George Pell may seek bail ahead of High Court hearing

George Pell’s lifeline to appeal may see him seek bail while he awaits his day in the High Court.

• What the court’s decision means
• High Court to hear appeal arguments
• Victim’s father ‘gutted’
• Pell meeting lawyers

Hello and welcome to The Australian’s live coverage as the High Court grants George Pell another lifeline with his appeal arguments against his child sex conviction to be heard by a full bench.

Pell was convicted in December last year on one charge of sexual penetration with a child under 16 and four counts of indecent act with, or in the presence of, a child under 16, relating to two separate incidents at the cathedral in 1996 and 1997.

Read our full wrap of today’s events here.

READ MORE: John Ferguson writes: Decision extraordinary but sensible | Explainer: What today’s ruling means for Pell | Prosecutors respond to appeal bid| System of justice on trial | ‘Onus of proof reversed’ | Vatican must act decisively | The new barbie stopper | Pope faces ‘captain’s call’ | Anti-Pell pile-one has its day | Brilliant minds couldn’t agree

John Ferguson 4.50pm: Pell considers applying for bail

George Pell will consider whether to apply for bail after the High Court today agreed to examine his child sex offence convictions.

Pell today met with his lawyers in the Melbourne Assessment Prison, buoyed by the High Court’s decision to next year examine his case.

Two judges today referred the case to the full bench for assessment. Any application for bail by Pell is by no means guaranteed to succeed.

Melbourne Law School professor Jeremy Gans said Pell could have applied for bail from the moment he was found guilty.

“You can seek bail at any time,” Professor Gans said. “And he thought about doing it in the Court of Appeal but didn’t.”

He said in most criminal cases before the High Court, the offenders were convicted of serious crimes and faced decades or life imprisonment and the prospect of waiting months for a decision was not a big deal.

Tessa Akerman 2.13pm: Choirboy ‘awaiting appeal outcome’

The former choirboy at the centre of the allegations against George Pell is respectful of the legal process that has seen the Cardinal go to the High Court, his lawyer says.

Dr Vivian Waller said her client, who gave evidence in the trial, has not been involved in the legal decisions although the case was about him and his experience.

“He hasn’t had that much of a role in the case from the outset,” she said.

Dr Waller said while the man reported the abuse to police and was a witness in the trial “all of the decisions really, are being made by the Office of Public Prosecutions”.

She said the appeals process was a very important part of the checks and balances of the criminal justice system and she and her client were deeply respectful of that process.

“We will await the outcome of the appeal,” Dr Waller said.

“He understands it has to happen, but his preference would be that it’s over.”

Tessa Akerman 1.25pm: ‘Decision reflects divided opinion’

The Archbishop of Sydney Anthony Fisher welcomed the High Court decision.

“The Cardinal has always maintained his innocence and continues to do so, and the divided judgment of the Court of Appeal reflects the divided opinion among jurors, legal commentators and within our community,” he said in a statement.

“Many questions remain, and it is appropriate that these will be examined by our highest court.

“For the sake of all involved in this case, I hope that the appeal will be heard as soon as possible”.

Archbishop of Sydney statement: Mobile users, click here to read the pdf

John Ferguson 1.15pm: ‘This will prolong difficult process’

Australian Catholic Bishops Conference president Mark Coleridge said he hoped the High Court could bring clarity to the subject.

“All Australians have the right to appeal a conviction to the High Court. Cardinal George Pell has exercised that right, and the High Court has determined that his conviction warrants its consideration,’’ he said.

“This will prolong what has been a lengthy and difficult process, but we can only hope that the appeal will be heard as soon as reasonably possible and that the High Court’s judgment will bring clarity and a resolution for all.’’

Tessa Akerman 12.40pm: No comment from Pell

A spokesperson for Pell has refused to comment on the High Court’s decision. In a statement, the spokesperson said: “Following the High Court’s decision to grant leave to appeal a spokesperson for Cardinal George Pell said: “This matter is now still before the court and so we are unable to comment.”

