Two Federal High Court Justices, Michelle Gordon and James Edelman, Wednesday, gave Cardinal George Pell another chance to appeal his conviction for abusing two choirboys at St Patrick’s Cathedral, Melbourne.
Of the 22 applications listed on November 13 to appear before the High Court, Pell’s is the only one to be granted.
The two High Court Justices, have not given Pell leave to appeal against his conviction, rather they referred his case to the full bench of the Court.
Pell’s lawyers will now need to argue why his conviction should be overturned and the defence – why it should be upheld.
The full bench of High Court judges can either grant or reject Pell’s leave to appeal, reports Tesa Akerman in The Australian.
“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”, reports Akerman.
While counsel for both parties will be informed where to focus their legal comments, the judge’s reasons for granting leave to appeal will not be publicly announced.
Monumental tests for Church and legal system
In describing the High Court’s decision as “extraordinary”, Associate Editor of The Australian, John Ferguson says Pell’s convictions are not only a monumental test of the Catholic Church but an equally monumental test of the Australian legal system.
Calling the High Court decision “extraordinary but sensible” he says there have always been two sides to this story, yet so compelling, the accusations have survived the test of three courts, John Ferguson continues.
Pell’s lawyers argued that “the fallen cardinal” was asked to prove the impossible by two appeal court judges.
In doing so the Court of Appeal mistakenly reversed the onus of proof, forcing him to prove it was impossible to sexually assault the two choirboys.
In their application, Pell’s barristers Bret Walker SC and Ruth Shann said the two judges in Victoria’s Court of Appeal who upheld Pell’s convictions “erred by finding their belief in the complainant required (Pell) to establish the offending was impossible in order to raise and leave a doubt”.
Walker and Shann further argue there was reasonable doubt about the existence of an opportunity for the attack to have occurred.
Chief judge Anne Ferguson and the president of the court Chris Maxwell found the surviving choirboy was a truthful witness and the prior conviction should stand.
However, Judge Mark Weinberg found the complainant embellished his account at times and expressed surprise that testimony from one accuser outweighed 20 witnesses produced to testify against his narrative.
“Even the ‘reasonable possibility’ that what the witnesses who testified to these matters may have been true must inevitably have led to an acquittal,” Weinberg wrote, concluding that Pell had, in effect, been improperly asked to establish the “impossibility” of his guilt and not merely reasonable doubt.
Weinberg would have acquitted Pell and it is said legal insiders have described the Weinberg judgment as an effective letter to the High Court to seriously examine the Pell convictions.
While it has always been possible Pell offended, and the decision of three courts tends to confirm this, Ferguson asks whether it was beyond reasonable doubt that Pell assaulted the boys in those circumstances?
Victim’s father comments
The Father of Pell’s victim is “gutted” by the decision.
“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,” said Lisa Flynn of Shine Lawyers said.
Pell’s spokesperson – no comment
In a statement, a spokesperson for Pell said that following the High Court’s decision to grant leave to appeal because the matter is now still before the court we are unable to comment.
Legal reaction
Jeremy Gans, Professor in Melbourne Law School, University of Melbourne, says 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.’’
Commenting the High Court heard a very limited number of cases, former prosecutor Nick Papas QC believes 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.
Papas said the case might well highlight important legal principles to be tried; significant for other sexual assault cases.
However, he warned against predicting the outcome of the appeal based on ‘simply’ granting leave.
“It doesn’t mean anything; it means there’s an interesting legal point.”
“It’s very interesting.”
“It shows there’s a real point to be tried,” he said.
Deakin Law School associate professor Theo Alexander expressed surprise at 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.”
“There’s no overarching High Court test for appeals,” he said.
Church leaders’ look for clarity
Bishop Mark Coleridge, president of the Australian Catholic Bishops Conference, hopes 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 judgement will bring clarity and a resolution for all.’’
Sydney archbishop, Anthony Fisher welcomes 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 amongst 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”.
Vatican respects justice system
On Wednesday morning, the Vatican also issued a statement “reiterating its trust in the Australian justice system.”
“The Holy See acknowledges the decision of Australia’s High Court to accept Card. George Pell’s request of appeal, aware that the Cardinal has always maintained his innocence,” the statement said.
“At this time, the Holy See reaffirms once again its closeness to those who have suffered because of sexual abuse on the part of members of the clergy.”
Friends of Pell
Friends of Pell have reacted cautiously to the High Court’s decision.
“There is a deep sense of caution because of the way the case had unfolded, since he was charged on June 29, 2017”, one close friend told The Australian.
Cardinal Pell
Pell was not in court to hear the decision.
Pell’s lawyers met with him today at the Melbourne Assessment Prison, where for his own safety he is in solitary confinement.
He is said to be buoyed by the High Court’s decision.
While Pell is entitled to apply for bail and is said to be considering his options.
The court has not set a date to hear the case, but reports say it is unlikely to happen before March 2020.