The Court of Appeal was split over whether this evidence was strong enough to overcome the credible testimony given by the sole surviving choirboy, the only witness who supported the allegations against Pell.
The other choirboy, who denied he was abused, died before Pell was charged.
Victoria’s two most senior judges, Chief Justice Anne Ferguson and Court of Appeal President Chris Maxwell, found it was open to the jury to convict Pell. Justice Mark Weinberg dissented, warning that an injustice had been done.
Mr Walker said the majority adopted a fundamentally wrong approach to reach its conclusion.
“In what might fairly be called a piecemeal or one by one approach their honours dealt with these circumstances, concluding in each case that, that which had been described by the defence as impossible was not impossible,’’ Mr Walker told the court.
“That is a wrong question which sends the inquiry off in a terribly damaging wrong route.”
Mr Walker is presenting his arguments for appeal and Victoria’s Director of Public Prosecutions, Kerri Judd, QC, will respond.
So far, the most expansive exchanges between Mr Walker and the bench have centred on the Court of Appeal decision to watch the video testimony of the choirboy and other witnesses in the case as part of their review of the evidence.
Justice Virginia Bell, the jurist with the most criminal law experience on the High Court, expressed concern that viewing the video testimony of the choirboy – described in the majority decision as a “powerful and persuasive” witness – may have placed disproportionate weight on his credibility, rather than fairly considering the whole of the evidence.
Mr Walker agreed with this proposition but could only take the argument so far. In framing Pell’s grounds for appeal, the cardinal’s legal team was invited by the High Court to provide written submissions on the appellate court’s use of video evidence but chose not to take issue with the decision.
During the Court of Appeal hearing, Mr Walker objected to the court viewing only the choirboy’s video evidence but withdrew this objection once the court agreed to watch the testimony of a further five witnesses, each of whom provided evidence that it would have been highly unlikely for Pell to be unattended in the sacristy shortly after Sunday Mass.
Pell was convicted of five child sex offences and was sentenced to six years in jail with a non-parole period of three years and eight months. He is currently housed at Barwon Prison and does not have access to the High Court proceedings.
Pell’s legal team are, initially, asking for special leave to appeal his conviction. There are three possible outcomes.
The first is that the court may refuse special leave to appeal.
The second is the court may grant leave and dismiss the appeal.
In either of these scenarios, Pell would remain a convicted child sex offender and serve the remainder of his minimum sentence.
The third possible outcome of the case is that the High Court may grant special leave to appeal and quash Pell’s conviction.
The hearing has been set down for two days.
If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or beyondblue 1300 224 636.
Chip Le Grand is The Age’s chief reporter. He writes about crime, sport and national affairs, with a particular focus on Melbourne.