Cardinal George Pell is considering appealing his conviction for raping a choirboy and molesting another to the High Court in a desperate final bid for freedom.
The disgraced former Vatican treasurer is back behind bars after his appeal against the result of his December trial was dismissed by the Victorian Court of Appeal.
The court in a two-to-one decision on Wednesday upheld the original conviction, meaning Australia’s most senior Catholic official must serve out his six-year sentence with a non-parole period of three years and eight months.
Pell’s unsuccessful appeal was thought to likely to bring an end to the ongoing saga, which has dragged on for years across three court jurisdictions, but the door is open for one last-ditch effort.
Cardinal George Pell (pictured leaving court) will remain behind bars after the Victorian Court of Appeal ruled a jury that condemned him got it right
He has 28 days to seek leave to appeal to the High Court, but such appeals are rarely granted unless there is a contentious point of law up for debate.
He has also previously indicated that he would not seek leave to appeal to the High Court should his Victorian appeal fail.
However, a spokeswoman for the disgraced cardinal did not categorically rule out further legal action in a statement following the appeal.
‘Cardinal Pell is obviously disappointed with the decision today,’ she said.
‘However his legal team will thoroughly examine the judgment in order to determine a special leave application to the High Court.
‘While noting the 2-1 split decision, Cardinal Pell maintains his innocence. We thank his many supporters.’
A further appeal would likely see an argument resume over whether he could be released while the matter progresses to the higher court.
The High Court only hears a very small proportion of the cases petitioned to it – only accepting 65 of 430 cases in 2017-18.
Pell’s lawyers must first submit a written application, to which the Director of Public Prosecutions can respond, with a counter response to come from Pell’s camp.
If the court decides to proceed, each side will have just 20 minutes to convince two or three justices that the case should be heard by the full seven-member bench.
The whole process would take up to a year and its high profile would not factor into the court’s decision on whether to hear it, or how soon the hearing might be.
Cardinal Pell is seen being taken to a prisoner transport that will take him back to jail to serve the rest of his sentence after his appeal was denied
The prisoner transport carrying Pell leaves to return him to jail where he will remain for at least the next three-plus years
For now, Pell’s detractors are happy with the result. On hearing the decision after the 15 second delay, a loud cheer could be heard from outside the Supreme Court where dozens had congregated.
After the judgement was read out, Pell – wearing his priestly robes for likely the last ever time – was escorted to a prisoner transport van and taken back to jail.
The Church is yet to respond to the dismissal of Pell’s appeal. He was dumped from his position as Vatican treasurer upon conviction but a decision on whether to defrock him was left until after the appeal.
Pell appeal: Key facts
Three Supreme Court justices heard the case and examined all evidence from the original trial.
Pell’s lawyers claimed jury decision was unreasonable and there were two procedural errors.
Two of the three justices ruled the jury acted reasonably and conviction was sound.
The third disagreed and said the jury should have found Pell not guilty because there was reasonable doubt.
Majority justices found victim a reliable witness. The third did not.
All three threw out procedural complaints by Pell’s team.
Pell has 28 days to appeal to the High Court – his last bid for freedom.
Vatican may defrock him as it left the decision until after his appeal.
Read the entire 324-page decision.
Pell will also be stripped of his companionship of the Order of Australia, which he was presented with in 2005.
The denial of Cardinal Pell’s appeal was 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.
Justices Ferguson and Maxwell both voted to uphold the conviction, while Justice Weinberg voted to partly grant Pell’s appeal.
It took them nine weeks to release their decision.
Justice Ferguson, in reading the verdict from 9.30am in the Victorian Supreme Court, acknowledged ‘it’s fair to say that this case has divided the community’.
She also stressed that Pell’s conviction only affected the crimes he committed, and shouldn’t be seen as an indictment of anything else.
‘As the trial judge observed, he is not to be made a scapegoat for any perceived failings of the Catholic Church, nor for any failure in relation to child sexual abuse by other clergy,’ she said.
‘His conviction and sentence could not be a vindication of the trauma by other victims of sexual abuse.’
