QED

The Majesty of the Law

When George Pell arrived at the Victorian Supreme Court on June 5 for the hearing of his appeal against his conviction for child sexual abuse, guards put him in handcuffs. As he walked the few steps from his prison van into the courthouse, press photographers captured this compelling symbol of his fall from grace. Fairly obviously, the paparazzi were at the right place at the right time thanks to someone who leaked inside knowledge. Moreover, the scene had nothing to do with security. No one could have seriously regarded Pell as a flight risk who, if left with his hands free, might have knocked down his guards and bolted from the courthouse to freedom.

Nor could this display of his degradation reflect some egalitarian policy of treating all convicted prisoners alike. Only a minority of them make appeals and few of these are dangerous enough to warrant the security precautions taken with Pell. Moreover, it must have been apparent to those responsible that the image would be captured on that evening’s television news and the next morning’s front pages, to both shock Pell’s supporters and delight his detractors. In short, it smacks of a put-up job.

The appeal was not the first time something like this happened. After Pell was sentenced, and before he was led off to prison, he was required to sign the Victorian Register of Sex Offenders. Under the Sex Offenders Act 2004, there are three options for the length of time someone remains on the register and reports his movements to the authorities: eight years, fifteen years or “the remainder of his or her life”. Sentencing judge Peter Kidd gave Pell the last option: “By virtue of you committing these offences,” he said, “your reporting period as a registered sex offender is for life.”

Kidd was obliged by state law to do this. However, seeing that an appeal against the conviction was immediately lodged, couldn’t the addition of Pell’s name to this odious file have waited? Moreover, if his appeal is successful, is his name then erased from the list? What if he is exonerated but there is a subsequent appeal to the High Court? How long would his listing remain intact? It is not hard to see that for genuine, serial pedophiles there is a need for an index of this kind, but in a disputed case like Pell’s it can remain an awful and lengthy defamation of an innocent man.

Under the Australian system of justice, punishment is said to be limited to the deprivation of liberty. Once an offender has served his time, he is supposed to be restored to his normal place in society. However, the above two symbols of the way Pell has been treated have added stains to his name that are indelible. And this is despite the fact that, at the time of writing, the outcome of his appeal has not been decided. It must be emphasised that most informed observers of this case regard the conviction as highly contestable. This is true even of Pell’s most prominent enemies and haters, like journalist David Marr, who wrote in The Guardian on June 1 that “George Pell stands a good chance of winning his appeal next week.” (Marr’s long-term hope is that the question will eventually go to the High Court where he claims legal precedents would make Pell’s prospects more difficult.)

Hence, the symbolic punishments of humiliation and dishonor already handed to Pell are both unwarranted and unfair. They make it seem that those responsible have used the opportunity to inflict additional punishments on the accused while they still could, and well before the full processes of the law were exhausted.

This brings me to a different issue about one point of evidence in the trial that questions the soundness of the jury’s decision. It is a matter I thought might be raised in the appeal but, as far as I can tell, was overlooked. It is an issue which, in the absence of a published transcript of the evidence of the complainant, is not easy for lay observers to resolve. However, there are enough clues in the existing documentation to show that some of the case against Pell was obvious and uncontestable rubbish.

In his sentencing of Pell, Peter Kidd in Paragraph 26 described part of the abuse of the complainant as follows:

You then committed further indecent acts with J. You told J to take off his pants and you started touching his genitalia with your hands. This is charge 3 on the Indictment. While this was occurring, you began touching your own genital area with your other hand. These acts occurred over a minute or two. This is charge 4 on the Indictment. Both charges 3 and 4 are Indecent Act charges. [my emphasis]

Now, George Pell is a man with only two hands. If he started touching the boy with his “hands”, then “while this was occurring” he would not have been able to touch his own genitals with his “other hand”. He would need three hands to do what the judge asserted. When a Quadrant reader alerted me to this, describing the scene as “surrealist nonsense”, I thought there must be an error in the transcript. So I replayed the video of Kidd’s remarks and found there is no doubt that he said Pell was touching the boy’s genitals with his hands, plural. Now, this is no slip of the tongue that doesn’t matter. The judge’s description of what happened at the time is the substance of Charges Three and Four against Pell which, as Kidd’s footnote assures readers, is “contrary to s 47(1) of the Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1991)”.

