Double Standards in the Court of Appeal

To support their case for rejecting the appeal of Cardinal George Pell against his conviction for sexual abuse of two choirboys in 1996, two of the Victorian appeal court judges, Chief Justice Anne Ferguson and President of the Court of Appeal Chris Maxwell, reject the claim that the sole witness against Pell was dishonest and unreliable. Defence counsel Robert Richter had pointed to significant differences in the surviving choirboy’s original statements to the police, who he first contacted in June 2015, compared to statements he made about the same issues at the first trial in August-September 2018. The two judges argue that discrepancies and inconsistencies do not necessarily equate to dishonesty and unreliability. They quote Justice Michael McHugh’s comments in the High Court’s 1994 benchmark case, M v Queen:

It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts … If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness’s general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment.

Now, McHugh’s comments would seem to most people to be fair enough. Ferguson and Maxwell go on to quote Peter Kidd, the judge in Pell’s original trial, who gave his jury much the same advice:

When you are assessing the evidence, also bear in mind that experience shows the following.  One, people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time. Two, trauma may affect different people differently, including by affecting how they recall events. Three, it is common for there to be differences in accounts of a sexual offence.  For example, people may describe a sexual offence differently at different times to different people or in different contexts. 

Again, this all seems hard to deny. However, in their response to the Pell appeal, Ferguson and Maxwell take this point much further. Rather than simply using it as a caution against assuming a witness’s uncertainty or mistakes are some kind of proof of his dishonesty, they go on to argue that discrepancies and inconsistencies can actually be testimony to a witness’s credibility. In the Pell case, they argue that, when the choirboy was confronted in cross-examination at the trial with changes he apparently made to cover gaps or problems with his previous statements to the police, he either admitted he was wrong or said it all happened when he was only thirteen so it was hard to remember back that far. Hence, the two judges claim, he should be regarded as an honest person and everything he says should be believed.

Throughout his evidence, [the choirboy] came across as someone who was telling the truth.  He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution.  As might have been expected, there were some things which he could remember and many things which he could not.  And his explanations of why that was so had the ring of truth.

On another page of their judgment, they give three examples in the choirboy’s evidence against Pell:

A further indication of A’s credibility, in our view, was his admitted uncertainty about a number of matters which, if the story had been invented or was an entrenched fantasy, he might have been expected to describe with confidence. Striking examples of this were: his uncertainty about whether Cardinal Pell closed the door in the first incident; his lack of recall as to whether he had screamed or called out during the first incident; and his uncertainty about which hand Cardinal Pell had used in the second incident.

In other words, defects in the key witness’s case should be interpreted as confirmation he is telling the truth. Hence the more inconsistencies that emerge in the prosecution case, the more credible that case becomes!

When confronted by points of argument that are supported by little evidence to either confirm or refute what happened, the judges still side with the choirboy by introducing the concept of a “ring of truth”. They deploy this metaphor three times in their judgment:

He had been caught red-handed, in a prohibited place, and anything he said about Cardinal Pell was almost certain to be disbelieved.  What followed in his evidence also had the ring of truth.

In our view, it was open to the jury to conclude that [the choirboy] was not here concocting his answers.  What he said had the ring of truth, as did his response when the same topic was raised with him later in the cross-examination.

As might have been expected, there were some things which he could remember and many things which he could not.  And his explanations of why that was so had the ring of truth.

Now, if judges want to rest their faith in witnesses on an entirely subjective notion like “ring of truth” which, in the absence of hard evidence, can only exist in the eye of a beholder, then they should treat all witnesses equally. They should regard the discrepancies and uncertainties of witnesses for both sides as evidence of their attempts to be honest too. Yet in Pell’s appeal, witnesses whose evidence tended to support the Cardinal get very different treatment. In fact, in Ferguson and Maxwell’s analysis, every time a pro-Pell witness has an apparent discrepancy in his evidence, or even simply feels uncertain about what happened, the two judges use this to disparage his claims. Some examples of this process are as follows.

