QED

When a Jury Gets it Ludicrously Wrong

On March 13, Cardinal George Pell was sentenced to six years jail on charges of child sexual abuse. He will be eligible for parole in three years and eight months.

Some people have pounced on comments at sentencing made by Pell’s defence team, suggesting that these were admission of guilt. This is not the case.

In both Australian and UK courts, once a jury delivers a verdict of guilty, the defence may not dispute that finding (until any appeal is lodged) but has to address the court as if the fact of guilt were now established.

The presiding judge is under a similar obligation, so Justice Peter Kidd’s remark prior to sentencing that his comments and sentencing were made on the assumption that the offences took place as alleged is striking and unusual. I have been present during a number of criminal trials, and I have never heard any judge say anything similar, almost as if he were distancing himself from the verdict, and making it clear he was going through the motions as required.

Why would he do this? Perhaps because the evidence falls far short even on a balance of probabilities basis, let alone where guilt is required to be proven beyond a reasonable doubt. There is a principle in English and Australian jurisprudence that if there is a reasonable explanation of the evidence that is consistent with the defendant’s being innocent of the charges, a verdict of not guilty must be returned.

Not only were there reasonable alternative explanations of the evidence, but on the evidence given in court by multiple witnesses, it was simply impossible for Cardinal Pell to have committed the offences as alleged.

Some people have suggested that since the court was closed, no one can know what the evidence was, and therefore no one apart from the jury knows the full story. But this is not the case. The court was not closed. Several journalists and members of the public attended throughout. Media suppression is not the same thing as a closed court. That simply meant that details of the case could not be published in Australia until the suppression or der was lifted.

The prosecution’s case was that following Mass at the Cathedral, Archbishop Pell had found two boys in the sacristy drinking altar wine, and had forced them to give him oral sex. The “second victim,” who died before the case came to trial, had said specifically that nothing of the sort ever took place. The entire case against Cardinal Pell was the testimony, more than twenty years after the alleged events, of a single person whose credibility was not permitted to be challenged in court.

The prosecution did not dispute that after Mass Archbishop Pell had been at the door of the Cathedral greeting parishioners as they left, or that after this, he had been in the company of several other people until he left for another function.

The only time in which the alleged offences could have occurred were in the period after the final blessing, until the exit procession arrived at the main doors.

In summary, this is what the prosecution claimed on the basis of the word of a single, uncorroborated witness:

As the procession was forming to leave, two choir boys absconded, unnoticed by anyone at the time or later. At about the same time, the Archbishop, celebrating in his Cathedral for one of the first times, also absconded, also unnoticed by anyone else in the procession, or the hundreds of other people in the Cathedral. The boys returned to the busiest room in the Cathedral at that time, the sacristy, where they found some altar wine which they began to drink, even though altar wine is never left there unattended.

According to the alleged victim, neither the sacristan nor any of the other altar servers or helpers, who would normally be constantly in and out of that room at the time, were anywhere to be seen. Archbishop Pell entered the room, unseen by anyone, and demanded the boys give him oral sex.

It was not disputed that he was wearing his eucharistic vestments. For a pontifical high Mass, celebrated by an Archbishop at the main Mass on Sunday in his own cathedral, these customarily consist of a close fitting cassock with thirty-nine buttons from top to bottom, a cincture – a wide band around the waist of the cassock, an alb, a long white robe tied with a rope or cord (both cassock and alb are full-length garments, reaching from neck to floor), and over these a dalmatic and a chasuble, both heavy brocade garments reaching to the knees.

Evidence given by the prosecution’s single witness was that these garments were pushed aside. They cannot be pushed aside. It is just possible that they could be lifted enough to give access to everyday clothes underneath, and that these could then be opened, but the cassock, alb, dalmatic and chasuble would need to be held with one hand the entire time. It would tight and uncomfortable, and movement would be almost impossible. This would still be the case even if Pell were wearing only an alb, stole and chasuble over his street clothes, as some parish clergy do.

