March 7th 2020


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COVER STORY Beyond the Great Divide

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CANBERRA OBSERVED Political promises on the Never Never never never work well for the nation

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NATIONAL AFFAIRS Cardinal Pell's appeal in the High Court this week

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NATIONAL AFFAIRS
Cardinal Pell's appeal in the High Court this week


by Peter Westmore

News Weekly, March 7, 2020

As News Weekly goes to press, the High Court of Australia is hearing Cardinal George Pell’s appeal against his conviction on five charges of sexual abuse of two choirboys at St Patrick’s Cathedral, Melbourne, in the 1990s.

The High Court in Canberra

Cardinal Pell was convicted on the uncorroborated testimony of a single complainant whose testimony was contradicted, at numerous points, by others present at the cathedral at the time of the alleged offences.

Technically, his appeal is against the decision of a majority in the Victorian Court of Appeal, which last August upheld Cardinal Pell’s earlier conviction by a County Court jury. He had been sentenced to a six-year term, with a non-parole period of three years and eight months.

He has already served a year of his sentence, most of the time in solitary confinement at the Melbourne Assessment Prison. He was recently moved to the Barwon Prison, a maximum-security prison outside Melbourne.

 CHAMBERLAIN CASE

The Pell trial has brought back memories of Lindy Chamberlain, a Seventh Day Adventist pastor’s wife, who was tried for murder after her baby girl was taken by a dingo at Uluru (Ayer’s Rock) in 1980.

Two years later, she was convicted and sentenced to life imprisonment. Appeals to the Northern Territory Supreme Court and the High Court of Australia failed.

Mrs Chamberlain was pardoned by the NT government years later when her baby’s matinee jacket, which Lindy said the baby was wearing at the time of her abduction, was found near a dingo’s lair some distance from where the baby had been taken.

It took years before the courts finally exonerated her.

Bringing a matter before the High Court is no simple matter, as it has complete discretion as to which appeals it hears. On the day that the High Court gave leave to Cardinal Pell to appeal, there were more than 20 similar applications. Only Cardinal Pell’s was accepted.

In order to be heard by the High Court, Cardinal Pell’s lawyers were required to show that there were principles of law involved in the appeal against the majority in the Victorian Court of Appeal, which had universal application.

The application was drafted with this in mind.

In the application by Bret Walker, a leading Sydney barrister, the issues were set out as follows:

“Can belief in a complainant be used as a basis for eliminating doubt otherwise raised and left by unchallenged exculpatory evidence inconsistent with the offending having occurred where that evidence is not answered by the evidence of the complainant?

“In a criminal trial, is the evidence of complainants of sexual offending to be assessed according to different standards from that applied to other witnesses?

“Did the majority err by finding that their belief in the complainant required the applicant to establish that the offending was impossible in order to raise and leave a doubt [that the offending occurred]?

“Did the majority err in their conclusion that the verdicts were not unreasonable as, in light of findings made by them, there did remain a reasonable doubt as to the existence of any opportunity for the offending to have occurred?

“Was it open to the jury to find the offending proven beyond reasonable doubt?”

In her response, the Director of Public Prosecutions in Victoria, Kerri Judd QC, argued that the guilty verdict should remain, and that the Court of Appeal had acted within its powers to confirm the guilty verdict.

She argued that changes in the evidence given by the complainant were the result of the long period of time between when the alleged offences occurred and when the matter came to trial.

On the other hand, she argued that when other witnesses, including the cathedral sacristan, Max Potter, Master of Ceremonies Monsignor Charles Portelli, and altar servers said they could not recall details of the Masses which had taken place 20 years before, their evidence was unreliable.

Evidence from about 20 other witnesses who, in differing ways, contradicted the complainant’s ver­sion of events, was simply ignored.

She further said that it was not the role of the High Court to reverse the decision of the Court of Appeal “when it has not been appraised of the whole of the evidence at trial”.

The High Court’s judgement will be handed down at a later date.

Read extensive background and commentary on Cardinal Pell's Victorian Supreme Court appeal here.




























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