Worth a read. theaustralian.com.au Can we have faith in justice?...

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    Worth a read.


    Can we have faith in justice?

    Paul Kelly
    17-22 minutes

    Justice Mark Weinberg’s dissent is long and closely reasoned, ensuring grave doubts about Pell’s guilt will not be dissipated by the 2-1 verdict against him. Picture: AAP
    The 2-1 Victorian Court of Appeal dismissal of George Pell’s appeal against his sexual offences convictions may settle Pell’s guilt in the eyes of the law, but this contested judgment cannot constitute an enduring settlement or convincing argument in relation to Pell’s guilt.
    It is an extraordinary judgment. The power, logic and suasion lies in the 200-page minority judgment by Mark Weinberg, a former commonwealth director of public prosecutions and the most experienced of the three judges in criminal law. Weinberg’s dissent is long and closely reasoned. Weinberg has ensured that grave doubts about Pell’s guilt will not be dissipated by the 2-1 verdict against him.
    Weinberg has undermined the assumptions of the prosecution case as accepted by Chief Justice Anne Ferguson and Justice Chris Maxwell, president of the Court of Appeal. Given this minority judgment, Pell’s legal team is likely to take recourse to the High Court.
    In upholding Pell’s appeal and in the arguments he made, Weinberg raises the implication an innocent man is being convicted and this, in turn, raises far wider questions. Can the public have faith in the criminal justice system of Victoria? The majority case, obviously, must be accepted. But a reading of the entire judgment suggests the majority case is flawed and less convincing than the minority.
    The Pell trial has never been about the egregious crimes of the Catholic Church in relation to sexual abuse of children. It is about only one issue: whether Pell is a sexual predator. Yet these two elements seem difficult, almost impossible, to separate, and this tension seems embedded in the legal process and Court of Appeal decision.
    On May 9 last year on the occasion of Weinberg’s retirement from the Supreme Court and appointment as a reserve judge, Paul Holdenson QC gave the address and began with these words: “Your Honour was undoubtedly the best criminal appellate advocate of your generation.” Given that unassailable testimony, Weinberg’s judgment warrants substantial evaluation. It cannot be ignored.
    Weinberg goes to the narrow basis of the prosecution case: “In the present case the prosecution relied entirely upon the evidence of the complainant to establish guilt 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. These convictions were based upon the jury’s assessment of the complainant as a witness and nothing more.
    “Mr Boyce (for the prosecution) in his submission to this court did not shrink from that having been the entire prosecution case at trial. Indeed, as indicated, he invited the members of the court to approach this ground of appeal in exactly the same way. He asked this court to focus upon the complainant’s demeanour in assessing his credibility and reliability and to treat that matter as decisive.
    “In my view, Mr Walker (acting for Pell) was justified in submitting that the complainant 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.”
    These judgments cannot be separated from the social upheaval as exposed by the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse that documented extensive crimes of sexual abuse by institutions, notably the Catholic Church, serial cover-ups, abuses of power and refusal to believe the victims when they came forward.
    The royal commission correctly condemned the criminal justice system for being “ineffective in responding to crimes of sexual violence”, with Justice Peter McClellan praising the victims, saying: “They deserve our nation’s thanks.” Late last year Scott Morrison captured the essence of the transformation with his apology to the victims, saying: “I believe you, we believe you, your country believes you.”
    And the judicial majority believed the victim against Pell. The prosecution depended on the complainant’s testimony, delivered by video in the first trial. Because it was recorded and used in the second trial there was no second cross-examination. No other evidence was required, no witnesses, no corroboration. The Ferguson-Maxwell majority had no doubt. They accepted the prosecution argument that the complainant “came across as someone who was telling the truth” — that he “was clearly not a liar, was not a fantasist and was a witness of truth”.
    His word was accepted over that of Pell and the substantial body of evidence produced by Pell’s legal team. That team outlined in evidence 13 factual obstacles in the path of conviction with the Ferguson-Maxwell majority rejecting all 13.
    One lawyer close to these events told me: “The word of complainants is now regarded as near infallible.” During the trial various inconsistencies by the complainant were explained away by the prosecution as the established reactions by sexual abuse victims.
    Consider the facts. The facts are that complainant A made a complaint to police in June 2015 about an alleged abuse committed by Pell 19 years earlier in 1996 against two 13-year-old choristers. The complainant claimed two incidents. The first happened after Pell served Sunday solemn mass at St Patrick’s Cathedral when he found the two boys in the priests’ sacristy. There was no evidence Pell had spoken to the boys before.
    The prosecution said Pell, in his robes, said something like: “What are you doing in here?” Pell then allegedly immediately undid his trousers, pulled out his penis and forced B’s head close to his genitalia. This took place for barely a minute or two. Pell then allegedly turned to A and forced his penis into A’s mouth. This incident did not last any more than two minutes. Pell then instructed A to remove his pants and more abuse occurred for another minute or two. The boys were reported to be sobbing and whimpering.
