High Court grants leave for George Pell appeal

The High Court today (Wednesday, November 13, 2019) has granted leave for George Pell to appeal the decision of the Court of Appeal which upheld his conviction in December last year on one charge of sexual penetration with a child under 16 and four counts of indecent act with, or in the presence of, a child under 16, relating to two separate incidents at the cathedral in 1996 and 1997.

The appeal will be held in early 2010.

See our previous reports for more on this case:
Onus of proof reversed
Dissenting voices
Conviction upheld

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15 Responses to High Court grants leave for George Pell appeal

  1. Rosemary says:

    The case discussed here of Pell conviction is only the tip of the iceberg of his offending. Everyone knows how difficult it is for victims to come forward. In the end it will always come down to who believes who in the court. There will always be plenty of views for and against on both sides. The argument proposed by some that it was ‘impossible’ to occur, in my view lacks merit. Justice is not necessarily directly related to the outcome in a court of law.

  2. Garry Stannus says:

    The SMH (2Apr2020): High Court comes to swift judgment in George Pell case /Chip Le Grand.

    Le Grand reports that “The full bench of the court will hand down its judgment in Brisbane at 10am Tuesday, just 26 days after it finished hearing arguments in the case”. Le Grand further writes:

    “The High Court last month sat for two days in Canberra to hear the arguments. The central one pressed by Pell’s legal team is that Victorian Chief Justice Anne Ferguson and Court of Appeal President Chris Maxwell, in their majority decision, placed too much weight on the credibility of Pell’s accuser and not enough on other witness testimony which should have raised doubt that the crimes took place as alleged.”

    See the full article at https://www.smh.com.au/national/high-court-comes-to-swift-judgment-in-george-pell-case-20200402-p54gfa.html

    We have a few days to consider our reactions to the coming decision of the HCA. Should Pell’s appeal to the HC be rejected, he will remain convicted of sexual assault and will remain in prison. However, should his appeal be accepted, it seems that the HC:
    1/ may acquit him and cancel his sentence – i.e. the Cardinal will be released. , or
    2/ it may send his case back to the Victorian Court of Appeal for a rehearing of his failed appeal.

    If the matter is returned to the Court of Appeal, a question similar to the position of Susan Neill-Fraser arises: does a person have a right to bail while making an appeal to a higher court? In the case of Susan Neill-Fraser, my reading of the various legislation is that Tasmania allows for bail pending the outcome of an appeal only if it is made on a question of law. I have no knowledge of Victorian law regarding bail while an appeal is pending.

    Neill-Fraser’s continued imprisonment seems quite extraordinary, given that a witness has come forward, apparently declaring that she (the witness) was present when Bob Chappell was attacked and that Neill-Fraser was not on the yacht. The witness statement, which seems to have been critical in Justice Brett’s granting Neill-Fraser leave to make a 2nd Appeal, may have named two men as being involved in the assault on Bob Chappell. The Parliament, given the extraordinary circumstances of the case, could, in my view, convene to allow (via special legislation) for the temporary release of Neill-Fraser, pending the outcome of her appeal.

    After all, if memory serves me correctly, the (Tasmanian) parliament amended the Criminal Code Act 1924 (have checked, it was so amended in 1994) to enable Mark ‘Chopper’ Read to be re-sentenced – effectively enabling him to be kept in jail forever. Subsequently, Michael Hodgman (then a QC and member of the Tas. Lower House) campaigned successfully to have him released. Hodgman’s son Will, later became Premier and is remembered by Colin McLaren (in Southern Justice) and recounted also by Charles Wooley as sourly being present when Robert Richter presented his confidential ‘White Paper’ – which was subsequently leaked by one of the three government members present at that meeting. Will Hodgman, it must be said, left Susan Neill-Fraser to rot in jail. He could have helped, but (to my knowledge) did not.

    In the matter of Cardinal Pell, should the HC send him back to the Victorian Appeal Court, I would not press as strongly as I do on behalf of Neill-Fraser (and please remember that I’m ignorant of Victorian bail provisions). Last point that I need to make, is that while the case against Neill-Fraser is seen as ‘circumstantial’ (i.e. no witness to her alleged crime etc), this is not quite the case with Cardinal Pell: there is a witness (the actual victim, though corroborative evidence seems absent).

  3. Patrick Muldowney says:

    1st an important correction. The 2 J’s of the HC have not accepted the appeal but very cleverly have put that question before the full bench (and that can be 7 or Just 5 j’s). The important point is that this brings the matter on in the fastest manner possible.

