How the DPP allowed a sliding door to close on the prosecution of Pell

George Pell’s legal team privately petitioned Victoria's Director of Public Prosecutions two years ago to abandon the criminal proceedings against the cardinal, citing much of the same evidence that convinced the High Court to quash his conviction.

Had the newly appointed DPP, Kerri Judd, QC, taken up this sliding doors moment, it would have exposed her office to public outcry but avoided the injustice of Cardinal Pell spending 13 months in jail for a wrongful conviction.

Cardinal George Pell arrives at Melbourne Magistrates Court in July 2017.Credit: Jason South

Instead, she took Cardinal Pell to trial and set Senior Crown Prosecutor Mark Gibson an invidious task of having to reconcile the account of the former archbishop’s sole accuser with the evidence of other witnesses that didn’t fit the case.

Sources with knowledge of the matter told The Age and The Sydney Morning Herald the confidential petition took the form of an application for discontinuance, an option not often pursued by defence lawyers due to the unlikelihood of success.

For the DPP to take a criminal matter to trial, it must be satisfied there is a reasonable prospect of conviction and a public interest in running the case.

Cardinal Pell’s legal team submitted to Ms Judd that the prosecution was doomed to fail and the problems in the evidence should not be obscured by the strong public interest in the case.

Victoria's Director of Public Prosecutions Kerri Judd.Credit: Justin McManus

These arguments, framed by Cardinal Pell’s counsel, Robert Richter, QC, and Ruth Shann, were accompanied by a folder of evidence including the witness statements and testimony of Monsignor Charles Portelli, the master of ceremonies at St Patrick’s Cathedral, sacristan Max Potter and other witnesses from the cathedral.

The application submitted that a second group of charges, relating to allegations against Cardinal Pell from the Ballarat swimming pool, should also be discontinued. The DPP dropped these charges after Cardinal Pell was convicted in the cathedral case, when the court refused the prosecution's request for tendency evidence.

The Age and the Herald asked Ms Judd why she refused to discontinue the charges once evidence emerged raising doubt about whether the cathedral offences could have taken place as described.

A spokesman for Ms Judd declined to comment.

The application was made shortly after Cardinal Pell’s committal hearing, when the significance of the evidence of Monsignor Portelli, Mr Potter and other witnesses who testified about the regular practices at the cathedral became clear under cross-examination.

Monsignor Portelli and Mr Potter were the first two people Cardinal Pell urged Victoria Police to talk to after they informed him he was accused of sexually abusing two 13-year-old choirboys in the priests’ sacristy of St Patrick’s Cathedral immediately after Sunday Mass in 1996, while he was archbishop of Melbourne.

"This is in the sacristy at the cathedral after Sunday Mass?" an incredulous Cardinal Pell asked Detective Sergeant Chris Reed.

"Yes," the detective said.

Cardinal Pell: "Well, need I say any more? What a load of garbage and falsehood.

"My master of ceremonies will be able to say that he was always with me after the ceremonies. The sacristan was around. The altar servers were around. People were coming and going."

Monsignor Portelli testified at Cardinal Pell’s trial that, in his role as master of ceremonies, he was required to always accompany the archbishop whenever he was robed.

He also testified to Pell’s regular practice of greeting parishioners on the steps of the cathedral immediately after Mass – the time when Pell was alleged to have assaulted the two choirboys.

Ms Judd, in her submissions to the High Court, conceded that if Monsignor Portelli’s evidence was accepted, it would raise a reasonable doubt about Cardinal Pell’s guilt. "Portelli is the key," she said.

In Tuesday’s judgment, the High Court described Monsignor Portelli’s testimony as "unchallenged" and accepted his evidence and that of other witnesses who placed Cardinal Pell on the steps of the cathedral immediately after Mass and in Monsignor Portelli’s company when he later returned to the sacristy.

A County Court jury unanimously convicted Cardinal Pell of orally raping his accuser and four other offences of indecent acts against a child. The full bench of the High Court found that on the evidence, this verdict was not open to the jury.

If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or beyondblue 1300 224 636.