Astringencies

The Pell Case: A Strong Odour of Injustice

 

The case of Cardinal George Pell being known to me only through the prism of the French newspapers, I experienced a frisson of outrage when I read that his appeal against conviction had failed in the Appeal Court of Victoria. Of course, one must always be on one’s guard against so pleasing a feeling as outrage: it can mislead one terribly. But, at least as presented in the French press, the Cardinal’s conviction and subsequent failed appeal were surprising to say the least.

The facts as presented in the press were these. Pell was accused by a former choirboy, then aged thirteen, of two sexual assaults about twenty years or so after they allegedly took place. The first of these assaults, the more serious, was perpetrated on another boy also, but he died by overdose aged thirty shortly before the allegations were made by the first alleged victim. Earlier, the second alleged victim had specifically denied having been abused while a choirboy when he was asked by his mother whether he ever had been abused: asked presumably because so much publicity had been given to the abuse of choirboys in the church.

This column appears in the October edition of Quadrant.
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The Cardinal strongly denied the accusations and there was no evidence in their favour beyond the testimony of the accuser himself. A first jury could not agree on a verdict, and a second, unanimously but after five days of deliberation, found the Cardinal guilty on all counts. He was sentenced to six years’ imprisonment. He appealed against the conviction.

Without knowing anything about the truth or otherwise of the allegations, it seemed to me wrong in principle that a man should be convicted on an unsubstantiated charge brought by an alleged victim without any corroboratory evidence whatsoever—even if, as might be the case, the charge were true. In these circumstances, it cannot be known beyond reasonable doubt that any crime actually took place, let alone that any individual committed it. A fortiori is this so of something that allegedly happened twenty years ago.

My initial impression, then, derived from reading the French newspapers, was that a grave injustice had been done. (The reports were similar across the political spectrum, anti-Anglo-Saxon feeling no doubt trumping the Right-Left clerical-anticlerical divide.) But knowing from long experience that the devil is in the detail, I decided to read the judgment of the court for myself before letting my outrage get the better of me.

There were two main possible grounds of appeal. The first was that the trial procedure was in some way legally wrong, for example because the trial judge had in some way misled or misdirected the jury as to the law. This did not appear to be the case.

The second was that the jury came to a conclusion that was essentially perverse, that it asserted a certainty as to the guilt of the accused (beyond reasonable doubt) that was so manifestly unreasonable that no reasonable jury could have come to such a verdict.

The court held that the verdict was not unreasonable in this sense, and therefore had no power to interfere with it (with one of the three judges dissenting). Reading the judgment, I had the strong impression that the court was biased against the Cardinal, for at times it went far beyond saying that the testimony of his accuser was not such that it could be dismissed out of hand, but that the accuser was a credible and even a truthful witness. In other words, it was in effect finding Pell guilty a second time, which was not its remit.

Having said that, however, I think it true to say that the accuser’s evidence was not so inherently false that no reasonable person might think it true—which, of course, is not to say that it was true. It is up to the jury, not the appeal court, to find the facts, and so long as its finding does not self-evidently fly in the face of the evidence, for example by convicting an accused of stabbing a man to death in Melbourne while he was undoubtedly in Sydney at the time, the appeal court has no power to alter a verdict. To do so would be to undermine the very premises on which jury trial is founded.

Does this mean, in the case of Cardinal Pell, that all was for the best in this best of all possible worlds? I think not. There is a strong odour of miscarriage of justice about it, notwithstanding the Prime Minister’s quite unnecessary, almost gleeful, and indeed wrongful, statement to the contrary, namely that the courts had done their work well. He should have remained silent.

It is surely troubling that a man may be convicted according to due process of law of an offence which it is well within the bounds of possibility never to have taken place, on the word of a single witness both as to its having taken place at all and as to who committed it. True, the Appeal Court found the accuser to be a good witness, and even said he was truthful, which was not for it to say; but good but dishonest witnesses have deceived courts before, and will almost certainly do so again. I know of a case in which a woman deceived three very experienced doctors, several lawyers and a trial judge, to obtain millions in compensation for harm done by an operation (which really had been done badly), only to be revealed as an utter fraud by a private detective. Of course judges and juries have to assess the plausibility and reliability of witnesses, but they ought not to be put in a position in which this judgment about a single witness is the sole basis of their verdict. There is something wrong with the law, rather than merely with the application of the law, where this is permitted. It has long been known that a confession alone is a shaky basis for a finding of guilt; the same must be true for accusation alone, or we should none of us be safe. We are not so very far from the lettre de cachet.

