QED

The Pell Outrage: ‘Vibe’ Trumps Veracity

Contrary to first impressions, the judgment of the Victorian Appeal Court will give Cardinal George Pell his path to freedom. It has been constructed – I suspect deliberately and by agreement – to render the certainty of a review by the High Court, which can only find the original conviction wholly unreasonable according to the evidence.

Those are bold claims, what may be dismissed as a wild prophecy. But a careful reading of the entire 322 pages of the judgement gives good grounds for limb-walking.

George Pell v The Queen,  blandly cited as VSCA 186, has been the most energetically argued appeal case for many years, involving as it does the incendiary allegations of sexual misconduct against a minor, and the person of one of the most senior prelates in the entire Catholic hierarchy.

Pell had been Archbishop of Melbourne from 1996 to 2001, Archbishop of Sydney until 2014, and Cardinal  Prefect of the Secretariat for the Economy in the Vatican.  In December 2018, after a trial lasting just over a month, he was found guilty of five charges of historical sexual offending against two young boys. He appealed against that conviction.

The trial, and the appeal had been surrounded with the most vociferous displays of invective towards the Cardinal as he attended the Victorian Supreme Court. In contrast, there were subdued but overwhelming expressions of support from those who simply refused to believe the offences possible or the charges credible. These only increased when the detailed allegations became known.

Four of the charges related to events in the Priests’ Sacristy of  St Patrick’s Cathedral, Melbourne, involving one former choir boy who gave evidence, and another who had died; the fifth charge concerned a separate event a month later in a corridor of the cathedral. Cardinal Pell denied the events took place and pleaded not guilty to all charges.

Of all the court transcripts I have read, nothing prepared me for the shoddy, facile, simplistic argumentation of the judgement of the two majority judges – Chief Justice Anne Ferguson and President Chris Maxwell. Their judgement, of 120 pages, went straight to the claimed assumption that an appeal court should not ‘second-guess’ a jury.  At paragraph 12, it said:

Where the unreasonableness ground – often referred to as the ‘unsafe and unsatisfactory’ ground – is raised, the task for the appeal court is to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”  The High Court has said the appeal court : “must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility if determining guilt or innocence, or the consideration that the jury as had the benefit of having seen and heard the witnesses.

The majority judgement placed much reliance on a 1994 High Court case, M v The Queen, quoting:

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.

And it observed that the jury in a criminal trial had the ‘incomparable advantage’ of seeing and hearing the witnesses for themselves. But the learned judges did not go on to point out that this is not what happened in the Pell trial. The jury that convicted him did not see and hear the man who accused the Cardinal of the sexual acts on him in the sacristy. What they saw on a screen was the videotaped evidence and cross-examination in the first trial, in which the jury could not agree!

The two judges seemed to make much of their labours, reading 2000 pages of transcript, watching some of the oral evidence and visiting the cathedral.  In a strange definition of the role of judges of appeal, they said, “We have approached our task by trying to put ourselves in the closest possible position to that of the jury.”  But they did not read the two police statements made by the accuser – documents which helped establish the variations in his story.

In a remarkably short time, with little reflection and few case precedents, Justices Ferguson and Maxwell were able to conclude, at paragraph 39: “We do not experience a doubt about the truth of A’s account, or the Cardinal’s guilt.”

A few lines later, we have: “His (A’s) evidence was supported by reference to knowledge that he possessed which he could not have come by unless he was telling the truth.” That was in relation to his description of the sacristy, although there was evidence that he had been there before, on a guided tour. And they seemed to be finding excuses to plug any weaknesses. In their view, changes, alterations or additions to what he had said previously “seemed to be typical of what occurs when a person is questioned on successive occasions by different people.” Even examples of A’s uncertainties were described as “striking examples”  of  “A’s credibility, in our view.”

The accuser had been heavily pressed as to why he had never told anyone of the abuse. The judges quoted without scepticism his answer in cross-examination:

We were nursing, we were carrying forward a lot of hopes and dreams of our working-class families and it meant so much to us to maintain and preserve what we had and the fact that that happened and, didn’t happen so quickly, it started and finished such a quick amount of time and that we went back resuming life and not much really infiltrated after that.”

Surely that decades-later rationalisation should have raised a judicial eyebrow? So the majority decision was to endorse, uncritically, the statement by senior counsel for the Crown, who asserted that A “….was a very compelling witness. He was clearly not a liar. H was not a fantasist. He was a witness of truth.”

No such lazy sentimentality from the dissenting judge, Mark Weinberg.  In a landmark 215-page dissection of the case, he worked his way steadily through the evidence, establishing facts before weighing their import, and analysing the prosecution’s arguments step by step. It is what we should expect in an appeal as important as this.