John Ferguson 11.35am: What the court’s decision means

Professor Jeremy Gans, of Melbourne University, said the High Court had responded in “basically the same’’ way as a grant of leave.

“Pell and the DPP will make their arguments before five or seven justices. A majority of the justices will decide which side wins,’’ he said on Twitter.

“A referral (instead of a grant) is rare. And the court never explains why it does this.’

“And it never seems to matter. But, for what it’s worth, it means that the court has not yet decided that the case is actually worth deciding, just that it’s worth hearing. Go figure.’’

Tessa Akerman 11.25am: High Court to hear appeal arguments

To explain the High Court’s decision more clearly: George Pell has been granted another lifeline in his bid to clear his name with the full bench of the High Court to hear his appeal arguments.

On Wednesday morning in Canberra, two High Court judges referred Pell’s application for leave to appeal and the substantive case to the Court’s full bench for a hearing.

“In this application, Justice Edelman and I order that the application for special leave to appeal to this Court from the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given and made on 21 August 2019 be referred to a Full Court of this Court for argument as on an appeal,” Justice Michelle Gordon said.

“The parties will be made aware of the directions necessary for undertaking that hearing.”

In that hearing the High Court can reject the Cardinal’s special leave to appeal application or grant him leave to appeal.

If the court grants Pell leave to appeal, it will then determine whether his appeal case stands up.

The court could grant leave to appeal but then reject that ground of appeal.

If the court hears the appeal and grants an appeal on one or more grounds, there are three potential outcomes.

The court can order a retrial.

The court can order an acquittal.

The court can send the case back to the Victorian Court of Appeal for consideration.

The High Court has announced it will grant Cardinal George Pell leave to appeal against his convictions for child sex offences. A representative of the deceased victim’s father is speaking in Brisbane. https://t.co/gT64LxYIhM #7NEWS pic.twitter.com/mjB2Ov57xR

— 7NEWS Australia (@7NewsAustralia) November 13, 2019

Sarah Elks 11.15am: Victim’s father ‘gutted’

The father of one of George Pell’s victims is “gutted” by the High Court decision and says the continuing legal process is “re-traumatising” for him.

Shine Lawyers lawyer Lisa Flynn, who is representing the man whose son died of a drug overdose in 2014 after being sexually abused by Pell as a 13-year-old, spoke to her client this morning, and said he was “extremely disappointed”.

“He was really hopeful that this would be over for him today, because as the process goes on and has gone on for some time, it is extremely re-traumatising for him,” Ms Flynn said.

“It remains very raw. He describes sleepless nights in the lead up to days like this and so he was certainly hopeful that leave to appeal would have been refused and it could have come to an end today.”

“It is a sad day for him and he describes feeling gutted that it’s not over. He’s trying to remain hopeful and focused on the fact that today isn’t the decision, George Pell hasn’t won his appeal … currently as it stands today, he is convicted. He’s a convicted pedophile of child sex abuse offences and he remains in jail, where he rightfully should be.”

The man recently wrote to the Vatican asking why Pell was still being supported by the Catholic Church, given he had been convicted and jailed.

“Our client remains really concerned that the Catholic Church hasn’t taken proper responsibility and proper actions following the conviction of George Pell for child sexual abuse offences,” Ms Flynn said.

She said the man had questions for the Catholic Church, including why they continued to support Pell despite being a convicted child sex offender, and why the church did not support abuse victims in that way.

“Our client does feel he is the voice for his son, and he wants to stop any other child suffering the pain and the destruction that his son suffered. So he does have questions for the Catholic Church.”

Ms Flynn said the man’s eyes sparkled when he described his son before the abuse, as a happy young child who enjoyed sport and loved spending time with his family.

After the abuse, he fell into hard drugs as a young teenager and spiralled before a drug overdose.

“He became a different kid to the kid he was before,” Ms Flynn said of the man’s recollections.

“(He feels) it’s a waste of a life.”

John Ferguson 11.00am: ‘We’re not getting carried away’

Friends of Pell have reacted cautiously to the High Court development.

