The Law

Cardinal Pell at the Hands of the Victorian Justice System

It would be fair to say that the late Cardinal George Pell and I had our differences, even acute differences. From my own perspective, things reached a low point when Damien Freeman published his rather humorous biography of the great Roddy Meagher, Roddy’s Folly: R P Meagher QC: Art Lover and Lawyer. Roddy Meagher was a distinguished judge in New South Wales, came from a distinguished family, and was educated at St Ignatius College Riverview. In the biography, Meagher was asked about his view of the Jesuits, and in his typically humorous fashion replied:

Nowadays Riverview is abandoning Greek, but Grammar has a flourishing Greek class and has introduced Sanskrit into its syllabus. I have seen the handful of Jesuits left at Riverview, dressed in hippie attire, dancing around a barbeque singing “the Internationale”. Fr Frank Brennan is the archetype of the modern Jesuit: short on Greek verbs, long on witchetty grubs.[i]

The biographer then interviewed Cardinal Pell, who took Meagher’s remarks as a launching pad to make a couple of observations about me and the Jesuits:

[A] fellow like Brennan … part of the key to understanding Brennan is that he’s really not well educated in the Catholic tradition—in Catholic theology—but I’m told he’s a good lawyer and he’s certainly an intelligent man, and very active. I think in many ways [this development] is entirely regrettable. Perhaps, not entirely regrettable, largely regrettable … I think it’s a great pity … I wouldn’t say Christ has been removed, but he has been almost displaced by this enthusiasm for social justice. I think it’s a very, very significant displacement and … whatever the nature of Roddy’s faith, he regrets those changes. But those changes that have taken place in the Jesuits are not paralleled exactly in the Australian Church.[ii]

I wrote to His Eminence fairly boldly on May 18, 2012, saying that I thought this time he’d gone too far and that he should apologise. He replied on August 2:

I am afraid that your letter confirms my worst fears about your judgement and about the absence of a proper sense of respect for, and understanding of, things Catholic. This has nothing to do with post-graduate credentials, no reflection on your integrity, but touches on your Catholic sensibilities.

So that’s where things stood between us until he encountered the full force of the Victorian criminal justice system.

This memoir appears in July’s Quadrant.
Click here to subscribe and avoid the paywall

In late July 2018, after Pell had been committed for trial on child sex offences, I wrote to him and recommended that he have a retired judge attend the proceedings. I then met with him and provided him with some names of retired judges who might be suitable. A week or two later he told me he had discussed the matter with his people and they thought it would be better to have me because I would go over better with the literati and the glitterati. I was appointed by agreement between the Jesuit provincial and the president and vice-president of the Australian Catholic Bishops’ Conference to monitor the proceedings. I provided regular reports to Archbishops Coleridge and Fisher. I checked in regularly with one of the leading silks at the Melbourne bar who gave me invaluable advice.

On September 25, 2018, after the first trial in which the jury could not agree, I wrote to the cardinal saying:

Given that the cathedral charges are to be presented again on November 5, could I offer you my reflections on the issue of whether you should give evidence. I of course am not privy to the detailed discussions between you and your legal team. And I make absolutely no pretence to match their professional competence and dedication to your immediate interests as their client. But I do have a perspective which I think would be useful for you (and perhaps them) to consider.

The present charges should never have been presented in court. The fact that they have points to systemic problems in the Victoria Police Service and in the Office of the Director of Public Prosecutions. I in no way cast aspersions on the prosecutor Mark Gibson QC who conducted himself honourably and with measured restraint throughout the trial. Once you are acquitted, people like me will need to offer a strong critique of these institutions.

There is no way that a jury rightly instructed could be convinced beyond reasonable doubt of your guilt on these charges which are so improbable as to verge on the impossible. A jury attentive only to the evidence should be able to reach a unanimous finding of not guilty on these charges, and very promptly.

The best surmise seems to be that the jury was locked 10–2 with ten favoring a verdict of not guilty and two holding out. Those holding out could not have been acting only on the evidence. They must have harboured some deep resentment against you and/or the Catholic Church. Chances are that any future jury will include one or two such members. Statistically of course, there is every probability that at least one juror will have been sexually abused as a child, whether at home or in an institutional setting.

You will recall that when Lionel Murphy was tried before a judge and jury many of his critics (but also some citizens simply concerned to maintain the standing of the High Court) were upset that he did not give evidence subjecting himself to cross-examination. The thinking of some of these people was: he is an intelligent man; he is a resourceful individual; he has good legal advice; if he didn’t do it, surely he could just get in the witness box and tell us so.

I have no doubt that your experienced counsel and solicitor had good reasons in the first trial for not calling you to give evidence. But I think you must give evidence in the second trial. Let me explain why.

The one or two recalcitrant jurors will be adamant with their colleagues that the church is well resourced and has hidden things for too long. The complainant may be speaking gibberish when it comes to details about the allegations but these one or two jurors will taunt their colleagues, “At least the complainant had the courage to give evidence and be willing to subject himself to many hours of prying cross-examination by Richter. Meanwhile why wasn’t Pell prepared to subject himself to the same treatment, particularly when you consider that Gibson is so much more restrained that Richter?”

Also once the suppression orders are lifted and ABC/Fairfax go to town, it will be essential in the wake of the first trial with a hung jury that you be seen to have done all you possibly can to clear your name and to demonstrate the outrageous absurdity of the charges.

To my surprise, the Cardinal did not give evidence. After his convictions by the second jury, he wrote in his Prison Journal:[iii]

Frank Brennan was always keen for me to be in the box, especially after the hung jury decision. Eventually I decided I should give evidence, despite the entire legal team and my own advisers being opposed. Terry Tobin came around to my point of view. I only decided not to take the stand after the prosecutor had dealt with Charlie Portelli and especially Max Potter. I was so cross with the treatment they both received, I was frightened that my hostility might turn a majority for acquittal into a split decision. The basis of my reasoning was quite wrong.

After his eventual unanimous acquittal by the High Court of Australia, Pell wrote to me on St Patrick’s Day 2021 in response to my article “Where Has Cardinal Pell’s Case Brought Us in the Australian Church?”, published in Irish Studies,[iv] saying:

Thanks for the kind note, and the splendid article.