The prosecutions’ case is that having taken a few minutes to lift these tight, heavy garments and open his normal clothes underneath, the Archbishop, with very limited movement and one free hand, chased the two boys around the sacristy, unnoticed by the large number of people moving between that room and the sanctuary, forcing each of the boys to give him oral sex.

He then masturbated to completion, rearranged his garments, walked back through the Cathedral and re-joined the procession before it arrived at the Cathedral door, again without anyone noticing, while the two boys re-joined the choir, also without anyone noticing either that they were back or that they had been gone.

All of this, according to the prosecution, from the time the procession left the sanctuary to the time it arrived at the door, about one hundred metres distance, took place in about five minutes. In reality (I have been to mass at that Cathedral) about three minutes. Three minutes!

The story is manifestly ludicrous. It is impossible, simply silly.

Juries get things wrong. Facts can be complex, laws confusing, and trials long. But the finding of the jury in this case is unaccountable. The verdict is not an indictment of Cardinal Pell, far less the Catholic Church as a whole, but of Australia’s mainstream media, and Victoria Police.

Operation Tethering, the Victoria police investigation into Cardinal Pell, started in 2013. It was not set up to consider complaints of criminal behaviour; there hadn’t been any. It was set up to generate them. This campaign included the placing of advertisements in Victorian newspapers inviting people to make complaints. If you invite complaints, you will get them. The police had their man. They just needed a suitable victim.

Comparisons have been made between the calumnies heaped on Pell by the media, and the feeding frenzy of hate and condemnation directed at Lindy Chamberlain between 1980 and 1988. The media have been evil angels in both cases, and in the case of Henry Keogh, and of Archbishop Wilson, and others. A rush to gleeful condemnation has become an ugly, but presumably profitable, feature of some parts of Australia’s mainstream media. But at least in the Chamberlain and Keogh cases, something had happened which required investigation. Juries in both cases were misled by mind-bogglingly incompetent forensic experts. For Cardinal George Pell, there were no incidents or complaints to investigate. Police had to go hunting for offences with which to charge a man they had already decided was guilty.

The verdict will be overturned on appeal. But massive harm has been done, to Cardinal Pell himself, of course, to the credibility of Australia’s media and judicial system, and not least to genuine victims.

14 comments
  • T B LYNCH

    I have a very dear friend who was tried for sex three decades ago. First he was defamed in the Federal Parliament by the labor local member.[This parliamentarian later did 10 years for two rapes. On release from jail he tried to make a comeback based on a claim of carnal knowledge of 152 women and girls; this went over like a lead balloon].
    Following on from the parliamentary defamation he suborned three witnesses; the first was a pedophile with a venereal disease; the second was a working girl with a venereal disease; the third was on drugs. These low life’s had no trouble painting my innocent friend into their lurid lives. Fortunately their stories failed to correspond to reality.
    Finally my friend had the good fortune of a Judge only trial, an honest and intelligent judge, and a capable solicitor and barrister who recognized the innocence of the prisoner and performed accordingly.
    Acquittal was an enormous relief and silenced the gossip emanating from Hansard. That is when my friend found out that only 30% of perjurors ever get prosecuted, and prosecution witnesses never get fried.

  • Paul C Kucfir

    May I ask about the role of the judge…
    Suppose I am a juror, I have not, but was close to be one in the past.
    I ask the judge for help, “Your Honour, I , with my limited knowledge
    of particulars of the law, but taught a bit of logic, old style primary and secondary schools, know that there exists a legal rule I happen to agree with:
    tesis unus testis nullus
    Am I allowed, am I supposed to act upon such a conviction?”
    What is the most likely response from the Judge?
    If yes, then has there not been any one juror in the second 12 with a similar
    course of action, doubts?

    One could often hear recently in the context of Cardinal Pell’s trial the phrase
    “witch hunt”. Not long ago I heard that the possessions of a person convicted of witchcraft went to the accuser. Does it sound sensible? Did it encourage
    accusations “for profit”? One should ask oneself this question.

