The Crown Prosecutor’s Retraction

Cardinal George Pell’s appeal against his conviction of historical sexual abuse of two choirboys will be heard before the full High Court of Australia on March 11. His conviction in a Melbourne county court in December 2018 was affirmed by the Victorian Court of Appeal in August 2019. The conviction was for two incidents of abuse that allegedly occurred in St Patrick’s Cathedral, Melbourne, in December 1996 and February 1997.

As several writers in Quadrant have recorded over the past twelve months, the conviction of Pell is one of the worst miscarriages of justice in Australian history. This is not just because of his status at the time as the most senior figure in the Catholic Church in this country, but also because it breached the fundamental legal principle that an accused person is innocent until proven guilty beyond a reasonable doubt. That is not how George Pell was treated either at his trial or in his first appeal. The jurors did not make their decision on the weight of evidence by more than twenty witnesses, who demonstrated that Pell could not possibly have done what the complainant said. Instead, the jurors accepted the sole evidence of the accuser, given in camera, with his identity shielded, and without corroboration of any kind. A two-to-one majority of judges in the Victorian Court of Appeal confirmed both the process and the decision.

The first of the two incidents supposedly took place shortly after a Sunday Solemn Mass on either December 15 or December 22, 1996, in the priests’ sacristy of the cathedral. This was a room in which then Archbishop Pell was assisted by the cathedral’s master of ceremonies, Charles Portelli, to robe before the Mass, and to disrobe afterwards. It was the room to which altar servers returned sacred objects used in the Mass and in its exit procession. What remained of the sacramental wine was returned there, and the cash from the worshippers’ collection was deposited in its vault. It was out of bounds for choirboys.

The sole choirboy complainant said he and his companion (who died of a drug overdose in 2014) had broken all the rules and ventured into the unlocked priests’ sacristy shortly after their post-Mass procession had ended. They found some wine and started drinking it, when Pell suddenly appeared. The fully-robed Archbishop was unaccompanied and there was nobody else but him and the boys in the room for the next five or six minutes while the alleged abuse occurred.

The defence argument was that this scenario never took place. At the time the choirboys supposedly arrived at the sacristy it would have been already occupied by the altar servers, who were ahead of the choirboys in the post-Mass exit procession. The altar servers included the crucifer carrying the cross at the head of the procession, the censer bearer with incense, and other acolytes assisting the service. They would then assist the sacristan to remove other liturgical objects from the cathedral sanctuary to the sacristy, clean them, and store them properly there. The objects included the wine chalice and cruets, bread patens, altar cloths, water jugs and flowers. The crucifer left the cross on display in the priests’ sacristy, and protocol demanded those who followed him bow to it before starting their duties in the room.

The timing of these activities was crucial. The defence argued there was a “hive of activity” at the time, with between six and twelve people coming and going from the sacristy for a period of ten to fifteen minutes after the altar servers first arrived. The room was never empty for Pell to assault the boys, or indeed for the boys to even go there.

However, the Crown prosecutor, Mark Gibson, argued that as soon as the altar servers arrived at the sacristy they bowed to the cross and then left the room and went elsewhere. For the next five or six minutes, the sacristan Max Potter waited for cathedral worshippers to have a “private time” of prayer near the sanctuary. At the end of this time gap or hiatus, Potter would give the altar servers the “green light” to come and perform their duties. It was during this five-minute hiatus, which Gibson called an “interval of decorum” in the cathedral, that the boys supposedly entered the sacristy, where Pell found them.

So where did the altar servers go while all this was happening? Where was the “elsewhere” they went to?

