Our Greatest Miscarriage of Justice

Keith Windschuttle’s book The Persecution of George Pell examines the forces that conspired to bring down George Pell—the journalists, bureaucrats, social-media warriors, politicians and jurists. They pursued their quarry with every means available to them. And for a time, at least, it seemed they had won. Nothing less than the “reputation of the rule of the law in Australia”, asserts Windschuttle, was in question on April 7, 2020, when the High Court quashed Pell’s conviction for sexual abuse. If the High Court had decided otherwise, “the gravest misjustice in Australia’s history” would have gone unremedied.

There were five charges of sexual abuse against George Pell arising from two alleged incidents, one in December 1996 and the other early the next year. The second alleged assault becomes totally implausible once the first attack in the sacristy is rejected. Originally there were two accusers, both choirboys at the Melbourne cathedral; one, now deceased, disavowed his allegation before the first trial commenced. The remaining claimant, Choirboy I, maintained that after he and Choirboy II broke off from the post-Mass procession, they entered the sacristy and commenced sampling sacramental wine. In the midst of this, they were surprised by Archbishop Pell who, in the succeeding few minutes, perpetrated a number of sexual acts upon them and himself that would have required him to possess, by Windschuttle’s count, at least five hands. In the chapter titled “The High Court v the Baying Mob”, the author outlines the High Court’s view that any rational appraisal of the complainant’s account revealed there was no opportunity for the abuse to have taken place. It took nothing less than the seven High Court judges to do what the Julia Gillard-initiated Royal Commission into Institutional Responses to Child Sexual Abuse (2012 to 2017), two trials in Melbourne and the Victoria Court of Appeal (August 2019) had conspicuously failed to do: protect the innocent.

One of the more evocative passages in The Persecution of George Pell is its account of the reaction of the media. Windschuttle quotes from a piece written by Pell himself for First Things: “I watched in my cell on Channel 7 as a surprised young reporter informed Australia of my acquittal and became still more perplexed by the unanimity of the seven justices.” In fact, Australia’s corporate media, Windschuttle writes, did not “know how to respond” to the High Court’s judgment because they had assumed Pell’s conviction was “well-deserved”. There is grim humour in Windschuttle’s description of the media pointlessly filming Pell’s car from helicopter height as it was driven along the Princes Highway from Barwon Prison to the Carmelite convent in Melbourne in an echo of the O.J. Simpson pursuit. The following day, two press cars again followed Pell some 880 kilometres from the convent in Melbourne until they lost him in heavy Sydney traffic: “It is hard to understand this expensive but futile pursuit, which left the reporters, and the news media they represented, lost for words. Despite their best efforts, their quarry was free.”

The High Court ruling, for anyone familiar with a series of articles by Windschuttle and other writers for Quadrant, did not come as a surprise. The High Court challenged a number of key aspects of the claimant’s narrative that “did not establish guilt to the requisite standard of proof”. First, Pell’s practice of greeting congregants outside the cathedral after Mass placed him elsewhere at the time of the alleged attack. Second, the routine practice is that an archbishop is always accompanied by an adult assistant when disrobing in the cathedral. Third, the number of people likely to traffic through the priest’s sacristy after Sunday Solemn Mass meant it was not a private space. The upshot of this, disturbingly, is that everyone, from the Chief Justice of Victoria’s Supreme Court, Anne Ferguson, and the president of the Victorian Court of Appeal, Chris Maxwell, down to the young reporter on Channel 7—in short, the length and breadth of Australia’s latter-day power elite—allowed themselves to believe something that was closer to impossible than merely implausible.

