In his sermon last Sunday the Archbishop of Sydney, Anthony Fisher, urged parishioners don’t be ‘too quick to judge’ Pell. I found what the Archbishop said appropriate, except that Pell has been judged and found guilty. That is his present status. He is guilty as charged on five counts of sexual abuse. For the third most senior Catholic official on the planet, that is breathtaking.
Melissa Davey at The Guardian, one of the few reporters who sat through the whole trial, except when the court was in closed session, has an excellent Q & A piece Cardinal George Pell’s conviction: the questions that remain. On the question of the appeal she says:
There is a good chance the appeal will succeed, experts have said, but it is much more likely on one of the three grounds cited by Pell’s lawyers than the other two. The prominent Sydney barrister Bret Walker, not Richter, will lead the appeal.
Those links vary a little in the reasons. In the first link, an article by Melissa Davey which relies heavily on the opinion of University of Melbourne law school’s criminal appeals and procedure expert, Professor Jeremy Gans, we get:
Pell’s defence barrister, Robert Richter, told the sentencing hearing on Wednesday that his client’s appeal would be based on three key grounds: unreasonableness, the prohibition of video evidence in the closing address, and composition of the jury.
The second link, an AAP article, does not mention the composition of the jury but says Pell was never allowed to plead before the jury:
- “There was a fundamental irregularity in the trial process, because the accused was not arraigned in the presence of the jury panel as required,” the appeal, filed by Pell’s barrister, Robert Richter QC, reads.
That seems to me a procedural technicality, but the Appeal Court judges will decide.
On the composition of the jury, we are told:
- Gans said this could mean several things. As an example, defence lawyers may have learned that a juror knew one of the victim’s family members, or that a juror had been sexually assaulted and therefore held a prejudiced view.
So we simply don’t know.
The prohibition of video evidence in the closing address relates to an animation which:
- showed the St Patrick’s cathedral floor plan and dots depicting the movements of Pell, the choir boys, altar servers and other witnesses during and after Sunday solemn mass.
Strictly new evidence is not allowed in a closing address and Judge Peter Kidd did not allow it to be shown on the grounds that jurors might view the video as evidence and fact.
The animation was meant to demonstrate that it was virtually impossible for Pell to slip away to the sacristy. Again it is anyone’s guess how the appeal court will rule.
The remaining ground of appeal relates to the unreasonableness of the verdict. Although I have heard from multiple sources that appeal judges tend to respect the judgement of the jury because it is the cornerstone of our system of justice, this one has many people agitated because although, according to Davey, the prosecution called 14 witnesses, their case relies heavily on the evidence of just one man:
“The verdicts are unreasonable and cannot be supported, having regard to the evidence, because on the whole of the evidence, including unchallenged exculpatory evidence from more than 20 crown witnesses [sic – see Ambigulous comment below], it was not open to the jury to be satisfied beyond reasonable doubt on the word of the complainant alone,” his first appeal ground says.
If the court of appeal accepts that, it could dismiss the case.
Andrew Tillet in the AFR in an article Is George Pell innocent? cites Greg Craven, vice-chancellor of the Australian Catholic University, a onetime professor of law at Notre Dame University:
“What the last year has shown is that the justice system can be systematically assaulted from the outside in a conscious attempt to make a fair trial impossible,” Craven writes in an article published last Wednesday in The Australian. “This should terrify every citizen, because every citizen is a potential defendant.”
He’s worried the campaigning in social media has poisoned the well, and:
- He claims “parts of the media – notably the ABC and former Fairfax journalists – have spent years attempting to ensure Pell is the most odious figure in Australia. They seemed to want him in the dock as an ogre, not a defendant.”
You would have to be living under a rock not to be aware of the accusations made about Pell and his approach to people who complained of sexual abuse by the clergy. David Marr has given him a character appraisal which does not hold back in Brutal and dogmatic, George Pell waged war on sex – even as he abused children. For example:
As an archbishop in Melbourne and a cardinal in Sydney, Pell poured his energies into combating contraception, homosexuality, genetic engineering, divorce, equal marriage and abortion.
He was particularly brutal to homosexuals.
