The questions that linger after Cardinal Pell’s appeal

It has always seemed clear to me that His Eminence was railroaded -- convicted for the sins of his church, not for anything he personally did.  And for those who are concerned about such things, I am an atheist of Protestant background --  JR

By Gerard Bradley

The Court of Appeal of the state of Victoria dismissed George Cardinal Pell’s appeal on Wednesday 21 August in Australia from his sexual abuse conviction.

That conviction came at the end of a second trial on five counts of indecency with a minor, after a first jury could not agree on a verdict.

He was sentenced to six years, without the possibility of parole until November, 2022. Cardinal Pell’s lawyers are yet to decide a further appeal to the Australian High Court. That process is likely to take up to a year. During the interim, the cardinal will remain in a Victorian prison.

Because the trials were conducted in closed sessions and under a press “gag” order, accounts of the evidence against the cardinal have been incomplete and even sketchy. Until now.

It was long widely known that the case involved allegations of assaults on two choirboys, both aged 13 when the crimes supposedly occurred in late 1996.

The setting was said to be just after then-Archbishop Pell celebrated Mass at St Patrick’s Cathedral in Melbourne.

One of the boys died accidentally a few years ago. The surviving complainant said nothing to anyone of his horrendous story until 2015. (The other boy died without ever claiming to have been abused; in fact, he expressly denied that any such thing happened to him when his mother in 2001 pointedly asked him.)

Improbable allegations

It has long been apparent, too, that the allegations against Cardinal Pell were so inherently improbable as to be, on their face, almost fantastic. Nonetheless, the prosecutors pressed on. They finally got a jury to return the verdict they wanted.

Knowing the cardinal as I do, and evaluating the evidence reported in light of my years as a Manhattan trial prosecutor, I have always confidently believed that Cardinal Pell is innocent.

One small mercy of this unwelcome appellate setback is that I am now certain that Cardinal Pell is innocent.

After the appeal: how things look

Another consolation is that the appellate decision supplies reasonable grounds to hope that the High Court will finally correct this awful miscarriage of justice if the Cardinal seeks leave to appeal. The basis for affirming Cardinal Pell’s innocence lies in the evidence now recounted in extraordinary detail across the 325 pages of the appellate corpus.

The court split 2-1. The dissenting judge — an Oxford-educated lawyer named Mark Weinberg — never quite said that he believed that Cardinal Pell was innocent.

The closest Weinberg J came to saying so might be this sentence: “[T]o my mind, [there is] a ‘significant possibility’ that the applicant in this case may not have committed these offences.”

Reading between the lines

Perhaps Weinberg J came closer when he addressed the second of the two assaults alleged by the surviving claimant:

“The complainant’s account of the second incident seems to me to take brazenness to new heights, the like of which, I have not seen … I would have thought that any prosecutor 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, and in the presence of numerous potential witnesses.

“Had the incident occurred in the way that the complainant alleged, it seems to me highly unlikely that none of those many persons present would have seen what was happening, or reported it in some way.”  None did. Weinberg J directed the reader to the next logical inference: If the complainant made up (for reasons we shall likely never know, or at least not ever fully understand) one of the two assaults, then no reasonable person should credit just on his say-so that the first incident ever occurred, either.

Yet that is exactly what the prosecutors maintained.

Justice Weinberg wrote, quite accurately, that the “prosecution relied entirely upon the evidence of the complainant to establish guilt, and nothing more.

“There was no supporting evidence of any kind from any other witness. Indeed, there was no supporting evidence of any kind at all. These convictions were based upon the jury’s assessment of the complainant as a witness, and nothing more.”

“Indeed,” Weinberg J added, the prosecutor not only “did not shrink” from making it his whole case at trial. The prosecutor “invited the members of this Court to approach this ground of appeal in exactly the same way.”

A strong dissenting voice

Justice Weinberg’s opinion is masterful and cogent. It supplies (though he did not expressly say it) overwhelming proof that George Pell is an innocent man.

There is another encouraging thought: The path to reversal on further appeal if pursued is now in view.

