Pell Appeal – Weinberg J & other dissenting voices

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.

literally impossible

*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

Compounding improbabilities

 ‘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.

 

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16 Responses to Pell Appeal – Weinberg J & other dissenting voices

  1. Mez says:

    I find myself in agreement with the other two judges.

    A “literal impossibility” has to be backed up with evidence. Pell has no such evidence. Restating it over and over doesn’t make it true. In fact, it was proved entirely POSSIBLE to part the robes his defense claimed was impossible.

    It’s understandable that some men might think it’s impossible to have sex in a long dress, where women can understand implicitly how possible it really is. Women have been doing it for centuries in far heavier and restricted garments than a modern priestly robe!

    A literal impossibility can be clearly seen in the case of Rodney Reed, for example, who was due to be executed today. Look him up and you’ll see what I mean.

    If Pell wants to be cleared, he needs to do what all other wrongfully convicted have to do and come up with fresh and compelling evidence. Instead we see him wielding money and influence to jump the queue ahead of people who have been waiting for patiently a decade or more.

    I see no need to support a rich and powerful person who is completely able to manipulate everyone and everything in his favour, including obtaining glowing personality references from PM’s and other rich and powerful people.

    Nobody can say the police worked against him – they did the exact opposite and tried to discredit the victims. I just can’t wrap my head around how anybody can possibly think he is being given such a hard trot that he needs additional assistance with his case. He’s already got the upper hand FFS!

  2. Garry Stannus says:

    And now we hear that Pell has lodged an application to the High Court.

    The most recent post of Andrew’s [https://wrongfulconvictionsreport.org/2019/09/16/steve-fennell-not-a-murderer-jury-got-it-wrong/] notes that the High Court took just four minutes to decide to enter a verdict of acquital regarding the trial conviction of Steve Fennell for the murder of Lisolette Watson, in Moreton Bay, Nov 2012.

    It reminds me how Susan Neill-Fraser’s application to the High Court was rejected. My notes of that application include the following:

    7𝑆𝑒𝑝𝑡2012 12:30 𝑝.𝑚. 𝑇ℎ𝑒 𝐶𝑜𝑢𝑟𝑡 𝑎𝑑𝑗𝑜𝑢𝑟𝑛𝑒𝑑 𝑎𝑡 12:30 𝑝.𝑚. 𝑡𝑜 “𝑐𝑜𝑛𝑠𝑖𝑑𝑒𝑟 𝑤ℎ𝑎𝑡 𝑐𝑜𝑢𝑟𝑠𝑒 𝑖𝑡 𝑠ℎ𝑜𝑢𝑙𝑑 𝑡𝑎𝑘𝑒.”
    7𝑆𝑒𝑝𝑡2012 12:33 𝑝.𝑚. 𝑇ℎ𝑒 𝐶𝑜𝑢𝑟𝑡 𝑟𝑒𝑠𝑢𝑚𝑒𝑑 𝑎𝑡 12:33 𝑝.𝑚. 𝑎𝑛𝑑 𝐽𝑢𝑠𝑡𝑖𝑐𝑒 𝐶𝑟𝑒𝑛𝑛𝑎𝑛 𝑔𝑎𝑣𝑒 𝑡ℎ𝑒 𝑑𝑒𝑐𝑖𝑠𝑖𝑜𝑛 𝑜𝑓 𝑡ℎ𝑒 𝐶𝑜𝑢𝑟𝑡:
    7𝑆𝑒𝑝𝑡2012: 𝐻𝑖𝑔ℎ 𝐶𝑜𝑢𝑟𝑡 𝑅𝑒𝑓𝑢𝑠𝑎𝑙 𝑜𝑓 𝑙𝑒𝑎𝑣𝑒-𝑡𝑜-𝑎𝑝𝑝𝑒𝑎𝑙.

    Seems to me from what I’ve come to learn about the High Court, that it makes its decisions quickly and further, that unlike Steve Fennell’s result, it usually rejects more applications/appeals than it accepts. The criteria by which the HC decides on the applications/appeals before it are unknown to me.

    I know too little about Cardinal Pell’s case to be able to offer an opinion on his guilt or innocence, though the little that I (think I) know — that his conviction rested on the uncorroborated evidence of one witness (accuser) — brings into question the safety of that guilty verdict/conviction.

    Back on Susan Neill-Fraser … it took the HC 180 seconds to leave the court following adjournment (to “consider what course it should take”), to consider the submissions from Counsel, to arrive at a decision, to have the decision prepared in a form so that it could be read by one of the menbers of the court and to return to the court to read the verdict.

    All in 180 seconds.

