Normal text size Larger text size Very large text size EDITOR'S NOTE: The High Court overturned Cardinal George Pell's conviction for historic child sex offences in a judgment 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. Having been convicted of sexually abusing children and seeing that conviction upheld by the Victorian Court of Appeal, George Pell is now appealing to the nation's top court – the High Court – to set him free. Pell was last year found guilty of sexually abusing two choirboys at St Patrick's Cathedral in East Melbourne in the 1990s. The 78-year-old was jailed for six years and must serve three years and eight months before being eligible for parole. The legal process now under way is enormously complex in many ways but very simple in others. Essentially, the court will first determine whether it is worth its while to hear Pell's case. Pell's legal team has put arguments to Chief Justice Susan Kiefel and the court's six other justices to persuade them to hear his case. On November 13, Pell cleared a hurdle when the court announced it would refer his application to appeal his convictions to the court's full bench. This does not mean that Pell won the right to appeal. What it did mean was that Pell's lawyers could prepare for a hearing before all seven judges sometime after March 4. In that hearing, the High Court might reject Pell's leave to appeal or it might allow the appeal to proceed.


What does the court usually consider as it makes such a decision? And how does the process work? Who gets to appeal? The High Court can hear an appeal of any case in Australia but it is not duty-bound to hear anything. No one can force the court to take a case. It has a particular responsibility to hear constitutional matters, but can still refer these to a lower court if it desires. (High Court judges are compelled to hear disputes arising from federal elections referred to them by Parliament, such as the dual citizenship matters that arose in the last Parliament. Technically, however, they sit as the Court of Disputed Returns for that purpose.) When it comes to criminal cases, the court is highly discretionary. University of Melbourne criminal law expert Jeremy Gans says the court hears about 50 cases a year, including constitutional matters, and grants only about 10 per cent of the requests for special leave. Of the 22 applications for judicial review considered by the High Court on November 13 all but one – Pell's – were dismissed. High Court Chief Justice Susan Kiefel. Credit:Louie Douvis How does a request to appeal happen?


The High Court has received written submissions from Pell's legal team, and from the state. It has decided to allow the process to move to the next step based on those documents alone. It is very rare for the court to fully accept an appeal based solely on written submissions. However, it did so in 2016 in the Gerard Baden-Clay case, agreeing to hear an appeal by prosecutors after the Queensland Court of Appeal threw out Baden-Clay's conviction for the murder of his wife, Allison, and substituted a conviction of manslaughter. The High Court ultimately decided that Baden-Clay's murder conviction should be reinstated. Gans had thought it "more likely" the court would ask for an oral hearing on the Pell case, and then decide whether to grant special leave – and that is what has happened. "They either decide to take the appeal or they don't," he says. "If they don't take the appeal, that's it – there's nothing else Pell can do." How will the justices decide? We don't know why the court has referred Pell's application to the full bench – and remember, this is just a step before it then decides whether to allow his team to go ahead and appeal. There are a number of considerations the court makes but, at its most basic, it will be looking at whether the case seems "legally interesting", Gans says. In general, the court will ask a few key questions. Is there a question of law that is important or has been dividing lower courts? Is it in the interests of justice – either in this case or more generally – that the High Court say something on the matter? Do they think a lower court may have done something wrong in law?


Even if the court agrees there are questions of law to answer, it will also need to accept the case is an "appropriate vehicle" for answering those questions. The court does not want to be "digging through trivia to get to the important stuff", says Gans, and its job isn't to relitigate the facts of the case. George Pell leaving court after Victoria's highest court rejected his appeal in August. Credit:Jason South What is Pell's case for appeal? Pell is appealing the verdict of the Victorian Court of Appeal, not the original jury verdict. Pell's case, at its simplest, is that Chief Justice Anne Ferguson and Court of Appeal President Chris Maxwell got it wrong and the dissenting judge, Justice Mark Weinberg, got it right. The most compelling figure in the case against Pell is his sole surviving victim who was described in the Court of Appeal proceedings as a "witness of truth". The application for special leave turns on whether the majority decision, despite the believability of the victim, placed sufficient weight on the evidence mounted by Pell that it would have been highly improbable, if not impossible, for the offences to have taken place as described. Pell's senior counsel, Bret Walker, SC, said the flawed reasoning of justices Ferguson and Maxwell had, in effect, reversed the onus of proof and forced Pell to prove his own innocence.


