Posted on 04/10/2020 4:38:06 PM PDT by naturalman1975
The George Pell story is a fiasco that combines incompetence and malevolence. It had every aspect of tragedy — a big man who polarised opinion, a church engaged in criminal behaviour, victims who demanded justice, and police, media and legal institutions that failed to honour their obligations.
It is a particular Australian tragedy that originates in the horrific crimes of the Catholic Church. These crimes and their cover-ups were worse than normal crimes because they ruined the lives of children and violated the raison d’etre of the church — to proclaim God’s mission.
The earthquake that engulfed the church did not stop there. It spread across the landscape leaving a trail of personal grief, public anger and an inevitable response from institutions — police, parliaments, media and courts. But this process triggered a new and dangerous entanglement — between justice for the individual and punishment for the church. This dilemma led to the Pell fiasco.
Pell was too big a leader for an institution so widely discredited. In Melbourne nearly everybody had a view about him. Many people felt moral retribution was justified — if the opportunity presented, Pell must be brought down. And that opportunity did present with the accusation from the former choirboy who came forward in 2015 and became complainant A, alleging sexual abuse by Pell in 1996 and 1997, 19 years earlier.
This week’s High Court decision brought certainty and finality to this dismal saga of many years. Its essence is its 7-0 unanimity. There can be no further argument. Pell was wrongly convicted and jailed for 404 days. He is no longer the “convicted pedophile”, as his opponents loved to brand him.
The High Court reached this decision not by resort to activism or inventing new law but by invoking the core principle of the criminal justice system — guilt must be established “beyond reasonable doubt”. This decision did more than release a man wrongly convicted who was likely to die in prison. It provided the defining interpretation of the Pell fiasco. It offered — along with the minority judgment of Mark Weinberg in the Victorian Court of Appeal — the lens through which the multiple institutional failures in the Pell case can be seen and assessed.
It is Pell’s opponents who broke the conventions and retreated from legal reasoning. It is Pell’s opponents who fomented a mood bordering on irrational vindictiveness that meant he was denied fair process. The High Court’s repeated use of the word “rational” in its judgment is revealing in its logic — that Pell was treated in an irrational way by the justice system.
This is polite judicial language. Let’s call it for what it was: a sentiment in parts of the community that Pell’s trial had a meaning transcending guilt or innocence — that he must be punished for the church’s crimes in the name of its hundreds of victims. This is how many saw his trial and, in this sense, it was a political trial.
Only the High Court, in its wisdom, halted the abuse of the justice system. The force of its judgment raises the inevitable question: if this case had been treated on merit Pell would not have been charged. The evidence was inherently implausible.
We live in a time of institutional failure, demonstrated in our financial, political and religious systems. Sadly, institutional failure can beget more institutional failure. This has happened in the Pell saga in relation to Victoria Police, the Director of Public Prosecutions, the Victorian justice system and much of the media, with the ABC conspicuous for its sustained campaign against Pell.
These institutions are compromised. In each case they failed to meet their responsibility. These failures should neither be denied nor suppressed. Each contributed to a situation where Australia’s most senior Catholic and the most senior figure in the church worldwide to face such accusations was convicted as a sexual predator, with huge cultural and moral consequences if this conviction had been upheld.
This was an international event. It revealed the extent to which the church’s crimes in Australia had spilled into other institutions in a blend of misplaced justice, anti-religious prejudice and operational dysfunction. A friend said to me a few weeks ago she was struck by the number of people “who needed Pell to be guilty”.
Speaking to Inquirer, Frank Brennan, Jesuit priest and human rights champion, said: “I was a law and politics student in Queensland in the 1970s when Joh Bjelke-Petersen was premier. This Pell saga has all the marks of the same broken-down criminal justice system. The difference is that it was right-of-centre in the Sunshine State and it is left-of-centre here in Victoria. Let’s wait and see what the Queensland royal commissioner turns up on the Victorian police and Lawyer X. That, at least, will be a start.”
Scott Morrison and Daniel Andrews sent a resounding message to victims, in effect, saying: “I believe you.” That is a welcome turning point. But what does “I believe you” actually mean? It means victims must be listened to with serious respect and regard. But it cannot mean the courts operate on the “we believe you” principle. The High Court has just announced this cannot work. Justice is not a one-way street. Most Australians would accept that. The Prime Minister and the Victorian Premier need to refine their message. It is imperative that victims still come forward and it is imperative that victims know how the criminal law works.
