Chief Justice Anne Ferguson and President of the Court of Appeal Chris Maxwell, in George Pell v The Queen:
The impression we gained from reading the transcript of [the choirboy’s] cross-examination reinforced the impression we had gained from watching the recording of him giving evidence. Nothing about his answers under cross-examination suggested that he was concocting, or embellishing, or ‘fantasising’. On the contrary, both the content of what he said and the way in which he said it — including the language he used — appeared to us to be entirely authentic.
The problem for the appeal court judges reviewing the conviction of George Pell for a sexual assault on two choirboys in the sacristy of St Patrick’s Cathedral, Melbourne, in December 1996 was always that there was only one witness for the prosecution, but more than twenty witnesses who gave contrary evidence for the defence at the trial. Moreover, the overall case made by pro-Pell witnesses was internally consistent, and was also consistent with the verbal response by Pell himself in a recorded interview with Victorian police in Rome in 2017. The sole witness for the prosecution’s version of events was one of the two choirboys, who relied on his memory of the alleged assault twenty-two years earlier. He was 13 years old in 1996. His choirboy friend of the same age died of a heroin overdose in 2014.
The choirboy’s evidence had nothing to corroborate it: no witnesses in his favour, no incriminating objects, no photographs or CCTV from this very public event, no DNA or other chemical clues, nothing like the stained dress of Monica Lewinsky. The defence had all the potentially corroborating evidence on its side, including a statement from the dead boy’s mother, whose son had told her he had never been sexually assaulted. Pell’s case was not, like many other trials of sexual assault, a contest of “my word versus your word”. It was a case of the word of one person, relying on memory, versus a substantial volume of evidence by more than twenty people, both remembered and written down at the time.
Yet two of the appeal court judges, Anne Ferguson and Chris Maxwell, offered one very broad argument that led them to prefer the choirboys’ memory over that of the clergy, church officers, other choristers and the worshippers at the Mass on the day concerned. They said the sexual assault, comprising forced fellatio and masturbation, was such a dramatic incident for the choirboy that he had remembered it vividly ever since. However, the clergy and others attending the Mass would have only recalled a routine ritual, like many of the kind they performed for the church, and so there was no reason for the events of that particular day to be imprinted on their minds. Ferguson and Maxwell said this rendered much of the evidence of the Cathedral’s clergy suspect. Here, for instance, is what they said about the evidence of the Cathedral’s master of ceremonies at the time:
[Our] reservations were also justified by the improbability — given the lapse of time — of Portelli’s having a specific recollection of particular Masses, in the absence of some significant and unusual event having occurred at one or other of them. (One such event was the Mass at which the new Cathedral altar was consecrated, of which both Potter and Rodney Dearing had an independent recollection.) As Portelli told the jury, he would have conducted between 140 and 150 Masses with Cardinal Pell over a period of about five years. 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.
Mark Weinberg’s dissenting judgment discusses the legal reasoning behind this, which, as Justice Kidd advised the trial jury, must be a disadvantage to the Pell case. He can say that again! It means the longer the time between an alleged offence occurring and an accused person going on trial, the less credible becomes the case for the accused and the more credible becomes the case of the accuser.
The choirboy’s memory of the sacristy
When applied to the events that supposedly occurred inside the St Patrick’s priests’ sacristy in 1996, the application of this principle turned out to be worse than a disadvantage, it was a disaster for Pell’s defence. The sacristy was supposed to be strictly off limits to all boys in the choir. Nonetheless, the choirboy said he and his friend broke the rules, left the choral procession after the Mass and went to the sacristy “to have some fun”. They found the altar wine stored there. They had just started swigging it when the archbishop suddenly entered the room and allegedly assaulted them.
Ferguson and Maxwell accept the choirboy’s claim that this was the first and only time he had been inside the priests’ sacristy. Because he could remember enough of the interior to say where the wine had been stored and the kind of wood panelling in the alcove where the assault supposedly took place, the judges thought this provided some corroboration of the rest of his testimony. The judges called it “independent confirmation” of his story. How else could he have known these details if he had not been in the sacristy that day?
