Nero’s Torches: A Metaphor for Justice in Victoria

The painting Nero’s Torches, by Henryk Siemiradzki (above), now hanging in the National Museum, Krakow, shows the Roman emperor watching the burning of Christians, whom he made a scapegoat for the burning of Rome in 46 AD, a crime Nero himself was suspected of committing. Could we find in this picture a metaphor for Cardinal George Pell’s treatment by the Victorian court system?

A recent article by Gavin Silbert QC, Victoria’s former Chief Crown Prosecutor, titled “Pell v The Queen” (Victorian Bar News, Issue 168), concerned the trials and appeals of George Pell. Silbert retired in March 2018 at about the time of Cardinal Pell’s committal hearing. His article was important because it was the first public comment by a person who appears to have played a role in the prosecution process of Cardinal Pell. The article provoked a letter of response in the next issue of the same journal by R.P. Dalton QC, Michael Waugh and J.X. Smith. Silbert responded to their letter in the same issue but did not address all the questions they raised about the Chief Crown Prosecutor’s role in assessing the brief of evidence in the Pell case.

The Office of Public Prosecution’s own website states: “The Director of Public Prosecutions, the Office of Public Prosecutions—under the direction of the Solicitor for Public Prosecutions—and the Crown Prosecutor’s Chambers work together to prosecute serious crime on behalf of the people of Victoria.”

But elsewhere, in response to Gerard Henderson’s Media Watch Dog on February 23, 2021, Silbert stated that he was not responsible for advising the prosecution of Pell since Victoria Police have the sole function of charging in Victoria, and their recent practice of attempting to obtain the imprimatur of the Director of Public Prosecutions and/or Crown Prosecutors is without any legal justification.

It is on record that John Champion SC, former Director of Public Prosecutions, rejected Victoria Police’s brief of evidence in this case. Moreover, in his dissenting judgment in Pell’s first appeal, Justice Mark Weinberg, former Commonwealth Director of Public Prosecutions and Dean of Melbourne University Law School, warned about “bringing a charge of this gravity”.

What was the role of the Chief Crown Prosecutor if it was not his responsibility to advise the police on problems with the evidence? It inconceivable that senior Crown Prosecutors would not have studied the brief and given advice to the Director of Public Prosecutions about the implausible allegations against Cardinal Pell, especially in the light of the long public campaign against him. In view of his impending retirement, Silbert may have delegated the brief to a senior Crown Prosecutor, but surely he would have contemplated the gravity of the allegations and the evidence.

What view did these Crown Prosecutors have of the evidence that many persons were coming and going from the sacristy at the time of the alleged offence? Likewise, they would have been aware that Pell was never left alone when attending the Cathedral for a Solemn Mass. One can expect they were also aware of the external procession, which made it impossible for Pell to be alone with the choir boys. Did they form a view whether there was a reasonable prospect of conviction, given the conflict between the claims of Witness J and the evidence of eyewitnesses?

In view of the High Court decision, it is somewhat belated to claim that the prosecution was justified because the trial jury found Witness J’s evidence credible. It is a well-known principle that an appeal court must proceed on the basis that when a jury has accepted a witness’s evidence as credible then the court cannot substitute its own opinion of the witness’s credibility. But this alone does not prove that the sole prosecution witness was truthful. The appeal court must then examine the whole of the evidence and decide if there is reasonable doubt. Dalton, Waugh and Smith pointed to the circular logic of Silbert’s claim that the fact the Cardinal was found guilty by the jury justified the bringing of the charges.

Similarly, Silbert’s claim of a sustained and unrelenting media campaign proclaiming Pell’s innocence is the inversion of reality. An unrelenting media campaign against Pell and his Church, in newspapers and books, and on television news and current affairs programs, was conducted over a period of more than ten years. Few would claim that it was possible to empanel a jury that would not have been influenced to some degree by the campaign against him. Even the minds of some holding high legal office appear to have been poisoned.

