Australia’s highest court agreed Wednesday to hear an appeal from the most senior Catholic to be found guilty of sexually abusing children, giving Cardinal George Pell his last chance at getting his convictions overturned.
Go here to read the rest. Justice Weinberg in his masterful dissent in the lower appeal has set forth that there was no evidence to support the charge other than the unsubstantiated allegation of one of the two choir boys. The other choir boy prior to his death told his mother that no such abuse occurred. There was plenty of evidence offered that the allegation was unbelievable. Go here to read Weinberg’s dissent. His dissent begins at paragraph 353. His conclusion is damning to the prosecution:
1101 In the present case, as with so many others involving historical sexual offending, the devil is in the detail. It would be wrong to say that although the complainant may have been mistaken about a number of matters surrounding the commission of these alleged offences (as he unquestionably was), the jury, acting reasonably, might simply put all of that to one side, and dismiss his mistakes as nothing more than matters at the periphery. Sometimes an approach of that kind may be justified. It does not, however, absolve this Court from its duty of carrying out a full and proper assessment of the whole of the evidence, including matters of detail. It is, after all, often only the details of an alleged offence that can be the subject of productive cross-examination. A verdict of guilty in circumstances where these matters cannot be properly probed, or explored, would and should be a matter of concern.
1102 Cases such as Palmer (and to a lesser degree, perhaps, SKA), make it clear that as part of the overall ‘independent assessment’ that must be undertaken by an intermediate appellate court, the probative value of the evidence given by a complainant must be balanced against the cogency of any evidence supporting the defence case, or at least casting doubt on the prosecution case.
1103 It is important to note that in both Palmer and SKA, the complainant’s evidence was described as ‘credible.’ Indeed, it was actually supported by independent evidence (or to use the old terminology, it was corroborated). Nonetheless, when faced with exculpatory evidence that ‘seemed cogent’, despite the fact that it was not, of itself, dispositive, the credibility of the complainant’s account was insufficient to sustain the verdict in Palmer, and may ultimately have proved so, as well, in SKA.
1104 The same is true of this case, though I would certainly not characterise the complainant’s evidence as being anything like as compelling with regard to the complainants in Palmer and SKA. Unlike the complainants’ evidence in those cases, the evidence of the complainant in this case was neither corroborated (to use the old terminology), nor even independently supported. Moreover, the prosecution in this case faced a much stronger defence case than it did in either of those two High Court decisions.
1105 The prosecution had to prove the applicant’s guilt beyond reasonable doubt. The defence had to prove nothing at all. It did, however, point to a substantial body of evidence that, it submitted, left open at least the ‘reasonable possibility’ that the complainant’s allegations fell short of the standard of proof required for conviction. In my view, Mr Walker’s submission that the defence had succeeded in making good that proposition should be accepted.
1106 In Chamberlain (No 2), Deane J, who dissented (but who, it might be noted, was ultimately, though for other reasons, proved correct) would have allowed the appeal. His Honour observed that the ‘cause of the continued acceptance of trial by jury’ was not likely to be served by treating a jury’s verdict of guilty as unchallengeable or unexaminable. To do so could ‘sap and undermine the institution of trial by jury’, and be liable to be seen as ‘a potential instrument of entrenched injustice.’ As his Honour said, if the evidence led against an accused fails to establish guilt beyond reasonable doubt, there is a miscarriage of justice if that person is adjudged as guilty on that evidence.
1107 Justice Deane added that this was not the same thing as saying that the person who succeeds on this ground has been found guilty when he is, in fact, innocent. It is to say no more than that the person has not been proved to be guilty according to the standard demanded by a fundamental principle of the administration of criminal justice.
1108 His Honour continued by noting that when the trial is by jury, and there is evidence reasonably capable of being seen as establishing guilt beyond reasonable doubt, the question whether it does so is always question for the jury. However, the question to be considered by an appellate court is whether, even where there is such evidence, a finding of guilt by the jury must stand notwithstanding that the appellate court is persuaded that, on its assessment of the evidence before the jury, and notwithstanding the jury’s verdict of guilty, there remains a real doubt about the guilt of the accused.
1109 Justice Deane said that he had found the question whether the evidence failed to establish beyond reasonable doubt that Mrs Chamberlain had murdered her daughter a difficult one. He acknowledged that the circumstantial evidence against her appeared strong. He said that there was much about the defence story about the dingo that struck him as being ‘far-fetched.’
1110 At the same time, his Honour said that the prosecution case against Mrs Chamberlain was neither comprehensive nor, in itself, impregnable. Much of the evidence led at trial had been that of conflicting experts, and of inferences to be drawn from established facts. He concluded that, doing the best he could, he had finally come to a firm view that notwithstanding the jury’s verdict of guilty, the evidence did not establish, beyond reasonable doubt, Mrs Chamberlain’s guilt.
1111 I find myself in a position quite similar to that which confronted Deane J. To borrow his Honour’s language, there is, to my mind, a ‘significant possibility’ that the applicant in this case may not have committed these offences. That means that, in my respectful opinion, these convictions cannot be permitted to stand. The only order that can properly be made is that the applicant be acquitted on each charge.
1112 Mine is, of course, a minority view in relation to Ground 1. I am troubled by the fact that I find myself constrained to differ from two of my colleagues whose opinions I always respect greatly. 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.
For my sins no doubt, I have been an attorney for 37 years. The idea that any man could be convicted based upon the evidence presented in the Pell prosecution makes a mockery of the presumption of innocence that all Defendants in criminal cases are provided. This case is much more important than Cardinal Pell. It is about whether justice can be done in a time of hysteria and witch hunt when witnesses calling out a perceived “witch” are to be believed no matter the evidence to the contrary.