    Before explaining why, I will just state baldly that it is self evident at this point that Pell’s conviction is unsafe. Further than that the now supposedly proven offending was literally impossible to have taken place. The complainant is either a mentally troubled person or a liar, I think the evidence is for the former. Now to the why.

    1/The location was not empty for the required offending.
    2/The complainant could not get there from his ‘starting point’ (the back gate very near where the choir seperate from the other processionists -altar servers & priests. Not possible even if he was running (back around and into and then in the cathedral) with his alleged other ‘victim’ still wearing his dress like choir uniform. The altar servers can not vanish at any point and always took about 6 minutes for the procession after they got back they bowed to the cross and then had duties that kept the sacristy a literal hive of ‘activity.’ https://quadrant.org.au/opinion/qed/2019/10/pells-new-appeal-and-this-hiatus-this-gp/
    3/The only Sundays that were available for the allegation were the 15th and 22nd, and the 15th had a very good 3rd witness that placed Pell out front of the Cathedral for the period, as Pell and Portelli had said and as was his practice and what is good politics! 13yr olds would remember what happened just before Xmas when they were in the 1st year of their 2 year stint. Xmas is a very big event for Christian’s, and just to be clear I’m an atheist even something of an anti theist as well as being a revolutionary leftist so I have little in common with Pell and his whole world view.
    4/ Before I was able to understand the impossible timeline I had concluded that this case was NOT making any sense and had read up on some of Milligan’s articles about ‘the Kid and the Choirboy’ and I had listened to Marr’s podcast ‘The Reckoning’. In the later we were told by the young woman who attended ALL court days that the ‘victim’ had told his brother and sister about the event on his grandmothers 80th birthday while drunk and in the back of the car being driven home., now here is where we are forced to speculate because the evidence is not transparently presented but it is evident to me that this incident was both after the other man’s death and must have been conveyed to both ‘the Kids’ mother and then to the police. SANO police then approached the grieving mother and her ex and tried their level best to get more evidence but got nothing. The ‘kid’ was only later convinced to give a formal statement to the police. It seems that mother who had been concerned about the mental state of her son now had a reason for all the trouble and was out to get Pell as was SANO.

    Now the upshot of all this is that the HC will hear this and they will find in Pell’s favour and he will be out by the end of May at the latest I would think. But that ought not be where this case ends. The police ought to be investigated and face the consequences of putting a case together that they ought to have known did not have an opportunity to have happened. Then Milligan and the ABC ought to be exposed for what they have been up to and Marr and his puppet (who is herself currently writing a book about this).

    There are still people that think Lindy killed her baby and we must remember that even the HC got her case wrong! But there is no way that people can’t count the tick tick time that shatters this complaint. It is the work of a troubled mind that did not even know what he was talking about and had to change his story as they are to this very day with the locked door being now changed to the blocked door in the latest reprint of Milligan’s book. But that patch up just makes it worse because then the offending had to take place in the corner and Pell could not have even discovered the red wine swigging boys (proven to be white wine) until he got right into the hive of activity area called the after mass sacristy.

    The police have caused millions of dollars of public funds to be wasted and Pell has been persecuted for something that never happened.

    Even when this rotten case is overturned none of us will be safe until what led to this is dealt with. But that is for another time…

  4. Mez says:

    This is an educational set of videos for all those questioning the credibility of Pells victims – and YES, there ARE more than one. What psychology do the courts consider when it comes to credibility?



  5. Mez says:

    If I was innocent of such charges, I would help law enforcement identify all the perpetrators and collaborators by offering as much information and documentation as I could.

    Like Prince Andrew, Pell has done NOTHING to help ANYBODY even though they do have information that could help. With-holding this information spells GUILT!!

    End of story!

  6. Ever been sexually assaulted – then you can put forward your point of view!

    • Robinbowles@bigpond.com says:

      Alexandra, opinions are being offered here on the legal system, not the issue of sexual assault . Of course the over riding opinion about sexual assault is that it is unacceptable. However, one is entitled to an opinion about the legal system, whether or not one has experienced any kind of assault, sexual or otherwise. In our legal system, if there is insufficienct admissible evidence, a conviction is unsafe. Regardless of the public opinion about the accused.

      • Mez says:

        The High Courts oversee constitutional law. Not criminal or common law. Evidence of right or wrong doing by Pell or his victim, or guilt or innocence, has nothing to do with the constitution.

