“Fr Frank Brennan SJ: The Pell Verdict” & related articles
February 26, 2019
By Fr Frank Brennan
The suppression order in relation to Cardinal George Pell has been lifted. In December, a jury of twelve of his fellow citizens found him guilty of five offences of child sexual abuse. No other charges are to proceed. Cardinal Pell has appealed the convictions.
The verdict was unanimous. The jury took three days to deliberate after a four-week trial. The trial was in fact a re-run. At the first trial, the jury could not agree. The trial related to two alleged victims, one of whom had died.
Members of the public could attend those proceedings if they knew where to go in the Melbourne County Court. Members of the public could hear all the evidence except a recording of the complainant’s evidence from the first trial. The complainant, who cannot be identified, did not give evidence at the retrial; the recording from the first trial was admitted as the complainant’s evidence.
The recording was available to the public only insofar as it was quoted by the barristers in their examination of other witnesses or in their final addresses to the jury, and by the judge in his charge to the jury. So, 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.
The complainant’s evidence at the first trial lasted two and a half days. He had been cross-examined for more than a day by Cardinal Pell’s defence barrister, Robert Richter QC who has a reputation for being one of the best and one of the toughest cross-examiners in the legal profession.
Pell did not give evidence but a record of his police interview, denying the allegations, was in evidence. The complainant’s evidence related to events that occurred back in 1996 or 1997 when he was a thirteen-year-old choir boy at St Patrick’s Cathedral Melbourne. Most other witnesses, had been choir boys, altar servers or Cathedral officials in 1996 when Pell first became archbishop of Melbourne.
The complainant claimed that the first event, involving four charges, occurred after a solemn Sunday Mass celebrated by Archbishop Pell in the second half of 1996. It was common ground between the prosecution and the defence that the dates to which these four charges must be attributed were 15 December 1996 or 22 December 1996.
These were the dates on which the first and second solemn Sunday Masses were celebrated by Archbishop Pell in the Cathedral after he had become archbishop in August 1996. The Cathedral had been undergoing renovations and thus was not used for Sunday Masses during earlier months of 1996.
The complainant said that he and another choir boy left the liturgical procession at the end of one Sunday Mass and went fossicking in the off-limits sacristy where they started swilling altar wine. The archbishop arrived unaccompanied, castigated them, and then, while fully robed in his copious liturgical vestments proceeded to commit three vile sexual acts including oral penetration of the complainant. The complainant said that the sacristy door was wide open and altar servers were passing along the corridor. The complainant said that he and the other boy then returned to choir practice. The choir was making a Christmas recording at that time.
These two choir boys stayed in the choir another year but, the complainant said, they never spoke about the matter to each other, even though they sometimes had sleepovers at each other’s homes. The second boy was once asked by his mother if he had ever been abused by anybody and he said he had not.
The complainant claimed that a month or so later, after a Sunday Mass when the Archbishop was presiding (but not celebrating the Mass), Pell came along the corridor outside the sacristy where many choristers and others were milling about. He claimed that Pell grabbed him briefly, put him against the wall, and firmly grasped his genitalia. This was the subject of the fifth charge. Pell knew neither boy and had no contact with either of them thereafter.
The prosecution case was that Pell at his first or second solemn Sunday Mass as archbishop decided for some unknown reason to abandon the procession and his liturgical assistants and hasten from the Cathedral entrance to the sacristy unaccompanied by his Master of Ceremonies Monsignor Charles Portelli while the liturgical procession was still concluding. Portelli and the long time sacristan Max Potter described how the archbishop would be invariably accompanied after a solemn Mass with procession until one of them had assisted the archbishop to divest in the sacristy.
There was ample evidence that the Archbishop was a stickler for liturgical form and that he developed strict protocols in his time as archbishop, stopping at the entrance to the Cathedral after Mass to greet parishioners usually for 10 to 20 minutes, before returning to the sacristy to disrobe in company with his Master of Ceremonies. The prosecution suggested that these procedures might not have been in place when Pell first became archbishop. The suggestion was that other liturgical arrangements might have been under consideration.