Despite your admitting to a small number of neo-Protestant views (with alas, the potential for others), on my issue you have been consistently just, insightful, and courageous. I owe you a lot, but the long-term health of Australian public life has also been strengthened by your writings. Please God, with the further passing of the years you will lapse closer to full orthodoxy and continue to deploy your considerable skills even more effectively for the Holy Mother Church the Society of Jesus serves. (We all have our secret ambitions). 

He concluded, “Thanks again for all your hard work and congratulations on the justice and insight of your judgments. In the Lord, +CGP.”

Cardinal Pell made a very gracious speech of thanks to me at a dinner held in Canberra on August 18, 2022. We last saw each other when we were each presenting at a conference held in Rome in December 2022 , “Catholic Schools and Religious Liberty: A Global Perspective”. In his speech he repeatedly referred to Victoria as Danistan. At the end of the conference, we attended the opening of the new Rome campus of the Australian Catholic University. When Pell died on January 10 this year, I declined all media interview requests as I did not want to contribute to a public perception that it was his treatment by the Victorian criminal justice system that defined him. I was finally convinced to write his obituary for the Tablet when the editor wrote to me saying, “I think precisely because of your courage in championing his cause when it was deeply unpopular you could write about him in the round without being written off as a blind demoniser or canoniser.” George Cardinal Pell and I maintained our differences. But, through adversity, we became friends. Just as he was a strong supporter of Pope John Paul II, so too I am a strong supporter of Pope Francis. I dare to suggest that each of them has been a pope for his times—our times of change, not just an era of change but a change of era, as Francis is fond of saying.


The trials and appeals of George Pell

Cardinal Pell was the subject of a long-running and well-resourced police operation, which bore all the hallmarks of a sting, and which culminated in the cardinal ultimately facing trial on five charges of child sexual abuse. The complainant J alleged that he and his companion M who were choristers at St Patrick’s Cathedral in Melbourne were assaulted by Pell in the sacristy immediately after the 11 a.m. solemn mass concluded on the third or fourth Sunday of Advent in 1996. These were the first four charges. J further alleged that Pell had assaulted him again in the crowded sacristy corridor after mass on February 23, 1997, when servers and choristers were recessing after mass together with Father Brendan Egan who celebrated the mass. This was the fifth charge.

The jury in the first trial could not agree. After conviction on all five charges by a second jury in December 2018, Pell appealed to the Court of Appeal of the Supreme Court of Victoria. The state’s two most senior judges, Chief Justice Ferguson and President Maxwell, dismissed the appeal. In dissent, Justice Weinberg, the most experienced criminal appellate judge in the country, considered that in the light of the unchallenged evidence of the witnesses who gave testimony about the ritual and routine of a solemn mass in the cathedral, “the odds against [J’s] account of how the abuse had occurred , would have to be substantial”.[v] As to the fifth charge, Weinberg plainly regarded it as risible in its implausibility.

Obtaining leave to appeal to the High Court of Australia is always difficult, but Pell was granted leave. All seven judges sat. They unanimously upheld his appeal, ordering that each of the convictions be quashed and judgments of acquittal be entered in their place. The High Court held that no jury, properly instructed and acting reasonably, could have convicted Pell of these offences.

In addition to J, the prosecution had at the trial called twenty-two other witnesses. Some had been choristers. Monsignor Charles Portelli, the long-time cathedral MC was a witness, so too Max Potter, aged eighty-four, who had been sacristan for thirty-eight years. Initially the prosecution was not minded to call any altar servers as witnesses even though altar servers were the ones who would be in the sacristy, coming and going, at the time of any alleged offending. The defence was able to provide the prosecution with the names of two altar servers who gave detailed evidence about the activity in the sacristy immediately after mass.

In the second trial, the prosecutor told the jury that the Crown case in relation to the first four offences would “have occurred when Archbishop Pell must have come upon the boys fairly soon after the end of mass, not fifteen or twenty minutes after mass”.[vi] There were three problems with this. First, the complainant J had changed his story several times about the route he and his companion had followed to reach the sacristy. On the final account he proffered the jury, they would have reached the sacristy about six minutes after the procession had set off from the sanctuary at the end of mass, and a couple of minutes after the servers leading the procession had arrived, and not before. So there was no time for them to be alone together prior to Pell’s arrival, ferreting for wine and swigging it, as J had alleged. Second, for the duration of any alleged offending, the altar servers would have been coming and going, bringing the sacred vessels from the sanctuary. Third, there was no way that Pell could have come across the boys “fairly soon after the end of mass” as Pell would still have been on the steps of the main entrance to the Cathedral greeting his new parishioners, this being his first or second solemn 11 a.m. Sunday mass as archbishop.

The High Court saw no need to consider many other unlikely matters raised in J’s testimony. All seven judges wrote: “It remains that the evidence of witnesses, whose honesty was not in question, (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests’ sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests’ sacristy for ten to fifteen minutes after the altar servers completed their bows to the crucifix.”[vii]

The High Court decided that the “compounding improbabilities caused” by this unchallenged evidence “required the jury, acting rationally, to have entertained a doubt” as to Pell’s guilt.[viii] The jury was not acting rationally when they convicted Pell of these offences. The subsequent reasoning of Victoria’s two most senior judges entrenched the jury’s irrationality when they upheld the jury’s convictions.

It was only during the second trial that the elderly Max Potter spoke of the private prayer time of up to six minutes which he, as sacristan, would allow to the congregation before commencing the clearing of the sanctuary. The prosecution and the two erring Victorian judges tried to suggest that it was during these six minutes that the offending would have occurred. They overlooked the fact that J, having initially spoken only of a short internal route, had ultimately postulated a route outside the Cathedral of over 400 steps which would have taken five to six minutes for him and his companion to reach the sacristy. There was no time left for the alleged six minutes of offending. The High Court put the Victorian Court of Appeal’s blunder in these terms:

The principal difficulty with the Court of Appeal majority’s analysis is that it elides Potter’s estimate of five to six minutes of private prayer time with the estimate of five to six minutes during which A and B re-entered the Cathedral, made their way into the priests’ sacristy and were assaulted. The two periods are distinct.[ix]

There was just no time when Pell and the two boys could have been alone together in the sacristy “fairly soon after the end of mass” as the prosecutor had put the case to the jury.

