The fundamental George Pell question is whether he is the victim of one of the gravest injustices in Australian legal history or just a jailhouse pedophile with some rich contacts.
The High Court will resolve this — hopefully emphatically — when it delivers its judgment shortly after 10am on Tuesday in Brisbane.
Pell, 78, was at the height of his powers as one of the world’s most influential Catholics when he was questioned, arrested and convicted in 2018 of five counts of sexual assault against young boys in Melbourne’s St Patrick’s Cathedral, dating back to 1996 and 1997.
As the second County Court jury was directed, this case was not meant to be about Pell the man, or about his Catholic faith. It was meant to be about whether he did, in fact, beyond reasonable doubt, strike in the priests’ sacristy against the surviving choirboy and another boy.
Pell was convicted in 2018 by a jury on the evidence of the surviving choirboy.
The second child had denied ever being abused, before dying several years ago of a heroin overdose. No one else witnessed the crimes.
The St Patrick’s Cathedral case was considered by some of Pell’s supporters to be among the weakest of the many charges that had been laid against the former No 3 at the Vatican, and it stunned the legal and Catholic establishment when he was convicted. There has always been a significant caveat to any analysis of the crimes. It comes in the form of the prosecution’s key witness — a now middle-aged man who, in 2015, told police that Pell had sexually assaulted him and his then 13-year-old choirboy friend in the priests’ sacristy.
This was after Victoria Police had taken the extraordinary step of in effect advertising for sexual abuse victims of Pell in Operation Tethering, which was set up in 2013 to examine whether he had abused children.
‘Compelling witness’
Throughout this case, and notwithstanding some significant contradictions, courts have been told that the complainant was a “compelling witness”.
This has been corroborated independently by The Australian but with some key qualifications that will be discussed later.
There remains significant doubt about when the offending in the sacristy could have occurred after solemn mass.
George Pell arrives for the Opening Mass of Welcome of World Youth Day Sydney at Barangaroo in 2008.
Chief Justice Anne Ferguson in the Victorian Court of Appeal said of the former choirboy: “The complainant was a compelling witness, was clearly not a liar, was not a fantasist and was a witness of truth.”
Ferguson’s effusive backing of the complainant last year is arguably at the heart of the High Court deliberations and today’s judgment, which will decide whether the Victorian Court of Appeal erred when it found, by a majority of two to one last year, that the jury was within its rights to convict Pell of the crimes, including forced oral sex.
These were horrible crimes.
As solid as the complainant may have been in court — depending on your perspective — the prosecution has always been fighting the obvious question.
How could Pell have possibly committed these crimes in the allotted time of five or six minutes after solemn mass, in a cathedral still heaving with hundreds of people and the sacristy normally a whirlwind of activity?
The complainant’s position may not have been bolstered by the attempts by the Victorian Director of Public Prosecutions, Kerri Judd QC, to alter the timeframe for when these crimes occurred.
Even the most basic understanding of church processes and witnessing of solemn mass makes the allegations seem improbable, which is a key test for any jury.
Confronted with the allegations, Pell described them as “deranged falsehoods”.
Robert Richter QC, arguably the nation’s finest criminal barrister, acted for Pell, and in the retrial he used a PowerPoint presentation during his closing address that read: “Only a madman would attempt to rape two boys in the priests’ sacristy immediately after Sunday solemn mass.”
Hope for Pell
Andrew Dyer, a senior lecturer at the University of Sydney who wrote a recent paper on the case, left the High Court on March 12 feeling like many other legal observers when he walked toward Canberra’s King Edward Terrace.
“It just confirmed my view when I observed the proceedings in person that there’s a lot there on the record to give (Pell) hope,’’ Dyer said.
“And I think he should just be cautiously optimistic about the High Court entering a verdict of acquittal and … that he can be released into the community.’’
Dyer is like every sensible observer of this case. Assumptions cannot be made.
University of Melbourne law professor Jeremy Gans, like Dyer, attended the hearings in Canberra and has read the transcript.
Would he be surprised if Pell were acquitted now by the High Court? “No. I wouldn’t be surprised,” he said. “I came out of the hearing thinking acquittal seemed like the most likely option.”
