Inside Story

A judge’s doubts

Did all three judges overstep the mark in deciding George Pell’s appeal?

Jeremy Gans 29 August 2019 4080 words

“Obvious inconsistencies”: Justice Mark Weinberg. Supreme Court of Victoria/AAP Image

“What do you do when you’re not sure?” These words open Doubt: A Parable, John Shanley’s Pulitzer-winning play from 2004. The sermon of Father Flynn — “in his late thirties, in green and gold vestments” — concludes: “Doubt can be a bond as powerful and sustaining as certainty. When you are lost, you are not alone.” In the congregation, Sister Aloysius, the parish’s school principal — “watchful, reserved, unsentimental” — listens with growing certainty.

Last week’s announcement by Victoria’s chief justice, Anne Ferguson, that George Pell had lost his appeal against his conviction for child sexual abuse was accompanied by her observation that “it is fair to say that his case has divided the community.” She was probably referring to the very public divide between those who believe that Pell — like so many other priests before and since — is a child sex abuser and those who believe that the former archbishop is an innocent victim of lies and injustice. But there is a different, less discussed community division: between those who are sure either way about Pell and those who aren’t. It’s the latter schism that split Victoria’s Court of Appeal on Wednesday.

In his dissenting judgement, Justice Mark Weinberg writes that “there is, to my mind, a ‘significant possibility’ that [Pell] may not have committed these offences.” This is the eightieth time he has ruled on whether a jury’s verdict was unsafe — and the sixteenth verdict he has voted to overturn in a decade — but the first time even one judge has disagreed with his call. On Wednesday, the state’s two most senior judges did. After discussing the difference between judges and jurors, chief justice Ferguson and Court of Appeal president Chris Maxwell state, in parenthesis: “We do not ‘experience a doubt’ about the truth of A’s [Pell’s accuser’s] account or the Cardinal’s guilt.”

I have my doubts about Flynn’s sermon. Being in doubt is a good deal lonelier than being certain. People who are sure that Pell is either monster or martyr know exactly how to react to each development in his case. But those in doubt are left adrift. Is it right to be in doubt on such matters? Why, as Weinberg openly asks, don’t others share that uncertainty? Most of all, there’s the question Flynn posed, with its many possible answers, none satisfactory.

Aloysius: What happened in the rectory?

Flynn: Happened? Nothing happened. I had a talk with the boy.

Aloysius: What about?

Flynn: It was a private matter.

Aloysius: He’s twelve years old. What could be private?

Flynn: I’ll say it again, Sister. I object to your tone.

Aloysius: This is not about my tone or your tone, Father Flynn. It’s about arriving at the truth.

Flynn: Of what?

Aloysius: You know what I’m talking about. Don’t you? You’re controlling the expression on your face right now.

On learning his fate, “Pell slumped into his chair, looking frail. He appeared to grab onto the dock for support.” At least, that’s what Benjamin Ansell saw. Eliza Rugg saw his head bowed, “destroyed,” his “poker face gone.” But, according to David Marr, “Pell displayed once more his Olympian detachment. Don’t believe reports that he flinched. His lips pursed a little as he stared at the judges. That’s all.” These three were in the same room looking at the same man at the same time.

The 325 pages of the Court of Appeal’s two judgements are replete with moments like that. “Throughout his evidence,” the majority writes of the man who says Pell sexually abused him and another boy in 1996, “A came across as someone who was telling the truth. He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution.” Not so, according to Weinberg. “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 judges watched the same video of Pell’s accuser, the very one both juries saw, but it divided them nearly every time.

Consider one of Weinberg’s “obvious inconsistencies.” When he first spoke to the police in 2015, the thirty-two-year-old complainant didn’t say where he and the other boy were when they “nicked off” from the choir ahead of their abuse (and the police seemingly never thought to ask, even during a walk-through of St Patrick’s). At Pell’s committal in 2018, the complainant told prosecutor Mark Gibson that his “first specific memory” was being in the sacristy after “poking around in the corridors.” But, at that same hearing, he gave Pell’s barrister, Robert Richter, a detailed account. He and the other boy left when the choir was in a “procession” outside the church, entered the building through a south side entrance and went through some double doors before stumbling across the sacristy, which he’d never seen before. “That is understandable and consistent with human experience,” write the chief justice and the president.

