George Pell appeal: Prosecution shifts ground on vital minutes; Pell lawyers say appeals court adopted ‘piecemeal approach’

The High Court will weigh whether to acquit George Pell of child sex abuse after the prosecution shifted position on key evidence.

George Pell outside the Supreme Court of Victoria in Melbourne last year. Picture: AFP

• Prosecutor shifts ground on key minutes
• Portelli evidence ‘potentially problematic: DPP
• Judd defends video viewing
• Court adopted piecemeal approach’

Welcome to live coverage of the High Court hearing which will determine if George Pell is given leave to appeal his conviction on child sex abuse charges.

5.30pm: High Court delays final verdict

The High Court will weigh whether to acquit George Pell of child sex abuse after the prosecution dramatically shifted its position on key evidence on Thursday.

Bret Walker SC for Pell on Wednesday submitted that Pell, 78, be acquitted of molesting two choirboys in 1996 and 1997.

In a dramatic day, Victorian Director of Public Prosecutions Kerry Judd QC shifted position on the timeframe for when Pell could have molested the boys in St Patrick’s Cathedral in Melbourne.

Instead of arguing that there was a five to six minute window of opportunity for offending, Ms Judd said it could not be stated for certain how long the private prayer time lasted that, according to the prosecution case, ultimately created the chance for the cardinal to strike.

Melbourne University law professor Jeremy Gans said the second day in the High Court had been a “good day for Pell’’ and there was a chance the Pell may be acquitted.

It is also possible the case will be referred back to the Victorian Court of Appeal.

The High Court rose late yesterday to consider the appeal, with special leave yet to be formally granted.

It appears to be a mere formality that the appeal will be formally heard.

Ms Judd on Thursday abandoned the prosecution’s previous position over the amount of time that private prayer was held after Solemn Mass.

She said the five to six minutes of private prayer time may now have been longer, depending on what unfolded in the cathedral on the day.

The private prayer had occurred after the procession started to leave the church, the High Court was told.

The altar servers did not start clearing the altar for several minutes after mass ended to give parishioners time for private prayer to be conducted.

On the amount of time allowed for private prayer, Ms Judd said: “They are approximate times. It was not a precise five or six minutes.’’

John Ferguson 3.50pm: Chief prosecutor shifts ground on key minutes

Victoria’s chief prosecutor has dramatically shifted ground on the key minutes surrounding when George Pell is accused of sexually assaulting two choir boys.

Kerri Judd QC has abandoned the prosecution’s previous position over the amount of time that private prayer was held after Solemn Mass.

She said the five to six minutes of private prayer time may now have been longer, depending on what unfolded in the cathedral on the day.

The private prayer had occurred after the procession started to leave the church, the High Court was told.

The altar servers did not start clearing the altar for several minutes after mass ended to give parishioners time for private prayer to be conducted.

On the amount of time allowed for private prayer, Ms Judd said: ``They are approximate times. It was not a precise five or six minutes.’’

Ms Judd was asked repeatedly by the bench the exact circumstances of what unfolded after Solemn Mass ended.

Altar servers play a key role at the cathedral clearing the altar after mass.

Pell is accused of assaulting the boys over a period of five to six minutes after mass.

But the defence has claimed it was not possible for him to have offended because he didn’t have the time to return to the sacristy and assault the boys before the altar servers cleared the altar and returned to the sacristy.

It was not clear from Ms Judd exactly when Pell, 78, was supposed to have offended, although it previously has been stated that the cardinal assaulted the boys after the procession had ended and he returned back to change in the priest’s sacristy.

Ms Judd also conceded that evidence of George Pell’s right hand man viewed on its own could create enough doubt to prevent the cardinal’s convictions.

But Ms Judd has urged the High Court to view the case’s evidence in its entirety when considering the plausibility of Pell’s offending.

Ms Judd today outlined a series of reasons why she believed that the court should not place excessive weight on Monsignor Charles Portelli’s evidence.

It was Monsignor Portelli who was Pell’s right hand man in 1996 and 1997 when Pell was found to have sexually assaulted two 13-year-old choirboys.

Monsignor Portelli gave evidence that it was his practice to be by Pell’s side in the cathedral whenever Pell was robed.

