Two Judges and the Baying Mob

Victoria should join New South Wales in allowing high-profile criminal matters to be heard by a judge alone. Judges, at least, should be above the baying mob.
                                               — The Australian, 8 April 2020

This recommendation from an editorial in The Australian reflected many commentaries on the High Court verdict that freed Cardinal George Pell from prison and overturned his infamous conviction for alleged child sexual abuse. It recognised, rightly, that in high profile cases like this, juries can be swayed by thoughts that are both unreasonable and unjust.

In this case, the editorial reported that a common sentiment heard inside the trial court’s public gallery was: “Even if he didn’t do this he deserves to be punished,” a referral to practices in the Catholic Church to cover up allegations of this kind from the 1950s to the 1980s, long before Pell was in any position in the church to do something about it. In short, some members of the public, that is, potential jurors, think it is OK to make a man a scapegoat for something he didn’t do.

And, as I noted in earlier coverage of this issue in Quadrant, June 2019 (“Why the Second Jury Found George Pell Guilty“), the highly publicised public apology given to victims of child sexual abuse by Scott Morrison and Bill Shorten, recommended to them by the Royal Commission into the subject, was made just sixteen days before the start of Pell’s second trial in Melbourne’s County Court. So the jurors who convicted Pell began their task with the slogan of the apology, ‘I believe you, we believe you, your country believes you’, ringing in their ears. Little wonder they succumbed to this appeal.

But the idea that a trial heard by a judge alone must have avoided this kind of problem at the same time and place is wishful thinking. It depends on who is on the bench. The two judges who made the majority decision in the Victorian Court of Appeal to reject Pell’s application and confirm his conviction are proof of this. Chief Justice Anne Ferguson and President of the Court of Appeal Chris Maxwell are even more responsible than the jury for the continuation of Pell’s persecution.

The judges not only had the time to study the videos and transcripts of evidence in the case at their own pace, but could go back over them as many times as they liked until they were sure of their ground. These were analytical bonuses not allowed to jurors. Yet, as Quadrant was able to show time and again in articles over the past twelve months, the quantity of errors the judges made in both their empirical deductions and logical conclusions were alarming. As The Australian editorial says, “judges, at least, should be above the baying mob”. But when this is not the case, justice in the state of Victoria is in trouble.

Let me demonstrate this point again with one of the central arguments Ferguson and Maxwell relied upon to endorse Pell’s conviction. Historical sexual abuse cases are often difficult to prove one way or another because the evidence amounts to nothing more than “my word against your word”. The prosecution in the Pell trial had an even bigger hurdle to overcome. It was not only pitting the evidence of its sole witness against the contrary evidence of more than twenty witnesses for the defence, it also had to face the fact that the accuser, the choirboy, brought nothing solid to the case to corroborate what he was saying. He had not one witness in his favour, no incriminating objects, no photographs or CCTV, no DNA or other chemical clues, no evidence independent of himself and his “memory”.

The defence had a substantial volume of evidence, some written down at the time and some recalled later, which constituted multiple alibis that not only was Pell not where the choirboy said he was when the alleged abuse took place — that is, in the priests’ sacristy of St Patrick’s Cathedral on either December 15 or 22, 1996— but the choirboy and his friend were not there either.

The Crown prosecution, however, created its own version of what counted as corroboration of its case. This was an argument that went like this: because he said he had never been in the sacristy either before or since the abuse occurred, the choirboy could only have derived his knowledge of its layout and appearance from the occasion of the abuse itself. Therefore, he must have been in the sacristy when he said he was.

The Ferguson-Maxwell judgment echoed the prosecution’s case. 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”.

In our view, the jury were entitled to view these undisputed facts as independent confirmation of A’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 Victorian Office of Public Prosecutions kept using this argument all the way to the High Court. Director of Public Prosecutions Kerri Judd told that court that the choirboy’s accurate recall of the layout of the priest’s sacristy not only provided “independent support” for his account of the assault but also was “an important aspect of the majority’s assessment of [his] credibility and reliability”.