The Pell saga has constituted a universal tragedy. There are only losers. Both Pell and his accuser have suffered immense pain. The entire exercise has brought nothing but grief. The pivotal question remains unanswered: have the responsible parties learnt anything?
The full scale of this fiasco is not appreciated even by many of Pell’s supporters. It is, however, on stark display in the treatment of the second incident alleged by A in early 1997. He claimed that after Sunday mass at St Patrick’s Cathedral, when A was part of the 50-strong procession along the sacristy corridor, Pell pushed A against the wall and squeezed his testicles and penis painfully. In the trial transcript A was cross-examined by Pell’s lawyer, Robert Richter:
Richter: Yes, and out of nowhere the archbishop physically assaults you. Is that what you say?
Complainant: Yes.
Richter: In front of all these people?
Complainant: Yes … Yes. It happened like that. It was such a quick, um, quick and cold, callous kind of thing that happened. It was — it was over before it even started and it was — I was isolated in a corner for literally seconds. Um, there were people sporadically walking down the hallway and um, I was obviously not being looked at, at that time, because somebody would have, hopefully, would have reported it.
Richter: So the archbishop in his full — oh you said and, of course, the choir numbered what, about 50 people?
Complainant: I would say so.
Richter: And in the middle of that number of people, the archbishop in his full regalia shoves you against the wall violently, yes?
Complainant: Yes.
Richter submitted the complainant’s account of this incident was so highly improbable to be incapable of acceptance. Complainant A did not say anything about this alleged incident at the time, nor did he tell his colleague, B, the other choirboy he alleged was abused by Pell in the first incident.
How did the Victorian police in their investigations handle the alleged second incident? The lead police investigator, Christopher Reed, conducted no investigation and made no effort to interview other potential witnesses. He admitted this at trial. Here is the exchange:
Richter: Well, is there any record of anyone undertaking any investigation about (A’s) allegations relating to February 1997?
Reed: No. Not that I’m — not that I can categorically recall now. No.
Richter: Right, and if there had been, you’d have known about it?
Reed: Yes, you would.
Richter: Yes, thank you.
Perhaps the Victorian coppers felt by this stage they could get away with anything. Getting Pell convicted on a charge where no investigation had been done would be quite an achievement. And they pulled it off, all the way to the High Court.
The High Court quashed the Victorian Court of Appeal 2-1 finding against Pell with Chief Justice Anne Ferguson and Justice Chris Maxwell — the two most senior judges in Victoria — in the majority. Their view of this incident — as summarised by the High Court — was that “it was quite possible that the brief encounter went unnoticed” and that “the evidence once again falls well short of establishing impossibility”.
There was, of course, no obligation on Pell’s defence to establish the event was impossible. Its task was to establish there was a reasonable doubt. The Victorian judges asked the wrong question. In a judgment that was consistently damning the High Court threw out the Court of Appeal majority finding. It accepted the minority view of Weinberg — widely seen as the best criminal appellate of his generation — with Weinberg saying: “It seems to me highly unlikely that none of those many persons present would have seen what was happening or reported it in some way.”
The Ferguson-Maxwell majority said they found “improbable” the idea that the complainant “would have thought to invent a second incident if his true purpose was to advance false allegations” against Pell because this second allegation only risked the likelihood his entire position “would unravel” when tested. In short, the sheer dubious nature of A’s second complaint must be a sign of his credibility! What hope did Pell have against this logic? Weinberg, by contrast, categorically rejected Pell’s conviction on this incident. The High Court said of Weinberg’s view: “His Honour concluded that it was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt of the offence charged in the second incident.”
The operative words are “not open” — the jury got it wrong.
In fact, Weinberg went further. He said: “I would have thought any prosecutor would be wary of bringing a charge of this gravity against anyone, based upon the implausible notion that a sexual assault of this kind would take place in public and in the presence of numerous potential witnesses.” In short, the Victorian DPP should never have brought Pell to trial on this incident.
The High Court was not obliged to address that conclusion. But its heavy reliance on Weinberg’s minority judgment throughout its 7-0 judgment leaves the irresistible implication the High Court shared his view. As Brennan said, “an ordinary police investigation” would have exposed these defects and meant Pell would never have been charged with this second offence — so much for justice Victorian style.
