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The two-day hearing of Cardinal George Pell’s appeal against child sexual assault convictions ended on Thursday. The most senior Catholic to be found guilty of child abuse now waits to see if he will be freed. By Russell Marks.

George Pell’s days of reckoning

Cardinal George Pell arrives at the Supreme Court of Victoria in Melbourne on Thursday.
Credit: AAP Image / Julian Smith

Perhaps the most significant trial in Australia this century, The Queen v George Pell returned to court this week in Melbourne as the cardinal appealed his six-year jail sentence over the abuse of two choirboys in the 1990s. The case has absorbed the world and become a proxy for the ongoing tension between the traditions of criminal law – some arcane, some vital – and the mores and technologies of our time.

Streamed on the Victorian Supreme Court’s website, the appeal began this week before three of Victoria’s most distinguished judges – Victorian Chief Justice Anne Ferguson, Appeal Court president Chris Maxwell and retired justice Mark Weinberg. It seemed an age since the heavily suppressed Pell proceedings began a year ago.

On Wednesday, the cardinal’s lawyer, Bret Walker, SC, walked the judges through more than a dozen reasons why the evidence presented at trial should cause them to reasonably doubt the complainant’s version of events. Walker argued that Pell’s robes couldn’t be pushed to the side in order to commit the assault in the way the complainant described. That Pell, then an auxiliary archbishop of Melbourne, was most likely greeting congregants at the opposite end of St Patrick’s Cathedral at the critical time. He was very likely never left alone while wearing the robes. Nobody saw the complainant and the second victim leave the procession after Mass, which witnesses said they would have recalled seeing, had it happened. Prosecutors never excluded alternative hypotheses consistent with Pell’s innocence, Walker said.

Pell’s appeal of the verdict the jury handed down against him in December last year is based on three grounds. Two flow from the tech-inspired departures from traditional criminal court practice, which were central to the trial.

Since 2009, Victorian legislation has required at least some potential jurors to be in the courtroom when a plea is taken. However, the hundreds of potential jurors who watched Pell saying “not guilty” to each of the charges did so via CCTV, from outside the courtroom, because they couldn’t all fit inside.

If that technical point succeeds, there could be a third trial.

The use of video – in hearing Pell’s plea, in presenting the complainant’s evidence to the jury, in opening the sentencing and appeal hearings to the public – are all significant departures from centuries of criminal law tradition.

The second element of the appeal relates to a concern raised by Pell’s previous lawyer, Robert Richter, QC, during last year’s trial. Richter said the prosecution’s case was simpler for the jury – they only had to accept the word of the single complainant. Pell’s team, meanwhile, needed the jury to take into account complicated evidence from multiple witnesses whose combined testimony meant various allegations made by the complainant would have been impossible.

So, Richter prepared an animated video that he said would help the jury understand these impossibilities. At the time, Chief Judge Peter Kidd would not allow this video to be played during Richter’s closing argument, saying it constituted new evidence. Both Richter and Walker disagree with Judge Kidd. The denied animated video became the subject of the second appeal ground. This was the one ground the judges appeared visibly unimpressed by during this week’s appeal proceedings.

However, the key argument of Cardinal Pell’s defence is that the complainant’s version of events was highly improbable, if not impossible.

On Thursday, prosecutor Christopher Boyce, QC, pointed to the complainant’s impressive performance during last year’s trial, saying he was eminently believable. But verdicts of “not guilty” are regularly returned in cases where judges and juries believe complainants and also believe other witnesses whose evidence detracts from complainants’ versions.

The biggest issue for Pell is that the jury found him guilty. While that might seem obvious, it is not the role of appeal judges to retry a case. They can only set aside the jury’s verdict if they conclude the jury couldn’t have rationally arrived at “guilty” based on the evidence they heard.

Boyce stammered through his defence of that verdict, responding to the detail in Walker’s 13 impeccably set-out binders. He struggled to answer questions from the bench regarding the victim’s evidence. At times, Boyce fell back on a view the law has traditionally held about juries: that they are imbued with an almost mystical fact-finding quality by virtue of their composition of people “from all walks of life”.

“If it helps Mr Boyce,” Justice Weinberg offered at one point, “juries almost always get it right. Almost.”