The fifth charge was absurd. The police never interviewed anyone other than the complainant about this alleged offence. The police never even spoke to Brendan Egan who was alleged to be just in front of Pell before Pell broke from the procession making his way through the throng of servers and choristers to assault the complainant. Chief Justice Ferguson and President Maxwell accepted that the assault was proved beyond reasonable doubt with this observation: “[A] fleeting physical encounter of the kind described by [J] can be readily imagined. Jurors would know from common experience that confined spaces facilitate furtive sexual touching, even when others are in the same space. And the act of squeezing the genitals is, itself, unremarkable as a form of sexual assault.”[x] They said: “We would accept, of course, that the sight of Cardinal Pell at close quarters with a choirboy might well have attracted attention but we would assume—as did cross-examining counsel—that all of the others in the corridor were intent on completing the procession, and removing their ceremonial robes, as soon as possible. In that state of affairs, it seems to us to be quite possible that this brief encounter was not noticed. At all events, the evidence once again falls well short of establishing impossibility.”[xi] So much for the prosecution having to prove the case beyond reasonable doubt. Now it was a matter of an accused person having to establish impossibility.

This was altogether too much for the seven High Court judges, who observed:

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 thirteen-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.[xii]

The fifth charge, like the thirteenth stroke of a clock, was the key to the fantastic mind of J, the shoddiness of the police investigation, the dogged persistence of the Director of Public Prosecutions to prosecute any charge no matter how weak and uninvestigated, and the bewildering thinking of the two most senior Victorian judges.

These five charges were the only charges ever put to a jury in relation to Cardinal Pell. His many critics have failed to produce even a theory, let alone any cogent evidence, as to how he and two choristers could end up in the sacristy alone together “fairly soon after the end of mass, not fifteen or twenty minutes after mass”, for six minutes of offending to occur after the two choristers have processed for six minutes at the end of mass, when the altar servers will be coming and going in the sacristy “for ten to fifteen minutes after the altar servers completed their bows to the crucifix” and when the concelebrating priests would “remain for the next ten minutes or so”[xiii].  

How could such preposterous charges be brought in 2018? How could the Director of Public Prosecutions decide to proceed with an indictment on such implausible charges? We need to go back to the setting up of the Catholic Church’s “Melbourne Response” in 1996, and the Victorian Parliament’s 2012 inquiry into the handling of child abuse by religious and other organisations. It provides the context for the admission by police superintendent Paul Sheridan at the committal hearing that one could be excused for thinking that Operation Tethering was nothing less than a “Get Pell” exercise.[xiv]

When Pell became Archbishop of Melbourne in 1996, he set up the Melbourne Response to deal with cases of child sexual abuse by church personnel in the archdiocese. The protocol was finalised in close co-operation with Victoria Police and with the approval of the Victorian Solicitor-General. The protocol was amended and refined over time with police co-operation. Pell left Melbourne in 2001 to become Archbishop of Sydney.

Ten years after Pell had left Melbourne, the state government, police and church actors who had signed off on the Melbourne Response had all moved on. There was a growing public awareness of the problem of child sexual abuse in institutions. In Victoria there were a few priests by then known to be notorious paedophiles who had violated many, many children. Two institutions were at fault, failing to act on information previously available to them—Victoria Police and the Catholic Church. Victoria Police decided that attack was the best form of defence. On September 29, 2011, Deputy Police Commissioner Graham Ashton sent a letter to the Church, stating that police could no longer publicly support a new protocol which had been developed with the Church. The Victorian Parliament announced an inquiry into abuse on April 17, 2012. Ashton gave appalling testimony on October 19, 2012, suggesting that forty-three suicides were traceable to clerical abuse. There was evidence of only one possible suicide related to such abuse.[xv]

On March 5, 2013, Victoria Police set up “Operation Tethering”. This was the beginning of the sting operation. A Victoria Police document of the time stated, “This investigation was initiated as a result of a combination of reported activities of inappropriate behaviour permitted by Pell dating back to the 1960s.”[xvi] Note, there was no suggestion of inappropriate behaviour by Pell. More recently, Victoria Police have stated: “Operation Tethering was set up to investigate possible unreported crimes committed by Cardinal George Pell.”[xvii] It is very rare for a police force to set up such an investigation into a person when no complaints have been received.

In its final report published on November 13, 2013, the parliamentary committee unanimously observed:

It is clear that Victoria Police paid inadequate attention to the fundamental problems of the Melbourne Response arrangements until relatively recently in April 2012 and that, when they did become the subject of public attention, Victoria Police representatives endeavoured quite unfairly to distance the organisation from them.[xviii]

Victoria Police had been less than candid.

Meanwhile Operation Tethering did not uncover a single complaint against Pell for more than a year. The first complaint on March 24, 2014, came from a man who had just been released from a psychiatric hospital. It turned out that his complaint related to the serial paedophile Gerald Ridsdale, and not Pell. Before the Ballarat hearings of the Royal Commission into Institutional Responses to Child Sexual Abuse in May 2015, Operation Tethering had not received a single complaint in relation to Pell. Then in June 2015, the complainant J came forward and made a statement. It transpired he had been in touch with Broken Rites’ Bernard Barrett. In the following month, two complainants named Dignan and Monument came forward from Ballarat alleging that Pell had sexually assaulted them many years before when they had been playing in a swimming pool.

On Christmas Eve 2015, the Age newspaper devoted its whole front page to a story titled “St Patrick’s Centre of Police Inquiry”. The sting operation went into full swing. The SANO Taskforce which investigates child sexual offences appealed for information “about sexual assaults at St Patrick’s Cathedral between 1996 and 2001”, the years that Pell was archbishop. Thereafter SANO officers interviewed many choristers from the time when J was in the St Patrick’s choir. They never interviewed a single altar server, even though J’s allegation was that Pell’s offending occurred in the sacristy which altar servers would frequent and which was out of bounds to choristers. Presumably, the SANO officers suspected that other choristers would have complaints against Pell too. But they turned up nothing.