In his final address, Richter criticised inherent contradictions and improbabilities of many of the details of this narrative. I heard some of the publicly available evidence and have read most of the transcript. I found many of Richter’s criticisms of the narrative very compelling. Anyone familiar with the conduct of a solemn Cathedral Mass with full choir would find it most unlikely that a bishop would, without grave reason, leave a recessional procession and retreat to the sacristy unaccompanied.
Witnesses familiar with liturgical vestments had been called who gave compelling evidence that it was impossible to produce an erect penis through a seamless alb. An alb is a long robe, worn under a heavier chasuble. It is secured and set in place by a cincture which is like a tightly drawn belt. An alb cannot be unbuttoned or unzipped, the only openings being small slits on the side to allow access to trouser pockets underneath.
The complainant’s initial claim to police was that Pell had parted his vestments, but an alb cannot be parted; it is like a seamless dress. Later the complainant said that Pell moved the vestments to the side. An alb secured with a cincture cannot be moved to the side. 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. The proposition that the offences charged were committed immediately after Mass by a fully robed Archbishop in the sacristy with an open door and in full view from the corridor seemed incredible to my mind.
I was very surprised by the verdict. In fact, I was devastated. My only conclusion is that the jury must have disregarded many of the criticisms so tellingly made by Richter of the complainant’s evidence and that, despite the complainant being confused about all manner of things, the jury must nevertheless have thought – as the recent royal commission discussed – that children who are sexually violated do not always remember details of time, place, dress and posture. Although the complainant got all sorts of facts wrong, the jury must have believed that Pell did something dreadful to him. The jurors must have judged the complainant to be honest and reliable even though many of the details he gave were improbable if not impossible.
Cardinal Pell has been in the public spotlight for a very long time. There are some who would convict him of all manner of things in the court of public opinion no matter what the evidence. There are others who would never convict him of anything, holding him in the highest regard. The criminal justice system is intended to withstand these preconceptions. The system is under serious strain, however, when it comes to Cardinal Pell.
The events of the Victorian parliamentary inquiry, the federal royal commission, the publication of Louise Milligan’s book Cardinal and Tim Minchin’s song Come Home (Cardinal Pell) were followed, just two weeks before the trial commenced, by the Parliamentary apology to the victims of child sexual abuse.
The Prime Minister Scott Morrison said, ‘Not just as a father, but as a Prime Minister, I am angry too at the calculating destruction of lives and the abuse of trust, including those who have abused the shield of faith and religion to hide their crimes, a shield that is supposed to protect the innocent, not the guilty. They stand condemned… on behalf of the Australian people, this Parliament and our government… I simply say I believe you, we believe you, your country believes you.’ Such things tend to shift not the legal, but the reputational, burden upon an accused person to prove innocence rather than the prosecution to prove guilt.
Would the verdict have been different if Pell had given evidence? Who can tell? All one can say is that, although the defence seemed to be on strong ground in submitting that the circumstances made the narrative advanced by the prosecution manifestly improbable, that failed to secure the acquittal.
Was the verdict unreasonable? Can it be supported having regard to the evidence? Those are questions for the appeal court. I can only hope and pray that the complainant can find some peace, able to get on with his life, whichever way the appeal goes. Should the appeal fail, I hope and pray that Cardinal Pell, heading for prison, is not the unwitting victim of a wounded nation in search of a scapegoat. Should the appeal succeed, the Victoria Police should review the adequacy of the police investigation of these serious criminal charges.
