27 August 2019, The Tablet

Pell ‘likely to make High Court challenge’

Cardinal Pell’s lawyers and a legion of Church supporters back the dissenting judgment reached by one appeal judge.

Pell ‘likely to make High Court challenge’

A plaque featuring Cardinal George Pell at St Mary's Cathedral in Sydney, Wednesday, August 21, 2019.

In Australia, a 2-1 split appeal court decision to uphold Cardinal Pell’s child sexual abuse convictions is not deterring the Cardinal’s legal team from a likely High Court challenge.

On 21 August, Chief Justice Anne Ferguson and Court President Chris Maxwell ruled in the Victoria Supreme Court that Cardinal Pell’s conviction should stand for five offences, including sexual penetration of a child committed with two 13-year-old choirboys in Melbourne’s St Patrick's Cathedral in 1996.

It means the 78-year-old Cardinal, once one of the Vatican’s most powerful figures will remain in jail at least until he is 81, when he is eligible for parole.

However, Cardinal Pell’s lawyers and a legion of Church supporters back the dissenting judgment reached by appeal judge, Justice Mark Weinberg, who believes there are grounds for Cardinal Pell to walk free.

He delivered an extraordinary minority judgement that runs for 205-pages – a forensic examination that undermines the prosecution case accepted by the other two judges, and that Cardinal Pell’s lawyers are now studying closely as they build a case to lodge with Australia’s High Court.

The jury was required to find Pell guilty “beyond reasonable doubt” and after reviewing the evidence, Justice Weinberg a former commonwealth director of public prosecutions and considered one of Australia’s best criminal appellate advocates, 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.

“These convictions were based upon the jury’s assessment of the complainant as a witness and nothing more.”

“There was no supporting evidence of any kind from any other witness. Indeed, there was no supporting evidence of any kind at all.”

Justice Weinberg compared the Cardinal’s conviction “beyond reasonable doubt” to the infamous wrongful imprisonment, of Lindy Chamberlain.

Lindy Chamberlain was accused, convicted by a jury and jailed for the murder of her baby, Azaria, who was taken by a dingo at Ayers Rock [Uluru] in Central Australia in 1980

Mrs Chamberlain was eventually exonerated, her story immortalised in the movie “Evil Angels” starring Meryl Streep. 

“… the evidence did not establish, beyond reasonable doubt, Mrs Chamberlain’s guilt,” Justice Weinberg wrote.

“I find myself in a position quite similar to that which confronted Deane J. [Sir William Deane, a dissenting judge in the Chamberlain High Court appeal case, and later Governor General of Australia].

“To borrow his Honour’s language, there is, to my mind, a ‘significant possibility’ that the applicant in this case may not have committed these offences.” 

Justice Weinberg does not say the complainant in the Pell case, a man now in his 30s, made up his story. However, he questions his credibility: “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”.

While his fellow judges found the testimonies of other witnesses to be inconsistent, Justice Weinberg found their evidence critical and “if accepted, would lead inevitably to acquittal”.

This included evidence by the master of ceremonies, Charles Portelli, and sacristan, Maxwell Potter, who remember accompanying Pell after Mass, making it unlikely for him to have found himself alone as described by the complainant. 

Weinberg said: “Even a mere ‘reasonable possibility’, unrebutted by the prosecution, that what Portelli and Potter said might be both truthful and accurate, would give rise to a complete defence and would necessitate an acquittal.”

The other appeal judges found the evidence of these same witnesses inconsistent and did not think it proved Pell never had a chance to be alone with the two choirboys.

Portelli had told the court there may have been times when Cardinal Pell would have been left unaccompanied but these would only have been for “two minutes”.

The Pell case has not only divided legal opinions but political, media and Church opinions too. 

The vice-chancellor of the Australian Catholic University, a onetime professor of law at Notre Dame University, Greg Craven, maintains that what matters in the Pell case is “not whether you like or loathe Pell, or even whether you think he is innocent or guilty”.

“What matters is whether we have a system of justice that is exposed to extraneous pressure whenever some media outlet or social media alliance decides that someone is or is not innocent,” Professor Craven wrote in The Australian newspaper.

“What the last year has shown is that the justice system can be systematically assaulted from the outside in a conscious attempt to make a fair trial impossible.”

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