The prosecution’s lawyers regarded this issue as a winner. They told the Court of Appeal that the choirboy’s ability to describe the place where the assault occurred meant his evidence was not only plausible, “it was credible, clear and entirely believable as is reflected in the jury’s verdict”. The prosecution emphasised that the boy had only ever been inside this room the one time when the abuse occurred.
The ability of the complainant to so accurately describe the layout and wood panelling of the Priest’s Sacristy (including the alcove), an area in which he could not recall having ever seen either before or after this event, was a significant aspect of the Crown case. It bespoke truthfulness and reliability. Furthermore, the complainant’s knowledge that this was the area in which the sacramental wine had previously been stored, reinforced that he had been within the sacristy after mass.
The Ferguson-Maxwell judgment echoed the prosecution’s words. Nothing in the choirboy’s account of the events, the judges said, “suggested that it was either fabricated or a product of his imagination”. And in the absence of any independent witness who could verify the choirboy’s claims, “the credibility of his account was considerably enhanced by the accuracy of his description of the Priests’ Sacristy”. They said he was “able to describe in some detail the layout and furnishing of the alcove where he and [the other boy] were discovered by Cardinal Pell”. He even knew that the wine at the time was placed in an alcove, not where it was currently located. Ferguson and Maxwell said:
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.
Moreover, the choirboy’s “independent” and “undisputed” claims about this room were not simply a one-off test of his reliability. For these two judges, they provided ongoing confirmation that his entire testimony at the trial had been truthful.
Any first impression of him had to be constantly, and critically, re-evaluated in the light of the opportunity evidence. Having done that for ourselves, we were not prompted at any stage to doubt the veracity of his evidence.
Now, Ferguson and Maxwell state they have done their duty and studied everything relevant to the appeal:
We have approached our task by trying to put ourselves in the closest possible position to that of the jury. We have done so by reading the transcript (which runs to approximately 2000 pages), watching some of the oral evidence and attending a view of the Cathedral.
If this is true, it is hard to understand how their judgment could omit a proper discussion of some evidence in the transcripts of the trial that shows, that far from being “undisputed”, the choirboy’s evidence was actually disputed successfully, that is, it was refuted. Here is one part of that evidence:
On November 20, 2018, Pell’s defence counsel, Robert Richter, questioned the cathedral’s sacristan, Maxwell Potter.
Q: I want to take you to another photograph in that book and that would be, if we go to photograph, look at 11, 12 and 13 — 11 and 12, yes. I’ll hand you an enlargement of Photograph 12 because it’s much easier to see, and do you see the area, the cupboard area there?
Q: It’s a sort of kitchenette, right?
Q: It’s got taps, it’s got sinks, yes?
A: (No audible response.)
Q: That was put in in 2003 or 2004 wasn’t it?
A: Correct, yes.
Q: And before 2003, 2004 what was there?
A: There was just a hanging cupboard in there for Albs. There was no sink in that area at all. For hanging robes, areas for hanging things.
Q: And the doors, actually they were a sort of concertina?
Q: Vinyl doors?
A: Yes, yes. Yes.
Q: And they were replaced by these nicely panelled areas, yes?
A: That’s correct, yes.
Q: Likewise, you can see the safe to the right there, yes?
A: On to the right of that.
Q: In that photo?
A: Yes, yes.
What Potter’s evidence had shown — supported and enhanced at another time by evidence on the same topic by the cathedral’s master of ceremonies, Charles Portelli (see Weinberg’s dissent, pars 468-470) — was that the Priests’ Sacristy had had its own renovations since the alleged abuse had taken place. The former cupboard area of the room had been turned into a small kitchenette. The old vinyl concertina front for the hanging space was replaced by wooden panelling. A shelf and bar fridge and a new, twin-basin sink and taps had been installed in different places to the old, small sink with a single tap. In short, the renovation had modernised the sacristy’s kitchen facilities and moved some of them about.