When the committal proceedings against Cardinal Pell first commenced in July 2017, Fran Kelly asked me on ABC Radio National Breakfast: ‘Do you have concerns about this case, regardless of the outcome, and how it’s going to affect the Church?’ I answered: ‘Fran, I think this case will be a test of all individuals and all institutions involved. And all we can do is hope that the outcome will be marked by truth, justice, healing, reconciliation and transparency. A huge challenge for my church, and yes a lot will ride on this case. But what is absolutely essential is that the law be allowed to do its work. And let’s wait and see the evidence, and let’s wait and see how it plays out. And let’s hope there can be truth and justice for all individuals involved in these proceedings.’
And that is still my hope.
Beyond reasonable doubt: Was Pell convicted without fear and favour?
February 27, 2019 — 11.58am
George Pell is a polarising figure, which is perhaps why there are now two warring camps – those who want him to be guilty of historical sex offences against two choirboys and those who don’t.
Pell was a powerful figure in the Catholic Church – an institution that betrayed its most vulnerable and conspired to protect rapists from justice.
Many, including Pell (although he denies it), may be guilty of conspiracy to pervert the course of justice by moving and hiding paedophile priests and concealing evidence that could convict them.
But that is not what he was charged with. He went to trial on allegations that he assaulted two boys in St Patrick’s Cathedral in 1996.
He denied the allegations, with the jury believing the testimony of one of the boys that he was molested in the crowded church.
Pell was also convicted in relation to the second boy, although that alleged victim had previously denied ever being molested, did not make a complaint and was not interviewed by police or examined in court (he died in 2014).
Which means Pell was found guilty beyond reasonable doubt on the uncorroborated evidence of one witness, without forensic evidence, a pattern of behaviour or a confession.
It is a matter of public record that it is rare to run a case on the word of one witness, let alone gain a conviction.
In recent years there has been a shift in the investigation and prosecution of sex crimes. For years victims have been denied justice because not enough resources were thrown at cases that were not black and white.
Now police are told to come from a mindset of believing a person who says they have been sexually assaulted and more cases in the grey area are being presented to juries. In reality, sex crimes are being treated differently to other crimes, although the standard of proof remains the same.
“May you rot in hell,” yells a man in the scrum as Cardinal George Pell arrives at court for a pre-sentencing hearing.
In the case of the high-profile Pell, there must have been pressure to deal with him differently. With the police’s history of covering up for the church here was a chance to present a case, weak or strong, in the open before a jury.
Court cases should not be run to clear the air and they are run not on what happened but what can be proven. It is all about admissible evidence. The accused does not have to prove their innocence to the jury but the prosecution must prove guilt beyond reasonable doubt. A juror is faced with three conclusions; (1) the offender did it; (2) the offender didn’t do it; or (3) I don’t know. Conclusions 2 or 3 result in an acquittal.
Pell has become a lightning rod in the worldwide storm of anger at a systemic cover-up of priestly abuses. But that doesn’t make him a child molester.
If Pell did molest those two teenagers in the busy cathedral, it certainly does not fit the usual pattern of paedophile priests.
Those in power identify vulnerable potential victims, groom and then isolate them, committing offences in private then pressuring the abused into silence. Most of the successful historical prosecutions come when police find multiple individual victims who testify about similar facts.
Take Mildura’s Monsignor John Day (whose crimes were wickedly covered up by the church and police). He would take a boy to Melbourne on the pretext of an excursion, then say they would be staying at his sister’s house and would have to share a bed.
In the Pell case, although he had access to hundreds of boys over his career he did not groom the vulnerable. Instead he attacked two he did not know in broad daylight in a near public area.
He could not have known if one of them was not the son of the chief commissioner, the premier or the chief justice who were waiting outside to collect them.
He could not have known if one of them would walk straight out and blow the whistle on him, and with two kids in the room he would have been sunk. This is not the action of a cunning paedophile but of a random, opportunistic criminal who usually turns out to be a serial offender.
Yet no one has alleged Pell had a history of this type of crime.
Again, we stress, this is not about what happened in St Patrick’s Cathedral in 1996 but what has happened in the County Court during Pell’s prosecution.
