Legal team says there does remain a reasonable doubt of any opportunity for the offending to have occurred

Cardinal George Pell’s legal team has accused Victoria’s crown prosecutors of “mischaracterising” Pell’s complaint against his conviction as being based on factual errors rather than legal ones.

The 78-year-old was sentenced to a six-year prison sentence for sexually abusing two 13-year-old choirboys at St Patrick’s cathedral when he was the archbishop of Melbourne in 1996. He will be eligible for parole after serving a term of three years and eight months.

His final avenue of appeal is to the high court. In their application of appeal to the court, Pell’s lawyers, led by Bret Walker SC, said the appellant division of the supreme court was wrong when it dismissed Pell’s first appeal in August by a majority of two judges to one. “There did remain a reasonable doubt as to the existence of any opportunity for the offending to have occurred,” that application said.

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“The majority [of judges] erred by finding that their belief in the complainant required the applicant (Pell) to establish that the offending was impossible in order to raise and leave a doubt.”

Last week the director of the office of prosecutions, Kerri Judd QC, filed a response to Pell’s team and challenged their grounds of appeal altogether, urging the high court to refuse to hear his arguments.

“The [special leave to appeal] identifies no error in the majority approach and no question of law for this court to resolve; it does no more than ask this court to substitute for the view taken by the majority and the jury a different view of the evidence,” her response said. She added that the appeal decision “raises no question of law of public importance”.

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But on Monday, Pell’s team filed their reply to Judd, saying she had failed to address “the question whether belief in a complainant can coexist with reasonable doubt due to the burden and standard of proof”. In order for the Crown to have successfully argued that Pell’s alibi witnesses, including his master of ceremonies Charles Portelli, were unreliable, the Crown should have eliminated “any reasonable possibility that their evidence was true and correct”, Pell’s legal reply states. They argued that failure to produce this evidence should have sparked reasonable doubt in the jury during his trial.

“In the absence of any challenge to the correctness (let alone honesty) of that recollection by the prosecution at trial, the ‘alibi’ was not, on proper application of the law, anywhere near eliminated,” the reply states.

A decision is yet to be made by the court as to whether the appeal will be heard.