The Crown prosecutor’s bent trump card

The first of the two incidents that convicted Cardinal George Pell of sexual abuse of two choirboys supposedly took place after a Solemn Sunday Mass in St Patricks Cathedral, Melbourne, in December 1996. The choirboy who complained about Pell said he and a friend were abused in the priests’ sacristy of the cathedral shortly after they left the exit procession at the end of the Mass. The priests’ sacristy was the room in which then Archbishop Pell was assisted to robe before the Mass, and to disrobe afterwards. Concelebrating priests who took part in the Mass also robed and disrobed there. It was the room to which altar servers returned sacred objects used in the Mass. What remained of the sacramental wine was returned there, and the cash from the worshippers’ collection was deposited in its vault. It was out of bounds for choirboys. However, shortly after the procession, the choirboy and his friend allegedly found the sacristy unlocked and empty and went inside to swig the sacramental wine, when Pell suddenly appeared and assaulted them.

In my most recent piece for Quadrant Online, I showed that the submission by the Victorian Director of Public Prosecutions in answer to Pell’s pending appeal to the High Court contains an argument originally put to the jury by Crown prosecutor Mark Gibson at Pell’s trial, but which the trial judge ordered him to retract. The offending argument was that the priests’ sacristy was empty at the time the choirboys found it because altar servers from the exit procession, who had arrived at the sacristy a little earlier than the boys, had quickly left it and gone to the nearby utility room in order to provide a five-or-six-minute ‘interval of decorum’ or ‘private prayer time’ for worshippers still in the cathedral after the Mass.

Keith Windschuttle: The Crown prosecutor’s retraction

In his retraction to the jury, Gibson acknowledged there was no evidence given at the trial about where or when the altar servers might have gone after they allegedly left the sacristy. Despite his retraction, the same argument reappeared on January 31, 2020, in the submission to the High Court by the Director of Public Prosecutions. One of its four signatories is Gibson himself. It is complete with footnotes referencing trial evidence that, on closer inspection, turn out to be at best dodgy, and at worst bogus. These details are in my Quadrant Online posting on February 9.

Now, without the existence of the ‘interval of decorum’, that is, the hiatus in the post-Mass proceedings for ‘private prayer time’, the credibility of the choirboy’s claims about being assaulted in the priests’ sacristy over a five-to-six minute period would have been very difficult to argue. More than twenty witnesses for Pell at the trial revealed so much detail about what happened in the cathedral after each Sunday solemn Mass that it must have often appeared to the prosecution there was literally no time when the abuse could have taken place. But prosecutor Gibson seized on one apparently insubstantial piece of evidence by the cathedral’s sacristan, Max Potter, and turned it into a trump card.

At Pell’s trial, Potter mentioned that immediately after the end of a Mass he normally waited five or six minutes before going to the sanctuary — that is, the area around the altar, not the priests’ sacristy. He waited five or six minutes to be sure the whole procession had gone down the cathedral’s nave and out the west door. And during the same five-or-six minute period, Potter said, some people would be walking up to the sanctuary area, or kneeling near it, saying their own private prayers. In other words, the five-or-six-minute hiatus that later assumed such significance in convicting Pell originated in this comment by Potter.

In its original form it was not a five-or-six-minute hiatus that occurred later in the post-Mass proceedings, that is, after the altar servers and the choirboys had finished their procession and gone to the sacristy. And it was not a hiatus that affected anyone at all at the scene of the alleged crime, the priests’ sacristy. It was just a courtesy for the worshippers in the cathedral who had approached the sanctuary to pray. Here is the transcript of the relevant part of Potter’s examination by Gibson:

Mr Potter, can I ask this question. Once mass finishes and the procession commences down the nave towards the western door, once mass finishes and the procession commences, how long is it before you first attend the sanctuary to start doing what you’ve just told us? — Could be five minutes. I make sure that the procession’s cleared from the cathedral first. That the whole procession’s moved through. And people will be walking up to the sanctuary area kneeling, so we didn’t disturb them for that five or six minutes, we gave them their private time and then we would move in after that.