Now, the High Court’s judgment dismissed this argument pretty abruptly. It simply said, with polite understatement:

It was not correct to assess the capacity of A’s evidence to support the verdicts on a view that there was independent support for its acceptance. And it was, with respect, beside the point to find that it was open to the jury to view A’s knowledge of the priests’ sacristy as independent confirmation of him having been inside it.

But there is a stronger case that can be made than this.

In cross-examination during the trial, Pell’s defence counsel, Robert Richter, questioned the cathedral’s sacristan, Maxwell Potter, about renovations done to the priests’ sacristy in 2003 and 2004, after Pell had ceased to be archbishop. The renovation had modernised the sacristy’s kitchen facilities and moved furniture and fittings to different places. Yet Richter pointed out that, during a recorded police walk-through of the cathedral in 2016, the choirboy looked at the renovated sacristy and said it was the same as at the one and only time he was inside it, in 1996. — “He is looking at that,” Richter told the jury, “and he said, ‘That’s unchanged’.” In short, the choirboy’s memory of the sacristy’s appearance must have derived from a visit he made after the renovations of 2003 or 2004, rather than from his alleged experience in 1996.

Moreover, Ferguson and Maxwell endorsed an additional variation on the same theme. In December 1996, when the alleged assault occurred, Pell was not robing or disrobing after Sunday Mass in the sacristy allocated to the archbishop. He was using the priests’ sacristy next door. At the time of the alleged assault, the archbishop’s sacristy of the cathedral was undergoing repairs and restoration. Here then, the two judges say, is confirmation that the boy was truthful. By locating the assault on that fateful day where he did, how could the choirboy have known that Pell would be using not the archbishop’s sacristy to disrobe, which he normally did, but the priests’ sacristy? They argue:

More striking still was the fact that [the choirboy] identified the priests’ sacristy as the setting. At all other times, Cardinal Pell would have robed — and disrobed — in the Archbishop’s Sacristy. Exceptionally, however, that Sacristy was temporarily unavailable at the end of 1996 because its furniture was under repair. As a result, Cardinal Pell was — at the time of the alleged offending — having to use the Priests’ Sacristy to disrobe after Mass. 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.

This is a bad error by Ferguson and Maxwell and shows, once again, that they were not paying proper attention to the evidence before them. The archbishop’s sacristy was not “temporarily unavailable at the end of 1996”. Moreover, “at all other times” Pell did not robe and disrobe there. The judges got that completely wrong. The archbishop’s sacristy had not been used by anyone for robing and disrobing for at least four years before December 1996, and until some time later in 1997.

The cathedral’s master of ceremonies, Charles Portelli, gave unchallenged evidence at the trial that neither Pell nor his predecessor, Archbishop Frank Little, had occupied the archbishop’s sacristy. Both used the priests’ sacristy. During the period when St Patrick’s Cathedral was being renovated, the archbishop’s sacristy was converted into the cathedral’s day chapel, and also used for other refurbishing tasks, such as restoring very large paintings. So for Pell to return to the priests’ sacristy after the two Masses in December 1996 was nothing unusual, let alone a critical clue confirming his guilt. Here is Portelli’s evidence on the subject when examined by the prosecution:

Q: Was there a period of time when the archbishop’s sacristy was not available for the archbishop to robe and derobe in? A: Yes.

Q: Can you tell us firstly when that was? A: All right. For much of the period between ‘92 and ‘96, during the week, if there were noisy works or dirty works going inside, going on inside the cathedral, by dirty I mean raising dust and so on, we would use the archbishop’s sacristy as the day chapel … In that instance, the archbishop could use, as had Archbishop Little before him, could use the priest’s sacristy.

Q: To do what? A: To vest.

Q: When you said ‘92 to ‘96, that’s to the end of ‘96? A: Even into ‘97.

Q: Right, so there were occasions, depending on what the archbishop’s sacristy was being used for —? A: Yes. — where it was off-limits for the archbishop to robe and derobe in? A: It wouldn’t be off-limits. It just impractical to use it.

