For the DPP to take a criminal matter to trial they must be satisfied there is a reasonable prospect of conviction and a public interest in running the case.
Cardinal Pell’s legal team submitted to Ms Judd that the prosecution was doomed to fail and the problems in the evidence should not be obscured by the strong public interest in the case.
These arguments, framed by Cardinal Pell’s counsel Robert Richter, QC and Ruth Shann, were accompanied by a folder of evidence including the witness statements and testimony of Monsignor Charles Portelli, the master of ceremonies at St Patrick’s Cathedral, sacristan Max Potter and other witnesses from the cathedral.
The application submitted that a second group of charges relating to allegations against Cardinal Pell from the Ballarat swimming pool, should also be discontinued. The DPP dropped these charges after Cardinal Pell was convicted in the cathedral case, when the court refused the prosecution’s request for tendency evidence.
The Age asked Ms Judd why she refused to discontinue the charges once evidence emerged raising doubt about whether the cathedral offences could have taken place as described.
A spokesman for Ms Judd declined to comment.
The application was made shortly after Cardinal Pell’s committal hearing, when the significance of Mgr Portelli and Mr Potter’s evidence and other witnesses who testified about the regular practices at the cathedral became clear under cross examination.
Mgr Portelli and Mr Potter were the first two people Cardinal Pell urged Victoria Police to talk to after they informed him he was accused of sexually abusing two 13-year-old choirboys in the priests’ sacristy of St Patrick’s Cathedral immediately after Sunday mass in 1996, while he was Archbishop of Melbourne.
“This is in the sacristy at the cathedral after Sunday mass?,’’ an incongruous Cardinal Pell asked Detective Sergeant Chris Reed.
“Yes,’’ the detective said.
Cardinal Pell: “Well, need I say any more? What a load of garbage and falsehood.
“My master of ceremonies will be able to say that he was always with me after the ceremonies. The sacristan was around. The altar servers were around. People were coming and going.”
Mgr Portelli testified at Cardinal Pell’s trial that, in his role as master of ceremonies, he was required to always accompany the Archbishop whenever he was robed.
He also testified to Pell’s regular practice of greeting parishioners on the steps of the cathedral, immediately after mass – the time when Pell was alleged to have assaulted the two choirboys.
Ms Judd, in her submissions to the High Court, conceded that if Mgr Portelli’s evidence was accepted it would raise a reasonable doubt about Cardinal Pell’s guilt. “Portelli is the key,’’ she said.
In Tuesday’s judgment, the High Court described Mgr Portelli’s testimony as “unchallenged” and accepted his evidence and that of other witnesses who placed Cardinal Pell on the steps of the cathedral immediately after mass and in Mgr Portelli’s company when he later returned to the sacristy.
A County Court jury unanimously convicted Pell of orally raping his accuser and four other offences of indecent acts against a child. The full bench of the High Court found that on the evidence, this verdict was not open to the jury.
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.
Chip Le Grand is The Age’s chief reporter. He writes about crime, sport and national affairs, with a particular focus on Melbourne.