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K
Joined: 09 Sep 2011
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'But the split between the three appeal judges on the critical point of the victim’s credibility – two said he was believable, while the third said he was not – is expected to give rise to a High Court challenge from Pell.
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The law was changed back in 2008 to abolish the need to corroborate evidence and this has increased the likelihood for sexual assault cases to be brought to court.
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"Often in these cases, because sexual abuse happens in secret, often it is the complainant’s credibility and testimony that is the key piece of evidence," Queensland University of Technology law professor Ben Mathews said.
"Here, the complainant was seen as credible, truthful and reliable."
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Victorian Bar Council president Matt Collins, QC, said the split between the judges shows the system got it right.
"It’s just evidence of the complexity of the case and to me, it is evidence of the system working as it is supposed to, with three judges of the Court of Appeal conscientiously and deeply grappling with the issues," Mr Collins said.
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For a High Court appeal to be granted, Pell’s lawyers will most likely have to find a point in the law to argue rather than the facts of the case itself, Law Institute of Victoria president Stuart Webb said.
"It has to be done on a very particular ground – that there is a question of law, an error of law that has been made or a question of law that needs to be settled," Mr Webb said.
"It will be certainly very challenging for them to find it." '
https://www.theage.com.au/national/victoria/it-all-comes-downs-to-belief-victim-s-credibility-at-heart-of-pell-decision-20190821-p52jfk.html
[Matt Collins's claim makes little sense. If the judges had been unanimous, you can bet your house he would not then say "there is no evidence the system is working as it's supposed to", so their split cannot be claimed to be evidence of anything.] |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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David wrote: | Basically, they found that the acts were both possible and, given the compelling testimony of the victim, beyond reasonable doubt. The dissenting judge, Mark Weinberg, however, found that the testimony was unbelievable and implausible.
Perhaps the prosecution lawyer, Christopher Boyce, was more brilliant than any of us gave him credit for (or more likely, that it didn't matter greatly what he said or did during the hearing). |
The bold bit is correct. That was the reason for my post that the appeal judges would work it out entirely unassisted. For all of the rubbish that has been written about this in the media, the basic issues in the case were very straightforward. You don't get to be President of the Court of Appeal because you can't reach a sensible decision unless you are entertained by Counsel.
The important bit going forward is to appreciate that the vast majority of applications for special leave are refused (the chances of getting special leave any day of the week are less than about 5%). And, being granted special leave to appeal to the High Court, if he is, does not mean that Pell will win. Framing an informed market, you'd probably say that he's about 50 to 1 or worse to get up from here.
The criteria for a grant of special leave are set out in section 35A of the Judiciary Act:
http://classic.austlii.edu.au/au/legis/cth/consol_act/ja1903112/s35a.html
In the ordinary way, I expect that the the appeal papers will be available on line (perhaps with redactions to maintain the public anonymity of the complainant). I will post links when (if) they are available.
If you thought the earlier processes were interesting or surprising, you're going to love special leave. It's a little like a "super over" - the judges have a timer on the bench - the red light goes on after 20 minutes and you shut up, mid-sentence, at that point. That's if the Court even thinks the application warrants an oral hearing. |
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K
Joined: 09 Sep 2011
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Pies4shaw wrote: | David wrote: | ...
(or more likely, that it didn't matter greatly what he said or did during the hearing). |
The bold bit is correct. That was the reason for my post that the appeal judges would work it out entirely unassisted. ... You don't get to be President of the Court of Appeal because you can't reach a sensible decision unless you are entertained by Counsel.
... |
CB may be relieved by that. It was truly stunning ineptitude on display. |
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watt price tully
Joined: 15 May 2007
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David wrote: | I wasn't sure before, but watching this now, I'll eat my shoe if Pell doesn't win the appeal....... |
Would you like fries with that _________________ “I even went as far as becoming a Southern Baptist until I realised they didn’t keep ‘em under long enough” Kinky Friedman |
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Dave The Man
Joined: 01 Apr 2005 Location: Someville, Victoria, Australia
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Glad the Appeal was Squashed for Pedophile Pell _________________ I am Da Man |
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David
I dare you to try
Joined: 27 Jul 2003 Location: Andromeda
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watt price tully wrote: | David wrote: | I wasn't sure before, but watching this now, I'll eat my shoe if Pell doesn't win the appeal....... |
Would you like fries with that |
https://youtu.be/RNNGzMK5e4c _________________ All watched over by machines of loving grace |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005 Location: In flagrante delicto
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^
You really shouldn't make bets. On anything. _________________ Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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think positive
Side By Side
Joined: 30 Jun 2005 Location: somewhere
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Change his name to stevo _________________ You cant fix stupid, turns out you cant quarantine it either! |
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David
I dare you to try
Joined: 27 Jul 2003 Location: Andromeda
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stui magpie wrote: | ^
You really shouldn't make bets. On anything. |
Just call me the Kiss of Death... _________________ All watched over by machines of loving grace |
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K
Joined: 09 Sep 2011
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Odds favour High Court taking on Pell case
https://www.afr.com/work-and-careers/workplace/odds-favour-high-court-taking-on-pell-case-20190821-p52j9v
"It's a safe bet that George Pell’s child sexual abuse case will end up in Australia’s top court.