Justice Weinberg remarked that unusually, “this case depended entirely upon the complainant being accepted, beyond reasonable doubt, as a credible and reliable witness. Yet the jury was invited to accept his evidence without there being any independent support for it.” Of course he picked up on the fact that the jury in the second trial never actually saw the complainant give evidence live in court, only a video recording from the first trial.

He too turned to the M case. The test the High Court had set, he said, required the members of the appeal court to ask themselves

whether they think that upon the whole of the evidence  it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

and he went on to quote from the judgement by Mason CJ, Dawson and Toohey JJ:

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.

In what might be seen as a rebuke to the majority judges, Justice Weinberg goes on:

‘M’ makes it clear that an intermediate appellate court will fail to discharge its duty according to law if it treats questions of credibility and reliability as being of no particular concern when dealing with the reasonableness or supportability of a conviction at trial.

And:

There seem s to be a misconception within some quarters that when this Court deals with an appeal against conviction, it considers only questions of law, and never questions of fact. Section 276(1)(a) of the CPA makes it clear that this is not so.

In a scholarly review of recent High Court cases dealing with the ‘M test’, he concluded that there were a number of instances where, notwithstanding the apparent credibility of a complainant in relation to an allegation of sexual abuse, the countervailing circumstances, including any defence evidence, had led the High Court to quash the conviction, and enter a verdict of acquittal. In a footnote, he cited nine such cases in Victoria and another two interstate. That, in plain language, is the clearest assertion that the Pell case has a good chance of success if the appeal application is accepted.

Weinberg worked steadily through the thirteen so-called ‘solid obstacles’ to conviction which Pell’s defence had adduced. And he dealt with the prosecution’s answer to each one. Finally, he dealt with the credibility of Pell’s accuser. He observed that he did at times embellish aspects of his account. On occasion, he seemed almost to ‘clutch at straws’ in an attempt to minimise, or overcome, the obvious inconsistencies between what he had said on earlier occasions and what the objective evidence clearly showed.

As to the majority decision’s uncritical opinion of  the complainant’s evidence, he referred again to the High Court’s observation that:

“….. it can be dangerous to place too much reliance upon the appearance of a witness, rather than focusing, so far as possible, upon other, more objectively reliable matters.  These might include, for example, contemporary documents, clearly established facts, scientifically approved tests, and the apparent logic of the events in question”.

 Empirical evidence has cast serious doubts upon the capacity of any human being to tell truth from falsehood merely from the observations of a witness giving evidence.  That is particularly so in the artificial and stressful circumstances of a courtroom.  There is today a substantial body of scholarly writing which cautions against giving too much weight to demeanour when assessing the probative value of evidence.

The critical evidence which the jury – and the majority appeal judges – ignored or rejected, related, just like a television drama, to timing. There was irrefutable evidence that Pell, from the beginning of his appointment, instituted and maintained a practice of greeting parishioners on the cathedral steps after Mass. That lasted from twenty to thirty minutes. Meanwhile the procession of priests, altar servers and choir had wound its way around the building, gone inside to disrobe and disperse.  There was uncontested evidence from the church’s Master of Ceremonies and the Sacristan than the archbishop was never left alone, as a rule of canon law. Justice Weinberg saw these two things as hard evidence that should have been sufficient to make the complainant’s account impossible.

In the trial, the prosecution had to prove Pell’s guilt beyond reasonable doubt. The defence had to prove nothing at all. But it is a truism, pointed out by Lord Denning, that the defence has what he termed a “provisional” or “tactical” burden of poof. What he meant was the responsibility of raising such reasonable doubt as to guilt through an ‘alibi’ – in the loosest sense – to show there was not the opportunity. That, in effect, was what Pell’s defence counsel was doing, and Weinberg obviously concurred.

After much careful reflection, Justice Weinberg concluded that he could not agree with his two colleagues. He expressed himself cautiously:

I would not conclude that his (A’s) allegations, in respect of the first incident (in the sacristy) were fabricated……At the same time, 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.” And: “There is, to my mind, a significant possibility that the applicant in this case (Pell) may not have committed these offences. That means that in my respectful opinion, these convictions cannot be permitted to stand. 

How did two such diverse conclusions draw from the same appeal data? One answer might be that the majority decision was a political finding, tailored even subliminally to reflect the running current of public outrage at juvenile abuse. When it became clear that Justice Weinberg not only reached the opposite conclusion, but also put up a proper body of research and argument to support his view, the Chief Justice and the President decided that the matter would and should go to the High Court, and therefore detailed argument was unnecessary.

