QED

The Cloud of Doubt over Pell’s Conviction

AUSTRALIAN Catholics have been appalled over the last three decades at the revelations of abuse by some priests and religious and the coverups by many church leaders. So they have been grateful for the efforts of those bishops who first took action to sack perpetrators and put in place safeguarding mechanisms. Two bishops stood out, George Pell and Philip Wilson. Both initiated vigorous action when they took charge of dioceses, despite obstruction from the Vatican. Pell startled the Royal Commission into child abuse by telling them that it was hard to get action from Pope John Paul II because he thought the abuse scandal was a Communist plot.

It was therefore surprising to Catholics when Wilson and Pell were the very bishops convicted by the Australian justice system. Wilson’s conviction on charges of concealing a complaint of child abuse was overturned on appeal. Pell’s conviction for sexual penetration of a child is currently subject to appeal.

All Australians should consider the strength of the evidence against Pell for themselves. It is possible to do that because the evidence is essentially available and there is so little of it. (The exact trial transcript is not yet available, but the main evidence can be found in Louise Milligan’s book Cardinal and attendees at the trial have made clear that the evidence was as described there. It consists just in the complainant’s account.) No-one should simply say, “The jury found him guilty, that’s how the system works and it’s good enough for me.” That is because, as multiple sources have confirmed, the jury in the first trial voted 10-2 for acquittal.

The problems with the evidence have been laid out in Frank Brennan’s article at Eureka Street. One of the two alleged victims died of an overdose after saying no-one had abused him. The surviving alleged victim claims Pell assaulted him in circumstances which the defence believed they had proved could not have happened. The layout of the cathedral and sacristy made the crime close to impossible. The elaborate vestments Pell was wearing at the time made it more so. There is no corroborating evidence.

Cardinal Pell has been the most prominent Australian Catholic for decades. Many Australian Catholics have over the years objected to his management style and opinions on various topics. They have accepted that he mishandled some abuse cases through wrongly evaluating the evidence. They have not been inclined to suspect him of abuse. The state of the evidence, as it stands at present, will not convince them otherwise. Nor should it convince anyone else.

We live in an age of naïve faith in trial by jury, though its errors in cases with little evidence are known. Insiders of the criminal justice system are not so sure. A number feel disquiet but are not saying anything in public, no doubt to protect the good name of the institution. The dead choirboy’s psychiatrist cannot be asked his/her professional opinion on the cause of his/her client’s problems because the psychiatric confessional is sacrosanct. So the public is left to supplement its ignorance with speculation.

Some of what happened in the media and justice system may have looked like a witchhunt, but Pell’s conviction was not the result of that. The court system acted correctly in putting the evidence to a jury (or rather, two juries). The problem is simply a mismatch between the jury’s verdict and the objective relation between the evidence and the conclusion. The evidence is inadequate to support the verdict.

No-one knows what the result of the appeal will be. In the meantime anyone wishing to comment on the case is welcome to do so, but only after examining the evidence for themselves.

James Franklin is author of The Science of Conjecture, a history of evidence evaluation, Catholic Values and Australian Realities and Corrupting the Youth

33 comments
  • Peter OBrien

    It is hard to accept that the media crusade against Peel did not, to some (possibly a large) extent, poison the jury pool. Having said that, the difference between the two verdicts is startling. 10 to 2 for acquittal I can accept. 12 to convict I cannot unless the jury received very weird instructions from the judge. I believe they requested instructions as to how to interpret the evidence. It would be interesting to see that advice – but I don’t know how to get hold of it, if it is, in fact, available.

  • lloveday

    How do people know the hung jury was 10 to 2 for acquittal as Catholic sites such as National Catholic Register and Catholic News Agency report and not, eg 2-10, or 6-6 as I was assured was the case well before the 10-2 figure was reported without, as far as I’ve seen, a source cited?

  • Peter OBrien

    I just accepted the 10-2 figure quoted widely and, as far as I know, nowhere refuted.

  • pbw

    lloveday, I have the same question. I am encouraged to think that the 10-2 figure may be correct because Andrew Bolt said on-air that he was not allowed to tell us just how close to acquittal the first jury had been. The difference between him and us may well be that he is known (by the Court) to have had access to information which, under Victorian law, may not be shared with the public.

