As a Prince of the Catholic Church takes up residence in “The Village of the damned” where Victoria keeps it’s convicted child abusers, Cardinal Pell’s lawyers are poring over the 235-page ruling of the judgment of the Victorian Court of Appeal to see if there is a way to launch an Appeal to the High Court of Australia. They have 28 Days in which to find an error of law that will give them the mechanism to apply for Special Leave.
Convicted of child abuse in 2018 and in March 2019, sentenced to 6 years gaol, Cardinal George Pell has always denied the allegations and yet, two of the three appellate judges rejected his appeal against the unanimous jury verdict.
The Catholic Church waits in the wings for the appeal process to play out before launching its own investigation that may see the Cardinal de-frocked. It is also probable that he will lose his Honour of the Order of Australia.
THE CONVICTION
In December 2018, a jury unanimously found Cardinal Pell guilty of one count of sexual penetration of a child under 16 through forced oral sex, and four counts of an indecent act with or in the presence of a child aged under 16. He was sentenced to six years imprisonment with three years and eight months to serve before he could apply for parole.
The proceedings came about after the prosecution witness “J.J.” bravely came forward following the 2014 suicide of his friend, the former principal prosecution witness “M.R.”
THE APPEAL
There were three grounds of appeal. The two more technical ones were said to have created a “substantial miscarriage of justice” for Cardinal Pell but were rejected unanimously by all three judges. They were:
- The plea of not guilty was not made in the presence of the jury; and
- The defence was not permitted to play a “visual representation” as part of its closing address;
The third ground of appeal was the most critical one:
- That the verdict of the jury was “unreasonable or cannot be supported having regard to the evidence.”
What that means is the defence team argued that the evidence before the Court based solely on the complainant was not good enough to meet the criminal standard of proof of “Beyond Reasonable Doubt” and that a jury should not have been able to be satisfied of Cardinal Pell’s guilt, beyond reasonable doubt.
Chief Justice, Anne Ferguson and President of the Court of Appeal, Chris Maxwell found that it was open to the jury to be satisfied beyond reasonable doubt that Cardinal Pell was guilty. In the live cross, Ferguson CJ said they “accepted the prosecution’s submission that the complainant was a very compelling witness, clearly not a liar, was not a fantasist and was a witness of truth.”
Justice Weinberg disagreed instead saying he “could not exclude as a reasonable possibility that some of what the complainant said was concocted.”
WHAT DID THE COURT OF APPEAL LOOK AT?
An appeal is not a new trial. It was the jury that was the Constitutional tribunal of fact for Cardinal Pell and so the Court does assess the evidence for whether the Court has a doubt but to decide if the jury was able to correctly find a verdict of guilty “beyond reasonable doubt.”
What this means is that Cardinal Pell’s legal team had to show that no reasonable jury would have been able to find him guilty. It is not enough to show that a jury might have had a doubt.
A jury verdict can only be overturned where there are exceptional circumstances that show a clear “Miscarriage of Justice.”
The majority of judges found the guilty verdicts reasonable and were open to the jury on the whole of the evidence.
The complainant gave clear, compelling evidence that was not embellished or tailored to the prosecution. He also had gaps in his memory which he explained giving him the ring of truth. Memory is a funny thing. It can have holes in it and a perfect memory is a rare find in proceedings.
IS THE LEGAL PART OVER?
Possibly, possibly not. If Cardinal Pell’s legal team find an error of law in the judgment of the appellate Court, then they can ask the permission of the High Court of Australia review the decision of the lower Court.
Special leave is rarely given. If leave is given, then the appeal process will grind on. If leave is not given or no appeal is made to the High Court, then the criminal aspect is over. The Cardinal will serve his term of imprisonment.
That does not mean Court is over for the victims or the Cardinal. Civil proceedings will very likely be brought against the Catholic Church.
HOW DOES THE HIGH COURT DEAL WITH SPECIAL LEAVE APPLICATIONS
To apply to the High Court you first need to apply for and be granted “Special Leave to Appeal.” For the most part, you can only do this if you are appealing a judgment from the Full Court of Criminal Appeal or a Court of Criminal Appeal in a State or Territory.
If special leave is granted, the Judiciary Act 1903 empowers the Court to consider any matter it deems to be relevant but primarily whether the judgment that is the subject of the appeal involves a question of law that is of public importance or resolving differences within or between Courts and whether the application is in the interests of the administration of justice.
There are strict rules for making the application that are available on the High Court Website and the application is determined “on the papers,” meaning that no fewer than two of the judges will read and consider the merits of your application and you don’t need to appear at that time. Once the judges have made their decision on the application you will be given a time and place to appear.
Appealing is complicated. If you are involved in complex criminal proceedings it is always better to have a lawyer. Don’t do it alone, contact us at National Criminal Lawyers for us to advise you on the appeal process from the Local Court to the High Court.