The Ferguson-Maxwell majority found the “fleeting physical encounter” described by A as “readily imagined”. The High Court delivered a lethal dismissal to such conjecture: “The assumption that a group of choristers, including adults, might have been so preoccupied with making their way to the robing room as to fail to notice the extraordinary sight of the Archbishop of Melbourne dressed ‘in his full regalia’ advancing through the procession and pinning a 13-year-old boy to the wall is a large one. The failure to make any formal report of such an incident, had it occurred, may be another matter.” The High Court, in its prudence, said it was “unnecessary” to decide “whether A’s description of the second incident so strains credibility as to necessitate that the jury, who saw and heard him give the evidence, ought to have entertained a reasonable doubt as to its occurrence”. It found, however, the surrounding evidence was “inconsistent” with acceptance of A’s allegation. That became its clinching point.
The High Court concluded that the jury “acting rationally” should have entertained doubt of Pell’s guilt and its failure to do so meant “there is a significant possibility that an innocent person has been convicted”. Weinberg, however, had more to offer about the integrity of the Victorian system: “The complainant’s account of the second incident seems to me to take brazenness to new heights, the like of which I have not seen.” What does this tell us about the Victorian police and the DPP? Are we supposed to believe the ineptitude identified that involves the non-existent Victoria Police investigation, the Victorian DPP, two jury trials and a 2-1 Court of Appeal decision before the High Court finally threw out the second incident conviction arose merely because of unconnected, random incompetence? How credible is that? Incompetence cannot be denied. But only a fool would believe that is the entire story.
A more realistic and honest assessment is that Pell, the nation’s senior Catholic, was unable to get a fair trial in Victoria. There was a climate of opinion against him that was irredeemably hostile. Much of this was cultivated by the media spearheaded by the ABC. It became a serious institutional and social failure and arose primarily because of Pell’s identity and the institution he represented, a different situation from the Lindy Chamberlain case.
This second incident is important because Pell’s conviction on this charge, upheld on appeal, best illustrates the preposterous nature of the campaign against him. Brennan said: “The fragility of the Victorian criminal justice system is exposed when you look at the total absence of any investigation of the second incident and the reasoning of Ferguson and Maxwell satisfying themselves that the incident must have occurred.”
Long a champion of indigenous rights in this country, Brennan told Inquirer of the Pell fiasco: “I don’t think Aborigines were treated as prejudicially by even the worst of 19th-century judges.”
The High Court reached the same conclusion about the alleged first incident. In this incident A alleged that in late 1996 Pell had abused both himself and B after serving mass at St Patrick’s Cathedral when he found the two boys in the priests’ sacristy. There was no evidence Pell knew the boys or had spoken to them before.
A alleged that Pell challenged them, took his penis out and forced B’s head towards it. The assault took “barely a minute or two”. He alleged Pell then pushed his penis into A’s mouth, instructed A to remove his pants and fondled A’s penis and testicles. This further indecency lasted “a minute or two”. A said the boys left and rejoined the choir. The whole event took no more than five or six minutes. A made no complaint to anybody including his parents. The second boy, B, died in 2014. When asked by his mother, B said he had never been interfered with. When Pell was first told in Rome by visiting Victorian police that the accusation related to an incident in the cathedral after mass he immediately said this was impossible, that he was accompanied always after mass by his master of ceremonies, Monsignor Charles Portelli, and that he went to the front door to greet parishioners. “What a load of garbage and falsehood,” he said to the police. Portelli gave evidence to this effect and the High Court noted it was “unchallenged”.
In essence, nothing much was advanced beyond these contours in subsequent proceedings. In his judgment, Weinberg said “the prosecution case relied entirely upon the evidence of the complainant to establish guilt and nothing more”. The prosecution had “no supporting evidence of any kind from any other witness” and the jury’s convictions were based solely on its “assessment of the complainant”.