During the trial on December 3, 2018, this question produced a genuine courtroom drama. In his final address to the jury, Crown prosecutor Gibson tried to argue that during the “interval of decorum”, the altar servers went to a place he called “their worker sacristy”. But Ruth Shann for the defence protested to Judge Peter Kidd that Gibson was not sticking to the trial evidence; he was making it up. Kidd obviously agreed because later that day Gibson retracted his earlier version of events. The scene reads like something from the script of a good television series. Here is an edited version of the transcript:

The prosecutor initially told the jury in his final address (at 1446):

Altar servers, according to McGlone [an altar server in December 1996], go in to priest sacristy, bow to the crucifix to end the mass, according to McGlone, before returning to their worker sacristy awaiting the interval of decorum, that Potter and Portelli spoke about, that must elapse before clearing duties can begin. Poking around the corridor, priest sacristy door unlocked and opened, altar boys [altar servers] go in, bow to the crucifix before returning to their worker sacristy awaiting this interval of decorum before people can attend the sanctuary to start their clearing duties.

The prosecutor went on to say (at 1461):

So I’m just doing it frame by frame, if you like, to give you an idea of what the Crown is submitting occurred on this occasion, the subject of the first incident. Then the altar servers enter and bow to the crucifix before leaving the priest sacristy and awaiting the green light from Max Potter. It is then another five to six minutes, whilst parishioners were walking up to the sanctuary and kneeling, according to Potter, where Potter would give parishioners their private time.

Ms Shann for the defence put this to the judge (1039 to 1040):

Can we just raise one issue in particular which is really with the hope that our learned friend might take the opportunity to either tell us where we’ve got this wrong or fix it up with the jury. The submission was put that the altar servers would go into the priests’ sacristy to bow to the crucifix, and then go and wait in the workers’ sacristy for the interval of decorum to pass. That is not a concept which we can find anywhere in the evidence, nor was it put to McGlone who said, “We bow to the cross and then start going back and forth between the priests’ sacristy and sanctuary”, that’s at 981 to 982, or Mr Connor who says, “We bow to the cross and then start clearing in and out of the priests’ sacristy for the next ten minutes”.

The prosecutor made this retraction in his final address to the jury:

Mr Foreman and members of the jury, before lunch I had spoken about there being this period of time after the altar servers had bowed to the crucifix in the priests’ sacristy and before Mr Potter had started ferrying items from the sanctuary to the priests’ sacristy. I think I might have said that the altar servers were in their workers’ sacristy during this five to six minute time period. There is, of course, no evidence of that, and there’s no evidence of where they were. There is evidence of where they weren’t from J and that is that they weren’t in the priests’ sacristy, so I was inviting you to conclude that it was during this period waiting for the green light from Mr Potter that, wherever the altar servers were, it was not in the priests’ sacristy. I just wanted to make that clear.

Now, Gibson must be a Crown prosecutor with a short memory. He seems to have forgotten all about this retraction. Because on January 31, 2020, the Victorian Director of Public Prosecutions, Kerri Judd, submitted a response to the appeal to the High Court by Pell’s lawyers, Bret Walker and Ruth Shann. One of the four signatories to the DPP submission was Mark Gibson, signing himself as Victoria’s Senior Crown Prosecutor. In paragraphs 59 and 60 of this submission there is a version of what the altar servers supposedly did after they entered the priests’ sacristy. It is written as if the rebuke from the defence at the trial never happened, as if Judge Kidd had not told Gibson to retract what he said, and as if his retraction had never been made to the jury. This is how the DPP describes events in its latest submission:

The altar servers would have entered the Priests’ Sacristy and bowed to the crucifix, marking the end of the formal part of the Mass. The altar servers would then have left the Sacristy—either for the workers’ room, where they disrobed, or for the sanctuary to assist Potter. The Priests’ Sacristy would be unlocked and open.

The Crown’s case was that A and B [the choirboys] then entered the Priests’ Sacristy. They were shortly followed by the applicant [Pell]. The offending occurred for 5–6 minutes. It was only after A and B left the Priests’ Sacristy after the first incident that Potter and/or altar servers first returned to the Priests’ Sacristy with items from the sanctuary.

