Justice derailed – Part 2

Andrew L. Urban.

 In Part 2, we examine the controversial case of Cardinal George Pell; his conviction and failed appeal, asking whether the evidence meets the standard of proof beyond reasonable doubt and whether the majority in the appeal court was justified in rejecting his appeal. The High Court this week heard arguments from both sides and is considering the case. (see Part 1, published January 15, 2020)

This highly controversial case continues to inflame passions. Some have pointed to the many historic accusations against Pell and the accumulation of guilt for child sexual abuse uncovered in the Royal Commission … and Pell’s perceived aloofness or indifference to the victims. Have those elements interfered with him getting a fair trial on the charges for which he was tried?

But our examination is not about Cardinal Pell: it is about the process that convicted him. What if the accused was not the controversial Pell, the bearer of much guilt for sins committed by his church; would the conviction still be a cause for concern? Was the jury entitled to find him guilty on the evidence before it or was the onus of proof flipped? Was this also an example of tunnel vision – a special kind of tunnel vision?

In seeking leave to appeal to the High Court, George Pell’s lawyers argued that the approach taken by the majority judges at his appeal ­required Pell to “establish actual innocence”, rather than “merely pointing to doubt”, which was a reversal of the onus and standard of proof, adding, “Rigid application of the onus and stand­ard of proof in 21st-century sexual assault trials in Australia is of particula­r importance.”

The conviction was based solely on the uncorroborated testimony of the alleged victim, then a child, now an adult. Two of the three judges hearing the Appeal upheld the conviction, but the third, Justice Weinberg, wrote a powerfully argued dissenting opinion – with which I strongly agree.

In one section, he writes: 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.

Weinberg also notes:
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.

Perhaps most crucially in the absence of any corroborative evidence, Weinberg lists several elements that corroborate Pell’s claim of innocence, including:

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

In the hearing this week (March 11 and 12, 2020), the seven High Court judges are engaged in one of the most important legal decisions of their careers.

They are now considering the cardinal’s argument that he is in prison only because two judges on Victoria’s Court of Appeal ­rejected his ­appeal after engaging in circular logic and making a ­series of legal errors. Judgement has been reserved – a date for their decision has not been set but is expected within days or weeks.

 In the submissions, Pell’s legal team (Bret Walker and Ruth Shann) argue that his convictions risk a fundamental ­departure “from the defining safeguards of the accusatorial system of criminal justice”.

COMING SOON: Justice derailed – Part 3

 

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8 Responses to Justice derailed – Part 2

  1. Garry Stannus says:

    Andrew, your inclusion of Cardinal Pell’s case in your Wrongful Convictions Report has been validated by the High Court of Australia.

  2. Alex says:

    An experienced judge had seen, many a time, apparently sincere witnesses make false claims. An average juror had not; and therefore, can not be trusted to decide a case such as this one. It will be wrong for the judges to “defer” to the jury. The responsibility is, or should be, on them.

  3. Peter Gill says:

    There are alternative explanations to the victims “lying”.

    Remember False Memory Syndrome? Do you think it is extinct?

    I’m currently reading a book called Scatterbrain by German neuroscientist Henning Beck. Here’s an extract: “Memories are not static; they aren’t data bits that can be accessed once the brain has uploaded them. Rather, memories are dynamic and constantly changing.” (Page 10)

    I often wish that criminal justice systems would pay some attention to the latest neuroscience of how the brain works.

    • andrew says:

      Indeed. I explored this very issue as it relates to the Pell case back in June 2019, in an attempt to reconcile the ‘victim v facts’ issue, saying: The only way we can reconcile the victim’s truthfulness – if we accept it as such – and the conflicting facts (evidence put by Walker) which make the offending physically implausible if not impossible, is by questioning the role of memory.

      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.

      See the article in full here: https://wrongfulconvictionsreport.org/2019/06/06/george-pell-appeal-how-compelling-victim-and-conflicting-facts-co-exist/

      • Chris says:

        Understanding memory is absolutely key here. I can recommend the work of Elizabeth Loftus, who really spawned the field of forensic memory science, regarding both false memories and the conditions under which eyewitness memories are more or less reliable. And you also learn about humans too, as memory is just such a large part of who we are, so getting these insights into how memory works is hugely informative and fascinating.

  4. Tom Cairns says:

    It is true that the absence of witnesses and other factors do cast some doubt. However I do not believe that the victims are lying. Why should they? Technicalities and loopholes are insignificant compared with the fact that Pell by his own admission covered the depredations of ‘Father’ Ridsdale and other despicable brutes who infest this gross outfit that claims to be the salvation of souls.
    Ruined lives, suicides, betrayal of the worst kind and pure hypocrisy all the way through. Whole schoolrooms of them. How could any ‘guilty’ verdict be wrong?
    Why don’t we apply their own philosophies and burn Pell at the stake for starting the coronavirus plague.
    Recommended reading: Home Before Night by Hugh Leonard
    The Devils of Ludun by Aldous Huxley

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