"Everything is overshadowed by the forthcoming appeal," wrote George Pell's anonymous accuser on the day the cardinal was sentenced to six years in prison. He wasn't wrong.
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Watchers of American television are likely to think that appeal courts exist solely to judge the trial judge. But only two of Pell's grounds of appeal - both on procedural matters - fall into that category. Pell's third ground, and his real argument, is that the jury's verdict was unsafe and should be overturned.
![George Pell's appeal hearing will take place on June 5 and 6. Although it is a Court of Appeal hearing, it will take place at a larger Supreme Court building in Melbourne to cater for intense public interest. Picture: Supplied George Pell's appeal hearing will take place on June 5 and 6. Although it is a Court of Appeal hearing, it will take place at a larger Supreme Court building in Melbourne to cater for intense public interest. Picture: Supplied](/images/transform/v1/crop/frm/fdcx/doc75mnhrkvqlk17e22te15.jpg/r0_0_1024_576_w1200_h678_fmax.jpg)
Anyone convicted of a crime in Australia can ask an appeal court to determine for itself whether it agrees with a jury's guilty verdict. In Victoria, an appeal court must allow an appeal if it is satisfied that "the verdict of the jury is unreasonable or cannot be supported having regard to the evidence." In other words, it judges the jury's verdict.
How this works in Australia was once such a contentious question that it repeatedly returned to the High Court. It was starkly demonstrated when Lindy Chamberlain appealed against her conviction for murdering her baby, Azaria. On one side was future chief justice Gerard Brennan, who said that appeal courts must not take on "the impossible burden of retrying every appeal case on the papers." On the other side was future governor-general William Deane, who said that Brennan's test "could sap and undermine the institution of trial by jury" by making jurors bear the responsibility for every injustice.
Brennan was part of the three-judge majority that dismissed Lindy Chamberlain's appeal. Deane, who voiced considerable doubts about the defence's dingo theory, believed reasonable doubt existed about Lindy Chamberlain's guilt.
History vindicated Deane on both the facts and the law. "If there is a significant possibility that an innocent person has been convicted," the High Court wrote in 1994, "then the court is bound to act and to set aside a verdict based upon that evidence." This test will decide if George Pell spends his 80th birthday inside a prison cell.
![George Pell arrives at Melbourne Magistrates Court in 2017. Picture: Jason South George Pell arrives at Melbourne Magistrates Court in 2017. Picture: Jason South](/images/transform/v1/crop/frm/silverstone-feed-data/e1002aa5-92d7-4c08-8724-ee05941ced9b.jpg/r0_5_729_415_w1200_h678_fmax.jpg)
The cardinal's appeal centres on the fact that his anonymous accuser testified from another location via closed-circuit television. This means that the appeal judges can, if they choose, see exactly what led Pell's second jury to convict him of all four offences, leaving them free to make their decision without any deference to the jury's advantages.
To date, no one but the judge, the jurors, the lawyers and Pell himself has seen the video, but it is clear that the accuser's testimony was compelling, even in the face of hostile questioning. We also know that its subject matter concerns horrible events that occurred in the space of minutes, decades ago, out of sight of nearly everyone. The three judges will be well aware that cross-examination can only go so far in questioning such an account. The same is true for a second video the jury saw, in which Pell angrily denied the accuser's claims put to him by police in Rome.
Pell will argue that neither video is enough to support a safe verdict. This is a make-or-break issue for Pell's prosecutors, because Pell's trial is a rare one in which no other evidence of his guilt was offered. Unlike many child sexual abuse trials, there was no evidence of the accuser's earlier complaints before he went to the police, of the defendant admitting that anything untoward happened, of other similar complaints against the defendant or of any other interactions with the alleged victims. Nor, unlike nearly all such trials, is there any evidence that places accuser and accused in the same room. The most the prosecution could offer was (disputed) evidence that the accuser's account was at least logistically possible.
What makes Pell's trial almost unique is the absence of the other person the jury concluded Pell raped in the sacristy at St Patrick's. That man told no one at all that Pell abused him and even denied it outright when asked. Such denials are entirely consistent with abuse, but also with not being a victim at all. The man's death, just one year before Pell's accuser first went to the police, means that we can never know what he would have said about the accusations against Pell.
Neither the accuser's testimony nor the other man's (and other evidence's) absence are likely to be enough to decide Pell's appeal. Rather, the case will likely turn on each of the three appeal judges' individual view of what is plausible or possible within those parameters. Is it plausible that Pell would rape two boys in his first year as a Melbourne archbishop, in an unlocked room after Sunday mass? Is it possible that Pell's accuser, who has no history of dishonesty, wrongdoing or fantasy, would lie, not only to the police but in days of convincing court testimony?
Victoria's Court of Appeal hears around 250 criminal appeals each year, but two-thirds concern whether a sentence is too high or too low and most of the rest concern whether a trial judge made a mistake. Barely a dozen convicted criminals a year argue that the jury's verdict against them was simply unsafe. Since 2016, 10 such appeals have succeeded in Victoria, a success rate of around one-in-four.
But past judgments are even worse predictors than pre-election opinion polls because criminal appeals are just too varied and unsafe verdict appeals are a very select group. Of greater relevance is that two of the judges, Chris Maxwell and Mark Weinberg, have expressed arguably different views on how far appeal courts should go.
Regardless of such disagreements, the three judges are likely to strive to reach a unanimous decision that emphasises the particular facts in Pell's trial. As David Marr recently observed, Pell will surely take heart from the fact that Weinberg reaffirmed the High Court's 1994 decision in a case of institutional child sexual abuse - one that, like Pell's, involved a police complaint first made in 2015.
While by no means certain, Pell's chances of a ruling that his jury's verdict was unsafe are good. But any victory for Pell will be overshadowed by another possible appeal, this time to the High Court of Australia. That court, alone among Pell's potential judges, has the freedom to choose whether to decide at all. Whoever wins in the Court of Appeal, Pell, his accuser and the rest of us will learn whether the national court will take on the case by the end of the year.
If it does, all bets are off. Unlike the Court of Appeal, the High Court only rarely hears arguments about the safety of jury verdicts, and does so disproportionately in high-profile cases. Nor is it bound to follow its earlier rulings. In these ways, Pell's next set of potential judges bear a closer resemblance to his first two juries than to Victoria's Court of Appeal.
- Jeremy Gans is a professor at Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system.
- Published in partnership with Inside Story.