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Dissenting judge in Cdl. Pell’s appeal: Evidence should ‘lead inevitably to acquittal’

Dorothy Cummings McLean Dorothy Cummings McLean Follow Dorothy

MELBOURNE, Australia, August 21, 2019 (LifeSiteNews) – Cardinal George Pell should have been acquitted of his convictions for child sexual assault, according to one of the three justices in yesterday’s Court of Appeal 2-1 decision that dismissed the cardinal’s appeal. 

Justice Mark Weinberg said he was “troubled” that he “was constrained to differ” from his colleagues’ opinions but that he could not in good conscience refrain from dissenting.  

Supreme Court Chief Justice Anne Ferguson and Justice Chris Maxwell decided yesterday that Pell’s convictions for child sexual assault should stand

In his own judgment, Weinberg underscored the weakness of the sole complainant’s evidence.

"From ... the complainant’s evidence, it can be seen that there was ample material upon which his account could be legitimately subject to criticism. There were inconsistencies, and discrepancies, and a number of his answers simply made no sense," he wrote.   

The veteran judge also noted that there was a lack of independent evidence in the case. 

"An unusual feature of this case was that it depended entirely upon the complainant being accepted, beyond reasonable doubt, as a credible and reliable witness,” Weinburg wrote. 

“Yet the jury were invited to accept his evidence without there being any independent support for it."

According to the complainant, who has never been identified outside of a courtroom, Cardinal Pell subjected him to sexual abuse on two occasions when he was a Melbourne St. Patrick’s Cathedral choirboy age 12 and 13 in the late 1990s. 

The complainant said Pell had first abused both him and another choirboy in the cathedral vestry immediately after Sunday Mass. On the second occasion, he said, Pell had groped him in the midst of a crowd of choristers.  

The second choirboy, whose name is also under a press ban, died of a heroin overdose in 2014. He told his mother that he had never been abused, but his parents believe he first turned to heroin as a young teen because he was indeed a victim of sexual assault. 

No one claiming to be a witness of the second incident came forward.  

Several witnesses, including church officials, testified that Pell, who had then been recently appointed the Archbishop of Melbourne, would never have been alone in the cathedral. Moreover, it was his invariable practise to greet churchgoers at the front doors of the building immediately after Mass ended. 

Weinberg found these witnesses credible. 

"All of these witnesses were important, but there were some whose evidence was critical," he wrote.

“It can fairly be said that their evidence, if accepted, would lead inevitably to acquittal,” he continued.   

"The same result would follow, even if the only finding that could be made was that their evidence, as regards the events in question, was a 'reasonably possible' account of what had occurred."

Weinberg said the fact that he came to different conclusions from Ferguson and Maxwell led him to think even more about the appeal. 

"I am troubled by the fact that I find myself constrained to differ from two of my colleagues whose opinions I always respect greatly," he wrote.

"That has caused me to reflect even more carefully upon the proper outcome of this application. Having done so, however, I cannot, in good conscience, do other than to maintain my dissent."

When Ferguson read a summary of the decision, she noted that Weinberg had found that “the complainant was inclined to embellish aspects of his account.” 

“He concluded that his evidence contained discrepancies, displayed inadequacies, and otherwise lacked probative value so as to cause him to have a doubt as to the applicant’s guilt,” Ferguson said.  

“He could not exclude as a reasonable possibility that some of what the complainant said was concocted, particularly in relation to the second incident.”

She also reported that Justice Weinberg had found the complainant’s account of the second incident “entirely implausible and quite unconvincing.”  

In regard to the first incident, Weinberg would not have been sure that the jury were ‘bound” to have a reasonable doubt about the Cardinal Pell’s guilt had the complainant’s evidence been the only evidence, she explained.

“He went on to note, however, that there was more than just the complainant’s evidence,” she continued.  

“In Justice Weinberg’s view, there was a significant body of cogent and, in some cases, impressive evidence suggesting that the complainant’s account was, in a realistic sense, ‘impossible’ to accept. To his mind, there is a significant possibility that the Cardinal may not have committed the offences. In those circumstances, Justice Weinberg stated that in his view the convictions could not stand.”

Ferguson and Maxwell did not agree and believed that the complainant was “a very compelling witness, (who) was clearly not a liar, was not a fantasist and was a witness of truth.”

Born in Sweden, Weinberg has had a long and distinguished legal career in Australia since it began in New South Wales in 1974. In 1975, he was called to the Victorian Bar and served in the Faculty of Law at the University of Melbourne. He was the Commonwealth director of public prosecutions from 1988 to 1991 and first became a judge in 1998. Now retired, he is a reserve judge for the Victoria Court of Appeal. 

Pell’s legal team is now planning to take the matter to Australia’s High Court. The cardinal continues to maintain that he is innocent of the charges for which he was convicted and of any other accusation of sexual abuse.

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