Moreover, if you read the response by the prosecution to Pell’s appeal on June 5–6, you find that Kidd’s terminology closely followed what the complainant, Witness J, originally told the jury himself:

The applicant then instructed the complainant to undo his pants and to take them off. The complainant dropped his pants and underwear. The applicant started touching the complainant’s penis and testicles with his hands. (Charge 3) As he did this, the applicant was using his other hand to touch his own penis. (Charge 4) The applicant was sort of crouched, almost on a knee. These two instances of touching took a minute or two. [my emphasis]

In short, the jury certainly got it wrong about Charges Three and Four, which raises the obvious question among those of us who can still read plain English: what else did they get wrong too? Well, there’s more. Those who have followed this case closely in the press will be aware that, while all the above was supposedly taking place, Pell was doing something else with his hands too: he was pushing up, or pushing aside (depending on who you believe), his archbishop’s vestments involving several layers of clothing: not only his trousers and underwear but also an alb (an ankle length tunic with no opening down the front) and a chasuble (a knee-length robe like a poncho). Both normally required Pell to have an assistant to robe and disrobe him. Pell’s defence described them as follows: “the alb was tightly tied in place by a cincture (a rope like belt) which was also attached to a stole (a piece of material around the neck) and a microphone — meaning it could not be moved around the front of the body”.

During proceedings on June 6, President of the Court of Appeal, Justice Chris Maxwell, took issue with defence counsel Bret Walker’s claim that the acts attributed to Pell were “literally and logically impossible”. Maxwell said this might be true if someone was in New Zealand at the time the offences allegedly occurred but, given the timescales involved in the locale of Saint Patrick’s Cathedral — five or six minutes after the Mass concluded — they might be improbable but not logically beyond belief. Unfortunately, no one asked his honour whether a man with three or more hands might not be beyond logical belief too.

Historically, courts in the English-speaking world have relied upon the concept of “the majesty of the law” to impose both authority and respect for their institution. This always depended on deep traditions that were essentially theatrical props and gestures — wigs, gowns, titles, language, standing, seating and bowing. The televising of Pell’s sentencing and appeal has added a new dimension to the courtroom stage show. The audience can now watch it all from the comfort of their own home and, if they need to, can click their remote control for documentary backup on their screens.

Those of us who still believe the traditional notion of the law’s majesty remains an essential social pillar that helps preserve us from barbarism can only hope that the B-grade spectacle we have witnessed at so many places in the persecution of George Pell is an aberration and not a portent of some squalid, unwatchable future.

23 comments
  • deric davidson

    How was this man ever charged let alone convicted?! There is a stink of the filth of a conspiracy to ‘get Pell’ about all this – a scapegoat was required. If Pell is not exonerated then the justice system in Victoria is not worth a pinch of the proverbial and we should be deeply troubled by this.

  • en passant

    Surely this farce will be ended when they re-enact the whole sorry tale to demonstrate that the crime was impossible to perform given the vestments involved.
    Alternatively, how fortuitous was it that on this rare occasion Pell was abandoned by his staff for the requisite 6 minutes and 13 seconds, beating his previous record by 12 seconds.
    Majesty of the law? The law is and always has been an ass that attracts and most rewards the best storytellers, con men and liars and for which justice is both irrelevant and a foreign concept.
    Oh, and the dingo did it …

  • Salome

    Having had neither the time nor the courage to listen myself, I am nevertheless told by two sources that on the second morning, during the Crown’s presentation of its case, Justice Weinberg probed in detail the evidence about the robes and the hands–this is the impossible bit. The rest is, I expect, what Maxwell P described as ‘improbable’. It would appear that the appellant’s case only grew stronger during the Crown’s day, which is a good sign. I saw some disturbing news reports, however, one of which seemed to be saying that the Crown was relying on the ‘moving’ testimony of the complainant–as if ‘moving’ was somehow a guarantee of veracity. I pray that this is journalistic licence. I pray also that this will very soon be satisfactorily over. Even a reasonable result on appeal, however, is not a sign that all’s well that ends well with the Victorian criminal justice system.