Audio: Keith Windschuttle discusses his book with the ABC’s Andrew West

Some will argue, as the ABC’s veteran journalist Barrie Cassidy did, that the High Court’s 7-0 decision did not prove Pell’s innocence, and that nobody is legally obligated by its decision, including the lucidly and insightfully argued forty-four-page final judgment. Australians, in short, can blithely continue to accuse Archbishop Pell of sexually abusing two choirboys in a sacristy: “The High Court has found there was not enough evidence to convict. It did not find him innocent. You are entitled then to maintain your view and you are under no obligation to apologise for holding those views.” On the contrary, argues Windschuttle, once charges were quashed by a court of law—and, in Australia, no court is higher than the High Court—Pell had been adjudicated innocent. For any Australian to claim differently, at least in the public domain, is to open themself up to a defamation charge by George Pell—which, to restate how our legal system works for the benefit of Barrie Cassidy, would be settled in a court of law. The convictions against Pell were quashed not because of a “legal technicality” but, as Windschuttle writes, the “legal fundamentality” of the failure of Victoria’s Court of Appeal (and the second trial) to prove guilt beyond reasonable doubt.

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How, we might ask, did two of the three Victorian Appeal Court judges get it wrong in their decision to uphold Pell’s conviction on five charges of sexual abuse? To begin with, the High Court’s final judgment decided that Victoria’s Court of Appeal had reversed the customary (and lawful) practice of placing the onus of proof on the accuser, not on the accused. The emotional power of Choirboy I’s (recorded) testimony was prioritised over his inaccuracies and inconsistencies. Premier Dan Andrews’s response to the High Court’s decision inadvertently gives us the context in which Victoria’s Court of Appeal operated: “I make no comment about today’s High Court decision. But I have a message for every single victim of child sex abuse: I see you. I hear you. I believe you.” Obviously, Andrews was making a comment on the High Court’s judgment and thereby questioning the rule of law as it is practised in Australia. Put bluntly, if you discriminate in favour of the complainant—“I believe you”—in the name of social justice, then it stands to reason you are discriminating against the accused and contravening the very premise of justice. There is no wiggle room in this. Justice is either blind, in the sense of being disinterested and objective, or it is not justice as we have always known it.

If the complainant is always to be believed, come what may, then we should dispense forthwith with our very expensive criminal justice system. If everyone claiming to have been sexually abused is to be automatically believed, then there is no reason to waste taxpayers’ money on departments of justice, police investigators, forensic scientists, judges, state prosecutors, juries et al. If the accuser is always to be believed, Australia would be advised to adopt the practice of revolutionary tribunals—à la Lenin—and arrest, try, judge and jail all those accused of sexual abuse in a kind of one-stop shop.

The irony of all ironies, as picked up by Windschuttle, is that Gillard’s Royal Commission, which set in motion the persecution of Pell, did not itself accept on face value the claims of every purported sex-abuse victim. Of the 9325 submissions to the Royal Commission, only 2562 had their cases referred to the police. I see you, I hear you, I believe some of you. None other than Prime Minister Morrison, on October 22, 2018, virtue-signalled his praise of the Royal Commission when he apologised on behalf of Australia to all self-identified victims of sexual abuse: “Your country believes you.” What Morrison might have said, had he not been intimidated by a torrent of political correctness, is this: “I see you, I hear you, I support your grievous charge being treated respectfully by the authorities and, after undergoing due process, finding its way into a court of law.”

Windschuttle, in a devastating critique of Victoria’s Court of Appeal, lambasts Ferguson and Maxwell for their insistence that the singular knowledge of the complainant constituted “corroboration”. Even a cursory investigation reveals that Choirboy I did not convincingly (that is, persuasively) depict the layout of the priest’s sacristy as it existed in December 1996. Instead, he described the room as it was at a later time after being renovated. There was also nothing significant about the complainant’s awareness that back in 1996 the Archbishop of Melbourne used the priest’s sacristy and not the archbishop’s sacristy to disrobe, since this was common knowledge at the time. It was also unwarranted to persist with the complainant’s story that the only time he had ever been in the priest’s sacristy—and, therefore, the only chance he had to take a mental picture of it—was on the day of his assault. It was a customary practice to provide new choirboys with a guided tour of the cathedral, the priest’s sacristy included.

