Andrew L. Urban.
George Pell’s appeal against the conviction of child sexual abuse was dismissed by two of the three judges in the Victorian Supreme Court on August 21, 2019. It is a majority decision with which dissenting Justice Weinberg finds it impossible to agree. Others do, too.
Below we publish a few random excerpts from Justice Weinberg’s judgement (detailed in over 200 pages, with many case references) – and a plausible dissenting hypothesis voiced by Archbishop Peter Comensoli, among other dissenting voices.
*It just so happened that immediately after Mass on those two (relevant) dates, there were rehearsals for the entire choir. These were scheduled for between 12.00 pm and 12.45 pm. Prior to the trial, the complainant never mentioned these rehearsals, and had no recollection of them. Nonetheless, the account that he gave of his movements, and those of the other boy, after the alleged sexual abuse, could not easily be reconciled with the fact that these rehearsals took place on those days.
*In the past, in cases of alleged sexual abuse, juries were warned, in strong terms, of the dangers of convicting in the absence of corroboration. The law has changed in that regard. That makes the task of intermediate appellate courts charged with having to review the safety of convictions in such cases a particularly important and onerous one.
* Portelli had been Master of Ceremonies to the applicant from September 1996 through to the end of 2000. In re-examination by Mr Gibson, Portelli reiterated that he accompanied the applicant to all his Masses after September 1996. Portelli’s account, if accepted, would put a complete end to the prosecution case in respect of both incidents. The same result would follow from that account being regarded as a ‘reasonably possible’ version of events, because any such conclusion would render the complainant’s account literally impossible.
*If the alibi evidence is so cogent as to engender in any reasonable mind a doubt of the accused’s guilt, the conviction must be quashed and a verdict of acquittal entered however cogent the prosecution evidence would otherwise be.
*As the joint judgment (Mason CJ, Deane, Dawson and Toohey JJ) in M states:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
Examples of summary points made by Justice Weinberg and supported by extensive reasons and references:
The timing of the complainant’s story is ‘impossible’
Not possible that the applicant was robed and alone after Mass
Not possible that the boys could be sexually abused by the applicant in the Priests’ Sacristy after Mass, undetected
Not possible for the boys to have ‘nicked off’ from an external procession without being seen by a single person
Not possible to ‘part’ the applicant’s robes (to expose his penis)
The second incident could not have taken place at all, or on 23 February 1997
‘Impossible’, ‘not possible’, ‘improbabilities’ pepper Justice Weinberg’s reasons and it is obvious (having regard to his extensive judgment and vast criminal law experience) that he is deeply concerned that his fellow appeal judges (Ferguson CJ, Maxwell P) have not recognised why it was not open to the jury to find him guilty beyond reasonable doubt.
That doesn’t have to discredit the veracity of the victim, whose uncorroborated testimony was the sole evidence against Pell. But time corrodes memory; it is entirely plausible that he was sexually abused – but not then, not there, not by Pell.
Not there, not then, not Pell
On June 6, 2019, I published the following: We can accept that the complainant experienced the offending as described by him – if we adjust the time, the place and the offender. In other words, what was described happened to him: but not when it is claimed, and not by the man convicted of it. Memory ‘overlay’ after two decades is a distinct possibility and the only answer to resolve the conflict of victim and facts.
This scenario is especially plausible in a case where the then 13 year old sacristan endured a traumatic experience. Recalling it in the context of a heavily prejudicial atmosphere surrounding Cardinal Pell over a period of time, he (Pell) could well have become the platform onto which such an experience was projected.
On August 23, 2019, The Australian’s Remy Varga reported: Melbourne’s Catholic Archbishop took to radio yesterday to support George Pell’s claims of innocence and suggested the victim identified the wrong priest as his abuser.
Archbishop Peter Comensoli said he was shocked Pell’s appeal failed and that he persevered in his belief in the disgraced cardinal. “I believe in what he said to me, on many occasions, that he’s innocent,” he told 3AW.
Archbishop Comensoli said he believed the victim’s account of abuse but said the victim may have misidentified the perpetrator. “I genuinely think that I can take on my knowledge of the man in terms of George Pell and accept what he has said to me,” he said.
“I can also take on what I’ve heard of (the victim) and what he said in terms of abuse.” Radio host Neill Mitchell then asked the archbishop: “So you’re not questioning he’s been abused. You’re questioning whether it was George Pell?”
“Yes,” the archbishop replied.
In the context of the law the dismissal of this appeal is dangerous in the extreme. It establishes by confirmation of the conviction the precedent that accusations alone – with contradictory but without corroborating evidence – are sufficient to prove a case beyond reasonable doubt. That takes us back centuries to a time when justice was primitive and unjust. Those who rely solely on the ‘credible’ performance of the accuser must consider that on cinema screens and on theatre stages around the world, actors deliver performances that are totally credible, earnest and truthfully felt. But not factual.
The case shrieks reasonable doubt
The Australian’s Chris Merritt reports legal academic Peter Kurti saying Weinberg “meticulously dissects the case against Cardinal Pell and this suggests to me there are some real warnings and real indicators that should have been heeded by the other two justices.
“The fact that they were not is very concerning because Weinberg is a very experienced criminal lawyer, a former commonwealth director of public prosecutions,’’ says Kurti, an adjunct associate professor in the school of law at the University of Notre Dame Australia. “This is a man who really does know criminal law backwards, whereas the other two do not come from a criminal law background.”
Weinberg’s dissent says the defence involved a detailed challenge to the prosecution case that was largely based upon “the unchallenged testimony of a significant number of witnesses, all of whom were of good character and reputable. It was not suggested that any of them had lied,” as Merritt reports. He goes on to say: Yesterday, a retired Supreme Court judge from outside Victoria, who is no fan of mine, took the trouble to contact me to make the point that “the case shrieks reasonable doubt”.
Merritt, The Australian’s Legal Affairs Editor, makes a devastating point: Chamberlain’s eventual exoneration, immortalised in a film, did no favours for the standing of Australian criminal justice. Yet if Pell takes his case to the High Court and wins, the impact on the global standing of Australian justice will make the disgraceful treatment of Chamberlain look benign.