    That’s how the High Court dealt with Susan Neill-Fraser’s application. I will be watching the progress of Cardinal Pell’s application with interest. With respect to Susan Neill-Fraser, I can say that I’m strongly of the view that then Justice Blow erred in exercising his discretion to not allow Meaghan Vass to be recalled to give further evidence at trial after it was later revealed during the trial that the address that she’d given for a ‘sleep-over’ away from the hostel/refuge on the (26Jan2009) night of Bob Chappell’s disappearance … did not exist.

    Ten years later, we are still dealing with now-Chief-Justice Alan Blow’s then exercise of judicial discretion.

  3. Garry Stannus says:

    For those interested in widening their understanding of the Pell appeal decision, then I recommend listening to the ABC RN Law Report program ‘𝐼𝑠 𝑃𝑒𝑙𝑙 𝑜𝑓𝑓 𝑡𝑜 𝑡ℎ𝑒 𝐻𝑖𝑔ℎ 𝐶𝑜𝑢𝑟𝑡 𝑜𝑓 𝐴𝑢𝑠𝑡𝑟𝑎𝑙𝑖𝑎?’ which was broadcast this week. It was for me an extremely interesting analysis of the split-decision. Here is a link which I hope will take you to that broadcast:
    https://radio.abc.net.au/programitem/pe9Qy5qPjQ

    • andrew says:

      Thanks Garry. It is unfortunate, though, that they couldn’t interview less biased guests. David Marr is well known as a Pell hater from way back, for example. The key issue of a verdict relying ENTIRELY on an uncorroborated witness statement was not really addressed. Credible performance as an accuser (on video in this case) is not a reliable basis for a jury verdict. It does not comply with the rule of law and sets a terrifying precedent. We know that there are many credible performances – some in life some on the screen – that are not factual. Remember Meg Ryan’s fake orgasm in When Harry Met Sally (1989). For those who haven’t seen it ….https://www.youtube.com/watch?v=b0OeM6UUAoI

      • Mez says:

        Andrew, do you have any idea how many cases of child sexual abuse went through the Royal Commission without corroborated evidence?

        Let’s assume for one second all this fuss you’re making gets Pell off… does that mean you’re cool if this precedent sets free hundreds of convicted pedophiles? Some who assaulted hundreds of children but are only serving time for one or two offenses?

        If your entire argument rests on corroborated evidence then no victim will ever see justice because it’s a well known fact that child predators don’t sexually assault children in public or around witnesses.

        Is that really what you want to see happen?

        • andrew says:

          I don’t think me ‘making all this fuss’ will have any bearing on the High Court’s decision.

          • Mez says:

            The fuss I was referring to is your assertion regarding “uncorroborated evidence”. What, in your opinion would constitute corroborated evidence? Obviously someone else witnessing the sexual acts is out of the question.

            I’m speaking first hand on this particular aspect of the topic, as a parent who had absolutely no idea that my daughter was being groomed by a relative who I thoroughly trusted without question.

            She was always a bit naughty, we later found out she has Aspergers Syndrome, so I didn’t notice any particular personality changes that you might think a parent should notice. Nobody was more gobsmacked than me when she finally spoke up.

            In our case, the police took her allegations seriously and the evidence (such as the location of nudie mags etc) was promptly followed up and an arrest was made. The police warned me, if I said anything at all to her about the case they would charge me with perverting the course of justice. So I followed their instruction.

            When the court case came around, the judge looked squarely at me and said I put these ideas in her head and ruled “not guilty”. Afterwards, I was cautioned again to never talk with my daughter about it ever again or they’d take her away from me permanently and even prevent visitation. And again I followed their instructions.

            When she was a young teenager she asked me “why didn’t you believe me Mum?”. That was the net effect of forbidding me from talking with my daughter and being there for her emotionally. This exactly what Pell has done by bribing victims with money in exchange for their silence.

            So, I’m curious. What would you consider to be corroborating evidence and what weight would you give it?

          • andrew says:

            It’s not for me to say what evidence would suffice; too hypothetical. But sorry to hear of your terrible ordeal with your daughter.

          • Mez says:

            I’ll just clarify… the nudie mags and their specific location were my daughter’s testimony. I had never been to the property, much less the shed they were found in. Not that anybody asked me or the perp if I had been there or not… the judge only took 10 minutes to make up his mind without asking a single question of anyone.

          • Mez says:

            I’m confused. It was your contention that “The key issue of a verdict relying ENTIRELY on an uncorroborated witness statement was not really addressed. Credible performance as an accuser (on video in this case) is not a reliable basis for a jury verdict. It does not comply with the rule of law and sets a terrifying precedent.” How could it have been better addressed?