Passing the buck has ensured that a higher court will have to decide George Pell’s fate. Given the importance of continually refining the issue of reasonable doubt in criminal appeals, that is no bad thing.

22 comments
  • Salome

    Nice analysis, but you overlook some important considerations:
    1. Judges are human. They care about their reputations–one might say that they are vain, but no more than the rest of us. Since this case will feature in criminal law textbooks for years to come, I doubt that the majority would be sacrificing their reputations deliberately. And I know that judges generally don’t like it when a higher court overturns their decisions.
    2. This case had High Court written all over it from Day One, regardless of the result. It didn’t need any extra impetus to get it there, and it certainly didn’t need to have the onus of seeking leave thrust on the appellant.
    3. I have every reason to believe that the majority judges are decent and compassionate people. They are dealing with an elderly appellant in not the best of health. I very much doubt that they would be consigning him to an unpleasant and unhealthy environment, not least causing him mental anguish, if they honestly considered him to be the recipient of an unsafe verdict just so that they can play a game of let’s establish a legal principle–not to mention the risk that the High Court might decide to agree with them.

  • Richard H

    Ferguson CJ should be given much credit if (as I believe) she was responsible for ensuring that Weinberg RJ (a “reserve judge” only – effectively retired) was included in the bench that decided this case.

    But Her Honour’s own CV leaves her sadly unprepared for her current role, which of course includes presiding over criminal appeals. She never practised at the Bar, and while that isn’t a fatal flaw, the fact that her experience as a solicitor (and later as a judge) was almost entirely bound up with civil cases has left a dangerous gap when it comes to judging in criminal cases. Legal brilliance and hard work are no substitutes for deep experience in the practice of criminal law.

  • rod.stuart

    The importance of this case should not be underestimated, since, if it is allowed to stand, will stand as precedence in future trials, effectively meaning that from now on anyone can accuse anyone of anything with no evidence to the affirmative, and in fact abundant evidence to the contrary, and expect a conviction so long as they can spin a good yarn. I find it difficult to understand how people declare that they “accept” the decision. Respect maybe, but the decision is simply unacceptable.
    For that reason I find it essential that it go to the High Court to be taken down. And at the same time I wonder about the ramifications for “A”, since if the High Court does shoot it down, then “A” should be held in contempt for lying under oath.

  • Alistair

    I believe this decision truly meets the definition of a “Kangaroo Court”.
    One can compare it to the Lindy Chamberlain case as some prefer, but I prefer to consider the non-cases of which have never appeared in court – Bill Shorten, Ralph Blewett (who actually confessed to a crime but still the DPP decided it could not secure a conviction), and even the Heiner Affair in Qld. It seems that Departments of Public Prosecution are now political institutions, not legal institutions. When did that actually happen?

  • Alistair

    Incidentally, I cannot help thinking that the pursuit of Archbishop Pell is simply the Victorian “Left Establishment” settling an old grudge against Archbishop Daniel Mannix. These people have long memories.

  • Michael Galak

    Indeed, Alistair, this is a sad echo of Lindy Chamberlain case. This case destroyed her family life, cast disquieting aspersions on hers and many other Australians’ religious beliefs and undermined our trust in the integrity and independence of our judiciary. We all know how her case ended. We all remember how impossible it was for her to gain any sympathy from the public. I , along with thousands of my fellow Australians, have a nagging feeling that we are watching the nauseating re-run of this dreadful show.

  • en passant

    To All Commentators:
    Have you forgotten that we are proud to call ourselves ‘a Nation of Laws’ and therefore a cut above those tyrannical, or anarchistic, or politically-controlled barbarous and uncivilised countries?
    Personally, it would be better if we were a country of truth and justice rather than PC, woke and biased, but we are not as the many examples of the ‘law’ triumphing over justice so often proves.
    These days the law is truly discredited as a way of managing a civilised society as the legal profession is the only one that is rewarded for destroying truth.
    This atheist would stake his life on Pell being not guilty of these charges.

  • larrikin

    yes Richard H, but I don’t think one needs to be Rumpole of the Bailey to appreciate how rickety the Crown’s case was. But, it helps to be an eminent Victorian judge not to notice

  • brandee

    Just brilliant Geoffrey!
    Andrew Bolt noted that Justice Chris Maxwell had been president for 2 years of Liberty Victoria and that was the organisation that years later gave Gillian Triggs the Voltaire Award. Ms Triggs as I recall had trouble being consistent in her replies to the Senate Committee!
    Justice Maxwell was president of Liberty Victoria when in 2001 he launched proceedings on behalf of asylum seekers on the MV Tampa! I rest my case.

