MELBOURNE, Australia - While Cardinal George Pell's appeal has been denied, the case that has divided Australia is far from over.
Even the Victorian Court of Appeal was divided when it handed down its judgement on Wednesday. Two of the three judges found the appeal should be dismissed. The third however found that the appeal should be allowed, that the convictions and sentence imposed be set aside, and that judgement be entered with acquittal on all charges.
Justice Weinberg, who served as a Federal Court judge from 1998 to 2008, delivered a 201 page judgement setting out why there was a significant doubt as to whether Cardinal Pell sexually assaulted two 13-year old choristers in 1996/97.
The comprehensive finding compared to the 120 page judgement of the two appeal court judges that concluded the appeal should be dismissed, Chief Justice of the Supreme Court of Victoria Justice Anne Ferguson, and President of the Court of Appeal Justice Chris Maxwell.
All three judges diligently scrutinised the evidence, read the trial transcripts (both trials), viewed videotapes of testimony and undertook a tour of Melbourne Cathedral where the offences were alleged to have taken place. Two pieces of evidence they did not view however were the two police reports the anonymous complainant made in 2015 which led to the matter being investigated. Astonishingly they were not put into evidence by the prosecution in either of the trials, and were not considered by the jury either, although they were referred to in cross-examination
In a nutshell the case was built around the testimony of one prosecution witness who was found to have been 'compelling, truthful, not a liar, a witness of truth,' as the prosecutor described him, and two of the judges upheld that view. Not Justice Weinberg however.
So what did Justices Ferguson and Maxwell find?
"Directly addressing the falsity contention, senior counsel for the Crown opened his oral submissions by asserting that A (the name they gave the complainant) was a very compelling witness. He was clearly not a liar. He was not a fantasist. He was a witness of truth."
"In our view, that submission should be upheld," the justices wrote in their judgement. "The jury were entitled to reject the falsity contention. (We have viewed A's evidence twice -first, before we had reviewed the other evidence and heard the arguments in the appeal and again afterwards. As it happens, the jury took a similar course, asking shortly after they commenced their deliberations to be provided with the recording of A's evidence)."
"Throughout his evidence, A came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution. As might have been expected, there were some things which he could remember and many things which he could not. And his explanations of why that was so had the ring of truth," the justices said.
"For example, during cross-examination A said that his memory of Archbishop Little (Cardinal Pell's predecessor) was not 'indelibly marked' in his brain. The following exchange then took place:
Q: But you'd seen [Archbishop Little] for -since you've joined the choir for at least half a year at Masses; hadn't you?
A: Yes, but I -as a 12-year-old boy, wasn't looking at the facial features of, of the priests. I was looking at the sheet music, I was trying to adhere to a pretty strict regime as a choirboy. I was trying to do my best job as a choirboy and I knew then that just like any other pursuit like this, it was ah, quite serious on my performance and my behaviour mattered a lot. So, I was more focused on being um, doing the right thing as a choirboy than looking at how individuals looked up on the altar. The only time I really had time to focus was when a horrible incident happened to me and I, I can remember quite a bit about that.
"Nothing about A's account of the events suggested that it was either fabricated or a product of his imagination. As we have already indicated, there were features of his account, and of the way his testimony unfolded, which strongly indicated that it was neither of those things. Of course, A's evidence could not be considered in isolation. Any first impression of him had to be constantly, and critically, re-evaluated in the light of the opportunity evidence. Having done that for ourselves, we were not prompted at any stage to doubt the veracity of his evidence. The impression we gained from reading the transcript of A's cross-examination reinforced the impression we had gained from watching the recording of him giving evidence. Nothing about his answers under cross-examination suggested that he was concocting, or embellishing, or 'fantasising'. On the contrary, both the content of what he said and the way in which he said it -including the language he used-appeared to us to be entirely authentic," Justices Ferguson and Maxwell said in their judgement.