In March 2018, a committal hearing was held on various matters. Pell was committed for trial on the five St Patrick’s Cathedral charges and on three other charges relating to the swimming pool in Ballarat. Seven other charges were withdrawn, and the magistrate discharged Pell on nine other charges, revealing just how broad and thin was the sting operation. The bringing of all twenty-six charges attracted great media publicity and brought great harm to the cardinal’s reputation, especially in Ballarat. In relation to the St Patrick’s charges, the committing magistrate observed: “There was a preponderance of evidence that the archbishop spent time speaking with the congregants on the steps prior to returning to the sacristy. If a jury accepted the evidence of Monsignor Portelli and Mr Potter that the archbishop was never in the sacristy robed and alone, and that choirboys could never access the sacristy keys because they were always locked when unused, then a jury could not convict.’[xix] She went ahead and committed Pell for trial, observing: “The jury has the fundamental function of weighing the evidence and the unfettered ability to accept or reject it. A committing magistrate may not exert that fundamental role.”[xx]

The DPP was keen to proceed first with the Ballarat case, presumably because some of those complainants had gone public and journalists like Louise Milligan had publicised their cases. J did not want any publicity. It was Pell’s lawyers who insisted that the cathedral case be heard first. Meanwhile the Ballarat case fell apart completely when the DPP failed to convince the trial judge that there was admissible tendency evidence and evidence of similar facts. The judge observed: “It is one thing to strengthen or reinforce individual complaints through the lens of the collective weight of the complaints, it is quite another to seek to cure fundamental defects and weaknesses or to change or obscure a complaint’s essential character. The tendency and coincidence applications seek to do the latter here. There is a limit to what can be saved.”[xxi]

A five-year Operation Tethering including a 2015 Christmas Eve advertising onslaught against the cardinal had turned up nothing further to J’s complaint. The prosecutor was clearly frustrated and tested to the limits during the trials. At both trials he wrongly suggested to the jury that Portelli immediately at the end of mass might have left Pell alone while he ducked out for a cigarette. In the first trial, the defence quite properly objected and so in the presence of the jury the prosecutor had to withdraw. In the second trial, it was even worse. This was the exchange between the prosecutor and Portelli:[xxii]

Monsignor, might you have also, might another occasion have been to go out and have a smoke outside?

Not at all.

You said you were a twenty cigarettes a day man, mass has been for over an hour, you didn’t go outside to have a smoke after mass?

It would be as appropriate as for instance His Honour walking down William Street dressed as he is smoking a cigarette, which is not done.

In his final address to the jury this second time, the prosecutor said:

It’s an argument of mine. You might dismiss it of course if you don’t like it, and there’s no evidence from Monsignor Portelli that he went off and smoked when he got to that doorway, I put to him, and he said, no, he didn’t when he got to that doorway [indistinct] smoke. It is a matter for you, it’s an argument from me, as to whether at that moment, and he said having been MC for Archbishop Pell during the mass, processed back at that point whether he went off and had a cigarette. It’s simply a submission I make. There’s no evidence of it because he denied it.[xxiii]

This was an experienced prosecutor who was having to establish guilt beyond reasonable doubt. Needless to say, the defence once again objected and he had to withdraw. That was the moment at which I realised the prosecution could not cobble together a case that made any sense.

Another time, the prosecutor told the jury that the altar servers might have adjourned to a room other than the priests’ sacristy after mass for six minutes or more allowing the opportunity for the offending to occur. There was no evidence of this. The altar servers denied it. By the time the appeal got to the High Court, the DPP appearing in person was asked: “On the evidence, once the altar servers bowed to the crucifix, on their account where did they go?” The DPP claimed there was evidence that the servers went to the “worker sacristy”. She was asked, “Is this going back to the position that the prosecution disavowed at trial?” With the prosecutor Gibson sitting beside her, the DPP Kerri Judd threw him under the bus, responding: “He incorrectly disavowed that there was no evidence, he was very generous in that.”[xxiv] In their judgment, all seven High Court judges observed:

The respondent [prosecutor] also submitted that “[t]he altar servers would have then left the Sacristy—either for the workers’ room, where they disrobed, or for the sanctuary to assist Potter”. The submission comes close to repeating the submission which the prosecutor withdrew at the trial. There was no evidence that the altar servers went to their room to disrobe prior to returning to the sanctuary in order to assist in clearing away the sacred vessels and other objects. Nor is there an evidentiary foundation for the conclusion that there was a hiatus between the time when the altar servers completed their bows to the crucifix and the clearing of the sanctuary.[xxv]

The desperation of the DPP was palpable. The charges should never have been brought. The DPP should never have proceeded with an indictment. The Victorian Court of Appeal applying the law should have concluded that “the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt”[xxvi].

Imagine if the Victorian government were ever to institute an inquiry into this travesty of justice along the lines of the Sofronoff Board of Inquiry into the Criminal Justice System in the ACT.

The case against Pell was nothing more than an appalling police sting operation protracted by grossly erroneous judicial reasoning by Victoria’s two most senior judges. Thankfully, his prison journals revealed a Christian who was able to find grace in the midst of adversity and profound injustice.

Fr Frank Brennan SJ AO is the author of Observations on the Pell Proceedings, Connor Court, 2021 (two editions).


[i] Damien Freeman, Roddy’s Folly: R P Meagher QC: art lover and lawyer, Connor Court, 2011, p. 202.

[ii] Ibid.

[iii] George Pell, Prison Journal, Volume 1, p. 64.

[iv] Studies, volume 110, number 437, pp.36-51.

[v] Pell v The Queen [2019] VSCA 186 at [1064].

[vi] Director of Public Prosecutions v. George Pell, Transcript, County Court of Victoria, 3 December 2018, p. 1351.

[vii] Pell v The Queen (2020) 268 CLR 123 at p. 164.

[viii] Ibid.

[ix] Ibid. p. 163.

[x] Pell v The Queen [2019] VSCA 186 at [112].

[xi] Ibid, [339].

[xii] Pell v The Queen (2020) 268 CLR 123 at p. 165.

[xiii] Ibid, p. 157.

[xiv] This was the exchange between Sheridan and Robert Richter QC at the committal:

Yes, and the Operation Tethering, that wasn’t a “get Pell’ operation, was it?—Well, Op Tethering was, as I understand it, commenced as an intel probe around what offences the cardinal may have committed.

