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July 03rd 2017 print

David Flint

Cardinal Pell: Is a Fair Trial Possible?

The proceedings will begin with a committal hearing at which a magistrate determines if there is sufficient evidence to go to trial. But surely the first matter must be whether, because of leaks and the character assassination, the Cardinal enters court beneath a dark cloud of presumed guilt

pell IIIWithout in any way debating his guilt or innocence, like every Australian, Cardinal George Pell is entitled to a fair trial.

If he is denied this, will this be because of the leaks to the media about the police investigation, will it be the failure of the Victorian government to take serious action against this, or will it be because of those in the media who have engaged in character assassination?

Australians may well wonder why the announcement that the police had finally decided to make charges was made by a deputy and not Victoria’s Chief Commissioner Graeme Aston. Was it because he had, in one of his conversations about the case in the media, described  the complainants as ”victims”? Did the police believe that by using his deputy his apparent pre-judgement of the case was somehow extinguished from the minds of potential jurors?

In a state where, in the view of many,  the authorities are failing to provide for a minimum protection from crime, they should at least ensure that the accused can receive a fair trial. The state government could well be reminded of this when the eyes of the world are on the Melbourne courthouse.

Until 2009, they had a solution: a US-style rank-and-file grand jury could have been empanelled to consider, in absolute privacy, whether there was sufficient evidence to go to trial.  But grand juries were unwisely abolished (see #253) by the politicians when a private prosecution was initiated against one of their class, a politician, Julia Gillard.

Although discounted by the commentarial, Pell was undoubtedly the pioneer here in dealing with institutional sex abuse. He subsequently cooperated fully with the Royal Commission. Recalled in 2015, the hearing was delayed by curious attempts to force him to fly to Melbourne even when it was revealed his doctors warned that the long flight could be fatal.

wilccox pellJust before he was to appear, the world’s media were filled with well-timed leaks revealing a police investigation about which even the Cardinal had not been informed. Silent on his being cleared in the earlier investigation by Justice Southwell, the police then took a surprising eight  months before they interviewed him. And although called on, the government failed to set up a public inquiry into the leaks, probably encouraging more.

In the meantime, the Royal Commission video examination was extraordinarily long and unnecessarily hostile. Instead of being so obsessed  with the Cardinal, the Royal Commission could have  sought to have its terms of reference varied so it could investigate the two serious areas of current child abuse: those  in the remote communities and those in dysfunctional families where there are an unlimited successions of male “stepfathers”.

According to a media report, the police were then dissatisfied with the failure of the Office of Public Prosecutions, when consulted, to make recommendations. So the police persisted, eventually obtaining advice that there was sufficient evidence to make a charge. Extremely prejudicial, this was leaked to the media. The public, from whom jurors are chosen, can hardly be expected to draw the lawyers’ distinction between evidence being sufficient to make a charge and evidence being sufficient to find guilt. Had the government  acted to quell the earlier leaks, this one would probably have not occurred.

pell truckThe proceedings now begin with a committal hearing at which a magistrate determines if there is sufficient evidence to go to trial and indeed, how many trials there should be – it would be unacceptable for the same jury to hear evidence in unrelated cases. But surely the first question must be whether, because of the leaks and the media character assassination, the Cardinal can possibly receive a fair trial.

Victoria does not permit the option of the New South Wales solution of a hearing before  a judge alone.  More importantly, Victorian law also does not allow for US-style common sense examination of potential jurors to ascertain potential bias.

I first observed the Cardinal in operation when he played a significant role at the 1998 Constitutional Convention. He was one of the appointments in the gift of Prime Minister John Howard. Howard chose not only the prominent who would never stand for election, but also those from areas not otherwise represented, particularly  the indigenous and the young. That the overwhelming majority of these, including Pell, turned out to be republicans is testimony to John Howard’s essential decency and sense of fairness.

die pellAt the Convention, Pell conducted himself with great dignity. This became relevant as a result of Malcolm Turnbull being terrified that the monarchists would ”vote tactically”. This was code for the monarchists using their numbers to have the Convention approve an unpopular model as the referendum model,  one generally thought to be more easily defeated.

But under the leadership of  a distinguished  QC, Lloyd Waddy, the monarchists decided, unanimously, that they would not support any republican model, whatever the tactical advantage.

When Pell was persuaded by the republicans to move the approval of the Turnbull-Keating model, he demonstrated his essential magnanimity and fairness. Declaring that the  monarchists had voted  with ”discipline, integrity and honour”, he concluded that ”their virtue” had “brought its own reward”. He then castigated the republicans, saying that their  disarray was ”our own doing”.

But when Pell was appointed to the Sydney archdiocese, the then-ARM leader rewarded him for his loyalty at the Convention by denouncing  him in no uncertain terms in the media, declaring that he was not welcome in the city.

