Criminal Law

By Minuri Dharmasena


George Pell eyes the High Court

George Pell, once an internationally recognised Cardinal of the Catholic Church, is back in jail after the Victorian Court of Appeal upheld his conviction. Many commentators are predicting that Pell is already looking for a ticket out – an appeal to the High Court.

In December 2018, a jury unanimously found Pell guilty of sexually penetrating, and performing indecent acts on, two 13-year-old choirboys at the St Patrick’s Cathedral in Ballarat. He was sentence to six years in prison with a non-parole period of three years and eight months. Pell maintained his innocence throughout his trial and subsequently appealed to the Court of Appeal on the basis that:

  1. The jury’s verdict was unreasonable as it could not be supported by the evidence given by the complainant;
  2. The trial judge refused to allow Pell to adduce a “visual presentation” during closing address, which, Pell asserted, resulted in a ‘substantial miscarriage of justice’; and
  3. Pell pleaded not guilty without the jury panel being present. This, Pell argued, was contrary to sections 210 and 217 of the Criminal Procedure Act 2009 (Vic) which provide that the accused must be arraigned ‘in the presence of the jury panel’. Pell argued that this was an irregularity in the trial that led to a ‘substantial miscarriage of justice’.

On Wednesday, 21 August 2019, Pell’s appeal was dismissed. The Court of Appeal upheld his conviction by a majority of two to one.

All three judges of the appeal court dismissed the second and third grounds. They found that the trial judge was correct in refusing to allow the video presentation as it did not reflect the actual evidence. Instead, it attempted to plant in the jury’s mind unproven scenarios that could cause the jury to doubt the victim’s evidence.[i] They also agreed that the use of a video link between the courtroom and the jury panel room during Pell’s arraignment satisfied the requirements of sections 210 and 217.[ii]

Nonetheless, the three judges were at odds in relation the first of Pell’s grounds of appeal, the most contentious of the three.

Weinberg: Pell should be acquitted on each charge

Pell argued that the complainant’s evidence was neither credible nor reliable because:

  • The complainant’s evidence was inconsistent with the evidence of other witnesses and with the undisputed facts;
  • The complainant had consciously changed his evidence when challenged; and
  • The complainant’s story was inherently improbable.

According to Pell’s counsel, this demonstrated that the complainant had either lied to the jury or convinced himself of a fantasy.

Chief Justice Anne Ferguson and Justice Chris Maxwell found ‘that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[iii]

However, the answer to Pell’s prayers may just lie with Justice Weinberg.

Justice Weinberg disagreed with his judicial colleagues, stating he had ‘genuine doubt as to [Pell’s] guilt’ – a doubt which the jury must also have had.[iv] He believed that Pell could not have performed the sexual act he is accused of due to the heavy robes he was wearing at the time. Crucially, he also found that there were ‘inconsistencies and discrepancies’ in the complainant’s evidence which cast doubt on his story. He noted that the other witnesses’ evidence was so credible that they ‘if accepted, would lead inevitably to acquittal’.[v]

Appealing to the High Court

In light of Justice Weinberg’s dissent, many commentators anticipate that Pell will appeal to the High Court. But it’s not that simple to just lodge an appeal. In order to get a hearing in the High Court, Pell must first obtain the Court’s special leave – and his Counsel will have just 20 minutes to convince the bench to hear an appeal.

In deciding whether to grant special leave to appeal, the High Court will consider whether the proceedings involved a question of law that is either of public importance or caused a difference of opinion within the lower court that the High Court must resolve. The High Court must also consider whether the interests of the administration of justice require that the matter be considered by the High Court.[vi]

Some commentators argue that there appears to be no question of law on which to challenge the decision of the Victorian Court of Appeal. The three judges disagreed on the most contentious ground, with one judge finding that Pell should be acquitted on each charge. This difference of opinion related to a question of fact rather than law, namely, whether the victim’s evidence was credible and reliable. Historically, the High Court has been reluctant to grant special leave for appeals that involve ‘no more than a review of a finding of fact’.[vii]

Pell’s lawyers now have twenty-six days to comb through the Court of Appeal’s 325-page decision to find suitable grounds for application for special leave to appeal to the High Court. If they succeed, a special leave hearing will follow.

For now, Pell will remain as he is – a convicted pedophile facing the next three years in jail.

[i] Pell v R [2019] VSCA 186, [1115]-[1135].

[ii] Ibid [1136]-[1178].

[iii] M v R (1994) 181 CLR 487, 493.

[iv] Ibid 494.

[v] Pell v R [2019] VSCA 186.

[vi] Judiciary Act 1903 (Cth) s 35.

[vii] Morris v R (1987) 163 CLR 454; Bataillard v R (1907) 4 CLR 1282; Collis v Smith (1909) 9 CLR 490; Liberato v R (1985) 159 CLR 507.