George Pell: high court reserves decision on granting special leave for an appeal
The full bench of the high court in Canberra has reserved its decision about whether to grant Cardinal George Pell special leave to appeal his case for a final time, after listening to two days of arguments from his barrister and the prosecution.
The seven judges asked for further written submissions from the legal parties and have given them two business days to deliver. The bench will then consider those materials before returning to deliver their decision at a date yet to be determined. Once they return to court, if the court does grant special leave, the bench may then immediately decide whether to accept the arguments from Pell’s team and acquit him, or they could dismiss the appeal in which case the verdict would hold.
Pell, Australia’s most senior Catholic and the former financial controller of the Vatican, was in December 2018 convicted on five charges. They found him guilty of sexually abusing two 13 year-old choir boys in the priest’s sacristy after Sunday solemn mass when he was the Archbishop of Melbourne in 1996. He then assaulted one of the boys again a few weeks later. Pell is one year in to serving a six year prison sentence, with a non-parole period of three years and eight months.
On Wednesday Pell’s barrister, Bret Walker SC, argued that just because the complainant was believable, it should not discount other evidence that placed his evidence in doubt. Walker told the court that Victoria’s appellant judges, which dismissed Pell’s first appeal in 2019 by a majority of two-to-one, may have been unduly influenced by the complainant’s testimony by watching a recorded video of it rather than just reading the transcript of his evidence.
On Thursday as the director of the Office of Public Prosecutions, Kerri Judd, began her response, the bench questioned the decision of Victoria’s appellate court to watch video evidence from the complainant in Pell’s trial, asking whether it may have caused the majority of judges to give too much weight to the complainant’s compelling and believable demeanour rather than the trial evidence as a whole.
Judd responded by saying that given Pell’s legal team made so much of the complainant’s lack of credibility and believability, Victoria’s appellate court was entitled to watch the video. It did not mean they had elevated it above other evidence, or that they had not given due weight to other evidence from the trial, she said.
The chief justice, Susan Kiefel, responded that the difficulty with the appellate judges having viewed the complainant’s video was that “… the assessment of a witness by demeanour is so subjective”.
“It’s very difficult to say how it [the video of the complainant] affected an intermediate appellate court judge in terms of how they read the transcript,” Kiefel said. “That’s why you really shouldn’t do it [watch the video] … unless there is a forensic reason to do it. To what extent is this court to determine the extent to which the court of appeal was influenced by the video?”
It is not common for an appellate court to view video evidence, though it is becoming more common as technology is more frequently used. Appellate courts are often cautioned about usurping the jury’s role, and by viewing a transcript alone may be more capable of leaving questions of the demeanour of witnesses to the jury.
One of the witnesses Pell’s legal team says should have called the credibility of the complainant into doubt and raised reasonable doubt as to Pell’s offending was Monsignor Charles Portelli. Portelli gave evidence at trial that it was Pell’s practice to remain on the front steps of St Patrick’s Cathedral after Sunday solemn mass greeting parishioners. If this were the case, he could not have been in the priest’s sacristy abusing two choirboys.
But Judd responded that Portelli did not have convincing specific recollection of what Pell did on the dates in 1996 when the offending occurred. Portelli could not even remember if the choir processed out of the buildings on those occasions internally or externally, she said.
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https://www.theguardian.com/australia-news/2020/mar/12/george-pell-appeal-cardinals-lawyers-question-victorian-judges-decision-to-watch-video-evidence