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Judges weighing up appeal after Pell’s victim named in court gaffe

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From that point, the prosecutor laboured through his oral submissions, which were punctuated by pauses, stammers and struggles to answer judges’ questions.

He was asked several times to speak up, and at one stage acknowledged he was “attempting to make a point, not particularly well”.

Several times Mr Boyce agreed with judges’ questions but didn’t elaborate, notably when Justice Ferguson asked if the prosecution case was that the victim was a strong, forceful and credible witness and that it was going to take a lot to create a reasonable doubt.

“Yes,” Mr Boyce replied.

Pell, who will spend his 78th birthday behind bars on the weekend, is almost 100 days into a six-year prison term for sexually assaulting two choirboys in St Patrick’s Cathedral in East Melbourne in the 1990s, after a County Court jury last year found him guilty of all five charges.

The prosecution case was based on the evidence of one of the victims, now aged in his 30s, while the other victim died in 2014 from a heroin overdose, having never reported the abuse. Pell was the archbishop of Melbourne when he attacked the boys.

His lawyers argue the verdicts are unsafe and have urged the Court of Appeal to quash the convictions and acquit the cardinal because the jury should have entertained a reasonable doubt in assessing all the evidence.

Dressed all in black save for a white clerical collar, Pell sat in a witness box on Wednesday and Thursday, alternating between watching the lawyers and writing on a notepad.

The oral submissions made by Mr Boyce and Pell’s new lawyer, Bret Walker, SC, will form only part of the appeal.

Justice Ferguson and colleagues Chris Maxwell and Mark Weinberg have already read the transcripts, watched footage of the victim’s evidence, toured the cathedral and looked at the exhibits.

George Pell in court on Wednesday.

George Pell in court on Wednesday.Credit:Nine News

Mr Boyce on Thursday encouraged the judges to try on the robes Pell would have worn, as the prosecutor struggled to rebut the defence submission that the cumbersome robes made Pell’s offending impossible.

The judges are expected to take several weeks at least before they make a ruling.

Mr Boyce said the victim who gave evidence was a compelling, credible witness whose evidence the jury accepted.

“He was clearly not a liar. He was not a fantasist. He was a witness of truth,” he said.

The sacristry at St Patrick's, the room where Pell abused the boys.

The sacristry at St Patrick’s, the room where Pell abused the boys.Credit:Darrian Traynor

The man’s evidence was also supported by a knowledge of the layout of the sacristy, the room where the boys were sexually assaulted, despite having not been there before or after, Mr Boyce said.

Jurors were open to find a verdict of guilty, the prosecutor said, because they believed the victim’s evidence during eight or nine hours of cross-examination by Pell’s trial lawyer, Robert Richter, QC.

“It was one of the great old-style cross-examinations in that regard and he, this witness, dealt with it with equanimity and with patience,” Mr Boyce said.

He said Pell’s alibi of being at the cathedral’s front steps greeting parishioners after Sunday mass was not “cast iron”, and that it was possible he was unattended when he went to the sacristy and found the boys.

Defence barristers Bret Walker, SC, and Ruth Shann outside court on Thursday.

Defence barristers Bret Walker, SC, and Ruth Shann outside court on Thursday.Credit:AAP

That incident was found to have happened in December 1996, and early the next year, most likely February 1997, Pell was found to have sexually assaulted one of the boys in a cathedral corridor.

Justice Maxwell asked Mr Boyce why the boys didn’t speak of the incidents afterwards and the prosecutor said it was “perfectly reasonable” they didn’t as “boys also want to get on with their lives”.

At trial, County Court Chief Judge Peter Kidd advised jurors that some sexual assault victims report abuse immediately, some do but after a long time and some never do.

On other points Mr Boyce deferred judges’ questions to being a “quintessential matter for the jury”.

The¬†appeal judges have the advantage of seeing how the victim answered questions as his evidence was recorded during a first trial, which ended with a jury discharged because it couldn’t reach a verdict. Pell was found guilty at retrial.

Pell’s lawyers have also lodged appeals on two other points: that Judge Kidd was wrong to have ruled out a video graphic that depicted where mass celebrants were after the service, and that the trial didn’t start lawfully because the jury saw the cardinal arraigned on video link and weren’t in the same room.

If the Court of Appeal rules in Pell’s favour on the second or third points, the case can be sent back to the County Court for retrial.

Justice Weinberg summed up the task when he told Mr Boyce: “I have said in previous judgments that juries almost always get it right. But the word is ‘almost’.”

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.

Adam Cooper joined The Age in 2011 after a decade with AAP. Email or tweet Adam with your news tips.

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