Cardinal George Pell’s surviving victim was not a liar, nor a fantasist, and the jury had good reason to accept his evidence and find Pell guilty of sexual abuse, a court has heard.
Pell was Australia's most senior Catholic and an inner circle advisor to Pope Francis before he was charged with four counts of indecent assault and one count of sexual penetration with a child.
A jury found him guilty of the crimes in Dec. 2018. The verdict, initially guarded by a non-publication order, sent shockwaves through Australia when it was publicly revealed earlier this year, and is now under appeal in Melbourne.
On the second and final day of the hearing on Thursday, the prosecution argued the guilty verdict should not be quashed, and Pell, who is the most senior Catholic ever found guilty of sexual crimes against children, should see out his minimum three-year-and-eight-month prison term.
The court was crowded for a second day running — rare in the usually dry world of appeal hearings — with a few clerical collars dotted among the people in the public gallery. Pell attended wearing all black and his priest's collar, which was noticeably absent during his sentencing, and took notes periodically on a large yellow notepad.
Crown barrister Chris Boyce QC began his argument by stating to Chief Justice Anne Ferguson, President of the Court of Appeal Chris Maxwell, and Justice Mark Weinberg: “The complainant was a very compelling witness. He was clearly not a liar. He was not a fantasist.”
He told the judges that the first thing to look at was the complainant’s evidence, and that one of the “litmus tests” is how a witness performs when tested.
“If it’s a fantasy, then at some point one would expect the cracks would appear,” he said.
Pell was found guilty of abusing two 13-year-old choirboys, who cannot be identified, at St Patrick’s Cathedral in Melbourne in 1996 and 1997, when he was the archbishop.
One of the boys, the complainant, is now in his thirties and testified at trial. The other died in 2014.
The jury in Pell’s trial believed the complainant’s account of the two boys being discovered by Pell drinking sacramental wine in the priest's sacristy — a dressing and preparation room for people involved in the church service — after Sunday mass in Dec. 1996. Pell orally raped the complainant and indecently assaulted the two boys.
Six weeks later, in Feb. 1997, Pell again indecently assaulted the complainant by pushing him up against a wall and squeezing his testicles as he walked through a corridor past the priest's sacristy.
Boyce picked out a particular exchange between the complainant and Pell’s trial barrister Robert Richter QC, in which Richter questioned him about why he never discussed what happened in the priest’s sacristy with the other boy.
“The responses you see there and the manner in which they’re delivered, at the end of those, one puts down one’s pen and stares blankly at the screen and is moved,” Boyce said.
“At that point … any doubt that one might have about the account, prima facie, is removed.”
There was a discussion about the robes Pell was wearing at the time and whether the complainant's account of them being pulled aside to reveal his penis was possible.
Pell's barrister Bret Walker SC told the court on Wednesday that the restrictive nature of the religious dress cast doubt on the complainant's story.
"It's really the nature of the alb, with the cincture, that makes the pushing to one side, moving to one side just not possible," he said.
Boyce said the manner in which the robes could be pulled upwards, rather than to the side, was “not inconsistent with the complainant’s recollection of what he saw when he was 13”.
Boyce suggested the judges try on the robes and see for themselves whether the evidence stacked up, saying that the jury had taken them into the jury room and would have been able to try them on if they had wanted to.
It was a “feasible and appropriate way” to consider the issue, he said.
Boyce also argued that the complainant’s knowledge of the sacristy was compelling on two counts: he knew the layout of the room, and he knew that at the time the archbishop, who usually had his own sacristy, was using the priest’s sacristy due to renovations.
“The jury can use the knowledge given by the complainant of this irregularity as evidence that would place the complainant in the priests’ sacristy, with the archbishop, at the relevant time. It’s no coincidence.”
Boyce was shaken mid-morning when he accidentally named the complainant in open court, prompting Ferguson to warn: “Be careful, Mr Boyce”.
The proceedings are being publicly live streamed by the Court of Appeal, but with a 15-second delay, and the name was successfully cut from the broadcast before going to air.
The senior barrister looked distressed and paused for a long time after realising his error, holding his hand up to his head. Ferguson offered him a minute to compose himself before continuing.
The three appeal judges have to apply two tests to the evidence: whether the jury must have entertained a reasonable doubt, and if the jury's "advantage" — things they may have experienced as a group sitting in the trial itself, that the appeal judges cannot replicate — might have been able to relieve that doubt.
But this test is complicated in the Pell appeal. Pell’s jury watched a video recording of the evidence the complainant had given at the first trial, which miscarried after the jury could not agree on a verdict.
Later on Thursday afternoon Boyce argued that the jury did still have an advantage over the appeal judges, even setting to one side the video evidence.
"Your honours are not in the same position as the jury. You’re just not," he said, later adding that juries are 12 people "from all walks of life" who are "collectively a highly intelligent body".
On Wednesday, Pell's barrister Bret Walker SC had argued that the 12 men and women who convicted Pell must — not might, but must — have entertained a reasonable doubt as to his guilt.
Walker said the jury had obviously believed Pell’s victim, but many facets of his account had been rendered impossible by the evidence of other witnesses.
In particular, he singled out the timing of events and the church practices and rituals as “crucial” factors.
The appeal judges will hand down their decision at a later date.