CRIMINAL LAW – Appeal – Conviction – Sexual offences – Sexual penetration of child under 16, indecent act with child under 16 – Whether verdicts unreasonable – Crown case depended on complainant’s account – Second alleged victim deceased – Whether complainant credible and reliable – Whether alleged offending improbable – Whether practical impossibility – Opportunity evidence – Whether realistic opportunity for offending to occur – Reasonably open to jury to convict – Appeal dismissed – M v The Queen (1994) 181 CLR 487, Libke v The Queen (2007) 230 CLR 559 applied – Criminal Procedure Act 2009 s 276(1)(a).
CRIMINAL LAW – Trial – Evidence – Jury aids – Animation – Moving visual representation – Evidence given by multiple witnesses as to movements of persons – Judge refused defence application to use animation in final address – Whether visual representation fairly reflected effect of evidence – Whether error of law – Power of judge to ensure jury not misled – Leave to appeal refused.
CRIMINAL LAW – Trial – Arraignment – Accused must be arraigned in presence of jury panel – Arraignment viewed by jury panel through video-link – Whether physical presence required – Whether fundamental defect – Whether miscarriage of justice – Leave to appeal refused – Criminal Procedure Act 2009 ss 210, 217, Juries Act 2000 pt 6.
WORDS AND PHRASES – ‘in the presence of’.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr B Walker SC with Ms R Shann
Galbally & O’Bryan
For the Respondent
Mr C B Boyce QC with Mr M J Gibson QC and Ms A Ellis
Mr J Cain, Solicitor for Public Prosecutions
FERGUSON CJ MAXWELL P
TABLE OF CONTENTS
Summary
Approaching the unreasonableness ground
The jury’s advantage
The Crown case
PART I: THE ASSESSMENT OF CREDIBILITY AND RELIABILITY
The story was false
Improbability
Impossibility
B’s denial
Cardinal Pell’s denials
The absence of Father Egan
PART II: THE EVIDENCE IN DETAIL
Fabrication and invention
The changes in A’s account
The ‘solid obstacles’ to conviction
A. The timing of the alleged assaults was impossible
B. It was not possible for Pell to be alone in the sacristies only a few minutes after the end of Mass
C. It was not possible for Pell to be robed and alone in the Priests’ Sacristy after Mass
D. It was not possible that two choirboys could be assaulted in the Priests’ Sacristy after Mass by Pell undetected
E. It was not possible to leave a procession unnoticed
F. Would be seen by the organist (Mallinson or Cox) in the south transept
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Pell v The Queen [2019] VSCA 186
Case
[2019] VSCA 186
Decision Date
CaseChat Overview and Summary
The case of Pell v The Queen involved an appeal by Cardinal George Pell against his convictions for sexual offences against children. The Court of Appeal was tasked with determining the validity of these convictions. The appellant, Cardinal Pell, was convicted of sexual penetration of a child under 16 and an indecent act with a child under 16. The central legal issues included whether the verdicts were unreasonable, the credibility of the sole complainant, the alleged improbability of the offending, and the opportunity for the offending to occur.
The Court of Appeal examined the Crown's case, which heavily relied on the testimony of a single complainant. The appellant argued that the verdicts were unreasonable, given the complainant's credibility and the alleged improbability of the events. The court assessed whether the alleged offences were realistically possible and whether the jury had a reasonable basis to convict. It concluded that the jury was entitled to find the complainant credible and that the alleged acts were reasonably possible given the evidence. The court also considered whether the opportunity for the offending to occur was realistically available, finding that it was.
In its reasoning, the Court of Appeal found that the jury was not misled by the judge's refusal to allow the use of an animation as a visual aid in the final address. The court also determined that the arraignment via video-link did not constitute a fundamental defect or miscarriage of justice. Ultimately, the appeal was dismissed, and leave to appeal to the High Court was refused.