There was a distinct aspect of l’air du temps about the case, despite the trial judge’s warning against it. Supposing I claimed that a man had entered my house and stolen goods from me, but there was no collateral or corroboratory evidence of his having done so: would any court take me seriously? Would my accusation get to court, even if true? In other words, it was the very nature of the accusation in this case that got it a hearing.

Some might think that the length of time between the alleged offence and the accusation was evidence against the latter’s veracity. This is a mistake. I know of a case in which an accusation was brought fifty-two years later, and was true; a friend of mine was sexually abused by a sadistic headmaster at his preparatory school, the realisation of the sexual nature of the abuse dawning upon him only twenty years later. He brought no accusation because the abuse did him no harm and he had a happy and successful life afterwards. Dwelling on the episode would have done him far more damage than the episode itself. 

Here we should remember the reflexive nature of the relationship between circumstance and the human psyche. It is possible that people make accusations so late in the day precisely because they are able to do so, there being no statute of limitations. Such a statute might make it easier rather than harder for the abused to come forward, to say nothing of the improvement in the nature of the evidence in such cases. It is even possible that some of the harm done by abuse is not so much primary, as secondary to the emphasis placed upon it: for it is certainly within the experience of all lawyers and doctors that the very process of seeking compensation can worsen the condition it is supposed to compensate, even for people who are as honest and truthful as can be. They spend years dwelling on the harm done them and the misery consequent on it, which grows with the repetition of it in their minds. It becomes increasingly difficult to distinguish between the original injury and that done by the law’s delay.

As the case of Cardinal Pell illustrates, and as the law now stands, an appeal court may correctly confirm an inherently dubious and unjust verdict, without anyone involved being in the slightest nefarious. A change in the law might reduce at least some repetition of this convoluted situation.          

Anthony Daniels’s most recent book, co-authored with Kenneth Francis, is The Terror of Existence: From Ecclesiastes to Theatre of the Absurd (New English Review Press), published under his pen-name, Theodore Dalrymple

11 comments
  • deric davidson

    Indeed Peter, what were the ‘facts’ the jury ‘found’ that allowed them to convict George Pell ‘beyond reasonable doubt’? Other than the ‘fact’ that the claimant ‘appeared to be telling the truth’ there is nothing else. The highly subjective nature of this lone ‘fact’ is the only thing beyond reasonable doubt. As has been said many times before George Pell was in the invidious position from the start of having to prove his innocence rather than the prosecution having to prove his guilt beyond reasonable doubt.

  • Stephen Due

    What is a credible or truthful witness? Woolly thinking is occurring in the courts on this issue.
    A credible witness might be somebody who is known to have relevant knowledge, or who has no known reason to give a false testimony, or has a record of truthfulness. In this case, both George Pell and the complainant are credible witnesses. There is no reason to doubt Pell’s credibility. Therefore the assumed credibility as such of the witness is irrelevant in this case.
    Incidentally, the common assumption that a person’s credibility is diminished if they might have a reason to lie – if for example an accusation leveled against them might be true – is erroneous and demonstrates a failure of logic.
    And what is a truthful witness?. It cannot in principle be known whether a single witness is telling the truth, without independent evidence. Therefore the court cannot be guided by any unaided judgement as to whether a witness is truthful. Logically the issue must be whether what is alleged to have occurred did in fact occur – or not.
    The conclusion therefore is that, in this case (and presumably many others) neither the apparent credibility nor the alleged truthfulness of the complainant is relevant. The argument in Pell’s defence, namely that the alleged events are unlikely to have occurred for logistical reasons, has the additional implication, if true, that the complainant lacks credibility, but this is superfluous information, since the court is concerned only with the events in question.
    The emphasis by the appeal judges on the complainant’s supposed credibility shows a striking absence of logic. The complainant is at best no more credible than Pell, who denies the allegations.

  • DG

    The problem with a ‘credible’ witness, is they may be mistaken. Memory can play all sorts of tricks on one, despite the best intention to be honest.

  • PT

    Calling “the choirboy” (he hasn’t been once since he was 13 supposedly) a “truth teller” rather than finding him a “credible witness” surely questions the neutrality of the justices and certainly doesn’t sound professional.

    Things like the “sweet red wine” when it is established they had white wine, and the fact that, given the claimed timing, the altar servers would have been only a minute or so behind the wine swilling choirboys (and HAD to enter the Sacristy to complete their procession and then clear up), not to mention the other clergy who’d be going to disrobe. I think the good prison doctor should look at this, and a diagram to see how flimsy the case really was.

