Cardinal George Pell is on the verge of launching a High Court appeal against his conviction for child sexual abuse, with strong support from one judge reportedly fuelling his legal team’s hopes.
Pell’s application to Victoria’s Court of Appeal was dismissed on Wednesday with two judges ruling they thought the jury’s verdict was not unreasonable given the evidence presented.
However, one judge disagreed and put his views forward in a 203-page dissenting opinion.
The Australian Financial Review’s legal affairs editor Michael Pelly now believes the “vigorous dissent” of Justice Mark Weinberg could increase the chance of the High Court granting Pell’s team special leave to appeal.
Pell needs grounds for an appeal and the spilt decision could provide this. Pelly also believes that Justice Weinberg was “so highly regarded that a decision not to test his views would be a surprise”.
Justice Weinburg is a former Commonwealth Director of Public Prosecution who joined the Federal Court in 1998 before moving to the Victorian Court of Appeal in 2008. He retired in 2018 but has been serving as an acting judge since then.
So why did he disagree? Here are the reasons:
GENUINE DOUBT
It all comes down to one thing for Justice Weinberg and that is he has a “genuine doubt as to the applicant’s guilt”.
The jury was required to find Pell guilty “beyond reasonable doubt” and after reviewing the evidence Justice Weinberg thought there was a “significant possibility” Pell may not have committed the offences.
“My doubt is a doubt which the jury ought also to have had,” he wrote.
HE DIDN’T FIND THE COMPLAINANT AS CONVINCING
Justice Weinburg suggested there was a significant amount of evidence that cast serious doubt on the complainant’s story, in relation to both its credibility and reliability.
He said there were “inconsistencies, and discrepancies, and a number of his answers simply made no sense”.
One example of this was the fact that the complainant did not remember there were rehearsals for the choir after mass on the two days that the abuse likely occurred. The rehearsals did not easily fit with the movements of the boys.
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The complainant was also unsure if Pell had said mass that day or was leading mass. He didn’t know where his friend (who Pell also attacked) was during the procession out of St Patrick’s Cathedral or when exactly they broke away from the rest of the group.
His first specific memory of the first incident of abuse was being in the priests’ sacristy where Pell forced him to put his penis in his mouth. He also saw Pell force his friend’s head towards his groin.
Originally the complainant said he couldn’t remember how they rejoined the rest of the choir but his memory came to be improved when he gave evidence at the trial.
Justice Weinburg also notes the complainant said Pell had “pulled aside his robe” but after being shown that the alb did not have any openings, he suggested that it may have been pulled up first.
The second incident, which took place in a hallway, was initially said to have occurred while the choir was processing after mass but the complainant later said this may not have been the case. He also said he did not think it took place “in view of anyone” but later accepted there were “some people around in the hallway”.
Justice Weinburg said he didn’t find the complainant’s evidence “so compelling” that he should put aside all the other factors that point to his story being unreliable.
While he could not conclude that the complainant made up his story, that was not relevant to whether the appeal should succeed.
Even if he only had the complainant’s account to go on, Justice Weinburg said: “I would not myself be prepared to say, beyond reasonable doubt, that the complainant was such a compelling, credible, and reliable witness that I would necessarily accept his account beyond reasonable doubt”.
HE TRUSTED THE OTHER WITNESSES
Justice Weinburg also gave more weight to other witness testimonies than his fellow judges, who concluded their evidence were inconsistent and didn’t prove that the routines and practices of the cathedral were never deviated from.
In contrast, Justice Weinburg said their evidence was critical and “if accepted, would lead inevitably to acquittal”.
He argued that even if they only provided a “reasonably possible” account of what had occurred, Pell should be acquitted.
Importantly, Pell’s master of ceremonies Charles Portelli’s evidence helped rule out certain dates and narrowed down the possibilities to December 15 and 22.
Portelli also told the court he remembered accompanying the former archbishop on these days and says Pell greeted parishioners after mass, which would make it unlikely for him to have been alone in the sacristy with the boys.
According to tradition, Pell had to be accompanied for the entire time he was at the church, usually by Portelli or sacristan Max Potter. Portelli acknowledged that there may have times when he was not accompanied but these would only have been for “two minutes”.
The other judges in the case found the evidence of Portelli and Potter inconsistent and did not think it proved Pell had definitely greeted parishioners, or that he never had a chance to be alone.
But Justice Weinburg believed Pell’s case was strengthened by the patterns of behaviour and routine that existed at the cathedral, which were not just habits but “modes of conduct that were subject to particularly rigorous and strong norms”.
He said it was “entirely possible” that some practices may not always have been followed but this did not mean this evidence should be ignored. It would also not justify a conviction.
‘COMPOUNDING IMPROBABILITIES’
Justice Weinburg noted one of the arguments from Pell’s team suggested that for the first incident to have happened, a large number of improbable, if not impossible things would have had to occur within a short time frame of perhaps 10 minutes.
Firstly, that Pell did not remain on the front steps of the cathedral after mass, that he was alone when he entered the priest’s sacristy, Portelli did not appear to help Pell disrobe and Potter was also not there to help Pell disrobe.
Furthermore, Potter would not have been moving between the sacristy and the sanctuary at the time, neither would the altar servers and there would be no concelebrant priests in the sacristy.
Lastly, in order for the event to have happened, according to Pell’s legal team, the boys would have had to break away from the procession, go through two normally locked doors and return to choir rehearsal — all without anyone noticing.
Justice Weinburg accepts this argument saying: “The chances of ‘all the planets aligning’, in that way, would, at the very least, be doubtful.”
He also noted that it was always going to be a “problematic case” because the allegations were “implausible” due the circumstances surrounding the offence.
UNUSUAL ASPECTS OF THE CASE
Justice Weinburg highlighted some unusual aspects of the case including that the prosecution relied entirely on the evidence of the complainant and there was no supporting evidence.
“These convictions were based upon the jury’s assessment of the complainant as a witness, and nothing more,” he said.
But Justice Weinburg argued a jury should never be told that their task was to consider who was to be believed.
He noted that juries were told they cannot convict an accused unless they were satisfied beyond reasonable doubt of his or her guilt, even if they prefer the evidence of the prosecution or don’t believe one of the witnesses called by the defence.
Juries were also told they should not convict if there was a “reasonable possibility” there was substance to a defence that provided a complete answer to the allegations.
“It is not now, and never has been, a question of whether (Pell’s) complainant was to be preferred as a witness to, for example, Portelli, Potter, McGlone, Finnigan, or any other particular witness who gave exculpatory evidence,” Justice Weinburg wrote.
He also noted that specific dates were not put forward by the prosecution about when the offences occurred. This made it harder for the defence to pick apart.
While exact dates were not of critical importance in every sexual assault case, Justice Weinburg believed it was “pivotal” in Pell’s case because proving the dates did not accord with the complainant’s evidence that the two incidents were “just over a month apart” and this would have cast doubt on the complainant’s reliability.
He said Pell was entitled to have the case “properly particularised” so he could answer the allegations.
“In a case that, from a defence perspective, depended so very heavily upon matters of quite intricate detail, nominating a date, such as 23 February 1997, without any sufficient justification for having done so must be a matter of concern,” he wrote.
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