  • ChrisPer

    Once an offense is created there exists the possibility of criminal injuries compensation.
    In a frighteningly similar case in the UK, Police wrote to former inmates of ‘childrens homes’ many of them for disturbed or criminal young people, soliciting accusations and talking of compensation up to 100,000 GBP.
    It is estimated that 1200 former staff of such homes, completely innocent, were falsely accused, found guilty and locked up for long terms.

  • Peter OBrien

    Peter, an excellent summary. I,too,was struck by what seemed to me as the judge’s apparent attempt to distance himself from the verdict and started to write a piece based on his sentencing remarks but other things intervened. The other judicial remark that interested me was the assertion that the Cardinal had not offended before or since. The very fact that his record is unblemished both before and after the 1996 incident suggests strongly that he did not commit this one. Paedohiia is not something that ‘seems like a good idea at the time’. You could argue that he simply was not caught on other incidents but how likely is that?

  • Les Kovari

    We live in the era of making an art of cutting down tall poppies. Judas has had his day, did he have his seven pieces of silver too? Today’s terrorist will be judged by history as tomorrows patriot. Who knows.

  • STJOHNOFGRAFTON

    Given the facts:
    (a) Timing .
    (b) Restrictions of multi-layered religious apparel.
    (c) That, a highly significant, fifty percent of plaintiff accusations were retracted.
    (d) The highly significant fact that the number of accusers reduced by fifty percent down to one.

    I conclude that the statistical probability of the alleged offence is very low.
    Furthermore, based on the fact that the accused was found guilty on the testament of one alleged witness, I agree with Paul C Kucfir, that the Latin “testis unus testis nullus” is apt.

  • Doubting Thomas

    Peter O’Brien, Gerard Henderson in his inimitable way has made these very same points in his column in today’s Weekend Australian. Needless to say, the mainstream media has not hastened to emphasise those points,

    Without in any way seeking to minimise the wickedness of the Christchurch atrocity, I think it’s fair to repeat the old adage that it’s an ill wind that blows no good. Pell, at least, might benefit from the media’s distraction.

  • deric davidson

    ‘If the glove don’t fit you must acquit’ – OJ (who most considered guilty) was acquitted. The equivalent for George Pell are the the multi-layers of impenetrable clothing he wore on the day that would have required Pell to be some sort of Houdini to perform sexual acts with 2 boys and in all of 3-5 minutes! Pell should have been acquitted on this ‘evidence’ alone. He wasn’t. This beggars belief.
    No attempt was made to re-create these obviously bizarre circumstances prior to the trial. Why not?

  • Jody

    I give up; the garments were on loan to Central Casting? You are clutching at straws. Even Scarlett O’Hara could defly remove ‘impenetrable clothing” when the mood took her.

  • Salome

    Are you referring to paragraphs 16 and 17 of the sentencing remarks? They are here: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/260.html and I quote:
    16 You fall to be sentenced on a basis consistent with the jury verdict on your trial.[2] It was common ground at the plea that this effectively means that you are to be sentenced on the basis of the account of the victim J who gave evidence at trial. Your counsel accepts this.

    17 I must at law give full effect to the jury’s verdict. It is not for me to second guess the verdict. What this means is that I am required to accept, and act upon, J’s account. That is what the law requires of me and that is what I will do.

  • deric davidson

    Ridiculous and irrelevant comment Jody. You are the one clutching at straws in order to justify a verdict based purely on the words of one witness – the accuser. Of course there are other issues that simply make the words of the accuser implausible.

  • Lo

    Scarlett O’Hara was a fictional character.

  • PT

    I’d point out, Jody, that the claim was that it was “pushed aside”, not that it was removed. It’s ceremonial garb, and designed for visual impact, not ease of putting on and off.

  • JamesBowen

    I comment as a former Victorian Prosecutor for the Queen whose duties included signing the presentments (also known as indictments) containing the charges to be considered by juries in the Supreme and County Courts. If the case against Cardinal Pell amounted to no more than I have read in this article, together with newspaper reports of the evidence that I have carefully scrutinised, then I fear that there has been a serious miscarriage of justice, and I hope that it will be corrected on appeal. My comment is not influenced by religion. I am Presbyterian by faith.

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