Law

Why the Second Jury Found George Pell Guilty

Why was the second verdict by the jury in the trials of George Pell so different from the first? If the jury in both cases was a fair sample of the Australian public, and the evidence heard by both juries was identical, you would expect the outcomes to be fairly similar. Like the first, the second trial should have produced a hung jury too. But the first trial produced a majority of ten jurors voting to acquit and only two voting guilty, whereas in the second trial the jury voted twelve to nil for guilty. This is a significant difference. So what explains it?

There are some things about the trials we can never know—the selection process for the two juries, what went on inside the jury room—so they cannot be considered. But there was one highly publicised external incident that must have made some impact on the second jury, but not the first. It is not far-fetched to argue that it largely made the difference.

Pell’s first trial for the alleged abuse of two choirboys in St Patrick’s Cathedral took place in the Victorian County Court in Melbourne over five weeks in August and September 2018 and produced the hung jury. The media was banned from reporting the outcome and the second jury was not told about it. The second trial began on November 8, 2018, and produced its guilty verdict nearly five weeks later on December 11.

Each trial was identical. The complainant was not required to be present in court. In the first trial, jurors saw him testifying and being cross-examined by videolink. The second time around, the jury saw a recording of the same videolink. The prosecution relied entirely on the testimony of this one former choirboy, recalling the events of twenty-two years earlier. The defence provided a stream of clergy to testify that the alleged abuse in the cathedral’s sacristy, a few minutes after Sunday mass, with Pell still dressed in his multilayered archbishop’s vestment, not only did not happen but was physically impossible.

In between these two trials, on October 22, 2018, in the House of Representatives, Prime Minister Scott Morrison made a public apology to the victims of child sexual abuse. This was a recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, which Prime Minister Malcolm Turnbull had formally agreed to deliver last July. After he was deposed, the task fell to Morrison, who invited Opposition Leader Bill Shorten to make a speech on the same occasion.

The day Morrison gave the apology, television news bulletins around Australia made it their lead story, and the next morning front-page reports on almost every daily newspaper in the country kept it alive. In the mainstream media, the apology went around the world, with reports on the BBC, US News and World Report, Straits Times, Reuters, Al Jazeera and iAfrica.

In Melbourne, where the jurors were recruited, the front page of the Age on October 23 carried a three-column-wide photograph of Julia Gillard and activist Chrissie Foster in Parliament House congratulating each other under the headline: “A sorry that dare not ask for forgiveness”, plus two pages of reports inside. The Melbourne Herald Sun’s online coverage carried live video of the apology as it was given, accompanied by no less than fifteen separate online stories, with headlines such as “Scomo fights back tears telling victim’s story” and “Your country believes you”.

There is little wonder it attracted such attention. Since Kevin Rudd’s apology to the Stolen Generations in 2008, political speechwriters had refined their skills at this kind of thing and knew how to turn the issue into compelling theatrical drama. The driving motif of the apology was that, up until now, a terrible and ubiquitous crime had been silently suffered by tens of thousands of child victims. Overwhelmed by the authority that adults possessed in institutions, the victims had no one to tell and nowhere to turn. But now, thanks to today’s political leaders, who had the wisdom and compassion to listen to the children and to believe what they say, the victims can at last tell their stories and release their burden of guilt and shame. This was captivating material and Scott Morrison and Bill Shorten worked hard to outdo one another. Here are samples from their speeches to the House: 

Morrison: Today, Australia confronts a trauma, an abomination, hiding in plain sight for far too long. Today, we confront a question too horrible to ask, let alone answer—why weren’t the children of our nation loved, nurtured and protected? … Why was our system of justice blind to injustice? Why has it taken so long to act? … Why didn’t we believe? Today, we dare to ask these questions, and finally acknowledge and confront the lost screams of our children. Mr Speaker, I present the formal apology to be tabled in this parliament today … and, as I do, I simply say I believe you, we believe you, your country believes you. 

Shorten: We are sorry for every cry for help that fell on deaf ears and hard hearts. We are sorry for every crime that was not investigated, every criminal who went unpunished. And we are sorry for every time that you were not heard and not believed. We hear you now. We believe you. Australia believes you … Too many were told. They just didn’t listen. Too many did know. They just didn’t act … Some of these people were supposed to be the pillars of our community. They had the power, the status, the authority—but they wielded these as weapons … But know that today Australia says: Sorry. Australia says: We believe you.

In their speeches, both Morrison and Shorten paid particular tribute to Julia Gillard who “had the courage and leadership to initiate this Royal Commission”. Gillard was at Parliament for the occasion, seated in the public gallery, next to prominent activists for the cause. When proceedings moved out of the House and into the Great Hall for a reception with activists and victims, her presence turned the occasion into something like a religious festivity. Jacqueline Maley of the Sydney Morning Herald wrote:

She was not the politician doing the apologising, but she was the only one the survivors really wanted … As soon as she entered, the room erupted and they all stood for her. When Shorten spoke, he said he was proud of her, and there was more applause and cheering. “Get her on stage please!” yelled one audience member. “Thank you!” and “Love you Julia!” shouted others. “Come over to my house for a cuppa, love!” cried another. Eventually they coaxed her on stage, but Gillard spoke briefly, only to thank the survivors for telling their stories, and for their stoicism. Moving around the room, she was mobbed. Everyone wanted a chat, or a photo, or just to embrace her. One man went down on his knees to kiss her feet. 

