Disgraced Cardinal George Pell could walk free from jail as early as this week should the Supreme Court of Appeal in Victoria overturn a jury verdict that condemned him.
Pell was led back to his prison cell on Thursday after his two-day appeal hearing in Melbourne wound up.
The appeal will be decided by the chief justice of the Supreme Court of Victoria, Justice Anne Ferguson, president of the Court of Appeal Justice Chris Maxwell, and Justice Mark Weinberg.
Pell has had little to smile about since a jury found him guilty of sexually abusing two boys in the priests’ sacristy at Melbourne’s St Patrick’s Cathedral after presiding over one of his first Sunday masses as archbishop in the 1990s.
The jury further accepted he abused one of the boys a second time in a corridor at the rear of the cathedral after another Sunday mass.
Pell was jailed in March for six years with a non-parole period of three years and eight months.
For Pell’s haters, the verdict was heralded as the right decision.
Others were not so sure.
Pell’s defence had been confident in clearing the Cardinal’s name.
They firmly believe the jury got it wrong and the injustice needs to be corrected.
A conviction against Pell was always going to be difficult.
At his first trial, which was held in secret, the jury could not agree on a verdict.
They needed to be discharged and the trial had to run again with a fresh jury.
Legal experts believed the outcome would be the same.
Only one victim was able to testify against Pell.
The other died of a heroin overdose in 2014 and never reported the alleged abuse.
Top barrister Robert Richter, QC had grilled the surviving victim in a grueling cross examination during Pell’s trial.
So masterful was it that Mr Richter’s opponent at appeal, Crown prosecutor Chris Boyce QC, paid tribute to it.
Pell’s barrister had left no stone unturned, which is why, the prosecution argued, the victim’s account was so believable.
‘It was absolutely compelling,’ Mr Boyce said. ‘He was clearly not a liar. He was not a fantasist. He was a witness of truth.’
Only 13 at the time, the man said he never told a soul about what happened to him and his mate that day after mass.
The choirboys had sneaked into the sacristy for a swig of wine directly after the service.
Pell sprung them and sexually assaulted the pair.
It was over in minutes in what could only be described as a ‘moment of madness’ by Pell.
The boys never even spoke about it again among themselves.
‘They just wanted to get on with their lives,’ Mr Boyce said. ‘This was an anomaly – like something from out of space.’
Prosecutors say the boy had never been in the sacristy before and was able to recount important details of the room.
Pell’s defence had it’s doubts and fought hard to prove the jury ought to have had doubts too.
At the first trial, the jury produced a majority of ten jurors voting to acquit and only two voting guilty.
Pell went down 12-to-nil for guilty at his second trial.
With fresh eyes on the case, Sydney barrister Bret Walker SC was determined to prove this jury had got it very wrong.
He claimed more than 20 prosecution witnesses who had an official role in that Sunday’s solemn mass – after which the jury accepted the offending occurred – gave evidence the offences did not or could not have occurred.
They included Pell’s Master of Ceremonies, the Sacristan who was in charge of the sacristies, adult altar servers, adults in charge of the choir and a large number of ex-choirboys.
Pell had an alibi that could not be ignored by the jury, he claimed.
Further, it had ‘no rational basis to reject evidence’.
‘No rational basis for rejecting this evidence was ever advanced by the prosecution at trial,’ he submitted.
‘The complainant’s claims were so implausible that a reasonable jury must have had a reasonable doubt.’
Mr Walker said it was beyond the ‘law of physics’ the Cardinal could have have abused young choirboys.
The experienced barrister went immediately on the attack and did not let up all day.
He told the court his client couldn’t have sexually assaulted the boys in the sacristy if he was meeting parishioners at the western door of St Patrick’s Cathedral — adding that the distance was ‘as good as being across the Tasman’ in the eyes of the law.
‘If he was at the western door then the law of physics means this is literally and logically impossible for the offending to have occurred,’ he said.
