The high court in Canberra has questioned the decision of Victoria’s appellate court to watch video evidence from the complainant in Cardinal George Pell’s trial, asking whether it may have caused the majority of judges to give too much weight to the complainant’s compelling and believable demeanour rather than the trial evidence as a whole.
Pell’s final chance of appeal began before the high court on Wednesday with his barrister, Bret Walker SC, arguing that just because the complainant was believable, it should not discount other evidence that placed his evidence in doubt. Walker told the court that Victoria’s appellant judges, which dismissed Pell’s first appeal in 2019 by a majority of two-to-one, may have been unduly influenced by the complainant’s testimony by watching a recorded video of it rather than just reading the transcript of his evidence.
On Thursday the director of the Office of Public Prosecutions, Kerri Judd, began her response to Walker before the full bench of seven high court judges. The court is yet to grant Pell leave – in other words permission – to appeal his case, but could do so at any time. It could also dismiss the appeal at any time.
Judd said given Pell’s legal team made so much of the complainant’s lack of credibility and believability, Victoria’s appellant court was entitled to watch the video. It did not mean they had elevated it above other evidence, or that they had not given due weight to other evidence from the trial, she said.
The chief justice, Susan Kiefel, responded that the difficulty with the appellate judges having viewed the complainant’s video was that “… the assessment of a witness by demeanour is so subjective”.
“It’s very difficult to say how it [the video of the complainant] affected an intermediate appellate court judge in terms of how they read the transcript,” Kiefel said. “That’s why you really shouldn’t do it [watch the video] … unless there is a forensic reason to do it. To what extent is this court to determine the extent to which the court of appeal was influenced by the video?”
It is not common for an appellate court to view video evidence, though it is becoming more common as technology is more frequently used. Appellate courts are often cautioned about usurping the jury’s role, and by viewing a transcript alone may be more capable of leaving questions of the demeanour of witnesses to the jury.
One of the witnesses Pell’s legal team says should have called the credibility of the complainant into doubt and raised reasonable doubt as to Pell’s offending was Monsignor Charles Portelli. Portelli gave evidence at trial that it was Pell’s practice to remain on the front steps of St Patrick’s Cathedral after Sunday solemn mass greeting parishioners. If this were the case, he could not have been in the priest’s sacristy abusing two choirboys.
But Judd responded that Portelli did not have convincing specific recollection of what Pell did on the dates in 1996 when the offending occurred. Portelli could not even remember if the choir processed out of the buildings on those occasions internally or externally, she said.
She said Portelli’s evidence should not be viewed in isolation.
“Quite a number of choirboys and others do say there were occasions where he [Pell] did not stand on the steps and processed, and the choirboys recall having to wait for him,” Judd said.
“There’s also some evidence from choirboys saying they saw him in the choir room pretty soon after mass. So if he’s standing on those steps for a long period of time he’s not going to be able to see those choirboys.”
Justice Virginia Bell put it to Judd: “The appeal had to be allowed if it was reasonably established that the archbishop was present on the western steps at the time the complainant was offended against.”
Judd responded the bench needed to consider: “The evidence on a whole, not just based on Portelli, that’s why the supporting evidence is extremely important.” She added Portelli’s memory was not necessarily reliable.
During the trial, prosecutors put it to the jury that practices take time to develop, and Pell’s practice of greeting parishioners on the front steps would not have developed until some time into his position as archbishop of Melbourne.
The hearing continues.