THE time between disgraced Cardinal George Pell’s conviction for sexually abusing two boys in a Melbourne cathedral and the two incidents had an “immeasurable impact” on his case, the Court of Appeal has heard.
The convicted sex offender is seeking to be acquitted after a jury found him guilty of five offences against two 13-year-old choirboys at St Patrick’s Cathedral in 1996 and 1997.
His specialist appeals barrister Bret Walker SC has argued for Pell’s acquittal because the verdicts were “unsafe and unsatisfactory”.
Mr Walker says Pell was disadvantaged by the 18-year gap between the offences and the surviving victim reporting them to police.
He also says that for the complainant’s description of events to be plausible, Pell must have been in the sacristy alone with the boys for five or six minutes after mass when it occurred.
But he argues that prosecution witnesses gave evidence in his trial that Pell went to the cathedral’s western door to greet parishioners after mass, so it would be improbable for him to be in the sacristy.
Pell, currently serving a minimum three-year-and-eight month prison sentence for the offences, returned to court on Wednesday dressed in black and wearing his clerical collar once again, after removing it for his sentencing in March.
Supreme Court Chief Justice Anne Ferguson, Court of Appeal President Chris Maxwell and Justice Mark Weinberg must first decide if Pell will be granted permission to appeal.
In written submissions, Mr Walker, taking over from Pell’s trial barrister Robert Richter QC, claimed more than 20 prosecution witnesses gave evidence that was improbable or realistically impossible.
“This evidence constituted a catalogue of at least 13 solid obstacles in the path of a conviction,” the submissions said.
In court, Mr Walker told the judges witnesses gave “strong, credible and undispelled” alibi evidence that Pell often greeted parishioners at the cathedral’s western door after mass.
“If he was at the western door at the time when, on the complainant’s account, the offending must have been occurring … then the law of physics tells us this is literally and physically impossible for the offending to have occurred on the complainant’s account. And there is no other account,” he said.
The defence also raised the surviving complainant’s “considerable major departure” at trial from the original complaint.
The judges appeared to temper that argument by pointing out that an initial inconsistency over whether the incidents occurred in 1996 or 1997 might come down to the same “fallibility of memory” that Mr Walker also sought to raise to Pell’s advantage.
Mr Walker earlier emphasised the jury should have considered Pell was at a “forensic disadvantage” because of the length of time between the incidents, the first police report in 2014 and trial in 2018.
He said the effect a lapse of time might have on individuals’ capacity to recollect “plainly militate in favour of our appeal” and noted the “immeasurable impact on (Pell) of the passage of time”.
He also noted the death of the second boy shortly before the complaint was first made to police.
“One imagines very high on the list of persons to be inquired of (after the original complaint) would be the alleged co-victim,” Mr Walker said.
“And that could not be done.”
Mr Walker’s arguments are expected to take all day Wednesday, and prosecutors will present their case on Thursday.
In a written response to the defence arguments, they’ve argued the jury was “entitled to accept the complainant as a reliable and credible witness”.
“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,” the submissions say.
Pell was jailed for a maximum of six years.