Likewise for what the majority labels “undisputed facts” that “the jury were entitled to view” as “independent confirmation of A’s account,” specifically the man’s largely accurate description of the priests’ sacristy (which Pell was using at the time because his personal sacristy was being renovated). Weinberg saw no independent confirmation of anything, just some conveniently selective memory:

Mr Richter: You were taken, were you not, on a tour of the Cathedral when you joined the choir?

Complainant: I would have, yes.

Mr Richter: And you were shown the sacristies?

Complainant: I have no recollection of that, no.

Mr Richter: Do you dispute it?

Complainant: Um, no

But Ferguson and Maxwell think that “the jury were entitled, in our view, to discount” this exchange.

The different takes extend to what the lawyers told the three judges this year as they prepared for the appeal. The majority states that “the defence’s primary submission was that we should not watch any of the evidence” in the videos of Pell’s second trial. But Weinberg writes that Pell’s lawyers “initially objected” only to the court’s “desire to view the recording of the complainant’s evidence, as well as the recordings of several other key witnesses,” insisting that the judges watch a dozen more witnesses.

The three did end up spending “days” watching footage nominated by both sides, while expressing mixed views about doing so. Majority and minority cite, respectively, a High Court ruling and empirical evidence warning against reading much into how witnesses look or act in a courtroom. But the three also fret that — with the notable exception of the complainant’s testimony — Pell’s jury got to see the same witnesses in three dimensions, “collectively” and in an “unbroken sequence.” The latter differences seem to especially concern Ferguson and Maxwell. Noting that the judges’ own viewings were “for the most part, done individually,” they opted to mimic the jury’s experience when it came to Pell’s accuser. Unlike Weinberg, they seemingly watched his testimony cold (with a later reading of transcript “reinforcing the impression we had gained from watching these recordings”) and twice, as Pell’s jurors did, before and while they deliberated.

The viewings didn’t unite them. The prosecution’s appeal barrister, Chris Boyce, urged the judges to watch the complainant’s reaction after Richter asked him why he never spoke with the other boy about their abuse. Wednesday’s judgements reveal his response: “We couldn’t fathom what had happened to us.” On the majority’s computer, these words had a “ring of truth” and showed a “complete absence of any indication of contrivance in the emotion which A conveyed.” On his, Weinberg saw only that Richter’s question “seemed to cause the complainant a good deal of distress,” but that — possibly due to restrictions on cross-examination, both social and legal — its cause “was never made precisely clear.”

Aloysius: There was alcohol on his breath. (He turns.) When he finished meeting with you. (He comes back and sits down. He rubs his eyes.)

Flynn: Alcohol.

James [another nun]: I did smell it on his breath.

Aloysius: Well?

Flynn: Can’t you let this alone?

Aloysius: No.

Flynn: I see there’s no way out of this.

None of this is new. “I have in purely subjective terms a feeling of anxiety and discomfort,” declared NSW appeal court judge Brian Sully in 1993, “about the verdicts of guilty that were returned against the present appellant.” But he nevertheless upheld the jury’s finding that the defendant had sexually abused his thirteen-year-old daughter, explaining: “I am not persuaded that a reasonable jury, instructed as carefully and as fully as was done in the present case, must have been left with a reasonable doubt as to the guilt of the accused.” The judge’s two colleagues on the Court of Appeal didn’t share his concerns. A year later, though, the High Court ruled that Sully should have gone with his gut: “a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.”

