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For Whom The Pell Tolls
Report|Mar 10, 2020

For Whom The Pell Tolls

It May Not Be A Satisfactory Outcome For Many, But On The Evidence, Pell Should Be Acquitted In The High Court
Charles Waterstreet

Guilty… Guilty… Guilty… Guilty… Guilty!

These five words from the jury foreperson rang out like slow church bells in the sanctum of the Victorian Supreme Court on the 11th of December 2018. These convictions of Cardinal George Pell echoed around the world as the third highest-ranking member of the Catholic Church was now a convicted paedophile. Outside the courtroom in Melbourne, there was dancing in the streets.

Two 13-year-old altar boys had been violated in the very bowels of the Church itself, according to the verdict. It accorded with the mudslide in the Church’s reputation, confirmed that its priests were predators and that its paedophilic tentacles touched the very top. So much harm, so much exposure by the Royal Commission into Institutional Abuse. The most heinous of crimes; the missionaries were mercenaries and robed perverts. And now, the justice system had finally bagged a big one.

So came the conclusion reached by the masses, as if at the Colosseum. Justice at last; the system worked. The Cardinal had his feathers plucked and the tarring would surely follow – in fact, it had already begun long before the verdicts. 

The fervour and ferocity of opposition at his every appearance was finally assuaged. It was a fairytale ending to the baying for blood, loudest in Melbourne.

There is, however, a point at which popular opinion – as heated and forceful and furious as it can be – ends, and the dispassionate machinery of our criminal justice system begins. There is a point in criminal trials in which the jury must drown out the noise of even the most high-profile alleged crime, and focus on the facts on the case. There is a point at which we must afford even those that we detest a fair trial. 

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The eyes of the world will be on the High Court of Australia when it hears the application for special leave in the case of Cardinal George Pell on 11 March. If leave is granted by the court, the Cardinal will have the opportunity to appeal against his original conviction in December 2018, in which the Victorian Supreme Court found Pell guilty of various counts of oral sex and indecent acts with two 13-year-old choir boys when he was Archbishop of Melbourne in the late 1990s. 

There is a point in criminal trials in which the jury must drown out the noise of even the most high-profile alleged crime, and focus on the facts on the case.

The facts of the case revolve around two incidents, both of which occurred at St Patrick’s Cathedral in Melbourne. The first incident occurred inside the Priest’s Sacristy, where the Cardinal allegedly found the two boys swigging alter wine. According to evidence submitted at trial, Pell grabbed one boy’s head and forced it onto his penis. The Cardinal then pushed his penis into the other boy’s mouth, and then crouched and touched the boy’s penis before touching his own. The names of the two alleged victims are not publicly known – court documents simply refer to them as A and B.

All of these alleged grubby facts relied on the evidence of a single complainant, A. He told no one about either incident, coming forward 18 years after the fact. B died long before A’s allegation finally revealed itself, but before he died B told his mother nothing happened. 

The true and legal history of Pell’s case should in this author’s opinion mean that the jury’s verdict was unreasonable and not available on all the evidence. This is not to say that Cardinal Pell is innocent, but to say on analysis of all the evidence, applying embedded legal principles, the jury could not have found guilt beyond a reasonable doubt.

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I believe wholeheartedly and passionately in the jury system. The right to trial by jury of one’s peers integrates the public into the criminal justice system. As Lionel Murphy said in the Lindy Chamberlain case: “The jury is a strong antidote to the elitist tendencies of the legal system”. He continued that every criminal lawyer knows that sometimes they get it wrong, and that “the appellant system, properly applied, operates as a further safeguard against mistaken convictions of the innocent”.

That has been my experience in the 45 years I have practised criminal law and, more particularly, in serious murder, rape and hundreds of historical sexual abuse cases such as this, both at trial and on appeal. The criminal appeal courts reverse juries’ verdicts every week in this country and sometimes the accused get a re-trial and often an acquittal. Simply, the jury system works but don’t assume infallibility.

The true and legal history of Pell’s case should in this author’s opinion mean that the jury’s verdict was unreasonable and not available on all the evidence. 