Justice Ferguson then turned to the reasons for the court’s decision, both those of the majority and dissenting justice Weinberg.
‘Cardinal Pell’s case was that the complainant’s account was a fabrication or a fantasy that it was implausible and that in any event, the evidence of the opportunity witnesses, taken as a whole, combined to make the complainant’s account either literally impossible or so unlikely, it’s of no realistic possibility,’ she said.
Justice Ferguson said when the unreasonableness ground is relied upon, the appeal court reviews the evidence as it was presented to the jury.
Pell (pictured arriving at court) can seek leave to appeal to the High Court, but such appeals were rarely granted unless there is a contentious point of law up for debate.
Pell arrives at the court on Wednesday morning ahead of the appeal judgement being read
The court in a two-to-one decision, upheld the original conviction, meaning Australia’s most senior Catholic official must serve out his six-year sentence with a non-parole period of three years and eight months
The appeal court asks itself whether it was ‘reasonably open to the jury’ to convict the accused.
‘It is not enough that the jury might have had a doubt, but they must have had a doubt,’ she said.
‘This was a compelling witness, clearly not a liar, not a fantasist and was a witness of truth.
‘We decided that there was nothing about the complainant’s evidence or about the opportunity evidence which meant that the jury must have had a doubt about the truth of the complainant’s account.
‘We did not experience a doubt.
‘Throughout his evidence, the complainant came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution.’
The pair noted some inconsistencies between witness accounts, but decided this was due to the passage of time.
On the other side, Justice Weinberg concluded the victim’s evidence ‘contained discrepancies, displayed inadequacies’ so as to cause him to have a doubt as to the applicant’s guilt.
‘He could not exclude as a reasonable possibility that some of what the complainant said was concocted, particularly in relation to the second incident,’ Justice Ferguson explained.
‘Justice Weinberg found that the complainant’s account of the second incident was entirely implausible and quite unconvincing.’
The dissenting justice said if the victim was the only one giving evidence about the first crime, he would have found it difficult to say the jury convicted unreasonably.
Cuffed and humiliated: George Pell is led back to jail to await his fate. He now faces an uncertain future after losing his appeal
George Pell appeared back in his traditional clerical garb after attending his sentence in civilian attire. Pell took notes and listened intently to every detail of his two-day appeal
Pell to be stripped of Order of Australia
George Pell will be booted out of the Order of Australia as a result of losing his appeal.
Prime Minister Scott Morrison, in encouraging child sexual assault victims to seek help, confirmed the disgraced cardinal’s membership would be stripped.
‘Events like this today bring it all back. I would urge Australians who are finding themselves reliving these experiences to reach out to those around them, to reach out to the services that are there for them,’ he said.
‘They’ve rendered their verdict, and that’s the system of justice in this country and that must be respected,’ he said, adding this would see Pell, who remains a cardinal of the church, lose his Order of Australia.
‘My understanding is that this would result in the stripping of the honours that are decided externally to the government. That is a process that is done independently, and that of course will now follow.’
However, Governor General David Hurley said Pell may not be stripped of his membership until after any High Court challenge is decided, or Pell fails to appeal.
‘Appointments to the Order of Australia may be terminated and one of the grounds is conviction for a crime or offence under a law of the Commonwealth, State or Territory,’ he said.
‘Once all legal proceedings have run their course, the Council for the Order of Australia may make a recommendation to me as Chancellor of the Order, which I will act on.
Pell was made a Companion of the Order of Australia in 2005.
However, in his view, evidence from other witnesses meant that the jury should have had reasonable doubt about Pell’s guilt.
‘In Justice Weinberg’s view, there was significant and in some places impressive evidence suggesting that the complainant’s account was, in a realistic sense, impossible to accept,’ Justice Ferguson said.
‘To his mind, there is a significant possibility that the Cardinal may not have committed the offences.
‘In those circumstances, Justice Weinberg stated that in his view, the convictions could not stand.’
Justice Ferguson said part of Cardinal Pell’s case on the appeal was that there were 13 solid obstacles in the path of a conviction.