The High Court’s decision to give Australian appeal judges a powerful role in reviewing jury verdicts followed its experience in a high-profile case a decade earlier. In 1984, the national court split three judges to two when it upheld the unanimous jury verdict that convicted Lindy and Michael Chamberlain for the murder of their daughter Azaria at Uluru. Just two years later, a chance discovery of Azaria’s missing matinee jacket — which the prosecution had doubted she was wearing — led to a speedy revisiting of all the evidence in the case and the belated quashing of the convictions. The reasons of the majority judges in the High Court — who together headed the nation’s judiciary for the entire 1980s and 90s — are painful to read today. By contrast, Lionel Murphy’s fiery dissent, literally on the eve of the corruption scandal that would close out his career and life, is feted for its foresight.

Justice Weinberg’s dissent in Pell’s appeal draws heavily on this history, but especially the lesser-known judgement of William Deane. Deane is probably Australia’s favourite governor-general, remembered especially for his compassion during national tragedies. Once a commercial law barrister, his dissent in the Chamberlain case was nothing like Murphy’s. He — alone among the dozen judges to judge the Chamberlains — openly admitted that he found their case “a difficult one.” Like most Australians at the time, he thought that the defence theory that a dingo killed Azaria was “far-fetched,” and was troubled by the Chamberlains’ own behaviour the night she vanished. But, he wrote, the prosecution case — with its ultra-tight timelines, multiple witnesses to be discounted and insistence on an inexplicable, heinous, public, spontaneous crime against a child — “strikes me as being, in its own less spectacular way, almost as unlikely as is the story of the dingo.” Almost! And yet, he would have freed Lindy Chamberlain years before the national consensus shifted in her favour. I nominated Deane’s anguished judgement for a recent book on Great Australian Dissents.

Weinberg’s finding that there is a “significant possibility” that Pell is innocent is a direct quote from Deane’s own conclusion about the Chamberlains. And his dissent follows Deane’s route to doubting a jury’s verdict. “I cannot conclude that the complainant invented these allegations, at least in respect of the first incident, and do not do so,” he writes, noting that, “sadly, as we have come to appreciate, there is nothing wholly improbable about allegations of that kind being true.” However, “the devil is in the detail” — specifically “a substantial body of evidence” on the improbability, not impossibility, of Pell being in the sacristy unaccompanied — that “left open at least a ‘reasonable possibility’ that the complainant’s allegations fell short of the standard of proof required.”

Weinberg devotes the last two pages of his reasons to setting out Deane’s position on the dangers of treating jury verdicts as “unchallengeable,” a stance, Deane wrote, that could “sap and undermine the institution of trial by jury” and risk making jurors “a potential instrument of entrenched injustice.” Deane’s warning was endorsed by New Zealand’s top court a decade ago, but Weinberg’s dissent is the first time it has been repeated by an Australian judge.

“I find myself in a position quite similar to that which confronted Deane,” Weinberg writes, and he can’t help pointing out that Deane’s dissent “was ultimately, though for other reasons, proved correct.” In 1984, no one would have predicted that the Chamberlains would be exonerated in a few short years. However, continuing developments in forensics and the slim chance that Azaria’s body might be discovered meant that everyone, including the High Court’s judges, knew that one day the case’s mysteries might be solved. There is no prospect of that happening in Pell’s case. The only things we can ever know about what happened at St Patrick’s in 1996 are inside a few people’s heads.

James: Take your time, Father. Would you like some more tea?

Flynn: You should have left it alone.

Aloysius: Not possible.

Flynn: Donald Muller served as altar boy last Tuesday morning. After Mass, Mr McGinn caught him in the sacristy drinking altar wine. When I found out, I sent for him. There were tears. He begged not to be removed from the altar boys. And I took pity on him. I told him if no one else found out, I would let him stay on.

(Sister James is overjoyed. Sister Aloysius is unmoved.)

History repeats, even in the High Court. In 1994, the seven judges of the national court not only ruled that appeal judges should generally give effect to their own doubts when judging jury verdicts, but also judged a jury verdict themselves. The court ruled that the jury’s finding of guilt in a child sexual abuse case was unsafe. The majority judges (including William Deane) explained that a teenager’s account of being raped by her father was rendered improbable by the squeaky bed on which she said the crime occurred and was contradicted by medical evidence (of her “intact hymen”), the television guide and her father’s denials. Tellingly, the decision was four votes to three. In my view, the decision has aged badly.

