Pell v The Queen … Cardinal’s High Court appeal … Written submissions weighed by Alan Zheng … Pell says the jury’s verdict was unreasonable … Factual inconsistencies … Alibi evidence … Parting of the robes … Onus and standard of proof … Crown says the threshold for overturning a jury verdict is high … Limited role for appeal judges 

The final written submissions are now available and the lay of the land is set. From Wednesday, the High Court is hearing an “argument as on an appeal”. 

This means the full bench will hear the application for special leave and the appeal together. As a consequence, the court will reserve the option to refuse special leave during the course of the oral hearing. 

If instead the judges decide to grant special leave, they can then decide to allow or disallow the appeal.

Armed with some of the top firepower that money can buy, the crown will be put to the test in seeking to preserve the County Court jury decision of March last year.

That decision resulted in Pell being sentenced to six years’ imprisonment for sexual offences against two young choirboys in the darkened interiors of St Patrick’s Cathedral back in 1996 and 1997. 

Pell’s legal team – Bret Walker SC with Ruth Shann – are seeking orders that Pell’s convictions be quashed and a verdict of acquittal be entered in their place.

The upshot of their argument is that the verdict of the County Court was unreasonable and the jury could not have been satisfied beyond reasonable doubt on the word of the complainant alone. 

Whether unreasonableness is established hinges on this test from M v The Queen which asks whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  

One preliminary matter to be resolved is whether this test focuses on individual pieces of evidence – those which the appellant will detail – or is confined to looking to the “whole of the evidence”, for reasonable doubt which was not eliminated by the complainant’s evidence. 

In August last year, all three judges in the Court of Appeal (Ferguson CJ, Maxwell P and Weinberg JA) granted leave to appeal in respect of this unreasonableness ground. Pell’s appeal was ultimately dismissed on the basis of Ferguson and Maxwell’s conclusions on the two other grounds. 

Hope, in the form of criminal law authority Justice of Appeal Mark Weinberg, remained for Pell. In his dissent, Weinberg concluded that there was a “substantial body of evidence” that left it reasonably possible that the complainant’s allegations fell short of the standard of proof required for conviction. 

This has left the crown with the task of defending the jury decision. The respondent’s team get to the job swiftly, using the conventional playbook. 

Reaffirming the high threshold required for setting aside jury verdicts. Tick. Reiterating the jury’s role as the “constitutional tribunal for deciding issues of fact” and “the microcosm of the community”. Tick. Reminding the appellate judges that it is the jury after all that sees and hears the witnesses. Tick. 

It is a mechanical exercise intent on reinforcing the role of the ultimate court of appeal in the wider hierarchy.

Then we have the force with which the the appellant approaches the jury decision.

That the complainant’s account “in fact fits and is not at odds” with the evidence of the other crown witnesses is “plainly not so”, say Pell’s High Court submissions. 

His lawyers go to the factual inconsistencies in several bodies of evidence and conclude that the prosecution failed to eliminate all reasonable doubt because … 

“A large number of undisputedIy honest witnesses whose evidence was not challenged by the party who had the burden of proving the case beyond reasonable doubt – even where those witnesses gave effective alibi evidence. A reported denial by the alleged co-victim that any such offending ever occurred. A highly improbable allegation made decades after the event which contained features inconsistent even with the prosecution’s case. An incomplete investigation by the prosecution of the recollections of eyewitnesses. No rational explanation for the whole of the evidence provided by the prosecution in closing. Strong judicial directions about the impact of delay and danger of overvaluing demeanour.” 

For the choirboys to have ended up in the sacristy – the site of the alleged offending – after Sunday Mass, they first needed to detach from a post-mass procession.

Several of the crown’s witnesses gave evidence that the choirboys’ detachment from the strict procession would have been noticed and subject to discipline. This was never reconciled with the complainant’s account.

Pell’s case additionally hinges on a critical alibi. According to several church officials, including the master of ceremonies Monsignor Charles Portelli, an old colleague of the archbishop, Pell invariably stood on the steps of the church for 10 to 20 minutes after mass to greet parishioners who were eager to meet him.

The court heard that it was during this critical window in which the complainant claims to have been sexually assaulted by Pell.

That Pell had not been on the steps with Portelli on several occasions and was instead unaccompanied in the sacristy during the relevant periods of alleged offending was never put to Portelli himself. 

The prosecution’s evidence aimed at outflanking this alibi – that Pell only began his practice of standing on the steps post-mass from 1997 – likewise was never put to any witness.