The 322-page judgement documents handed down on Wednesday gave the first glimpses of the testimony given by the complainant who has remained anonymous throughout the trial, with his evidence sealed.
One exchange reproduced centered around the fact the complainant, referred to as A, did not discuss the offences with the other boy, referred to in the judgement as B.
In cross-examination, defence counsel put to A that:
Q: It would have been inevitable that one or other of you would've asked the other the next day, or even during the next week, 'Have you told anyone?' or, 'What are we going to do about it, if anything?'.
And again:if it happened, either you or [B] would have asked each other, 'What are we going to do?', wouldn't you?
A: No, I think you're assuming so much about us. I think you're assuming that we were um across, across timelines and historical dates and also across the gravity of such an incident. We were -we were young kids. We were just trying to get by and we had no, no -we didn't want to rock any boats. It's the last thing we wanted to do. ... We were nursing, we were carrying forward a lot of hopes and dreams of our working-class families and it meant so much to us to maintain and preserve what we had and the fact that that happened and, and didn't happen so quickly, it started and finished such a quick, quick amount of time and that we went back resuming life and not much really infiltrated us after that. So we continued trying to live our lives as we were before. ... I mean, how is that unreasonable? How is that unreasonable to try and, and explain that to you? How can you think that we were so pragmatic and tactical about everything that we would be discussing the nature of -of going forward or -why would I ask [B] why his mother, ah, was or wasn't informed when I didn't even want to think about it myself?
As counsel continued to press him, A gave extended explanations for his long silence, wrote the justices. His answers combined two different themes. The first was that what had occurred was something he could not comprehend. 'We couldn't fathom what had happened to us'. It was so completely out of his ordinary experience, and so terrifying, he said, that: part of the way I dealt with it was not to speak to anyone about it and to completely push it into the darkest corners and recesses of my brain.
A said at one point: it was completely an anomaly ... out of stream ... Completely against the grain of how we were living our lives ... it came into our lives and it exited just as quickly. The second theme was that he was anxious to do nothing to jeopardise his future at the school, on which the hopes of many in his family rested.
A was asked whether it had occurred to him that he should warn B, after the second incident, that there might be 'a continuing interest in him'. A said it had not and, when asked to explain, he said:
Because the incidents were isolated, where they were compartmentalised and they were pushed away from my normality. They were absolutely isolated and ripped out of my mainframe which was -which was heading towards trying to be a young academic, you know, kid in a rich school trying to survive and trying to get through and trying to impress everyone in my family and trying to -to do something that -that I had the -I hadn't done before, you know. That meant a lot to me. That meant a lot to me. And the fact that -that that was jeopardised, and the fact that -and it didn't matter what jeopardised it. I could not bear the fact of -of letting down everyone in my life. Everyone around me had a lot of hopes in me on attending St Kevin's [College], you know. That was the main drive. I wanted to stay at St Kevin's. I wanted to be a part of that school, and I wanted to succeed in a rich private school environment. And I wanted that with my own head.
"These responses," said the justices, seemed to us to be entirely plausible, as did A's statement that he had 'no intention of telling anyone, ever'. "There was, in our view, no reason to doubt that A was 'horrified ... terrified' by what had happened and, hence, would have buried the memories. Nor that he had done so because he knew he would never speak to anyone about it. It was perfectly understandable for him to have ruled out that possibility. He had been caught red-handed, in a prohibited place, and anything he said about Cardinal Pell was almost certainto be disbelieved. What followed in his evidence also had the ring of truth":
It's something I've carried for the whole of my life, ... and coming forward took a -took a courage much later on for me to be able to even think about coming forward.
The relationship between the two choristers assaulted by Pell was that they had become close friends. They had slept over at each other's homes. Subsequently, they remained in contact, though they were no longer such 'firm friends, the court was told.
