Holes in Pell guilty verdict are being revealed
Cardinal George Pell and his supporters were relieved that his appeal of his child sexual assault conviction was live-streamed on Wednesday.
The intense seven-hour courtroom argument was the first time the public has heard first-hand the flimsiness of the evidence against him.
Three judges of the Victorian Appeals Court are reviewing the jury's verdict in which Cardinal Pell was convicted of sexually assaulting two choir boys after Sunday Mass at St Patrick's Cathedral in Melbourne in December 1996. One of the boys has since died and told his mother he never was molested.
So that leaves the conviction to be based on the word of one man against Cardinal Pell's, with no corroborating evidence, no forensic evidence, no witnesses, and against a mountain of contrary evidence which showed that the allegations were highly improbable, if not impossible.
The jury verdict has troubled legal experts and lay people around the world ever since. The evidence seen so far leads to the conclusion that an innocent man was jailed to atone for the sins of others in a church plagued by sexual abuse scandals.
On Wednesday, it was the difficult task of Pell's new barrister, Bret Walker SC, to convince three appeal judges that the jury's verdict was "unsound" or "unreasonable".
He was asking the judges to put themselves in the shoes of the jury and conclude that "a person not shown to be guilty beyond reasonable doubt, an innocent person, has been wrongly convicted."
Walker's extreme clarity of thought and expression must have given Pell heart as he sat quietly in a makeshift dock once again allowed to wear his clerical collar and taking copious notes.
The judges, Chris Maxwell, Anne Ferguson and Mark Weinberg, were properly inscrutable, as they listened and peppered Walker with questions.
But it was on that word "impossible" that Weinberg gave us a clue to why the jury delivered a guilty verdict, and perhaps an implicit criticism of the defence case of Pell's previous barrister Robert Richter.
"It is unfortunate that the case was pitched as "impossible," said Weinberg.
It was problematic for the jury that Richter had used the term "impossible" to describe evidence - such as whether Cardinal Pell could have been alone in the sacristy with two choir boys or could have parted his heavy vestments to allow oral sex.
"A jury faced with competing arguments answers the question 'was it possible?', in which case we convict … The case presented by the defence [was of] various degrees of impossibility."
The unspoken thought was, anything is possible.
Another line of questioning of Walker by Justice Maxwell shone more light on why Pell's defence case failed: Aggressive attacks on the complainant, the victim, saying he was a "purposeful liar."
"I counted four or five occasions that line of attack was taken," said Maxwell.
"Then at a different stage counsel [Richter] put that this was fantasy … an act of imagination … It was also suggested [that] you can be so convinced of your fantasy you come to believe it's true."
Walker said "that kind of speculation will not permit the resolving of a reasonable doubt."
He then proceeded concisely to lay out the case to overturn the "unreasonable" jury verdict.
Of trial judge Peter Kidd's directions to the jury he said: "impeccable directions provide no immunity for an unreasonable [verdict] ground of appeal."
He made a big deal of time.
Firstly, there were the discrepancies in the date of the first attack, which originally the complainant said happened in the spring of 1996 but could only have happened on the 15th or 21st of December because they were the only Sundays then-Archbishop Pell celebrated mass in the cathedral.
Secondly, there was the improbability of Pell being alone in the sacristy with two choir boys at a time when a dozen people were bustling in and out, and when Pell himself had an "alibi", with witnesses saying he was greeting mass-goers at the west door of the cathedral.
Walker slammed the Crown case, and in particular a police officer who did not interview a Father Brendan Egan, who celebrated the mass at which Cardinal Pell "presided" on February 23 when the second corridor attack was alleged to have happened.
"There was evidence from the informant Sergeant Reed that he had not made any investigation about Father Egan. [He] gave a disturbing non-responsive bordering on impertinent answer to the question 'why didn't you?'
"The answer was 'Because I didn't'".
Yet, said Walker, Father Egan was "not a distant spectator. On the evidence he must have … been very, very close physically close to [Pell] when allegedly [Pell] plunges into the [choir boy] procession and engages in bizarrely odd conduct, disgraceful conduct …"
"No words, no aftermath and of course nothing like any contemporaneous complaints."
Judge Maxwell later said to Walker: "You have to convince us that the jury should have had a doubt …. We do our best to put ourselves in the position of the jury … the question for us is was it reasonably open to the jury on the evidence before them to be so satisfied about those facts".
A crucial point came when Justice Weinberg pulled up Walker while he was outlining discrepancies in the complainant's account.
That's "part of the difficulty of going back 22 years and relying on memory or the memory of a person who was a child at the time," said Weinberg.
"Exactly so, Your Honour. Exactly so," said Walker, as animated as he ever was all day. "One of the questions is how does that affect or impinge on the … question about reasonable doubt.
"Because one can imagine in a different system … which had a different onus of proof, that one might say such is the vice, evil and scourge of concealed child abuse, that after a long interval it will be for the accused to explain why … inaccuracies, discrepancies in a long distant, remote in time complaint, are to be forgiven unless there is proof on concoction …
"That would be a system so radically different from ours, so socially alien from ours that it need only be stated to be rejected."
And that's the bottom line.
The horrors of clerical child sexual abuse aren't expunged by convicting an innocent scapegoat, which is how increasing numbers of people around the world have come to see Cardinal Pell.
It's a big deal to overturn a jury verdict. After another day of arguments today, it will take several months for the three judges to come to their conclusion.