Much has been made of the fact that Pell did not take the witness box to defend himself. His lawyer, Robert Richter, QC, who is about the best in the business, has only ever let two of his clients take the box. One was the colourful Mick Gatto, charged and acquitted of the murder of hitman Andrew ‘‘Benji’’ Veniamin. I asked Richter why he allowed Gatto to testify and he replied, ‘‘Because he insisted.’’ Wise move.
It should also be recorded that when he was interviewed by police, Pell answered all questions and didn’t choose to invoke his right to silence.
In all probability Richter thought the case was so weak and, as Pell can come over as cold and aloof, that his testimony could do more harm than good.
Our courts are not supposed to be swayed by outside influences, which is why judges are appointed and not elected and juries are promised anonymity. They are duty-bound to provide just outcomes, no matter how unpopular.
Back in 1991, a jury heard the evidence against four men accused of the 1988 ambush and murder of two police officers, constables Steven Tynan and Damian Eyre, who were ambushed in Walsh Street, South Yarra.
The men accused were career criminals and evil men. There was tremendous public pressure to convict but the case was weak and they were acquitted.
It was a triumph for the legal system that no matter how foul the crime and detestable the accused, the case was decided without fear and favour and beyond reasonable doubt.
Can we say the same now?
If you or anyone you know needs support, you can contact the National Sexual Assault, Domestic and Family Violence Counselling Service on 1800RESPECT (1800 737 732), Lifeline 131 114, or beyondblue 1300 224 636.
[Note that the following article was published 14 December 2018 when the court-ordered publication ban was in effect ]
After guilty verdict, questions raised about Pell trial
Cardinal George Pell, prefect of the Secretariat for the Economy, outside Rome’s Hotel Quirinale, March 3, 2016. Credit: Alexey Gotovskiy/CNA.
Catholic News Agency
03 March 2016
By Ed Condon
Washington D.C., Dec 14, 2018 / 04:00 pm (CNA).- After reports of a guilty verdict emerged in the trial of Australian Cardinal George Pell, some in Australia have questioned the integrity of a process undertaken under the veil of a media blackout.
The cardinal was convicted Dec. 11 on five charges that he sexually abused two altar servers while he was Archbishop of Melbourne in the late 1990s. The unanimous verdict followed an earlier mistrial in which, CNA has confirmed with multiple sources, a jury was deadlocked at 10-2 in favor of a “not guilty” verdict.
The guilty verdict comes ahead of a second trial, scheduled for February 2019, in which Pell will face further accusations of abuse dating back to the 1970s, during which time he served as a priest in Ballarat.
Reporting restrictions imposed by the County Court of Victoria mean that the progress or outcomes of the trial cannot be covered by local media or broadcast electronically into Australia. No media discussion of the accusations or Pell’s defense is permitted in the country.
Those who violate the gag order could be subject to contempt of court charges by Victoria prosecutors.
Nevertheless, CNA has spoken to several sources familiar with the Pell case, all of whom expressed disbelief at the verdict. The sources spoke only on condition of anonymity because of the legal gag order imposed by the court.
“They have convicted an innocent man,” one source directly familiar with the evidence told CNA. “What’s worse is that they know they have.”
An individual who attended the entire trial in person but is unconnected with Pell’s legal team, told CNA that Pell’s lawyers had made an “unanswerable defense.”
“It was absolutely clear to everyone in that court that the accusations were baseless. It wasn’t that Pell didn’t do what he’s accused of – he clearly couldn’t have done it.”
The allegations are understood to concern Pell assaulting the two choristers in the sacristy of Melbourne cathedral on several occasions immediately following Sunday Mass.
The defense presented a range of witnesses who testified that the cardinal was never alone in the sacristy with altar servers or members of the choir, and that in all the circumstances under which the allegations are alleged to have taken place, several people would have been present in the room.
