court, and there would be a decent chance of that happening). It would be much less likely that the High Court would hear an appeal from the Prosecution if Pell is cleared by the Court of Appeal, but it isn't impossible.

Also Pell is appealing on three separate grounds - the first that the jury erred in their verdict, the second that the jury was not constituted properly, and the third that the Judge did not allow evidence to be presented that he should have. If Pell is acquitted on the first ground - that the verdict was wrong - he would then have been found not guilty and so he could not be tried again (double jeopardy - there are actually some exceptional circumstances where double jeopardy does not apply in our courts, but they are extremely unusual and I can't see any coming into play here).

But if the Court of Appeal finds in Pell's favour on the second and/or third ground of appeal, they have the option of sending the matter back to the County Court (where Pell's original two trials were held - the first ended in a hung jury, leading to the second retrial) for a third trial. A lot of people are questioning whether that is really an option in this case - the idea that such a trial could be fair is a real issue.

There are many people (including myself) who feel this may well be a case where the jury got it wrong. George Pell has been the ogre, the bugbear of the left in Australia since the mid 1990s when, as Archbishop of Melbourne, and then of Sydney, he stood up for Catholic teaching over homosexuality - people wearing rainbow sashes kept approaching the altar attempting to take Communion, and he refused to administer it, offering them a blessing instead. And TV cameras watched on. He was also Australia's most prominent Catholic leader at the time, the scandals involving historical child abuse and cover ups became public and for that reason, a lot of people associate him with those cover ups - but the fact is, these were historical events - while he was in charge when they became public, he wasn't in charge when they were happening. In fact, if you look at Pell's record, he was the first senior figure in the Australian Church to take action against such things, and part of the reason they became public just after he took over is because he took action - here in Melbourne (where I live) he set up a program of compensation and support for victims within months of becoming Archbishop in 1996, reversing the policy of coverups and denials that had existed under his predecessor, Archbishop Sir Frank Little.

Unfortunately for Pell (and for justice), two Australian Bishops - Archbishop Sir Frank Little of Melbourne and Bishop Ronald Mulkearns of Ballarat, died, and became seriously ill respectively, before they could be required to give evidence before Australia's recent Royal Commission into Institutional Child Sexual Abuse - these two men (and others as well) did cover up sexual abuse in their Archdiocese and Diocese, but because they could not be interrogated, Cardinal Pell (who had been a consultor to Mulkearns as a Priest, and who had been an Assistant Bishop under Little) was called to give evidence of what had happened while they were in office. This meant that Pell was the face that kept appearing on television news over and over and over again, as the media discussed the historical coverups - and a lot of people really don't understand that just because a man is talking about what happened in the 1970s or 1980s before a committee in 2015, that doesn't mean he was the one responsible for it - what he was, was the man who had access to the records in the 1990s (and again, the evidence really is that when Pell found out what had happened, he took action swiftly).

It is not unreasonable to say that by the end of this process, Pell was one of the most hated man in Australia.

Added to this, the Victorian Police (who are themselves implicated in historical coverups of sexual abuse, including in some cases, aiding and abetting coverups within the Catholic Church) seems to have gone on a fishing expedition to try and find somebody to accuse George Pell of abuse. The sole witness at his trial, the alleged victim, did not come forward to say he had been abused - the police went looking for somebody to say it. There was no evidence at all that Pell had committed any crime - except this one witness said he had. Normally, people cannot be convicted of a crime on the uncorrobated evidence of a single witness, but exceptions are made for sex crimes because of their special nature - but even so, the testimony this witness gave doesn't seem realistic in a lot of ways - in essence, he alleges that then Archbishop Pell forced him and another choirboy (now dead - having always told his mother he was never molested) to give him oral sex while he was dressed in his full Archbishop's vestments, having just celebrated a High Mass, and this happening in a room that would have been filled with people going in and out at the time cleaning up after a major Cathedral Mass. A number of witnesses said that they would have been in the room at the time, and saw nothing. Others said that choirboys would have been noticed if they'd been absent from the choir at the time. For this crime to have happened, Pell would have had to be willing to risk dozens of witnesses walking in and seeing what was happening, and to have got away with it. It doesn't seem likely.

Then we come down to the issue that Pell's trial - well, his trials - were held in secret. The Australian media was not allowed to report on them, or even that they were happening - which meant that while those trials were underway, people couldn't read any of the evidence and make a judgement for themselves if it seemed likely. And I said trials - because there were two. The first ended in a hung jury - according to some reports (which do seem reliable in many ways), that jury voted 10-2 Not Guilty - in most of Australia, that would have been a Not Guilty verdict, but Victoria is one of the few places that requires 11-1 or unanimous jury verdicts. So a second trial was held - again, all in secret.

The Court of Appeal will deliver its verdict tomorrow. If they decide that despite all this, the jury verdict was sound - well, all right. I cannot be certain Pell didn't do it.

But I hope you can see why a lot of people here think that in this case, the idea of reasonable doubt really might apply.

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