This poses a predicament for the evidence about the interior of the sacristy on which Ferguson and Maxwell placed so much faith. In his final address to the jury at the end of the trial, Richter showed how fragile that faith had been all along. He went through a video made in 2016 of a walk-through of the backrooms of the cathedral by the sole witness for the prosecution. Richter pointed out a discomforting inconsistency between what the choirboy said at the walk-through and the evidence he had given in court. Richter said:
The next matter we want to address is that [the complainant] might have been in the room [the sacristy] in other circumstances as a chorister. We just want to draw your attention to a couple of items of evidence. It is not a very significant matter, you might think, but there are first the wooden panel storage kitchenette and you have seen that he is looking at an open kitchenette area with the twin basins and in the corner there’s a bottle of wine that looks dark and opaque. He is looking at that and he said, “That’s unchanged”.
It doesn’t matter what my learned friend says about something like, “It was woodgrain vinyl”, that doesn’t matter. What matters is he’s looking at that kitchenette area and he says, “That’s unchanged”. You have got the video of the walk-through where he does that, and that’s precisely what he’s pointing at, and that’s precisely what has been completely changed, and completely changed in later years. [emphasis added]
In short, the accuracy of the choirboy’s recall of the interior of the sacristy, on which Ferguson and Maxwell had relied for so much of their judgment of the boy’s honesty and character, was proven to be unreliable.
A tour of the cathedral for new boys
There are other examples that also challenge the choirboy’s claim that he had never been inside the sacristy before the day of the assault. Ferguson and Maxwell mention one of these problems for their own argument. They agree there was evidence at the trial that when the boys were first appointed to the choir in 1996 they were given a tour of the cathedral, which included the priests’ sacristy.
Ferguson and Maxwell acknowledge that one of the issues raised by Pell’s defence was that it was entirely possible, indeed likely, that the day of Pell’s alleged assault was not the first time the boys had been inside the sacristy. Weinberg’s judgment quotes from the transcript of cross-examination by Pell’s defence counsel:
MR RICHTER: You were taken, were you not, on a tour of the Cathedral when you joined the choir?
COMPLAINANT: I would have, yes.
MR RICHTER: And you were shown the sacristies?
COMPLAINANT: I have no recollection of that, no.
MR RICHTER: Do you dispute it?
COMPLAINANT: Um, no.
The response by Ferguson and Maxwell is as follows:
In cross-examination, [the choirboy] 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. 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.
In other words, Ferguson and Maxwell raise this issue only to dismiss it. They provide no specific evidence or argument why the jury was entitled to “discount” the possibility that the tour gave the boy all he needed to permanently recall the sacristy’s interior. Moreover, the choirboy’s agreement that he “would have” undergone a tour of this kind when he first joined the choir, was an admission that he knew such a tour was normally given to new boys. So the sweeping dismissal of this part of the evidence without further argument by Ferguson and Maxwell is cavalier, to say the least.
Open doors in the sacristy corridor
There is another issue to which Ferguson and Maxwell should have given more attention. The evidence included accounts of what happens after a Mass when the choir retreats to an area at the back of St Patrick’s Cathedral known as the “sacristy area”. This contains a crooked corridor that passes the Priests’ Sacristy and then the Archbishop’s Sacristy, then leads to a building adjoining the cathedral known as the Knox Centre, where the choir room was located for the boys to change into and out of their robes. (see map above). There was evidence at the trial from both Charles Portelli and Jeffrey Connor, an adult altar server, that within five to fifteen minutes of any Mass, the Priests’ Sacristy was unlocked, its door was opened, and there would quickly be at least ten people going into and out of that room, and many others congregating around the doorway and passing down the corridor.
The “sacristy area” was something all choirboys had to traverse, both before and after each mass. Even though the boys were not allowed into either of the sacristies, there must have been numerous occasions as they walked past when they could see from the corridor through the open door into the room. The fact that they were not allowed in must have made a peek into this room all the more enticing. The idea that the choirboy had never seen into this room during all this toing and froing from November 1996, when the cathedral was opened again after renovations, and well into 1997, is most unlikely. Those who believed him on this point were easily persuaded.