Lindy Chamberlain’s case is a dramatic reminder that not only do juries get it wrong but that High Court judges get it wrong, too. In that case, the great Ian Barker QC as prosecutor persuaded a Darwin jury to convict Lindy for the murder of her nine-week daughter, Azaria. Skipping forward, the case came before the High Court, just like Pell’s case. The High Court refused the appeals and by a majority three to two, Lindy Chamberlain went back to gaol to serve her life sentence. 

Chamberlain was released some years later when new evidence emerged indicating that her daughter had been taken by a dingo. But if an English tourist hadn’t fallen off the now restricted Uluru and died landing on top of an area where the matinee jacket of the dead infant lay folded in the dust, Lindy would still be in serving out her sentence, despite two High Court judges who wanted to acquit her.

Chamberlain’s case – which received substantial media attention at the time – is a good illustration of the power strong public opinion can hold over both juries and judges. Similarly, it is without a doubt that there was a groundswell of anti-Pell sentiment in the community based on issues that have nothing to do with the trial. The Cardinal has been pilloried and prejudicially viewed for issues related to his supervision of and the general state of the church, along with the high number of priests involved in sexual crimes against minors and the subsequent cover-ups. 

Of course, none of that should matter in the context of a criminal trial. The members of the High Court (and in fact all other courts) are human beings and need to be constantly on guard against irrelevant matters. I have no doubt they will only apply their minds to the evidence and proper principles of the rule of law.

It has been my practice to tell the jury in certain cases that their mission is not to establish the truth but rather to answer the vital question as to whether the prosecution has proved guilt, and that is a different matter. And in criminal trials, the standard of proof required is more than just that the accused is probably guilty – it is whether guilt has been proved beyond any reasonable doubt.

Similarly, it is without a doubt that there was a groundswell of anti-Pell sentiment in the community based on issues that have nothing to do with the trial.

So the question before the High Court, as in every other case, will be whether it was open to the jury to find that the prosecution had proven, beyond reasonable doubt, that Cardinal Pell is guilty.

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If leave is granted for the appeal to proceed in the High Court, it will be the fourth hearing into the Cardinal Pell matter. The first was held at the trial level in the Supreme Court of Victoria. The jury failed to reach a verdict and anecdotal evidence that the split was 10 in favour of acquittal, with two against. At the subsequent retrial, the jury voted unanimously to convict. 

When the case was appealed to the Victorian Court of Criminal Appeal, not even the three judges presiding could agree. The central issue was the believability of A’s evidence, upon which the prosecution’s entire case relied. Chief Justice Ferguson and Justice Maxwell in the majority accepted that A was a compelling witness, going so far as to say he ‘had the ring of truth’. Justice Weinberg, a highly respected academic and judge of uncontested integrity and experience, disagreed.

Weinberg’s analysis is compelling. He concluded the complainant was full of ‘discrepancies, inadequacies, probative value and inclined to embellish’. Weinberg stated A’s account of the second incident was entirely implausible and quite unconvincing. 

Weinberg said A’s evidence was full of inconsistencies and that a number of his answers made no sense. A’s version of events meant that in about three or four minutes, the Cardinal entered the Sacristy, had oral intercourse with two boys, and touched up A before the boys left. 

It beggars belief that Pell could act that way in three to four minutes. On any view, it would have to take place spontaneously, and the cardinal would have to have been ready to act at a moment’s notice. Human nature does not accord with this evidence, and A could have been describing a shark attack rather than a true account of the events.  

Weinberg’s analysis is compelling. He concluded the complainant was full of ‘discrepancies, inadequacies, probative value and inclined to embellish’. 

In addition, the church staff gave absolutely contradictory evidence to A. Pell’s chief attendant's total job was to be with Pell at all times and he and others were unshakeable. In A’s version, he left Pell and was shortly in his car going home. The staff evidence was that A and B went to rehearsals for an hour, something you might expect a young boy just assaulted to remember his feelings during that period. A said that both boys had called out during the interference, yet the Cardinal made no signal to quieten them.   

The manipulation of clothing worn by Pell required in A’s version of events, in Weinberg’s view, also did not accord with common sense and was unreliable. 

