VICTORIAN Chief Justice Anne Ferguson and Court of Appeal president Justice Chris Maxwell dismissed all three grounds of Cardinal George Pell’s appeal against his child sex abuse conviction.
Justice Mark Weinberg dissented against their opinion on ground one.
The majority judgement published by Justices Ferguson and Maxwell said there was no evidence that “leads us to the conclusion the jury must have had a doubt about whether there was a realistic opportunity for the offending to occur”.
The judges addressed many objections raised by the defence on appeal of ground one such as whether Cardinal Pell’s robes were manoeuvrable in a way described or about the timing of the offending.
In regards to the time of the first incident, which was eventually narrowed to December 15 or 22, the complainant (boy A) was unable to provide a clear recollection.
“A’s responses seem to us, once again, to be those of an honest witness, who readily acknowledges the limits of his recollection,” the justices said.
The justices said boy A’s inability to recall the events before or after the offending was “understandable and consistent with human experience”.
Instead, they understood why he would only remember the offending itself.
The justices said what boy A testified had the “ring of truth” and in their view, he was not “concocting his answers”.
“In our view, the jury were entitled to view this as an honest answer,” they said.
Portelli’s testimony ‘unreliable’
As for the specific opportunity of the offending, Justices Ferguson and Maxwell said witness Monsignor Charles Portelli was unreliable.
“In our view, Portelli’s evidence – taken as a whole – did not compel the jury to have a doubt about A’s evidence,” they said.
Instead, the justices said the jury was “entitled to have reservations about the reliability of Portelli’s affirmative answers under cross-examination”.
The justices pointed to Msgr Portelli’s contrasting certainty and uncertainty between defence and prosecution questioning as reason to hold reservations.
They said it may be accepted Msgr Portelli had a “general recollection” of the first time Cardinal Pell said Sunday solemn Mass in the cathedral – as a significant life event – but his evidence demonstrated a lack of detailed recollection of the day.
They said the jury was entitled to consider Msgr Portelli’s evidence as a whole, including his answers about the physical impossibility of Cardinal Pell manoeuvring his robes, which were demonstrated to be “unsustainable”.
Justices Ferguson and Maxwell said these reservations applied with “even greater force” to evidence from then-sacristan Max Potter.
Due to multiple incorrect or problematic answers Mr Potter gave, the justices concluded the jury had a “solid basis for finding that Potter’s evidence did not give rise to a reasonable doubt”.
Many other witnesses were found wanting too.
Jury not bound to reasonable doubt
Offering reasons for each, the justices said the opportunity witnesses called by the defence ultimately did not bind the jury to have a reasonable doubt.
The justices said “the overall effect of the opportunity evidence was that of uncertainty and imprecision”.
As for the second incident, whereby boy A was allegedly groped by Cardinal Pell in a busy corridor, the justices said there was nothing “inherently improbable about A’s account”.
“The action as described was very brief (‘one, two, three seconds’) and it would not have required Cardinal Pell to do more than pause momentarily,” they said.
Ultimately, the justices said it was possible the encounter went unnoticed and the evidence to the contrary fell “well short of establishing impossibility”.
In their 120-page document, the justices addressed many other parts of the case.
“Taking the evidence as a whole, it was open to the jury to be satisfied of Cardinal Pell’s guilt beyond reasonable doubt,” the justices said.
‘Genuine doubt’ about Cardinal Pell’s guilt, Justice Weinberg decides
JUSTICE Mark Weinberg presented a 204-page document for his reasons about his dissenting opinion on the first ground of appeal of Cardinal George Pell’s historic sexual abuse conviction.
Justice Weinberg joined his colleagues Chief Justice Anne Ferguson and Court of Appeal president Justice Chris Maxwell in dismissing the second and third grounds of appeal about a visual presentation and a technicality about arraignment, respectively.
But he dissented on the first ground of appeal.
The first ground was that Cardinal Pell’s guilty verdict was unreasonable and could not be supported having regard to the evidence because on the whole of the evidence, it was not open to the jury to be satisfied beyond reasonable doubt on the word of the complainant (boy A) alone.
“I find myself in the position of having a genuine doubt as to the applicant’s (Cardinal Pell’s) guilt,” he said in his judgement reasons.
Justice Weinberg said there was a “significant body of cogent evidence casting serious doubt” upon boy A’s account, both as to credibility and reliability.
He said particularly it was the circumstances around the abuse (time, place, manner) that caused him to doubt boy A’s testimony, which was not backed up by any corroborating evidence.
Compounding probabilities unlikely
One of his reasons regarded what was called “compounding improbabilities”.
Defence counsel Robert Richter said for the abuse to have occurred each of a “large number of independently improbable, if not impossible, things” would have had to have occurred simultaneously within a short time frame of about 10 minutes.
Opportunity witnesses like then-Master of Ceremonies Monsignor Charles Portelli and then-sacristan Max Potter testified to “normal procedure” about how Mass was conducted.
Crucially, Msgr Portelli testified to always being by Cardinal Pell’s side while he was robed, whether this was in procession, being with him on the cathedral steps as he greeted parishioners or returning to the sacristy to disrobe.
The procedures laid out in both Msgr Portelli and Mr Potter’s as well as choir master Br Peter Finnigan’s testimony all had to be broken for Cardinal Pell to have had an opportunity to abuse the choirboys.
Justice Weinberg then referred to probability theory.
He said the joint occurrence of improbable events must be multiplied together – this made the resulting scenario even more unlikely.
He said this probability analysis “suggests strongly to me that the jury, acting reasonably, on the whole of the evidence in this case, ought to have had a reasonable doubt”.
Justice Weinberg said boy A’s account “could not possibly stand if the evidence given by Portelli, or Potter, were to be accepted”.
Portelli ‘credible and reliable’
Justice Weinberg went to some length explaining why he accepted Msgr Portelli as a “credible and reliable witness”.
He said both Msgr Portelli and Mr Potter would have good reason to recall the first time Cardinal Pell celebrated Sunday solemn Mass at St Patrick’s Cathedral.
Having these specific memories was essential to rule out the only two days in December 1996 in which the first incident of abuse could have taken place.
Justice Weinberg was convinced Msgr Portelli had these specific memories.
He also said there was “good reason” Mr Potter did too.
He also accepted altar server Daniel McGlone’s evidence to be credible about his mother embarrassing him in front of Cardinal Pell, effectively providing an alibi for Cardinal Pell for one of the dates in question.
Another point of concern was boy B’s denial of the abuse to his mother.
Justice Weinberg said it was not uncommon for people to deny abuse, but taken in unison with the rest of the evidence, it dampened the prosecution case.
Second incident brazen to new heights
The second incident of abuse, where Cardinal Pell allegedly groped boy A in the corridor, was submitted by the prosecution to conform to “madman theory”, by which assaults could take place in brazen situations.
Justice Weinberg said this incident took “brazenness to new heights, the like of which, I have not seen”.
He found it implausible for this assault to have taken place and was surprised the prosecution brought the charge because its brazenness could cast doubt on boy A’s reliability and credibility as a whole.
“There is, to my mind, a ‘significant possibility’ that the applicant in this case may not have committed these offences,” Justice Weinberg said.
“The only order that can properly be made is that the applicant be acquitted on each charge.”