September 7th 2019


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Articles from this issue:

COVER STORY Hong Kong's David and Goliath struggle

CLIMATE ALARMISM Governments plan to do what the climate itself has so far failed to do: Impoverish our lives

GENDER POLITICS Transgender sport policies are now in Morrison's court/pitch/field

LIFE ISSUES Sloppily drafted NSW abortion bill invites open slather

LIFE ISSUES NSW abortion bill: Nothing but danger and death ahead

GENDER POLITICS From Safe Schools to 2,400 child transitioners

NATIONAL AFFAIRS Confucius Institutes: China's art of soft power

NATIONAL AFFAIRS Why Cardinal Pell is appealing to the High Court

CLIMATE POLITICS Political posturing ignores true forces shaping Pacific islands

HISTORY AND POLITICS Lord Acton, nationalism and multiculturalism, Part 1 of two parts

HISTORY The lost Namban Caves

HUMOUR Incense and Insensibility

MUSIC Refinement: Delicate touches that make all the difference

CINEMA Once Upon a Time in ... Hollywood: The day the music died ...

BOOK REVIEW All are losers in classroom warfare

BOOK REVIEW Model minority strikes back

LETTERS

POETRY

CARDINAL PELL APPEAL FILE

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NATIONAL AFFAIRS
Why Cardinal Pell is appealing to the High Court


by Peter Westmore

News Weekly, September 7, 2019

Just as Cardinal George Pell’s conviction on five counts of sexual assault shocked those present in court when the jury verdict was handed down in December last year, there was also shock when Victoria’s highest court, the Court of Appeal, confirmed the jury verdict by a 2:1 margin on August 21.

David Marr, a journalist and outspoken critic of Cardinal Pell, who attended some days of the trial in the County Court and celebrated his conviction, said after the Court of Appeal hearing in July that he expected Cardinal Pell to be acquitted, and described the Crown barrister’s performance as “disastrous”.

I attended both trials of Cardinal Pell, at which about 20 cathedral witnesses gave evidence, as well as the hearing before the Court of Appeal. I heard no evidence that supported the complainant’s version of events, and almost every witness contradicted him, when asked questions resulting from his allegations.

In light of the unexpected outcome of the appeal, it is unsurprising that Cardinal Pell’s legal team has decided to refer the matter to Australia’s highest court.

In the Court of Appeal, the majority (Chief Justice Anne Ferguson and President Chris Maxwell) took the view that they believed the complainant, despite the contradictions in his evidence, which they saw as understandable in view of the time that had elapsed since the alleged events. Conversely, they set aside the evidence of the other witnesses, despite the fact that almost all their evidence was uncontradicted at trial.

‘Obstacles’

Their joint judgement was about 120 pages in length, dismissing all 13 “obstacles” that the defence had put forward to challenge the jury verdict.

It is not possible to summarise the court judgement briefly, but Justice Ferguson summarised the majority view, saying that the complainant was “not a liar, was not a fantasist and was a witness of the truth”.

Justice Mark Weinberg

The evidence given by the complainant, whose identity is suppressed, had been vigorously contested by Cardinal Pell’s defence barrister, Robert Richter QC. It was also contradicted by evidence of witnesses who included fellow choristers at St Patrick’s Cathedral at the time, adult altar servers present at the relevant Masses after which the alleged assault took place, the cathedral’s sacristan, who was responsible for the priest’s sacristy, the cathedral’s Master of Ceremonies, who meticulously attended the Archbishop throughout services in the cathedral, and others.

The third judge who heard the case, Justice Mark Weinberg, is one of Australia’s leading criminal lawyers, and was the Commonwealth Director of Public Prosecutions for some years before being appointed a Federal Court judge.

Over more than 200 pages of closely reasoned argument, he reached exactly the opposite conclusion from his fellow judges about the weight of evidence, and the credibility of the complainant.

Justice Weinberg said: “Objectively speaking, this was always going to be a problematic case. The complainant’s allegations against the applicant were, to one degree or another, implausible. In the case of the second incident, even that is an understatement.

“That is not so by reason of the complainant having alleged that he had been sexually abused, in the past, by a senior Catholic cleric. Sadly, as we have come to appreciate, there is nothing wholly improbable about allegations of that kind being true.

“It is, rather, by reason of the detailed circumstances that were said to have surrounded those allegations of abuse, circumstances as to time, place and manner.

“I am quite unconvinced by [Crown barrister] Mr Boyce’s submission that the complainant’s evidence was so compelling, either when viewed as a whole, or when regard is had to his distressed response to Mr Richter’s vigorous cross-examination, that I should put aside all of the factors that point to his account as being unreliable.”

Justice Weinberg said that he found the evidence of the cathedral witnesses credible, and pointed out that any one of them, if accepted, would have led to an acquittal.

Contrary to media reports that characterised Cardinal Pell’s record of interview with the police in Rome in 2016 as “arrogant”, Justice Weinberg said: “I considered his denials to have been made in a forceful and persuasive manner.

“Making the same due allowance of which I have spoken with regard to the dangers of giving too much weight to matters of demeanour, the applicant seemed to me to be genuinely shocked and angered by the nature of the allegations being put to him, as I understand it, for the first time in detail.”

He also pointed to parallels between the Pell trial and that of Lindy Chamberlain, wrongly convicted of murder after a dingo took her baby at Ayer’s Rock (Uluru) in 1980. Mrs Chamberlain appealed to the Northern Territory Supreme Court and later the High Court. Both upheld her conviction.

She spent a number of years in prison before new evidence, her baby’s matinee jacket, was discovered near a dingo’s lair at Uluru. It took years before the legal system exonerated her.

Justice Weinberg concluded: “The only order that can properly be made is that the applicant be acquitted on each charge.”




























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April 4, 2018, 6:45 pm