12 Mar 2020

George Pell: Court reserves ruling in child sex abuse case

8:28 pm on 12 March 2020

After two days of dense legal argument, the High Court of Australia has reserved its decision on whether it will overturn Cardinal George Pell's convictions for child sexual abuse.

Cardinal George Pell.

Cardinal George Pell. Photo: AFP

Australia's most senior Catholic and former advisor to the Pope is serving a six-year jail term for the abuse of two choirboys at St Patrick's Cathedral in the 1990s.

Pell's lawyers took the case to the High Court after losing their appeal in the Victorian courts.

If the High Court overturns the convictions, he will walk free from jail, where he has been held for almost a year.

The second day of the appeal hearing concluded with Pell's defence lawyer Bret Walker SC taking aim at the prosecution's timeline of events, which he called an "improvised and rickety construction … to make something fit, that will not fit".

Walker today urged the High Court, if it were to find that there was an error, not to send the case back down to the Victorian Court of Appeal, which he said would be an "injustice".

"It should be finished in this court," Walker said.

"The best way for it to be over is by an order of this court entering an acquittal."

The day's arguments opened with the prosecution defending the Victorian Court of Appeal's viewing of video of the victim's testimony.

During yesterday's hearing Walker argued the Victorian appeal judges may have been unduly convinced by the video.

Under intense questioning, Victoria's Director of Public Prosecutions, Kerri Judd QC, today told the court that the videos formed part of the evidence and it was the Court of Appeal which requested to view them.

"It wasn't the Crown's idea and it wasn't the Crown advancing the point about demeanour," Judd said.

But she said the video furnished the judges with an impression of the victim's demeanour which was vital because "credibility issues were up front and centre".

Victim's demeanour a 'relevant consideration'

On the first day of the appeal, Pell's legal team argued there were inconsistencies in the victim's evidence, which they said were signs he was "embellishing and fantasising".

Today, Judd argued that the victim's demeanour was a "relevant consideration".

"Demeanour is not something that the Court of Appeal are prevented from looking at and considering," she said.

"The question then becomes not whether or not they looked at demeanour … but whether or not they were unduly influenced by demeanour."

The Crown's contention is that the victim has long been truthful.

On the issue of undue influence, Justice Virginia Bell drew Judd to the Crown's closing address in the cardinal's case, when the prosecutor invited the jury to recall the victim closing his eyes on two occasions to remember something.

"It may be that watching and seeing the complainant close his eyes and think back impressed members of the jury as an evidence sign of truthfulness," Justice Bell said.

But others, she noted, might see it as the victim fabricating his answer.

"My point is that it's such a subjective consideration that it's very difficult to see how the Appellate Court … can be assisted by its own subjective view of matters of that character," Justice Bell said.

Judd said that ultimately, reliability and credibility of a witness was "primarily and essentially" a matter for the jury.

She said that though there was some evidence which could point to innocence, it did not mean the jury was unable to find Pell guilty beyond reasonable doubt.

Evidence moves to the priest's sacristy

Judd told the High Court the evidence presented was enough for the original jury to convict Cardinal Pell beyond reasonable doubt.

She pointed to the victim's intimate knowledge of the priest's sacristy, where he says he was abused, as evidence which corroborated his story.

But Justice Geoffrey Nettle asked what evidence there was which placed the victim in the sacristy.

"This witness gave positive evidence that he had not been in that room before," Judd said.

She rejected the notion, put forward by the defence, that he could have once toured the room.

"He's in that room and he's describing it in such detail that if something's happened when he's in that room, it's indelibly marked on his memory," Judd said.

"This is not just a quick look in this room. Something significant has happened in that room."

But under questioning, she conceded that the pivotal five or six minute window, during which time the abuse is said to have occurred, could have been longer.

Outside the court, a group of Pell supporters from Sydney who clashed with an abuse survivors' advocate yesterday gathered again this morning.

The group - which was smaller than the day before - sang hymns while an abuse survivors' advocate used a loudspeaker to call for the justices to uphold the cardinal's conviction.

Are videos part of the official record?

Yesterday, the High Court justices quizzed Walker about whether the judge's viewing of the videos was within the correct process. Walker said he was not sure that it helped.

"There has to be a justification [for doing it]," he told the court.

But Walker was unable to answer on-the-spot questions about whether recording evidence from witnesses - a practice many courts have now adopted - had adjusted the notion of what is the official record, and whether a video is part of that.

Justice Virginia Bell also asked why the High Court had not been invited to watch the same material as the appeal court, and queried the material that the High Court had been given.

"Why are we being taken to selected portions of the transcript? And why aren't we getting the whole transcript?" she asked.

With the High Court now reserving a decision, a conclusion is likely to be months away.