PART 2 - February 2020

A follow on from the pre-appeal E-Book of 2019; Produced by the National Civic Council & their News Weekly publication

www.newsweekly.com.au Article 1

Why Cardinal Pell is appealing to the High Court

by Peter Westmore, September 7, 2019

Just as Cardinal George Pell’s evidence that supported the conviction on five counts of sexual complainant’s version of events, and assault shocked those present in court almost every witness contradicted him, when the jury verdict was handed when asked questions resulting from his down in December last year, there was allegations. also shock when ’s highest court, the Court of Appeal, confirmed In light of the unexpected outcome of the jury verdict by a 2:1 margin on the appeal, it is unsurprising that August 21. Cardinal Pell’s legal team has decided to refer the matter to ’s highest , a journalist and outspoken court. critic of Cardinal Pell, who attended some days of the trial in the County In the Court of Appeal, the majority Court and celebrated his conviction, (Chief Justice Anne Ferguson and said after the Court of Appeal hearing President Chris Maxwell) took the view in July that he expected Cardinal Pell that they believed the complainant, to be acquitted, and described the despite the contradictions in his Crown ’s performance as evidence, which they saw as “disastrous”. understandable in view of the time that had elapsed since the alleged events. I attended both trials of Cardinal Pell, at Conversely, they set aside the which about 20 cathedral witnesses evidence of the other witnesses, gave evidence, as well as the hearing despite the fact that almost all their before the Court of Appeal. I heard no evidence was uncontradicted at trial.

‘Obstacles’

Their joint judgement was about 120 allegations against the applicant were, pages in length, dismissing all 13 to one degree or another, implausible. “obstacles” that the defence had put In the case of the second incident, forward to challenge the jury verdict. even that is an understatement.

It is not possible to summarise the court judgement briefly, but Justice Ferguson summarised the majority view, saying that the complainant was “not a liar, was not a fantasist and was a witness of the truth”.

The evidence given by the complainant, whose identity is suppressed, had been vigorously contested by Cardinal Pell’s defence barrister, QC.

It was also contradicted by evidence of witnesses who included fellow choristers at St Patrick’s Cathedral at the time, adult altar servers present at the relevant Masses after which the alleged assault took place, the cathedral’s sacristan, who was responsible for the priest’s sacristy, the “That is not so by reason of the cathedral’s Master of Ceremonies, who complainant having alleged that he meticulously attended the Archbishop had been sexually abused, in the past, throughout services in the cathedral, by a senior Catholic cleric. Sadly, as we and others. have come to appreciate, there is nothing wholly improbable about The third judge who heard the case, allegations of that kind being true. Justice , is one of Australia’s leading criminal lawyers, “It is, rather, by reason of the detailed and was the Commonwealth Director circumstances that were said to have of Public Prosecutions for some years surrounded those allegations of abuse, before being appointed a Federal circumstances as to time, place and Court judge. manner.

Over more than 200 pages of closely “I am quite unconvinced by [Crown reasoned argument, he reached barrister] Mr Boyce’s submission that the exactly the opposite conclusion from complainant’s evidence was so his fellow judges about the weight of compelling, either when viewed as a evidence, and the credibility of the whole, or when regard is had to his complainant. distressed response to Mr Richter’s vigorous cross-examination, that I Justice Weinberg said: “Objectively should put aside all of the factors that speaking, this was always going to be a point to his account as being problematic case. The complainant’s unreliable.” Justice Weinberg said that he found been made in a forceful and the evidence of the cathedral persuasive manner. witnesses credible, and pointed out that any one of them, if accepted, “Making the same due allowance of would have led to an acquittal. which I have spoken with regard to the dangers of giving too much weight to matters of demeanour, the applicant seemed to me to be genuinely shocked and angered by the nature of the allegations being put to him, as I understand it, for the first time in detail.”

He also pointed to parallels between the Pell trial and that of Lindy Chamberlain, wrongly convicted of murder after a dingo took her baby at Ayer’s Rock (Uluru) in 1980. Mrs Chamberlain appealed to the Northern Territory Supreme Court and later the High Court. Both upheld her conviction.