One close friend told The Australian that it would provide the cardinal with optimism leading into Christmas and an opportunity to plan for the future.

However, there was a deep sense of caution because of the way the case had unfolded, since he was charged on June 29, 2017.

”There are a lot of people who believe in George but no-one is getting carried away with this,’’ a friend said.

”But it’s the best result we could have had in the circumstances.’’

Olivia Caisley 10.35am: Court transcript released

The High Court has released its transcript on the decision to hear George Pell’s bid.

Justice Michelle Gordon told the High Court on Wednesday: “In this application, Justice Edelman and I order that the application for special leave to appeal to this Court from the judgment and orders of the Court of Appeal of the Supreme Court of Victoria given and made on 21 August 2019 be referred to a Full Court of this Court for argument as on an appeal.” “The parties will be made aware of the directions necessary for undertaking that hearing.”

High Court decision: Mobile users, click here to read the transcript

Tessa Akerman 10.30am: Pell meeting lawyers

Pell is currently meeting with his lawyers at the Melbourne Assessment Prison.

A statement from his representatives is expected later today.

George Pell is incarcerated in the Melbourne Assessment Prison. Picture: Ian Currie

Barrister Paul Holdenson QC said he was confident leave would be granted today.

“I thought it was an absolute certainty,” he said.

Mr Holdenson said the appeal would be determined on a question of law with papers filed by the parties for the appeal setting the conduct of the proceedings.

Former prosecutor Nick Papas QC agreed he thought the documents filed in the special leave application made it “pretty much” the case that the High Court would grant leave.

“It had that feel to me that there was an important point to be tried,” he said.

However he warned against predicting the outcome of the appeal based on this decision.

“It doesn’t mean anything, it means there’s an interesting legal point,” he said.

Mr Paps said it was difficult to know when the hearing would be held and also whether it would be in Melbourne or Canberra.

“It’s very interesting. It shows there’s a real point to be tried,” he said.

He said the High Court heard a very limited number of cases which highlighted the important legal principles to be tried including the idea of a witness who presents well which he said may well be significant for other sexual assault cases.

Mr Papas said the claim by Pell’s legal team of a reversal of the onus of proof was also important.

Deakin Law School associate professor Theo Alexander said he was surprised by the High Court’s decision.

“But given who it is, I imagine they’re crossing the Ts and dotting the Is,” he said.

“If you didn’t have Justice Weinberg’s dissent, there would be nothing in it. But of course there’s dissent in other matters and they don’t grant leave.”

Dr Alexander said the High Court would have to look at the words and reasoning of the court below, the Victorian Court of Appeal, and decide whether the court erred based on the test for appeals in Victoria.

“There’s no overarching High Court test for appeals,” he said.

John Ferguson 10.20am: Richter buoyed by result

The decision will buoy Pell’s legal team, with Robert Richter QC, the finest criminal lawyer of his generation, convinced that the cardinal is innocent.

Robert Richter is convinced George Pell is innocent. Picture: David Geraghty.

The decision also will enable Rome to delay further any action to strip Pell of his priestly powers.

The government is unlikely to release the final report of the royal commission into child sex abuse until the High Court hears the case next year.

John Ferguson 10.10am: Now will Pell move prisons?

Pell is being held in the Melbourne Assessment Prison in the city, where he is in solitary confinement because of fears about his safety.

Today’s decision will raise further questions about how long Pell should be kept in solitary confinement in what is actually meant to be a short-term prison.

He spends 23 hours a day in solitary confinement because prison officials fear he will be killed if let out into the wider corrections system.

However, at 78, the MAP is one of the worst prisons in Australia, with little natural light and capacity for exercise.

Remy Varga 9.55am: Brilliant minds that couldn’t agree

Mark Weinberg, the veteran judge who said he would have acquitted George Pell on sex assault charges said at Pell’s appeal, he had doubts over Pell’s guilt. “Having had regard to the whole of the evidence led at trial, and having deliberated long and hard over this matter, I find myself in the position of having a genuine doubt as to the applicant’s guilt,” he said.