So, during the various occasions the choirboys went back and forth through the sacristy corridors in early 1997 it would have been common knowledge that the archbishop’s sacristy was not used for robing and disrobing. At every Mass Pell attended at this time, he would have emerged to join the opening procession from the priests’ sacristy rather than the archbishop’s sacristy. The boys in the procession would have seen this many times in 1996 and 1997.

So, the judges’ reliance on this point as “independent confirmation” of the choirboy’s evidence is specious. When added to the demonstration during the walk-through in 2016 that the choirboy could not tell the difference between the renovated sacristy and its unrenovated appearance in 1996, their argument collapses. So the testimony of the choirboy was left standing all alone, with no corroboration.

So, who to prefer to dispense justice: Victoria’s Chief Justice and the President of its Court of Appeal, or the baying mob of the jury? These days, that’s not an easy question to answer.

44 thoughts on “Two Judges and the Baying Mob

  • jt says:

    What a wonderfully ‘compeling’ video you made!…All the better to sway you (the jury and the judges) with my dears.

    Now consider this…Pell’s accuser is a lawyer.
    Game. Set. Match.

    (Please reference the accusers statement released once Pell’s conviction was quashed, specifically the part where he states…

    “I respect the decision of the High Court. I accept the outcome.
    I understand their view that there was not enough evidence to satisfy the court beyond all reasonable doubt that the offending occurred.
    I understand that the High Court is saying that the prosecution did not make out the case to the required standards of proof.
    There are a lot of checks and balances in the criminal justice system and the appeal process is one of them. I respect that.”

    I believe what he really means is ‘I must abide that’

  • Gobsmacked of Gippsland says:

    The unanimous decision of the High Court is so devastating to the professional reputations of Chief Justice Anne Ferguson and President of the Court of Appeal Chris Maxwell that surely they must consider whether their positions actually remain tenable.

  • DUBBY says:

    The decision of the Victorian Court of Appeal shook my faith in the legal system, to the core. Thank God for the High Court. As a former priest and lawyer, with a love for both institutions, I have a foot in both boats. During this, the greatest crisis since the reformation, the Catholic Church needs strong and decisive leadership. What it doesn’t need is weak effeminate bishops steeped in modernism, whose greatest desire is the approval of others. How does the new Archbishop of Adelaide rate, in your opinion; not that your opinion matters.

  • Peter Smith says:

    Of course Ferguson and Maxwell should resign and forthwith. How can we suffer judges whose capacity for logical thinking is so wanting. It is bad enough that such thinking abounds in the media. I was shocked yesterday to read the Sunday Telegraph editorialising that “George Pell had not been declared innocent” that “the verdict had been quashed on a point of law – not on an assessment of the evidence.” I have written a letter to the editor. Whether it will be published I don’t know. Let me make a general point. I am worried that the capacity for logical thinking, and its counterpart common sense, is in steep decline. Look at the Victorian police, or the people on both juries (excluding those in favour of acquittal on the first) and then the feeble-minded judges. Mind you, sheer bloody-minded vindictiveness is alive and well. See it in spades at the ABC and, clearly, also, at the Sunday Telegraph, among the other rags that pass these days for newspapers.

  • Ian MacKenzie says:

    What struck me was that as soon as the case left Victoria, 100% of the judges reviewing it could see that the conviction was wrong. Moreover, the reason it was wrong was precisely that given by Cardinal Pell when he was first told of the accusations – that he would never be alone in the sacristy. It was that simple and obvious. Despite this, in the entire Victorian legal system (Police, DPP, Magistrate’s Court and Court of Appeal) only a few jurors in the first trial and Justice Mark Weinberg could see the obvious. Following this and Lawyer X, who could have any faith in the Victorian legal system?

  • john.singer says:

    Even Justices of the High Court are not above the baying of the mob particularly if former High Court Justices are also baying.
    Even if you replaced Judges with robots you would still have a bias within the programming because it would be written by a human.
    However imperfect it is the best system we have, although, I sometimes wish there still lay an appeal to the Privy Council.

  • Carlos says:

    Having followed the Pell case closely, I’d like to venture the following:

    The complainant’s knowledge of the Priest’s sacristy may have been furnished by VicPol, when you consider the breadth of their malfeasance in other aspects this makes sense. The fact that the information was post renovation supports this.