In a misstep caught during the 15-second delayed telecast before it was broadcast to the public, Boyce accidentally named the complainant in court at one point. It was a slip that highlighted the inherent risks of such open justice. Of course, the streaming of this appeal is not the first time the public has been given an insight into the Pell trial. Judge Kidd allowed an ABC camera into the County Court to beam his sentencing remarks around the world, in real-time, online and also on all five of Australia’s major television networks – the first time that had been done.

But the public hasn’t been privy to everything. We haven’t seen the evidence as it was presented during the trial. We didn’t have the binders of written legal submissions the appeal judges referred to during this week’s hearing. “Make the transcripts of Pell’s trials available to the public,” implored David Marr in March. “Put them online.” As things stand, more than 30 journalists and media companies remain charged with contempt of court after allegedly breaching the County Court’s suppression order by merely referring to it – a truly unprecedented state of affairs.

Secrecy has long been the theme of the case against Pell, even before charges were laid. From within its SANO Task Force, set up to investigate allegations of child sex abuse coming out of a Victorian parliamentary inquiry, Victoria Police created in 2013 the extraordinary “Operation Tethering” to find out whether the cardinal had committed any crimes, which had not yet been reported.

Until then, scrutiny of Pell was limited to his participation in, and engineering of, the church’s handling of abuse. Operation Tethering did not find a complainant until 2014, and it was another two years before Victoria Police admitted Pell was its focus. This is not the way policing traditionally works, but it was an attempt to break through the church’s ongoing efforts to obfuscate investigations into its priests and its practices. Pell’s defenders say Operation Tethering is proof of a “witch-hunt” against him.

When police finally laid charges in June 2017, they were secret. When the Royal Commission into Institutional Responses to Child Sexual Abuse reported in December 2017 it kept its findings about Pell secret. During Pell’s committal in March last year, Magistrate Belinda Wallington heard eight days of evidence in closed court. A suppression order prevented journalists from reporting the first trial in August 2018, which ended in a hung jury, and the second trial in November of that year. The only evidence against Pell – that of the single surviving complainant – was delivered in closed court. On December 11, 2018, a County Court jury returned five guilty verdicts against the Vatican’s treasurer. Due to the suppression order, the media was barred from publishing anything about the guilty verdict. Melbourne’s Herald Sun splashed the word “CENSORED” across an all-black front page.

The secrecy was meant to guarantee a fair trial for Pell, by limiting the prospect – devastating for the complainant and his supporters – that the jury would form its view of his guilt regardless of the evidence presented at trial. The suppression order was designed to protect a subsequent trial, involving a different set of charges against Pell, that never eventuated. Victoria’s traditional requirement that serious crimes be tried by jury was what lay beneath the entire system of secrecy. Within a day of Pell’s unreportable conviction, the Victorian government asked the state’s law reform commission to investigate the possibility of judge-only trials, which are already available to those who choose them in five other states.

Justices Ferguson, Weinberg and Maxwell reserved their decision on Thursday, and declined to say when they would deliver a verdict. Both Boyce’s and Walker’s arguments, and everything put to the jury during the trial, will be part of their decision.

Meanwhile, Pell, who was present in court this week, taking diligent notes throughout the proceedings, has himself become something of a proxy. Either his conviction was part of a long overdue comeuppance for a shadowy, powerful and sinister organisation, which continues to provide havens for paedophiles, or it was a terrifying instance of post-truth injustice, one more irrational verdict in a world of nonsense governed by the tyranny of opinion.

Regardless of whether Pell ultimately falls, the fact a person so powerful as the Vatican’s first cardinal-treasurer could be made subject to state law is evidence the Catholic Church’s long, secretive, unaccountable reign is in its final throes. Last month, Pope Francis announced revolutionary Catholic law that would, at long last, require priests to report child sexual abuse and to participate in police investigations.

This article was first published in the print edition of The Saturday Paper on Jun 8, 2019 as "Days of reckoning". Subscribe here.

Russell Marks
is an honorary associate at La Trobe University. He has worked as a criminal defence lawyer, a cricket coach, an academic, a policy adviser and a speechwriter.