Both she and Justice Maxwell rejected all of them.
As an example, she discussed Pell’s claim that it was not possible to pull a Cardinal’s complicated robes to the side to rape the boys.
‘The robes were not so heavy, nor so immoveable as the evidence of [Pell’s witnesses] had suggested,’ she said.
‘We found that the robes were capable of being manoeuvred in a way that might be described as being pulled to one side or pulled apart.’
Justice Ferguson noted that there was no burden of proof on Pell to prove the allegations were impossible – it was on the prosecution to prove it happened.
All three justices rejected two procedural grounds on which Pell’s lawyers claimed the conviction should be quashed and a new trial ordered.
The first was that the judge erred in not allowing defence lawyers to show a video animation to bolster their closing argument.
The animation showed the positions and movements of people in the cathedral during the crimes in an attempt to prove they couldn’t have happened.
It was disallowed because the trial judge ruled it was new evidence, which couldn’t be admitted so late in the trial.
Justice Ferguson said all three justices ruled the animation was ‘tendentious in the extreme’.
A protestor holding placards opposing the Catholic Church protests outside the Supreme Court of Victoria. George Pell will remain despised by many no matter what the outcome of his appeal
On hearing the decision after the 15 second delay, a loud cheer could be heard from outside the courthouse where Pell’s detractors had congregated
Dozens crowd the steps of the Victorian Supreme Court for the Pell appeal decision
‘The animation bore little resemblance to the actual state of the evidence, but rather presented a distorted picture of that evidence,’ she said.
‘For example, it showed the priest’s sacristy with the boy in the room with a large number of celebratory priests. There was no evidence of any kind that this particular scenario had occurred.
‘It was plainly intended to implant in the minds of the jury that the complainant’s account must have been impossible because the evidence showed that there were con-celebrant priests in the room at the time of the alleged offending.
‘The visual representation ostensibly based on the evidence of trial, had the potential of misleading, or at least confusing the jury.’
The second ground was that Pell did not make his not guilty plea physically in front of the jury, as required.
Instead they watched it via video link from another room because the full jury pool was too big to fit in the court.
‘We held that the word ‘presence’ in the context of the legislation includes presence by video link, and does not require physical presence,’ Justice Ferguson said.
The justices noted that the judgement read out in court was just a summary and not their entire reasoning, which is contained in a 324-page public document.
A Pell supporter rails against the decision to dismiss his appeal moments after the judgement was read out
Julie Cameron, an advocate for victims of child sexual abuse, celebrates the decision outside court
Outside the court there were scenes of jubilation after the verdict filtered through from inside the court, while Pell supporters were outraged.
Lawyer Lisa Flynn, who represents the father of Pell’s deceased victim, said she sat next to her client as the Court of Appeal justices delivered their decision.
‘Today the Court of Appeal has made the correct decision by upholding the jury’s verdict, which saw George Pell convicted of child sexual abuse,’ she said.
‘The disgraced cardinal is in the right place behind bars.
‘Our client has always said that he does not want the man who he holds responsible for his son’s downhill spiral and subsequent fatal heroin overdose to ever again have contact with any members of society.’
Ms Flynn said the father would continue to pursue compensation through a civil claim against Pell.
‘He has suffered immensely knowing what George Pell did to his son as a young choirboy,’ she said.
Victims advocate Paul Hogan, who along with his wife is an abuse survivor, said the decision was a ‘big relief’.
‘It’s great because it means that they’re believing the victims and not just trying to push them away,’ said.
However, he expected Pell to appeal the decision further.
‘It will probably come in the next week or two. He will probably appeal. And he is entitled to do that,’ he said.
Sexual abuse campaigners Rob and Chrissie Foster leave the Supreme Court after the judgement was handed down
Lawyer Lisa Flynn, who is representing the family of one of George Pell’s victims, talks to the media at the Supreme Court of Victoria
The Victorian government issued a brief statement after the decision was revealed.
‘Our thoughts are with the victims and their families during this incredibly difficult time,’ a spokeswoman for Premier Daniel Andrews said.
