The document that damned George Pell
THE dismissal of Cardinal George Pell's appeal has been a blow to his supporters but in a 120-page judgment, two appeal judges have revealed the evidence that swayed their decision.
Pell's appeal was denied yesterday by the Victorian Supreme Court and he is now considering whether to launch a High Court appeal or serve his six-year sentence.
Three appeal judges looked at the evidence presented in his case to see whether it was reasonable for the jury to have convicted him. Two of them agreed with his conviction.
This is why.
THREE GROUNDS OF APPEAL
Pell's team put forward three grounds of appeal but the Court of Appeal ruled two of these were not valid.
The one ground that they did allow an appeal on was whether the guilty verdict was unreasonable based on the evidence presented.
HOW DID THEY REACH THEIR VERDICT?
Originally Pell's lawyers argued against the appeal judges watching video of the examination-in-chief of Pell's accuser and his cross-examination but this was not upheld.
Instead the judges tried to put themselves "in the closest possible position to that of the jury".
They watched more than 30 hours of recordings of the evidence given by 12 of the 24 witnesses during the trial, and read a written transcript from the trial that was about 2000 pages long.
They watched Pell's police interview recorded in Rome before he was charged, as well as a pre-recording of the complainant's testimony and his cross-examination at trial.
The judges decided not to look at material that was not available to the jury, including evidence that may have been excluded. For this reason, they also didn't read the complainant's two police statements even though they were referred to in his cross-examination.
They watched or read transcripts from witnesses including choir members and staff who held official positions at St Patrick's Cathedral, Melbourne where the offences occurred. Their testimonies were important in establishing the processes and practices at the cathedral and whether there was a realistic opportunity for the assault to have occurred.
The judges were taken to the cathedral to be shown what the jury had seen, watched recordings of the view the jury was taken on and a walk-through of the cathedral by the complainant.
Both the prosecution and Pell's lawyers also made extra oral and written submissions.
FABRICATION AND INVENTION
The crucial question was whether the court found the complainant believable enough that the jury could be satisfied beyond reasonable doubt that the events had occurred.
The jury were asked to consider whether the complainant was a reliable witness and whether he seemed honest, or whether he appeared to be a dishonest witness who was exaggerating or putting a positive spin on things.
The defence tried to paint the complainant as a liar, or someone who was recounting a fantasy he had come to believe was true. However, no motive was given as to why the complainant would do this.
Pell's team also argued the complainant, known as "A", had made up or invented new pieces of evidence but the appeal judges didn't agree.
"We saw nothing in A's answers under cross-examination to suggest that he had been caught out or had tripped himself up," the judgment states.
"Where his responses involved any alteration of - or addition to - what he had said previously, the changes seemed to us to be typical of what occurs when a person is questioned on successive occasions, by different people, about events from the distant past."
One example was that the complainant mistakenly thought that he had started grade 7 in 1997 when the correct date was 1996. He also couldn't remember whether Pell was leading the mass at the time of the assault or just contributing as part of the clergy.
The judgment noted it was understandable for A to have a hazy recollection of the timing and the surrounding circumstances.
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In fact the judges believe the complainant's uncertainty about some details actually added to his credibility.
He has said he couldn't remember whether the door was closed the first time Pell assaulted him, but if he was liar or fantasist he could just assert that it was.
The complainant was also able to correctly describe the layout and furnishing of the alcove where he and his friend was discovered by Pell and remembered where the wine area was, which has since moved.
It was also "striking" that the complainant identified the priests' sacristy as the setting for the abuse because Pell would usually have disrobed in the archbishop's sacristy, which was temporarily unavailable at the end of 1996 because its furniture was under repair.
The judges found there was nothing in his account that was so "inherently improbable" for the jury to entertain a doubt.
"Throughout his evidence, A came across as someone who was telling the truth."
WHO WOULD DO THAT?
Pell's lawyers argued that it was highly improbable that someone in his position would have acted in the high risk way he was being accused of.
But as the prosecution pointed out, some people take risks in circumstances many others wouldn't. It noted the case of one priest who indecently assaulted boys in his school office, and on one occasion this happened in the presence of two other priests and three other boys.
