From Australia, Prosecution submissions filed in High Court appeal of Cardinal George Pell
George Pell team ignores evidence, says DPP
George Pell’s appeal to the High Court ignores, overstates and misstates evidence and ought to be rejected, the Victorian Director of Public Prosecutions argues in submissions to the court released on Friday.
A strong part of the cardinal’s application to appeal his conviction of sexually abusing two children related to the credibility of the sole surviving victim and inconsistencies between his testimony and that of other witnesses.
Pell appealed his conviction to the Victorian Court of Appeal, which held a two-day hearing in June last year and rejected his appeal in a majority 2-1 decision.
Director of Public Prosecutions Kerri Judd said Pell’s legal team had focused on the Court of Appeal majority’s “belief” in the victim.
“(Pell’s legal team) disregards an important aspect of the majority’s assessment of (the victim’s) credibility and reliability: that undisputed facts regarding the applicant’s use of the priests’ sacristy (at St Patrick’s Cathedral) and the layout of the priests’ sacristy provided independent support for (the victim’s) account,” Ms Judd said.
Pell was convicted in December 2018 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 St Patrick’s Cathedral in Melbourne in 1996 and 1997.
The first incident related to choristers J and R who had left the procession and made their way to the priests’ sacristy, where Pell caught them drinking sacramental wine. Pell sexually abused the boys after mass in the sacristy.
The second incident involved Pell squeezing J’s genitals in a corridor. Prosecutors relied solely on evidence from J in the trial. The second choirboy, R, died in 2014 of a drug overdose.
In her response to the High Court, Ms Judd said the majority “reviewed the whole of the evidence” and assessed the victim’s credibility and reliability in several contexts, including consistencies and inconsistencies between his account and other evidence, the defence contention that his story was inherently improbable and the defence contention that it was factually impossible for the offending to have occurred as alleged.
Ms Judd said Pell’s submission “ignores” and “glosses over evidence supportive” of the victim’s account such as his description of the priests’ sacristy where the abuse occurred.
She said the classification of evidence from church figures as “alibi evidence” also overstates their evidence.
Ms Judd said the direct evidence of master of ceremonies Charles Portelli about Pell’s location on the two occasions in question consisted of Mr Portelli “responding affirmatively to a series of leading questions”.
“He was unable to recall where he went immediately after each mass and had no independent recall of whether he and the applicant had any events after each mass,” she said.
Another point raised by Pell’s defence was the nature of the ceremonial robes he would have been wearing as archbishop when the assault occurred.
“No reference is made to the fact that … it was plainly possible for a person wearing the robes and assorted vestments to expose his penis,” Ms Judd said.
“The robes were an exhibit at the trial and were available to the jury in the jury room during their deliberation.”
Ms Judd said the dissenting Court of Appeal judge Mark Weinberg “did not sufficiently acknowledge the jury’s role as the primary tribunal of fact”.
“It is fundamental to our system of criminal justice that the jury is the constitutional tribunal for deciding issues of fact,” she said. “The role of the jury as representative of the community in a jury trial is of abiding importance … The jury also has epistemic advantages as the primary fact-finder.”
Ms Judd said juries had “worldly wisdom” that cannot be assumed to be shared by appellate judges and were best placed to decide matters of credibility and reliability. “In light of the above considerations, the setting aside of a jury’s verdict is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal,” she said.
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https://www.theaustralian.com.au/nation/george-pell-team-ignores-evidence-says-dpp/news-story/41d865be5a3fcd910ae0375083e43fd5
https://www.hcourt.gov.au/cases/case_m112-2019