She spent a number of years in prison before new evidence, her baby’s matinee jacket, was discovered near a dingo’s lair at Uluru. It took years before the legal system exonerated her. Contrary to media reports that characterised Cardinal Pell’s record of Justice Weinberg concluded: “The only interview with the police in Rome in order that can properly be made is that 2016 as “arrogant”, Justice Weinberg the applicant be acquitted on each said: “I considered his denials to have charge.”

Article 2

Cardinal Pell's appeal to go to High Court by Peter Westmore - November 16, 2019

The has granted leave for Cardinal George Pell to appeal against his conviction on sex- abuse charges.

The controversy over the conviction of Cardinal George Pell has not gone away, despite the time that has elapsed since his conviction in December 2018, and sentencing last March.

Cardinal Pell has not been moved to was “basically the same” as granting an ordinary prison, as would normally leave to appeal. be expected, but remains in solitary confinement in the Interestingly, on the same day that Assessment Prison. Cardinal Pell’s application was dealt with, there were 22 applications for He is fighting to clear his name by special leave. Cardinal Pell’s was the appealing against his conviction to the only one granted. High Court, which will hear his case early next year. The trials of Cardinal Pell raise real doubts about the legal system in On November 13, two justices of the Victoria, given the fact that Cardinal High Court ruled that Cardinal Pell’s Pell was convicted on the evidence of application for special leave to appeal a single complainant, whose testimony against his conviction should be was contested at every point, and referred to the full court. contradicted by other witnesses.

They ruled that the application should He claimed that he and another be dealt with “for argument as on an chorister were sexually assaulted in St appeal”. Melbourne University Law Patrick’s Cathedral after Sunday Professor Jeremy Gans said the referral Solemn Mass in December 1996. The other boy died in 2014 of a heroin overdose, but had previously told his mother, who was desperately trying to find a cause for her son’s drug addiction, that he had not been molested.

At the trial, there were over 20 witnesses who were also present on the occasion of the alleged assault who not only did not corroborate his testimony but actually contradicted it. Most of the other witnesses’ evidence Based on the guilty verdict, he was not contested by the prosecution. sentenced Cardinal Pell to a term of six years imprisonment, with a minimum The jury verdict was a reflection of mass term of three years and eight months. hysteria generated in the community through the media, which saw Cardinal An appeal against the conviction to Pell repeatedly verbally abused while Victoria’s highest court, the Court of entering the court. Appeal, failed when two of the three judges found that the complainant was “a witness of truth”. The trial judge referred to this at the sentencing, saying that Cardinal Pell They did not, however, draw the logical had been the target “of a witch hunt or conclusion that the other 20 or more a lynch mob”. witnesses must have been telling lies. Read here articles from News Weekly and elsewhere about the original trials of Cardinal George Pell.

+ Read articles from News Weekly and other sources on Cardinal Pell's appeal in the Victorian Supreme Court here. The dissenting judge, Justice Mark Cardinal Pell’s defence team did not Weinberg, said: “Objectively speaking, call them as witnesses in the trial. this was always going to be a problematic case. The complainant’s Catholic News Agency interviewed the allegations against the applicant were, two teachers and said that Lil Sinozic, a to one degree or another, implausible. former teacher and executive assistant In the case of the second incident, to then Father – now Monsignor – even that is an understatement. Charles Portelli, who was then- Archbishop Pell’s master of “That is not so by reason of the ceremonies, echoed the defence, complainant having alleged that he insisting that the circumstances of the had been sexually abused, in the past, alleged crimes as presented to the jury by a senior Catholic cleric. Sadly, as we simply did not add up. have come to appreciate, there is nothing wholly improbable about “I just know for a fact that what they’re allegations of that kind being true. describing could not have happened, given the situation in the sacristy after “It is, rather, by reason of the detailed Mass … to say that there was this five- circumstances that were said to have minute interval where these acts were surrounded those allegations of abuse, performed, and nobody saw or heard circumstances as to time, place and anything, is ridiculous. manner. “I don’t know why the jury was led to “I am quite unconvinced by [Crown believe otherwise,” she told CNA. barrister] Mr Boyce’s submission that the complainant’s evidence was so Her account was confirmed by Jean compelling, either when viewed as a Cornish, a former principal of Good whole, or when regard is had to his Shepherd Catholic School in distressed response to Mr Richter’s Melbourne. vigorous cross-examination, that I should put aside all of the factors that In December 1996, Ms Cornish was on point to his account as being secondment to the Archdiocese, and unreliable.” later served as project director for the Archbishop and cathedral manager.

