Time and timing are crucial to Cardinal Pell's appeal

By Peter Westmore
News Weekly - National Civic Council
March 28, 2020

http://www.newsweekly.com.au/article.php?id=58931

When the complainant visited the sacristy with the police, he looked at the kitchenette, as seen here above, and said that it was just the same as 1996. But in 1996 the “kitchenette” was a wardrobe.

Cardinal George Pell’s appeal to the High Court took place on March 11 and 12. The case was heard by a Full Bench of the High Court, which includes all seven justices currently on the court.

Cardinal Pell was not present – he is confined in Barwon Prison, a high-security facility in Victoria.

He was appealing against a 2:1 majority verdict of the Victorian Court of Appeal of last August. It has taken over six months for this matter to reach the High Court of Australia. He was not directly appealing against the original jury verdict, but against the majority verdict of the Court of Appeal.

His case rested on two propositions:

1. The majority in the Court of Appeal erred in their assertion that the complainant was so credible that Cardinal Pell had to establish that the offending was impossible. In other words, that Cardinal Pell was required to prove his innocence, rather than the prosecution proving his guilt.

2. The majority of the Court of Appeal erred in finding that the jury verdicts were not unreasonable, in light of all the evidence contradicting it.

One day was given to Cardinal Pell’s barrister, Bret Walker SC, to put Cardinal Pell’s case. The second day was given to the Director of Public Prosecutions in Victoria, represented by Crown prosecutor Kerri Judd SC, to support the decision of the Court of Appeal.

Overall, I was impressed by the way the High Court justices understood the key matters in the case purely from the documents filed by Cardinal Pell’s team, and by the DPP.

As often happens in legal cases, the High Court took the appeal in directions which were quite unexpected.

When Cardinal Pell’s barrister raised the question of the Court of Appeal’s decision to review video evidence from the trial, several of the judges queried whether it was proper for the Court of Appeal to view selected video recordings from the trial, rather than the whole trial.

If the High Court rules that the Victorian Court of Appeal wrongly viewed selected video evidence, that alone could reverse its decision.

A second point referred to the credibility of the complainant, which the jury and the majority of the Court of Appeal accepted completely. Cardinal Pell’s barrister pointed out that, at the trial, all the witnesses were called by the prosecution, and the Crown did not attack the credibility of the witnesses, including the Master of Ceremonies, Monsignor Charles Portelli, and the sacristan, Max Potter, whose evidence alone made the allegations against Cardinal Pell impossible.

In questions and comments, several judges indicated that this damaged the Crown’s case.

As Cardinal Pell’s barrister said: “There was no attempt, on the part of the Crown, to discredit that evidence, apparently without impugning honesty but impugning reliability or accuracy or whatever – there was no attempt to impugn it.”

In fact, there were over 20 witnesses, other than the complainant, and not one of them gave evidence corroborating the allegations of the complainant but, in different ways, many of them contradicted him.

The third point related to the alleged five or six minutes after Sunday Solemn Mass when the priests’ sacristy was said to have been empty, and when, the Crown alleged, the abuse took place.

In fact, it was never left unlocked unless people were working there, on the evidence heard in court, or there were people inside and altar servers coming and going to clear things up after Mass. It was called “a hive of activity”. This impressed the judges.

The Victorian Director of Public Prosecutions opened by arguing that it was right for the Court of Appeal to examine the complainant’s video evidence at trial. She said: “It became part of the record in the sense of all of the other evidence.”

However, several judges challenged her on this, asking her whether it was entered as an exhibit at the trial, to which the answer was “No”.

The DPP also changed the prosecution’s earlier assertion that the offending occurred in the priests’ sacristy in the five or six minutes immediately after Mass. She now said that it occurred after the procession at the end of Mass. But she refused to say exactly when the alleged offending could have occurred, saying that there was no evidence on that point. Several judges pointed out that the cathedral sacristan, Max Potter, said in evidence that he and the altar servers would begin clearing the altar five or six minutes after the cathedral procession began, after the procession had returned to the priests’ sacristy.

He said he kept the priests’ sacristy locked until the procession returned to the sacristy.

The DPP claimed that the alleged assaults occurred after the procession returned to the sacristy when there were numerous people in the sacristy and the area near it.

This, of course, raises immediate questions. Where were the altar servers (usually six or more in number); and where were concelebrating clergy, who unvested after Mass in the priests’ sacristy?

Justice Bell said: “Ms Judd, if the opportunity evidence left open the reasonable possibility that the offence could not occur, the appeal was all over too, and that is, in essence, as I understand, the applicant’s argument.”

Justice Bell added: “The court became distracted by the sort of flourish that defence counsel commonly might employ in an address to the jury, perhaps to the forensic disadvantage of the applicant, pitching the test too high. Impossibility was never the issue, [which was] elimination of the reasonable possibility of the existence of an alibi or other circumstance that left a doubt.”

There was debate about the evidence of Mgr Portelli, the Master of Ceremonies at the cathedral at the time. Mgr Portelli gave evidence that he was always at the Archbishop’s side, and that he accompanied him after Mass outside the cathedral to meet and greet the congregation.

Ms Judd, however, said: “Portelli essentially does not have a recollection about those two days.”

Mr Justice Nettle shot back: “Well, he said he was with Pell on both the occasions, 15 December and 22 December [1996]?”

Although the DPP attempted to discredit Mgr Portelli’s evidence by pointing to occasions when he said he could not remember details of what had happened on a particular day 20 years before, it was clear that he firmly believed that the allegations against Cardinal Pell were both unbelievable and impossible.

The DPP conceded that, if the High Court formed the conclusion that the complainant’s evidence was unreliable in relation to the first offence, it would undermine his credibility with regard to the second.

She said: “But the difficulty is, it depends on the path that the Court takes, I suppose, but if you decide, for example, that the timing is such that it just could not have happened you are rejecting the complainant’s evidence that it did happen. That is the reasoning. It depends on – it just might depend on the reasoning process, but I imagine we would have some difficulties.”

It was clear that the DPP was completely out of her depth, and the judges were not satisfied by her answers.

In a short subsequent address by Cardinal Pell’s barrister, he described the Crown’s case as an “improvisation”, including putting forward claims for which there was no evidence, “misreading of the evidence”, and “an improvised and rickety construction of a Crown case to make something fit that will not fit.” These statements were not challenged by any of the High Court justices.

The Chief Justice invited the applicant to put in a short submission on what should be done in relation to the credibility of the second incident, if the court did not accept that the first had occurred. She also invited the Director of Public Prosecutions to respond.

The High Court’s judgement will be handed down at a later date, after the judges have considered their verdicts. It will, as was the appeal in the Victorian Supreme Court, be decided by majority decision.