  • lloveday

    “…he was required to sign the Victorian Register of Sex Offenders”.
    .
    I’ve not understood why Cardinal Pell did that. What was the downside from refusing to? A longer sentence? Solitary confinement and bread and water? Contempt of court? Odium of the masses?
    .
    The Victoria Police inform:
    The Register operates under the Sex Offenders Registration Act 2004 and aims to:
    · reduce the likelihood of registered sex offenders re-offending in the community
    · assist the investigation and prosecution of any future offences
    · prevent sex offenders from working in child-related employment or volunteer duties
    Whether Cardinal Pell signed or not would have no effect on the achievement or not of those worthwhile aims.
    He’s on the list, knows he’s on the list, “everyone” knows he’s on the list, so what possible upside is there to him, or anyone, signing it – to me it’s a bit akin to admitting he should be on it, like issuing a court-ordering apology.
    .
    “… It is an issue which, in the absence of a published transcript of the evidence of the complainant..”
    Gerard Henderson refers to the transcript of the second trial, which I presume would not include that evidence, but I have been unable to locate it on-line and live very far from the Supreme Court. Can anyone please direct me to a copy?
    .
    Maxwell J, as I heard live, referred to the first verdict as meaning that at least 2 jurors were not convinced of Cardinal Pell’s guilt, indicating that all we legally (and definitely?) know is it was somewhere between 2-10 and 10-2.

  • lloveday

    Sheeet – Gerard Henderson refers to the transcript of the Victorian Court of Appeal hearing, NOT the second trial. Oh for an edit function!

  • Salome

    2 jurors is the statutory minimum for a hung jury. Therefore ‘at least 2′ aint givin’ away nuttin’. I expect the Cardinal signed the register because he has throughout this process sought to set an example by submitting to the civil authorities. I trust that he can be struck off.

  • Colin Clarke

    The other issue is why is the Appeal decision taking so long?
    The Appeal concluded on Thursday May 30 and having watched most of the proceedings i am sure that the three judges left the court with a clear view. Surely it cannot take this long for each judge to document their views? It seems very uncaring to me.

  • lloveday

    Indeed, Maxwell gave away nothing, as he must and I guessed he said it in part at least to get across that the public does not know whether it was 10-2, 2-10 or somewhere in between and legally no-one who does know is permitted to publicise it. Maxwell should not know. I know KW has quoted his source previously, but who knows, maybe the source has transposed the ‘score”
    .
    The Guardian (ok, hardly a reliable source, and certainly no friend of the Cardinal) gets it it right, imo, although I don’t know who they refer to as “the chief judge”:
    .
    “This is an unverified rumour with no credible source. There have been plenty of other rumours about the split in the mistrial, including that it was more even. The weight of the split makes no difference. The law requires a unanimous or 11-to-one verdict, and anything else results in a mistrial. The chief judge is not told of the split and he made it clear he did not want to know. Any juror who reveals the split breaks the law.”

  • Peter Smith

    It is argued, I believe, because sexual assault often involves just the victim and the perpetrator, that the uncorroborated evidence of a complainant should carry weight that it wouldn’t ordinarily carry. Hence the case against Cardinal Pell. This is dangerous territory, however convincingly the complainant comes across. Unfortunately, the world is full of convincing liars and of people who invent memories, truly believe them, and are more convincing for that. If one person’s uncorroborated story becomes sufficient for the police to lay charges, for a judge to allow a trial to proceed, and for a jury to convict, then no one is safe. In my view, the case against the Cardinal should never have proceeded beyond the doors of the police station – and that is without taking account of the sheer logistical improbability of the alleged offences ever taking place and the fact that the other person allegedly assaulted (who has since died) denied to his mother that it had occurred. It all smacks of a travesty of justice.

  • Dallas Beaufort

    I wonder for when the hunting for Pell will be over

  • Doubting Thomas

    ‘I wonder for when the hunting for Pell will be over.’
    In a word, never.
    I think that by now it must be evident to all reasonable people that the radical left, the self-styled ‘progressives’, lack the capacity to learn from experience unless, and to the extent that, their experience confirms their preconceptions. I also think it should by now be evident that the aim of this anti-Pell campaign really has nothing much to do with Pell at all, or the Catholic Church, and even less about justice for victims of paedophilia. It has far wider and deeper aims consistent with the Gramscian ‘long march through the institutions’: to cause the greatest possible disruption to, and the ultimate destruction of, our democratic society.
    As with every other leftist campaign, too much will never be enough. For the radical left, this campaign is the gift that keeps on giving.

  • Les Kovari

    I hang my head in shame at the thought that all this is happening in Australia. How can such great travesty of justice be allowed in a country of such great Australians as Henry Lawson. How can we stand by and let the soul of this once proud nation be so brutally degraded. I watched the documentary Hawk, the story of Bob Hawk and thought, there was a man who had many vices but despite of all of them he is still revered. How can we, on the other hand, smear a good man such as Pell with so much dirt and still call ourselves Australians. Shame, shame, shame.

  • talldad

    Les Kovari – 17th June 2019

    I hang my head in shame at the thought that all this is happening in Australia. How can such great travesty of justice be allowed in a country of such great Australians as Henry Lawson.

