Strong strategies to take to appeal for George Pell’s lawyers

If George Pell’s silence at trial put him at a disadvantage, that will not be the case this time.

Debate is likely to rage about what the jury might have made of Pell’s decision not to give evidence in his own defence.

The grounds for appeal in George Pell’s case indicate his legal team is planning to attack the credibility of the evidence that was arrayed against him.

By arguing the conviction was unreasonable, the legal team has opened the door to a debate about whether the jury’s decision can be supported by the evidence.

There are two other grounds for appeal, raising doubts about the way the jury was constituted and questioning if it was wrong to prevent the jury from seeing a graphic representation of the location of Pell and others when the offence is said to have taken place.

Those are important but relatively narrow points when compared with the first ground of appeal: was it reasonable for the members of the jury to convict Pell on the evidence before them?

This will require the Court of Appeal to consider all the evidence and come to its own view of whether it was open to the jury to be satisfied beyond reasonable doubt that Pell was guilty.

Officially, this does not mean the appeal judges will be taking the place of the jury.

But the High Court has almost neutered that principle by ruling that, in most cases, any doubt about a conviction that is experienced by appeal judges would be a doubt that should have been experienced by a jury.

One argument that is likely to feature on appeal is the evidence — or lack thereof — explaining how Pell was able to engage in a sexual assault while wearing what could be described as a heavy, double-layered seamless cassock held in place with a belt.

We might not have heard the last about the inconsistent evidence of the complainant on that point, which was highlighted yesterday in this newspaper by Jesuit lawyer Frank Brennan.

On that point, Pell’s lawyers are unlikely to overlook what the High Court said in 1994 when it struck down a jury’s guilty verdict as unreasonable in another sexual assault matter. In that case, known as M v R, the High Court determined that if the evidence contains discrepancies, displays inadequacies or otherwise lacks probative force an appeal court is bound to set aside a guilty verdict if it concludes there is a significant possibility an innocent person has been convicted.

Debate is likely to rage about what the jury might have made of Pell’s decision not to give evidence in his own defence. At law, they should not have drawn adverse inferences.

But juries consist of ordinary people. The argument now goes to judges, who are far from ordinary. If Pell’s silence at trial put him at a disadvantage, that will not be the case this time.