The adolescent logic of the majority judgement

In the Australian of 15 November, former Labor Minister Peter Baldwin focused on the weird reasoning of the majority judgement in the Pell appeal.

George Pell sex abuse conviction must be examined


I have never been a huge fan of ­George Pell, sharing neither his relig­ious convictions nor his conservati­ve world view.

However, I was relieved by the decision of the High Court this week to hear his final appeal.

This follows the decision in August by a majority of the Victorian Court of Appeal to uphold the jury verdict convicting Pell of criminal sexual abuse.

I was surprised and disconcerted, astonished actually, by this outcome, so much so I ploughed through all 325 pages of the majority judgment by justices Anne Ferguson and Chris Maxwell and the longer dissenting judgment by Justice Mark Weinberg in an effort to understand where their reasonings diverged.

There were aspects of the matter that surprised me at the outset.

Never having practised criminal law, I was not aware that it was even possible for an offence to be found “beyond reasonable doubt” based solely on the uncorrobor­ated testimony of a complainant, let alone in the face of substantial contrary evidence. Isn’t that guilt by accusation?

How could a conviction be upheld when one of the two alleged victims denied being abused Doesn’t that fact alone scream reasonable doubt?

Then there was the fact, unusually for cases such as this, there was a split decision with Ferguson and Maxwell rejecting Pell’s appeal and Weinberg upholding it, finding the conviction unsafe.

In what ways did their legal reasoning diverge?

Why did Weinberg, acknowledged by all sides as one of the great authorities on criminal law in this country, a former commonwealth director of public prosecutions, feel compelled to reject the view of the other two judges in a tightly argued dissent of more than 200 pages?

Reading through the two judgments, I would have to say that opinions “diverged” is a gross understatement.

They reveal differences in approach to the assessment of evidence so profound that the two sides might as well be on different planets. Much of the disagreement is encapsulated in the use of two different two-word phrases: “reasonably possible” by Weinberg, and “not impossible” by Ferguson/Maxwell.

Both of these phrases are deployed by the respective sides in weighing the witness testimony that the defence argued made the offence virtually impossible.

Take, for example, the testimony of Monsignor Charles Portelli, who was the master of ceremonies assisting Pell throughout the mass on the day of the alleged offences with the two choirboys.

Portelli confidently asserted he accompanied Pell throughout the ceremony the entire time he was wearing the archbishop’s robes, and that this was not just normal practice but a strict requirement of ecclesiastical law.

He, and others, also testified that following the ceremony Pell would stand at the front steps of the cathedral chatting with members of the congregation, and that he recalled Pell doing this on the relevant dates.

Of this evidence Weinberg states: “Portelli’s account, if accepted, would put a complete end to the prosecution case in respect of both incidents.”

Crucially, Weinberg goes on to say: “The same result would follow from that account being regarded as a ‘reasonably possible’ version of events, because any such conclusion would render the complainant’s account literally impossible.”

In his view, the accuracy of the exculpatory testimony does not need to be accepted by the jury, let alone proved.

If it is even a “reasonable possibility” that it is accurate then the jury must acquit.

This phrase occurs nine times in Weinberg’s judgment, in respect of different witness testimony. In two cases, Portelli and Max Potter, responsible for the sacristy where most of the offences are alleged to have occurred, Weinberg contends the evidence is decisive: “Portelli and Potter gave direct evidence that, if accepted, provided a complete answer to the complainant’s evidence with regard to the first incident.”

The other 20 witnesses lend further support, resulting in a compounding of improbabilities surrounding the alleged offences that according to Weinberg: “… had to have taken place within the space of just a few minutes. In that event, the odds against the complainant’s account of how the abuse had occurred would have to be substantial.

“The chances of ‘all the planets aligning’ in that way would at the very least be doubtful.”

By contrast, the phrase “reasonably possible” does not appear anywhere in the Ferguson/Maxwell judgment.

Instead they focus on finding a sliver of possibility for the offence to have occurred. In the case of Portelli’s claim of always being with Pell while he was wearing the archbishop’s robes, they point to his acknowledgment that there might have been occasions when he was away from Pell for a “minute or two”, though he could not recall this ever happening.

