George Pell appeal: Factors that could see Cardinal freed
Cardinal George Pell has been found guilty of child sexual abuse but an appeal could see his conviction overturned.
Since news of Pell’s trial has been made public, questions have been raised around the evidence relied upon to convict him.
His lawyers have filed three grounds for his appeal, to be heard in the Court of Appeal after Pell is sentenced by County Court Judge Peter Kidd on March 13.
University of Sydney Professor David Hamer does not have detailed knowledge of the case but is an expert in evidence law and has an interest in appeals. He gave news.com.au an insight into some of the legal aspects of the case.
WILL THE FIRST MISTRIAL BE USED AS EVIDENCE?
Some have pointed out an earlier trial was unable reach an unanimous decision on whether Pell was guilty, leading to a mistrial the first time the case was heard in Melbourne’s County Court of Victoria.
For a mistrial to happen at least two jurors have to disagree with the others. A decision can still be considered unanimous if there is only one juror who doesn’t agree.
There has been speculation that the jury in the first trial was split 10-2 in favour of a not-guilty verdict for Pell but this has not been proven. The truth is, we don’t know the result and we probably will never know because jurors are not allowed to talk about it and it’s unable to be reported.
Prof Hamer doesn’t think the appeal judges will consider the result of the mistrial when assessing the verdict of the second case, which found Pell guilty.
He said the way the court considers appeals is quite controlled and narrow.
“There isn’t much scope for the court to consider this,” he said.
“They will focus on evidence presented at the trial and whether a reasonable jury would have convicted him.”
IS THE USE OF VIDEO EVIDENCE SIGNIFICANT?
Footage of Pell’s complainant giving evidence and being cross examined was recorded at the first trial and played to jurors in the second trial.
Courts have started allowing complainants in sex abuse cases to do this so they don’t have to continually relive their horrific experiences. It can be extremely traumatising and intimidating to appear in court and be cross examined, and complainants have sometimes refused to appear move forward with retrials because of this.
Prof Hamer said this suggests the evidence in the two trials was very similar but it’s still unlikely the appeal court would consider the mistrial in its decision.
Pell also used footage of a police interview for his defence instead of testifying and some experts believe this may have cost him the case. But criminal barrister Greg Barns told news.com.au this was “not uncommon” at a criminal trial.
WAS THE DECISION UNREASONABLE?
Pell lodged an appeal based on three grounds, including that it was “unreasonable” to convict him on the testimony of one victim.
“The verdicts are unreasonable and cannot be supported, having regard to the evidence … it was not open to the jury to be satisfied beyond reasonable doubt on the word of the complainant alone,” his first appeal ground says.
Pell is also arguing that there was a “fundamental irregularity” in the trial process because he was not able to enter a not guilty plea in front of the jury.
The third ground is that his defence lawyer should not have been stopped from using a “moving visual representation” as part of its closing argument.
Generally three judges will assess an appeal case. This can increase to a maximum of five judges but this usually only happens when there are complicated legal questions to consider.
Prof Hamer said it’s unlikely for the Pell appeal to have five judges.
He believes the Pell case will be a difficult one for the appeal court to consider based on “unreasonable” grounds because it’s a case that turned on the credibility of the complainant. It was a word against word case with Pell.
“Appeal courts don’t like to assess credibility. That’s why we have juries — to assess credibility,” he said.
What makes this case a bit different is that there is footage of the complainant giving evidence. This means the appeal judges may be in a better position to assess the credibility of the complainant compared to Pell, because he also relied on a video recording of his police interview as his testimony.
But even if the judges did come to a different conclusion about the complainant’s credibility, Prof Hamer said they may still be reluctant to overturn the conviction.
“They may say, ‘Why should our opinion be valued over and above 12 members of a jury’?” he said.
He said appeal judges were also more likely to overturn a conviction when there is a problematic piece of evidence that the jury appears to have ignored. For example, if witness testimony had shown it was physically impossible for an act to have occurred.
However, Prof Hamer said it was correct to say that it was unusual the prosecution case seemed to rest solely on the credibility of the complainant.
As for the grounds of “fundamental irregularity”, it’s unclear how this will be argued.
The defence is also suggesting it should have been able to present a “moving visual representation” during the closing speech. Without knowing the details of what was going to be presented Prof Hamer said the general rule is that new evidence should not be presented during closing speeches.
Originally published as How Cardinal Pell could walk free