Pell has suffered if not  the hatred, certainly the disdain of most of the mainstream media even among some of the few conservatives there . The reason seems to be that Pell is not a ”cafeteria Catholic”− one who is selective as to which dogmas he accepts. He endorses all of the beliefs and teachings of the Catholic Church and is not afraid to say so. He also dares to take unpopular positions on current matters, for example, global warming. Rather than being hated, he should be admired for this. But such is the narrow thinking of the elites today that dissent is intolerable and any dissenter must be punished. As a result, Cardinal Pell has long been subjected to massive character assassination.  If they keep quiet now, how can the effect of this be neutralised?

Only a court can determine whether he is likely to receive a fair trial. This will be a difficult question to determine. His counsel may not even raise it, determined as the Cardinal is to have his day in court. But the court  may still decide to grasp the nettle and make a ruling.

David Flint is an emeritus professor of law

(Editor’s note: scattered about the page above are just a few examples of the prejudicial publicity that, or so one guesses, will make it very difficult to secure an unbiased jury.)

Comments [20]

  1. Jimbob says:

    I inclined to agree with David that a fair trial for Cardinal Pell is now impossible. He has been “tried” by the media and the baying mob who have found in him an easy target for expressing their pet hatreds. Somehow though, I think the good Cardinal will find the “inner” strength to endure what lies ahead. Following the example set by the One the Cardinal has chosen to serve is probably the best thing that could happen to him.

  2. mags of Queensland says:

    Every person who lives in Victoria should watch these events as they unfold because it could be them one day. If you
    are not a member of a refugee gang or a good Labor/ union person you are in as much danger as the good Cardinal.The fact that the Royal Commission has handled its inquiry in the manner that it has shows that the object of the RC was to bring down the Catholic Church and to give the victims a scapegoat.

    What a nation we have become where the simple matter of justice has become a political football, egged on by a disgraceful media. Shameful.

  3. Ian MacDougall says:

    1. Cardinal George Pell is a prominent member of Australian society.
    2. Crimes involving a sexual component are rarely witnessed by third parties. It is usually the word of one individual against that of another.
    3. Where there are numerous complainants making allegations about numerous alleged events, the thing either becomes a well-coordinated conspiracy at one end of the spectrum, a lay-down misere at the other, or something in between. A whole lot of people are possibly lying synchronously, and/or some breach of the law occurred.
    4. It is a matter for a properly instructed court to decide.
    5. According to David Flint, Jimbob and Mags, it would not be possible for a prominent yet controversial figure to get a fair trial.
    6. So going by that, really all the defence needs to prove is a. prominence and b. generator of controversy.

    • Bwana Neusi says:

      Ian – Well put. Today it was news that the Vatican would not cover Cardinal Pell’s legal costs and the MSM implication being that they were washing their collective hands of him.
      The contrary argument surely must be that to provide him support they expose the church to “Protecting Pedophiles” and would do even more damage to the church.

    • Jimbob says:

      “According to David Flint, Jimbob and Mags, it would not be possible for a prominent yet controversial figure to get a fair trial”

      Ian,

      You have not understood what we are saying. Cardinal Pell is more than just a “prominent” or “controversial” member of Australian society. He is also a much hated figure and that is exactly the problem. The hatred for Pell is expressed in the main in journalistic opinion pieces where any “facts” (whatever they really might be” are filtered or even recast by the passions and biases of the journalist. I think David has backed up his thesis with incontrovertible examples.

      It’s not his “prominence” or his “controversy generation” which stops him having a fair trial – lots of prominent and controversial figures are tried. All we are saying is that the emotional response to the controversies he supposedly creates will have the effect of clouding judgement. There is no judge on the planet who is unaffected by his or her own emotions or biases and if it is almost impossible to be totally detached for someone who through long training and practice is in a position to determine the fate of another human being, how much more difficult will it be for an untrained lay, jury?

      I wish I could say that the judicial system is infallible but I can’t because it isn’t. And yes, either of your possibilities could be true. Many people could be lying synchronously, particularly if they are motivated by base passions or have been paid to lie or indeed, some breach of the law may have occurred.

      In Pell’s case I find it hard to believe that justice will be “blind” – there have just been too many bright lights flashing and too many gongs clanging.

      • Ian MacDougall says:

        “You have not understood what we are saying. ”
        I disagree. ‘Controversial’ covers every attitude pro and con on the spectrum.

  4. Warty says:

    I too am convinced George Pell cannot now receive a fair trail, yet I feel that it couldn’t be more important that he should have his day in court and have the opportunity to clear his name. For him not to be able to seek redress must surely leave that deleterious element of doubt in the community mind.
    The conspiracy theories, the ludicrous ‘victims’ and the ABC mockumentaries on Pell have all acted to undermine him and the church, and one suspects that a not guilty verdict may still not undo the unfettered bias. But for him not to have his day in court can only make things continue relentlessly.

    • Jody says:

      Even that ugly and execrable Bill Cosby had a ‘mistrial’ because the jury couldn’t make a verdict. Rolfe Harris got off his later charges too. All I want to know is IF, having been found guilty, Pell will get a suspended sentence like the muslim man who married a 9 year old girl recently here in Australia.