‘It is not appropriate to comment on the decision, as the courts are independent of government.
‘As this matter may be subject to appeal it would be inappropriate to comment further.’
In the initial hearing, 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.
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 believed the jury got it wrong and the injustice needed to be corrected.
Despite the ruling, high-profile Pell supporter Andrew Bolt said he still believed the Cardinal was innocent and likened his case to the wrongful imprisonment of Lindy Chamberlin.
‘I just don’t think he is guilty beyond reasonable doubt of the implausible offences…that he has been accused of,’ the political commentator said.
‘Juries get things wrong, judges get things wrong. Certainly today we have seen a judgment two to one where either one judge is wrong or two judges are wrong on George Pells innocence.’
Victims advocate Paul Hogan (pictured with other Pell detractors), who along with his wife Valda is an abuse survivor, said the decision was a ‘big relief’
Valda Hogan, an abuse victim, celebrates outside of the Supreme Court of Victoria
Outside the court there were scenes of jubilation after the verdict filtered through from inside the court
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 during Pell’s two-day appeal this month.
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.’
George Pell in the Vatican in 2005. Pell rolled the dice on a last ditch bid for freedom in the Supreme Court of Appeal
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 caught 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 said 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.
George Pell’s victim claimed the Cardinal pulled aside his robes and sexually assaulted him. Pell’s defence say it just could not have happened
George Pell’s barrister Bret Walker SC leaves the Supreme Court of Victoria in Melbourne. He put on a powerful and confident display when he was called to plead Pell’s case
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’s argument for freedom
The timing of the alleged assaults was impossible.
It was not possible for Pell to be alone in the sacristies only a few minutes after the end of Mass.
It was not possible for Pell to be robed and alone in the priests’ sacristy after Mass.
It was not possible for two choir boys to be sexually assaulted in the priests’ sacristy after Mass by Pell undetected.
It was not possible for two robed sopranos to leave an external procession without being noticed.
The criminal acts attributed to Pell were physically impossible.
No one corroborated the second incident though the complainant said it happened in the midst of a 50-person choir
County Court Chief Judge Peter Kidd erred in not allowing Pell’s defence to present a video in his closing arguments, and that there was a ‘fundamental irregularity’ in how Pell was arraigned at trial.
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 always denied the abuse and 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 refuted all of Pell’s defence, which repeatedly claimed 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 said.
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.
But in an animated display. Mr Boyce stumbled through a day of submissions in a nervous display.
The sacristy of St Patrick’s Cathedral in Melbourne where the offences Cardinal George Pell was found guilty of occurred. A victim was able to identify details within the room
Cardinal George Pell presides over the mass at the Barangaroo site for the opening of World Youth Day in Sydney on Tuesday, July 15, 2008. He would have been wearing similar robes when he committed the alleged sex offences
What the judges said during the retrial
Supreme Court Chief Justice Anne Ferguson asked why Pell could not have exposed himself in his ceremonial robes.
Judge Mark Weinberg queried why Pell’s legal team had labelled the offending ‘impossible’.
‘It’s quite misleading in lots of ways, it seems to me,’ he said.
Justice Chris Maxwell suggested it was ‘wildly improbable’ that someone of Pell’s height and stature would not have been seen approaching two choirboys.
He further asked prosecutors why Pell would abuse those boys in a place with many potential witnesses
Justice Weinberg said juries almost always get it right. ‘Almost,’ he emphasised.
Justice Maxwell asked prosecutors why the victim didn’t warn the second chorister after he was abused for a second time by Pell
‘Boys talk, don’t they?’ he said.
The judges are expected to deliver their findings this week
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.’
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 during his appeal.
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.
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.
The former senior Vatican official (pictured) was transported from prison to the Victorian Supreme Court in Melbourne on Wednesday for his appeal hearing
Pells appearance at court marked the first time he had been spotted since sentencing in mid-March (pictured, a protestor could be seen standing outside the Supreme Court as Pell began his appeal hearing)
‘Rather, the evidence from a handful of witnesses suggested that certain scenarios, such as the Archbishop being alone and robed, were unlikely.’