Now, this is quite clear. Potter is talking about a hiatus that begins ‘once Mass finishes and the procession commences’. He makes sure that the worshippers are not disturbed ‘for that five or six minutes’. And while he is giving them this ‘private time’, he is also checking to see when the last of the procession leaves the cathedral through the west door. Only then does he go to the sanctuary to perform his duties there. The ‘private time’ does not begin after the procession goes through the cathedral’s west door. It begins immediately the Mass has ended.

This is a critical point which the majority judges in Pell’s first appeal in Victoria, Anne Ferguson and Chris Maxwell, get wrong. They misread Potter’s evidence:

His [Potter’s] evidence was that, after the choir and clergy had processed to the west door, he would go to the sanctuary, where he would wait until parishioners had finished what he called their ‘private time’ for prayer after the service. This was typically a period of five or six minutes.

However, Potter did not say he waited for five or six minutes in the sanctuary ‘after choir and clergy had processed to the west door’. He was responding to Gibson’s question about ‘before you first attend the sanctuary’, that is, in the interval between the end of the Mass and his going to the sanctuary, and what he does about the few worshippers still engaged in private prayers. Potter replies that he allows them a five-or-six-minute prayer time and he does this while the procession is still on its way towards the west door. The private prayer time starts at the same time as the exit procession, and both finish at the same time, about five or six minutes later.

This point is critical because if it is accepted, the whole case against Pell falls apart. During the first five-or-six minutes after the end of Mass, the two choirboys are not in the priests’ sacristy, they are still in the exit procession, as the choirboy himself attested several times under various examinations in both commital hearings and the trial. The boys only leave the procession after it comes to a halt outside the rear gate of the cathedral. The procession takes about six minutes from start to finish and the two boys remain part of it until the choir starts to enter the cathedral’s rear gate, when they allegedly turn back and go into the cathedral’s south transept door.

In Gibson’s hands, however, this five-or-six-minute hiatus is transformed into something that began not immediately after Mass but five-or-six minutes later, after the exit procession had ended. He also quietly shifted its location from around the sanctuary to the priests’ sacristy, where the choirboy said he had been abused.

Despite being forced to retract his claims to the jury about when the private time occurred, and where the altar servers and others in the priests’ sacristy went during this time, Gibson managed to persuade the jury and the appeal court that ‘private time’ did not begin immediately after Mass, as Potter said, but was something that took place only after the altar servers had arrived at the sacristy, put down their liturgical items, and then went somewhere else for the next five-or-six minutes, leaving the sacristy empty.

Moreover, despite the unchallenged evidence of several altar servers and choir officers themselves (Connor, McGlone, Finnegan and Cox) that, once they reached the priests’ sacristy, the ‘hive of activity’ would begin there straight away, Gibson managed to persuade judges and jury to ignore this evidence and believe his version of the timing and location of the post-Mass activities.

This was an audacious manipulation of the evidence but Gibson managed to bring it off. And although called upon at the trial to retract the central part of the story because it had no basis in evidence, Gibson still managed to convince the jury to see things his way. It is one thing to persuade a jury to accept a warped view of the evidence in a case with so much intricate detail, but it is quite another to persuade a majority of judges on the Victorian Court of Appeal to make the same blunder. Gibson must have felt very lucky, and probably very surprised, that he got away with it.

Keith Windschuttle is the editor of Quadrant

13 thoughts on “The Crown prosecutor’s bent trump card

  • Salome says:

    The sad reflection on the loss of faith in society is that not all that long ago, there would have been people in the general population who would have understood that the sacristan (Mr Potter) would not have allowed the sacristy to be unattended once the door was unlocked.

  • Doubting Thomas says:

    Once upon a time, and not all that long ago, legal professional ethics would have made it hard for corrupt Governments and police “services” (sic) to find lawyers prepared to sacrifice their reputations by going along with witch-hunts like Pell’s. And back around then, professional ethics would more likely than not have found few ABC and other ethical journalists prepared to act as the ABC and its personnel have done in this case.
    Once upon a time most people had a well-developed and serviceable sense of shame. Sadly, not any more.