The brutalist facade of the High Court building in Canberra, opened in 1980. Credit:Fairfax What is the High Court likely to do? There are some reasons to believe the court will hear the case. For one, it has been 25 years since it fleshed out (in another child sexual abuse case) a holistic view on unsafe verdicts. Since then, says Gans, "some judges have said some things which some have taken to be a shift" in the High Court's thinking. The court may decide that now is the time – and that this is the case – to lay out its views once again. Gans says it is "overdue" for another go. It had such an opportunity earlier this year, however, and said no. Former Christian Brother John Francis Tyrrell was convicted of historical child sexual abuse last year – but the jury's verdict was thrown out as unsafe by the Court of Appeal in March. Prosecutors asked to appeal to the High Court but it was rejected on the papers. The court does not give reasons. Gans says the court disproportionately accepts unsafe verdict cases if they are high-profile, such as Lindy Chamberlain's conviction for murdering her daughter. The court dismissed the appeal in 1984 but Chamberlain was later acquitted after new evidence emerged. The Pell case is also rather rare in that it saw a conviction on historical child sex abuse charges based on the word of a single person without corroborating witnesses. The High Court may wish to say something about the safety of verdicts in these circumstances.


What happens if the court takes the case? If an appeal is permitted, the court would likely hear the appeal arguments on the same day. The judges could decide they want to hear all the evidence, or explore a narrow aspect of the case. They could decide Weinberg's judgment is the better view, dismiss the original verdict and set Pell free. Alternatively, they could rule on a matter of law and send the case back to the Victorian Court of Appeal for another go under the newly settled law. It could order another trial. As many learnt during the dual citizenship saga, it is a fool's errand to second-guess the High Court. – with Adam Cooper Lindy and Michael Chamberlain in 1982. Credit:The Age Five high-profile cases from the High Court Mabo v Queensland (No 2) – 1992 The High Court recognised the legal right to land ownership of five men, including Eddie Mabo, from Murray Island in the Torres Strait. The 17th-century notion of terra nullius (no one’s land), which had provided the foundation for English law to apply in Australia, was found to be based on a false presumption. Indigenous people had their own laws governing the occupation and use of their land and these gave right to native title, which could only be extinguished by express use of government powers. Commonwealth v Tasmania – 1983 A proposed hydro-electric dam backed by the Tasmanian government would have flooded the Franklin River, which UNESCO had declared a world heritage site in 1982. The Hawke government passed the World Heritage Act, saying it was giving effect to an international treaty. In effect, this prevented the dam being built. Tasmania argued that the federal government didn’t have the constitutional right to pass the law; the High Court, deliberating only on legalities, found that it did, under its external affairs power. Chamberlain v the Queen – 1984 Lindy Chamberlain was charged with the murder of her baby daughter Azaria at Ayers Rock in 1980, despite her claim that a dingo had taken the child. Her husband, Michael, was charged with being an accessory after the fact. A jury found them guilty and she was sentenced to life in prison while her husband received a suspended sentence. The Full Court of the Federal Court dismissed their appeals and then the High Court did too, by a 3-2 majority. The scientific evidence against the Chamberlains was later discredited. She was acquitted in 1986 after three years in jail, but was not fully exonerated until 2012. Justice Weinberg cited the Chamberlain High Court appeal in his dissenting judgment on Pell. Plaintiff M70/2011 v Minister for Immigration and Citizenship – 2011 In the Malaysian Solution Case, the High Court scuppered the Gillard government’s plans to swap asylum-seekers in detention in Australia for refugees waiting in Malaysia to settle here. The policy was touted as an attempt to deter people smugglers; the High Court said it contravened a section in the Migration Act that required legal protections for asylum-seekers in the country they would be processed in. Malaysia was not a party to the UN Refugees Convention and did not process refugees itself so these protections could not be guaranteed. Commonwealth v the ACT – 2013 In 2013, the federal government challenged an ACT law allowing same-sex marriage on the grounds that the law was inconsistent with the federal Marriage and Family Law acts. The High Court considered that marriage could be between persons of the same sex but agreed that the ACT law – and a handful of marriages that had already taken place under it – were inoperative because it is the federal government’s role to pass comprehensive laws on marriage. Federal laws to allow same-sex marriage were passed in 2017. Franklin River protesters celebrate "victory". Credit:Staff photographer