I’m not alone in thinking that. Ferguson and Maxwell’s judgement dismissing Pell’s appeal relies heavily on one of the dissenting judges in the 1994 case. Unlike Dr Ferguson and Rhodes scholar Maxwell, Michael McHugh left school at fifteen for a variety of blue-collar and later white-collar jobs, before working his way to a legal qualification. He was soon recognised as a formidable trial and appeal advocate. One of his last cases before becoming a judge was to represent the Chamberlains in their (unsuccessful) court appeals.

But McHugh’s sharp dissent from the High Court’s later ruling on child sexual abuse verdicts championed the jury system. “The collective experience of the jury is more likely to fit them for the task of evaluating the evidence,” he wrote, noting that judges assessing the conduct of a thirteen-year-old complainant must rely on views “derived from their own past contact with teenagers [that] may well be out of date.” (Pell’s accuser was born during Ferguson’s last year as a law student, Maxwell’s first as a barrister, and the first year of Weinberg’s stint as head of my law school.) In their own judgement, Ferguson and Maxwell write that Pell’s jurors “had the advantage not only of a far wider range of life experience than that of three judges but of being able to draw on each other’s experiences in the course of their deliberations.”

I spent much of my doctorate on proof in rape trials championing McHugh’s approach to deciding whether to believe a sexual abuse complainant. In 1994, McHugh had no access to videos of the complainant. Instead, he pored over the transcript, to conclude that “there was much in the detail of her account that made her central allegations ring true,” citing passages like this one:

Q: What did you understand at that point that he was talking about?

A: Then I understood that he meant had I had sex with Mark. So I said, “Dad, we didn’t go all the way” or something like that. And Dad just went, “Right.” Then he got on top of me and he started to push his penis into my vagina, and he kept saying, ‘Lift your hips up and it won’t hurt as much.’”

Ferguson and Maxwell likewise found multiple “rings of truth” in the evidence of Pell’s accuser, while also quoting McHugh at length on the insignificance of more peripheral details. On the often-shifting dates the complainant nominated for when the sexual abuse occurred — a point Weinberg dwelt on in his dissent — the majority judges simply observe that “This is the kind of detail about which honest witnesses make mistakes, as McHugh J said.”

I think the majority of the High Court in 1994 overcompensated in response to their court’s failure in the Chamberlain case a decade earlier. The case before them had several features that make it a much stronger prosecution case than many child sexual abuse trials, including Pell’s. Unlike many abuse victims, including the boys in Pell’s case, the teenager told multiple people about what her father was doing to her: first her best friend, then her sister, then a school counsellor. And, although her father denied all and even testified in his defence, he didn’t come across well. “I would suggest,” he told the police, “that our first priority would be to find out whether in fact K [his thirteen-year-old daughter] is still a virgin.” McHugh thought that those words revealed far too much knowledge about his daughter’s hymen. His words simply frighten me. (I dedicated my doctorate to the unnamed complainant.)

The reason I find Father Flynn’s question about uncertainty so difficult is that there are enormous dangers both in making too much of doubts and in making too little. Too much doubt is why the courts (among others) have allowed far more than one monster to prey on children. While Ferguson and Maxwell refuse to mention the elephant in the room in their judgement, Weinberg states that the royal commission’s findings on that topic “represented a shocking indictment of clerical abuse in this country.” But Weinberg also raises the case of Carl Beech, who was sentenced in late July this year — while the three judges deliberated on Pell — to eighteen years in an English prison for inventing claims that he and others were the victims of half a dozen monsters, many well-known figures.

Beech’s story was exposed because he made claims that could be tested decades later, specifically that the villains had repeatedly broken his bones. Were it not for that detail, it might not have been him who was imprisoned last month. Long before X-rays proved him a liar, the investigation’s head publicly declared Beech’s story “credible and true.” Those words frighten me too.