      • Jimbob says:

        Warty and Jody

        The press in the main have made up their minds as we can see – no need for any further “facts”. To answer Jody’s question, I think Pell will get “life” in jail IF he is found guilty (because at his age, a life sentence is what it will effectively be).

        Warty, I think you’re right. If he is not guilty the unfettered bias will not cease. Hatred like bloodlust is insatiable until the object of that hatred is completely and utterly destroyed.

        • Doubting Thomas says:

          As with all litigation, for the defendant the process is the punishment. Like the Royal Commission which in itself was a pakapoo tocket, Pell’s trial process will be dragged out for as long as the Victorian authorities think they can get away with it. Like Bill Leak, the left will continue to hound Pell until he dies, regardless of the verdict. Indeed, I doubt he will survive the preliminaries.

          This has become a very ugly country in recent years.

          • Jody says:

            I was having a long discussion with an aunt this morning and she has the same political beliefs as my husband and myself. I spoke about how my 2 sisters and I were poles apart and that one of them had angrily written to me “don’t send me anything political”. Both sisters are/were public servants for their whole working lives; teachers. When I discussed the left leaning members of my family my aunt observed, “oh well, they’re teachers; what do you expect?”. I came to this conclusion, after being in the profession myself (but also having a business), “lefties espouse views which they think support the less fortunate in our society; trouble is most of them are very envious people themselves (and this was my experience in teaching). In short, they like to feel sorry for ONLY THOSE people to whom they feel superior. My aunt agreed.

          • ianl says:

            From Jody:

            ” … trouble is most of them [teachers] are very envious people …”

            Yes. I have too much experience with this group of people not to know the truth of that. Journos are another group much akin.

  5. Doc S says:

    The issue as outlined in David Flint’s excellent article is that there is now so much ‘evidence’ against Pell in the public domain (despite VicPol not detailing the charges they are bringing against him) that the very act of testing this ‘evidence’ in court in a fair and reasonable manner may not be possible for all the reasons David has detailed. These charges may likely be divided into two – claims of sexual assault by Pell himself and the claims he repeatedly covered up for the paedophilia of other priests. We don’t know which of these categories – or what possible combination – were considered worthy by the Vic DPP of the police prosecuting charges. Arguably the former are the most damning (and hardest to defend against given the sullying of Pell’s name regardless of the outcome) but there is a huge amount of documented testimony from complainants – the victims of abuse and/or their families – that can be presented in any case against Pell, for example:

    https://kangaroocourtofaustralia.com/2017/07/01/cardinal-george-pell-said-to-parents-of-abuse-victims-its-all-gossip-until-its-proven-in-court/

    The most compelling of all this is that of the Fosters, parents of two young girls subjected to sexual abuse who were angered by Pell’s response. If the charges/case against Pell centres on the claims of sexual abuse he is alleged to have conducted they will, similar to other such cases, be extremely difficult to prove given they rely on testimony because there is rarely physical evidence or corroborating eyewitness testimony to be had and the fact these alleged incidents occurred decades ago. On the other hand, Pell’s actions in relation to the proven paedophile priests are a matter of record and may themselves be more readily prosecuted if a complaint is brought against him. Either way it is extremely difficult to see given the firestorm of negative reporting on Pell how they could empanel an unbiased jury for his trial. Regardless this will not in any event see a lessening of the hatred directed against Pell, as reflected in the media coverage.

  6. Doubting Thomas says:

    One of my Facebook friends posted a link to the story that Pell had been charged. Of the then 10 or so comments, not one considered or acknowledged even the remotest possibility that Pell might be not guilty. To them, it was “about time”, “hang the guilty bastard” and more worse than that. As for Jody’s remarks about the ugly and egregious Bill Cosby. She must be very young. Egregious he may well be, but back in the day he was a very handsome man indeed.

  7. ianl says:

    From the Editor’s Note above:

    > ” … the prejudicial publicity that, or so one guesses, will make it very difficult to secure an unbiased jury.”

    That’s David Flint’s real point. The MSM, and Fairfax/ABC in particular, are acutely aware of this.

    Will this open attempt at poisoning the well work ? Probably well enough, I suggest. Again, the unaccountability of the meeja is on display.

    • en passant says:

      Can’t we just recycle the Lindy Chamberlain jury and get a quick result. After all, does it really matter if he is guilty, just so long as he is punished for a life of service?

  8. norsaint says:

    It is so obviously a trumped-up charge it’s embarrassing. The State’s discredited wallopers (how many citizens killed this year fellas?) moving at the behest of the state’s media should be more than a little concerning for all of us. The mob are determined to have a propitiatory sacrifice and Pontius Andrews has offered them the Cardinal. Meanwhile back in Victoria, the kiddies and their sodomy lessons are progressing very well. Jesus wept.