Yes?—So it depends how you want to term it, but I guess you could term it the way you did, but I would [not] term it that way. (The Police v. George Pell, Transcript, 28 March 2018, p. 1449).

[xv] Victorian Parliament, Family and Community Development Committee: Inquiry into the handling of child abuse by religious and other organisations, Transcript, 19 October 2012, p.8.

[xvi] A quote from the Interpose Log, put to Detective Senior Constable David Rae by Robert Richter QC, The Police v. George Pell, Transcript, 28 March 2018, p. 1553.

[xvii] Letter of Solicitors for Superintendent Paul Sheridan, 16 November 2022. Sheridan flew to Rome for the record of interview with Cardinal Pell. He was a very experienced officer but was later the subject of adverse comment by IBAC (the Independent Broad-Based Anti-Corruption Commission) as well as the “Lawyer X’ Royal Commission. See

[xviii] Betrayal of Trust:Inquiry Into The Handling of Child Abuse by Religious and Other Non-Government Organisations, Final Report, Volume 1, November 2013, p.25

[xix] The Police v. George Pell, Transcript, 1 May 2018, pp. 1786-7.

[xx] Ibid, p.1787.

[xxi] Director of Public Prosecutions v George Pell (Evidential Ruling No 1) [2019] VCC 149 at p.31.

[xxii] Director of Public Prosecutions v George Pell, Transcript, 20 November 2018, p. 591.

[xxiii]Ibid, p. 1374 (3 December 2018).

[xxiv] Pell v The Queen [2020] HCATrans 27 (12 March 2020), p.60.

[xxv] Pell v The Queen (2020) 268 CLR 123 at p. 164.

[xxvi] Ibid, p. 147.

29 thoughts on “Cardinal Pell at the Hands of the Victorian Justice System

  • christopher.coney says:

    Perhaps one day somebody will pen a reflection and critique of the conduct of the County Court judge in the second Pell trial, Judge Kidd.
    An important job of jury trial judges is to reflect on the evidence of both sides after it has been presented. It is quite open to the judge in thus charging the jury to comment on the plausibility of arguments and the significance of evidence. In my opinion, the charge that Kidd made was a common or garden variety charge along the lines of ‘the prosecution argues A’ but ‘the defendant argues B’. There is little or nothing in the charge to highlight to the jury the extreme weakness of the prosecution case.
    If this is right, it is not only the police, the DPP, the media and the Supreme Court appeal majority who should be criticised, but also Judge Kidd.

    • colin_jory says:

      Christopher, Kidd had no choice. Section 164(4) of the Victorian “Evidence Act 2008” decrees that a judge when instructing a jury may not “warn the jury that it is dangerous to act on uncorroborated evidence “, or “give a direction relating to the absence of corroboration”. Such legislative restrictions placed on judges have become extremely common in Australia and elsewhere under the pressure of the feminists. They are intended to leave juries with limitless leeway to ignore exculpatory evidence in sexual assault cases; to rely exclusively or to any degree which suits them on the “demeanour” of accusers; and to interpret the phrase “beyond reasonable doubt” to mean “emotionally satisfying to me”. The second Pell jury clearly appreciated fully that under Victorian law they had this leeway, and it gave them their excuse for reaching their absurd, utterly dishonest verdict.

      • guilfoyle says:

        I’m sorry, I do not share your regard for Ridd DCJ. A suppression order had been granted – I believe, on the application of the prosecution, presumably exploiting the rules of evidence designed to protect vulnerable children. In a case in which the evidence was as weak as that against his Eminence, suppression of media scrutiny was helpful. In these circumstances, knowing that the public were uninformed as to the nature of the evidence (& indeed, misinformed by such luminaries as Louise Milligan and her champions at the ABC and Sydney Morning Herald), the trial judge chose to indulge in a vitriolic diatribe against the good cardinal. In a manner I personally have never seen by any trial judge, this judge, in full view of cameras, after suppression of the risible weaknesses of the case, indulged in calling his eminence arrogant, acting as though he had been plausibly convicted on a strong case and called him names which, quite frankly, were disgusting. This was not an accident. It was not something he was bound to do by feminist activists – he chose to posture and limelight. Those who sought to aggrandise themselves by trumpeting virtue in regard to what was obviously, to any criminal lawyer, a travesty, should compare themselves to the cardinal and be ashamed.

        • christopher.coney says:

          You’ve hit the nail right on the head there Guilfoyle.
          The harsh statements made by the judge were gratuitous and, I am sorry to say, for the cameras and the evening news.
          He could have punished Pell, as he was bound to do, without the embellishments he chose to add.
          Apart from the advocates and High Court members, Weinberg was the only jurist who emerged from this disgraceful farce with his reputation intact; indeed, it was enhanced because he staunchly ignored the baying mob.

      • christopher.coney says:

        Colin, you are not quite right in what you say about the Evidence Act.
        A capable judge would be able to comply with these newish provisions of the Act but still reflect upon the arguments made by each side and the evidence in the case in such a way as to make abundantly clear that the case of the prosecution was extremely weak.

  • Alistair says:

    I think its obvious that there is something very wrong going on in Australia judicial process when you simply compare the different Police/DDP responses in the Pell wrt Gillard/Wilson cases or with the Lehrmann wrt Shorten cases. It strikes me that if anyone wants “fair treatment” in Australia he could do a lot worse than change his gender and join the Labor Party. Perhaps a stat. dec and become an Aborigine would be helpful too?

    On the other hand with respect to Fr Brennan and his support of Pope Francis, ( a pope for his time?) I wonder at what point God realised what a terrible faux pas He had made when He levelled Sodom and Gomorrah, and decided that His Catholic church should welcome them in instead – while excluding those intolerant Christians who still have harbour doubts? I suppose we all need a God for our times too, and His theology too has to keep up with the changes in the Catholic Church?