  • Peter Smith says:

    I don’t have Keith Windschuttle’s forensic mind. But lets think about it. A man is put away in prison for a dated alleged offence on the totally uncorroborated say-so of one complainant – and, to boot, the case turns on finding some five minute interval when possibly the priests’ sacristy is unlocked yet unusually unattended and when, coincidently, the choirboys have illicitly entered and Cardinal Pell arrives alone. It is beyond parody. My head explodes when trying to work out how a jury, never mind so-called learned judges, could possibly find the Cardinal guilty beyond reasonably doubt.

  • Doubting Thomas says:

    I think it may well be all in the pervading modern ignorance of religious architecture and terminology, Peter. I’d like to see a survey of the number of people who know the difference between a “sanctuary” and a “sacristy” and who know the location and purpose of each; who know the difference between an “apse” and a “nave”, and so on.
    Even I, an altar boy at a Catholic boarding school for many years (and who surreptitiously quaffed leftover altar wine whenever the opportunity presented) have had to concentrate carefully to avoid confusing “sanctuary” and “sacristy” when reading the articles.
    What hope would a Philistine have of keeping up?

  • Peter OBrien says:

    Does it seem likely that a person with the self discipline and determination to rise to the top of the Church’s hierarchy, would, at age 50 or so, exhibit such rash behaviour, such lack of self control, in a packed cathedral within an unknowable time interval if 5 or 6 minutes?

  • DG says:

    A simple bar chart of each group’s location over time should be all that is necessary to clarify this.

  • pgang says:

    Peter Smith, exactly. We can only assume that they were overwhelmed and confused by the presentation of evidence, and simply wanted Pell to be guilty.

  • tom3 says:

    Keith, how could Cardinal Pell have know two boys (who he did not know personally) would be in the sacristy at that very moment in time ?? These two were not even alter boys. So what would make a Cardinal break ranks with in a large procession/congregation to go on a fishing expedition for sex. Nothing, because he didn’t & certainly like any sane person would have the brains not to.

  • Stephen Due says:

    To me the most glaring feature of this case is that the complainant’s narrative of the alleged sexual assault reads exactly like a sexual fantasy. The events described are the stuff of everyday pornography. Even the time-frame (five to six minutes) is precisely the time-frame of stock-standard pornographic videos. But there is a big problem. Anybody with any sexual experience would know immediately that a real man could not possibly have done what Pell is widely believed (by a gullible public) to have achieved in five minutes. My theory (yes I have one) is that the general public (including lawyers and even judges, but especially jurors) live in what is actually a fantasy world created for them by the media. They have lost the ability to determine the difference between reality and fiction. But there are times when ‘fake news’ can be very harmful, and this is definitely one of them.

  • Stoneboat says:

    Scripture talks of those who perish because they “received not the love of the truth”.
    (2 Thessalonians 2:10)
    The lies, injustice & gnashings against Cardinal Pell are a revolt of a world offended that it is not God and offended that it is subject in every area to The Almighty and to His son Jesus Christ.
    Even the truth, when it is observed on godless presuppositions, can become ‘fake news’ and harmful to everyone. Bojidar Marinov’s thoughts about this, in Fake News and Covenantal Thinking, are worth considering.

  • whitelaughter says:

    DG – such a chart would exist if we had a european system of justice, rather than our antiquated one. Evidence in our coruts can only be admitted by one of the two lawyers; in the Napoleonic Code *all* evidence *must* be submitted, weighed, measured and decided on: and *before* it is shown to the jurors. One of the many reasons we have so many mistrials.

  • norsaint says:

    This travesty further highlights the corrupt nature of our adversarial legal system, whereby truth if uncovered is nice but wholly incidental to proceedings. The aim of the game is for legal parasites to show off in public and win. Given what’s gone on in the High Court of late, it doesn’t augur well for the innocent Pell’s next appeal.

  • DUBBY says:

    That thought occurred to me too, norsaint. I believe 11th March is the day.

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