QED

When the Barely Possible Counts Against You

It is possible that, decades ago, I did poorly executed cartwheels in the altogether around a school swimming pool without any teacher or pool attendant noticing. Well, one complainant, now in adulthood, says I did. For the avoidance of doubt, I protest my innocence of this alleged offence. And I think I should do so because it is clear to me now that provided something is possible, however unlikely, it is capable of being counted against me. Or, at the very least, it offers me no refuge from the administration of justice Victoria-style.

Thus, two of the three judges of the Victorian Court of Appeal adjudged that it was not impossible for Cardinal Pell to have committed the alleged offences despite all of the logistical difficulties. I have enormous trouble getting my head around the logic and force of this argument. If I say it would have been impossible for me to have done something, I might mean that literally. For example, in circumstances where I have a cast-iron alibi. Or, in ordinary parlance, I might mean that it stretches credulity for me have done the something in question.

Let me show my considerable perspicacity and say that I think that the latter is what Pell, through his counsel, was claiming. For someone to challenge this claim by asserting that what is alleged is indeed possible is not, to put a fine point on it, terribly insightful. Someone, less polite than me, might call it obtuse.

Am I wrong about this case? Is white really black? Does two plus two actually equal five? The only evidence against Pell – if you ignore scurrilous gossip and unsubstantiated accusations, as you must – is the uncorroborated say-so of one complainant describing events of some twenty-two years before. In such a case, the logistical difficulties of the events having occurred, and nineteen of them were put forward without challenge, I understand, can only be counted in the favour of the accused. They can’t be turned around so that the mere possibility of the events occurring is somehow put in the accused person’s debit column.

“An unusual feature of this case was that it depended entirely upon the complainant being accepted, beyond reasonable doubt, as a credible and reliable witness. Yet the jury were invited to accept his evidence without there being any independent support for it.”
 — Justice Mark Weinberg in his dissent

Let me also say that I am absolutely over this business of a complainant being believed because they appear to be credible. Appearing credible is not irrelevant but there has to be more. Surely, there has to be more when you are at the point of ruining a person’s legacy and their reputation and relieving them of their freedom. That’s why we have the standard of proof of ‘beyond reasonable doubt’. Lots of guilty people go free as a necessary cost of ensuring that the legal system can’t be wielded to destroy our freedom by being used capriciously against us.

Con men are in the news all the time for ripping off people. In all cases, by definition, they spin a good convincing yarn. They are credible. Bernie Madoff didn’t get rich by appearing to be a crook. But people can genuinely believe what isn’t true.

My daughter left me in her flat drinking beer and watching football the other late afternoon while she and her husband went looking at a couple of child-care centres. She put a lasagna in the oven and said it would be okay, but asked me to intervene if I smelt something burning. When she returned home the lasagne had overcooked; though short of burning. She gently chided me for not checking on it, as she had asked. I needed her husband to verify that she had not in fact asked me to check on it. She believed she’d asked me; she hadn’t. She just made it up and thought it was true.

Now clearly this example of mine is trivial in the scheme of things. Nevertheless, it demonstrates the difference between the truth and what people believe. Memories can be invented and embellished through time.

Did Christine Blasey Ford actually believe that Brett Kavanaugh and his mate assaulted her many years before? Personally, I don’t think she appeared credible. There I go. I must remember that appearances in either direction can be deceptive. People of the world, including most especially judges, one would think, know that.

It was not impossible that Kavanaugh did it. But there was no corroboration and what evidence there was made it quite unlikely and counted rightly in Kavanaugh’s favour. For example, people who Ford claimed were at the party when the alleged assault took place had no memory of such a party. Of course, it is not impossible that they could have forgotten. But not even the Democrats construed that as counting against Kavanaugh.

And here’s another thing about this travesty of justice. Reportedly, the Victorian office of public prosecutions didn’t think the case strong enough to bring, yet the police persisted. Indicative of reasonable doubt?