    Speaking of malfeasance, Ferguson and Maxwell got it so wrong that one is inclined to conclude that they were wilfully obtuse. What are the formal consequences (if any)? Can they be held to account?

    If Pell is now innocent of these ghastly crimes, the inverse is that the complainant was lying or deluded. Why are there no ramifications for what amounts to perjury?


  • Peter OBrien says:

    Peter Smith, I too read, with disgust, the editorial in the Sunday Telegraph. Here is the comment I posted under Tim Blair’s recent piece:

    I trust you were not the author of today’s asinine editorial in the Sunday Telegraph which states inter alia – The ex-Archbishop of Sydney was found guilty by a jury of sexually assaulting two children and now that verdict has been quashed on a point of law — not on an assessment of the evidence.
    That is completely wrong. The HC decision was based entirely on an assessment of the evidence -i.e. that it could not support a verdict of guilty beyond reasonable doubt.
    How did that crap make it into print?”

    I emailed the same point to the editor but don’t expect a response.

  • Peter OBrien says:

    Here is the text of a letter I sent twice to The Australian but it was not published:

    To all those who insist that the High Court’s unanimous reversal of Cardinal Pell’s conviction indicates that he was not found innocent but merely not guilty, I ask this question. Do you see Cardinal Pell as an impetuous risk-taker? Because that is, necessarily, the kind of person who would have perpetrated these alleged crimes.

  • norsaint says:

    Ferguson and Maxwell are blockheads. As for Kerri Judd, it was she who threatened overseas Catholic media with the full might of Victorian law for reporting on the scandalous Pell show trial. Enough said. However we’ve long known the legal system in Victoria is out of control. “Specialist” courts are merely a front of feminist jurisprudence whereby the presumption of innocence is inverted. As a result, “super-jails” are springing up ten-a-piece, such is the incarceration rate by these due process fiascoes.
    Is there any connection between the influx of wimmin into the “profession” and the growth of totalitarian practice? I think the answer to that is screamingly obvious.

  • Peter Smith says:

    Apropos my previous comment and Peter OBrien’s, here is my letter to the Sunday Telegraph:
    “Your editorial on Cardinal Pell’s acquittal by the High Court was beyond belief. First your claim that Cardinal Pell was not declared innocent shows abysmal ignorance of our system of justice. No one is declared innocent. The verdicts open to courts is guilty or not guilty. Cardinal Pell, having been declared not guilty, now has the presumption of innocence. Second, your claim that the verdict was quashed on a point of law and not on the evidence is simply wrong. The High Court found the evidence to be insufficient to find the Cardinal guilty. This wasn’t surprising. The evidence against him was outlandish. The case should never have been prosecuted. Finally, contrary to your view, the Cardinal should resume his duties if he wishes. There is no stain on him.”

  • Stephen Due says:

    The complainant is the person who still interests me. He was accredited after Pell’s release with a remarkable statement to the effect that it was wonderful to see justice done. I have never heard a genuine victim of child abuse say anything like that. I suspect the purpose of that statement was to defuse any interest an aggressive media might have in considering the fact that what he told the police and the courts may well have been a fabrication. Furthermore I suspect that some of the police involved know it was a fabrication, and that they assisted in crafting it over quite a long period of time. Under the circumstances I cannot see that the complainant and the police involved should not be further investigated by somebody – maybe a good journalist would be able to set the ball rolling. meanwhile be assured the ‘your’ ABC is working away to dredge up more muck on Cardinal Pell.

  • Gabrielle says:

    Yes, Stephen Due, I thought almost exactly the same thing. I have a close relative, a survivor of sexual abuse from both Marist and Christian brothers and his response to the High Court’s findings is ‘THe bastards have won again. I’ll never get justice!’ not the calm acquiescence delivered by the complainant.