According to Australian procedure, much of the appellate judges’ job in a case such as Cardinal Pell’s (where the gravamen of the appeal is the sufficiency of the evidence to convict at the trial) is to simply use common sense to weigh the evidence presented to the jury.

This the three jurists did; the entire trial was videotaped and transcribed as well. Two members of the court said that they agreed with the jury’s verdict. So they voted to affirm the conviction.

Their common sense is obviously poor and their practical judgment, worse.

A simple mistake of this sort would probably not, however, warrant reversal by the High Court.

Legal error?

But they made a specifically legal error as well. On this ground at least one may reasonably hope that sometime within the next 12 months George Pell will be again a free man.

Justice Weinberg identified the majority’s mistake. Their error rested upon the two judges’ acceptance of the prosecutor’s invitation to decide first and in isolation — that is, without regard for all the other evidence, notably including the cogent exculpatory evidence offered by the Cardinal’s lawyers — whether the complainant’s testimony was “compelling.”

The term is not spot-on apt in this context. Hamlet is “compelling.” It is nonetheless fiction.

The majority judges seem to have adopted the term anyway as a synonym for not only believable, but for true, accurate.

Then these judges compounded the error: they used their isolated (and, in that sense, totally uncritical) validation of the complainant’s testimony as the criterion by which they rejected, as ineffectual or just plain false, the abundant evidence of Pell’s innocence.

They seemed to have reasoned thus: because the complainant’s story is true (we have concluded by, according to their own account, its apparent sincerity and drama), the evidence offered by the defendant which contradicts the complainant’s allegations must therefore be false.

Or, at a minimum, they judged that because the defence evidence did not demonstrate that the claimant’s story was simply impossible, it did not for that reason raise a reasonable doubt.

Justice Weinberg saw the mistake.

Weighing up witnesses

The complainant’s credibility and thus the accuracy of his story must instead be evaluated in light of the competing evidence of Cardinal Pell’s innocence.

He wrote that it “is, of course, entirely legitimate for the prosecution to [rely upon the complainant’s allegations] in answer to the challenge to these convictions.

“They must be weighed in the scale, but they must also be considered in the light of the evidence as a whole. That includes the body of clearly exculpatory material elicited from the various witnesses called by the prosecution.

“And one should not ignore the applicant’s own strong denials of any wrongdoing, as alleged, in his record of interview.”

In other words, a reasonable juror (and appellate judge!) would have to conclude that the defence case made the complainant’s story so implausible that a reasonable doubt was inescapably present.

A conscientious juror (or appellate judge sitting in review) must not conclude that a complainant is speaking truthfully until after he or she critically compares what that witness says to what the other witnesses say.

The critical evaluation incumbent on jurors is not the majority’s sequence — if looking only at the complainant’s testimony, it seems true, then all the evidence exonerating the Cardinal must be false — but rather Justice Weinberg’s dialectic (if you will), where the juror tacks back and forth across the evidence, using this bit to test the veracity of that, and that bit to evaluate the truthfulness of this.

That is simply what looking “at all the evidence” means. And herein is the majority’s legal mistake.

Put differently: The key issue on appeal was whether the jury’s verdict of guilty was reasonable.

Because the standard of proof in criminal cases in Australia is (as it is in America) “beyond a reasonable doubt,” there is some danger of confounding readers by using too many cognates of the word seeking definition — reason.

The plainest way to put the matter is probably this: Would a sensible, intelligent, conscientious juror who considered with an unbiased mind all of the evidence have to have a “reasonable doubt” about the Cardinal’s guilt?

Sufficient doubt

That doubt would be sufficient to require an acquittal if it attached to even just one essential element of the offenses charged.

Justice Weinberg concluded that, “in my respectful opinion, these convictions cannot be permitted to stand. The only order that can properly be made is that the applicant be acquitted on each charge.”

Indeed. And so one hopes, and perhaps dares to expect, the Australian High Court to conclude as well, some months from now.

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Most coral ‘far from sediment danger’

Run-off of sediment from farms seldom reaches the outer Great Barrier Reef, or areas where the vast majority of corals live, the head of the Australian Institute of Marine Science has said.