The first jury failed to form a unanimous verdict. Some reports suggest that it was 10 to 2 for acquittal. Why don’t we know? Surely there is a legitimate public interest in knowing. That aside, we know that some on the jury favoured acquittal. Indicative of reasonable doubt?

Leave aside the mystery of the second jury forming a unanimous guilty verdict on exactly the same evidence that stymied the first jury, one out of three appeal judges favoured acquittal. Having another judge of the same mindset as Mark Weinberg, instead of one of the other two, and Pell is free. Weinberg has much deeper experience in criminal matters than do his fellow judges, who reportedly are versed in corporate matters and human rights. Indicative of reasonable doubt? I would jolly well say so.

Hopefully the High Court will hear the case and acquit. This is nothing at all to do with my belief that Pell is innocent. I have no special knowledge of the truth. I wasn’t there. It has everything to do with the evidence. There is not nearly enough. Surely it is wrong to incarcerate someone because a single complainant looks convincing, particularly in circumstances where the alleged offences took place decades ago and, to boot, in the most improbable of circumstances.

What the heck is going on? I find it troubling beyond words. Something seems rotten in the State of Victoria.

Here’s another hope. I am not sure how realistic it is. It is that the Pope, whatever happens, will keep Pell frocked and as a cardinal. Secular justice has gone badly off the rails. The Church should form its own view independently and act accordingly. It wouldn’t be the first time in history that a cleric has been unjustly imprisoned. I believe Saint Peter spent some time there.

23 comments
  • lloveday

    “Now clearly this example of mine is trivial in the scheme of things”.
    .
    Mine too, but shows the fallibility of memory. I recently re-read a transcript of the evidence of the Court-appointed psychologist in my 2000 trial in the FCA, and I would have sworn on the proverbial stack of Bibles that the Judge said something that I could recall verbatim, but the transcript shows quite different words, albeit with somewhat similar import.

  • Colin McKenzie

    For years I believed I had seen the play Son of God by Denis Potter in the late 50s/early 60s. I have a strong memory of the room in the house and the type of TV I was watching. I was flabbergasted when I learnt the play had actually been written in the late 60s. Memory can be a funny thing.

    It’s frightening to think that someone could accuse me of having done something wrong in 1999 and I might be found guilty because they were more believable than me.

    I don’t understand why there is not more widespread criticism of this verdict. I agree with Peter, the issue is not whether George Pell is innocent or guilty – it’s how the guilty verdict was arrived at that is, or should be, a major concern, for everyone.

  • Ian MacDougall

    Hopefully the High Court will hear the case and acquit. This is nothing at all to do with my belief that Pell is innocent. I have no special knowledge of the truth. I wasn’t there. It has everything to do with the evidence. There is not nearly enough. Surely it is wrong to incarcerate someone because a single complainant looks convincing, particularly in circumstances where the alleged offences took place decades ago and, to boot, in the most improbable of circumstances.

    Peter, does that also apply in the case of Gerald Ridsdale, with whom Pell shared a house in Ballarat?
    “Ridsdale was charged on summons in the Melbourne Magistrates Court with 30 counts of indecent assault against 9 boys aged between 12 and 16 between 1974 and 1980. Cardinal George Pell, a former Archbishop of Melbourne, testified before the 1993 hearing that he and Ridsdale had shared a house together while Pell was an assistant priest at St Alipius’ Church with Ridsdale in the 1970s. Pell denied knowing about any of Ridsdale’s ways. Ridsdale pleaded guilty and was sentenced to 12 months’ jail with a non-parole period of three months.”
    Well, of course it is always possible that, like Manuel in Fawlty Towers, Pell knew nothing. But is it credible?
    Could you have shared a house with such a man, and be oblivious to his proclivities, and inclinations. I doubt I could have.
    (I am aware that this was probably inadmissible as evidence in this particular case. But at the same time, I doubt it helps Pell’s claim to innocence in the framework of the politics of it all. Not a good look, Your Honour.)

    https://en.wikipedia.org/wiki/Gerald_Ridsdale

  • deric davidson

    I have seen on many occasions an audience in a theater weeping as a highly credible, highly believable performance of an actor brought them to tears. Credibility has a high degree of subjectivity. Fiction is often credible if presented with feeling. Politicians know this. Propaganda and spin can be very convincing and compelling. Even intelligent people can be duped.
    The Pell case has set a very low bar for convictions to be upheld. Simply make the accuser believable, no corroborative or forensic evidence required. This is the stuff of authoritarian regimes.