  • Peter OBrien says:

    Thank you, Father Brennan, for a succinct summation of this scandal.
    If I am not mistaken, this is the same DPP (Judd) who declined to prosecute in the Lawyer X case on the grounds that a conviction was unlikely.
    On that matter, I made the following comment in the Australian:
    “PP Kerry Judd’s contention that charges will not be laid because a prosecution is unlikely, might be applicable to an obscure personal crime, such as a break and enter or a drug deal. But it does not cut the mustard with a high profile case such as this which involves systemic public corruption. Justice must be seen to be done.”
    For some reason that comment was rejected.
    As to the Pell charges, over and above the time and space implausibilities, I always found it impossible to believe that a very senior and ambitious clergyman would have been so rash and lustful that he would risk everything by such extremely risky behaviour, (particularly at a stage in life when we might assume his libido had been somewhat diminished by age) without evidence of such wanton carelessness emerging in his earlier life. It just did not fit the man.

  • Ceres says:

    Thank you Father Frank for reminding of this terrible injustice which I remember only too well.
    Andrew Bolt was a fierce defender of Cardinal Pell and kudos to Bolt for being (I think) the only one to get a camera crew to retrace and time, the movements of the choir procession outside the cathedral and then back inside. Remember watching it and agreeing the footage proved the charges were totally implausible and ridiculous. Yet another shocking injustice in the State of Danistan.

  • Peter OBrien says:

    Back to Judd and Lawyer X, as Gerard Henderson points out in this Weekend Australian, the Special Investigator of the Lawyer X scandal was former High Court Justice Geoffrey Nettle, who was one of the full panel of the High Court which exonerated Cardinal Pell and, in doing so, embarrassed (to say the least) Judd. A bit of payback on top of keeping sweet with Chairman Dan?

    • Lewis P Buckingham says:

      Its ironic that the ‘efflux of time’ and no brief of evidence, other than the uncorroborated word of ‘The Kid’, meant George Pell was swiftly charged and ended up in prison after prosecution, yet in Lawyer X the ‘efflux of time’ and a thick brief of evidence, means this cannot happen, because its not worth testing.
      In the meanwhile the taxpayers cop the bill and the prosecuted appeal to the high court and are released back into the community.
      One must wonder why the powers that presently be, can make such disparate decisions.

  • Trevor Bailey says:

    In NSW, I learned of Cardinal Pell’s guilty verdict the same day I read a summary of the evidence written for the Australian by Father Brennan. It was clear an injustice had been done. I maintained that belief up to and during the ‘trial’ of sorts I came myself to face in early March 2021 when I started chemotherapy for a CNS lymphoma. The wiry stand holding flasks of intravenous medicines I named (dissenting judge of appeal) ‘Justice Weinberg’; the brain tumour, ‘Chairman Dan’. A lawyer friend said the match-up bore the hallmarks of a fix.

  • Brian Boru says:

    Thank you Frank Brennan for recording this travesty of Victorian justice. I appreciate the great effort you have put into the matter from the start to now.
    I must say that the level of contempt that I hold for Ferguson and Maxwell has been offset by you relating the contacts between yourself and George. My spirits were lifted to read of your selfless volunteering in aid of someone who was not known as one of your greatest supporters. Also the reverse in the manner George accepted and respected that assistance and how you both interacted.
    This matter in addition to the Gobbo disgrace brands Victoria as a place of legal corruption. It is amazing that the Victorian legal fraternity have been hard to hear about this. I suppose they have their careers to think of and what’s a little corruption here and there.
    I finish by quoting from the High Court as to the ethics of Victoria Senior Police. I am keen to say though that I am grateful for the overwhelming number of honest police who battle on protecting us despite the depravity of their leaders.
    ” Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging (Gobbo) to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will.”

  • Sydgal says:

    I think I have read that the jury and the appeal judges visited St Patrick’s Cathedral on a weekday rather than a Solemn Mass on a busy Sunday. Did the jury fully understand mass protocols, the difference between, for eg, the sanctuary and sacristy; the special duties of Monsignor Portelli and Max Potter (The Sacristan); and the protocols of the altar servers when they reached the sacristy at the end of the long procession? Perhaps the moving animation which was not permitted to be shown might have assisted. Would politicians and senior members of the legal fraternity have reflected on some of these matters when attending high profile funerals of B Newton, J Gobbo, K Kitching held in the Cathedral in recent years?

    Why didn’t the police investigators time the external procession? And follow-up with the con-celebrant priests, the women who worked in the cathedral office space nearby, and the parishioners who took up the money collections and would have brought the donations to a secure location? It certainly would have been a “hive of activity” for a new Archbishop in a newly renovated Cathedral.

    And as per Keith Windschuttle’s book, there was an issue with Witness J saying he found the wine in a storage kitchenette (immediately to the left of the door) which had not been built in 1996. This issue was also evident in the Rome interview in the public domain (where the police officer reads out the complainant information) and in the High Court 12 March 2020 video.

    In relation to the conduct of matters after the suppression order was lifted, it was disappointing to see the number of high profile protesters shouting and yelling outside the Melbourne Court, with professional artworks of Cardinal Pell depicted as the Devil, Prisoner 666, Justice for Witness J etc displayed by the CLAN victims advocate group.

    Also disappointing that on the day of Cardinal Pell’s death, the Shine Law firm progressing the civil claim on behalf of the father of the deceased choirboy issued a statement which was reported in the media that the civil claim would proceed. However, Shine referred to the choirboy as an “altar boy” and said that boy had alleged CSA by Cardinal Pell (which he had not).

    There are some academic papers now being published in Australian Law journals on the Pell trials, but perhaps some of the authors are not fully aware of some of the important details in the case. A response to one forthcoming paper is here:

  • STD says:

    Cardinal Pell at the hand’s of left wing social justice in the Victorian legal system.
    150 papers by Chris S Friel at relating to the sad saga of Cardinal Pell.
    Behind the scenes Chris identifies the Marxist agenda behind all of this- Radical
    feminism – Shine Law – Waller – Gillard – many, many other player’s that include media identities such as Louise Milligan – David Marr – twitter transcripts ect.
    It is well worth the time and effort to extract all of this, as it gives light to the knowledge of the deviousness and duplicity that are the DNA hallmarks of the left and the leftist media and the length and breadth of their influence and the single minded focus and application these scum possess in the execution of the will of Karl Marx.
    It is very heavy reading, but worth the effort. Some of the footnoting reveals truths not present in the main body of this work- especially the social media interactions of the Pell protagonists
    Although I am no fan of Father Brennan. In his Psalter Chris does give due credit without political overtures to the Lawyer in this man.
    I do harbour suspicions as to Chris’ possible political allegiance ,however I feel this actually brings greater gravitas to this body of work and exemplifies the honest character of this man, as it relates to this legal investigation and the proper search for Justice.
    Maybe a case could be made and constructed against the influence of the players from the political left in all of this. Father Brennan could build the case and Peter O’Brien could throw the book at them in Bruce Pascoe Style- The Dark Dark emu of the political left when it comes to inequitable Social Justice. – the illusionary tale of the Marxist left affiliations – ALP – Green – Alliance .
    To wrap up the political upshot of all of this is that the fake and false discrediting of Cardinal Pell paved the way for the political credibility that gave birth to Now legalised Euthanasia, late term Abortion as well as the diabolical idea and equitable notion of Homosexuality now instituted into a Christian ‘good’, by plagiarising marriage on altar of the principality of leftist equality .
    I believe that Justice Kidd, Maxwell and Ferguson’s career prospects would in deed have been bleak had justice and truth taken a different course.

