QED

Why the Second Jury Found George Pell Guilty

Why was the second verdict by the jury in the trials of George Pell so different from the first? If the juries in both cases were a fair sample of the Australian public, and the evidence heard by both juries was identical, you would expect the outcomes to be fairly similar. Like the first, the second trial should have produced a hung jury too. But the first trial produced a majority of ten jurors voting to acquit and only two voting guilty, whereas in the second trial the jury voted twelve-to-nil for guilty. This is a significant difference. So what explains it?

There are some things about the trials we can never know — the selection process for the two juries, what went on inside the jury rooms — so they cannot be considered. But there was one highly publicised external incident that must have made some impact on the second jury, but not the first. It is not far-fetched to argue that it largely made the difference.

Pell’s first trial for the alleged abuse of two choirboys in St Patrick’s Cathedral took place in the Victorian County Court in Melbourne over five weeks in August and September 2018 and produced the hung jury. The media was banned from reporting the outcome and the second jury was not told about it. The second trial began on November 8, 2018, and produced its guilty verdict nearly five weeks later on December 11.

Each trial was identical. The complainant was not required to be present in court. In the first trial, jurors saw him testifying and being cross-examined by videolink. The second time around, the jury saw a recording of the same videolink. The prosecution relied entirely on the testimony of this one former choirboy, recalling the events of twenty-two years earlier. The defence provided a stream of clergy to testify that the alleged abuse in the cathedral’s sacristy, a few minutes after Sunday Mass and with Pell still dressed in his multilayered archbishop’s vestment, not only did not happen but was physically impossible.

In between these two trials, on October 22, 2018, in the House of Representatives, Prime Minister Scott Morrison made a public apology to the victims of child sexual abuse. This was a recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse, which then-prime minister Malcolm Turnbull had formally agreed to deliver last July. After he was deposed, the task fell to Morrison, who invited Opposition Leader Bill Shorten to make a speech at the same time.

The day Morrison gave the apology, television news bulletins around Australia made it their lead story, and the next morning front-page reports in almost every daily newspaper in the country kept it alive. In the mainstream media, the apology went around the world, with reports on the BBC, US News and World Report, Straits Times, Reuters, Al Jazeera and iAfrica.

In Melbourne, where the jurors were recruited, the front page of The Age on October 23 carried a three-column wide photograph of Julia Gillard and activist Chrissie Foster in Parliament House congratulating each other under the headline: “A sorry that dare not ask for forgiveness”, plus two pages of reports inside. The Melbourne Herald Sun’s online coverage carried live video of the apology as it was given, accompanied by no less than fifteen separate online stories, with headlines such as “Scomo fights back tears telling victim’s story” and “Your country believes you”.

There is little wonder the issue attracted such attention. Since Kevin Rudd’s apology to the Stolen Generations in 2008, political speechwriters had refined their skills at this kind of thing and knew how to turn the issue into compelling theatrical drama. The driving motif of the apology was that, up until now, a terrible and ubiquitous crime had been silently suffered by tens of thousands of child victims. Overwhelmed by the authority that adults possessed in institutions, the victims had no one to tell and nowhere to turn. But now, thanks to today’s political leaders, who had the wisdom and compassion to listen to the children and to believe what they say, the victims can at last tell their stories and release their burden of guilt and shame. This was captivating material and both Scott Morrison and Opposition Leader Bill Shorten worked hard to outdo one another. Here are samples from their speeches to the House.

MORRISON: Today, Australia confronts a trauma, an abomination, hiding in plain sight for far too long. Today, we confront a question too horrible to ask, let alone answer — why weren’t the children of our nation loved, nurtured and protected? … Why was our system of justice blind to injustice? Why has it taken so long to act? … Why didn’t we believe? Today, we dare to ask these questions, and finally acknowledge and confront the lost screams of our children. Mr Speaker, I present the formal apology to be tabled in this parliament today … and, as I do, I simply say I believe you, we believe you, your country believes you.