  • deric davidson

    Ian, Paul Bongiorno, now a left wing political commentator, also shared the house with Risdale. Bongiorno I believe was training for the priesthood (or was a rookie priest?) at the time. He also claimed not to know of Risdale’s secretive activities. This indicates that Pell’s lack of awareness of what Risdale was up to is not so ‘unbelievable’.
    Risdale pleaded guilty, Pell has pleaded innocent. Big difference in any jury decision making. There was no need to prove Risdale guilty ‘beyond reasonable doubt’, as is a must in Pell’s case.

  • Peter Smith

    Ian, I will echo Deric Davidson, who got in before me. Of course it is credible for Pell to deny that he knew someone he shared a house with ( and for less than a year I understand) was a paedophile. Those doing great wrong don’t advertise the fact. In fact, they keep it secret, wouldn’t you know. Let us please apply our knowledge of real life – of how many guilty people avoid detection for long periods – instead of dealing in scurrilous baseless innuendo.

  • irisr

    I find it mind-bogling that one’s socio-political leanings can cloud one’s judgment so very, very deeply, even without there being a true suspicion of malign intent to deceive.
    Someone would keep repeating scurilous factoids such as “Pell shared a dorm with a confessed convicted pedophile” while wilfully ignoring that a much lauded public figure and commentator also did that, and both professed to have had no suspicions of the proclivities of the convicted felon.
    Yet one is tarred with being a supporter of pedophiles and by extension a pedophile himself, while the other continues to trumpet leftist propaganda on the biaised ABC. One is vilified and ultimately imprisoned, the other one believed unquestioningly. Is it because there is an inherent societal biais to the left, where facts are considered factual only if they support a leftie, totalitarian frame of mind?
    I am a conservative. I believe both Pell and Bongiorno did not suspect they were sharing a house or dorm with a pedophile.
    I do not know the truth. As Peter Smith says, I wasn’t there. BUT if I believe one, I think I should believe the other as well, notwithstanding his ideology.
    As for this latest development in the halls of justice, I have grave fears for the future of younger generations. I’m also glad I am not rich, famous or even prominent. I make too small a target to incentivise such zealous prosecution.

  • Ian MacDougall

    Deric and Peter,
    In the realities of court cases, what the Learned Counsel for the Defence may well say to friends and associates of The Accused is something like: ‘As an officer of the Supreme Court, I cannot advise you as witnesses for the Defence and your supporters to be anything other than truthful at all times; nor can I advise anyone to break the law. But, that being said, what our case could really use right now is a first-hand witness who could testify that George Pell was onto Ridsdale pretty quick smart, and they had arguments that at times nearly blew the roof off the house they shared in Ballarat.
    ‘I need someone who could honestly say: “Gerald!” Pell would yell. “I have parents complaining! If you have no feeling at all for the lives of those good Catholic boys you have literally buggered, can I at least urge you, if not demand of you, that you consider the fate of your own immortal soul? You are in what the Holy Father in Rome will shortly declare as mortal sin, possibly helped along because of the crimes so many of our religious bretheren are being convicted of! Do you want to spend eternity burning in Hell?”‘
    ‘That is the sort of witness we need right now. But the question is, can we find one? First hand, mind. First hand. Otherwise, we are stuck with just denial and see-no-evil-hear-no-evil. And given all the stuff that is turning up in the press about His Eminence Pell’s antics in change rooms and the like, it is not a good look. Not a good look at all. Third highest ranking Catholic prelate in the world and all that.
    ‘Will somebody please find me one or more of those witnesses we so desperately need? On the conditions I have set out?'”