Although the defence protested at the trial that this version of events had no evidence to support it, in the new DPP submission there is a footnote to the claim that “the altar servers would then have left the Sacristy—either for the workers’ room, where they disrobed, or for the sanctuary to assist Potter”. Footnote 224 references two passages of the trial’s transcript where it records questions put to the sacristan, Max Potter.

Anyone who compares the trial transcript in these passages with the claims made by Gibson in the new DPP submission will be puzzled, to say the least, because they don’t support his case. The actual pieces of the transcript the DPP cites are lines 8 to 25 in paragraph 496, where Gibson questions Potter about where the altar servers disrobed after finishing their sacristy duties. They did not disrobe in the sacristy themselves, Potter said, but in a room they called the “candle room”, which he clarified for his questioner as the “altar servers utility room” (a room opposite the priests’ sacristy, called “utility” in the court’s floorplan of the cathedral—also known as “workers’ room” and “workshop”). There is nothing in lines 8 to 25 about the altar servers retreating to this room for a five-minute hiatus, and no mention of a “green light” telling them when they could resume their tasks in the sacristy.

But then in lines 26 to 28 of the same paragraph 496—lines which are not cited in the DPP’s footnote but which anyone checking the transcript can readily see—Gibson’s questioning continues:

26  You say that they derobe in the altar servers room or the
27  utility room after they had assisted you in clearing the
28  sanctuary? — Correct, yes.

In other words, Potter’s full examination not only fails to support the DPP’s submission, it says the opposite of what the DPP claims in its text. The altar servers only went to the utility room after they had performed their duties moving things from the sanctuary to the sacristy, not before. This confirms that in the original trial, both Ruth Shann and Judge Kidd were correct to call for Gibson to retract his assertion, since it ran counter to the evidence.

The second citation in the footnotes to the DPP text is to the transcript’s paragraph 518, lines 5 to 7, when Pell’s defence counsel Robert Richter is questioning Potter. In these lines, also, Potter provides no support for the DPP’s claims. Potter does not mention any altar servers leaving the sacristy and waiting in the “workers’ room” for the interval of decorum to pass. Lines 5 to 7 in paragraph 518 record Richter questioning Potter as follows:

5 The altar servers would bow to the cross, and what would happen
6 then? — They would go into the workshops or the
7 sacristies and disrobe.

Potter seems to have misunderstood the question because his answer was not about what happened “then”, that is, next, but what happened when their duties were all done and they could disrobe in the “workshop” or utility room. But, in any case, Potter cleared up the issue shortly afterwards when answering the following questions from Richter (paragraph 518, lines 23 to 31):

23 And the other altar servers would then go into the priest’s
24 sacristy? — Sacristy.
25 And in the priest’s sacristy they would do their bows? — Bow,
26 yes.
27 Then they would go and follow directions as to what they should
28 do with the various vessels and—? — Yes, yes.
29 All right. So at that stage you’re at the priest’s sacristy,
30 is that right? — Yes.
31 When they do that, when they arrive? — Yes.

Needless to say, the DPP submission does not cite these lines in its footnote. They make it clear that when the altar servers first arrive in the sacristy they bow to the cross, and then immediately turn to Potter and follow his instructions about what to do with the various items from the Mass. The altar servers did not retreat to the utility room until after they had assisted Potter to clear the sanctuary of its “various vessels” and stored them safely in the priests’ sacristy.

Hence, there is no hiatus when the choirboys or Pell were in the priests’ sacristy on their own. From the moment the altar servers entered the room it was plainly a “hive of activity”. The altar servers did not have to wait five or six minutes for Potter’s “green light” (a concept completely absent from any of the evidence) to tell them to come and start their duties. They began their work as soon as they had arrived and bowed.

In short, the footnote references to Potter’s answers to Gibson and Richter do not support the prosecution’s formerly retracted, but now newly revived, case. Instead, they refute it. Such are the standards of legal argument that now prevail within the Victorian Department of Public Prosecutions.