    In that case, while the various restrictions that are in place may have been designed to protect defendants, they are harmful to Cardinal George Pell, and are an impediment, intentional, to the public’s drawing its own conclusions about the validity of the conviction.

    This is particularly the case if 10-2 is correct. Given that the prosecution did not intend to expose the complainant to cross-examination again, but merely to show a recording of the original video-link evidence, how did they expect to get a conviction? They gave themselves the opportunity to cross-examine all of the original defence witnesses again, with the benefit of practice, and the possibility of eliciting contradictions, while denying the same opportunity to the defence.

    Nonetheless, it has more than a whiff about it.

  • lloveday

    pbw – My limited understanding, based on what I’ve been told, and limited reading of the legislation, is that Bolt, as well as us, is not allowed access to the result of the “vote”. The person who told me 6-6 by email then rang to tell me his source so as to not put it in writing.

    Going from 10-2 to 0-12 from basically the same evidence, and in the case of the main witness, the accuser, exactly the same except, maybe, a bit of missing body language, is gob-smacking to me, and, like you, I am astonished that the defence did not have the chance to minutely examine the transcript of the accuser’s evidence, phrase new questions and maybe “eliciting contradictions”.

    If I were running the appeal hearing, based on fairness rather than law, that denial, unless the defence agreed to it, would be enough to send it back for a 3rd trial.

  • jimmaths

    I checked with someone who was there and am confident in the figure.

  • Peter Smith

    The verdict is clearly unsound and George Pell should be freed pending the result of what surely will be a successful appeal. To keep him in jail is appalling.

  • Alistair

    I cannot interpret this in any other way than a political vendetta against the Catholic Church aimed directly at its leadership. “The verdict is not an indictment of George Pell ” No, it is an indictment against the Victorian Police. Their pursuit of Pell is in my opinion purely political and dates back to the 1990s, and even back further to the struggle between the Catholic Church and the labour movement during the Soviet Era. Far fetched? Consider the police’s lack of interest in the Blewett, Gillard, Wilson – AWU case. Consider the police’s lack of interest in the “Red Shirts”case. It is the cases that the Victorian police never pursue, rather than the ones that they do pursue, that speaks volumes about their internal culture and motivation.
    We have now arrived at a point of post-modern journalism, post-modern science, and now post-modern law.

  • Don

    Alistair , I will go back even further and refer you the Vic. Police’s cover-up of Monsignor Day.’s excursions.
    Read the book “Unholy Trinity” for an insight to how the system was gamed.
    Seems everyone wants a retrial so they can get the verdict they want.
    As for the church’s efforts to compensate & apologise for past sins , they have set up a shop front to deal with any complainants so as to keep themselves at arms length from the accuser.
    They are in full control of their own internal investigations which is hardly conducive to a fair hearing.
    It may well be a vendetta , but so many have got off scot free , side shifted to another parish to offend yet again , that I feel people may have had enough.

  • Jody

    Either we believe in the court system or we don’t. The appeal process will determine the matter; why not wait and see the outcome. The last hysterical trial by media as the Chamberlain case and that took 2 juries to get it wrong and years to quash the original verdict. The public was braying and the media saturation ensured that a fair trial just wasn’t possible. Same case here, but do wait for the appeals court to determine whether this was a properly conducted trial.

  • Peter Smith

    It is no small thing Jody to fight a case at enormous expense which should never have been brought in the first place and then to spend months in jail while an appeal plays out. You can believe in the justice system and still deplore the circumstances and outcome of a particular case.

  • Don

    Everyone has a right to legal council and in Pell’s case he was able to garner the services of the best legal team in the land which had every resource at hand , whilst the jurors sat there week in , week out listening to the prosecution & defence arguments , so to all who suggest the jurors got it wrong and call for an appeal to get the outcome some want is insulting to intelligence of the 12 good men and women who served as Jurors.
    I have never seen such blatant use of the media to lecture us on how the Justice system got it wrong whilst the inference derived from that proposition is that the complainants are liars.

  • Blair

    “so to all who suggest the jurors got it wrong and call for an appeal to get the outcome some want is insulting to intelligence of the 12 good men and women who served as Jurors.”
    Ever heard of Lindy Chamberlain, Don?

  • Tony Tea

    To paraphrase Groucho Marx: “If you don’t like my verdicts, I’ve got others.”