That was written after Pell’s conviction. It sums up and concentrates criticism made of Pell, and makes the actual acts he was convicted of seem in character. Whether a jury is influenced by this kind of information is impossible to tell, but judges usually drill into the jury that very specific acts are under consideration, and that all that matters is evidence in relation to those specific acts. Melissa Davey says the jurors:
- were also told repeatedly and on multiple days they were not to make Pell a scapegoat for the Catholic church and its failures to children. They were warned almost daily against doing their own research into Pell or talking about the case, and were told they could go to jail if they did so. These were not points made in passing. They were drilled into jurors by the chief judge.
At this point it may be salutary to read The Kid and The Choirboy – the harrowing story of George Pell’s victims, an excerpt from Louise Milligan’s book Cardinal: The Rise and Fall of George Pell, where the family of the victim who died tell the cataclysmic effect abuse had on him. The deceased victim’s father gave evidence at the trial.
The Kid and The Choirboys is compelling reading, and adds much to an understanding of the case, making the five events on which the case was based all too real.
In short, two boys, scrubbers from Melbourne’s inner suburbs at the time, had scholarships to St Kevin’s College in Toorak, Melbourne’s most exclusive precinct, because they could sing like birds and could contribute to the school’s famous choir. They enjoyed it immensely, including singing Handel’s Messiah, a complex choral work.
Suddenly after one Sunday in December 1996, everything changed. Both 13 year-olds, who were said to be caught by Pell swigging communion wine in the sacristy, started misbehaving in class, resisting going to choir and to school. In the case of the second victim, the one who died, it was a complete personality change. Before he was 14 he had taken to heroin, an overdose of which killed him in 2014 at the age of 31. In a real sense, he was completely unable to form a mature personality, his life was completely derailed from developing a normal path.
The other did survive, his life managing the normal trajectory of gaining a job of some kind with partner and children. The families had car-pooled, but were never close. The survivor did see the other boy’s mother a few times, and turned up at the funeral, which apparently was the tipping point when he decided that was enough was enough and a complaint had to be made. First contact was made, I understand, by the man’s mother with Bernard Barrett, a retired academic and volunteer at Broken Rights. You can see from this link how ferocious Robert Richter was for the defence, accusing Barrett of wanting to big-note himself.
The decision to complain was a brave one, which involved reliving the events in court, no doubt being exposed to ferocious interrogation from Robert Richter, one of the best in the business. I understand the court experience extended over four days.
Neither boy told anyone what had happened, the one who died denied he had been sexually abused when asked by his mother. Shame can be very powerful in these cases, and the notion that no-one would believe them. Finally, it was the investigating police who told her what had happened.
There is little doubt that the trial would never have happened had there not been a Royal Commission into Institutional Responses to Child Abuse.
What has changed is that victims are now more likely to come forward, police are more likely to investigate, and the default position is likely to be that victims will be believed.
In this case a perpetrator was found guilty largely on the evidence of one victim without third-party corroboration. I’m not at all sure that will become common. My feeling on watching the Four Corners program Guilty: The conviction of Cardinal Pell (the reporter was Louise Milligan) was that seriously traumatised and damaged victims may struggle for credibility in court.
Finally, there will need to be some credible institutional changes of the Catholic church will gradually wither and die, to become as empty as this image of the cathedral:
After all that, legal opinion seems to be that there is a fair chance that Pell’s appeal will succeed. There are matters about how the trial was managed and unknown issues about the jurors. On the central question of guilt, there is no definition of what “beyond reasonable doubt” means. To add to some of what I quoted above, Melissa Davey says:
In Victoria, jurors can ask the judge for some guidance as to how to interpret “beyond reasonable doubt” if they are stuck, but this question was not asked by jurors in Pell’s case. However, jurors are given very strong directions by the chief judge about factors to consider.
Jurors were told it was not enough to believe the complainant, or to think that Pell committed the abuse. Jurors were told they had to believe the abusing happened beyond reasonable doubt, otherwise it was not safe to convict and they must find Pell not guilty. They were also told repeatedly and on multiple days they were not to make Pell a scapegoat for the Catholic church and its failures to children. They were warned almost daily against doing their own research into Pell or talking about the case, and were told they could go to jail if they did so. These were not points made in passing. They were drilled into jurors by the chief judge.