However, AIMS chief executive Paul Hardisty said increased nutrients were a problem for some areas and long-term monitoring showed the Great Barrier Reef was under stress.

Water quality on the outer reef has been a central issue raised by scientist Peter Ridd, who is undertaking a controversial speaking tour through Queensland sugarcane growing areas.

Dr Ridd is calling for better quality assurance checks for reef science before new laws are introduced that affect farmers along the Queensland coast.

Dr Hardisty said the reef was a complex ecosystem of 3000 reefs, including near-shore reefs, mid-shelf reefs 20km to 40km offshore, and outer-shelf reefs 100km to 200km offshore. He said there was a natural improvement in water quality from inshore to offshore reefs.

“Mid-shelf and offshore reefs typically have better water quality as these regions are flushed more frequently with waters from the Coral Sea,” he said.

“When it comes to water quality on the Great Barrier Reef, ­researchers agree it is uncommon for sediment plumes to regularly reach outer-shelf reefs.

“The inner-shelf and mid-shelf reefs, particularly those close to large rivers in the wet tropics, experience more frequent exposure to flood plumes of dissolved and suspended material.”

Extra nutrients can come from many conditions, including river outflows which can be enhanced by agricultural or industrial ­activity.

Dr Hardisty said studies had shown fine particles of nutrient-enriched and organic-rich sediment could settle on inshore and mid-shelf reefs during calm ­periods and had the potential to kill young corals within 48 hours and adult corals in three to seven days, depending on species.

An AIMS spokeswoman said inshore reefs included popular tourist destinations such as Green Island and Fitzroy Islands off Cairns, Magnetic Island off Townsville, and Hayman and Hook islands in the Whitsundays.

She said about 80 per cent of the reefs were platform reefs on the mid- and outer-continental shelf, while about 600 reefs (20 per cent) were near-shore, ­either as fringing reefs around continental islands and along the mainland coast, or as small ­detached platform reefs.

Dr Ridd said Dr Hardisty’s comments supported his claim that there was “almost no land-derived sediment on the Great Barrier Reef where 99 per cent of corals live”.

“Nutrients are not measurably different on the Great Barrier Reef to the Pacific Ocean and farm fertilisers are almost irrelevant,” he said. “For years AIMS and others have been going on about the inshore reefs and the term implies to the unsuspecting layman that it is a third or maybe even a half of the coral (inshore vs offshore). They have never come clean about what fraction the ­inshore reefs are.”

Dr Ridd is midway through a lecture tour along the Queensland coast promoted by sugarcane and farm groups concerned about water quality legislation before the Queensland parliament. The tour has provoked strong criticism from environment and reef groups.

The Australian Coral Reef ­Society said Dr Ridd ignored inshore reefs, as if they were not an important component of the World Heritage Area and the Great Barrier Reef Marine Park.

“This is convenient for his ­argument that there are no water-quality problems for the Great Barrier Reef, discounting the hundreds of published papers investigating and reporting on these problems,” the society said.

“He also incorrectly suggests areas like the Whitsundays are not important parts of the Great Barrier Reef, despite the huge tourism industry in such areas.’’

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What you should do instead of university

Jobs are changing so fast nowadays that heading to university for three years may no longer be the best way of getting work.

Young people are struggling to find jobs after they finish uni and a recent report from the Grattan Institute showed doing a degree could leave some people $30,000 worse off.

TAFE or other vocational education is often seen as the only alternative but technology firm WithYouWithMe (WYWM) hopes one day to provide another lifelong learning model.

Tom Larter, the chief executive officer of the Australia and New Zealand operation, said while education and learning from university could be valuable, it was more important to get into the workforce as quickly as possible.

“Jobs are changing so fast, you need to get into your first job and then use lifelong learning to build out your skills,” he said.

“We’ve got to speed up the rate that we learn new skills.”

A WYWM report recently found Australia’s education system had not been designed to respond to changes in the labour market and many students were enrolling in studies where job prospects were expected to be low.

“When up to 80 per cent of students will not find a job in their field after graduation, you have to wonder what exactly degrees are equipping them for,” WYWM co-founder Luke Rix said.

