The Priests’ Sacristy of St Patrick’s Cathedral in Melbourne gets its name from the fact that it is where the priests robe and disrobe before and after Mass. Priests are normally part of the Sunday ceremony and the final procession out of the cathedral. They return to the priests’ sacristy along with the altar servers at the back of the procession, following the choir. (Some other altar servers lead the procession ahead of the choir.) When they arrive at the priests’ sacristy, the altar servers are engaged in their own separate duties of retrieving liturgical items from the cathedral sanctuary and storing them in the priests’ sacristy. In December 1996, when the Archbishop’s own sacristy was being refurbished, any concelebrant priests joined then Archbishop George Pell in robing and disrobing in the priests’ sacristy. The cathedral’s master of ceremonies, Charles Portelli, said that he could remember helping Pell to robe and disrobe when he first said Mass as Archbishop at his first Sunday Solemn Mass at the cathedral. Portelli added that concelebrant priests were present in the priests’ sacristy at the time Pell both robed and disrobed. [cited by Weinberg, minority judgment, Victorian Court of Appeal, paragraph 716] This was at the same time, and in the same room, that the choirboy claimed Pell sexually abused him and his friend.
Keith Windschuttle: The Crown prosecutor’s bent trump card
The sacristan responsible for the whole of the cathedral’s sacristy area, Max Potter, told the trial the concelebrant priests took part in the procession after Mass. They were positioned towards the rear of the procession, behind the choir. Potter added that these priests would disrobe in the priests’ sacristy after Mass, and remained there talking among themselves while waiting to farewell the Archbishop when he returned after meeting and greeting worshippers on the cathedral’s front steps. This evidence was not challenged by the prosecution. [Weinberg, par 72] Here is the exchange between Pell’s defence counsel Robert Richter and Potter:
Q: Let’s put it this way. (To Potter) When you were not in the sacristy were you aware as to what the altar servers were doing? A: Taking things what I gave them from the sanctuary to put in the sacristy, and then they would come back out — out — out, and to see if there was anything else to come off the sanctuary.
Q: Would there have been more than — sorry, by then would the priests have arrived back from the procession? A: They would — they would arrive back and disrobe.
Q: And they disrobed in the priest sacristy? A: Sacristy, yes.
Q: And sometimes they would sit around and talk? A: Or waiting for the Archbishop to come back. Yes. …
Q: So, Monsignor Portelli comes back with the Archbishop. There are people in the sacristy waiting for the Archbishop? A: Yes.
Q: They say their goodbyes? A: Yes.
Q: Everyone unvests? A: Yes. [cited Weinberg, par 732]
Other participants in the two Sunday Masses given by Pell in December 1996, who gave evidence at the trial, also observed the presence of the concelebrant priests in the priests’ sacristy after Mass. The following five paragraphs derive from citations in the Weinberg judgment, pars 734–8:
Choir marshall Peter Finnegan said that when the Archbishop celebrated Sunday solemn Mass, there were almost always a number of other priests acting as concelebrants. These other priests would vest and de-vest in the Priests’ Sacristy. They would arrive there immediately after the post-Mass procession had ended and remain there for at least the next 10 to 15 minutes.
Organist and choir master John Mallinson agreed that both the priests’ sacristy and the sacristy corridors were crowded in the five to ten minutes after Sunday Solemn Mass had ended. ‘Choir people coming out of the — from where they’ve left their robes and books and things, back through the corridor, some of them, not all. And the clergy and so on, yes.’
Chorister Rodney Dearing said in the 10 to 15 minutes after Sunday solemn Mass, he would see Potter, various altar servers, and concelebrant priests in the sacristies, and in the sacristy corridor area.
Choir master Geoffrey Cox said after he had put away his sheet music in the choir room of the Knox Centre, he would walk back along the sacristy corridor. Although the normal ‘hive of activity’ had simmered down by that stage, there were still one or two priests in the sacristy who were talking as they were de-vesting.
Defence counsel Richter observed that the choirboy who accused Pell had acknowledged, in his evidence in-chief, that Pell was ‘always assisted’ by concelebrant priests when he said Mass. Richter submitted that those priests would have had nowhere else to go, once Mass had ended, other than to return to the priests’ sacristy, in order to de-vest.
