Cardinal Pell’s Appeal and Australia’s High Court: What’s In Play?

While this week’s court ruling is only a partial victory, in terms of securing a full review of the cardinal’s sexual abuse conviction, sources say it could be a ‘turning point’ in favor of his ultimate acquittal.

Cardinal George Pell
Cardinal George Pell (photo: 2017 Edward Pentin)

VATICAN CITY — What does the decision of Australia’s High Court this week on the appeal of Cardinal George Pell mean for the cardinal, and what is likely to happen next?

On Tuesday, two High Court judges, Michelle Gordon and James Edelman, referred the cardinal’s application for special leave to appeal to a full bench of the High Court’s justices after Cardinal Pell’s lawyers argued a lower appellate court had made mistakes.

At that hearing, expected in March or April next year, up to seven justices will listen to arguments presented by all parties on whether the cardinal should or should not be granted leave and the substantive appeal.

The cardinal, who has always vigorously protested his innocence, was convicted Dec. 11, 2018, on five charges that he sexually abused two choir boys as archbishop of Melbourne after Sunday Mass in the city’s St. Patrick’s cathedral in 1996 and 1997.

Sentenced to six years in prison, the 78-year-old former prefect of the Secretariat for the Economy must serve at least three years and eight months before being eligible to apply for parole. The cardinal appealed against the verdict earlier this year, but in August the Court of Appeal in Victoria upheld his conviction.

The High Court is his final chance to be freed from prison and clear his name.

He is therefore “clearly pleased” with the High Court referral, sources close to him told the Register Nov. 14. He will not be seeking bail but rather “concentrating on the High Court appearance” and although in solitary confinement, unable to celebrate Mass and without natural light, they say he is in good spirits and allowed to tend the prison garden each day — a request he made to give his days purpose. “The cardinal is well,” a friend of his told the Register Nov. 13. “He is writing — a lot, and still receiving a lot of mail.”

“This week’s surprise court decision marks a turning point in Cardinal Pell’s prospects for release, but he is not out of the woods yet,” cautioned John McCaulay, a former altar server at Melbourne’s St. Patrick’s Cathedral, where the offenses are alleged to have happened, and who attended Cardinal Pell’s mistrial, retrial and appeal.


Only a Partial Victory

Despite offering a boost to the cardinal and his defense team, the Nov. 12 decision was only a partial victory for the cardinal as the judges merely referred the decision to other justices to decide whether or not the appeal should proceed.

“The two judges basically didn’t want to have to make that decision themselves, probably for fear of retribution and vilification from an enraged public, so they passed it to the other justices instead,” one source close to the case told the Register Nov. 14. “It gives us hope but no one is expecting anything,” the source said.

Nevertheless, to obtain such a referral is rare: lawyers in Australia say that 90% of such appeal applications are dismissed out of hand by the High Court, and Cardinal Pell’s case was the only one — out of 22 handled by the court that day — that was not thrown out.

Speaking on condition of anonymity, a former Australian High Court judge also said a referral of this sort has not been made since the 1980s and 1990s when the technique was relatively common, but that it gives Bret Walker, Cardinal Pell’s attorney, “the opportunity to mount a defense in a full and unhurried way.”

Jeremy Gans, a professor at the Melbourne Law School, told The Australian newspaper it was possible the court could still disallow the appeal during the hearing next year, but added that the “most likely case is they will decide the case one way or the other.”

The court must now set a timetable for the parties to file their submissions on the case, Gans said, adding that the hearing itself is expected to last just a day at the High Court in Canberra, with each side having a couple of hours to make their arguments.

He said it is possible the court could reach a decision at the end of that first hearing, but “more likely they’ll say ‘we’re going to think about this’” and predicted they would “reach a decision in the middle of next year.”


Court of Appeal Decision

According to The Australian, the High Court will not revisit the original jury’s reasons for convicting the cardinal but instead examine whether the Court of Appeal in Victoria made the right decision to uphold the conviction.

Two of the three appeal court judges, Chief Justice Ann Ferguson and Court President Chris Maxwell, believed the original jury had come to the right verdict, that the surviving victim was a “compelling” witness, “clearly not a liar” and “not a fantasist.” “Throughout his evidence the complainant came across as someone who was telling the truth,” Justice Ferguson said.

But Justice Mark Weinberg dissented extensively from the other two, mainly on the ground that the onus of proof was reversed and forced the defense to prove the crimes were impossible.

Cardinal Pell’s lawyers argued that the two judges had overlooked reasons to doubt whether the then-Archbishop Pell had the opportunity to offend given that the cathedral where the offenses are supposed to have taken place was busy when the accuser said the attacks occurred. Weinberg noted “inconsistences and discrepancies” in the accuser’s testimony, and “a number of his answers simply made no sense.” He consequently believed there was a “significant possibility” the cardinal may not have committed the offenses.

According to another source close to Cardinal Pell and speaking on condition of anonymity, “a general feeling” exists in legal circles that Weinberg’s dissenting judgement “will be taken very seriously by the High Court including the defense claim of reverse onus of proof and reasonable doubt.”

Church leaders are reacting cautiously: Archbishop Anthony Fisher of Sydney welcomed the decision, noting that the cardinal has always maintained his innocence and continues to do so. He also acknowledged a divided legal opinion and that “many questions remain” making it “appropriate” that they be examined in the country’s highest court.

The Vatican said that while “reiterating its trust in the Australian justice system,” it acknowledged Australia’s High Court decision to accept Cardinal Pell’s appeal request, aware that he’s always maintained his innocence. It also reaffirmed its closeness to victims of clerical sex abuse.

Both statements were welcomed by those close to the cardinal, with one supporter wishing to express gratitude to the Vatican for its “clear statement” in echoing Archbishop Fisher and stressing that the cardinal has “always professed his innocence,” something not all bishops have highlighted.


Concerns Over Bias

The cardinal’s supporters are now asking how the case led to this situation, and the chances of the cardinal being acquitted.

It is not clear what the likelihood is of the High Court overturning such a high-profile conviction as this, mainly because the case has been so influenced by a prevailing sense of anger against the Church over the sexual abuse crisis and personal animosity to the cardinal.

“Not only has the jury pool been tainted after decades of anti-clerical, anti-Catholic and anti-Pell bias,” said McCaulay, “it seems senior elements of the Victorian judiciary have taken leave of their senses and been swept up by the #MeToo maelstrom.”

But he added that “thankfully” the High Court in Canberra is “less politicized by activist appointees.” He predicted they will decide on the basis of an absence of “corroborating evidence” and the fact that Cardinal “Pell’s alibis were found to be reliable and [that he had] credible witnesses.”

Many involved in this case are concerned about vilification and repercussions if they side with Cardinal Pell, one of the sources close to the cardinal told the Register, and so are staying quiet and “waiting for justice to play out.” The Australian bishops, meanwhile, are “absolutely paralyzed” by the case, unsure how to respond.

The source noted that some “victim support groups” complained that the High Court had “made a mistake and that Cardinal Pell should not take any further legal action.” This would deny his legal right to due process, the source said, “a right under a system of justice to which everyone entitled — except if you are George Pell.” 

McCaulay believes the “most shameful aspect of such vexatious charges being brought against Cardinal Pell is that they’ve made the task of convicting actual pedophile priests that much harder, as the judicial system in Melbourne has overreached on Pell and confused being hated with being guilty.”

In such a “febrile climate,” he added, “if police and judicial officers fear a public backlash for resisting the mob, then what chance does any religious figure stand when hauled before a jury, especially when actual evidence now counts for so little?”

Edward Pentin is the Register’s Rome correspondent.