Justice Weinberg said that he found She had complete access to all parts of the evidence of the cathedral the cathedral, attended Sunday witnesses credible, and pointed out Solemn Masses at the cathedral, and that any one of them, if accepted, was therefore present when the would have led to an acquittal. alleged offences took place. She was therefore perfectly placed to observe Neither of them was interviewed by anything that went on in the cathedral police investigating the matter, nor precinct. called as witnesses at Cardinal Pell’s trials. She said the Archbishop would always spend a great deal of time shaking The two women who said they were hands and greeting people after Mass, present in the cathedral for Sunday even as protestors sometimes made Solemn Masses in December 1996, Lil their presence known with placards, Sinozic and Jean Cornish, have also shouting slogans such as, “Pell, go to expressed disappointment that hell” and “We will get you, Pell, no “If I heard it once, I heard it a thousand matter what”. times from judges of impeccable pedigree in Ms Cornish also said she was in the habit the criminal justice system during their of observing the activities and summing up and said it, too, in a final movement of people in the cathedral’s sacristy area. address to any number of juries: ‘You must be satisfied of the guilt of the accused “This was something I had learned to do beyond any reasonable doubt’. Or another even in the short two months I had been there, as the main sacristy variant: ‘If you have any reasonable doubt corridor door was open to allow the about the evidence of the complainant, your altar servers, the assistant sacristan, and duty is to acquit.’” Alan the florist, as well as others who attended to the sanctuary and sacred vessels, to access the area freely.” - Troubled by Pell judgments, Letters, The Ms Cornish also said she was in the habit Australian, August 28, 2019. of observing the activities and movement of people in the cathedral’s The High Court has recently heard sacristy area. cases that bear some similarity to

Cardinal Pell’s. “This was something I had learned to do

even in the short two months I had Early in November, the High Court been there, as the main sacristy overruled the conviction of Steven corridor door was open to allow the Fennell, who had been convicted by a altar servers, the assistant sacristan, and Queensland jury of murder in 2012. Alan the florist, as well as others who

attended to the sanctuary and sacred The accused was charged just four vessels, to access the area freely.” days after an elderly woman he was acquainted with was murdered, ‘Justice Weinberg's remarks took up more although there was no direct evidence than half of the court's 325-page decision. against him, and the circumstantial evidence was, the High Court said, He said the complainant "seemed almost to “extremely weak”. 'clutch at straws'" when he was questioned to It is clear that the police – who found minimise inconsistencies in the evidence.’ no DNA or forensic evidence linking him with the crime – were convinced he was the killer, regardless of the - Yara Murray-Atfield, ABC, 23 August 2019 evidence.

The conviction went on appeal to Cornish said she believes that the area Queensland’s highest court in 2017, where the abuse allegedly occurred which unanimously confirmed the was the “busiest and most open” of the conviction in 2017. He then appealed sacristy areas, and reiterated that to the High Court, which considered Archbishop Pell was never alone the case over two years later. before, during, or after a Sunday Mass. The High Court said: “The Crown case concerning opportunity and motive was extremely weak.” It found that key evidence regarding the alleged ordered that Mr Fennell be released murder weapon was “glaringly immediately. improbable for numerous reasons”. The other case involved an appeal to The High Court said: “The court may the High Court by Victoria’s Director of take into account the realities of Public Prosecution in the Tyrrell case. human experience, including the fallibility and plasticity of memory, Brother John Tyrrell had been especially as time passes, the possibility convicted of sexual abuse of a child in of contamination of recollection, and 2018, and sentenced to 11 years the influence of internal biases on imprisonment. However, his conviction memory. was overturned by the Court of Appeal in March 2019. “The court can also take into account the well-known scientific research that Victoria’s Director of Public has revealed the difficulties and Prosecutions (DPP) sought leave to inaccuracies involved in assessing appeal to the High Court, but the High credibility and reliability. Court ruled against the DPP last August.

