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Court dismisses Pell appeal on legal grounds

Court dismisses Pell appeal on legal grounds

By Karin Derkley



The three Court of Appeal judges who heard Cardinal Pell’s appeal sat through more than 30 hours of recordings of evidence given by witnesses during the trial, some of it more than once, and went through 2000 pages of transcripts before making their decision.

Supreme Court Chief Justice Anne Ferguson, president of the Court of Appeal Justice Chris Maxwell and Justice Mark Weinberg unanimously dismissed the two legal grounds for appeal. Justice Weinberg dissented on one ground – that the guilty verdicts were unreasonable and could not be supported having regard to the evidence.

In her introductory remarks, Chief Justice Ferguson acknowledged that Cardinal Pell’s conviction and appeal had attracted widespread attention, but pointed out that he was not to be made a scapegoat for the perceived failings of the Catholic Church and that his conviction and sentence was not a vindication of the trauma suffered by other victims of sexual abuse.

The court unanimously rejected the first legal ground of appeal, that the trial judge should have allowed the defence to show a 19-minute animation in their closing presentation to the jury. The animation, which indicated the presence of a large number of other priests in the room where the offence took place when there was no evidence that this occurred and included quotes favourable to Cardinal Pell's case, was "tendentious in the extreme" and "had the potential of misleading or at least confusing the jury", the Chief Justice said.

The judges also unanimously dismissed the argument that there had been a “fundamental irregularity” on the basis that Pell was not arraigned ‘in the presence of the jury panel’ as required by the Criminal Procedure Act because the jury was in another room watching by video link when Pell pleaded not guilty. The Court of Appeal held that the word “presence” did not require physical presence.

Cardinal Pell’s defence team had argued there were 13 “solid obstacles on the path of a conviction”, including an argument that the Cardinal’s robes were too heavy and immoveable to pull aside to commit the offence. The Chief Justice and Justice Maxwell rejected all 13 of these obstacles.

The Chief Justice said that having reviewed the whole of the evidence, she and Justice Maxwell did not experience a doubt as to whether it was reasonably open to the jury to convict the accused. They accepted that the complainant was “a very compelling witness, was clearly not a liar, was not a fantasist and was a witness of truth”.

However, Justice Weinberg found that the evidence of the complainant contained discrepancies, displayed inadequacies and otherwise lacked probative value “so as to cause him to have a doubt as to the applicant’s guilt”.

LIV president Stuart Webb described the outcome of the appeal as "fascinating and unusual" and said the judgement had shown “that reasonable minds can disagree, but our legal system has passed the test”.

What Cardinal Pell’s legal team would now do is look very closely at the 300-page judgment to see whether they have a case to take to the High Court, he said.

Cardinal Pell’s team has 28 days to file an application for leave to appeal to the High Court.

In a media statement, a spokesperson for Cardinal Pell said he was "obviously disappointed with the decision" and that his legal team will “thoroughly examine the judgment in order to determine a special leave application to the High Court”.

"While noting the 2-1 split decision, Cardinal Pell maintains his innocence," the statement said.

The High Court will then have to consider whether it will grant leave to Cardinal Pell to have a right to seek the appeal in that court, Mr Webb said. “And that will be questionable in the circumstances because the High Court is unlikely to be willing to enter into a discussion about factual situations."

In an opinion piece for The Age newspaper, Mr Webb said the High Court would need to be convinced "that the matter involved either a question of law, was of public importance, whether it is necessary to resolve differences as to the state of the law, or whether it was in the interests of the administration of justice”.

"Questioning the reasonableness of the jury deliberation process, on the evidence before them, as has been confirmed by two eminent legal minds, may not provide the required grounds for appeal," he said.

In a media statement read out by his solicitor Dr Vivian Waller at the Law Institute of Victoria the complainant said he was relieved at the decision and that he “hoped that it is all over now”. He said he was “grateful for the steady hand of his Honour Chief Judge Kidd in guiding the trial and his compassionate, balanced and fair sentencing.”

“The criminal process has been stressful,” he said. “The justice machine rolls on with all of its processes and punditry, almost forgetting about the people at the heart of the matter”.

However, he said he was glad that the criminal process “afforded Pell every opportunity to challenge the charges and to be heard” and that there were checks and balances in the criminal justice system such as the appeal process.

“I am grateful for a legal system that everyone can believe in where everybody is equal before the law and no one is above the law.”

Ms Waller has been acting for the complainant on a pro bono basis.

Read the judgment and view a video of the summary of the Court of Appeal's conclusions here

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