  • norsaint says:

    Stephen, it read like a legal vulture’s F6 computer key. In early 2016 or 2017 I heard this accuser being interviewed on ABC radio. I remember it for two reasons. I’d just woken up switched on the radio. Initially I was puzzled because it was the ABC’s AM program and as a non-ABC listener, that puzzled me. After I’d gathered my senses I realized I’d been listening to the cricket broadcast the previous day and hadn’t switched back to the TABs racing radio. The second thing that struck me was the interview. I was listening to a person who was, in prison parlance, fried. Having being outrageously jailed (like Pell) after the involuntary divorce courts stole my children, I became acquainted with a different argot and culture. ‘Fried” refers to those who’ve taken so many drugs they’re no longer compus mentis. Alas, there are not a few of them serving time at Dubious Dan’s pleasure. They’re instantly recognizable by their voice intonations, speech inflexions and vocabulary. They’re also tediously boring. They carry no weight with other prisoners and their utterances usually attracted amusement if not derision. They certainly weren’t considered worthy of trust. At the time I couldn’t work out why a fried junkie was being given airtime on radio. Imagine my incredulity when at the end of the interview, it was revealed this was Pell’s accuser! Gobsmacked didn’t describe it. Anyway, the bloke was barely intelligible, couldn’t get a coherent sentence out and displayed all the sad characteristics of the “fried”. The statement they tried to attribute to him last week was clearly the work of another.

  • James Franklin says:

    If “Lawyer X” is the right nickname for a Melbourne lawyer out of control, presumably “Legal System X” is right for a legal system out of control. Might as well keep the Royal Commission inquiring into the former in session to investigate the latter.

  • James Franklin says:

    If “Lawyer X” is the right nickname for a Melbourne lawyer out of control, presumably “Legal System X” is right for a legal system out of control. Might as well keep the Royal Commission inquiring into the former in session to investigate the latter.

  • pgang says:

    Peter Smith, ” Let me make a general point. I am worried that the capacity for logical thinking, and its counterpart common sense, is in steep decline.”
    Of course it is. The basis for rational thinking is gone from our culture. People now ‘think for themselves’. You believe whatever you want to believe and ‘think’ whatever suits that paradigm. The millennial-old wisdom of Judeo-Christianity is held to be no more perspicacious than the brain fart of a child. It’s just a ‘personal choice’. For example, most now believe that the universe and life created themselves. Why? Because they want to, or because someone else who wants to has told them it’s true. I’m not sure which is worse, the wanting or the careless acceptance of silly ideas.

  • Daryl McCann says:

    James Burnham, “Suicide of the West”: ‘It is ideology that defines what will be accepted as truth and reason…’

  • T B LYNCH says:

    Barristers possess many skills, but the greatest is the ability to manoeuvre an unpopular innocent defendants case before a judge who is [1] honest [2] industrious and [3] intelligent…in that order.

  • Gerard Barry says:

    Given their connivance with the ABC and lessons learnt from the Lawyer X scandal, it appears that there was no legal convention the Victorian Police wouldn’t breach to secure a conviction of a person regardless of guilt or innocence. The majority decision of the Appeal Court also meant that until the High Court intervention, no one in Victoria was legally safe.

    So, to complete this legal stuff-up, my question is: did the Victorian Police knobble the jury at Pell’s second trial? Or, was the guilty verdict collateral damage or a bonus?

  • Stanton Halik says:

    norsaint – “In early 2016 or 2017 I heard this accuser being interviewed on ABC radio.”
    Can you – or anyone else – give a more precise reference to the date, time and ABC program? Given the secrecy surrounding the identity of the complainant and the fact that legal proceedings were underway it is hard to believe he would be giving interviews on public radio.

  • PT says:

    There’s a more egregious example of odd comprehension of the part of those two judges than that. The defence barrister made a comment that no sane person would commit such an offence in a room where large numbers of people were expected at any moment, and the Justices claimed that was a plea of insanity. They actually claimed Pell’s defence was simultaneously arguing an impossibility defence and an insanity one. I could hardly believe it when I read that in their judgement!

