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George Pell’s defence ignored evidence, says DPP
George Pell’s appeal to the High Court neglects, misrepresents and completely “glossed over” evidence and should be rejected, according to the Victorian Director of Public Prosecution’s submission to the High Court released on Friday.
Tony Zhang
Mr Pell who will face the High Court to hear an appeal against his convictions, argues in legal submissions that the Victorian Court of Appeal was mistaken when it found jurors were not unreasonable to believe in the testimony of his victim.
“There was a significant body of evidence at trial,” the submission said. “The applicant refers only to a small portion of that evidence.”
The report also said that the applications’ submissions do not provide a complete and accurate picture of the facts.
Mr Pell’s basis for an appeal was that the Court of Appeal had relied on their “belief” in the complainant to eliminate doubt and hold the conviction.
Mr Pell had appealed his conviction of August, but in a two-one majority decision, Victoria’s Court of Appeal upheld Mr Pell’s conviction on one count of sexual penetration of a child under the age of 16 and four counts of indecent act against a child under the age of 16.
In early January, Mr Pell’s defence lawyers formed the argument that the Court of Appeal had relied on their “belief” in the victims to eliminate doubt and uphold the convictions.
“Any conflation of the concepts of ‘belief’ and ‘elimination of doubt’ is an attempt to fundamentally depart from the defining safeguards of the accusatorial system of criminal justice,” the submission from Bret Walker SC said.
“These safeguards protect people from the risk of being wrongfully convicted of crimes they did not commit.”
However, in the documents now published by the High Court, Victoria’s Director of Public Prosecution, Kerri Judd rejected the basis of this argument.
“The majority did not reason on the basis of ‘belief’ in [the victim]. Rather, they ‘reviewed the whole of the evidence’ and made an ‘assessment of the victim’s credibility and reliability’,” said Ms Judd.
Ms Judd said that Mr Pell’s legal submission “ignores” and “glosses over evidence supportive” over the victim’s account. Two of the three appeal court judges had described the complainant as a compelling, truthful witness.
“[Pell’s legal team] disregards an important aspect of the majority’s assessment of [the victim’s] credibility and reliability: that undisputed facts regarding the applicant’s use of the priests’ sacristy [at St Patrick’s Cathedral] and the layout of the priests’ sacristy provided independent support for [the victim’s] account,” Ms Judd said in the report.
Ms Judd outlined that the majority “reviewed the whole of the evidence” along with assessing the victim’s credibility and reliability in several contexts.
Both consistencies and inconsistencies between Mr Pell’s account and other evidence were assessed with the defence contention that his story was inherently improbable and the defence contention that it was evidently impossible for the offending to have occurred as alleged.
In the report, Ms Judd said that the direct evidence from master of ceremonies Charles Portelli of Mr Pell’s alibi overstates their evidence. Furthermore, Ms Judd rejected another point in Mr Pell’s defence concerning the nature of ceremonial robes, that the robe was on exhibit and the jury had fully examined the robes and it was committable for sexual assault.
Ms Judd said the dissenting Court of Appeals judge Mark Weinberg “did not sufficiently acknowledge the jury’s role as the primary tribunal of fact”.
“It is fundamental to our system of criminal justice that the jury is the constitutional tribunal for deciding issues of fact,” she said.
“The role of the jury as representative of the community in a jury trial is of abiding importance.”
Ms Judd said that the majority formed a view on the whole of evidence and did not experience a doubt about Pell’s guilt and ultimately had not been “persuaded that the jury must have had a reasonable doubt about Pell’s guilt.”
“In light of the above considerations, the setting aside of a jury’s verdict is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal.”
Mr Pell’s legal team needs to file a reply to the prosecution submissions by 26 February 26.
A hearing will be held before the Full Court in March.