SHORTEN: We are sorry for every cry for help that fell on deaf ears and hard hearts. We are sorry for every crime that was not investigated, every criminal who went unpunished. And we are sorry for every time that you were not heard and not believed. We hear you now. We believe you. Australia believes you … Too many were told. They just didn’t listen. Too many did know. They just didn’t act … Some of these people were supposed to be the pillars of our community. They had the power, the status, the authority — but they wielded these as weapons … But know that today Australia says: Sorry. Australia says: We believe you.

In their speeches, both Morrison and Shorten paid particular tribute to Julia Gillard who “had the courage and leadership to initiate this Royal Commission”. Gillard was at Parliament for the occasion, seated in the public gallery, next to prominent activists for the cause. When proceedings moved out of the House and into the Great Hall for a reception with activists and victims, her presence turned the occasion into something like a religious festivity. Jacqueline Maley of the Sydney Morning Herald wrote:

She was not the politician doing the apologising, but she was the only one the survivors really wanted … As soon as she entered, the room erupted and they all stood for her. When Shorten spoke, he said he was proud of her, and there was more applause and cheering. “Get her on stage please!” yelled one audience member. “Thank you!” and “Love you Julia!” shouted others. “Come over to my house for a cuppa, love!” cried another. Eventually they coaxed her on stage, but Gillard spoke briefly, only to thank the survivors for telling their stories, and for their stoicism. Moving around the room, she was mobbed. Everyone wanted a chat, or a photo, or just to embrace her. One man went down on his knees to kiss her feet.

Now, I don’t doubt that both Morrison and Shorten believed what they said when they quoted the Royal Commission’s findings. It is true, of course, that if either of them had shown any reluctance to back the Commission’s recommendations, their parliamentary opponent would have had a valuable political wedge, as Labor showed in the 1990s when it accused John Howard of heartlessness in refusing to apologise to the Stolen Generations.

It is nonetheless true that Morrison and Shorten showed too much faith in the reliability of the Royal Commission’s reports. In his apology Morrison said: “The steady, compassionate hand of the commissioners and staff resulted in 17,000 survivors coming forward, and nearly 8000 of them recounting their abuse in private sessions of the commission.” And Shorten could not resist the temptation to beat up the issue even further: “Australia failed tens of thousands of children, across generations, across this country.”

The Commission’s own statistics, published in its Final Information Update, showed a much smaller incidence of abuse than this. The Commission reported that, after its public appeals and private entreaties for victims to come forward, a total of 16,953 people made contact within its terms of reference (confirming Morrison’s statement). It heard verbal evidence from 7981 survivors of child sexual abuse and received 1344 written accounts (again confirming Morrison). But of those who complained, only 2562 had their cases referred to police (which neither speaker mentioned). What this shows is that almost three out of four complainants did not provide enough credible evidence for the Commission to put the matter into the hands of the proper authorities.

So, at a time when the Catholic Church was being publicly castigated by both the Prime Minister and Opposition Leader for not believing the word of all its complainants, offering only “deaf ears and hard hearts”, the government’s principal source, the Royal Commission, was doing the same to the great majority of those who approached it.

It should also be noted that the Royal Commission had the same basic methodology as the Stolen Generations inquiry by the Australian Human Rights Commission. Both determined their conclusion at the outset. Both were appointed to investigate a serious social problem and their aim was to find evidence to quantify the problem and offer policy solutions. The concept of evidence was defined as anything that supported the pre-determined conclusion. Anyone could make accusations and, indeed, had an incentive to do so, some through the lure of compensation, others through the appeal of public victimhood. Hence the statistics that inquiries of this kind provide are simply compilations of grievance, many of which are no doubt genuine but many of which are notoriously unreliable. In short, by relying on the Commission’s data, both Morrison’s and Shorten’s claims about the issue were unsafe.

