George Pell: Why an appeal against his conviction has little hope

Tom PercyThe West Australian
Camera IconProtesters gather outside the County Court during the sentencing of Cardinal George Pell. Credit: AP

George Pell has been convicted and sentenced, but in less than three months (on June 5 and 6) he will try to clear his name by seeking leave to appeal. These are the questions that remain.

1. Was yesterday’s sentence in line with expectations?

Yes. The anticipated range of sentences was between six and seven years as a head sentence, and four to five years as a minimum. The sentence was probably towards the lower end, but not so low as would invite a prosecution appeal against its leniency. That, however, remains a possibility.

2. Why can he appeal against his conviction?

Every convicted person is entitled to appeal against their conviction to the Supreme Court. You do, however, need to have some fairly strong grounds — and the success rate of conviction appeals is not high. In WA, the rate of successful conviction appeals runs at less than 5 per cent. Sentence appeals are successful in less than about 10 per cent of cases.

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3. What are his grounds of appeal?

The grounds, as currently framed, allege some technical procedural points as well as a general challenge to the verdicts themselves. In other words, did the jury get it right? The defence will point to what is said to be the inordinate unlikelihood of the events having occurred where and when they were said to have been committed. Things such as whether Pell was ever likely to have been alone at those times, whether his clerical garb would have allowed the acts in question, and the fact that the deceased complainant apparently had denied the events ever happened.

4. What do courts of appeal make of this sort of challenge?

This type of attack on a conviction is not generally successful. Courts of appeal place great weight in the ability of a jury to make findings of facts, and the significant advantage that the jury had in seeing the witnesses give evidence.

5. Who will hear the appeal?

The appeal will be heard by three judges of the Court of Appeal, who are specialist appeal judges. Both Pell and the prosecution will be represented at the hearing.

6. Will Pell get bail pending the appeal?

Bail pending an appeal is always possible but generally unlikely unless there are exceptional circumstances. It is generally not granted. Factors such as old age, sickness and the strength of the appeal grounds will weigh into the equation, but bail pending appeal is comparatively rare.

7. What are the possible outcomes?

If the appeal succeeds on technical grounds (such as that relating to the trial judge’s failure to allow into evidence an electronic plan of the cathedral depicting the location of where various parties would have been on the day in question), there would be a retrial, in front of a different jury. If the appeal, however, succeeded on the primary ground that the verdict was simply unsafe having regard to all of the evidence, he would be acquitted on the spot. There would be no retrial.

8. If he loses his appeal, is there any further or higher appeal available?

Any unsuccessful appellant in a State Court of Appeal can make an application for special leave to appeal to the High Court of Australia. The “special leave” is a filtering process whereby the High Court can ensure that only the most meritorious cases — usually those involving questions of general importance to the law — can go forward to be heard by the full bench of Australia’s ultimate court. Such leave is rarely granted. The prospects of even obtaining special leave (let alone winning the appeal) to appeal to the High Court in a criminal matter statistically runs at less than one in a hundred.

9. Could the prosecution appeal if Pell’s appeal is allowed?

The prosecution has the same right as the accused to seek special leave to appeal to the High Court against any order for an acquittal or a retrial that might be made in the Victorian Court of Appeal.

10. If a retrial is ordered, is there any chance that he could have it heard by a judge rather than a jury?

A trial by judge alone is not available in Victoria. Other States, such as WA and NSW, allow for a judge-alone trial in appropriate cases.

11. What is your view of the future of the Pell case generally?

Whichever way you look at it, Pell and his legal team face a Herculean task to achieve any positive outcome for him. Although it is not impossible, the job is certainly a formidable one.

Like any appellant in a criminal case, once the jury’s verdict is in, there is no longer a presumption of innocence and the odds are very much stacked against you.

Tom Percy is a Perth QC

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