        The constitution applies to the legislature and the government, ie the rules they must abide by under a constitutional democracy.

        Pell has to be specifically challenging a specific law his lawyers perceive as unconstitutional to have been approved for a hearing at this level.

  7. Peter Robertson says:

    As someone critical of Pell, in his generally arch, repressive conservatism and his handling of the Church’s response in Australia to victims of abuse over the years, I never the less welcome the news that his right to appeal has been upheld. We must not allow the law to fall to opinions (like mine) and hearsay, we can’t have a safe judicial system if we cherry pick. Too much righteousness and virtue signalling tends to gather around crimes like these, along with the high and fully justified emotions of victims and those close to them. None of those things should factor in legal process and the conduct of trial, we must insist upon a judicial environment that is impartial, clinical and relies only upon provable, beyond reasonable doubt considerations in establishing the truth. Other factors of course may impact sentencing, but only after a safe conviction has been delivered.

  8. Robin Bowles says:

    Very erudite comment, Mary. All you say is true. And Garry, ‘he said’ ‘she said’ prosecutions are fraught with concern, ie when the judge/jury must come to a decision based on which person they ‘believed’. I saw it happen in the trial of Brad Murdoch for the murder of Peter Falconio. Already demonised by the media, with a judge who showed outright contempt for him, Murdoch didn’t stand a chance opposite the freshly groomed-and-rehearsed-for-court Joanne Lees. Regardless of guilt or innocence, Murdoch’s trial was a horrible farce. Our own Sue Neill-Fraser, likewise. Geoffrey Robertson QC once told me that outcomes in our adversarial court system often come down to not who has the best lawyer, but who is the best liar! The thing is with Pell, like him or dislike him for his activities in the Church, there was NO EVIDENCE. Just ‘he said’ and ‘he said’, in this case.

  9. Mary says:

    The main problem seems to occur with historic allegations of sexual abuse, particularly of people who were minors at the time. Granted that it is often difficult for a minor to complain at the time, however many minors do complain, either officially or to a friend, and the matter is investigated by the police, evidence and statements taken, and a decision whether to prosecute or not to prosecute is made.

    Forty or fifty years later there is no evidence. If there is no evidence, then there must be reasonable doubt and if there is reasonable doubt then there should be no conviction.

    However in the practice of the law at present, people are being convicted with no evidence except “the ring of truth”. “He was a credible witness”.

    Unfortunately lawyers, judges and juries are neither doctors nor psychologists but some of them seem to think they have some special ability to recognise the “ring of truth”.

    The truth is that knowing whether someone is telling the truth or not based on demeanour is a matter of chance. 50-50. The man in the street gets it right about 50 – 55% of the time and experts such as police, and presumably judges, even appellate judges, get it right about 45 – 50% of the time.

    Anyone can have the “ring of truth” if they believe what they are saying. They may even have been abused in the past in the way, or much the same way, as they have claimed in court. The only problem is that the perpetrator was someone different. Perhaps someone too close to home such as a family member, or a much admired teacher, or much loved parish priest and the victim unconsciously substitutes someone else as the perpetrator.

    Memory is correctly known to rely on how well the memory was laid down in the first place and how open it is to being correctly retrieved. How much trauma there was prior to the abuse and again, how much trauma the person has endured after the abuse for related or totally unrelated reasons.

    But memory is much more complicated than this. It can be influenced by a person’s expectations that he or she will be sexually abused in certain circumstances perhaps at the same time as being physically abused or perhaps in very private situations, so that the claimed sexual abuse is a subjective truth that certainly has the “ring of truth” or the person is judged to be a “credible” witness.

    There are many false memories perpetrated by the media reporting and constantly showing a particularly awful photo of a certain person whilst writing about that person in highly defamatory language.

    There are false memories as a result of merging historic memories and the victim will be totally convinced that his or her memory is correct. “I know what I remember”. “It’s always been in my head”.

    There is an emotional reward in belonging to a “victim” group. There is often a reward in finding something that will justify a “victim’s” own poor choices in life, although that does not appear to be the case in Pell’s accuser providing we have been told all the facts. There is incentive in financial reward.

    There is revenge for some real or perceived wrong which can translate over the years into a belief in sexual abuse if other psychological factors are present. Often victims suffer from significant mental health problems that are not necessarily revealed to a jury and those mental health problems can affect that person’s perception of a particular person as an abuser, and in particular, as their abuser.