Further evidence illustrated that it was highly unlikely for the cardinal to be in the sanctuary according to the evidence of half a dozen attendants. In the calm light of reason, as Weinberg surmised, the incidents did not make sense.

A may have been completely convinced of the truth of his assertions but it couldn’t be correct. He failed to accept objective evidence he was wrong. I have encountered a huge number of witnesses in historical sex cases who falsely embedded facts into their narratives, not dishonestly, but mistakenly. 

It happens all the time – our memory, much like the juries and judges of our judicial system – is fallible.   

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The way jury trials involving sex and child sex are run has changed considerably in the last 20 years, for social and political reasons. Rarely does a complainant appear actually in court. Sometimes it’s by television at the same time as the trial, and as in Pell’s case, the complainants’ evidence was pre-recorded and played to the jury, and in cross-examination, it was also beamed on television from a remote location. After the first jury failed to reach a verdict, the second jury at the re-trial saw the videos of the first trial on television only, in accordance with current practice. There was no contemporaneous view of the complainant. Similarly, the Court of Appeal saw everything the second jury saw in the same way the jury saw it – on television.

By tradition, juries are directed to use their common sense and everyday experience in assessing the credibility and believability of the witness. However, the optics and atmosphere of evidence given in person in the witness box, in front of the jury, is far different from the one-dimensional vision shown on a screen.

The manipulation of clothing worn by Pell required in A’s version of events, in Weinberg’s view, also did not accord with common sense and was unreliable. 

In my experience, the giving of evidence for 20-30 hours via television creates an air of unreality about the entire proceedings. No one on any such jury has any expertise in assessing credibility or believability by the watching of a person on television. Everyone’s experience in real life on such important matters is in person where observations can be contrasted with their experience. 

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In technical terms, the defence of Pell faces a number of procedural hurdles. The first hurdle is getting the High Court to grant special leave for the case to even be heard. Special leave is not given because it is an important person. Special leave is given where the case is of such importance that fundamental statements of legal principle need to be restated or clarified allowing an appellant to even virtually state reasons why the court below got it wrong. The High Court may say that there is no uncertainty in the principles they had previously announced in earlier cases. They don’t have to even give reasons. Time simply is not available for every matter that gets to be started in the belly of the High Court chamber.

In one sense, the prosecution’s case is not circumstantial. It depends solely on the evidence of A, which is mostly uncorroborated. The defence case is circumstantial and also on the testimony of Cardinal Pell, given in a formal recorded interview, where he firmly denied the circumstances alleged by the prosecution, and asserted the multi-layered evidence of persons attached to and working at the very time of the alleged assaults. This evidence was impressive in Justice Weinberg’s opinion. Not every possibility that favoured Pell can be taken into account. However, as Justice Weinberg found, either singularly or collectively, such evidence created a reasonable significant possibility that Cardinal Pell may not have committed the offences.

Winston Churchill once famously said that ‘democracy, is the worst form of government, except for all the others that have been tried’. The same can be said for our Justice system. The safety net of multilayered appeals, the rule of law and the onus of proof are bound together for the protection against injustice to become the ultimate protection against injustice. 

In my experience, the giving of evidence for 20-30 hours via television creates an air of unreality about the entire proceedings.

As a Jewish legal theorist put it is ‘more satisfactory that 1000 guilty persons be acquitted, than one innocent be put to death’. As distasteful as popular opinion may find it, Cardinal Pell should be acquitted by the High Court, in applying precedent and in clarifying uncertainty in the lower courts application principles.  

The case of Cardinal George Pell is not about the Catholic Church. It is not about the horrors of systemic abuse uncovered by various inquiries over the years, nor is it even about whether George Pell was – as has been sometimes suggested (though I stress not by this author and in any event not proven) – complicit in aiding and abetting child abusers within the church during his tenure.

This case is about whether the jury could find, beyond reasonable doubt, that Pell sexually abused A, B or both in the late 1990s. My view is that it could not.

An acquittal is not a declaration of innocence. The High Court should and in my opinion, must intervene with purpose lest the odour of witch-hunt and uncertainty foul the judicial system. The quality of our very lives and freedoms depend on it.