Comment

‘I respectfully dissent’: Justice Weinberg’s brave rebuttal of the case against Pell

Cardinal Pell arrives at Melbourne County Court on February 27, 2019 (Getty)

In a highly publicized case, charged with an anti-Catholic sentiment, Weinberg put justice before public opinion

“Having had regard to the whole of the evidence led at trial, and having deliberated long and hard over this matter, I find myself in the position of having genuine doubt as to [Pell’s] guilt.” Those words were not written by a Catholic, or a conservative, nor were they written by a man inured to the pain of survivors of sexual abuse which cries out to heaven. Those words were written by the brilliant and brave Justice Mark Weinberg who wrote the historic dissent in the recent decision of the Victorian Court of Appeals to uphold a sexual abuse conviction against Cardinal George Pell.

Justice Weinberg is the closest we have right now to an Émile Zola, the man who led the charge to exonerate a Jewish military officer named Alfred Dreyfus who had been charged with treason on scant evidence amidst a poisonous culture of anti-semitic frenzy at the end of the nineteenth century. While Dreyfus was unjustly imprisoned for five years under the harsh conditions of the French Guianan penal colony, Zola wrote “J’accuse!” in 1898, a public letter to the French President Felix Faure defending the innocence of Dreyfus, documenting the numerous judicial errors and the lack of any corroborating evidence, accusing officials of obstructing justice and anti-semitic bias, fully aware that it would be costly to himself. And it was. He was charged with libel, and his enemies maligned him until his death. Yet Zola’s persuasive defense of Alfred Dreyfus was crucial in helping an innocent man. The Supreme Court eventually exonerated Dreyfus in 1906.

The analogy is deeply imperfect. Weinberg is not an influential bystander of cultural import, but a public servant of the rule of law. He is one of the most accomplished jurists in Australia with an impressive career as a scholar, publishing extensively in legal academic journals. He studied Civil Law at Oxford, spent his early career as dean of several law schools before being appointed Queen’s Counsel in 1986. He served as Commonwealth Director of Prosecutions in 1988 before being appointed to the Federal Court of Australia in 1998. Since 2008 he has served as a Justice on the Victorian Court of Appeals. And it is here in this capacity that his name will enter into the historical record as the man who was willing to serve the law rather than cultural sentiment.

Chief Justice Anne Ferguson and Justice Chris Maxwell, also accomplished jurists, wrote a little more than a third of the 325 page opinion of the court — nearly two-thirds of which was drafted by Justice Weinberg who found the prosecution utterly wanting for any corroborating evidence that would normally be required for allegations as serious as sexual abuse. Where Ferguson and Maxwell found Pell “guilty beyond a reasonable doubt,” Weinberg replied “I respectfully dissent.” It is not quite a Zola-like “J’accuse!” But it might be just as crucial in deciding whether the High Court will hear a challenge from Pell’s lawyers.

Ferguson and Maxwell were simply persuaded by the prosecution’s presentation of the alleged victim as a “witness of truth.” Justice Weinberg, the former Director of Prosecutions, was “quite unconvinced.” Since when do we convict people of crimes because their accusers sound earnest?

Justice Weinberg understood that it was his duty to determine whether the second jury which had reversed an earlier hung jury (rumored to favor acquittal 10-2) should have had any reasonable doubts as to Pell’s guilt. In Australia law, this works as a kind of judicial test on the kind of bias that can insert itself into a jury of one’s peers.

In a highly publicized case, charged with an anti-Catholic sentiment akin to the anti-semitism once faced by Dreyfus, the Justices had a duty to carefully examine the evidence again and determine whether the jury should have had any reasonable doubts. That is, the job of the appellate justice is not to crush any and all obstacles which the defense may present, as Ferguson and Maxwell did, but actively look for where reasonable doubts should have occurred to a jury. This is exactly what Justice Weinberg did. He concluded, “my doubt is a doubt which the jury should have had.”

Weinberg’s dissent fits the pattern of the first hung jury. It also sits contrary to the fundamental error of law that has been made in which the uncorroborated, if earnest, testimony of one man was heard above all counter-evidence and obstacles. This is a common approach in the court of public opinion in which the mere whiff of any allegation is sufficient to tarnish someone’s reputation. But a court of law must be held to a higher standard. The High Court has a duty to accept Pell’s challenge if it is brought.

The integrity of a nation stands in the balance much as it stood in the balance for France more than a century ago.