WYWM focuses its efforts on skilling people for jobs in the technology sector where there is increasing demand.

Under its model, the focus is on getting people into work as quickly as possible, in industries where there is increasing demand, through doing short online courses. Once they have a job they continue to do courses over two to three years.

“Find out what you’re good at, make yourself competitive quickly by learning in-demand skills, get into the workforce as fast as you can and then continually learn through your career as you go,” Mr Larter said.

At the moment WYWM works mainly with military veterans to help them get jobs after they retire from service, but non-military personnel can still do their testing and courses.

The program is free for veterans and this year 1178 have got jobs through the course.

Mr Larter told news.com.au that many of their clients don’t have a university degree. “Our speciality is that we can take any veteran regardless of their background and show them how to reach their full potential,” he said.

“Even if they are a truck driver they don’t have to be a truck driver when they leave, we can upskill you in a high-demand job, particularly in tech, so you can have an ongoing career.”

Veterans first do testing, which others can also do for free online, to identify what they are good at.

“Job seekers often don’t put any data behind decisions they make about their career,” he said.

Another common mistake was not considering that they could be good at one of the many new emerging jobs. “This holds them back but the testing opens their eyes,” Mr Larter said.

“We’ve had bus drivers and junior sailors with no experience in cybersecurity do a 12-week training course and get jobs.

“Those candidates had never considered, before receiving their match, that they could actually achieve this, and it’s really inspiring for them.”

The courses at the WYWM Academy take about 100 hours and generally take about six to 12 weeks to complete part-time. There is training for things like cybersecurity, software automation and data analytics.

Veterans can complete the courses for free but they cost between $3000 to $5000 for non-military jobseekers. Once candidates are trained up WYWM helps to match them with jobs at organisations they partner with.

Sydney resident Sheldon Rogers, 26, did not have a degree but got a job through WYWM after retiring from the Royal Australian Navy. He was previously a maritime warfare officer — responsible for navigation and he generally acted as the captain’s representatives on the bridge.

After serving for six years he had no idea what he was going to do after leaving the military but the testing at WYWM suggested he would be good at sales, something that surprised him.

“It was not something that I had thought about but when they explained the parameters the testing captured, what they had identified in my personality and my background and experience, it made a lot of sense in the end,” he said.

Mr Rogers worked as a recruitment provider earning $70,000 plus commission for 14 months but has recently moved on from the company. He is working at WYWM temporarily while he looks for another job.

He said he would probably stick with sales and recommended the WYWM program.

“It’s not so much for the content itself but more about the way it’s delivered,” he told news.com.au.

“You are made to feel genuinely engaged and cared for. You are being supported and they were a sounding board to bounce off my problems and issues. People here relate to my experiences, I think that’s the best part of the course.”

Mr Larter said WYWM eventually hoped to expand its services beyond its current focus on military personnel.

“We care about solving underemployment through helping people reach their potential and achieve better paying or new jobs.”

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Cyclists group demands 'appalling' AAMI commercial be taken off screens immediately - even though there's NOT a bicycle in the ad

A new term:  Cycling is now "active transport"

An Australian cyclist group has slammed an AAMI Insurance advertisement and demand it be taken down, even though there are no bikes in the video.

Members of the Australian Cycle Alliance (ACAi) say the advertisement is 'appalling' and are calling for the insurance company to take it off screens immediately.

The video shows a family who have to use scooters - a form of active transport - to get to school as their car is in the repair shop.

While the father is eager to use scooters as a mode of transport, the children are reluctant as they are humiliated by what their friends may think.

The ad then suggests AAMI Comprehensive Car Insurance will provide a hire car for families while their car is out of action.

President of ACAi, Edward Hore, told Daily Mail Australia the alliance finds the video discouraging as it makes active transport look like a last resort.

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 Posted by John J. Ray (M.A.; Ph.D.).    For a daily critique of Leftist activities,  see DISSECTING LEFTISM.  To keep up with attacks on free speech see Tongue Tied. Also, don't forget your daily roundup  of pro-environment but anti-Greenie  news and commentary at GREENIE WATCH .  Email me  here