His evidence is crucial to determining whether Pell could have offended against the boys, one of who is now dead.

“Yes, I do accept that when you look at Monsignor Portelli on his own we may not be able to negate this to the standard we need to,” Ms Judd said.

“But when you look at the whole of the evidence it does.”

Much of today’s hearing concentrated on Monsignor Portelli’s evidence because he holds a key to whether or not Pell had time to offend.

Portelli said that is was Pell’s habit to spend 10 to 20 minutes on the steps of St Patrick’s Cathedral after mass.

It is alleged there were only two dates upon which the offending could have occurred in December 2016.

Ms Judd told the court that there was other evidence to suggest that Pell may have spent as little as two minutes on the steps on some days, helping create an opportunity for

the offending.

She drew on the evidence of other Cathedral helpers that there was not necessarily a fixed way of Pell leaving mass in the procession and returning back to the priest’s sacristy to change.

Ms Judd said there were doubts about which way Pell would have returned to the sacristy.

“We don’t know which way he went back in, we don’t know which way he went in,” she said.

Ms Judd conceded that it was not possible to say definitively when the offending occurred.

She said it had started after the altar boys had bowed to the crucifix.

“You can’t be precise about it,” she said.

Ms Judd added: “The six minutes is not something you can be definite about.”

Before the lunch break chief justice Susan Kiefel slapped down Ms Judd.

Ms Judd, while looking for evidence while addressing the High Court, complained about the volume of evidence.

High Court chief justice Susan Kiefel said the court was grappling with the same issue. Ms Kiefel said: ``But you’re supposed to be taking us through efficiently.’’

Ms Judd has been questioned heavily be several members of the full bench.

John Ferguson 12.23pm: Chief justice slaps down Judd

The chief justice has slapped down Victorian DPP Kerri Judd.

Judd, while looking for transcript while addressing the High Court, complained about the volume of evidence.

High Court chief justice Susan Kiefel said the court was grappling with the same issue.

Kiefel said: ``But you’re supposed to be taking us through efficiently.’’

Judd has been questioned heavily be several members of the full bench.

John Ferguson 12.23pm: Portelli step evidence ‘potentially problematic’: DPP

Victorian DPP Kerri Judd has conceded that the evidence of George Pell’s former right hand man when seen on its own was potentially problematic for the prosecution.

But she has urged the court to view the whole of the evidence and consider some of the inconsistencies in Monsignor Charles Portelli’s evidence.

This included the time that Pell was allegedly on the steps.

She said the evidence ranged from 10 to 20 minutes, down to a couple of minutes.

Judd has spoken at length — and was questioned at length — about Portelli.

Portelli was Pell’s right hand man in the cathedral who was by the cardinal’s side for virtually the entire time after mass while Pell was robed.

John Ferguson 11am: Appeal judges ‘didn’t fixate’ on complainant’s video

The prosecution in the George Pell sex abuse case is today fighting to convince the High Court that the Court of Appeal should have watched video of the trial.

Victorian Director of Public Prosecutions Kerri Judd QC has been peppered with questions from the bench about whether the video of key evidence should have been watched.

The concerns essentially relate to what impressions the Court of Appeal may have taken from watching the video evidence of the complainant.

The complainant was accused by the Pell defence team of concocting evidence and of being unreliable.

Ms Judd said this was a reason why the Court of Appeal could benefit from watching the video.

There were two County Court trials; the first was hung, the second convicted Pell on five charges but only after watching the complainant’s video evidence from the first trial.

“Demeanour is not something the Court of Appeal are prevented from looking at and considering,” she said.

Ms Judd also said: “They were very conscious of not placing too much weight on demeanour.”

The High Court appears concerned about whether or not intermediate courts of appeal should rely on video evidence and how that might influence their decision making.

It is normal practice for appeal courts to focus on the transcript, the court has been told.

Several of the High Court judges have questioned Ms Judd on the video issue.

The video issue was not part of the Pell team’s appeal points. The High Court had independently written to both parties about the use of the video in the Pell matter.

The Court of Appeal judges viewed video of the complainant as well as video of other complainants.

Ms Judd said the Court of Appeal judges did not fixate on the video.

“They didn’t watch it over and over,” she said.