THE TIMING WAS IMPOSSIBLE
The complainant remembered that the assaults happened in the second half of 1996 and that the second incident was "over a month" after the first.
Pell's team point out that the then-archbishop was at Sunday Mass on only two dates - 15 and 22 December and therefore the complainant's account is "impossible".
But the judges said they were not persuaded by this argument and said given the complainant said he had tried to suppress the memories of the assaults, "he is unlikely to have had a clear recollection of dates". He also made it clear that he did not know for sure what dates the offences happened.
"This is the kind of detail about which honest witnesses make mistakes," the judgment noted.
The prosecution believes the second incident may have occurred on 23 February, 1997.
Another argument from Pell's team was that it was "impossible" that the assault could have occurred in the way described.
This is partly because it was "practically impossible" for Pell to be alone with two young choirboys in the 10 minutes or so after mass, and he would usually be greeting parishioners on the front steps during this time anyway.
Witnesses painted a picture of a regimented choir and a diligent assistant who did not leave the new archbishop's side. They suggested the priests' sacristy was a "hive of activity" in the 10 to 15 minutes after mass, and also supported suggestions that Pell greeted parishioners on the steps after mass.
However, the judges found the evidence given by witnesses could be inconsistent.
"The overall effect created by the evidence was that of uncertainty and imprecision," the judgment said.
None of the witnesses could say with certainty that the routines and practices of the cathedral were never deviated from.
The prosecution suggests the assault could have taken place in the five to six minutes between the private prayer time parishioners had after service, and before the sacristy became a "hive of activity" with altar servers and the sacristan returning the sacred vessels.
HE WAS NEVER ALONE
Another argument in Pell's defence was that he was never left alone when he had his archbishop's robes on. The evidence here was also patchy.
Much of it relied on statements from staff including Pell's master of ceremonies Charles Portelli, who conducted between 140 and 150 masses with Pell over a period of five years.
Portelli initially said he remembered accompanying Pell on December 15 and 22, and that the then-archbishop greeted parishioners after mass. But later he couldn't remember details without being prompted.
The judges said the jury were entitled to have reservations about his answers.
"He did not have any independent recollection of the particular Sundays in December 1996," the judgment said.
Max Potter, a sacristan at the cathedral for 38 years, also had difficulties remembering details. So much so that Pell's team acknowledged he was "confused about a number of things" and "susceptible to leading questions".
THE ROBES COULDN'T BE PARTED
Reliance was also placed on statements by Portelli and Potter that it was not possible for Pell's robes to be parted in the way described by the complainant.
They said it was impossible to pull the alb to the side while the cincture was tied at the waist but when the judges tried the robes on, they didn't agree.
"The alb was neither so heavy nor so immovable as the evidence of Portelli and Potter had suggested," the judgment stated.
"To our observation, it was well capable of being manoeuvred - while the cincture was firmly tied at the waist - in a way that might be described as being moved or pulled to one side or pulled apart."
VIDEO EVIDENCE REJECTED
The other two grounds of Pell's appeal were found by all three judges not to be valid.
One of the grounds involved the decision of the trial judge not to allow Pell's lawyer to use a video animation in his closing speech.
The animation showed a blueprint of the cathedral and showed the movements of specific people using dots and lines.
In rejecting the evidence, the judges said the animation showed a "distorted picture" of the evidence and was "tendentious in the extreme".
For example, it showed other concelebrant priests in the priest's sacristy, where the two choirboys were assaulted, when the attack happened.
"There was no evidence of any kind that this particular scenario had occurred," the judgment summary said.
The judges said it was potentially misleading or at least confusing to the jury as it "plainly intended to implant in the minds of the jury" that the complainant's account was impossible because there were other priests in the room when the assault took place.
THE GUILTY PLEA
A third ground of appeal that was rejected was about whether there was a "fundamental irregularity" in the trial process.
Pell needed to be arraigned "in the presence of the jury panel" but the jury were in another room watching by video link the moment that Pell was asked whether he plead guilty or not guilty.
The judges said legislation allowed for the use of a video link and the trial process did not require Pell to be physically in front of the jury.