So when Ferguson and Maxwell claim there was “nothing to suggest” the choirboy’s knowledge of the sacristy’s interior could have been gained by anything other than his quick visit there for “fun” in December 1996, it is their confidence in the witness that becomes problematic. The judges’ reliance on this point as “independent confirmation” of the two boys being in the sacristy on that day doesn’t stand up. The belief that this amounted to “corroboration” of the boy’s bare word is unreasonable.
The flaw at the core of the case
There is one more issue about the choirboy’s credibility that should be discussed because, above all, it was the one that delivered the verdict against Pell. This was his performance in the witness box, especially when he was cross-examined by Pell’s defence. Ferguson and Maxwell said this was a powerful feature of the prosecution’s case:
Both the content of the answers, and the manner of their delivery, were said to be such as to eliminate any doubt a juror might have had. In our view, this was a very significant part of [the choirboy’s] evidence. It was rightly characterised as compelling, both because of the clarity and cogency of what [the choirboy] said and because of the complete absence of any indication of contrivance in the emotion which [the choirboy] conveyed when giving his answers.
The judges cite two passages from the choirboy, in answer to the question by the defence of why the boys did not complain about the assault by Pell immediately or soon after it occurred. In the first passage, the choirboy said:
We were — we were young kids. We were just trying to get by and we had no, no — we didn’t want to rock any boats. It’s the last thing we wanted to do. … We were nursing, we were carrying forward a lot of hopes and dreams of our working-class families and it meant so much to us to maintain and preserve what we had and the fact that that happened and, and didn’t happen so quickly, it started and finished such a quick, quick amount of time and that we went back resuming life and not much really infiltrated us after that.
The second passage quoted by Ferguson and Maxwell was that the choirboy did not report the Archbishop’s assault at the time because he was anxious to do nothing to jeopardise his future at the school.
[I] was heading towards trying to be a young academic, you know, kid in a rich school trying to survive and trying to get through and trying to impress everyone in my family and trying to — to do something that — that I had the — I hadn’t done before, you know. That meant a lot to me. That meant a lot to me. And the fact that — that that was jeopardised, and the fact that — and it didn’t matter what jeopardised it. I could not bear the fact of — of letting down everyone in my life. Everyone around me had a lot of hopes in me on attending St Kevin’s [College], you know. That was the main drive. I wanted to stay at St Kevin’s. I wanted to be a part of that school, and I wanted to succeed in a rich private school environment. And I wanted that with my own head.
This wasn’t something he said on the spur of the moment, either. He repeated the same sentiment later in his cross-examination:
I was trying to adhere to a pretty strict regime as a choirboy. I was trying to do my best job as a choirboy and I knew then that just like any other pursuit like this, it was ah, quite serious on my performance and my behaviour mattered a lot. So, I was more focused on being um, doing the right thing as a choirboy.
Ferguson and Maxwell declared: “These responses seemed to us to be entirely plausible.”
Yet they contain a contradiction that one might have expected two judges of a court of appeal to have picked up immediately. If the choirboy really wanted to succeed in a rich private school environment, if he was carrying forward the hopes and dreams of “everyone around me” in his working class family, if he really was as worried about jeopardising his future at this rich private school (which provided him with a scholarship in return for his participation in the choir), and if he was so focussed on “doing the right thing as a choirboy”, what was he doing breaking so many of the rules? He had nicked off without permission from a choral procession, he and his friend had sneaked into a room which they were forbidden to enter, and they had swigged from a bottle of altar wine that belonged to the church. How could two appeal court judges not see that the choirboy’s description of his attitude and ambitions, on the one hand, and his description of what he did in the sacristy, on the other, contradict one another?