  • Stephen Due

    Given the historical nature of the offences, plus the circumstantial evidence that they could not have occurred, might the apparent credibility of the complainant be explained as a case of False Memory Syndrome? One judge described the complainant as “not a fantasist”. How does the judge know this? The offences were exactly what a fantasist would come up with. Perhaps it is only a small step, in a mind so disposed, from the fantasy to the sincere belief that the imagined events actually took place.

  • Guido Negraszus

    If there ever was a case of reasonable doubt: THIS IS IT. There is reasonable doubt on multiple levels and yet the highest judges in the state of Victoria (well two of them) couldn’t see it. Extraordinary!

  • Doubting Thomas

    Speaking of similarities with the Chamberlain case, a former RAAF boss of mine, long since deceased, had been the senior RAAF Officer in the Northern Territory at some point during the period when her appeals were going through the various courts. At his level he was in close contact with the senior police and government officials. He was adamant that the Chamberlains were guilty as charged, because senior police had told him so, and they would know, wouldn’t they? He had retired by the time Lindy was finally vindicated.
    Joanne Lees was given a hard time by the NT police too after Peter Falconio’s murder. God help anyone who is caught up in that dreadful legal system.

  • talldad

    Typo alert: “St Paul’s Cathedral, Melbourne” should that rather be “St Patrick’s Cathedral, Melbourne”?

    • Roger Franklin

      Thanks, Tally. Fixed. — roger

  • talldad

    Stephen Due – 23rd August 2019

    Given the historical nature of the offences, plus the circumstantial evidence that they could not have occurred,

    Stephen, it is not circumstantial (ie. weaker, secondary level) evidence but evidence of the physical environs, the positions of the parties and the bystanders/other parties and therefore by the laws of physics the impossibility that the alleged actions as described could take place.

  • deric davidson

    The deceased boy claimed the assault never happened. What happened to this piece evidence? Pell was convicted of an assault on a ‘victim’ who denied the assault occurred! Bizarre. The later ‘assault’ happened in a procession containing dozens of potential witnesses who saw nothing. In fact in this instance Pell would have had to have moved through dozens of people to reach the boy and then done the dirty deed surrounded by other choirboys none of whom saw anything!
    The lawyers who upheld the verdict claimed that A was not a fantasist! I didn’t realize that lawyers were also qualified psychiatrists!!

  • Mike O’Ceirin

    ‘that the defence has what he termed a “provisional” or “tactical” burden of poof’. I hope you meant proof! I do not think there is enough emphasis on the fact that this was the witness of one person without corroboration. For me this means the legal system is broken and it means any one of us can go to jail if someone wishes it. Weinberg says there were discrepancies in the testimony but that for me does not matter even if it was totally believable and credible. Even if an argument is totally consistent if there is no corroboration it cannot be relied on. Yes that means there will be those perpetrating crimes which they will not be convicted of. The alternative though opens the way for those that wish it to convicted who ever they like. It is not hard to imagine how such “evidence” could be manufactured and presented in a credible way if it does not have to do be corroborated at all.

  • ianl

    This may well finish in the High Court, though I doubt that was the ultimate intent of the majority decision – lawyers (especially those promoted to M’Lud) are simply too egotistical to render up deliberately a decison for implied ridicule.
    I have seen it suggested that fear for their families through being instantly doxxed may possibly have been a factor. I cannot say, of course.

  • pgang

    What does this say about the mindset of contempoary Australians? Melodrama and emotionanilsm have completely displaced rationality and a desire to experience and discover truth.

  • pgang

    Mike O’Ceirin it should never even have gone to trial. There was no case to answer.

  • Dallas Beaufort

    You can catch a thief but a liar can hang you.

  • norsaint

    Victoria’s courts have long been corrupted. Maxwell is a self confessed “agent of change” aka Leftard, aka wants to dismantle the civilization the Catholic Church is predominantly responsible for building in the West.
    Fergusson is your archetypal hard-faced harridan – they’re in the majority in what passes for Victorian justice these days – who conveniently mouths the feminist trope of “believe the victim”. Feminism and in particular Feminist Jurisprudence is about nothing if not the denial of due process. We have a former AG – the execrable Bob Hulls _ now firmly ensconced on a taxpayer funded sinecure, running something euphemistically called the School Of Innovative Law. Innovative Law being the trashing of Common Law and replacing it with Feminist dogma. As John Silvester in The Age said months ago, “Pell was found guilty beyond reasonable doubt on the uncorroborated evidence of one witness, without forensic evidence, a pattern of behaviour or a confession. It is a matter of public record that it is rare to run a case on the word of one witness, let alone gain a conviction.”
    The Victorian Police are a rogue organization who are little more than pimps for the legal vultures. They set out to get Pell and they did.

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