A lawyer close to these events told Inquirer: “The word of complainants is now regarded as near infallible.” Pell’s lawyers produced a body of evidence from a range of witnesses to the effect it was virtually impossible for him to have offended when he was alleged to have done so. Richter told the jury: “There were literally dozens of people including a number of adults who would have been congregating around the area of the priests’ sacristy shortly after the conclusion of Sunday solemn mass. Anyone could have walked into that room at any time … There was no suggestion he (Pell) had engaged in any grooming.” Richter said only a “madman” would have attempted such abuse in this manner and that A’s account could not be accepted because “it’s impossible, basically”. The High Court noted Weinberg’s point that in using the language of impossibility the defence risked setting a test for itself it did not need to meet. The Ferguson-Maxwell Court of Appeal majority was impressed by A, finding him to be a compellingly truthful witness. The High Court said their honours declined to accept unchallenged evidence inconsistent with A’s allegations arguing it was still “possible” that A’s account was correct. The High Court said this analysis failed to engage the critical question: whether there was “reasonable doubt” of Pell’s guilt. The High Court noted Weinberg’s dissent from the majority view of A as a witness and it warned of “the highly subjective nature of demeanour-based judgments”.
The prosecution, in fact, conceded that if Pell was on the cathedral steps he could not have committed the offences. The High Court, following Weinberg’s argument of “compounding improbabilities”, offered its own summary of the improbabilities, all of which had to occur, if Pell was guilty.
It concluded that notwithstanding the jury found A to be a credible witness, “the evidence as a whole was not capable of excluding a reasonable doubt” about Pell’s guilt. The High Court found the Court of Appeal majority on the critical issue was “wrong”. It found a jury “acting rationally” should have entertained a doubt and there was a “significant possibility” that “an innocent person has been convicted”.
Once again, the Victorian police with their “get Pell’ outlook failed to properly investigate the issue. The DPP persisted with a flawed case. The reasoning of the Court of Appeal majority was comprehensively rejected by the High Court.
The moral lesson is that justice cannot be delivered to victims by insisting that injustice be visited upon Pell. Yet much of the Victorian system seemed to reflect that attitude. In the end, this attitude failed both Pell and his complainant, who suffered trauma for years only to find the case against Pell finally collapsed. Victoria’s Andrews stands discredited. After the trial he said Pell had got a fair trial and he attacked people who said it was a flawed verdict. Andrews was wrong — Pell didn’t get a fair trial and the High Court quashed the verdict.
Some media outlets made serious mistakes in the Pell fiasco. They fuelled the mob mentality. The job of the ABC was to inform and educate on one of the most contentious trials in the past half-century. Instead, it campaigned against Pell, essentially offering a one-sided condemnatory view in a coverage that was extensive, powerful and influential with the public.
The High Court’s decision reveals that, from the start, there were two sides to this story — a flawed church that Pell represented and a flawed Victorian legal system prejudiced against him. The ABC saw only one side. Its campaigning mentality meant it failed to inform the public about the real nature of this contest and the issues involved.
It remains exposed by the High Court’s decision.
A highlight for me is the absurdity outlined by the admission of police that they did not even investigate one of the charges they took to trial - and Pell was found guilty by the jury (and acquitted by the High Court) on a charge that was never actually investigated!
That’s nothing. The catholic church has been failing little boys for centuries.
You think the failures of other people is a reason for a witch hunt against an innocent man?
My one experience with jury duty was a couple of years ago in Massachusetts.Before being sworn in the judge asked us if there was any reason why we shouldn't be on this jury to try an accused drunk driver.Two or three people,including me,raised their hand.I was called up to the bench and asked by the judge,while several lawyers (presumably prosecution and defense stood nearby),why...and I replied "because my 18 year old niece was killed by a drunk driver (which was true).In unison,every around me...including the judge...said "no,this man cannot serve in this case".
If what I read about jurors in Victoria is correct that seems to be a recipe for biased jurors and unfair verdicts.
And think back to "To Catch A Predator". IIRC the only clergyman they caught was a Rabbi..in fact,a Rabbi who worked with youth.
Thank you for posting this.
Prayers up.
Prayers for you that Christ will touch your heart.
My understanding is that they cannot be questioned, but that both the Defence and the Prosecution are allowed to challenge up to three potential jurors each. They can basically only do this based on looking at the jurors and obviously some things (such are religion) are not necessarily visible. If challenged by either, the Juror is not empanneled for that trial. The Prosecution and Defence are allowed to know the Juror's current professions, but that is about it.
Challenges based on gender, race, religion or age are not directly permitted, but as the Prosecution and Defence can see the jurors, and do not have to explain why they challenge, obviously they can form a judgement as to certain things like likely gender, likely, ethnicity, age range, etc.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.