  • norsaint says:

    Stanton, I’m afraid I can’t really. It was summer obviously and probably no later than early January because I don’t take any interest in the limited overs stuff. So I’m thinking Dec/January 2016/2017 or 2017/2018. It does seem strange as you say, that this would occur. However I’m as sure as I can be that is how it happened. Chris Friel asked me the same question but I’m not sure if he had any luck tracking it down. He also did a load of work on Pell’s persecution on Academia.edu Exhaustive really.

  • norsaint says:

    Any chance of the Head walloper Ashton being forced to resign for continuously describing the fantasist as a “victim”? Could make it the trifecta alongside the gormless Ferguson and Maxwell.

  • jt says:

    I believe the man to whom you are referring is Lyndon Monument. He is, however, not the man from this most recent episode against Pell, known as Witness J. Please see my original comment above.

  • jt says:

    Stephen Due,
    I’ve been waiting for someone to comment regarding WitnessJ’s statement. Please see my original comment above for more clarity.

  • jt says:

    There is a legal text book called ‘Analysing Witness Testimony: A Guide for Legal Practitioners and other Professionals. Chapter 16 is a very interesting read indeed.

  • Salome says:

    The statement was delivered by Witness J’s lawyer. We might conclude that said lawyer had a lot of input into its composition.

  • DUBBY says:

    Off the point a bit, but is it sufficient for a witness to look like he is telling the truth; to look credible, even if all evidence presented is against him? Most second-hand boat salesmen and most unfaithful lovers look like they’re telling the truth. This ‘looks honest’ business is a unreliable test, in my view.

  • Peter OBrien says:

    I’ve noted earlier the inherent improbability of Cardinal Pell, a successful ambitious middle aged man, committing these alleged crimes in such a cavalier risky way, rather than grooming his victims over time as most, if not all, priestly offenders have. There’s also another factor. Pell is a conservative and it is worth noting that, In Australia certainly, paedophilia is exclusively the preserve of the Left of politics, at least as far as convictions are concerned, as witness:
    Milton Orkopolis Labor
    Keith Wright Labor
    Bill D’arcy Labor
    Terry Martin formerly Labor
    Bernard Finnigan Labor/Independent (child pornography)

    Yes, a small tenuous point but just one more factor in the improbability equation.

  • Doubting Thomas says:

    Unconvicted but credibly accused, Andre Puig and Bob Collins, both Labor.

  • jt says:

    Lets just agree Cardinal Pell is an innocent man and was set up. Now lets look at the Italian mafia and their connection to the Vatican finances. (You really dont think Pope Benedict resigned because he didnt like his job anymore). Their connection with the Victorian Police and many prominent figures throughout Australia has been well documented.
    The fact that Cardinal Pell had been given complete authority of the Vatican finances was not liked by the corrupt mafia inside it’s walls. The timing of Cardinal Pell’s charges was not coincidental. It coinsided with the approval of the purchase of $200 million London real estate with Vatican money. George Pell had already denied this loan for this purchase. He was working to stop the corruption. Making the corrupt in Rome give all the stolen money back to the parishes. Why do you think they needed to bring down Cardinal Pell? His traditional, conservative views were in contradiction to the way the mafia had been wanting to run things. With him out of the way they could continue their activities of using the vatican finances as their personal piggy banks to purchase property after property. George Pell had already made them sell one of these properties and give the money back to the parishes.
    These same traditional, conservative views, which so many of us admire him for, are the exact thing all the odds and sods out there needed in order to make the ignorant, gullible morons out there believe he was capable of such a depraived crime as child abuse. He was succeeding in doing some good within the Vatican walls until, a convenient, unidentified witness came forward with a sob story about a dead friend (a very coincidental death might I add) who provided evidence to this witness just at the right time. Do you all realise that the account of this dead man’s abuse was only told to this unidentified witness. He then was responsible for fabricating this perfect lie, for making such a ‘compelling video…that it made one judge stop and put down his pen….come on please. Has anyone bothered to check the bank account of this witness or the 2/3 judges that approved the conviction.