It is not as though the evidence about the rules for choirboys at the cathedral were unknown to the judges. The cathedral’s choir marshall from 1993 to 1996, Peter Finnigan, gave evidence at the trial that showed what a serious breach of rules the boys would have committed had they actually done what the choirboy claimed.
Q: But as I understand your evidence the prospect of anyone whizzing off had never occurred as far as you observed it?
A: No. The boys would know that would be quite a serious thing to do, and other boys would probably tell on them as well.
Q: It was a serious disciplinary offence?
Q: And reportable as a breach of the choristers’ duties to St Kevin’s and to the choir — sorry, to the choir?
Q: And from time to time parents would be notified if people were misbehaving?
A: Yes, they were.
Q: And St Kevin’s would be notified if people didn’t turn up to rehearsals as they should?
In December 1996, the two boys must have known of these rules. They would know they were jeopardising their place in both the choir and the school if they broke them. The prosecution tried to play down the importance of the incident, portraying it as a bit of a lark, “to have some fun”. Ferguson and Maxwell said: “The ‘swigging’ of the altar wine seems to us to be just the kind of thing which might occur in an adolescent escapade.” But if we are to take seriously the claims of the choirboy’s outlook and ambitions that so impressed Ferguson and Maxwell, “fun” and “escapade” are the wrong words. The visit to the sacristy would have been a breathtaking risk, which the choirboy knew, if he was caught, would jeopardise all the hopes of his working class family and leave him a legacy of failure: “I could not bear the fact of — of letting down everyone in my life”.
It is no answer to this to say the school would not, in practice, regard a solitary misdemeanour of this kind seriously enough to actually expel the two boys. It is probably true that, if they were caught in the act, the school or the choir marshall would have let them off with a warning, and their parents would have been informed to knock some sense into them before they did anything like that again. Only if they became repeat offenders would their positions be seriously in jeopardy. But at 12 or 13 years of age, and having only joined the choir halfway through 1996, the choirboy had no way of knowing all this himself. As he said, the choir and school were the overriding forces in his life then: “It meant so much to us to maintain and preserve what we had.” “We didn’t want to rock any boats. It’s the last thing we wanted to do.” If these statements were true, the boys would never have gone into the sacristy.
To sum up, let me put the case for and against the choirboy’s credibility as succinctly as I can.
The case for the choirboy’s credibility:
# The choirboy suffered a dramatic incident in 1996, hence his memory of what happened in the cathedral that day must be better than all the pro-Pell witnesses there at the same time. Therefore, on points of contention, his version should be preferred over theirs.
# The choirboy’s language and demeanour are more persuasive than that of all the other witnesses. Therefore, the whole of his testimony has the stamp of “truthfulness and reliability”.
# Knowing that, if caught, the choirboy would have jeopardised the hopes of everyone in his working-class family and ruined his own ambitions to succeed at a rich private school, he still went ahead and engaged in a forbidden escapade in the sacristy. Nonetheless, according to the majority opinion of the Court of Appeal: “both the content of what he said and the way in which he said it — including the language he used — appeared to us to be entirely authentic”.
The case against the choirboy’s credibility:
# The sacristy had been renovated since 1996 and did not look the same as it did then. The choirboy saw the renovated room in 2016 and declared it looked the same as it did in 1996. Therefore, his memory is suspect.
# The choirboy testified that he had only been in the sacristy once, at the time of the sexual assault, but it is highly probable he saw inside it several times before and after December 1996 in both an introductory tour of the cathedral and as the boys went back and forth along the sacristy corridor. Therefore, there are reasonable grounds for believing he is not telling the whole truth.
# The choirboy testified that all his own hopes and those of his family, were tied up in his success in the cathedral choir and St Kevin’s College. Yet he jeopardised that future by breaking the rules for choirboys when he left the choral procession, went into the prohibited area of the sacristy, and drank the altar wine. But he still maintained he was completely dedicated to behaving properly: “I was more focused on being um, doing the right thing as a choirboy.” The Court of Appeal should have recognised that the whole case against George Pell was grounded in this contradiction, and thrown it out.