The proceedings will begin with a committal hearing at which a magistrate determines if there is sufficient evidence to go to trial. But surely the first matter must be whether, because of leaks and the character assassination, the Cardinal enters court beneath a dark cloud of presumed guilt
If he is denied this, will this be because of the leaks to the media about the police investigation, will it be the failure of the Victorian government to take serious action against this, or will it be because of those in the media who have engaged in character assassination?
Australians may well wonder why the announcement that the police had finally decided to make charges was made by a deputy and not Victoria’s Chief Commissioner Graeme Aston. Was it because he had, in one of his conversations about the case in the media, described the complainants as ”victims”? Did the police believe that by using his deputy his apparent pre-judgement of the case was somehow extinguished from the minds of potential jurors?
In a state where, in the view of many, the authorities are failing to provide for a minimum protection from crime, they should at least ensure that the accused can receive a fair trial. The state government could well be reminded of this when the eyes of the world are on the Melbourne courthouse.
Until 2009, they had a solution: a US-style rank-and-file grand jury could have been empanelled to consider, in absolute privacy, whether there was sufficient evidence to go to trial. But grand juries were unwisely abolished (see #253) by the politicians when a private prosecution was initiated against one of their class, a politician, Julia Gillard.
Although discounted by the commentarial, Pell was undoubtedly the pioneer here in dealing with institutional sex abuse. He subsequently cooperated fully with the Royal Commission. Recalled in 2015, the hearing was delayed by curious attempts to force him to fly to Melbourne even when it was revealed his doctors warned that the long flight could be fatal.
Just before he was to appear, the world’s media were filled with well-timed leaks revealing a police investigation about which even the Cardinal had not been informed. Silent on his being cleared in the earlier investigation by Justice Southwell, the police then took a surprising eight months before they interviewed him. And although called on, the government failed to set up a public inquiry into the leaks, probably encouraging more.
In the meantime, the Royal Commission video examination was extraordinarily long and unnecessarily hostile. Instead of being so obsessed with the Cardinal, the Royal Commission could have sought to have its terms of reference varied so it could investigate the two serious areas of current child abuse: those in the remote communities and those in dysfunctional families where there are an unlimited successions of male “stepfathers”.
According to a media report, the police were then dissatisfied with the failure of the Office of Public Prosecutions, when consulted, to make recommendations. So the police persisted, eventually obtaining advice that there was sufficient evidence to make a charge. Extremely prejudicial, this was leaked to the media. The public, from whom jurors are chosen, can hardly be expected to draw the lawyers’ distinction between evidence being sufficient to make a charge and evidence being sufficient to find guilt. Had the government acted to quell the earlier leaks, this one would probably have not occurred.
The proceedings now begin with a committal hearing at which a magistrate determines if there is sufficient evidence to go to trial and indeed, how many trials there should be – it would be unacceptable for the same jury to hear evidence in unrelated cases. But surely the first question must be whether, because of the leaks and the media character assassination, the Cardinal can possibly receive a fair trial.
Victoria does not permit the option of the New South Wales solution of a hearing before a judge alone. More importantly, Victorian law also does not allow for US-style common sense examination of potential jurors to ascertain potential bias.
I first observed the Cardinal in operation when he played a significant role at the 1998 Constitutional Convention. He was one of the appointments in the gift of Prime Minister John Howard. Howard chose not only the prominent who would never stand for election, but also those from areas not otherwise represented, particularly the indigenous and the young. That the overwhelming majority of these, including Pell, turned out to be republicans is testimony to John Howard’s essential decency and sense of fairness.
At the Convention, Pell conducted himself with great dignity. This became relevant as a result of Malcolm Turnbull being terrified that the monarchists would ”vote tactically”. This was code for the monarchists using their numbers to have the Convention approve an unpopular model as the referendum model, one generally thought to be more easily defeated.
But under the leadership of a distinguished QC, Lloyd Waddy, the monarchists decided, unanimously, that they would not support any republican model, whatever the tactical advantage.
When Pell was persuaded by the republicans to move the approval of the Turnbull-Keating model, he demonstrated his essential magnanimity and fairness. Declaring that the monarchists had voted with ”discipline, integrity and honour”, he concluded that ”their virtue” had “brought its own reward”. He then castigated the republicans, saying that their disarray was ”our own doing”.
But when Pell was appointed to the Sydney archdiocese, the then-ARM leader rewarded him for his loyalty at the Convention by denouncing him in no uncertain terms in the media, declaring that he was not welcome in the city.
Pell has suffered if not the hatred, certainly the disdain of most of the mainstream media even among some of the few conservatives there . The reason seems to be that Pell is not a ”cafeteria Catholic”− one who is selective as to which dogmas he accepts. He endorses all of the beliefs and teachings of the Catholic Church and is not afraid to say so. He also dares to take unpopular positions on current matters, for example, global warming. Rather than being hated, he should be admired for this. But such is the narrow thinking of the elites today that dissent is intolerable and any dissenter must be punished. As a result, Cardinal Pell has long been subjected to massive character assassination. If they keep quiet now, how can the effect of this be neutralised?
Only a court can determine whether he is likely to receive a fair trial. This will be a difficult question to determine. His counsel may not even raise it, determined as the Cardinal is to have his day in court. But the court may still decide to grasp the nettle and make a ruling.
David Flint is an emeritus professor of law
(Editor’s note: scattered about the page above are just a few examples of the prejudicial publicity that, or so one guesses, will make it very difficult to secure an unbiased jury.)