You will have to read The Persecution of George Pell yourself to find all the other ways that the complainant’s accusation does not bear scrutiny, including the fact that he mischaracterised the sacramental wine that he was supposedly caught swigging. One of the other unlikely points the Victorian Appeal Court judges chose to believe was that a kitted-out archbishop could have extricated his penis from beneath his weighty robes. Once an archbishop is fully attired, even urinating is not an option, let alone efficaciously locating and exposing one’s penis with a solo hand before thrusting it into the mouth of an unwilling thirteen-year-old boy. The lewdness (and preposterousness) of the description here is not mine—or Windschuttle’s—but that of the complainant and all those, including two of the three judges on Victoria’s Appeal Court, who believed this unlikely tale. The term corroboration, by any traditional definition, means witnesses who might verify one aspect or other of an accusation. Or perhaps the provision of forensic evidence. Or, at least, something beyond the unsubstantiated and far-fetched allegation itself. Not, apparently, in Victoria.

Windschuttle’s book not only censures Premier Dan Andrews, Judge Peter Kidd, Victoria’s news media and the practices of the Victorian Supreme Court, he also scrutinises the workings of the Royal Commission into Institutional Responses to Child Sexual Abuse. We have already seen that the commissioners did not refer 65 per cent of alleged submissions to the police. What caught their interest about George Pell? He was a high-profile figure—the Archbishop of Melbourne (from 1996 to 2001) and the Archbishop of Sydney (2001 to 2014) before his appointment to the Council of Cardinal Advisers—and the Royal Commission had every right to scrutinise any accusations of sexual abuse on his part. But it was not until 2015, two years after the commencement of the commission’s work, that Choirboys I and II came forward with their sexual-assault-in-the-sacristy claim, a claim that we now know—thanks to the 7-0 decision of the High Court and its attendant final judgment—was implausible. The likelihood that the allegation about Pell was fabricated is given added credence by Choirboy II, who before dying at the age of thirty due to drug-related ill-health retracted his original claim.

It is just as likely as not, given what we now know, that Choirboy II, nearing the end of his brief and troubled life, wanted to set things straight. Pell’s detractors, perversely, chose to assert that Choirboy II was a two-time victim of Pell, sexually abused at the age of thirteen and then, as a consequence, a life-long drug addict who died too young. As for Choirboy I, Windschuttle seriously questions his credibility in chapters nine and ten. The naysayers will argue that it is unfair to question the standing of someone who has come forward with a story of sexual abuse—“I see you. I hear you. I believe you”—and yet Choirboy I did not have to endure 400 days behind bars and have his whole life tarnished.

Officers from Victoria flew to Rome in 2015 to notify Pell that the Royal Commission had referred the choirboys’ story to the Victorian police. On what basis, therefore, were these criminal investigators “interviewing” Pell? If they had no understanding of how things were done at the cathedral, how could they possibly make any kind of viable assessment about the factualness of the choirboys’ accusations? Windschuttle is of the view that the Victorian police, at that stage, were not intending to push too much with the “sacristy assault”. Instead, they were relying on other accusations emerging once the news media got wind of the choirboys’ claims, the idea being that once a paedophile’s name enters the public domain, a pattern of accusations emerges. But no further allegations did emerge.

An ideology informs the progressive power-elite that currently holds sway over Victoria, and this might be the ultimate explanation for what has occurred. But why did George Pell become the ideological enemy of what we might call progressivism? The answer is to be found at the beginning of Part One of this book. Going back over the years, all the way to the 1970s, Pell’s traditionalist views on marriage, contraception, divorce, family, promiscuity, pornography and so on, might be usefully summarised as the opposite of the permissiveness of the time. As Windschuttle argues (and I have argued in “Things Fall Apart: The Great Bohemian Cultural Revolution”, Quadrant, January-February 2016), our current era might be more accurately characterised as the dictatorship of bohemia rather than a lively clash between bohemian (or, if you like, anti-Christian) sensibilities and traditionalist principles. Pell’s many enemies, including within the Catholic Church, would have hoped to see him in the dock of a revolutionary tribunal and put away for a long stretch. They will have to be satisfied with his spending 400 days in jail and, as the cover of The Persecution of George Pell dramatically reminds us, a very public humiliation.

The Persecution of George Pell
by Keith Windschuttle
Quadrant Books, 2020, 408 pages, $39.95