As Quadrant has shown in a number of articles published in April and May this year, the Royal Commission did not take the issue of bogus complainants seriously enough. Yet, with our very limited resources, we quickly found enough examples to demonstrate that their claims should not be believed on their word alone. These included (i) the fantastic claims by Gordon Hill about sexual abuse and torture in dungeons at a Catholic boys home, and in confessional boxes in churches; (ii) the “recovered memories” of Cathy Kezelman of childhood rape by her father and a family friend, and her grandmother’s consignment of her to a sexually depraved satanic cult in Brisbane; (iii) the exposure of “trawling operations” by police in England and Wales to uncover abuse in residential institutions for troubled adolescents, which attracted numerous dishonest complainants from current and former prisoners with long criminal records; and (iv) the “Billy Doe” case in Philadelphia in which a complainant gave false testimony about abuse by three Catholic priests and a teacher that sent them to jail, where one died, before the others had their convictions overturned.

Now, the only people in Australia who would not have known about the national apology and the emotions it provoked on October 22 would be those who didn’t watch television news, didn’t read newspapers, didn’t listen to radio commentators and didn’t use social media. In other words, it is more likely than not that the jurors selected for Pell’s second trial would have absorbed at least some of its content and sentiments. In particular, they would have heard the oft-repeated refrain to the victims: “We believe you, we believe you,” and the invective heaped on religious authorities, police and magistrates who in the past failed to heed that message.

Some jurors might also have been aware of the saint-like status bequeathed by the occasion to Julia Gillard for her purported courage and foresight in shining a light on the plight of victims and flushing out evil doers.

Moreover, the content of all this media coverage was not only politically and culturally jaundiced, it was empirically unreliable, based on a naïve faith in the veracity of the Royal Commission’s claims, or in the case of Shorten’s speech, a wilful exaggeration of the scale of the problem.

Sixteen days after all this, on November 8, the jurors selected for the second Pell trial were expected to forget whatever they had heard before, and take an objective stance on the whole business. The court expected them to act as if they had been quarantined from any contaminating opinions and value judgments. It was asking the impossible. The jurors heard all the trial evidence —its claims, counter claims and cross examination — with a dodgy national apology ringing in their ears.

Keith Windshuttle is the editor of Quadrant.

 

11 comments
  • Salome

    Not sure whether the other Pell case has made it into the discussion yet: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCC/2019/149.html

  • Wyndham Dix

    Shorten: “We are sorry for every crime that was not investigated, every criminal who went unpunished.”

    The want of awareness of self and of Gillard’s AWU-WRA exploits in the early 1990s is astonishing.

  • lloveday

    “But the first trial produced a majority of ten jurors voting to acquit and only two voting guilty, whereas in the second trial the jury voted twelve-to-nil for guilty.”
    .
    We know the second was 12-0, but what is the basis for the oft-repeated claim that the first was 2-10? I thought the result was not in the public domain, and that is backed up by this from news.com.au:
    .
    There has been speculation that the jury in the first trial was split 10-2 in favour of a not-guilty verdict for Pell but this was not published by a reputable source. The truth is, we don’t know the result and we probably will never know because jurors are not allowed to talk about it and it’s unable to be reported. In Victoria, journalists and jurors would be facing a five-year jail term for publishing this. Interstate journos could also be extradited, however it’s unclear what would happen if it was published overseas.
    .
    Information that I regard as more liable than any I have seen claiming 2-10 was that it was a 6-6 split.

  • deric davidson

    lloveday, can you provide for us your ‘more reliable source’?
    Even if it is 6-6 the change to 0- 12 is pretty radical and the question is still what caused this revised and unanimous condemnation of Pell at the second trial?
    Btw I will still believe 10-2 until absolutely conclusive evidence says otherwise. This was the result for trial 1 stated by overseas commentators who also had the result of trial 2 well before it was revealed in Australia. Leaking is not beyond the realms of possibility (probability?).

  • Lawriewal

    “Overwhelmed by the authority that adults possessed in institutions, the victims had no one to tell and nowhere to turn.”

    Hell! not a single parent or guardian these tens of thousands of abused children could turn to”?

