Will the High Court Accept Pell’s Appeal?

September 18, 2019

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Pell’s legal team is attempting to take his case to the highest court in Australia in a final attempt to appeal his conviction of child sexual abuse.

This is the last avenue of appeal available to Pell, after Victoria’s Court of Appeal dismissed the matter in a majority verdict of 2 to 1 last month.

Will the High Court grant special leave?

Pell does not have a right to appeal to the High Court. The Court will only hear his case if his legal team can first persuade it to do so. This is called an application for ‘special leave’ to appeal.

The High Court does not grant special leave lightly. It is bound by statutory criteria outlined in section 35A of the Judiciary Act 1903 (Cth).

In making a determination, the Court will consider:

Whether the case involves a question of law that is of public importance;

Whether the case involves a question of law in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts as to the state of the law;

Whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.

The ABC reports that, statistically speaking, Pell’s chances of being granted special leave to appeal are quite low. They report that a study conducted earlier this year found that only 14.29% of applications in the criminal justice system were granted special leave to appeal across a two-year period.

The court will make its decision based on Pell’s written application, or it can order a short hearing to take place.

Appeal grounds

Pell’s legal team have filed a 12-page application seeking special leave to appeal.

If the High Court allows the appeal, Pell’s legal team will argue two grounds of appeal:

‘That the majority erred by finding that their belief in the complainant required the applicant to establish that the offending was impossible; and
‘That the majority erred in their conclusion that the verdicts were not reasonable’.

The second ground was raised in Pell’s first appeal, but it was ultimately rejected. Essentially, the second ground argues that Pell should not have been found guilty beyond reasonable doubt on the evidence presented during the trial.

Pell’s legal team based this argument on an alibi provided by Pell’s Master of Ceremonies, Charles Portelli.

Portelli told the jury that Pell could not have committed the acts as it was customary for him to greet churchgoers after the ceremony (when the offences occurred).

Portelli further added that he was always by Pell’s side while he was robed.

Pell’s legal team argued that this constitutes reasonable doubt.

The Prosecution argued that the complainant was a ‘believable and compelling witness’; an argument that was accepted by the Appeal Court.

What can the Court decide?

When the High Court hears an appeal, it is exercising its ‘appellate jurisdiction’.

The options available to the court in these circumstances are outlined in sections 36 and 37 of the Judiciary Act; and include:

The power to grant a new trial
The power to reverse the judgment being appealed
The power to modify the judgment being appealed

However, such a decision is unlikely to be reached until 2020.

Pell will remain in custody until his Appeal is determined, meaning he may serve more than half of his non-parole period before the matter is finalised.