Why Justice Mark Weinberg Believed George Pell Should Go Free

By Adam Cooper
The Age
August 20, 2019

One of the three Court of Appeal judges who heard George Pell's appeal believes there is a "significant possibility" the cardinal did not commit the child sex crimes he's in jail for and would have acquitted him.

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".

Justice Weinberg, a former Federal Court judge who presided over the trial of Melbourne's Bourke Street killer James Gargasoulas last year, said there was a body of evidence that made it "impossible to accept" the victim's account.

"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," Justice Weinberg wrote in his judgment released on Wednesday.

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

After assessing the evidence presented at Pell's County Court trial last year, Justice Weinberg said he would have quashed the cardinal's five convictions for child sex offences.

But he was in the minority. His two colleagues on the appeal bench – Chief Justice Anne Ferguson and Justice Chris Maxwell – found the victim was telling the truth and ruled Pell's appeal should be dismissed.

The 2-1 majority ruling means Pell will continue to serve his six-year jail term for sexually assaulting two choirboys at St Patrick's Cathedral in East Melbourne in the 1990s, when he was archbishop of Melbourne.

The surviving victim, who is now a father in his 30s, told the jury in Pell's trial that Pell attacked him and another choirboy in the sacristy of St Patrick's Cathedral in late 1996, and also separately attacked just him in a corridor early the following year.

The other choirboy died following a heroin overdose in 2014, having never disclosed the abuse.

Justice Weinberg was not convinced by the evidence of Pell's surviving victim, who at one point conceded at Pell's trial that he could not "definitively say the year" he was abused.

Justice Weinberg placed weight on the testimonies of church officials who claimed Pell would have never been left alone at St Patrick's Cathedral and would have been greeting parishioners at the entrance when the abuse was said to have taken place.

"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.

"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."

Of the 325-page judgement delivered by the Court of Appeal, Justice Weinberg's reasons accounted for 200 pages.

"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."

Chief Justice Ferguson, in a summary of the Court of Appeal's ruling, said Justice Weinberg found that at times the victim was inclined to embellish aspects of his evidence, and that it contained discrepancies and "displayed inadequacies".

"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," Chief Justice Ferguson said.

"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."

But Chief Justice Ferguson and Justice Maxwell accepted the prosecution's submission that Pell's surviving victim was a compelling witness, "clearly not a liar", "not a fantasist" and a witness of truth.

"Throughout his evidence the complainant came across as someone who was telling the truth," Justice Ferguson said.








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