Yesterday’s performance by Bret Walker SC focused heavily on the plausibility of the convictions.

The County Court jury had determined that Pell did have the opportunity to abuse the choirboys in a window of five to six minutes.

But Walker argued that if Pell did spend at least 10 minutes on the front steps then it couldn’t have happened.

The Crown has accepted that if Pell had been on the steps for at least 10 minutes then the offending was impossible.

The High Court is yet to grant special leave to accept his appeal.

John Ferguson 10.17am: Judd defends video viewing

Kerri Judd QC has started by defending the Court of Appeal’s decision to view the court video. She is being questioned at length from the bench about whether the video actually became part of the evidence.

“It became part of the record in the sense of all the other evidence,” she said.

Olivia Caisley 10.15am: Critics gather outside court

It’s not quite the same crowd as yesterday but a group of George Pell’s critics and child abuse victims’ advocates have gathered outside the High Court to protest his application to appeal his sex abuse convictions.

On Wednesday Pell’s supporters, who sang hymns for the Cardinal’s freedom, clashed with his critics that held signs reading “burn in hell Pell”.

Another supporter held a sign that read “a wrongful conviction is scarier than COVID-19.”

Scenes outside court as day two of the High Court hearing commences. Picture: Supplied

John Ferguson 9.55am: Rare opportunity for prosecution

In many ways, today’s appearance in the High Court by the Victorian Director of Public Prosecutions will be intriguing.

Kerri Judd QC will be given a rare opportunity to present the prosecution’s version of events regarding the George Pell prosecutions.

Those backing the convictions believe that Pell supporters have flooded the space with their outrage over the convictions.

And at the same time they have had limited opportunity to put their case across.

It is obviously not clear how the High Court will approach Judd.

Or how Judd will approach the High Court.

There is certainly a growing perception in legal circles that there is doubt about whether Pell should be convicted.

Yesterday’s performance by Bret Walker SC focused heavily on the plausibility of the convictions.

It will be interesting to see whether any members of the bench question Judd in any detail on exactly how Pell was able to sexually abuse the two choirboys, then 13, in a cathedral that was normally flooded with hundreds of people.

Then there is the not small issue of timing.

The County Court jury had determined that Pell did have the opportunity to abuse the choirboys in a window of five to six minutes.

But Walker argued that if Pell did spend at least 10 minutes on the front steps then it couldn’t have happened.

The Crown has accepted that if Pell had been on the steps for at least 10 minutes then the offending was impossible.

The High Court is yet to grant special leave to accept his appeal.

John Ferguson 8.45am: Court of Appeal adopted ‘piecemeal approach’

George Pell’s legal team yesterday told the High Court that the majority of the Court of Appeal adopted a “piecemeal approach” to reach their conclusion to uphold Pell’s conviction.

Pell’s silk, Bret Walker SC, said that being impressed by a compelling complainant did not eliminate the possibility of reasonable doubt as he outlined what he claimed was a series of problems with the Victorian Court of Appeal’s majority judgment.

“In what might fairly be called a piecemeal or one-by-one approach, their honours dealt with these circumstances, concluding in each case that that which had been described by the defence as impossible was not impossible,’’ Mr Walker said.

He argued this was the “wrong question”, which sent the inquiry down a “terribly damaging wrong route’’.

Child sex abuse victim Michael Advocate holds up placards outside the High Court yesterday. Picture: AAP

The High Court has not yet formally granted Pell’s appli­cation for appeal but will hear today from Victorian Director of Public Prosecutions Kerri Judd QC before the court decides whether to grant or refuse Pell’s application for special leave.

The High Court can then eith­er allow or dismiss the appeal.

George Pell’s habit of talking to parishioners on the front steps of St Patrick’s Cathedral after solemn mass and the alleged improbability of his sexual assault of two boys were the defining factors­ in his High Court appeal.

George Pell supporters sing prayers outside the High Court yesterday. Picture: AAP

Mr Walker said the cardinal would spend between 10 and 20 minutes on the steps greeting parishioners after mass — effect­ively providing him with an alibi.

Mr Walker said if the High Court were to accept that this occurred­ in December 1996, then there would have been insufficient time for Pell, 78, to peel away from the congregation and sexually abuse two choirboys.