Even Andrew La Greca, the choirboy who later expressed some enmity towards Pell on Twitter and who was interviewed on ABC’s Four Corners, agreed that there was always ‘one or more’ concelebrant priests in any Mass when the Archbishop was present. He said that the Dean of the cathedral, Father McCarthy, would have ‘certainly’ been there in 1996 on the first two occasions Pell said Sunday mass. [Transcript, par 1222]
So there are questions about these concelebrant priests that should have been asked at the trial: were there any concelebrant priests at either of the Masses on 15 and 22 December? Did the police make any attempt to establish this fact? Did they attempt to interview any of them? For example, was Dean McCarthy known to be a concelebrant or known not to be a concelebrant? Richter had told the jury: “there’s the Dean who takes up the collection and brings it into the sacristy. We are not sure what his movements are, but we know from one reliable witness that the dean was always there in procession when the Archbishop was.” Did any concelebrant recall seeing anything that might corroborate the choirboy’s accusation? Or did they know anything that might exonerate Pell, or at least raise a reasonable doubt about his guilt?
Two years before the trial, the police interviewed Pell in Rome. Pell protested how fanciful it was that there could have been a significant period of time after Mass for him to be alone with choir boys in the sacristy because it was ‘a hive of activity’. He described how at the beginning of Mass ‘if it was fine, the priests, if anyone was concelebrating, and the servers would come out at the end of the procession’ after the choir. And he described how at the end of Mass, any concelebrant priests would accompany the servers into the sacristy in order to divest.
Any concelebrant priests would have been in a good position to confirm or deny the prosecution’s insistence that the priests’ sacristy was emptied of all its occupants almost immediately after they arrived in order to give five to six minutes of ‘private prayer time’ for worshippers still in the cathedral’s sanctuary after the conclusion of the Mass.
And, in particular, did the concelebrant priests make their own hasty retreat from their sacristy for the same reason? Given that the evidence from Portelli, Potter, Finnegan, Mallinson, Dearing, Cox and La Greca all supported the proposition that any concelebrant priests would have been in the priests’ sacristy at the same time the choirboy alleged he and his friend were there and being abused by Pell, these priests were likely to be able to shed more insight into what happened, or didn’t happen, that day.
Yet in the case made against Pell by the two-judge majority in the Victorian Court of Appeal, and in the written responses by the prosecution to Pell’s appeal to that court and to the High Court itself, any mention of the concelebrant priests is conspicuous by its absence.
The Victorian Appeal Court majority judgment by Justices Anne Ferguson and Chris Maxwell mentions the presence of the concelebrant priests only twice themselves, not in any argument, but simply in their list of who took part in the post-Mass procession, and in their potted summary of the case for Richter’s defence of Pell.
In the response to the first appeal submission by Pell’s defence, the prosecution mentions the concelebrant priests once, and only in a footnote that derides as ‘speculative only’ the defence claim that the priests were in the priests’ sacristy at the time of the alleged assault. Finally, in their second submission in response to Pell’s appeal to the High Court, the Victorian Director of Public Prosecution, Kerri Judd, and Crown prosecutor, Mark Gibson, make one acknowledgement that the concelebrant priests were occupying the priests’ sacristy on the day the abuse allegedly occurred, only to dismiss it because the witness concerned, Peter Finnigan, arrived at the sacristy later than the other witnesses and did not see what happened in the first five minutes after the altar servers and priests got there. The DPP’s submission makes no mention, either for or against, the independent evidence of Portelli, Potter, Mallinson, Dearing, Cox and La Greca about the presence of the priests throughout the whole ten to fifteen minutes when they disrobed and waited to farewell Pell.
In other words, despite sufficient unchallenged evidence to establish the presence of the concelebrant priests in the sacristy at precisely the same time as the alleged assault took place, neither the prosecution nor the majority judgment of the appeal court acknowledged their presence. Instead, they have taken up their airbushes and painted them out of the picture.
Now, this legal tactic has not gone unobserved by Pell’s defence. A major part of the argument by Bret Walker and Ruth Shann to the High Court appeal is that the prosecution shirked its responsibility to confront all the available evidence by the witnesses: ‘The prosecution determined not to pursue witnesses or issues in circumstances where, on any view, the allegations made by the complainant were highly improbable.’ In what Walker and Shann call a ‘trial by accusation alone’, the prosecution evaded topics it would prefer not to investigate further, in case the questioning backfired and revealed information it did not want exposed. ‘Had the prosecution asked witnesses questions about these matters, their arguments may have been advanced or may have been exposed as entirely unsustainable,’ Walker and Shann argue. ‘Despite having the burden of proof, the prosecution made a forensic decision not to seek to establish which one it was’. Their submission to the High Court continues:
The prosecution in this case, having identified before the trial a need to challenge witnesses on a number of topics in order to discharge its burden of proof, made a deliberate forensic choice not to do so. The prosecution understandably may have considered that challenging witnesses would have only further firmed those witnesses’ exculpatory evidence, that any additional investigations would not have assisted the prosecution case, and that there were, in fact, no rational arguments available that explained how the whole of the evidence was consistent with proof of guilt beyond a reasonable doubt.