The other judges of Victoria’s Court of Appeal, Chief Justice Anne Ferguson and Christopher Maxwell, agreed to uphold Pell’s conviction. They said the abuse survivor, known as A, was a credible witness.

Click here to read the full article about why Pell’s first appeal was turned down.

Olivia Caisley 9.45am: Pell to wait months for appeal

Justice Michelle Gordon delivered the news at the High Court in Canberra on Wednesday after making the decision with fellow judge, Justice James Edelman.

A date for the appeal hearing is yet to be set but it will likely be early in 2020 by the full bench of seven judges.

An appeal hearing cannot happen before the judges return from their summer break in early February.

Pell’s lawyers argued in their 12-page application for a High Court appeal that changes in law over the years since the crimes were alleged have increased the difficulty in testing sexual assault allegations.

They say Pell should be acquitted of all charges for several reasons, including inconsistencies in the accuser’s version of events.

Prosecutors argued there is no basis for the appeal and that the Victorian courts made no errors.

In their written submission to the High Court, prosecutors wrote that Pell’s legal team was asking High Court judges to apply established principles to the facts of the case, which were already carefully and thoroughly explored by the state appeals court.

Pell was largely convicted on the testimony of one victim. The second victim died of an accidental heroin overdose in 2014 when he was 31 without complaining that he had been abused.

After Pell lost his first appeal, the surviving victim said, “I just hope that it’s all over now.”

AAP

Olivia Caisley 9.30am: High Court to hear Pell appeal arguments

The High Court has granted cardinal George Pell another chance to appeal his conviction for sexually abusing two teenage choirboys at St Patrick’s Cathedral while he was the serving archbishop.

Pell, who has been behind bars since being taken in custody in February, now has a fresh opportunity to try and overturn his conviction, although it will likely be several months before a full hearing.

Pell, 78, was convicted last year by a County Court jury of raping a 13-year-old choirboy and sexually assaulting another at St Patrick’s Cathedral in Melbourne in 1996, but he has always denied any wrongdoing.

Chief Judge Kidd sentenced Pell in March to a maximum of six years in prison, with a non-parole period of three years and eight months.

In August he lost his appeal against the conviction in the Victorian Court of Appeal in a 2-1 majority verdict.

Lawyers for Pell lodged an application for special leave to appeal with the High Court in September, arguing the cardinal was asked to prove the impossible by two of the Victorian appeal court judges.

In a 12-page application for special leave to the High Court, Pell’s lawyers argued Chief Justice Anne Ferguson and Court of Appeal president Chris Maxwell made two errors in dismissing the earlier appeal.

Bret Walker SC and Ruth Shann said a mistake occurred because Pell was required to prove the offending was impossible, rather than leaving that onus to prosecutors.

They also argued the judges erred in not finding the jury’s verdicts unreasonable, claiming there was reasonable doubt about whether opportunity existed for the crimes to have occurred.

Pell’s lawyers argued their client should be acquitted of all charges for a number of reasons including inconsistencies in the complainant’s version of events. But prosecutors said there was no basis for the appeal, and the Victorian courts did not make an error.

Now leave has been granted, the jailed cardinal’s lawyers will need to lodge a formal appeal.

More to come

The decision was announced at the High Court of Australia in Canberra. Picture: AAP.

6.30am: What exactly happens this morning?

Pell will not be in court to hear the High Court announce the decision of three judges who have already read written arguments submitted by both parties. Their reasons will not be publicly announced. If the High Court dismisses Pell’s appeal, his convictions will be upheld and Pell will serve a minimum of three years and eight months in jail with a full term of six years.

If the appeal is upheld, Pell’s High Court hearing would likely be in March or April next year, give or take a month.

The appeal would take place in front of five or seven High Court justices, with lawyers from each side speaking for about two hours each.

We’re at the High Court this morning to find out whether Cardinal George Pell will be granted leave to appeal his conviction for child sex offences. Full coverage on @SkyNewsAust this morning pic.twitter.com/16QeWxmMzR

— Annelise Nielsen (@annelisenews) November 12, 2019