The views of Dyer and Gans are not isolated.
In fact, in many discussions with members of the legal fraternity about the strength of the cathedral allegations, it is hard to find serious, independent people, who believe he should have been convicted beyond a reasonable doubt by the jury.
Central to the High Court’s deliberations is whether belief in the complainant could be used as a basis for eliminating doubt raised by other witnesses, several of whom are credible people.
They include Monsignor Charles Portelli, who was Pell’s right-hand man when the cardinal (which he still is) was archbishop of Melbourne.
The church’s sacristan separately gave evidence that the sacristy was overrun with activity after mass, when the altar was cleared.
A supporter of the church is seen with his roseberry beads ahead of the George Pell appeal hearing at the Supreme Court of Victoria in June 2019 in Melbourne.
Tears in court
However, the complainant also had accurately explained the priests’ sacristy where the assaults occurred and the layout and the furnishing of the alcove.
While an archbishop traditionally wears heavy clothing while presiding over mass, the jury found that Pell still could have committed the offences, regardless of the weight and clumsiness of the attire.
Arguably Pell’s biggest challenge is the fact the second jury found against him, having heard at length the complainant’s evidence via a video recording.
It was recorded and played because the first jury failed to deliver a verdict.
There were tears shed in the County Court when Pell was eventually convicted, stunning his team but no doubt shocking Pell the most of all.
The prosecution’s submissions to the High Court argued Pell’s legal team overlooked the quality of the evidence given by the complainant, known as A, having correctly identified the location of the first offending and the layout of the sacristy.
But Justice Mark Weinberg, the former Commonwealth Director of Public Prosecutions and dissenting Court of Appeal voice, was not greatly impressed with aspects of A’s evidence and raised the spectre of Pell as an innocent man serving time behind bars for something he didn’t do.
“These convictions were based upon the jury’s assessment of the complainant as a witness and nothing more,” he wrote.
Narrow window
Timing is everything in life, just as it is in detective work.
The complainant’s case pivoted on the five-to-six minute window of opportunity for Pell to have offended after mass. It’s the time the complainant claimed it took for Pell to carry out these disgusting acts.
The Crown’s original thesis was that there was no established practice or protocol for Pell to remain on the cathedral steps for 10 to 20 minutes after mass in mid-to-late December 1996, as the defence has claimed.
The abuse definitely could not have occurred if Pell had been on the steps for 10 minutes or more.
For the offending to have occurred, Pell would have needed to have left the front steps unaccompanied by Portelli soon after mass ended and sprinted back to the sacristy.
This is because the five-to-six minute clock for when the abuse was meant to have occurred was already ticking as soon as the procession started leaving the cathedral.
Pell would have had to proceed from the altar to the church’s steps outside and quickly journey back to the sacristy to molest the boys.
It is the defence’s case that he didn’t have time because it would have taken the five or six minutes just to walk in the procession, reach the cathedral steps and walk back to the cathedral.
This is also assuming that Pell didn’t linger for 10 to 20 minutes on the church steps, as was his habit.
George Pell leaves Melbourne Magistrates' Court in May 2018.
Clock is ticking
So where does all this leave the Crown?
Judd stunned the Pell team last month when she abandoned the prosecution’s position over the amount of time that private prayer was held after solemn mass.
Private prayer starts virtually straight after mass ends.
Judd said last month the five-to-six minute timeframe, which the prosecution claimed gave the opportunity to offend, actually may have been longer, depending on what unfolded in the cathedral on the day.
“They are approximate times. It was not a precise five or six minutes,” Judd claimed.
Judd also conceded that evidence of Pell’s right-hand man, Portelli, when viewed on its own, could create enough doubt to prevent Pell’s convictions, although she urged for it to be seen in the context of all the evidence.
Based on what was on display in the High Court, there will be no great surprises within legal circles if the cardinal is freed.
This doesn’t mean that Australians would suddenly have to embrace Pell.
But it would mean that a terrible legal wrong had been righted.
Conversely, will the power of the complainant’s evidence, which swayed a jury and the Court of Appeal, prevail once again?
The clock is ticking.
Associate Editor
Melbourne