  • Keith Windschuttle

    lloveday challenged the 10-2 verdict when first stated on Quadrant Online in an article by Jim Franklin. Jim replied: “I checked with someone who was there and am confident in the figure.” I have since heard it from several people who had other sources, including the early reports in December from overseas sources by writers who were there too. lloveday’s claim is the only dissent I have seen. I trust Jim.

  • ianl

    From the article above:

    > ” … those who didn’t watch television news, didn’t read newspapers, didn’t listen to radio commentators and didn’t use social media”

    Unless QoL here is classed as social media (leftoids class it as antisocial media, of course), then such people do indeed exist. I watch no TV news, nor listen to FM radio except the actual music broadcasts, nor read papers beyond the chess column three times a week.
    As a consequence, I have no idea whether any of this is true. No Christian am I, nor any religion actually, but if an innocent person has been deliberately imprisoned for what is likely the rest of his life, then I regard it as a genuine criminal abuse of power. That is irrespective of any religious aspect.

    I understand an appeal is to be heard but beyond that, is there any practical, useful, rational action to be done ?

  • Lewis P Buckingham

    ‘I understand an appeal is to be heard but beyond that, is there any practical, useful, rational action to be done ? ‘
    Looking at this site it allows the prospect of others to look at what evidence emerged and make their own decision.
    The consequences may include a book and a PhD thesis.
    The University of Melbourne could be asked to publish them.
    The stakes for societal justice are so high it would be worth appealing to the High Court.
    A gofundme would kick things off.
    https://www.gofundme.com/how-it-works?utm_source=google&utm_medium=cpc&utm_campaign=GoFundMe_AUS_NZ_EN_Exact&utm_content=Gofundme_Australia&utm_term=gofundme%20australia_e_c_sl&gclid=EAIaIQobChMIktDZsZOY4gIVj4mPCh1FmwD6EAAYASABEgJTWPD_BwE
    A few more curious journalists about to retire and not on Twitter would be useful to dig a bit deeper once the saga is complete.
    Perhaps a few podcasts.
    One never knows what will flow from the Lawyer X Royal Commission,as it shines a light on the inner workings of local police and management.
    It may be worthwhile keeping a watching brief, while encouraging good people to step up to the mark.
    Only good will come of all this.
    Hopefully we can pass the confidence to our children, that they are safe from due process where it smells of illegitimacy.
    However, in the meanwhile, we trust that the appeals will succeed.

  • lloveday

    I neither believe nor disbelieve 10-2 or 6-6. Nor care. Arguably none of us can know unless someone has broken the law. I was told 6-6 from a 100% trusted source, but third hand, with the alleged first hand being someone who certainly does know. I just hope and pray the Cardinal’s appeal succeeds.
    .
    Given the criminality explained in the quote I gave from news.com.au, which I believe to be accurate, of course I will not disclose my “more liable [sic – where’s the edit feature gone?]” source.

  • en passant

    Oz is such an inventive society, it makes my chest swell with pride every time I think of the stump-jump plow, the aircraft black box, the Owen gun, the cochlear ear implant and (best-of-all) the Kangaroo Court.

  • jimmaths

    “Salome” is right (first comment above) to remind us that the Ballarat pool allegations against Pell remain unresolved and hard to evaluate. They’re not like the Cathedral one where there’s an uncorroborated allegation facing a proof of impossibility. On the one hand, there’s something faintly ridiculous about alleged crimes in full view of everyone, especially since the pool manageress said she had an eye on everything and there was no funny business. On the other hand, several (4 or 5?) complainants say something similar: that Pell pawed them over sometimes in the course of the throwing game in the pool. The allegations by Dignan and Monument, aired on ABC TV, appeared to be sincere, but they had the special feature that the complainants had both been abused by someone else earlier, which you would think might lead them to interpret actions differently from most people. In the allegations linked above, we don’t know how the defence planned to challenge the witnesses’ credibility. 40+ years is a long time for people to work on their memories with the “help” of their therapists. All in all, it’s unresolved.

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