    There can be anger at someone who represents the “face” of the church or government department or sport that the victim identifies with their real or imagined abuse.

    There can be total hallucinations rather than recovered memories which are really difficult to disprove twenty, thirty or fifty years later when there is no evidence. The accuser will certainly have the “ring of truth”.

    There can be outright lies, although I don’t think anyone is suggesting this in Pell’s accuser.

    There can be misidentification because of some similar features between the real perpetrator and the accused person. One might think it is difficult to misidentify someone so identifiable as Cardinal Pell, until one knows it is even possible to substitute a male for a female depending on the victim’s expectations of authority figures. Anyone who doubts this needs to read Janice Haaken’s mistake about a simple incident of getting into trouble over serious family mores from her father when in her early teens, and then finding her diary in her late twenties where she had described the event in detail about how it was her mother who had found her dancing to a forbidden Elvis record.

    The truth is that an adversarial system of justice is not equipped to arbitrate on matters that rely on inherently unreliable memories, particularly when those making the decisions know very little about the psychology of memory, and those prosecuting and defending likewise think it is all a matter of law without taking psychology into account. Sometimes all these lawyers don’t even take notice of specialist opinion regarding medical effects of stress on the memories of both the accusers and those accused. Receptors on neurones can become overloaded and “clogged” so that the message does not get through; and cardiac problems and other medical conditions can also become a serious memory problem for those under stress giving evidence. Clearly, historic sexual abuse allegations should not be decided on a “ring of truth”.

    • Garry Stannus says:

      Gee whiz, Mary: what an outstanding comment! I recall that Andrew some time ago posted on this blog something dealing with the notion of transferred memories (such as you have suggested in your comment here.) Hang on, I’ll go and look for it…

      … ah! Here it is:

      George Pell appeal: how compelling victim and conflicting facts co-exist
      Posted on June 6, 2019 by andrew

      Andrew L. Urban. This appeal underlines the conflict at the heart of many sexual abuse cases: the conflict between a compelling, moving and credible victim on the one hand, and conflicting facts on the other. They can co-exist, with one … Continue reading →
      [ https://wrongfulconvictionsreport.org/2019/06/06/george-pell-appeal-how-compelling-victim-and-conflicting-facts-co-exist/ ]

      The term that Andrew used was ‘memory overlay’. I’d urge anyone reading these comments on this thread, to find the time to read Andrew’s article [at that link just above].

      When I read it (and now, again, having read Mary’s comment) I wondered if ‘memory overlay’ as a line of defence was advanced during the legal process which resulted in the guilty verdict and failed appeal.

      Of the case itself, I don’t know the truth and presumably I never will know it with confidence. Maybe Pell is guilty, maybe he is not. Maybe the victim told the truth … or maybe the victim told what he thought was the truth. Both of these last would possibly be accompanied by that “ring of truth”.

      I have a separate interest: it is in clarifying the approaches that courts should take when cases based on circumstantial evidence are advanced, when single witnesses make uncorroborated accusations and when allegations of historic crimes are made.

      ‘Beyond reasonable doubt’ is such a pliable term, in the hands of counsel, in the minds of a cohort within the Janes and John Does of this world, a cohort which is naturally suspicious of difference and yes … pliable even when from the lips of the judges who direct and advise juries.

  10. Garry Stannus says:

    The dissenting appeal judge was – as I recall – senior in his experience of such cases.

    There is the difficulty faced by many, of how to press the claim of sexual abuse, when it was likely to have been committed alone, that is, in the company only of the perpetrator.

    Then there is the other side: that of a person accused of sexual abuse by a single witness (the allegedly abused person).

    I think here we have a difficulty in the law (not the statute law necessarily) but in its practice. Should a person be convicted of assault on the evidence of just one person? Does the law allow such convictions to occur, years after? How can a victim achieve justice? How can the accused?

    • Mez says:

      Garry, there wasn’t just one person who reported Pell. There were dozens. The fact that he and his church were successful at whitling the list down to one single victim in this particular case is the only reason people want to defend him – THAT was the Church’s intention.

      The Choir Boys case was held separately, not even sure it has been convened yet. Then there’s the suicided cases who have been conveniently swept under a rug, even though they too reported it.

      This is not a case of one person’s word against the other. And if you listen to the victims: they don’t want money – they want justice! Not just for themselves but for those who suicided as well.

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