Prosecutors 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.’
During the appeal, one judge mused that juries ‘almost always get it right’ but highlighted the word ‘almost’.
This one got it right, it decided.
From allegations to sentence: A timeline of the George Pell case
* Pell appointed Archbishop of Melbourne by Pope John Paul II
* Pell sexually abuses two 13-year-old choirboys after a Sunday solemn mass at St Patrick’s Cathedral, according to a later jury finding.
* A second indecent act is committed by Pell against one of the choirboys in a corridor at the Cathedral, the same jury found.
* Pell served as Archbishop of Sydney, 2001-2014.
* He has created a cardinal in 2003.
* The Herald-Sun reports Pell is being investigated by Victoria Police’s Sano taskforce for ‘multiple offences’ committed while he was a priest in Ballarat and Archbishop of Melbourne.
* Pell says the allegations are ‘without foundation and utterly false’ and calls for an inquiry into how the police investigation became public.
* Victoria Police Chief Commissioner Graham Ashton asks the anti-corruption watchdog to investigate the leak, but denies it came from police.
* Pell gives evidence to the Royal Commission into Institutional Responses to Child Sexual Abuse in Ballarat.
* Under Vatican rules, Pell gives Pope Francis his resignation on his 75th birthday, as is customary. It is not accepted.
* Victoria Police investigators hand over to the state’s Office of Public Prosecutions a brief of evidence on allegations of sexual abuse by Pell.
* Officers travel to Rome to interview Pell over the abuse claims. He voluntarily participates in the interview.
* Police present their final brief of evidence to the Office of Public Prosecutions to consider charges.
* Prosecutors give police the green light to charge Pell.
* Pell is charged with multiple counts of historical child sex offences.
* He denies the charges and vows to clear his name.
* Lawyers for Pell appear in Melbourne Magistrates Court.
* Pell takes leave from his Vatican finance chief role to fight the charges.
* Pell returns to Australia.
* He hires top barrister Robert Richter QC.
* Supporters set up a fund to help Pell fight the charges.
* Prosecutors drop one of the charges against Pell.
* A month-long committal hearing begins to determine if Pell will face trial.
* Prosecutors withdraw more charges.
* Mr Richter claims police conducted a ‘get Pell operation’ and accuses magistrate Belinda Wallington of bias. She refuses to disqualify herself from the case.
* Ms Wallington orders Pell stand trial on some charges but throws out others.
* Pell formally pleads ‘not guilty’.
* Two trials are ordered, separating the 1970s and 1990s allegations.
* A Victorian County Court employee is sacked for looking up information on the Pell case.
* The 1990s ‘cathedral trial’ begins in the Victorian County Court in Melbourne.
* Pell pleads not guilty again to one charge of sexual penetration of a child under 16 and four of indecent acts with a child, over incidents involving two 13-year-old choirboys at St Patrick’s Cathedral in 1996.
* The jury is discharged, unable to reach a verdict following a week of deliberation. Some jurors weep.
* A retrial begins. The jury aren’t told of the previous hung jury.
* Pell is found guilty on all charges by an unanimous jury.
* Mr Richter says Pell will appeal.
* Suppression orders prevent Australian media reporting the verdict but it spreads through international media within hours.
* Hearings begin ahead of the second trial. Prosecutors drop another charge
* An appeal is filed against the cathedral trial conviction.
* A County Court judge deems vital evidence inadmissible.
* Prosecutors withdraw all remaining charges against Pell and drop a second trial over allegations Pell indecently assaulted boys in Ballarat in the 1970s when he was a parish priest.
* Pell is taken into custody on February 27 as the plea hearing begins.
* Pell is sentenced by County Court Chief Judge Peter Kidd to a maximum of six years in prison. He must serve at least three years and eight months in jail before being eligible for parole. He will be a registered sex offender for life.
* Court of Appeal considers Pell’s application to challenge his conviction on June 5 and 6.
AUGUST 21, 2019
* Court of Appeal upholds Pell’s conviction.