“And especially is that so in a case like this, where the jury has been subjected In relation to Cardinal Pell’s appeal, it is to the seductive effects of a species of unknown when it will go before the High identification evidence that has in the Court but, with the Christmas-New Year past led to miscarriages of justice.” legal recess commencing in about a month and other cases already set The High Court ruled that the down for hearing, it is expected to be Queensland Court of Appeal had erred some time after February, 2020. in confirming the conviction, and

“The state’s two most-senior judges, Ferguson and Court of Appeal president Chris Maxwell thought Pell’s conviction was safe. The state’s most respected criminal law specialist judge, former academic and prosecutor Mark Weinberg, thought it wasn’t…”

- Jeremy Gans, Sydney Morning Herald, 22 August 2019 APPENDIX

Why Justice Mark Weinberg believed George Pell should go free, Adam Cooper, , 21 August, 2019 https://www.theage.com.au/national/victoria/why-justice-mark-weinberg-believed- george-pell-should-go-free-20190821-p52jaj.html

Justice Mark Weinberg said he was not convinced by the victim's evidence and could not exclude the possibility that some parts of the former choirboy's testimony were "concocted".

Official Judgement from the Victorian Supreme Court (appeal), 21 August 2019 https://www.supremecourt.vic.gov.au/sites/default/files/2019- 08/pell_v_the_queen_2019_vsca_186_-_web_1.pdf ______

Summary of the Pell Papers, Chris Friel, Academia.com, November 2019. Brief summary of academic work done on the Pell case followed by a bibliographical note. Includes links for all 56 articles.

Cardinal Pell lodges High Court appeal - https://cathnews.com/cathnews/36093- cardinal-pell-lodges-high-court-appeal Cath News, 18 September 2019

They argued that the approach taken by the majority judges required Cardinal Pell to “establish actual innocence”, rather than “merely pointing to doubt”. “This was a reversal of the onus and standard of proof.”

A state’s system of justice put on trial, Chris Merritt, , 18 September 2019 https://www.theaustralian.com.au/commentary/a-states-system-of-justice-put-on- trial/news-story/bffcbe5577ed84d50c46e34f3091401a

The onus of proof was up to the prosecution; it was not up to the cardinal to prove his innocence. Yet the special leave application asserts that the Court of Appeal majority decided the cardinal’s fate on the improper basis that it was up to the defence to prove that the prosecution case was impossible. If this is what happened — and a conclusive ruling is up to the High Court — it will devastate Victoria’s system of criminal justice.

The Pell appeal: judges’ finding ‘reversed onus of proof, Tessa Akerman, The Australian, 18 September 2019 “Belief in the complainant is the beginning of the inquiry, not the end,” they said. “Belief is a prerequisite to conviction but belief does not preclude the existence of doubt raised and left by other cogent evidence. “To find otherwise would fundamentally alter the burden and standard of proof in a criminal trial and increase the likelihood of miscarriages of justice.” Archbishop Peter A Comensoli statement on Cardinal Pell trial, Tuesday 26 February 2019 - https://melbournecatholic.org.au/National-News/archbishop-comensolis- statement-on-cardinal-pell-trial

While acknowledging the judgement of the jury, I join many people who have been surprised and shaken by the outcome of the second trial.

I fully respect the ongoing judicial process, noting that Cardinal Pell continues to protest his innocence. An appeal against the verdict has been lodged. It is important that we now await the outcome of this appeal, respectful of the ongoing legal proceedings.

A statement from Archbishop on the Cardinal Pell Matter, Archbishop Anthony Fisher, 21 August 2019 https://www.sydneycatholic.org/addresses-and-statements/2019/a-statement-from- archbishop-anthony-fisher-on-the-cardinal-pell-matter/

Today’s split decision amongst the judges is consistent with the differing views of the juries in the first and second trials, as well as the divided opinion amongst legal commentators and the general public. Reasonable people have taken different views when presented with the same evidence and I urge everyone to maintain calm and civility.

Double Standards in the Court of Appeal , Quadrant, 26 August 2019 https://quadrant.org.au/opinion/qed/2019/08/double-standards-in-the-court-of- appeal/ In other words, in the Ferguson-Maxwell judgment, the choirboy’s memory of an event twenty-two years after it supposedly occurred is a more acceptable piece of evidence than the church’s documents written at the time the offence purportedly took place.

* Pell v the Queen: Abbreviation of Mark Weinberg, Chris Friell, Academia, August 2019.

A 19-page summary of Justice Mark Weinberg’s dissenting opinion in Cardinal Pell’s appeal. https://www.academia.edu/40166326/Pell_v_The_Queen_Abbreviation_of_Mark_We inberg