The cardinal’s lawyers will be telling him the vigorous dissent by Justice Mark Weinberg – the most experienced judge on the appeal – markedly increases the chances of the High Court granting special leave to appeal.
A split decision by an appeal court has always been a good indicator, especially when the judges see the case very differently. It fits neatly into section 35A of the Judiciary Act, which says the High Court can take on cases that involve differences of opinion "between different courts or within one court".
The court can also have regard to "the interests of the administration of justice" – a bar that is easily cleared with Pell.
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That’s because they were so far apart on the most contentious ground – whether there was enough evidence to convict.
This involves second-guessing the jury, something Chief Justice Anne Ferguson and Court of Appeal president Chris Maxwell were not prepared to do. The words “open to the jury” are sprinkled across their joint judgment.
The High Court has also shown a historic reluctance to interfere with findings of fact, with most successful criminal appeals turning on finer points of a law and whether the jury was properly instructed.
However, Weinberg is so highly regarded that a decision not to test his views would be a surprise. He is a former Commonwealth Director of Public Prosecution who joined the Federal Court in 1998, before moving to the Victorian Court of Appeal in 2008. He retired in 2018, but has been serving as an acting judge since then.
His opinion that the main witness – one of the victims – was “inclined to embellish” and that his evidence “displayed inadequacies” will be seized upon by Pell's legal team.
"He even disagreed with Ferguson and Maxwell on whether the sexual act ... was impossible because of the heavy robes the cardinal was wearing. The judges all examined them, with the majority judges finding them to be “capable of being manouevred, pulled to one side or pulled apart”. Weinberg thought otherwise." |
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David
I dare you to try
Joined: 27 Jul 2003 Location: Andromeda
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^ Extraordinary how experienced legal figures can have such vastly different opinions when presented with the same evidence. Obviously the three-member judging panel is a means of mitigating against such issues, but it still seems stunning that, had one different judge been appointed who shared Weinberg's doubts, Pell would be a free man today as opposed to going down in the history books as a child molester. Perhaps justice has to be binary by its nature, but there's evidently a fair bit of chance there. _________________ All watched over by machines of loving grace |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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David wrote: | ^ Extraordinary how experienced legal figures can have such vastly different opinions when presented with the same evidence. Obviously the three-member judging panel is a means of mitigating against such issues, but it still seems stunning that, had one different judge been appointed who shared Weinberg's doubts, Pell would be a free man today as opposed to going down in the history books as a child molester. Perhaps justice has to be binary by its nature, but there's evidently a fair bit of chance there. |
This is very common. The whole point of an appellate process is to try to moderate for diversity of opinion. 2:1 (or, on the High Court, 6:1, 5:2 or 4:3) decisions are not unusual. The most disappointing aspect of this whole tawdry affair is that no one much seems to care about the systemic issues but lots of people seem to want to plead specially for Pell. Generally, historical sexual offences create difficult evidentiary questions and raise potential appeal points. Criminal appeals mostly get no press or, if they do, the reports are negative about the defendant. |
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K
Joined: 09 Sep 2011
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George Pell decides to appeal to the High Court
https://www.theage.com.au/national/victoria/george-pell-decides-to-appeal-case-to-the-high-court-20190825-p52kl4.html
"Sources have told The Age and The Sydney Morning Herald that Pell is determined to pursue his last avenue of appeal after receiving unanimous advice from his legal team that the dissenting opinion of Victorian Supreme Court Justice Mark Weinberg provided reasonable grounds to have his convictions overturned.
Pell has 21 days from last Wednesday's Court of Appeal judgement to formally lodge an application for special leave to appeal to the High Court. It is likely that a short hearing to determine his application will be listed for this year.
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Pell's lawyers - solicitor Paul Galbally and barristers Bret Walker, SC, Ruth Shann and Robert Richter, QC - have spent the days since the failed appeal poring over the dissenting judgement of Justice Weinberg, a former director of Commonwealth Public Prosecutions who is considered one of Australia's leading criminal law jurists.
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Although Pell's grounds for another appeal are yet to be finalised, legal experts familiar with the workings of the High Court believe they will centre on a broad provision which allows the court to intervene in any case "in the interests of the administration of justice"." |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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^ More unmitigated drivel, there. The position is as follows:
1. Of course he is going to the High Court - the alternative is prison. I think we have known this since about 3 minutes after the Court of Appeal's decision was handed down.
2. He won't be "appealing" in the first instance. He will be seeking special leave.
3. If (and only if) he gets special leave, he will be allowed to appeal to the High Court.
3. The "broad provision" to which reference is being made is the third basis upon which special leave might be granted (as to which see section 35A(b) of the Judiciary Act, to which I have posted a link, above). It is not an "appeal" ground. It is a basis for getting a foot in the door for the special leave application. His legal team will have decided to "centre" on that one, because they will likely have concluded that he has no prospect of getting special leave on the others. |
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K
Joined: 09 Sep 2011
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think positive wrote: | ...
Even made the news here!... |
What country, TP? A Catholic country?
Last edited by K on Mon Aug 26, 2019 3:35 am; edited 1 time in total |
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