Pell v The Queen

Case [2019] VSCA 186


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0029

GEORGE PELL Applicant
v
THE QUEEN Respondent

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JUDGES: FERGUSON CJ, MAXWELL P and WEINBERG JA
WHERE HELD: MELBOURNE
DATE OF HEARING: 5 and 6 June 2019
DATE OF JUDGMENT: 21 August 2019
MEDIUM NEUTRAL CITATION: [2019] VSCA 186 First revision: 22 August 2019 para [386]
Second revision: 6 December 2019 para [418]
JUDGMENT APPEALED FROM: [2019] VCC 260 (Chief Judge Kidd)

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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

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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