The prosecution is said to have taken a passive approach at trial, as demonstrated by its aversion to challenging witnesses where their evidence would only bolster the body of exculpatory evidence. 

This, it followed, meant the prosecution had failed to discharge its burden of eliminating any reasonable possibility of the alibi. The prosecution had not squarely confronted the correctness of this alibi. Instead, it had attempted to deal with the alibi indirectly by saying the complainant was “compelling” and if the jury believed in the complainant, this equated to an elimination of reasonable doubt. 

Pell says this is insufficient in excluding the alibi’s contribution to reasonable doubt. 

The majority on appeal then failed to conclude that the alibi witnesses were dishonest in any way, according to Pell’s submissions, and this supported a view that the alibi – in reliance on Portelli’s unchallenged evidence – was never eliminated. 

According to the crown’s submissions, the evidence of Portelli and other staff can hardly be characterised as actual or effective alibi evidence, especially where, for example, Portelli could not recall where he went immediately after each mass. 

The reply coming from team Walker is that the alibi was not eliminated merely because Portelli, who they claim is an otherwise credible witness, was less certain on some peripheral matters. 

What was significant was that Portelli reiterated that he was with Pell on the relevant day. The alibi stands to gain further cogency because the prosecution chose not to challenge the alibi at trial, despite having leave to do so.

Much of Portelli’s evidence on centuries old church conventions – including that bishops must never be left alone while robed and that disrobing was always done with either his assistance or someone else’s – was unchallenged by the prosecution, along with further evidence that the sacristy was a “hive of activity” after mass such that it would not have been empty for more than half a minute during this period, even as the archbishop disrobed. 

Against these claims, the crown will reiterate the broader evidence of numerous witnesses, including Portelli. They say that detachment from the post-mass procession was possible as the procession became more relaxed and less orderly, that Pell’s practice of standing on the church steps for 10 to 20 minutes post-mass was departed from, perhaps even regularly, that there was also eyewitness testimony of Pell occasionally robed and unaccompanied in the sacristy.

In its closing, the prosecution advanced a view that Portelli had left Pell unaccompanied for up to two minutes on one of the occasions of alleged offending. Portelli’s evidence, however, was that he had only left Pell’s side for two minutes to attend to the sanctuary. This, Pell’s submissions say, was never resolved against the prosecution’s proposition that Pell’s offending took five to six minutes.

According to Pell, relying on the evidence of Portelli, the practical construction of the robes and their numerous layers stood in the way of facilitating the extrusion of his penis, as described by the complainant. 

The prosecution’s closing, which noted the robes could be “easily manoeuvred or moved to the side” were not reconciled with Portelli’s unchallenged evidence. 

In response, the crown points to the fact that the robes were an exhibit at trial, available to the jury and Weinberg’s observation that it was possible for the robes to be worn in the way described by the complainant. 

The second alleged instance of offending in 1997 is even more difficult on the evidence. The complainant alleged that Pell had pushed him into the wall and grabbed and squeezed his testicles in a clear and violent action while he was walking in the middle of a choir procession. 

Portelli’s eyewitness evidence was, again, to the contrary and the prosecution did not seek leave to challenge his evidence. 

Another alleged eyewitness, Father Egan, was not called to give evidence and this left it possible that he could provide a complete alibi for Pell. The crown, however, disputes whether Egan was in the procession at all. 

The appellant also points to the prosecution’s failure to call the parents of the other, now deceased, choirboy to give evidence. This, they said, left open the possibility that the choirboy’s denial of being assaulted by Pell was, in fact, a true denial.

To reach a conclusion the High Court will also consider whether the majority in the Court of Appeal erred in finding that their belief in the complainant required Pell to establish that the offending was impossible in order to raise reasonable doubt.

By requiring Pell to prove that the opportunities of offending were “impossible” went above and beyond what was required, imposing a burden to prove actual innocence, contrary to the onus and standard of proof. The majority also confined its enquiry of the complainant’s evidence to assessment of his demeanour.

Unsurprisingly, the crown rejects these claims. It argues the majority did not actually require Pell to establish that the offending was impossible, as demonstrated by its consideration of other factors, including the alleged improbability and whether there was reasonable opportunity for the offending. 

The crown also submits that the majority considered far more than mere belief in the complainant as ascertained by his demeanour. It had also assessed his credibility and reliability as discerned from evidence in trial as well as consistencies and inconsistencies with other evidence.

Whether the remainder of Pell’s sentence is spent tending to prison gardens or having tea and crumpets in one of the church’s retirement homes, rests with the High Court.