One part of Pell’s defence was that it was impossible for him to be alone with the choirboys in the sacristy a few minutes after a Sunday Solemn Mass because at the time he would always be accompanied by the cathedral’s master of ceremonies, The centuries-old canon law for the Catholic Church’s ritual for the Mass demanded this be adhered to. At St Patrick’s Cathedral in the 1990s the master of ceremonies was Monsignor Charles Portelli, whose cross-examination on this issue is quoted at length in the Ferguson-Maxwell judgment:

Q:       Would there ever be an occasion, Monsignor, where you did not accompany Archbishop Pell back to his sacristy after Sunday solemn Mass?

A:       Would there ever have been?  There may have been.  I can’t recall when that would have been, but I certainly would not have been very far because I would have to disrobe myself.  So I had to take off what I was wearing and put on my street clothes.

Q:       So what’s the answer?  I think the question was simply was there an occasion or occasions when you did not accompany him back to the sacristy when he went back to the sacristy to derobe, that was the question?

A:       Not that I recall, but it is possible that there may have been, but not that I recall. …

Q:       The practice would be what when you got back, left the steps and made your way back to the sacristy what would your practice be?

A:       The practice?

Q:       In terms of walking back to the sacristy in which Archbishop Pell derobed?

A:       Yes, we would [go] back to the sacristy.  He would walk to the bench and begin removing various vestments.

Q:       Were there occasions, or might there have been an occasion or occasions when having escorted Archbishop Pell back after Mass and having got to the area outside the priest sacristy door where he was to derobe that you didn’t actually go in with him, but went off somewhere else; is that possible?

A:       Yes, it is possible.

Q:       Where might the somewhere else be that you would have gone to?

A:       If we had another function in the Cathedral that afternoon I would have gone back to the sanctuary by the back entrance to the sanctuary to make sure for instance that the books were all in place, that the right sermon was in place, and so on.

Q:       How long would you be gone for?

A:       Two minutes.

Q:       So that would include walking from where to the back of the sanctuary, from where to where?

A:       Well, if I didn’t go back into the sacristy with him I would have walked straight on to the sanctuary from the side.

In response to this, Pell’s counsel said there was nothing to indicate any lack of reliability in Portelli’s evidence.  It was a “badge of credibility” for Portelli to have acknowledged that there was something which he was unable to remember.  Moreover, it had never been suggested to the jury that Portelli was lying, or was partisan, or that “on the specific matters that were important, … his evidence lacked any reliability at all”.

However, despite the fact that Pell’s counsel was adopting here the very same argument that Ferguson and Maxwell used to confirm the reliability of the choirboy, the two judges decline to respond to Portelli the same way. Instead, they use his statements in the cross examination above to discredit all his evidence, arguing:

In our view, the jury were entitled to have reservations about the reliability of Portelli’s affirmative answers under cross-examination when they were viewed in the light of his answers in examination in chief and re-examination. Such reservations were justified, in our view, by the obvious contrast between the uncertainty of his responses to the prosecutor’s questions and his ready adoption of statements put to him by defence counsel about what he recalled. In the circumstances, it was open to the jury to doubt whether those affirmative answers in cross-examination represented an actual revival of recollection … While it may be accepted that he had a general recollection of the first time Cardinal Pell said Sunday solemn Mass at the Cathedral, his evidence demonstrated a lack of detailed recollection of the events that took place on that day.

Ferguson and Maxwell deploy similar tactics to discredit the testimony of the cathedral’s sacristan, Maxwell Potter, who, over a period of about five years, had on two occasions been a substitute for Portelli in accompanying Pell to the sacristy after Mass.

