If Pell Wins Special Leave to Appeal, The High Court Is Highly Unlikely to Rule on His Guilt.
If Pell Wins Special Leave to Appeal, The High Court Is Highly Unlikely to Rule on His Guilt.
Grounds of Final Appeal
Earlier this week, Pell’s lawyers filed an application for special leave to appeal to the High Court.
The two grounds of Pell’s proposed appeal are reported to be:
1. That the majority erred by finding that their belief in the complainant required the applicant to establish that the offending was impossible, and
2. That the majority erred in their conclusion that the verdicts were not unreasonable.
Law, not Fact Being Appealed
Commentators and journalists continue to discuss Pell’s attempts to appeal to the High Court in terms of a final determination of his guilt or innocence. That is highly unlikely, even if Pell is granted leave to appeal.
If the High Court decides to hear Pell’s appeal it will not be in order for High Court judges to add their views on guilt or otherwise to those of two juries and three Court of Appeal judges. If they allow Pell to appeal High Court judges will instead consider whether the legal principles and tests, as applied by the Court of Appeal judges, were the appropriate tests to be applied and whether the conclusions they drew were reasonable or warranted.
The legal issues most likely to determine the decision to grant special leave, and any subsequent appeal are outlined in a ‘plain English’ and consequently most accessible Sydney Morning Herald article.
What is the High Court Likely to Decide?
As it is a very long time since I practiced, taught or researched criminal law, I will not offer an opinion on whether the High Court will choose this case to assess the principles and tests to be used in such a case. The experts quoted in the above-mentioned SMH article suggest that this is a possibility.
But even if the High Court Agrees…
However, I will offer the opinion on whether the High Court will exonerate Pell.
Even if the High Court finds that the Court of Appeal majority erred in the questions they posed to determine whether the verdict should stand, the High Court will not, in my view, find that the finding of guilt was unreasonable.
To find otherwise would be to ignore that finding by the twelve jurors in the second trial, an unknown number of jurors in the first trial, and both the Chief Justice of Victoria and President of the Victorian Court of Appeal, who so held in the Court of Appeal.
The High Court is not going to be asked to find that the jury was incorrectly instructed. Consequently, Pell’s legal team would really be asking the High Court to prefer the view of some jurors in the first trial and the sole dissenting Court of Appeal opinion. Irrespective of the Court’s view on the correct formula for deciding that the facts were such that a jury could not reasonably have found Pell guilty, I can’t see the High Court making such a finding
So my suggestion is that even a win on appeal to the High Court would be extremely unlikely to lead the High Court to order Pell’s release, retrial or a rehearing of his appeal before the Court of Appeal.