    • Paul.Harrison says:

      I like your mention of ‘legalised euthanasia’ and ‘late-term abortion’. The astounding evil of those practices bring me to despair for us, as individuals first, and as a nation secondly. The two atrocities I speak of here, I use the terms, ‘killing of the confused elderly’ and ‘murder of the innocent unborn’. They seem to bear nothing with the Pell case, but they are importantly linked in that the deliberate miscarriages’ of justice are blatantly obvious.

    • Maryse Usher says:

      You’ve nailed it, STD, this travesty of justice can only be understood if you are able to look at it as a spiritual battle between the Devil and his cronies and the Catholic Church, particularly Catholic teaching about contraception, abortion and euthanasia. Pell was a fearless defender of orthodoxy, and so he had to be severely punished for heading up the first organised Catholic system of compensation and counselling for those who were historically abused by priests and brothers. Liberals go into a rage if the enemy admits guilt, apologises for the injuries and attempts to facilitate healing and compensation.
      Kidd’s gratuitous, vicious diatribe masquerading as the judge’s measured comments after the guilty verdict showed him up as one of the hyena pack tearing an innocent man to pieces. I don’t believe he can be excused for not reminding the jury to examine the precept of reasonable doubt in the case, but he was certainly legally absolved of what used to be a plank in the justice system with as much weight as the axiom, “Innocent until proven guilty”.
      How corrupt must our judiciary and police become before we must admit that Australia is no longer a free society for those who hold traditional natural law values?
      The entire persecution of Cardinal Pell is a terrifying indictment of Victoria’s Police and Court system – unless you are jubilantly on the side of the Alinskyites running the whole show. Their cronies in the ABC inflame and manipulate the evils, too, but we can with great relief ignore most of it.
      Thank God for Mark Weinburg and the High Court, which perhaps just may have been eagerly waiting for the opportunity to lob a grenade at its not-so-learned friends in Victoria.
      I can’t help but wonder who is more in God’s favour at the moment: Fr Frank Brennan, for defending an orthodox priest or Cardinal Pell, who left a very harsh and predictably leaked criticism of Pope Francis as his last testament. Fr Brennan can’t be that much of a leftie, after all, and I’ve never seen any public excoriation of the Pope from him, either.

  • Tony Tea says:

    Is there any chance of an inquiry into this farce?
    (I wonder whether the cops pinged the church to cover for their shenanigans in helping deviate priests escape justice. If so, it failed. Thanks to John Silvester, that kind of behaviour has been given the light of day.)

  • Michael Waugh says:

    It is difficult not to feel contempt for Ferguson, Maxwell, and Andrews (for his later post-High Court comments), but I don’t think the trial judge can be criticised. I cannot recall his charge or his evidential rulings being attacked on appeal, and he did not have the power to withdraw it from the jury or direct an acquittal because there was SOME evidence, namely, that of witness J. I’ve not read the charge, but Richter was there and he would not be slow in pointing out inadequacies in a charge.
    I join the others in thanking you Fr Brennan for your hard work and skill in advertising this greatest scandal in Australia’s legal history : our own Captain Alfred Dreyfus scandal. Thank God for the High Court, of course, and for wonderful jurists like Robert Richter and Mark Weinberg.
    But the scandal reveals a deep moral corruption or intellectual corruption : a refusal to be truthful, and a condoning of persecution of political enemies. It is coming solely or largely from those who self-regardingly call themselves “left” or “progressive”. Cardinal Pell is not the only priest who has been dishonestly targeted : Archbishop Wilson and Fr Tyrell are other examples. Criminal lawyers have told me that if you wear a collar and face a charge of sexual assault, you might as well plead guilty. There seems to be a public brain-washing undermining the rule of law, and it takes many forms but with an underlying theme of weaponising problems or issues for ulterior and improper purposes : so child sexual abuse is weaponised against the Catholic Church or other religious institutions despite it being very obviously a society-wide problem, the Higgins/Lehrmann saga being weaponised against the Liberal government, the 2020/21 bushfires being blamed on the Liberal government, those opposed to a constitutional change being called racists etc..
    The worry is not that some people who are pleased to label themselves “left” are deranged or liars, but that they are not generally recognised as deranged or liars.

  • Sydgal says:

    In his Prison Journal Volume 3, Cardinal Pell writes about how in February 2020, whilst he was in Barwon Prison, a friend sent him copies of Chris Friel’s articles. Cardinal Pell said he had high regard for Friel’s intervention from the other side of the world, referring to the section on compounding improbabilities as the most developed he had read – he considered that Friel’s contribution was like having another QC on the job. In March 2020, he wrote that his brother sent him Friel’s article “If the Wardrobe Does Not Fit the Jury Must Acquit, Pell wanted his legal team to read it and tell him what was wrong with it. The lawyers who visited said another had read and mastered Friel’s material that was relevant.

    The exhibits and transcripts on the website of the Board of Inquiry into the ACT Criminal Justice System (DPP, AFP and Victims of Crime Commissioner in Higgins/Lehrmann) give the public an insight into the tensions during that police investigation – it was revealed that the DPP had read the counselling notes, not the defence, and the inconsistencies in evidence had not been disclosed to the defence. Will there ever be a similar inquiry into Cardinal Pell’s case?