    Speaking for myself, I used to regard myself as a Christian, but gave it away in my late teens (ie a few years back) because I could not wear the central doctrine of sin and redemption. But if I was accused of what Pell has been found guilty of, I would be declaring my innocence up and down the country, and making myself available for press encounters 24/7.

    https://www.theage.com.au/world/list-of-mortal-sins-gets-longer-under-vatican-overhaul-20080311-ge6ttw.html

  • Doubting Thomas

    Ian, Pell denies knowing anything about Ridsdale’s activities, and so does Bongiorno. As you say, the fact that one is believed and the other not is entirely due to the bias of the majority of Australian journalists and the historical anti-Catholic bigotry still evident in much of Australian society. It has nothing to do with the facts.
    Were you, an ordinary man, to be accused of Pell’s alleged crimes, it’s possible (although unlikely) that you would find at least somebody in the media prepared to lend a sympathetic ear to your declarations of innocence, and some editors might even allow objective reports to be published. As has been amply demonstrated beyond any shadow of doubt, nothing Pell can say or do will ever overcome the hatred and blind bigotry of the chattering class. If he were to die in jail, it would be a mercy, because if the High Court overturns his conviction, his life outside will be a living hell.

  • lloveday

    DT, “his life outside will be a living hell”
    .
    I would hope that even with Pope Francis calling the tune, he would be able to see out his days in relative peace in the Vatican.

  • Greg Williams

    Ian,

    You say

    “Could you have shared a house with such a man, and be oblivious to his proclivities, and inclinations. I doubt I could have.”

    Married and defacto couples share an intimate relationship, yet many are blissfully unaware of their partner’s philandering. People are fairly adept at hiding what they want to hide.

  • Andrew Griffiths

    Note for Ian MacdougalI :
    I know some people who were at home when a “family friend” abused their daughter in another part of the house, they had no idea what had happened until years later when the sordid business came to light. A busy parish priest could have no idea what a perverted house mate was doing elsewhere.

  • Davidovich

    Risdale is a red herring in this matter which is all about Pell being convicted ‘beyond reasonable doubt’. The complainant, some 20 odd years after the alleged assault, is believed because, to two of the appellant judges, he appeared truthful and convincing whereas witnesses such as Monsignor Portelli, who claim they were always at the Archbishop’s side, were disregarded even though they had an impeccable record. Why this was so has not been explained by two of the judges. I certainly hope I never have to rely on justice in the Victorian legal system.

  • Peter Smith

    Risdale, as Davidovich says, is a red herring. A complete and utter red herring. Many, many, people would have known Risdale without knowing what he was doing. Many people have known all manner of crooks and deviants without knowing about their nefarious activities. In any event, what has it do with the travesty of justice perpetrated on Pell. Nothing. The way the case against Pell has been conducted from its (police-fishing-expedition) start to the end has been nothing short of a national disgrace.

  • Ian MacDougall

    DT:

    As has been amply demonstrated beyond any shadow of doubt, nothing Pell can say or do will ever overcome the hatred and blind bigotry of the chattering class.

    I assume that included in your ‘chattering class’ is anyone you don’t agree with, plus two out of three of the trial judges who heard the full load of evidence in closed session in the Supreme Court of Victoria, which as far as I am aware, will never be disclosed; at least not in the lifetimes of the participants.
    GW; AG; Davidovitch; PS: noted.

  • Doubting Thomas

    Ian, I include in this comment only the usual suspects (outside the actual judiciary). I include the left-wing media, particularly the ABC news and current affairs journalists, the former Fairfax media, and unashamedly outspoken anti-Catholic bigots such as David Marr and Peter FitzSimons. I also include any of those, like the howling mobs outside the courts, who have judged Pell as guilty even before he was convicted, or who have used him as a scapegoat for crimes committed by church people over the years.
    I also include people who believe, through ignorance of the Catholic Church, that Pell must have known that priests with whom he shared presbyteries were committing sexual abuse of children.
    If any of those boots fit, feel free to wear them. You should find the last particularly comfortable.