Potter was asked in which year the first two Sunday Masses said by Cardinal Pell had taken place.  He said it was 1997 [in reality, December 1996].  This error was noted in the written case filed on behalf of Cardinal Pell, as was Potter’s erroneous description of the altar servers as boys between the ages of 12–15 years, rather than (as was the fact) adult men … The defence conceded in final address that Potter’s “memory may not be terrific” and senior counsel for Cardinal Pell made a similar concession in this Court. In the circumstances, the jury would have been well justified in having doubts about the reliability of Potter’s evidence, especially his answers under cross-examination.  Certainly, the jury had a solid basis for finding that Potter’s evidence did not give rise to a reasonable doubt about Cardinal Pell’s guilt. [emphasis added]

They do the same to altar server, Daniel McGlone, who gave a detailed description of the first Solemn Mass at St Patrick’s in December 1996. McGlone said his memory of meeting George Pell was vivid since his mother accompanied him to meet and talk with the charismatic new archbishop. After the Mass’s ceremony and a procession to the western end of the cathedral, McGlone met his mother inside the cathedral and then went with her to the outside cathedral steps, where he saw Pell doing a “meet and greet” with parishioners. He introduced his mother to Pell and they conversed. This was damaging evidence to the prosecution’s case, because if Pell had really spent even a few minutes at this location, he would not have had enough additional time to go back to the sacristy to have his way with the choirboys there. However, in the course of his cross examination, McGlone said he had not been to an evening vigil Mass celebrated by Pell one night in November 1996. The prosecution then produced a photograph of him at that evening mass, causing McGlone to admit he must have had an inaccurate recollection of the dates in question in 1996. Ferguson and Maxwell use this marginally relevant admission to dismiss any prospect that McGlone’s evidence threatened the credibility of the choirboy’s claim. They argue:

The fact of the encounter between McGlone’s mother and Cardinal Pell was not in doubt. There was, however, some uncertainty about the date on which it occurred. McGlone was confident that the occasion of his mother’s visit was the first time Cardinal Pell had said Mass in the Cathedral [i.e. 15 December 1996] But, as the prosecution pointed out both at trial and on the appeal, McGlone agreed in re-examination that (contrary to his recollection) he had attended an evening vigil Mass celebrated by Cardinal Pell on 23 November 1996.  Accepting, however, that the encounter occurred on either 15 or 22 December 1996, this did not make the first incident an impossibility. It simply ruled out one of those two Sundays, as the prosecutor pointed out to the jury in final address.  Consequently, the jury did not on this account have to have a reasonable doubt about A’s evidence in relation to the first incident.

What stands out in the Ferguson-Maxwell judgment is a relentless and often desperate hunt for evidence to discredit pro-Pell witnesses. It is a theme repeated at almost every stage of their verbal re-enactment of events, in order to dismiss objections to the choirboy’s claims about when and where he was abused, and where George Pell was and what he was doing at the same time.

As well as Portelli, Potter and McGlone, the judges adopt a similar approach to the evidence given by altar server Jeffrey Connor, choir marshal Peter Finnigan, choirmaster and organist John Mallinson, and choirmaster and assistant organist Geoffrey Cox.

For example, the choirboy’s version of events is that after he and his friend were assaulted by Pell, he changed and went straight home by car – “he did remember being in the car on the way home and ‘sort of thinking about it’,” the Ferguson-Maxwell judgment records. But both Finnigan and Cox gave evidence that there was a choir rehearsal scheduled for 12pm noon, immediately after Mass on Sunday December 15 and the boys’ attendance would have been compulsory, so they couldn’t have gone straight home at all. Despite what had allegedly happened to them, they would have had to perform. Finnigan and Cox provided written evidence of this: a circular letter to parents giving the date and time of two choir rehearsals, and a diary entry about one of them. Ferguson and Maxwell admit in their judgment that the choirboy could not reconcile his account of what happened that day with the post-Mass rehearsal. Yet they go on to diminish the value of Finnigan and Cox’s evidence because both acknowledged in cross-examination that they could not remember actually attending that particular choir rehearsal twenty years ago. They had relied upon their written documents for the evidence that it occurred then. “As the Crown points out,” the two judges write, “the relevant witnesses had no independent memory of those rehearsals actually having taken place”. What they found more persuasive here was the word of the choirboy. They quote from his cross-examination:

[The choirboy] accepted that Mr Finnigan conducted such rehearsals “as though they were military exercises” and would take note of people who failed to attend.  It was then put to him that his description of what happened was “just impossible”. [The choirboy] denied that. When asked why it was not impossible, he responded:

Because I was orally raped in a … room after Mass.

