On Wednesday night ABC Online ran this heading: “Judge in George Pell appeal case to preside over inquiry into Afghanistan war crime allegations”. The reference was to the decision by Home Affairs Minister Peter Dutton to appoint judge Mark Weinberg QC as special inspector of the Australian Defence Force Afghanistan inquiry.
Now, Weinberg is one of Australia’s most experienced criminal judges with a background as the commonwealth director of public prosecutions along with time on the bench of the Federal Court and the Victorian Court of Appeal. However, to an ABC sub-editor he is the person who wrote the dissenting judgment in Pell v The Queen in the Victorian Court of Appeal. This is understandable in a sense.
On April 7, the High Court of Australia in a seven to zero decision quashed Cardinal George Pell’s conviction for historical child sexual assault. It effectively endorsed the Weinberg dissent and in doing so overruled the majority decision by Victorian Supreme Court Chief Justice Anne Ferguson and the President of the Victorian Court of Appeal, Chris Maxwell QC.
Weinberg’s judgment will go down as one of the most significant dissents in Australian criminal law. And the High Court’s unanimous decision will live on as one of its most important judgments — even though it followed the court’s own precedent in the case of M v The Queen (1994).
Nine months after the High Court quashed the jury verdict in the County Court of Victoria retrial (the first jury failed to reach a decision), some journalists and commentators will not accept that Pell is an innocent man. Others still use the highly subjective findings of the Royal Commission into Institutional Responses to Child Sexual Abuse to blame Pell for the acts of vile pedophiles such as one-time Catholic priest Gerald Ridsdale.
A quick reference to the Butterworths Concise Australian Legal Dictionary will reveal that all Australians enjoy the presumption of innocence. Moreover, a reading of the royal commission’s report with respect to Pell will reveal that there are no contemporary documents or independent witness evidence that support its findings that he knew about the likes of Ridsdale but did nothing.
Two activist journalists who campaigned against Pell recently attained Walkley Awards. Lucie Morris-Marr won for her book Fallen: The Inside Story of the Secret Trial and Conviction of Cardinal George Pell. This was published in September last year on the false assumption that the High Court would not uphold Pell’s appeal. Also the title is erroneous. Pell’s trial was not secret in that anyone could attend it. The authorities prevented the media reporting the case since the Victorian DPP intended to prosecute Pell in another case, which was dropped because of lack of evidence.
ABC TV’s Sarah Ferguson (director and presenter) won a Walkley for the three-part documentary Revelation, which she co-wrote with Tony Jones. The third episode essentially runs the allegations by “Bernie” that when he was a boy he was sexually assaulted by Pell in Ballarat during the late 1970s and early 80s.
Bernie’s claims against Pell were dropped by the Victorian DPP before the case found its way to court. This is mentioned in Revelation. However, Ferguson/Jones did not tell viewers that Pell emphatically denied all of Bernie’s allegations — concerning which there was no supporting evidence — when interviewed by Victoria Police in Rome in October 2016.
On Monday, I emailed Ferguson and Jones asking whether they knew that Pell had challenged the veracity of Bernie’s claims during the interview. The former said she could not respond in time for my deadline; the latter did not reply.
The Ferguson/Jones position is essentially “we believe Bernie”. Ferguson said as much on ABC Radio Sydney on March 31 when she declared Bernie to be “an extraordinarily compelling witness”. Fellow ABC TV journalist Louise Milligan said much the same when discussing Pell’s conviction on February 28 last year. She told ABC 7.30 concerning the complainant in the St Patrick’s Cathedral trial: “I defy anyone to meet this man and not think that he is telling the truth.”
Milligan neglected to say that not all jurors in the first trial believed the complainant. Meaning that he could be a liar, or a fantasist or possessed of a false memory or whatever. More important, simply believing a complainant’s allegation on the basis of demeanour is inconsistent with M v The Queen.
In his dissent Weinberg wrote that “the High Court has observed that it can be dangerous to place too much reliance upon the appearance of a witness”. During the hearing of the Pell case in the High Court, Justice Virginia Bell queried the Victorian DPP’s reliance on “a subjective consideration”. She received a most inadequate response.
The likes of Ferguson, Jones and Milligan are not the only journalists to have embraced the unsupported allegations against Pell. The same is true of The Guardian’s Melissa Davey whose book The Case of George Pell had its title changed after the High Court decision because the author assumed that his conviction would be upheld.
In her December 7 contribution to The Garret podcast, Milligan sneered at the High Court’s decision, then took comfort in the royal commission’s findings against Pell. She proceeded to blame Pell for most of the clerical pedophiles in the Catholic Church. This overlooked two central facts.
First, as evidence before the royal commission indicates, Victoria Police knew about Ridsdale’s crimes as early as 1975-76. Had Victoria Police done its job, the likes of Ridsdale would have gone to jail then. Second, the royal commission’s findings against Pell refer to what he “must”, “should” or “ought to” have known along with an assertion that it was “inconceivable” that he did not know. The proper role of a journalist is to challenge vague findings and seek out evidence, not simply to believe what you want to believe.
Meanwhile, for anyone interested in hearing the voice of those not part of the Pell pile-on, recent weeks have seen the publication of Keith Windschuttle’s The Persecution of George Pell (Quadrant Books) and volume one of George Cardinal Pell’s Prison Journal (Ignatius Press).