George Pell’s legal team releases response to prosecutor

The Cardinal’s legal team members release response as they seek leave to appeal his conviction.

Cardinal George Pell, who is seeking leave to Appeal his conviction to the High Court. Picture: AP

George Pell's legal team argue Victoria's top prosecutor has adopted the "same piecemeal, and erroneous" approach as the Court of Appeal in her response to his High Court appeal bid.

Pell's barrister Bret Walker SC and Ruth Shann appealed Pell's conviction to the Court of Appeal and were defeated in a two-one decision with Justice Mark Weinberg dissenting.

They are now seeking leave to appeal the disgraced cardinal's conviction for child sex offences to the High Court claiming the lower court reversed the onus of proof and forced the defence to prove the offending impossible.

Director of Public Prosecutions Kerri Judd QC filed her reply to Pell's special leave application last week claiming there was no error by the majority of the court.

Pell's team in their response released on Tuesday claim there are signs the prosecution considered the Crown's burden was "merely to establish that what the complainant said was not impossible".

They further claim Pell's “alibi'’ by master of ceremonies Monsignor Charles Portelli was "not, on proper application of the law, anywhere near eliminated".

Pell's team drew attention to the "proper judicial method" required in circumstances where the appellate court believes the complainant's account.

"The respondent does not address the question whether belief in a complainant can coexist with reasonable doubt due to the burden and standard of proof," they filed in response.

Pell was found guilty by a jury in December of one count of sexual penetration of a child under 16 and four counts of indecent act with a child.

The offending against two teenage choirboys took place at St Patrick's Cathedral after Sunday Solemn Mass in Melbourne, in 1996, while Pell was archbishop.

One of the former choirboys gave evidence at Pell's trial, the other died in 2014 from a drug overdose.

The court heard the deceased boy had denied being abused before he died.

Pell's legal team in their response argue it was the prosecution's duty to disprove the denial by eliminating "by evidence, not speculation" any reasonable chance it was true.

"It was never for the applicant to prove the denial was correct," they said.

The Court of Appeal heard argument about whether Pell would commit such a "brazen" offence but Ms Judd said the high risk of discovery made the offending "not implausible".

In response Pell's lawyers said Ms Judd didn't refer to the majority's conclusion that it was 'highly improbable'.

"The respondent instead adopts the same piecemeal, and erroneous, approach used repeatedly by the majority where a single issue is considered by asking whether it obliged the jury to have a reasonable doubt," they said.

"It is the combined effect of all of the matters found by the majority which, the applicant submits, constituted doubt raised and left, notwithstanding the clearly favourable view the majority took of the complainant's believability."

Pell's legal team further claim the timeline of a space of five or six minutes for the offending to occur was "impossible" as the boys wouldn't have been in the priests' sacristy.

Pell is serving a minimum of three years and eight months jail with a head sentence of six years.