    A did not complain to anyone on the ride home or afterwards, nor did he ever discuss the alleged abuse with B. The second boy, B, died in 2014 having never made any complaint. When asked by his mother, B said he had never been interfered with.
    In Weinberg’s judgment, he refers to the argument made by Pell’s barrister, Robert Richter, in his final address to the jury reminding them “there were literally dozens of people, including a number of adults who would have been congregating around the area of the priests’ sacristy shortly after the conclusion of Sunday solemn mass. Anyone could have walked into that room at any time and immediately seen what was going on …
    “It would be extraordinary to think that he would have offended in the manner described by the complainant with the door even partly open. In addition, there was nothing to have prevented either of the boys from leaving the room while the other was being attacked. There was nothing to suggest that the applicant (Pell) had previously been acquainted with either of them. There was no suggestion that he had engaged in any grooming. There was no evidence that the applicant had ever threatened either boy. Nor had he said to them that they were not to tell anyone what had occurred.”
    Moreover, by abusing two boys at once it meant if one made a complaint the other could corroborate it. Richter said only a “madman” would have attempted such abuse immediately after Sunday mass.
    The second alleged abuse is even more extraordinary. Complainant A said at least a month after the first incident, again following a Sunday mass at the cathedral, he was processing with the choir back through the sacristy corridor when Pell pushed himself against A on a wall and squeezed A’s testicles and penis over his robes. Pell did not say anything. A did not tell B about this incident.
    Weinberg said: “Mr Richter submitted that the complainant’s account of this second incident was so highly improbable as to be incapable of acceptance. The idea that a six-foot four-inch fully robed archbishop in the presence of a number of choristers, including at least several adults, as well as some concelebrant priests, would attack a young choirboy in a public place, push him violently against a wall, grab him hard by the testicles and squeeze for several seconds to the point of inflicting considerable pain upon the complainant was said to border on the fanciful.”
    Weinberg resorts to the trial transcript:
    Richter: Yes, and out of nowhere the archbishop physically assaults you. Is that what you say?
    Complainant: Yes.
    Richter: In front of all these people?
    Complainant: Yes … Yes. And it happened like that. It was such a quick, um, quick and cold, callous kind of thing that happened. It was — it was over before it even started and it was — I was isolated in a corner for literally seconds. Um, there were people sporadically walking down the hallway and um I was obviously not being looked at, at that time, because somebody would have, hopefully would have reported it.
    Richter: So the archbishop in his full — oh you said and, of course, the choir numbered what, about 50 people?
    Complainant: I would say so.
    Richter: And in the middle of that, number of people, the archbishop in his full regalia shoves you against the wall violently, yes?
    Complainant: Yes.
    Richter: Which hand did he use?
    Complainant: I’m not certain.
    In relation to the second incident Weinberg was withering in comments going to the integrity of justice in Victoria: “The complainant’s account of the second incident seems to me to take brazenness to new heights, the like of which I have not seen.
    “I would have thought any prosecutor would be wary of bringing a charge of this gravity against anyone, based upon the implausible notion that a sexual assault of this kind would take place in public and in the presence of numerous potential witnesses. Had the incident occurred in the way that the complainant alleged, it seems to me highly unlikely that none of those many persons present would have seen what was happening, or reported it in some way.”
    The implication cannot be missed: Pell should not have been brought to trial on the second incident, let alone convicted. Weinberg said it was “not open to the jury to be satisfied beyond reasonable doubt” of Pell’s guilt on the second offence.
    In reviewing the trials, 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.”
    The Ferguson-Maxwell majority saw a different reality. To them, there was nothing in the complainant’s answers to suggest “he had been caught out or had tripped himself up”. Indeed, they saw his uncertainties on issue after issue as “a further indication of A’s credibility”. The majority said the complainant’s explanation of what he could remember and what he could not “had the ring of truth”.
    In relation to the second incident they accepted totally the complainant’s version, saying “there was nothing inherently improbable” about his account, and rejected the claim the incident could not have gone unnoticed by others.
    In his trial submission Richter said a large number of “independently improbable if not ‘impossible’ things” would need to have had to occur within a very short timeframe (perhaps 10 minutes) “if the complainant’s account of the first incident were true”. A long list followed.
    It included evidence by the assistant priest, Charles Portelli, and sacristan, Maxwell Potter, to the effect that they accompanied Pell after mass and that it was, in effect, impossible 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.”