Asked again, he responded:

Because I was assaulted in a room after Mass and that’s why I’m here.

In other words, in the Ferguson-Maxwell judgment, the choirboy’s memory of an event twenty-two years after it supposedly occurred is a more acceptable piece of evidence than the church’s documents written at the time the offence purportedly took place.

There is one further issue worth discussing that initially appears to give some credence to the choirboys’ claims, but for which the defence did not call any witnesses. This is the question of how the choirboy could describe with some accuracy how the interior of the sacristy looked when Pell found him there. The priests’ sacristy was a room that was normally out of bounds to choirboys. In response to Pell’s lawyers’ claim in his appeal that the prosecution had “relied entirely upon the uncorroborated evidence” of the choirboy, the prosecution replied:

There was some corroborative or supportive evidence. For instance, the complainant accurately described the layout of the Priests’ Sacristy – a room in which he had never been as far as he could recall.

Ferguson and Maxwell seize on this point.

The credibility of [the choirboy’s] account was considerably enhanced by the accuracy of his description of the Priests’ Sacristy.  He was able to describe in some detail the layout and furnishing of the alcove where he and [his friend] were discovered by Cardinal Pell.  As the Crown pointed out, [the choirboy] correctly placed the wine area in the alcove, not where it is currently located… In our view, the jury were entitled to view these ‘undisputed facts’ as independent confirmation of [the choirboy’s] account of having been in the Priests’ Sacristy in that period.  There was nothing to suggest that his knowledge of those matters could have been obtained otherwise.  [The choirboy’s] evidence was that he had never been in the Priests’ Sacristy before. 

But then, the judgment concedes something unexpected. The choirboy had previously seen inside the priests’ sacristy after all.

In cross-examination, he accepted, but did not recall, that he had been taken on a tour of the Cathedral when he first joined the choir. He said that he had no recollection of being shown the sacrisities on such a tour, but did not dispute it. 

But instead of recording this as “a possibility” on Pell’s side of the equation, of similar weight to all the other tenuous possibilities that Ferguson and Maxwell tally to make their case against Pell, they dismiss this one, saying the jury was entitled to ignore it:

The jury were entitled, in our view, to discount the possibility that going on such a tour would have explained [the choirboy’s] detailed knowledge — and recollection 20 years later — of the interior of that particular room. 

So the choirboy’s possible previous visit to the sacristy, and any knowledge of it he might have gained there, is turned into a matter of little consequence. Once again, the two judges grant a concession to the choirboy that they never conceded to Portelli or any of the other witnesses from the Cathedral.

In short, the Ferguson-Maxwell judgment is one that bends over backwards to support the conclusion it is determined to reach, no matter how embarrassing the position its authors are left in.

******

To conclude here, let me remind readers just how precarious the case against Pell was from the start. As noted in the dissenting opinion of the third appeal court judge, Mark Weinberg, Pell’s defence identified at least five topics that were essential for the prosecution to succeed. They are:

# Pell was alone at the time of the alleged offending;

# He did not greet parishioners on the steps of the cathedral after Mass;

# The vestments he wore were able to be manoeuvred to expose his penis;

# The choirboys were able to access the sacristy corridor;

# The choirboys were able to break away from the procession undetected.

If the jury had entertained a reasonable doubt about any one of these topics, Weinberg says, that would have been fatal to the prosecution case. His judgment is 202 pages, just shy of 70,000 words – twice as long as that of Ferguson and Maxwell – so it deserves a corresponding degree of attention, which will be given in a separate article in Quadrant, to follow soon.

Keith Windschuttle is the editor of Quadrant