Walker and Shann give a number of examples of what they call this ‘passive approach’ by the prosecution, including the failure of the prosecution to call Father Egan, the priest who celebrated Mass on 23 February 1997, the day the Crown alleged the second incident of sexual abuse occurred. Pell was in attendance at Mass that day and was accompanied by Egan in the entrance procession as it began in the sacristy corridors, where the choirboy claims Pell assaulted him a second time. Walker and Shann write:
The prosecution failure at trial to actively pursue the elimination of doubt can also be observed in their decision not to investigate the recollections of Father Egan. The prosecution is obliged to place before the jury all relevant evidence — particularly from eyewitnesses. The obligation does not arise only if the defence requests that they do so. The absence of Egan leaves an unexcluded possibility that he provides a complete alibi for the applicant or 23 February 1997.
Plainly, any concelebrant priests who attended the Mass and then disrobed in the priests’ sacristy in December 1996 were subject to the same evasive tactics as Father Egan. This is not just a legal distinction about the kind of evidence that is required in a criminal trial. Anyone who accepts the evidence given about the concelebrant priests must be forced by sheer common sense to recognise that the abuse scenario painted by the choirboy has irresolvable problems. The priests’ sacristy on the day was not suddenly emptied of people soon after they arrived. Any concelebrant priests would have remained there all the time. They had no reason to go anywhere else and, indeed, nowhere else to go.
Anyone who recognises this, and then tries to picture the scene portrayed by the choirboy, will find it impossible to reconcile it with the prosecution’s claims. A Catholic priest and Quadrant reader who has written to me about this has tried it and says the whole thing collapses into absurdity. He makes two points.
First, he says the prosecutor’s theory that the ‘interval of decorum’, that is, the ‘private prayer time’ for worshippers who approach the sanctuary to pray at the end of the Mass would have caused the altar servers and others to abandon the priests’ sacristy and go to the sanctuary itself, is unbelievable. The priests’ sacristy is at the rear of the cathedral, out of earshot of the public areas, while the sanctuary itself is the centrepiece of the whole cathedral:
What could be more designed to thwart any prayerful interval of decorum than placing the altar servers on the sanctuary for five-to-six minutes, rather than in the priest’s sacristy where they would be out of sight and out of hearing of the praying faithful? It’s just so preposterous. If Potter wanted them to wait for five-to-six minutes before setting about any tasks which would disturb the congregants, there was no better place than the priest’s sacristy. The least suitable place would have been on the sanctuary.
Second, my correspondent notes that Judd and Gibson in the DPP’s latest submission to the High Court avoid describing where any concelebrant priests would have been located if they left their own designated room. The only place they logically could have waited was into the sacristy corridor. He writes:
Is the court to accept that the concelebrating priests wait in the corridor until the hive of activity commences and then all during the ten to fifteen minutes of the hive of activity? Not even Judd and Gibson dare to suggest that they too went up and lingered on the sanctuary with the altar servers for five minutes (for the interval of decorum) nor that they went into the work sacristy [utility room]. Are we now to think that the concelebrating priests having come into the priests’ sacristy and bowed to the crucifix, then withdrew to the corridor outside for at least seven minutes (allowing time for the choir boys to arrive at least a minute after them and then the five-to-six minutes for the assaults to occur). While they waited in the corridor, presumably Pell walked past them and entered the priests’ sacristy alone and they then waited outside in the corridor while the offences occurred with the door to the priests’ sacristy remaining open.
In other words, for the prosecution’s version of this story to be true, it would involve the concelebrant priests exiting the priests’ sacristy a minute after they arrived there and standing somewhere in the corridor, where they must have seen the choirboys go into the room, while Pell brushed his way past them in his haste to get at his alleged prey. The priests would then be left in the corridor for the next five or six minutes, waiting patiently while the new Archbishop satisfied his uncontrollable sexual urges. They would then see the boys emerge from the room and go on their way without saying a word. All of this supposedly took place without any of the priests or other characters in this drama noticing anything remarkable that day.
In short, the prosecution’s case reads like the script of a bad porn movie, where the director has no feeling for continuity, and one scene leads to another without making sense at all. Such are the standards of legal argument that now prevail within the Victorian Department of Public Prosecutions.
Keith Windschuttle is the editor of Quadrant