Pell has always denied the abuse and has appealed his conviction on three grounds: that the jury verdict was unreasonable, and that two errors were made in the way the trial was run.
The prosecution has refuted all of Pell’s defence, which repeatedly claims it was all but impossible for the Cardinal to have committed the crimes.
For one, he could never have lifted his heavy robes to perform the acts he was convicted of doing, they say.
Mr Boyce took over the heavy lifting in the appeal from Mark Gibson QC, who secured a conviction against the Cardinal at his County Court trial.
It may be a decision that comes back to haunt the Office of Public Prosecutions.
In an animated display. Mr Boyce stumbled through a day of submissions in a nervous display.
At one point, the hearing was halted after the prosecutor named Pell’s victim in open court.
Under the law, naming of sex abuse victims is strictly forbidden to be aired in public.
The hearing had been streamed live to the world on a 15 second delay, which spared the worried victim being outed.
Mr Boyce was warned to keep the victim’s name out of his future public submissions.
Continuing, Mr Boyce was repeatedly asked to explain himself more thoroughly and was criticised for speculating on what Pell’s jury might have been thinking.
At one stage, the prosecutor conceded he was a bit muddled.
‘The point I’m making, and I don’t think extremely well,’ he said. ‘Is the point your honour is making.’
If he listened closely, the barrister may have heard laughter from the world’s media sitting in an adjacent room.
Jeers from a media who has been mostly in the prosecution’s corner throughout the whole grubby process.
Pell will no doubt enter the weekend rejuvenated.
At his sentence in March, Pell looked tired, unwell and broken.
In previous hearings he had stared defiantly at people in the court who dared challenge his gaze.
Now he sat in civilian clothes – defeated.
Pell was back to his confident best in the packed Supreme Court courtroom this week.
Brought into court scruffy and handcuffed, the Cardinal entered the court tall and defiant.
He took notes throughout the two day proceedings and even found it in him to have a quiet chuckle.
While Pell can take solace in the less-than-confident performance by the man tasked with keeping him caged, his fate will largely sit with the written submissions put before the court.
The prosecution argued the one issue for the jury was whether the acts Pell was accused of had happened.
‘By and large none of these witnesses were in a position to say that the offending ‘did not happen’,’ the prosecution submissions stated.
‘Rather, the evidence from a handful of witnesses suggested that certain scenarios, such as the Archbishop being alone and robed, were unlikely.’
Prosecutors have countered each of the defence claims, arguing evidence showed it was possible for Pell to have committed the assaults.
‘The events described by various witnesses … established that there was more than ample opportunity and circumstances for the offending, described by the complainant, to have occurred,’ their submissions claimed.
‘The day itself, whilst significant and memorable for the complainant, could not be described as remarkable for anyone else who was simply going about the business of Sunday mass.’
Chief Justice Anne Ferguson said the Court of Appeal was already ‘quite familiar’ with the evidence and the arguments at play.
‘Nevertheless, we expect that counsel will wish to take us to parts of the evidence today and tomorrow. That will only be a small part of the evidence. Of course, in reaching our decision, we will have regard to the whole of the evidence,’ she said.
One judge mused that juries ‘almost always get it right’ but highlighted the word ‘almost’.
Lisa Flynn, a lawyer representing the father of the second victim who died, said the appeal had caused him sleepless nights.
‘Understandably he is feeling really anxious knowing that George Pell’s conviction could be overturned but he is extremely hopeful that this will not be the case.’
A judge noted the cardinal could well die in prison.
Professor Jeremy Gans, who heads the Melbourne Law School and is an expert on Victorian criminal law, said Pell has a strong chance of winning the appeal on the ground that the verdicts were ‘unreasonable’.
Support groups have warned the appeal could be traumatic for people who have experienced abuse.
‘With this appeal, there is a significant risk that many survivors will be triggered as a result, and thrown back into their own trauma, strong emotions and reactions,’ Blue Knot Foundation president Cathy Kezelman said.