            Pell had not one judge, but a whole jury (plus two spares) to deliberate his case, which is arguably a better situation than we were afforded. He then went to appeal where deliberation by a further 3 judges was afforded to him. Again, arguably more than we were afforded, so I’m not buying the line that the odds were stacked against the ‘poor hard-done-by Cardinal’.

            I will however, entertain the suggestion that corroborating evidence may serve a higher purpose than simply feeling sorry for a man who is an expert at manipulating victims of child sexual abuse.

            So please do share what your idea of corroborating evidence looks like. If you don’t have one, then I have to wonder what your motivation is in saying it in the first place

          • andrew says:

            Firstly, my motivation is to examine the case in the context of this blog on wrongful convictions. As to an example of what corroborating evidence might look like, I have resisted speculating but since you are confused, I will make one small attempt:
            A credible witness testifying to the absence of Pell from the procession after the mass; given that Portelli had given Pell a complete alibi (see article above) – this would have been corroborative.

          • Mez says:

            Well an alibi is corroborative by its very nature. And it may have been his saving grace if the defense left it there. But they didn’t.

            They went on to use that same witness as testimony to present the “impossibility” of parting the robe. That was the can of worms that brought him undone because it was too easy to disprove and made him appear dishonest to the jury.

            Pell’s entire appeal was based on reverse onus of proof. If the defense truly believed that, then they really shouldn’t have presented impossibility of lifting/moving the robe. It certainly wasn’t the prosecution who raised it.

            Where onus of proof is on the prosecution, there was already ample witness testimony alleging Pell was a master manipulator and dishonest in his dealings with child abuse victims. What the defense did was remove ALL doubt that he was credible.

            In my honest opinion, the terrifying precedent existed before the royal commission, which put the onus of proof on a child, as was our experience back in 2001.

            Even more terrifying when you take into account how long these predators got away with their evil deeds while corroborating evidence (where the onus of proof is on the child) was, indeed, the norm until the royal commission came about.

            To suggest we should go back to the very legal scenario which allowed rampant child sexual abuse to go unpunished and ignored, resulting in many having to wait until they were adults before they could be seen as credible – is more a lot more terrifying to those of us who have been there.

            Check the following document – the status quo that prevented victims from coming forward as children and the very low attrition rate of those who did (the very basis of Pell’s belated conviction).

            http://www.austlii.edu.au/au/journals/CICrimJust/2006/30.pdf

          • Mez says:

            Not-with-standing, nobody has come up with any viable suggestions as to what motivation, if not money, would anybody have for falsely accusing Pell of such deeds.

            The victim has not sought compensation, only justice. The victim has not sought fame either, he has preferred privacy. If it was revenge, then one can assume Pell did do something to warrant it – otherwise it can’t logically be revenge.

            In our case for example, I had already sacrificed custody of my daughter to her father in order to bring a long and drawn out battle to an end and in the hope of bringing some peace to her life. So the judge probably had reason to believe I might have been seeking revenge => reasonable doubt.

            Of course, he was dead wrong, but I do understand the source of his doubt.

            Anyway, if anyone has any plausible theories as to motivation, I’m all ears.

  4. When you are a victim ….there is no possible way that you can mistake who abused you …add that to the other child as well who laid charges gives him a lame leg to stand on.
    This case is traumatic to the victims and has gone to the appeal and soon possibly the High Court . The victims are reliving the incidents each time plus the trauma of court processes not knowing whether justice will be carried out .
    There are a large number of priests in the Catholic Church who are paedophiles, l.et there be justice.
    Let this case and Pells conviction and jail term serve as an example of the outcome of ruining children’s lives because a disgusting pervert clothed in Christian robes has left them a lifetime legacy .

    • Mez says:

      Agreed Kerry. That’s the whole reason behind changing how sexual abuse victims are treated during the trial process. Before the royal commission, it was standard practice for the defense to blame the victim – in the case of girls/women they would openly accuse her of wearing revealing clothes or taking risks etc – insinuating she deserved it.

      And in the case of children (one particularly famous case was the Wood Royal Commission) they were discredited with accusations of “false memory syndrome” and their mothers called “hysterical”. Some may recall, that was not long after the patriarchy stopped bashing women’s temples in to treat them for hysteria.

      In 2019 they’re not allowed to do any such thing. And quite frankly, I’m disturbed with all the comments here from oldies who don’t quite realise we’re in the 21st century and just how much law reform has happened since the royal commission.

    • Peter says:

      Kerry,

      “When you are a victim ….there is no possible way that you can mistake who abused you …add that to the other child as well who laid charges gives him a lame leg to stand on.”

      I totally disagree with your above statement because there are examples where the victim misidentified their attacker. The best example I can give you is that of Penny Bernstein who misidentified the man who attempted to rape her and who then attempted to kill her.

      Misidentification tends to occur when the person is unknown to the victim.

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