“Genuine doubt”: Why one judges’ argument could save George Pell
After George Pell’s application to Victoria’s Court of Appeal was dismissed on Wednesday with two judges ruling that they thought the jury’s verdict was unreasonable, Pell’s legal team has their sights set on the High Court of Australia.
It’s all due to one judge who disagreed and put his views forward in a 203-page dissenting opinion.
Justice Weinburg is a former Commonwealth Director of Public Prosecution who joined the Federal Court in 1998 before moving to the Victorian Court of Appeal in 2008. He retired in 2018 but has served as an acting judge since then.
There are five reasons as to why he disagreed with his fellow judges.
1. Genuine doubt
Weinburg says that he has a “genuine doubt as to the applicant’s guilt.” The jury was required in the case to find Pell guilty “beyond reasonable doubt”, but after reviewing the evidence himself, Weinburg thinks that there was a “significant possibility” that Pell did not commit the offences.
“My doubt is a doubt which the jury ought also to have had,” he wrote.
2. He didn’t find the complainant convincing
Weinburg has suggested that there was a lot of evidence that casts doubt upon the complainant’s story.
He said that there were “inconsistencies, and discrepancies, and a number of his answers simply made no sense”.
One example Weinburg used was that the fact that the complainant did not remember there were rehearsals for the choir after mass on the two days that the abuse likely occurred.
The complainant was also unsure if Pell had said mass that day or was leading Mass.
3. Weinburg trusts the other witnesses
He gave more weight to other witness testimonies than his fellow judges who concluded their evidence was inconsistent.
Weinburg has disagreed and said that their evidence is critical and “if accepted, would lead inevitably to acquittal”.
The other evidence provided by Pell’s master of ceremonies Charles Portelli established a routine within the church and helped rule out certain dates.
The other judges found that the evidence provided by Portelli and sacristan Max Potter was inconsistent, but Weinburg said that it proves there were “modes of conduct that were subject to particularly rigorous and strong norms”.
4. Large number of improbable possibilities
Weinburg paid attention to one of the arguments put forward by Pell’s legal team which suggested that for the first incident to have happened, a large number of improbable things would have to had occurred within a short time frame.
The boys would have had to break away from the procession, go through two normally locked doors and return to choir rehearsal without anyone noticing they were gone.
Weinburg accepts this argument.
“The chances of ‘all the planets aligning’, in that way, would, at the very least, be doubtful.”
5. Unusual aspects of the case
Weinburg noted that the prosecution relied entirely on the evidence of the complainant and that there was no supporting evidence.
“These convictions were based upon the jury’s assessment of the complainant as a witness, and nothing more,” he said.
He noted that juries were told they cannot convict an accused unless they were satisfied beyond reasonable doubt, as well as being told that they should not convict if there was a “reasonable possibility” that there was substance to the defence provided.
“It is not now, and never has been, a question of whether (Pell’s) complainant was to be preferred as a witness to, for example, Portelli, Potter, McGlone, Finnigan, or any other particular witness who gave exculpatory evidence,” Justice Weinburg wrote.