The sacristy in Melbourne’s Cathedral has large open-plan rooms, each with open arches and halls, and multiple entrances and exits, the defense noted.
Defense attorneys also produced a range of witnesses who testified that Pell was constantly surrounded by priests, other clergy, and guests following Sunday Masses in the cathedral, and that choristers had a room entirely separate from the sacristy in which they changed as a group, before and after Mass.
Observers also questioned whether some courtroom tactics used by state prosecutors were intended to stoke anti-clerical feelings in jury members.
One priest, a Jesuit, was called as an expert witness by the defense, but was consistently referred to as a “Christian Brother” by prosecutors – a move, the court observer told CNA, that seemed calculated to invoke the religious order at the center of a widely known clerical sexual abuse scandal in the country.
“It was a blatant move, but it sums up the sort of anti-Catholic, anti-clerical drift of the whole trial,” CNA’s courtroom source said. “The jury were being winked at.”
Full discussion of the charges and the evidence laid against Pell remains impossible because of the media blackout. The gag order was imposed at the request of prosecutors in June, who argued that media attention could bias the case.
“It’s absurd,” another source directly familiar with the trial told CNA. “Any Catholic in Victoria can tell you that our media has been steeped in anti-Catholic, anti-clerical and especially anti-Pell coverage for more than two decades. The prosecutors were perfectly happy with all of that leading up to the trial, and for it to carry on now.”
“The only thing you can’t talk about are the facts of the case,” the source said.
In a May 2015 column for The Australian, journalist Gerard Henderson said that Pell was the victim of a “modern-day witch hunt.” Henderson drew specific attention to what he called biased and inaccurate coverage of Pell by the Australian Broadcasting Corporation.
“The lack of balance in the media’s reporting of child sexual abuse in the Catholic Church reflects the fact many journalists detest Pell’s conservatism,” Henderson wrote.
Henderson also noted that as Archbishop of Melbourne, Pell brought in a new program to deal with accusations of sexual abuse and to compensate victims within months of his arrival.
“On all the available evidence, Pell was among the first Catholic bishops in the world to address the issue of child sexual abuse by clergy,” Henderson concluded.
The cardinal’s legal team is said to be scrupulously complying with the gag order as lawyers work towards filing an appeal against the guilty verdict.
While open discussion of the case remains impossible in Australia, concerns about a biased jury pool in the second trial have begun to surface indirectly.
On December 13, Victoria state Attorney-General Jill Hennessy told the Australian newspaper The Age that she had asked her department to examine the option of judge-only trials in high profile cases, where an impartial jury might be difficult to find. The state of Victoria is one of the few jurisdictions in Australia not to permit the option of a bench trial in cases like Pell’s.
Earlier this year, former Archbishop of Adelaide Philip Wilson was tried and convicted before a magistrate’s court in the state of New South Wales, on the charge of failing to report clerical sexual abuse. His conviction was overturned on appeal. Appellate judge Roy Ellis noted that media portrayals of the Church’s sexual abuse crisis might have been a factor in the guilty verdict.
Such portrayals “may amount to perceived pressure for a court to reach a conclusion which seems to be consistent with the direction of public opinion, rather than being consistent with the rule of law that requires a court to hand down individual justice in its decision-making processes,” he said.
Victoria has faced sustained criticism for the use of suppression orders by the state’s courts. Despite an Open Courts Act passed in 2013 aimed at improving judicial transparency, Victorian courts issued more than 1500 suppression orders between 2014-2016.
One source close to Pell told CNA that the cardinal’s treatment during his trial had been “Kafka-esque.”
“Prosecutors can retry him – in secret – until they get a conviction, but there can’t be any discussion of what he’s accused of, no scrutiny of the evidence against him, and no questioning the verdict. On what planet is this justice?”
Cardinal Pell is expected to be sentenced in January. He can appeal the guilty verdict to the Supreme Court of Victoria.