  • en passant

    Based on a series of letters and a fine memory I wrote a history of some events I had a close knowledge of. I sent excerpts to various people and received some minor corrections. One incident in particular bothered me (it still does) as I had an EXACT recollection of a particular scenario. I could even quote some of the words spoken and could see the face of the person involved as if it was yesterday. Make that this morning.
    Two years after publication and circulation it was pointed out that I had related this story about the wrong person as on the day it occurred (which can be pinpointed) the main person in the story was not only not there, but was a whole Continent away. Despite the witness telling me who was involved, to this day I cannot make the face of the real culprit appear in the incident.
    Pell is not just a victim of a miscarriage of justice through a misapplication of poor ‘evidence’. I have never been to the cathedral, and I am an atheist, but I am willing to testify from the certainty of my memory that he is innocent…
    Figure it out …

  • PT

    I don’t know if the good Dr Daniels will ever read this (I’ve admired his work for many years). But I have to sadly admit that the French papers seem to have conveyed the correct impression, and our papers in Australia have not. Pell is not a big figure in France, whilst in Australia he is a hate figure (along with Tony Abbott – both tarred with association) because he is seen as the chief of social conservatism. Added to that we’ve had a Royal Commission into child sexual abuse in institutions (which EXCLUDED state schools). but much of the publicity centred on accusations against the Roman Catholic Church. Now this wasn’t actually new. Plenty of accusations have been aired since the late 1980’s, and certainly against Christian Brothers organisations (particularly regarding child migrants) from the early 1990’s on. This is not something that was suddenly exposed in 2012 causing a Royal Commission. But nonetheless it was a heavily in the picture. Pell has been attacked by many who are really opposed to him for other reasons: Marr for example is against him for being a social conservative and seeing homosexual acts as sin. And then there’s the “demure” aspect. Plenty of people don’t like his “attitude”, he seems “arrogant” and “not sympathetic” enough. Finally, and I hope it’s not the case in France, we have this “believe the victim” nonsense. In Britain this has led to travesties like the Mark Pearson case (where the CCTV footage used to identify him clearly shows he could not have committed the acts he was accused of) and the Liam Allan case whose “victim” turned out to have been pestering him for “casual sex”. Cases which simply should not have gone to trial. Fortunately those failed, but they should never have been proceeded with.

