Top appeals barrister Bret Walker SC is not only trying to convince the High Court that Pell’s appeal should be granted, but that they should allow him to appeal in the first place.
Despite hearing hours of evidence already, the full bench of seven judges has not formally granted Pell’s application for appeal, instead referring it “for argument”.
That means at any time the court can refuse the application for special leave, or approve it. It can then either allow or dismiss the appeal.
“We’re not here to prove anything … except to show, to demonstrate, that there was unexplored possibilities that meant it was not open to the jury to convict,” Bret Walker SC told the court on Wednesday morning.
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Pell is one year into his six-year sentence, handed down last year for sexually abusing two choirboys at St Patrick’s Cathedral while he was Archbishop of Melbourne in 1996.
The 78-year-old was convicted by a jury in 2018 of raping one 13-year-old choirboy and the sexual assault of another. The first boy gave evidence against Pell; the second died in 2014.
He has maintained his innocence through two trials – the first ending in a hung jury – and last year’s Victoria’s Court of Appeal hearing which upheld the verdict in a 2-1 ruling.
Pell’s trial centred predominantly around five or six minutes after a Sunday Mass in December 1996, when the jury found the abuse occurred.
The two boys had been sneaking sacramental wine in the priest’s sacristy at the cathedral when they were caught by Pell, who was found to have molested one of the boys and raped the other.
In a second incident weeks later, Pell was convicted of molesting the second boy in a corridor.
The jury did not accept the defence claim the sacristy after Mass was a “hive of activity”, which would not have given Pell the required opportunity to offend.
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Mr Walker said the prosecutors called witnesses including Sacrisan Max Potter and Monsignor Charles Portelli, who gave evidence that “contradicted the realistic opportunity for the offending”.
“At both trials … the evidence of the complainant was the only evidence to the effect that the offending had occurred,” he said.
He said the complainant’s evidence couldn’t stand if that of Potter and Portelli was accepted.
“At no stage was there an invitation to regard them as insincere or lying or favouring loyalty over truth,” he said.
Part of that evidence is Monsignor Portelli’s claim Pell had a practice of greeting parishioners on the steps after Mass.
Mr Walker said prosecutors still conceded it was at least possible he was there, at the opposite end of the cathedral to where he would have had to be to have offended.
“That, putting it mildly, gives rise to a reasonable doubt,” Walker said.
Pell’s appeal is being argued on two grounds.
First, that the Court of Appeal majority – Chief Justice Ann Ferguson and President Chris Maxwell – made an error in requiring Pell to prove the offending was “impossible” in order to raise reasonable doubt.
Secondly, they argue since the majority found there was a reasonable doubt as to the existence of any opportunity for Pell to have offended, they made an error in concluding the guilty verdicts were not unreasonable.
They want Pell’s convictions on five charges to be quashed, resulting in his immediate release from prison.
Prosecutors will counter the submissions in court later on Wednesday, but in writing have accused the defence of giving the court an “incomplete and inaccurate picture of the facts”, glossing over evidence supporting the complainant.