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Published: 14 November 2019
Author: Amy Olver

George Pell gets another lifeline

Yesterday, George Pell was given another lifeline, with two judges of the High Court referring his application for special leave to its Full Court for consideration. Survivors have widely expressed dismay that the saga continues.

Initially, various media outlets erroneously reported that Pell had been granted his application for special leave. However, this is not the case. Rather, the two judges of the High Court tasked with deciding on his application have referred his application for special leave to the Full Court. This is a rare but not unique occurrence, and reasons have not been provided.

Applications for Special Leave

In order to appeal to the High Court, an application for special leave has to be made. The High Court does not give leave to appeal easily, and the vast majority of applications are denied.

The High Court will only grant leave to appeal if the proceedings involve a question of legal principle or the application is in the interests of the administration of justice.

The application for special leave was made on two grounds and relied on the dissenting judgement from Justice Mark Weinberg.

Pell’s legal team have argued that the majority in the Court of Appeal judgement applied the wrong legal test when determining that it was ‘open to the jury’ to find Pell’s guilt on the evidence presented. Pell’s legal team have argued that this test effectively shifted the burden of proof from the prosecution to the defendant. They argue that Pell was in a position whereby he had to prove that it was impossible for the alleged abuse to occur, rather than the prosecution proving that the abuse did occur beyond all reasonable doubt.

Pell’s team further argued that the evidence left reasonable doubt as to whether the offending was possible, rendering the verdicts unreasonable.

What now?

A hearing date will be set in early 2020 and it is expected that the High Court will make a determination regarding Pell’s application for special leave to appeal. If special leave is granted, it is expected that the appeal will be heard the same day.

If Pell is not granted special leave, he has no further avenues of appeal.

If Pell is granted special leave and loses his appeal, he will serve out the remainder of his sentence and has no further avenues of appeal.

If Pell is granted special leave and wins his appeal, a new trial could be ordered or the Court may reverse or modify the conviction.

One thing is unanimous, and that is the hope that the process is completed swiftly.

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