When I read the Court of Appeal’s judgements on Pell, I see signs of both the majority and the dissent overstepping their respective marks. Weinberg’s stated willingness to believe the complainant’s account of an archbishop raping two choirboys in the St Patrick’s sacristy (but for the “devils in the details”) did not extend to the same witness’s account of Pell striding into a group of choirboys and briefly grabbing his genitals. “I would have thought that any prosecutor,” writes the former director of public prosecutions, “would be wary of bringing a charge of this gravity against anyone, based upon the implausible notion that a sexual assault of this kind would take place in public.” But to the majority (and me), “a fleeting physical encounter of the kind described by A can be readily imagined” and “it seems to us to be quite possible that this brief encounter was not noticed” except by abuser and abused.

But the majority goes further than I would. “What does seem improbable to us,” they write, “is that A would have thought to invent a second incident if his true purpose was to advance false allegations against Cardinal Pell,” noting that more incidents mean more risks of the story unravelling. I find this claim not only dubious — because the same things that make the second incident harder to notice also make it harder to disprove — but dangerous. The majority reasons this way throughout their judgement, asserting that the problems of the complainant’s account — his errors, his uncertainties, some of its improbabilities — are not merely explicable but positively “supportive” of his credibility, on the basis that a liar would have told a more believable story. At the end of that path of reasoning waits Carl Beech.

James: Well. What a relief! He cleared it all up.

Aloysius: You believe him?

James: Of course.

Aloysius: Isn’t it more that it’s easier to believe him?

James: But we can corroborate his story with Mr McGinn!

Aloysius: Yes. These types of people are clever. They’re not so easily undone.

James: Well, I’m convinced.

Aloysius: You’re not. You just want things to be resolved so you can have your simplicity back.

Shanley’s screenplay won a Tony and a Pulitzer, and was also nominated for an Oscar when adapted for film in 2008. The three-hander’s A-list cast — Meryl Streep (playing Sister Aloysius, twenty years after she played Lindy Chamberlain on screen), Philip Seymour Hoffman and Amy Adams — improbably received four acting nominations, with Viola Davis nominated for a stunning ten-minute scene as Donald’s mother, which I won’t spoil here. I saw Doubt on stage in 2006. Later productions in Newcastle and Melbourne in 2015 and Sydney in 2017 overlapped with the royal commission. I’m not sure it’ll be staged here again.

Much has been made of Mark Weinberg’s criminal law experience. It’s true that he has an extensive career in criminal justice and has heard eighty unsafe verdict appeals compared with Anne Ferguson’s five. But Chris Maxwell, the Court of Appeal’s president, has heard eighty-five. I’ve previously noted that none of these judges overturns jury verdicts as often as their colleagues. Ferguson’s limited experience explains why she is yet to overturn a jury verdict, while Maxwell’s rate of one in eight is lower than Weinberg’s one in five. Pell’s case is the first unsafe verdict appeal in which Mark Weinberg was at odds with his colleagues (including Chris Maxwell, whom he’s sat with in such cases twenty times to date), but it’s the sixth time Maxwell has differed from either or both of the other judges on his panel. Each time, the Court of Appeal’s president voted to uphold the jury’s verdict.

And yet, Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty unsafe verdict cases, the same rate as Weinberg’s. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an unsafe verdict argument (a six-year period where Weinberg allowed such appeals seven times as part of unanimous benches and Maxwell dismissed five as part of divided benches). It’s as if, at some point in the last six years, Maxwell simply stopped doubting.

At the end of Doubt, Father Flynn leaves the parish after a single conversation alone with Sister Aloysius, where each confesses to (unspecified) mortal sins. Shanley lets the audience, with Sisters Aloysius and James as their surrogates, decide whether Flynn is a monster. Fifteen years after its debut, the play perfectly catches the tenor of the times, with the exception of its very last spoken line.

Aloysius: In the pursuit of wrongdoing, one steps away from God. Of course, there’s a price.

James: I see. So, now he’s in another school.

Aloysius: Yes. Oh, Sister James!

James: What is it, Sister?

Aloysius: I have doubts! I have such doubts!

(Sister Aloysius is bent with emotion. Sister James comforts her. Light fades.) •