Now, I don’t doubt that both Morrison and Shorten believed what they said when they quoted the Royal Commission’s findings. It is true, of course, that if either of them had shown any reluctance to back the Commission’s recommendations, their parliamentary opponent would have had a valuable political wedge, as Labor showed in the 1990s when it accused John Howard of heartlessness in refusing to apologise to the Stolen Generations.

It is nonetheless true that Morrison and Shorten showed too much faith in the reliability of the Royal Commission’s reports. In his apology Morrison said: “The steady, compassionate hand of the commissioners and staff resulted in 17,000 survivors coming forward, and nearly 8000 of them recounting their abuse in private sessions of the commission.” And Shorten could not resist the temptation to beat up the issue even further: “Australia failed tens of thousands of children, across generations, across this country.”

The Commission’s own statistics, published in its Final Information Update, showed a much smaller incidence of abuse than this. The Commission reported that, after its public appeals and private entreaties for victims to come forward, a total of 16,953 people made contact within its terms of reference (confirming Morrison’s statement). It heard verbal evidence from 7981 survivors of child sexual abuse and received 1344 written accounts (again confirming Morrison). But of those who complained, only 2562 had their cases referred to police (which neither speaker mentioned). What this shows is that almost three out of four complainants did not provide enough credible evidence for the Commission to put the matter into the hands of the proper authorities.

So, at a time when the Catholic Church was being publicly castigated by both the Prime Minister and Opposition Leader for not believing the word of all its complainants, offering only “deaf ears and hard hearts”, the government’s principal source, the Royal Commission, was doing the same to the majority of those who approached it.

It should also be noted that the Royal Commission had the same basic methodology as the Stolen Generations inquiry by the Australian Human Rights Commission. Both determined their conclusion at the outset. Both were appointed to investigate a serious social problem and their aim was to find evidence to quantify the problem and offer policy solutions. The concept of evidence was defined as anything that supported the pre-determined conclusion. Anyone could make accusations and, indeed, had an incentive to do so, some through the lure of compensation, others through the appeal of public victimhood. Hence the statistics that inquiries of this kind provide are simply compilations of grievance, many of which are no doubt genuine but many of which are notoriously unreliable. In short, by relying on the Commission’s data, both Morrison’s and Shorten’s claims about the issue were unsafe.

As Quadrant has shown in a number of articles published in April and May this year, the Royal Commission did not take the issue of bogus complainants seriously enough. Yet, with our very limited resources, we quickly found enough examples to demonstrate that their claims should not be believed on their word alone. These included (i) the fantastic claims by Gordon Hill about sexual abuse and torture in dungeons at Catholic boys’ homes, and in confessional boxes in churches; (ii) the “recovered memories” of Cathy Kezelman of childhood rape by her father and a family friend, and her grandmother’s consignment of her to a sexually depraved satanic cult in Brisbane; (iii) the exposure of “trawling operations” by police in England and Wales to uncover abuse in residential institutions for troubled adolescents, which attracted numerous dishonest complaints from current and former prisoners with long criminal records; and (iv) the “Billy Doe” case in Philadelphia in which a complainant gave false testimony about abuse by three Catholic priests and a teacher that sent them to jail, where one died, before the others had their convictions overturned.

Now, the only people in Australia who would not have known about the national apology and the emotions it provoked on October 22 would be those who didn’t watch television news, didn’t read newspapers, didn’t listen to radio commentators and didn’t use social media. In other words, it is more likely than not that the jurors selected for Pell’s second trial would have absorbed at least some of its content and sentiments. In particular, they would have heard the oft-repeated refrain to the victims—“we believe you, we believe you”—and the invective heaped on religious authorities, police and magistrates who in the past failed to heed that message.

Some jurors might also have been aware of the saint-like status bequeathed by the occasion on Julia Gillard for her purported courage and foresight in shining a light on the plight of victims and flushing out evil-doers.

Moreover, the content of all this media coverage was not only politically and culturally jaundiced, it was empirically unreliable, based on a naive faith in the veracity of the Royal Commission’s claims, or in the case of Shorten’s speech, a wilful exaggeration of the scale of the problem.

Sixteen days after all this, on November 8, the jurors selected for the second Pell trial were expected to forget whatever they had heard before, and take an objective stance on the whole business. The court expected them to act as if they had been quarantined from any contaminating opinions and value judgments. It was asking the impossible. The jurors heard all the trial evidence—its claims, counter-claims and cross-examination—with a dodgy national apology ringing in their ears.

Keith Windschuttle is Editor of Quadrant.

 

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