    This “believe the women” and “believe the victim” refrain threatens the whole principle of justice. If we really follow this line of argument, then why is it necessary to have a trial at all? HAVING a trial must indicate that the truth of the complaint/accusation has to be tested, as does any denial or mitigating circumstances put up by the accused. Another, and related problem, is that if Pell were acquitted it would have a “chilling effect” on “other victims” coming forward. In other words, you decide the case not on its own merits, but on alleged effect on other, unrelated cases.
    .
    As I read it, the majority decision by the appeals court had the conception that it was open to the jury to decide that it “was possible” that a 5 to 6 minute window for the offence could have happened. This assumed, of course, that Pell didn’t speak to the parishioners by the West Door (which it was established he did do, at least on most occasions); that the Altar servers didn’t show up to the place they finished their own processions for 6 minutes after the procession ended; and the rest of the clergy didn’t go their to disrobe either. Oh and he got the colour of the wine wrong. And that not only did Pell run off from the procession at the West Door, but he was left alone whilst robed, which is apparently against Catholic Canon law, and established practice. It MAY be technically possible to have done this, but what are the chances? The Prosecution and the Majority appeal Justices have claimed “corroboration” for the story in that a) he said the altar wine was in the alcove, where it was stored then, but not now and b) that Pell used the Priests Sacristy in late 1996 because the Archbishop’s one was being renovated (I think that’s the reason why they hit upon 1996 as being the time of the offence, so it would give “validation” to the story).
    .
    Now I agree that the other choirboy’s denial of being abused doesn’t in and of itself preclude that the crime may have happened (sexual abuse victims may hide what happened to them), nor is the fact that the accuser waited nearly 20 years before making a complaint evidence against it happening. But the story just doesn’t seem to hold up. Too many things would have had to happen “out of the ordinary” (and out of standard ritual – important in an RC Cathedral) for the story to hold water. So we’re left with “possible”. By this logic, the justices would say it’s “possible” that I “molested” these kids (or they did for that matter). I mean they “could” have travelled across Australia (hitchhiking presumably so there’s no tickets), met me in some unspecified location, and then hitchhiked back to be in Melbourne for the next Sunday Mass! Fortunately they’ve never heard of me, so I cannot be accused, but this seems to be the sort of “standard of evidence” that we’re looking at now in such cases. The testimony was that the boys left the procession at its end, when it was back to the hall’s gates. They then sneaked back, went through the south transept door, and sneaked into the Sacristy. They then found, and drank, the altar wine before a robed Pell (and no-one else) appeared in the doorway. During this time, no altar servers appeared, although they had to go there to complete their procession, and then start moving the silverware back into that very room; no priests or deacons showed up to take off their robes either, in early summer I might add! And all at lunchtime on a Sunday! It seems highly unlikely the offence could have taken place as described. More likely than them being mysteriously transported across to Perth without being missed, but not that much more. I don’t see this even meets the “balance of probabilities” needed for a civil trial, much less “reasonable doubt”. There is also the strong whiff of political bias in this. A VERY prominent member of the ALP was accused by a former ALP member of raping her around the same timeframe. But the Victorian Police have not pursued that line of enquiry. Why is her evidence less credible?
    .
    France has had it’s own miscarriages of justice (and incidentally the dissenting Justice, Weinberg – who of the 3 is the one with significant criminal law experience – made it clear in his statement that appeal courts can reverse Jury verdicts, it’s not merely a case of misdirection by the presiding judge, or some “point of law”), but sadly in this case I’m afraid their barbs at we “Anglo-Saxons” is justified. I don’t think the facts of the case have much in common with the Chamberlain case, but what IS in common is that a very great part of the country WANTS the accused to be guilty. I recall it being lamented when the NT’s pathologist’s evidence on “foetal blood” etc. was thrown out, since “her evidence was GOOD”. Why was it “good”? Because it may Lindy Chamberlain sound guilty? Some of it is religious bigotry: Lindy Chamberlain was a Seventh Day Adventist – and seen as “weird”, with many linking them to Jonestown, and imagining they had some infant sacrifice rituals, in the case of Pell, “everyone one knows” that “all Catholic Clergy” abuse kids. Some of it is because the public don’t like the demeanour of the accused: Pell seems “arrogant” and “didn’t seem sympathetic to child sex abuse victims”; Lindy Chamberlain seemed too calm and detached in the wake of the death of her infant daughter (she should have been all tears and screaming in the public mind).
    .
    But in Pell’s case there is a distinct notion of not only personal animus against him for his cultural conservative views, but to hold him as personally responsible for the institutional crimes of the RC Church as a whole. Listening to those celebrating Pell’s conviction, and failure of the appeal (and complaining about him launching a further one), there is a very strong element that this isn’t about the merits of the case, but of punishing the RC Church for the crimes of paedophile priests, and even things like opposing abortion, and using corporal punishment on school children. Their attitude seems to be Pell should be in prison because of those things which he may not have personally done (except for the much claimed “cover-up” for which no convincing evidence has been presented, only supposition at best), but for the crimes of the institution of which he is a prominent member.

  • Lewis P Buckingham

    ‘Thus the prosecution’s and the Judgment’s theory rests entirely on (i) accepting, “of course”, Potter’s
    somewhat disputed evidence ­that sanctuary clearing (and the resultant traffic to and from the Priests’ Sacristy) was delayed for five or six minutes after the end of Mass (to permit parishioners’ private prayer), while simultaneously (ii) overlooking the necessary implications of another integral part of his same account, a part disputed by no other witness and stated without a qualm in para. 293, as we have just seen: during that “5-6 minutes hiatus for parishioners’ prayer” the Priests’ Sacristy door was locked.’
    ‘As I read it, the majority decision by the appeals court had the conception that it was open to the jury to decide that it “was possible” that a 5 to 6 minute window for the offence could have happened.
    You read right PT.
    However for the choir boy to have entered he must have passed the sacristan who had the key.
    Until recently I did not think much of this until seeing a protocol for the job description of a sacristan in training at a catholic church.
    Locking the sacristy door during mass is definitely part of the protocol.
    Little wonder as thieves may enter and steal sacred vessels or lift electronics.
    Were this choirboy to enter the sacristy first he must have been in possession both of invisibility and the ability to pass through locked doors. He claims preternatural powers.
    Once he entered he then must have unlocked the door from the inside so George Pell could spring him drinking the wine from the locked safe.
    You know the rest.