  • Alistair

    The comment on the side of the Home Page entitled Our “Kavanaugh” suddenly made me think – No this isnt Our Kavanaugh – its our Tommy Robinson. All those who kept quiet while Tommy Robinson was deal with by English Law, can now see first hand how the law works with those it wants to sideline.

  • Jody

    I have to say I largely agree with Don. It’s the fact that there was no media blackout when this trial was underway which was appalling. It’s a case of blatant and convenient discrimination because Pell was a religious figure. I’ve heard people say “this trial was different”. That scared the hell out of me and reminded me of the kangaroo courts in the lawless west when cattle rustlers were hung from trees. Such staggering hypocrisy and failure to grant reciprocal rights to a defendant. Nothing was learned from the Chamberlain case. They were religious people too; are you joining the dots here?

  • Jody

    PS: Whatever we think of Pell and his atrocious crime, one thing is obvious; the greatest thing we have to REALLY fear in this country is the sanctimonious, regressive Left.

  • Peter Smith

    A note to Don, who wrote:
    “I have never seen such blatant use of the media to lecture us on how the Justice system got it wrong whilst the inference derived from that proposition is that the complainants are liars.”
    First, there was only one complainant.
    Second, you clearly do not understand the justice system. We don’t have to conclude that the complainant is a liar in order to acquit. An acquitted person is not proved innocent he or she has not been proved guilty beyond reasonable doubt. Have you not seen any Perry Mason cases?

  • Doubting Thomas

    Jody, I think that given all the circumstances surrounding this case it might have been better put if you had said “whatever we think of Pell and the atrocious crime of which he has been convicted”.

    To me, the most outrageous aspect is the blatantly biassed way the Victoria Police went after him before any complaint had been made against him. Of course, Louise Milligan and the usual suspects, at the ABC in particular, who preyed on the gullible to feed their own vicious bigotry, should not be allowed to get off scot free if Pell’s conviction is overturned.

  • Geoffrey Luck

    It does seem that the jury blind-sided both the defence and the prosecution. Why, we may never know, but I too am keen to read the judge’s summing up and instructions when the transcript is available.

  • pgang

    I had thought that judges were supposed to intervene when the evidence was insufficient to reach a verdict. That to me seems to be the core issue here, and I note that it is part of Pell’s appeal. The trial should have been abandoned.

  • pgang

    Something I’ve been thinking about since this became public is that we are totally focussed on the abstract of the justice system. But let’s get into Pell’s shoes for a minute. As a Christian, with the terrible shame and disillusionment that he must be experiencing, he must surely see this life changing event as a calling; perhaps even a timely reminder that true power is not vested within human politics – not even the church’s. Perhaps he is even being called back to his faith after years as an influential political man, just as Abbott is kept humble by his detractors. I do wonder what he will make of it all.

  • lloveday

    The Australian reports:

    “The verdicts are unreasonable and cannot be supported, having regard to the evidence, because on the whole of the evidence, including unchallenged exculpatory evidence from more than 20 crown witnesses, it was not open to the jury to be satisfied beyond reasonable doubt on the word of the complainant alone,” his first appeal ground says.

    They have it in quotes – surely Pell’s legal team does not claim there was “unchallenged exculpatory evidence from more than 20 CROWN witnesses”?

  • Jody

    Doubting Thomas: That’s an awfully big IF.

  • whitelaughter

    Other than the appalling witch hunt, we should also take a close look at our legal system – and accept that it is a millennia past its use by date!
    Functionally, a court case is trial by combat, with the swordsmen replaced with lawyers. There is no requirement to present evidence to the court; it is only presented if one side wishes to do so. The high mistrial rate is the inevitable result of using an obsolete system.

    In case anyone doesn’t understand why our legal system is remains broken:
    Australia, on a population of 24.7 million, has 66,211 lawyers.
    France, with a population of 67.12 million, has 45,000 lawyers.

    Basically, if we fix the law, three quarters of the lawyers in Oz will be looking for jobs packing shelves in Aldi….

  • lloveday

    People have commented adversely on Pell not giving evidence. Lionel Murphy, a younger man, a High Court Judge with extensive trial experience and knowledge gave evidence at his first trial and was found guilty. On the advice of his lawyer Tom Hughes, the best money or love could get, he did not give evidence at his second trial and was found not guilty.
    After the second trial a left-wing lawyer friend told me Murphy had been exonerated but I reckoned it was a 1-1 draw, and I make Pell at this stage 0-1-1 in boxing parlance.

