High Court clears way for a George Pell rethink

The High Court has left the way open for a ­complete reassessment of the evidence in Pell’s case.

George Pell at the County Court in Melbourne in February. Picture: AP

George Pell moved one step closer to overturning his convictions for child sex abuse on Wednesday when the High Court abandoned its normal practice and left the way open for a ­complete reassessment of the evidence in the case.

All seven judges will decide in March whether to hear the jailed cardinal’s argument that he is in prison only because two judges on Victoria’s Court of Appeal ­rejected his appeal after engaging in circular logic and making a ­series of legal errors.

The case is set to test the way Victoria’s criminal justice system conducted itself during a case that made headlines around the world.

READ MORE: High Court throws Pell appeal lifeline | Decision extraordinary, but it is sensible | Pell may seek bail ahead of appeal hearing

It is also likely to determine whether one of the nation’s leading authorities on criminal law, judge Mark Weinberg, was justified in writing a powerful dissent in favour of Pell that is at odds with the view of Chief Justice Anne Ferguson and Court of ­Appeal president Chris Maxwell.

Legal academic Mirko Bag­aric said the fact that the cardinal’s application for special leave to appeal had been referred to the full bench could indicate that the judges believed the case had some merit.

“This case will get special leave,” said Professor Bagaric of the Swinburne University of Technology.

He believed the March hearing would take the form of a full appeal that would incorporate the special leave application.

Jeremy Gans, who is a professor of law at Melbourne University, said this was one option but the court might also have other options in mind.

He said it was highly unusual to have the full High Court determine a special leave application and this could mean the court wanted all seven judges to be involved in what would inevitably be viewed as an adverse outcome for either the majority or the minority on the Victorian Court of Appeal.

Wednesday had been “a good day for Pell — but there are still bumps in the road”, Professor Gans said.

Pell, who was sentenced to six years in prison, was convicted by a jury of abusing two teenage choirboys in the sacristy in St Patrick’s Cathedral, Melbourne, in 1996 and 1997. The prosecution case had been based on the unsupported testimony of a complainant who had been described to the jury as credible and reliable.

Victorian law meant the jury could not be told that the complainant had been treated for psychological problems.

Section 32D of Victoria’s Evidence (Miscellaneous Provisions) Act also meant Pell’s legal team could not tell the jury the cardinal had been denied access to records of that treatment.

Pell’s special leave application argues that changes to state and territory laws over the past 20 years have made it more difficult to test allegations of sexual assault.

Professor Bagaric said the High Court could use the appeal as a ­vehicle to discuss whether “the pendulum” in sexual assault cases had moved too far in favour of complainants.

All of the evidence provided by the prosecution and Pell, including “alibi evidence”, will be reassessed by the High Court to determine whether the majority of the Court of Appeal was wrong in finding there was no reasonable doubt about his guilt.

In order to succeed, Pell does not need to prove his innocence or that it was impossible for the ­assaults to have taken place.

If he can persuade the High Court there was a reasonable doubt about the prosecution’s case, he has asked for his convictions to be quashed and replaced with acquittals.

This will require the court to reach its own conclusion about what Judge Weinberg had described as the “fluid” nature of the prosecution’s case when it came to the dates on which events were ­alleged to have taken place.

It will also require the court to assess the different versions of the complainant’s testimony about how the cardinal “moved his robes to the side” in order to expose his penis. According to Judge Weinberg, the garment was seamless.

He noted that the problem with the complainant’s testimony was “not the physical impossibility of exposing the penis, but with doing so in anything remotely like the manner that the complainant himself, at various times and in various ways, described”.

While looking for reasonable doubt, the court will also need to take stock of the fact that Pell’s defence, according to Judge Weinberg, “was largely based upon the unchallenged testimony of a significant number of witnesses, all of whom were of good character and reputable. It was not suggested that any of them had lied.”

It is also open to the High Court to send the case back for retrial.

Legal academic Augusto Zimmermann said the Pell conviction, based on one person’s testimony, had tested the credibility of the justice system and it was desirable for the full High Court to restore the standing of Australian justice.

Professor Bagaric said the hearing would let the High Court clarify what principles should apply when dealing with historical accusations of sexual abuse.