    Milligan’s book Witness, also had an interesting chapter entitled “The Secret Hearing” where she outlines the fight over her confidential sources in June 2018. In July a Crown Solicitor advised that the Prosecution had decided that there were good forensic reasons for the Cathedral Trial to go first. Milligan’s legal team lodged a submission about the importance of journalist privilege which was considered by Justice Kidd.

    In relation to the above comment “Criminal lawyers have told me that if you wear a collar and face a charge of sexual assault, you might as well plead guilty”, could that have been the case for some other priests who did not have the resources to go to trial?

  • Michael Waugh says:

    The propaganda of the mainstream media,perhaps especially of the ABC, has been so intense and so effective that juries too readily convict. It was insane of the jury in Cardinal Pell’s case to convict. Gerard Henderson has written about the media pile-on. The jury was also insane in Fr Tyrell’s case, as was the magistrate in Archbishop Wilson’s case. In the hot-house environment created, innocent men are being convicted , and it is generally not possible to overturn these convictions on appeal.

  • Paul.Harrison says:

    Our system of Common Law began in the 11th century, when William the Conqueror established the King’s Courts. This system has underpinned our practice of law since that time long ago. I am merely a nobody, but I do have an understanding of ‘beyond reasonable doubt’ which is afforded to the accused under Common Law. As Father Brennan tells us, the Pell case would never have been instigated if those involved in bringing the case to court had a fundamental understanding of ‘beyond reasonable doubt’. Those people had high office, they would of course have had a complex understanding of Common Law and precedent., and they knew what would flow from the case if they were successful. From my position of innocence I can only submit that they failed in their evil work when the High Court found for Cardinal Pell at the appeal. If they had found against the appeal, they would have set precedent for overturning the meaning, at Common Law, of ‘beyond reasonable doubt’. The shadowy actors behind the scenes must have the bright light of justice shone onto their evil visages and our world alerted to what may have been.

  • Paul.Harrison says:

    Background Comment: The evil known as the Spanish Inquisition lasted from 1478 to 1834. One of its many acts was to ban books which were seen as heretic. One book which interests me is On the Revolution of the Heavenly Spheres, by Nickolas Copernicus, whose work found that the Earth was not the centre of the Univverse. This work went against the teachings of the Church, and it was banned as a result. As a footnote to these words from me, a nobody, at the time Pope Clement VII displayed an interest in the book, which astounds me, as he, in his position as the earthly representative of God in flesh, would have been in danger from the Holy Inquisition for doing so. As it happens, the book was entered onto the roster of banned books and it was forbidden to read it. The book was not removed from the banned list (Index Librorum Prohibitorum, (Latin: “Index of Forbidden Books”) by the Holy Inquisition until 1822, or just short of 300 years after the death of Copernicus. The Church, in all its majestry, moves slowly it’s works of God. To finish, and to make these words into some sort of sense, Cardinal George Pell was once noted as possibly being given control of the Holy Inquisition, or what is now known as the Congregation for the Doctrine of the Faith, a name change which was approved by Pope Paul VI in 1965.

  • Sindri says:

    Forensic decisions can be difficult and I emphatically don’t want to be critical of the ones made during the Pell retrial. Hindisght, especially about decisions made by highly experienced counsel with their clients’ best interests very much at heart, is a wonderful thing. In a normal case, juries can by and large be trusted to respect the presumption of innocence, not to draw forbidden inferences from the accused’s silence, and keep in mind that the prosecution has the onus of proof from start to finish. That said, in retrospect it seems clear that Cardinal Pell should have given evidence in his retrial, and that leads one to reflect on some disturbing things about this trial. Any jury behaving reasonably would simply have concluded, on the basis of this evidence, that the prosecution hadn’t proved its case beyond reasonable doubt, even if they thought that he “might have done it”. Why did that not happen in this case? The jury was out for three days. They probably had all the background narrative in their minds, the failings of the church, the paedophilia, the incessant discrediting of Pell, and so on. They saw the accuser being attacked in cross-examination and at the end of the day they didn’t see the accused explain himself, except in a video, and they didn’t see him being cross-examined. They were explicitly told by the prosecution to have regard to the accuser’s demeanour and find that his tale was truthful – quite proper as far as it goes, but it had to become a beauty contest in this case, which is never a sound basis for making a judgment. Juries used to be sensibly warned about the potential risks involved in forming a judgment in sexual assault cases where there were no witnesses to the alleged event except the accused and the accuser, but that warning was done away with by the High Court some years ago. It’s very difficult not to conclude in this case that external factors influenced the jury sufficiently strongly to lead them into an unreasonable verdict. And then the error was compounded by the faulty approach of the majority on the Court of Appeal, which is as bad.
    What if Justice Weinberg had not been on the bench, and the result had been 3-zip? The High Court would probably have reached the same conclusion. I wonder about what might have happened if this case was tried 20 or 30 years hence, after a whole generation had grown up, not merely indifferent to the Church and Christianity, but positively hostile to it, regarding as a backward, disreputable, socially damaging superstition. Face it, that’s what’s coming. I suspect that mindset was already at work at some stages of the Pell prosecution.
    The editor, at the end of his book on the subject, said: “Australia had walked to the edge of a civilisational abyss, and peered in. The High Court allowed us to take a step back, and walk away. It was a near-run thing.” Yes, it was. Who is confident that such an abominable miscarriage of justice will always be set to rights?

    • Sindri says:

      To be clear, when I said “the High Court would probably have reached the same conclusion”, I meant the correct conclusion, not the faulty conclusion of the Court of Appeal.

  • norsaint says:

    Danistan has become a socialist dystopia.
    Every institution has been captured.
    The Victorian Police have become a paramilitary arm of the state ALP.
    In anyone with any sense who isn’t subject to some court restriction – and there are many – should get out while they can.

  • Ian MacKenzie says:

    The Pell case demonstrated that two out of three Victorian Appeal Court judges either don’t understand, or are unwilling to apply, the principle of innocent until proven guilty. Who could possibly have any faith in such a debased legal system?

  • Ian MacKenzie says:

    The Lawyer X case has demonstrated that in Victoria, for some, there are no consequences for perverting the course of justice and trying to cover it up using large amounts of taxpayer money. Who could believe that the term “anti-corruption” has any meaning in such a polity?

Leave a Reply