  • Ian MacDougall

    Ian, I include in this comment only the usual suspects (outside the actual judiciary). … left-wing media, … ABC news and current affairs journalists, … Fairfax media, …. anti-Catholic bigots … David Marr … Peter FitzSimons. …howling mobs …. Pell … scapegoat ….
    I also include people who believe, through ignorance of the Catholic Church, that Pell must have known that priests with whom he shared presbyteries were committing sexual abuse of children.
    If any of those boots fit, feel free to wear them. You should find the last particularly comfortable.

    Ah, DT. Wonderful sophistry! You are indeed a credit to whoever trained you in the art! (I have my suspicions, but will leave it at that.)
    Subtext: Please note that my spray is not aimed at any of the actual judiciary. Perish the thought..! Only at those who thought along the same lines, and who in addition behaved as if they were out for anti-clerical revenge, using Pell as a convenient whipping boy…!
    My own credo: I believe that the French sociologist Emile Durkheim hit the nail right on the head: in any religious ceremony or ritual, the group involved is actually worshipping itself. Believing is the means to belonging.
    Right now, at this Curate’s Egg of a site, the Catholics are circling the wagons. But “… priests with whom he shared presbyteries were committing sexual abuse of children”…? I cannot say; nor have I anywhere said. But I would say, based on my own experience of people living in shared digs, that it definitely increases the probability of the truth (that enemy of all clerics) coming out.

  • [email protected]

    Thanks to Peter Smith and Keith Windschuttle for summarising the grave flaws in the case against Pell. Though a lapsed Catholic and someone with no brief as such for the Cardinal, I’m in the ranks of those who fervently hope to see the High Court overturn the verdict. I don’t know if Pell is guilty or not guilty; the issue is reasonable doubt.

  • Salome

    Regarding the Ridsdale matter: back when there were more than enough priests to go around, they were assigned to presbyteries which housed two, three or more of them. They didn’t choose their housemates and one could well imagine that they lived in such a way as to claim for themselves the maximum privacy, which would involve minding their own business (that’s what I’d do in that situation). Further, it is my understanding that, while Ridsdale was the parish priest (and likely to have worked from home), Pell was on diocesan administrative duty (education), and went to the office by day, giving plenty of opportunity for Ridsdale to entertain boys at home undetected.

  • bomber49

    Once upon a time a defendant was not permitted to give evidence in his own defence lest he commit perjury and damn himself to eternal Hell Fire. With the passing of time that rule of evidence was changed. It’s a pity that Cardinal Pell did not chance his arm and give sworn evidence in his own defence. Who knows, it may have swayed the jury to the point of creating a reasonable doubt. It’s not as if Pell is some unsophisticated knucklehead who could be bamboozled by a slick prosecutor. It’s dangerous to convict on uncorroborated evidence, so why wouldn’t Pell’s own version of events be credible had he chose to give sworn evidence and face cross examination.

  • Peter Smith

    Bomber49, imagine the intrusive sexually-oriented questions that might have been asked; however tenuously related to the charge he was facing. And Pell would have to tell the truth before God. No, I feel that he did the right thing by not taking the stand. The evidence against him was so threadbare that he must have been confident of an acquittal. How it was ever brought to trial amazes me.

  • Stuart Burrows

    Indeed Peter, the treatment of Pell is a national disgrace, and something is very rotten in Victorian justice.

  • norsaint

    The other thing about the absurdity of the claims against Pell is he’s never been accused of being a homosexual. Never. So how likely is it, he’d on a whim decide to do what he was accused of? A preposterous claim by a perjurer, but given clear air by our politicized Gestapo and joke judiciary. Pass the sick bag, please.

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