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Why one appeal judge thought Pell should go free

Juliet Palmer

Then-Victorian Court of Appeal Justice Mark Weinberg. While Justices Chris Maxwell and Anne Ferguson upheld Cardinal Pell’s conviction, Justice Weinberg dissented.

One of the judges who heard Cardinal George Pell’s appeal says he would have quashed the cardinal’s five convictions for child sex offences.

Judge Mark Weinberg says he would have based his decision on a “significant body of cogent evidence” that cast serious doubt on the victim’s accoun­t.

In his dissenting ruling, Weinberg says the case is unusual: it depends entirely upon the victim 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,” he continues.

“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.

“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.

“The complainant’s alleg­ations against the applicant were, to one degree or another, implausible.

He could not exclude the possibility that some parts of the former choirboy’s testimony were “concocted”.

Weinberg says the prose­cution’s case was challenged by accepted testimony of a signif­icant number of witnesses, “all of whom were of good character and reputable” he says.

The possibility of the abuse occurring in the sacristy­ relied on several factors.

These included whether Pell was always accompanied by parish priest Monsignor Charles Portelli and whether the area was a “hive of activity” shortly after Sunday Mass.

“Even the ‘reasonable possibility that what the witnesses who testified to these matters may have been true must inevitably have led to an acquittal … because the complainan­t’s account could not be reconciled at all with any such finding,” Weinberg says.

Legal experts are beginning to focus on the verdict.

One, Mirko Bagaric,  a professor at Swinburne University, expressed surprise the two judges who formed the majority had not followed Weinberg.

Bagaric’s view is that Weinberg was “clearly the brightest bloke on the Victorian Court of Appeal” reports The Australian.

Bagaric told The Australian that Weinberg was a “powerhouse” on criminal matters and more experienced in this area than the two judges who formed the majority.

Weinberg’s 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.

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