    Les, this kind of thing has happened before. Most infamously and egregiously in the Azaria Chamberlain trials in the 1980s (and no doubt there are others). Hence earlier correspondent en passant’s reference to “the dingo did it” – a position I and many of my friends held ab initio at that time, and still do.

    Lindy Chamberlain served three years in a NT jail before being summarily sprung when new evidence corroborating her version of events came to light. She was eventually exonerated and officially pardoned but her marriage had been busted up and she lives elsewhere because Australia is such a sad country for her.

    Likewise, I and my friends consider this worse than the Azaria case because activist progressives have done so much more to ruin the legal system since the 1980s.

  • Les Kovari

    talldad, you are right. The only problem is that we keep doing it, Every new generation, every new era repeats the same error of judgement, then we apologize, we retreat but the shame and the tarnish of the character remains. The cruelty of all this is so great, so devastating that no amount of clemency will get it right again.

  • T B LYNCH

    Magna Carta provides that no-one shall be put on trial on the uncorroborated statement of a royal official, still less a commoner.
    This trial should have never happened.

  • [email protected]

    Amazing that no one picked up on the hands thing.

    The Victoria police, prosecution and jury just wanted a scapegoat, and that is all Pell is. The appeal judges must free him immediately if the system is to retain a shred of credibility. And if I were Pell I would be looking at retribution, from on high.

  • Max Rawnsley

    In the happy event George Pell is freed he will never achieve the freedom it should entail. The leftists and anti Catholics will pursue him as Trump has been. Legitimacy is not for conservatives or even others who seek rule of law rather than hate based opinion. The march to genuine freedom will be a long hard road.

  • Lewis P Buckingham

    What was fascinating about this trial was the way it turned into the searing examination of the prosecutor.
    When looking for argument he was ‘helped’ by the bench with the suggestion that judgement of veracity
    [by Pell] was a question for the Jury, surely that must be his argument, to which he agreed.
    Extra lunch time was arranged as he lost focus and strength of voice.
    He even did not behave as if this were an open trial, with outsiders listening, otherwise,why mention the accuser by name?
    It brought back memories of one close to me, a panel operator, who hit the kill button on Ron Casey when he was slinging off at a certain racial group.
    The panel operator was sacked.
    Those were the days my friends.
    In this trial the defenders of Pell have fallen backwards and tied their hands by not in any way setting up the accuser.
    Yet perversely his own barrister nearly did.
    But ,why would an experienced SC have so much trouble running this case?
    Consider this as an experience of ‘exam nerves’, for this case is being carefully scrutinised world wide, it is an examination of everything in this case.
    So what makes me and others panic?
    One thing is, of course, just the pressure.
    There may only be a couple of days, win or lose, pass or fail.
    Another is the secure sense of being in command and across the detail and the basic knowledge.
    As an SC he was that.
    Actually, personally making the judgement call that the evidence justified the accusation.
    Perhaps he came to the objective realisation, as he himself was being examined by the bench, he was arguing the impossible, so was deeply conflicted and could not hide the emotional consequence for him?
    The SC deserves great respect.
    Everyone should have access to qualified represention.
    That he gave.
    It remains a decision of the court.
    We await the decision.

  • 8596

    Re the delay in findings announcement – a priest friend told me on the weekend that it might be a while because the Court is on three weeks’ recess when nothing happens. Paul Collits

  • lloveday

    I looked at the Daily Hearing lists yesterday and today, and there were references to “Acting Chief Justice”, so it does look as if at least one of the 3 who heard the appeal is on leave (recess?).

  • Salome

    It would seem that way. If the judges come to a majority view in an appellant’s favour, it would appear that it is procedurally possible for them to write to the person in charge of custody and have the appellant released pending delivery of reasons. On the other hand, however, in a high profile case such as this one, they might well like to have their reasons settled and as High Court-proofed as possible before announcing their decision.

  • lloveday

    From The Australia, 22/6:
    .
    There is intense speculation about the timing of the Court of Appeal’s decision. There is a window of opportunity for it to rule next week but it goes into recess from June 29 to July 14, raising the spectre of the judgment not being delivered for several weeks.

  • Salome

    The President hasn’t sat since the appeal hearing. The Chief has apparently been off for last week (holed up at home writing a judgment, perhaps?). Justice Weinberg has sat a couple of times (and in one of those cases judgment on a sentence appeal was delivered the next day. I think they’ve been working hard to resolve this.

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