EDITOR'S NOTE: The High Court overturned Cardinal George Pell's conviction for historic child sex offences in a judgment ruling handed down April 7, 2020. In a unanimous decision all seven High Court judges found Victoria's Court of Appeal should not have upheld Pell's conviction It found the evidence could not support a guilty verdict.

For more than four years, the fate of Australia’s most powerful Catholic cleric rested on the word of a former choirboy. For police, for the courts and the church, it all came down to the truthfulness, credibility and believability of a single witness, alone and unsupported in what he alleged against George Pell.

In an application lodged this week for special leave to appeal his case to the High Court, Pell’s legal team shifted ground. It is both a vindication of the choirboy and a last bid by Pell, now serving a six-year prison sentence, to have his child sex convictions quashed.

George Pell’s next court date is likely to be on the second Friday of either November or December. Supplied

The Cardinal’s lawyers no longer question the credibility of the man who first told police in 2015 that Pell raped him and sexually assaulted a friend in St Patrick’s Cathedral when they were 13 years old.

They no longer dismiss Pell’s accuser as a fantasist or argue that the County Court jury should have done the same.

Instead, they contend that both sides of this bitterly contested prosecution should co-exist; that Pell’s accuser can be believed and the Cardinal acquitted of all charges and released from jail.

"Can belief in a complainant be used as a basis for eliminating doubt otherwise raised and left by unchallenged exculpatory evidence?" Pell’s senior counsel Bret Walker says, before answering his own rhetorical question. "Believing a complainant ... does not equate to the elimination of reasonable doubt otherwise raised."

The president of the Victorian Bar Council, Matthew Collins, QC, says it is a nuanced argument which, if entertained by the High Court, will confront our assumptions about truth and lies, guilt and innocence.

"In any way you look at it, it’s a challenge to the criminal justice system," Dr Collins tells The Age.

"To reverse the jury verdict on the basis of the alleged improbabilities of the offence occurring is to discount the sanctity of the jury deliberations. On the other hand, to uphold a jury verdict in circumstances where the evidence objectively points to a reasonable doubt would be to undermine the justice system in a different way.

"The argument now is not about the credibility of the complainant. That is taken as accepted. The argument now is about whether the Court of Appeal applied too high a standard of proof, in effect requiring Pell to prove his innocence."

To understand Pell’s pitch to the High Court, The Age asked two of the state’s most respected senior counsels, Dr Collins and criminal law expert Justin Hannebery, SC, to unpack his application for special leave.

Mr Hannebery says most sexual assault cases turn on the same question; whether you can accept the truthfulness of the complainant beyond reasonable doubt. "In the vast majority of cases, that is the only question," he says. In this regard, Pell’s case is unexceptional.

To attract the interest of the High Court, Pell is not arguing that the jury’s verdict was unreasonable on all the evidence. That question has already been asked and answered before the Victorian Court of Appeal.

"They are not appealing a jury verdict, they are appealing a Court of Appeal decision," Mr Hannebery says. "To get leave, they have to establish there is an error in the way the Court of Appeal has approached the question, and that it is an error that has got some public importance to it or is otherwise in the interests of justice to get taken up by the High Court."

In doing so, Pell’s legal team has withdrawn its attacks on the evidence of the choirboy and sharpened its focus on how the Court of Appeal, and particularly the majority decision of Chief Justice Anne Ferguson and Court of Appeal President Chris Maxwell, treated the evidence of other witnesses in the case.

Chief Justice of the Supreme Court of Victoria Justice Anne Ferguson. Supplied

These are the "opportunity" witnesses, the St Patrick’s master of ceremonies and altar servers and sacristan and choir master and organists who testified, to varying degrees of certainty and detail, about Pell’s usual movements immediately after Sunday mass when he was Archbishop of Melbourne.

Their testimony included evidence that Pell tended to greet parishioners on the steps of the Cathedral for 10 minutes after mass, that he was never left unattended in the Cathedral while robed and that he would have never been alone in the sacristy, where the rape and sexual assaults are said to have taken place.

Court of Appeal Justice Mark Weinberg, in his lengthy dissent, described this testimony as "a significant body of cogent evidence casting serious doubt upon the complainant’s account". Pell’s application to the High Court argues that Justices Ferguson and Maxwell, in weighing this evidence, botched their calculations in two ways.

Justice Mark Weinberg would have acquitted George Pell. Supplied

Firstly, while they considered the strength of each piece of evidence, they failed to consider the "compounding improbabilities" of Pell breaking from so many of his usual rituals on one given Sunday to be alone in the sacristy with two truant choirboys.

This argument is as much about maths as the law. The Court of Appeal considered 13 "solid obstacles" to Pell’s convictions raised by evidence of witnesses other than the choirboy. If we rate the chance of each of these obstacles as no more or less likely than a coin toss, the chance of removing every obstacle at once, is a one in 10,000 chance.

"The chances of ‘all the planets aligning’ in that way would, at the very least, be doubtful," Weinberg noted. According to Pell’s application for special leave, the majority decision "did not engage with the argument about compounding improbabilities at all."

Secondly, the judges applied the wrong test to the opportunity evidence, asking whether it made Pell’s alleged offending not merely improbable but logistically impossible. This had the effect of reversing the onus of proof, requiring Pell to prove his own innocence.

Pell’s legal team warns that such an approach is particularly fraught in sex abuse cases, where changes to law and legal ethics over the past 20 years have made it more difficult for defence barristers to test the evidence of victims.

As is now common in sexual assault cases, the choirboy testified to a closed court from an undisclosed location via video link under conditions of strict anonymity. After the jury in Pell’s first trial could not reach a verdict, the jury is his retrial was played a recording of the choirboy’s earlier testimony.

The choirboy was cross examined for more than a day by Pell’s trial lawyer, Robert Richter QC. Mr Richter, like all defence lawyers in sex abuse cases, was constrained in where and how hard he could press.

The courts no longer allow defence lawyers, in the absence of exceptional circumstances, to investigate the psychological background of sexual assault victims to determine why a seemingly credible witness might make a false allegation. The Victorian Bar Association also has strict rules governing how a defence counsel can question a sexual assault victim.

The rules for barristers state that in proceedings involving allegations of sexual assault, a counsel cannot ask an alleged victim questions intended to mislead or confuse or pursue a line of questioning which is "unduly annoying, harassing, intimidating, oppressive, humiliating or repetitive".

Dr Collins says these standards are taken seriously within the legal profession. "Whereas 20 years or so ago it was common to have aggressive cross examination of sex abuse victims, either as to their credibility or complicity in the alleged abuse, designed to break the witness, that is no longer considered an acceptable form of cross examination," he says.

Pell’s legal team have no issue with these reforms, which are designed to encourage more victims of sexual assault to pursue their complaints through to the courts. However, they warn that in light of these limitations, "an accused is heavily reliant on the presumption of innocence and the requirement for juries and appellate courts to apply processes of reasoning which accord with the onus and standard of proof."

The High Court has been asked to decide whether Victoria’s two most senior judges failed to do so in the case of George Pell.

If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or beyondblue 1300 224 636.