  • Mike O’Ceirin

    I am by no means a Christian and have no reason to grind my axe other than in my life I have seen the failure of the jury system a number of times. The first for me was the Chamberlain case which if one believed she was guilty it is a wonder she just didn’t exterminate the jury. I say this because to commit the crime they said she must’ve had mystical powers. I was later to learn over the years there was much more that showed what a fit up it was. Those behind this great miscarriage of justice wore no penalty for it.

    I am a resident of Canberra quite some time ago a man with mental problems was convicted of murdering our chief of police. He was an individual that was out of control and yes certainly capable. It was almost the perfect crime. No one saw him come no one saw him go it was over half an hour for it was realised the murder had been committed in the driveway of police chief’s home. The factual evidence did not prove presence at the murder scene or possession of that particular gun since it was never found. Scant as it was the evidence after many years fell apart and the accused murderer was acquitted.

    Now this which defies imagination that it is not beyond reasonable doubt. The non-corroborated evidence of one person convinces a jury of guilt. I hope that is not correct that it certainly appears so. I think if the appeal is won the damage to our legal system is incalculable. Personally I think the jury system should be dispensed with it is fatally flawed.

  • lloveday

    MO’C: Personally I think the jury system should be dispensed with it is fatally flawed”

    Sit in on FCA trials by a single judge sometime and, maybe, you’ll think that the jury system, flawed though it be, could not be worse. There are exceptions of course, and I have nothing but praise for the single judge who presided over my 8-day FCA trial.

  • ianl

    When (if ?) the transcript of the trial is released, do we have a full guarantee that it is *completely* unexpurgated ? How to demonstrate that ? Who may guarantee it ?

    Perhaps guaranteed with argument by authority ? That always works.

  • Jody

    What about juries that get it wrong when the person actually COMMITTED the crime? Thinking of Lloyd Rainey from Perth, a lawyer who got rid of his wife and was found not guilty. Everybody, especially the police and relatives, knew he did it.

    My problem is NOT with ‘beyond reasonable doubt’ but what passes for sentencing these days in which can only be regarded as perverse and lax leniency. All thanks to the “I’m-a-victim’ Left. We’ve done it their way long enough and it’s failed; time to bring in some adequate sentencing and appropriate sanctions for crime. Right now thugs can viciously attack police and public servants and walk away because some idiot magistrate tells them “don’t do it again’. ‘Appalling’ just doesn’t cut it. The Left continues to endanger us all in very many ways than just this one.

  • Bakunin of Barton

    I have believed from the get go that Pell is Australia’s Alfred Dreyfus. All the anti-Catholics and anti-conservatives focused their hate, hysteria, anger and self doubt on this man. In other words, a scapegoat.

  • Doubting Thomas

    Jody, everybody, especially the police and the relatives, knew that David Eastman shot Colin Winchester. He did 20 years for that, yet for me and others here in Canberra, some close to the family and police, who had followed the case closely from the beginning, there was no less “reasonable doubt” in the first trial than there was in the last where he was finally acquitted.

    Back in the 60s when I was an articled clerk for a small town solicitor, our firm represented a woman who had sued the local newspaper owner/editor for libel. He had been harassing her in his paper for months if not years for allegedly failing to do her job as Secretary of the local hospital to his satisfaction at least. Matters came to a head when he accused her of misusing hospital funds during the approved renovation of her flat at the hospital. The article he had written effectively accused her not only of wasting money but also of being a woman of loose morals who had insisted on a burgundy coloured bath because everyone knows nod nod, wink wink, say no more.

    The case was heard before the District Court judge and a four-man civil jury including a couple of the leading business people of the town (pop. 1500-ish). When the jury retired, our barrister, my boss and pretty much Uncle Tom Cobbleigh and all believed that she had won. However, the verdict went against her. My brother, an articled clerk in the other law firm in town who had acted for the editor, told me that the jurors had been overheard in the pub later gloating that they’d “got that bitch”.

    I’m not sure I’d go so far as to abandon trial by jury completely, but as others have already said, the current media environment demands some sort of drastic reforms to neutralise the toxic effects of the Peter FitzSimons of this world and their dupes.

  • jimmaths

    I’m wondering if it was wise for the Church to promote belief in miracles, now they’ve got people believing a Prince of the Church can commit opportunistic oral rape through four layers of clothing.

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