  • jt says:

    Do you really think that when they needed George Pell out of Rome the most they were going to let some blubbering idiot, like most of these accusers are, ruin everything that had pain stakeingly put in place. They needed a credible, coherent witness that could do the job. One the likes of which has never been seen before and I’m guessing ever will again. Who better to pick than someone who knows the law. Someone who can help pull it off. And now that George Pell has been replaced in Rome and is here to stay…send in the blubbering idiots.

  • Stephen Due says:

    Peter O’Brien. Not only Labor but also homosexual, which, presumably Cardinal Pell is not. The Catholic church should be addressing the issue of homosexuality in the priesthood, but sadly I think it has become spineless.

  • DUBBY says:

    Stephen Due, the Catholic church addressing homosexuality in the priesthood would be like the fox investigating headless chooks in the henhouse. And, your last post -jt – was beyond me. Could you be a little more specific. Are you saying the victim in the Pell case was a lawyer and if so does he/she have a name? I suspect you are not saying that.

  • jt says:

    Yes. He. No.

  • lloveday says:

    Janet Albrechtsen has a good article on the issue in The Australia today, but paywalled. I hoped it would be on Morningmail.org where all can read it, but they had yesterday’s article by Edward O’Donohue (also paywalled by The Australian) instead.
    Maybe they will publish Janet Albrechtsen’s article tomorrow.

  • wdr says:

    As grotesque a miscarriage of justice as one can imagine. We also know nothing about the identity of the accuser, since his name and salient facts about have been suppressed- in total contrast to Pell. We do not know whether Pell’s accuser is some kind of nutter, or has a record of lying, fantasyzing, or of mental illness. Had his name and identity been known, this would have been the subject of investigative journalism and thorough research by Pell’s lawyers and others. In America, in all likelihood his identity could not have been suppressed and would be known in the media. Keith’s article is absolutely spot on, as usual.

  • Richard H says:

    The Chief Steward of the Judges’ Union has an opinion piece in the Oz online this evening, which I imagine will also be in the print version of tomorrow’s Oz.

    Worth keeping in mind if you find yourself running short of toilet paper.

  • Salome says:

    Richard H–she had some points. I didn’t find the High Court’s judgment ‘excoriating’. It simply, in appropriately measured and professional tones, found that the majority of the Court of Appeal had got the onus of proof completely inside out and upside down. But where a lot of critics of Pell case commentary err is in denying that either judges or, even more so, the jury, could have been influenced, as if to say so is to deny that they discharged their duties honestly. The whole point of influence is that it is largely subliminal, so that decisions made under influence are not necessarily conscious. No juror, I am sure, thought, ‘I don’t think he could have done this, but the ABC doesn’t like him, so I’ll say he’s guilty,’ and I’m sure no judge said so either. But heads get played with, particularly in an age where emotion rules over reason. I have plenty of toilet paper.

  • norsaint says:

    Gee, a judge defending the indefensible, Wonders never cease.

  • Richard H says:

    Salome, the problem with Kelly J’s excuse-making is that it is wholly disingenuous. The principal criticism of the Victorian judges’ performance isn’t that they are biased or “acted dishonourably” but that they were grossly incompetent (a point I have made more than once on these pages). That is a point Kelly refused to address.

    That the judges were grossly incompetent is the only conclusion we can draw from your own accurate summary of the central problem: “the majority of the Court of Appeal had got the onus of proof completely inside out and upside down”. That would be a fail for a first-year law student, a disturbing error by a practising lawyer but almost incomprehensible coming from a Supreme Court judge (let alone two).

    A medical analogy illustrates my point. Dr Ferguson is a GP loved by her patients and universally admired by her peers. Thanks to an idiosyncratic recruitment policy, she is appointed as Medical Director of a major hospital. Despite her sound medical knowledge, she’s out of her depths at these levels. But the real problem strikes when she decides to appoint herself as lead surgeon for a heart transplant. To no-one’s surprise, the patient dies on the table. The coroner says he has never seen a worse case of medical negligence in his career, but Dr Ferguson’s defenders don’t think much of coroners and she is allowed to keep running the hospital.

  • Salome says:

    I quite agree. My tongue was a tad in my cheek. But I think Kelly J seems to have taken it as if people are criticising the judges for something worse than incompetence.

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