  • Bwana Neusi

    For Justice to be really served, the judges who convicted Pell, should in the event of the conviction being overturned, serve the same sentence to which he has been subjected.
    There have to be consequences for jurors who politically ‘bend the rules’

  • PT

    Lewis, reading the majority decision was quite puzzling. They seemed to think the defence was using an insanity defence because they apparently claimed only a madman would commit such a crime in a place where it would be almost certain to be detected! But the insanity defence happens where the essentials of the accusation are accepted. I wonder what was going through the minds of those two justices in writing this stuff! Surely they’re not intimidated by “public opinion” (which is the media, including “social media”) which may lead to personal attacks of judges overturning a jury verdict in such a case?

    I also wonder what would be sufficient evidence in their view to require “reasonable doubt” for a case 20 years old and depending upon the word of a single witness. Not only is this one witness the only evidence against Pell, it’s the only evidence that the crime happened at all! The “window” is only the time when Potter was away from the Sacristy. The servers MUST enter it before putting away the the sacred vessels, where were they? And if Pell isn’t speaking to the parishioners at the West Door, where are the rest of the clergy? Chatting away when the new Archbishop runs off? Surely at least one would have gone with him – they’re actually required to! The only “corroboration” of the “choirboy’s” tale is that he said the altar wine was in the alcove and it’s isn’t kept there now. Oh and that Pell would have used the Priests Sacristy because the Archbishop’s one was closed at the time (is this why they insist it was in 1996?). Of course he insisted he drank sweet red wine, when it’s accepted they had white wine at the time – a detail you’d expect some who had the memory of the event burned in their memory to actually remember!

    So we come to a notion that it “might” be possible, if everyone does things out of rigid procedure: the servers all head off for a smoke or a drink for 10 -15 minutes; Potter forgets to lock the Sacristy; the Clergy and aid de camp are too busy chatting away to notice Pell’s run off (presumably because he saw the choirboys run off, and no one else did), and the parishioners linger a bit longer in the sanctuary. At what point does a tale become improbable? At what point is “improbable” a “reasonable doubt”???

  • Lewis P Buckingham

    PT ‘The Kidd’s’ account does raise some problems.
    He would have had to have said the wine was sitting somewhere for him to be found drinking it, for internal coherence of his narrative.
    That’s because it could not have been in a locked safe for him to have access.
    In the meanwhile he could well have been looking to see where wine was in order to drink it, so the raid on the wine meant he cased the joint, ie the sacristy, first anyway.
    Alternatively he did so at some other time of his choosing.
    However he did not drink the wine.
    The Clare Valley red, the usual altar wine, is quite different from white wines, it is specially produced to be widely drinkable.I have visited the vineyard.
    However it is ‘common knowledge’ that red wine is used, you know, the colour of blood, any movie would show this.
    So, arguably, it was an easy line to make up in his narrative as it rang true, the only problem was it did not happen to be true.
    The lady running the judgement was carefull to advise the prosecuting barrister that judgements about truthfulness are best left to the jury.
    This was to me unusual, why tell the prosecutor his job?
    Never having had a conversation with George Pell I have watched him with all sorts of people, mainly from the margins.
    He always chats and never rushes off after a Mass,
    According to ‘the narrative’ we are supposed to believe, he must have left the procession and rushed off alone.
    From my own observation he does not do that, he chats.
    The biggest problem for the prosecution is the minority judgement,which forensically dissected the evidence in a way unapproached by the second jury or majority jurists.
    The fact that this exists, of itself places reasonable doubt on the verdict.
    One of the landmark sagas that showed how the pedophile line was historically crossed was the Wood Royal Comission
    https://www.australianpolice.com.au/the-wood-royal-commission-10-years-on/
    ‘To some there were considerable benefits. Some appalling malpractice – known as “process” or “noble cause” corruption – prompted Wood to wonder at one point about the quality of a lot of police evidence he had accepted over the years’
    It called over 900 witnesses, one, an expert witness, gave evidence on the methods used by rent boys to ascertain if the person who was asking for their services, was a pedophile or a plant by police.
    It is his expert opinion that George Pell is not a pedophile.
    In our topsy turvy world sometimes it is necessary to find evidence independant of usually accepted channels.
    Being ‘close to the margins’ allows new insights into human behaviour.
    From my POV,if his opinion was good enough for the Wood Royal Commission, it is good enough for me.
    Its highly unlikely that blogs would be read by Justices of the High Court, however the opinions of jurists will,hopefully, be integrated into the appeal.
    We await a decision on leave to appeal.

  • DUANE WALKER

    I think the most interesting thing is this fundamentally changes justice. We no longer need detectives and investigations. We don’t need the jury. Instead the victim/witness tells the judge what happened and the judge convicts and sentences them.

    This process has really simplified justice because we don’t need investigations or evidence. The victims statement is true so we just convict and sentence.

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