    He said their evidence in relation to Pell “remaining on the steps after mass was, in substance, ‘alibi’ evidence” concerning the first incident. The judicial majority rejected this. The issue here is whether Pell was in the priests’ sacristy alone and robed for the critical few minutes during which he committed the alleged offences.
    The Ferguson-Maxwell judgment said it was “open to the jury” to find the assaults occurred in that five to six minutes before the “hive of activity” described by other witnesses began. They said the jury was entitled to doubts about Portelli’s evidence and, taken as a whole, it did not cast doubts on the complainant’s evidence.
    Referring to the defence, Weinberg said: “This trial involved a most detailed and comprehensive challenge to a prosecution case. That attack was largely based upon the unchallenged testimony of a significant number of witnesses, all of whom were of good character, and reputable. It was not suggested that any of them had lied.
    “Those who recalled relevant events had good reason to do so. Mr Walker (for Pell) submitted that the evidence that they gave, whether viewed individually or collectively, was more than sufficient to establish that the complainant’s account, in its specific detail, was ‘realistically impossible’. In substance, Mr Walker submitted that this has always been a weak case, built upon an account by the complainant that was itself highly improbable.”
    Weinberg said the prosecution did not address Richter’s argument about “compounding improbabilities”.
    But he alluded to the heart of the matter by inferring the answer the prosecution would surely give was that the “complainant’s evidence was so compelling, so credible, and reliable that any notion of compounding improbabilities would be overcome”.
    In short, all paths lead back to the same place: the complainant must be believed. The prosecution and the appeal majority put much emphasis on the complainant’s demeanour. Weinberg attacked the legal basis behind this.
    “The High Court has observed 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,” he said. “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 the truth from falsehood merely from the observations of a witness giving evidence.”
    He referred to research by the Australian Law Reform Commission that “almost universally concluded that facial reaction and bodily behaviour were unlikely to assist in arriving at a valid conclusion about the evidence of most witnesses”. Yet the judicial majority was confident, in the extreme, about its assessment of the complainant’s demeanour saying he “clearly” was telling the truth. No room for doubt there.
    Weinberg said the events had taken place 20 years earlier. That alone had to raise questions of memory reliability. When Pell’s team said that B’s denial to his mother of ever being abused should be given weight, the prosecution said it must be put aside entirely — this was now known as characteristic behaviour of victims.
    When Richter challenged the complainant’s failure to have ever discussed the abuse with the other boy, the complainant said they wanted to “purge” it from their systems and the prosecution argued this highly emotional exchange was further evidence of a truthful witness. The prosecution argued the complainant’s evidence had “grown in stature” during the trial and that merely viewing his recording of evidence would, on its own, show why the jury had convicted.
    Weinberg was unpersuaded. He said: “Mr Walker (for Pell) submitted that on a fair assessment of the complainant’s evidence, both through reading the transcript and through viewing his recorded testimony, he had frequently adjusted, added to, and indeed embellished the account that he originally gave to police in 2015 … Indeed, on occasion he gave answers that not even he could possibly have believed to be true.
    “I am quite unconvinced by 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.”
    Weinberg raised a potential problem for Pell in the trial. Richter’s argument was that the abuse had been impossible in any realistic sense given the evidence. “However, there was a risk that it set a forensic hurdle that the defence never actually had to overcome,” Weinberg said. The onus was on the prosecution to establish guilt beyond reasonable doubt, not on the defence to show it was impossible for the offences to have occurred.
    In summary, Weinberg said that Bret Walker SC, acting for Pell, had identified a sufficient body of evidence to cast reasonable doubt on the verdict and that he would set aside the convictions. In conclusion he referred to the Lindy Chamberlain case when Justice William Deane of the High Court would have allowed the appeal from a jury decision.
    Deane made the critical distinction — it was not about saying a person was innocent when found guilty; it was about saying the person had not been proven to be guilty according to the test required by the criminal justice system. Deane felt, despite the jury’s verdict, the evidence did not establish Chamberlain’s guilt beyond reasonable doubt.
    “I find myself in a position quite similar to that which confronted Deane J,” Weinberg said. He believed there was a “significant possibility” Pell did not commit the offences. That meant he had to be acquitted.
    The split Victorian Court of Appeal judgment exposes a split over the law: are complainants about child sexual abuse to be accorded a higher status of believability despite evidence that would normally cast reasonable doubt? The Weinberg judgment raises the most serious questions about the test used not just in Pell’s conviction but about how the law is to be applied.

    Paul Kelly is Editor-at-Large on The Australian. He was previously Editor-in-Chief of the paper and he writes on Australian politics, public policy and international affairs. Paul has covered Australian governm... Read more
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