In seeking leave to appeal to the High Court, George Pell’s lawyers argue that the approach taken by the majority judges at his appeal required Pell to “establish actual innocence”, rather than “merely pointing to doubt”, which was a reversal of the onus and standard of proof, adding, “Rigid application of the onus and standard of proof in 21st-century sexual assault trials in Australia is of particular importance.”
“Though the majority said … that there was no onus on (Pell) to prove impossibility that is precisely what their analysis required him to do,” according to a report in The Australian (18/9/2019).
“Those who are accused, including by a complete stranger making decades-old allegations, cannot, for example, investigate a complainant’s psychological history in the hope of uncovering a reason why a seemingly credible person is accusing them of offending they say they did not commit.”
The application highlights that the surviving complainant had received “psychological treatment” and that Pell’s team was not able to tell the jury this or obtain records of it.
Pell’s team argued that the application of correct judicial method by Justices Ferguson and Maxwell would have led to acquittal. “The majority’s erroneous judicial method prevented them from recognising that, even on their own incomplete analysis of the evidence, doubt was raised and left.”
Justice Weinberg’s dissenting judgment should be accepted as a correct interpretation of the evidence, Pell’s lawyers argue, saying that an inability to find the complainant a liar didn’t determine proof beyond reasonable doubt.
“Belief in the complainant is the beginning of the inquiry, not the end,” they said. “Belief is a prerequisite to conviction but belief does not preclude the existence of doubt raised and left by other cogent evidence.
“To find otherwise would fundamentally alter the burden and standard of proof in a criminal trial and increase the likelihood of miscarriages of justice.”
Commenting on the matter, Legal Affairs Editor at The Australian, Chris Merritt writes: Bret Walker SC is an old-fashioned stickler for precise legal language. That is why his clinical evisceration of the judges who ruled against George Pell is so effective.
Without a skerrick of emotion or one wasted word, Walker has torn the guts out of the Court of Appeal majority who rejected the cardinal’s appeal against convictions for sexually assaulting choirboys.
Walker is widely regarded as one of the nation’s greatest lawyers. Yet his signature appears at the end of a document that accuses Ferguson and Maxwell of effectively reversing the onus of proof, engaging in “unorthodox reasoning”, “circular reasoning” and “erroneous judicial method”.
If the High Court agrees to hear this appeal, it will need to grapple with those arguments and determine whether the judicial method demonstrated by Ferguson and Maxwell is actually as flawed as Walker and Shann believe.
The stakes are staggeringly high. This affair now concerns not just the freedom of a cardinal but the continued public standing of Victoria’s top judges and the man who might well be the nation’s greatest lawyer.