The word around the bars is: George Pell will walk free. These barristers don’t have a heads up. They’re only talking among themselves. But those who have followed this prosecution as it has made its slow and dramatic way to the high court must face the possibility that the cardinal is about to be acquitted.

Historic child sex assaults make difficult cases. The facts are frequently bizarre. So often there is no corroborating evidence and the word of the accuser is simply pitted against the denials of the accused. These trials test the criminal law.

But Pell’s accuser was undoubtedly convincing. We will never know everything he had to say about events at St Patrick’s Cathedral in late 1996 and early 1997 – he gave all his evidence in camera – but we do know that after convincing the police and prosecution authorities in Victoria, he convinced a jury and then two out of three judges of the court of appeal that Pell raped him.

Pell’s lawyers disagree, of course, but acknowledge how compelling the unknown young man’s evidence has been. Indeed, it’s the lynchpin of their case. Pell’s counsel, Bret Walker SC, argues the jury and the court of appeal were so swept away by the cardinal’s accuser – by his testimony and his demeanour in the witness box – that they downplayed the evidence in Pell’s favour.

In lawyer speak: “Belief in a ‘compelling’ complainant does not, ipso facto, equate to the elimination of reasonable doubt.”

When the court assembles on Wednesday, a dozen of the finest legal brains in the land will be debating Pell’s fate at a level of stratospheric complexity. But the core argument for the cardinal is simply stated: that the testimony of more than 20 church witnesses left no “realistic opportunity” for him to assault two boys after a solemn mass at St Patrick’s in December 1996.

These altar servers, organists, masters of ceremonies and choirboys from back in those days spoke of locked corridors, regimented processions, old rituals inside the building, new practices on the cathedral steps, crowded rooms, church law, and robes too complicated to expose an archbishop’s penis.

Walker’s point is that the combined testimony of these “undisputedly honest witnesses” ought to have left the jury doubting “highly improbable” allegations of rape and sexual assault. And he accused the appeal court judges who backed the jury of being so swayed by the young man’s evidence that they picked a path through the church testimony to make the crimes possible.

“In effect,” said Walker, “this approach required [Pell] to establish actual innocence, as opposed to merely pointing to doubt, in order to counter the favourable impression of the complainant’s sincerity adopted by the majority. This was a reversal of the onus and standard of proof.”

That is not, replied the Victorian Director of Public Prosecutions Kerri Judd QC, how the court of appeal went about deciding the case at all. She argues the approach of the court was a completely orthodox examination of the evidence: “A careful examination of all of the evidence discloses that the ‘improbabilities’ relied upon by [Pell] were not, in fact, improbable.”

Lately the high court has been keen to get down and dirty in the evidence itself

Once the barristers are on their feet in the high court, two phrases are likely to be closely debated for hours. The first is “the whole of the evidence”. Both sides agree Pell’s fate can only be decided by taking all the evidence into account. But each side accuses the other of failing to do so.

Judd faults Pell’s team not only for exaggerating the improbabilities of the assaults but also for disregarding important evidence of the young man’s credibility: that he knew the layout of the priests’ sacristy though it was out of bounds to choirboys back then, and that he placed the assault in that room, which Pell would normally never use but did that day.

The second phrase has angels dancing on pins: “open to the jury”.

In 1994, the high court acquitted a man known only as M accused of having sex with his young daughter. What matters here are not the squalid accusations but the determined effort of the court to decide once and for all the role of appeals court judges when examining jury verdicts.

Five high court judges declared the “ultimate question” for an appellate court is whether upon the whole of the evidence it was “open to the jury” to be satisfied of guilt beyond reasonable doubt. For the last 25 years the high court has been hearing arguments about the proper route appellate court judges should follow to decide what verdicts are and are not “open” to juries.

Mark Weinberg QC, the dissenting judge on the court of appeal, not only took a harsh view of the credibility of Pell’s accuser – his honour was definitely not swept away – but argued that M’s case required him to follow a two-step process.

First he had to examine the evidence himself and reach his own verdict. If that left him doubting Pell’s guilt he had then to ask: was there something in the experience of the jury that would explain why they put such doubts aside?

The prosecution argues that Weinberg’s first step substitutes trial by appellate court for trial by jury. The question for the judges should not be “do I think Pell is guilty”, but does their own independent assessment of the “whole of the evidence” leave it “open to the jury” to find Pell was guilty of these crimes.

Page after page in the appeal documents argue this point. It’s QC v SC hurling at each other the most polite and refined legal prose. Citations run for pages. But this argument over theory may not determine Pell’s fate. Lately the high court has been keen to get down and dirty in the evidence.

Where they spy an unjust verdict, their honours are not afraid of a little trial by high court. The other day they sprang from prison a former Queensland policeman doing time for arson and insurance fraud after first picking over – and dismissing – evidence of burnt shoes and petrol stains. The judges have yet to write their judgments but they ordered the ex-cop released immediately.

Other issues the high court may take the opportunity to decide: when is an alibi an alibi; how much, if any, videotaped evidence should an appeal court watch; what does it mean these days to believe juries have an “advantage” over the judges reviewing their verdicts?

Is it poor form to pray for an acquittal? Perhaps. But how many hours, I wonder, has Pell spent in his cell contemplating his decision not to go in the box at his trial? It’s his right, of course, but how evasive he must have looked to those jurors: this mighty figure sitting there stumm, not denying the accusations, not exposing himself to questioning, while his accuser gave compelling evidence that he had, indeed, been raped.