Such a sliver of possibility, according to the Ferguson/Maxwell judgment, rendered it open to the jury to convict.

This kind of thinking recurs throughout their judgment. As for the compounding improbabilities point stressed by Weinberg, Ferguson and Maxwell say: “What emerges, therefore, is not a ‘catalogue of impossibilities’, as the applicant contends, but a catalogue of uncertainties and possibilities … the evidence of the successive witnesses served only to confirm that what A claimed had occurred was not impossible.”

This, in their view, opens the way for the jury to convict based solely on complainant testimony that has the “ring of truth”, despite having multiple errors and inconsistencies. Weinberg argues that, far from having the ring of truth, the complainant testimony in some cases “made no sense”.

He points to several empirical studies showing the unreliability of judging the veracity of evidence this way.

There have been some recent cases of authorities being convinced of the truth of extraordinary allegations, such as the Operation Midland case in Britain in which a character by the name of Carl Beech claimed to have been the victim of a pedophile ring that involved a dozen senior figures in the British establishment, including former prime minister Edward Heath and former home secretary Leon Brittan and other MPs as well as chiefs of defence and intelligence.

These uncorroborated allegations led to a major police investigation in which the senior figures accused, all elderly, were dragged through the mud and their reputations destroyed because the senior police who led the investigation found Beech’s testimony “credible and true”.

It was all a complete fabrication. On July 22 this year Beech was sentenced to 18 years imprisonment for 12 counts of perverting the course of justice and fraud.

The police made a grovelling apology to the victims of this sham, including Brittan’s widow. But Beech did have that “ring of truth”.

What about the second of Pell’s alleged victims, who died in 2001 after telling his mother on two occas­ions that he had not been abused? The majority judgment refers to a submission by the prosecutor to the jury in his final address that states: “while a denial of sexual abuse may mean the sexual abuse did not occur, it does not necessarily mean that is the case. There may be reasons why a 17 or 18-year-old male would not want to tell his mother that he was sexually abused as a child.”

On this basis, Ferguson/Maxwell assert that such denial did not oblige the jury to have a reasonable doubt. But if denial by the alleged victim “may mean” the abuse did not occur, surely there is a “reasonably possibility” that he might be simply telling the truth which, if Weinberg’s principle is correct, would require acquittal.

The Ferguson/Maxwell evidentiary approach seems to step towards reversing the onus of proof by saying it is open to a jury to convict using uncorroborated complainant testimony where the offence is “not impossible”, even if it is extraordinarily improbable.

Here is the contrast: Weinberg says the realistic possibility that exculpatory testimony is accurate means a jury must acquit. Ferguson and Maxwell don’t address this test, rather affirming that the mere possibility that such testimony is inaccurate leaves open the possibility of conviction. Talk about ships passing in the night.

This all calls to mind philosopher Karl Popper’s famous principle of falsifiability, according to which a theory or proposition is not scientific if it is framed in such a way as to be incapable of falsification.

If errors, inconsistencies and changes in complainant testimony, plus a mass of circumstantial exculpatory testimony, including denial by one of the two alleged victims, do not falsify the accusation, just what would it take to warrant acquittal?

Then there is the matter of plausibility. The defence argued that for Pell to offend in such risky circumstances would be an “act of madness”.

The Ferguson/Maxwell judgment responds by pointing to several historical cases of brazen offending by prominent people.

But consider that, when Pell became archbishop of Melbourne in August 1996, the issue of priestly abuse had become a high-profile public concern.

Several months before the alleged offences, Pell had prepared the Melbourne Response to these allegations on behalf of the church which, among other things, encouraged victims to come forward.

Given this, for Pell to have done it would require an altogether differ­ent order of insanity, suggesting a sort of uncontrollable, pathological urge that would have become apparent much earlier in Pell’s career.

If the decision is upheld every Australian should shudder. There but for the grace of God …

Peter Baldwin was a minister in the Hawke and Keating governments.