The media commentary objecting to the conviction of Pell was mild compared to that of his accusers, in particular because the details of the charges and the evidence were withheld from the public and largely unknown until after the conviction (except for police and plaintiff lawyers’ leaks to the media to fuel the attacks on Pell). That Victoria Police conducted a “trawling operation” against Pell is a matter of public record. What Silbert at one place calls the “appalling commentary in Quadrant” was in fact one of the few places where the failures of the police investigation and the flaws in the prosecution case were dissected in some detail. Why was it necessary for those “without legal training” to try to do what should have been the task of the Office of Public Prosecutions?

Silbert said that we are not allowed to call Witness J a liar, but the corollary of this is an insinuation that he thought that Pell was a liar. The High Court was discreet in dealing with the uncorroborated evidence of the complainant. Silbert’s comment reflects the reversal of the onus of proof that occurred in the Victorian judicial system, that Pell was expected to defend himself by proving beyond doubt that he was innocent.

In his later comment in Victorian Bar News (Issue 169) Silbert admits the error of the Appeal Court that was later rectified by the High Court, and that Pell was innocent. One can only be grateful that he has apparently undergone a Paulian conversion after reading Keith Windschuttle’s book. In his reply to Dalton, Waugh and Smith, Silbert writes:

I have just finished reading Keith Windschuttle’s The Persecution of George Pell which contains a large amount of material not produced at the trial. Having read that book I am persuaded that the Cardinal was an innocent man.

But paradoxically, at the same time he does not believe that the High Court verdict showed that Pell was innocent. Many lawyers, those who have studied the judgments and the evidence, would disagree.

Silbert’s dismissal of those who have written in criticism of Victoria Police and the Victorian judicial system because they do not have legal training is demeaning. At the High Court hearing there was a large attendance, and not just supporters of Pell, but also many senior and experienced lawyers. There was even an altar boy who had served at the Cathedral on the day of the alleged offences. He came, like most of us, to see the proceedings, with a hope that the egregious failure of the Victorian judicial system would be rectified. This hope does not require “legal training”.

Those present at the hearing in the High Court witnessed what Brett Walker QC described in reply as the “improvisation” of the Director of Public Prosecutions, trying to stretch out the “hiatus”—a short interval when the offending could have occurred—so that the offence was possible. This method was first used by the prosecution in the second trial to confuse the jury. Chief Justice Kidd tried to stop this, but the prosecution persisted, and may have thus obtained the conviction of Pell. The High Court bench firmly rejected this proposition because the opportunity evidence made clear that there was no hiatus, and in fact there was no independent corroborative evidence that the choir boys were ever in the sacristy during the alleged time frame.

Anyone who doubts this could ask some of the twenty-odd persons who were going in and out of the sacristy on the day, several of whom became known to the police, but were not called to give evidence. The police failure to complete the investigation remains unexplained. Why did the Director of Public Prosecutions persist with the second trial, given the weight of evidence, when even, at one stage, Witness J did not want to proceed?

Witness J was probably a fantasist. He was an experienced stage performer, with a police record and a significant psychiatric history. All this was known to the prosecutors and is now a matter of public record. One only had to look at his social media sites before the trial, and his blogging (recently resumed), to form this view. One of Witness J’s old, inactive websites still contains the image from Siemiradzki’s Nero’s Torches, showing the burning of Christians. Given the anonymity granted to Witness J we may never understand the full extent of the problems in his life.

The alternative, that he was used and groomed by a third party, was equally destructive for our judicial system. The inference remains open that Victoria Police and the Victorian judicial system were used to try to obtain the conviction and imprisonment of Pell with a raft of fabricated allegations, in both Melbourne and Ballarat, for a venal purpose. It was the culmination of a hostile ten-year campaign against Pell.

What was the former Chief Crown Prosecutor thinking as his successor set out on this multi-million-dollar judicial folly? Victoria’s Premier, Daniel Andrews, made his position clear in a notorious statement in response to the High Court decision: “I have a message for every single victim and survivor of child sex abuse: I see you. I hear you. I believe you.” Why is his government unconcerned about this disastrous state of our prosecution and judicial system?

As George Weigel has written, why has there not been “a public reckoning with the travesties of policing and prosecution, and failures of the justice system in the State of Victoria, that were laid bare in the Pell affair”?

John Wheelahan FRCS FRACS, is a retired surgeon