I’ll copy here how the IPCC expresses probability in dealing with climate change:
It could be that we are dealing with the difference between 99% and 98% probability.
Finally, I’d like to comment on an article by the Jesuit Father Frank Brennan Truth and justice after the Pell verdict, because it is being handed out to parents in catholic schools as evidence questioning the validity of the judgement.
In the trial the jury saw the evidence provided by the victim/complainant only as a video from the first trial played in closed court. Early on in the article Brennan in fact says
“no member of the public has a complete picture of the evidence and no member of the public is able to make an assessment of the complainant’s demeanour.”
That disqualifies him from having a firm opinion about the judgement. He should have accepted that and stopped right there. Instead he’s written a piece in favour of Pell which possibly amounts to interfering with the appeal process.
To Brennan many of the details the main witness gave “were improbable if not impossible”. Further on he says that the criminal justice system “is under serious strain” when it comes to Cardinal Pell. Then he said that the defence were:
on strong ground in submitting that the circumstances made the narrative advanced by the prosecution manifestly improbable…
Brennan’s argument is twofold. The first relates to the procedures undertaken, with the main point being that Pell’s practice was to move down the aisle in procession, the chat with parishioners at the cathedral door for up to 15 or 20 minutes, and only then move with the Master of Ceremonies to the sacristy, where they would change out of their robes.
The agreed dates are 15 December 1996 or 22 December 1996. No-one has come forward to say that they were with Pell all the time on those days, and there is little doubt that if Pell wanted to go to the sacristy for some reason, he would, to answer a call of nature, for example.
Brennan’s second argument is about clothing. Pell, he says, would have been wearing an alb under a heavier chasuble. Brennan makes the alb sound like a chastity belt. It extends down to the ankles, and only has slits in the sides for access to trouser pockets, and is secured by a cincture, or rope around the waist.
I’ve spoken to someone who wore an alb as an alter boy, who says the cincture is easily untied, the alb is a light garment, which could easily be swiveled to make the penis available. The chasuble has no sides.
The charge here is that Brennan himself has worn the alb thousands of times, and would know that it presented no impediment to Pell. The charge is that Brennan has chosen the church over truth.
Be that as it may, Davey says:
The jurors saw the robes, were able to hold them, and heard the evidence from both parties as to their manoeuvrability.
They also had an on site tour of the cathedral.
That is good enough for me.
Yet Brennan says:
- The police never inspected the vestments during their investigations, nor did the prosecution show that the vestments could be parted or moved to the side as the complainant had alleged.
I’ll take Davey’s account every time over Brennan’s. Apparently the Jesuits have a reputation for bending the truth just a little so that it doesn’t break, but means something else. If that is what has happened with Brennan, I find it beyond sad.
On the 7.30 Report the day before his Eureka Street article was published, and possibly the day after he wrote it, Brennan says this:
Now, I don’t think I’m being trite in saying even if the processes of the law were to show that the verdict were unsafe, and that won’t be a matter for me, that’s a matter for an appeal court, and I passionately believe in our legal system as well as the church, but even if that happens, we’re all left with the realisation that 12 decent Australians off the street listening to the evidence of the victim and listening to everything that was outlined, including the improbabilities, say we are absolutely convinced that Cardinal Pell did something dreadful to this young man and his companion.
That leaves us with a leadership which in terms of public credibility has been absolutely shattered.
Now what that calls us back to is the core of the Christian message and not a lot of the Roman superstructure.
That will not be photocopied and handed out to parents.
What a pity he did not write that in the Eureka Street article. Did he think of it later, or do we have the clever Jesuit at work?
In breaking news a civil case for damages is being brought against Pell, as well as the trustees of the Sisters of Nazareth (formerly responsible for the management of St Joseph’s), a boys’ home in Ballarat. The complainant resided there from February 1974 to 1978 and says he was abused by Pell and a nun during that period.
- Managing partner of law firm Arnold Thomas & Becker, Lee Flanagan, is leading the case and said his client would be seeking damages for psychiatric injury, loss of wages and medical expenses.
The complainant is one of the four “swimmers” said to have been abused by Pell in a Ballarat swimming pool in the case that has just been dropped by the Victorian police.
The standard of proof is less rigorous in civil cases. If this case is successful there could be many more to follow.