This exchange was addressed by all three judges in their findings delivered on Wednesday. Plainly, this line of cross-examination seemed to cause the complainant a good deal of distress the prosecution's appeal counsel argued, submitting that the complainant's appearance and demeanour, in response to this line of questioning, showed him to be both a truthful and reliable witness. He submitted that moments of high drama in a trial of this kind provided a clear answer as to why the jury had accepted the complainant's account, and put to one side all of the other evidence.
George Pell's counsel, in his submissions before the appeals court, submitted that a few minutes of highly emotional testimony, given in circumstances that could hardly be explored, represented far too slender a basis upon which to rest a conviction in a case with so many obvious weaknesses.
As far as the compelling nature of the complainant' testimony, in a note to his judgement, Justice Weinberg pointed out: "Of course, it should not be forgotten that a different jury, at the first trial, had viewed essentially the same evidence given by the complainant as did the jury in the second trial. That first jury had been unable to agree, even when directed that they might bring in a majority verdict. That might suggest that Mr Boyce's submission as to the unanswerably compelling nature of the complainant's evidence might be something of an overstatement," he wrote.
In an ominous sign, pointing to the inevitability of a High Court challenge to Wednesday's finding, Justice Weinberg alluded to the risk of putting too much focus on the compelling nature of a single, uncorroborated witness. He said: "Clearly, it is important to be aware of the risk of giving too much credence to matters such as demeanour, when evaluating the evidence of a witness. In the past, there has been a great deal of misplaced confidence in the capacity of a judge, or any other decision-maker, to discern the truth, on the basis of demeanour alone."
"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. These might include, for example, contemporary documents, clearly established facts, scientifically approved tests, and the apparent logic of the events in question," he wrote.
"Empirical evidence has cast serious doubts upon the capacity of any human being to tell truth from falsehood merely from the observations of a witness giving evidence. That is particularly so in the artificial and stressful circumstances of a courtroom. There is today a substantial body of scholarly writing which cautions against giving too much weight to demeanour when assessing the probative value of evidence."
"A witness who speaks hesitantly might simply be cautious, or taking the time to fabricate or embellish. An emphatic witness can be deceptive, or even convince himself or herself that what the witness is saying is true. A witness who looks the judge straight in the eye, rather than casting his or her eyes on the ground, can be telling the truth, or lying, with no way of knowing other than by relying on nothing more reliable than intuition," he said.
On the current case Justice Weinberg agreed "the defence 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," he said.
"If the complainant's evidence stood alone (therefore putting to one side each and every one of the 17 'solid obstacles' to conviction upon which Mr Richter relied at trial), I would not conclude that his allegations, in respect of the first incident in particular, were fabricated. I might not say the same with regard to his allegations in respect of the second incident, though it is unnecessary to arrive at a final conclusion regarding that matter. At the same time, I would not myself be prepared to say, beyond reasonable doubt, that the complainant was such a compelling, credible, and reliable witness that I would necessarily accept his account beyond reasonable doubt," he wrote.
"...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 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 had always been a weak case, built upon an account, by the complainant, that was itself highly improbable. Of course, the fact that an alleged incident can be described as 'improbable' does not mean that the evidence concerning that incident is untrue. And, of course, a conviction for an offence can be based solely upon the evidence of a witness who is sufficiently credible and reliable, even if that witness' account is properly described as implausible," Justice Weinberg wrote.
After extensive explanation as to his reasons, Justice Weinberg in his judgement concludes that after having regard to the whole of the evidence, and having deliberated long and hard over the matter, he has found himself in the position of having a genuine doubt as to the applicant (Pell's) guilt. "My doubt is a doubt the jury ought also to have had," he said.
"That is not because I am necessarily to be regarded as being better able to evaluate factual issues of the kind raised in this trial. It is rather because the High Court has said definitively that ordinarily, my doubt is a doubt that the jury ought to have had."
"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," Judge Weinberg wrote.
Having set out his findings the justice acknowledged his findings differed from those of his colleagues on the appeal court. "Mine is, of course, a minority view in relation to Ground 1," he wrote. "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," he said.