QED

The Credibility Deficit of Victoria’s Courts

State institutions have good and bad pandemics like war correspondents have good and bad wars. The lockdown came at a convenient time for Victoria’s criminal courts, where jury trials quietly resumed last month. It allowed the unresolved questions about the state’s judicial leadership to be shuffled down the priority line, south of the interim settings and subject to operational requirements. The problem for the courts is that applying the law correctly is generally regarded as an operational requirement. It’s a problem because the courts are operating again and the questions are still unresolved.   

You wouldn’t necessarily have known it from the analysis but George Pell’s High Court appeal was decided on the facts, law and “judicial method”. That’s extraordinary, and the divergence between the state and national court on all three was clear-cut and irreconcilable. There was no disputing which authority prevailed, nor where the corrections had to be made, and seen to be made. That was in April.

Pell’s acquittal produced a partisan uproar and a parade of culprits as wide as the waterfront. The fallout was furious but scattered, then swept away by the worsening pandemic. While Premier Daniel Andrews and his senior ministers fronted Senate committees and judicial inquiries, the state’s senior courts and judges joined forces to coordinate a cross-jurisdictional response to the changing conditions. A shared resolve to renovate institutional process and perceptions emerged in parallel to that primary aim. A steady stream of media releases kept the public apprised of the measures taken to manage the impact of the restrictions, the ongoing revisions to the schedule for resumption, the technical innovations “transforming” the delivery of justice, the commitment of Victorian courts to safe, healthy and respectful workplaces, the leadership position held by judicial officials in society, their attitude to improper and unethical behaviour (“We will not tolerate it”) and more. Sound intentions all, obviously. The worry is what didn’t make the pledge list – there has still been no acknowledgment of the need for reform or clarification arising from the High Court’s searing evaluation of their main line of work.  

It is a wonder. The errors identified in the majority ruling of the Victorian Court of Appeal were not trivial missteps or technicalities. The majority were judged to have misapprehended the role of an appeal court in assessing jury verdicts. They contrived a way to alter the standard of proof and shift the onus of establishing it. They misapplied the statutory reforms specific to the prosecution of historical sex crimes. They found corroboration for the claims against Pell where none had been accepted at trial. They ignored the trial judge’s directions about “compounding improbability” and its cumulative contribution to doubt. They invoked the right guiding authority but failed to follow it. They invoked the wrong authority and followed it to the letter.

The majority judgment was rife with license but its two signature defects –  the failure to grasp the supervisory nature of an appeal court’s role and the effective lowering of the standard of proof required for criminal conviction – are alarming. Their significance plainly extends beyond the decision unanimously repudiated by the High Court.

The majority’s underlying error was to literally assume the perspective of the jury, with a jury’s reliance on subjective criteria such as demeanour in determining guilt and doubt. They found the alleged victim to be a “compelling” witness and detected the “ring of truth” in his video-recorded evidence, which they viewed on their own initiative in order “to put ourselves in the closest possible position to that of the jury”.

As the High Court made clear at the hearing and in its judgment, it isn’t the role of an appeal court to duplicate the function of a jury; that the jury found the alleged victim to be a convincing witness was the starting assumption. The majority’s primary task was to assess the evidence as an appeal court, with an appeal court’s regard for the factors that should condition the assessment of evidence. That means all the evidence. Suffice to say they were judged to have fallen some way short of meeting this mandatory obligation. In reality, the majority did little more than satisfy themselves of what was already assumed, augmented by some highly subjective postulations as to what that truthful demeanour could count for in the larger calculation they had to make.

Thereafter, the rules changed. On the strength of a “ring of truth” that wasn’t obvious to the vastly credentialled dissenting judge, Mark Weinberg, the substantial body of unchallenged evidence casting doubt on Pell’s guilt was made to satisfy a higher test than our criminal justice system demands. It was made to demonstrate impossibility rather than reasonable doubt.

“The evidence of the successive witnesses served only to confirm that what ‘A (the alleged victim) claimed had occurred was not impossible,” the majority found, among copious expressions of the same altered standard. “The evidence once again falls well short of establishing impossibility”, they lamented elsewhere in their joint reasons. In effect, and with frequent reference to “the language of impossibility” employed by Pell’s somewhat hyperbolic trial counsel, Robert Richter QC, the evidence had to rule out the possibility that Pell had an opportunity to offend in order to secure acquittal.

The statutory reforms introduced to address the disadvantage faced by victims of historical sex abuse in prosecuting their cases are imperfect, not least in the demands they make of juries. But they were never intended to change the standard or onus of proof, even at one remove. Their purpose was not to reduce disadvantage on one side by creating a new category of disadvantage on the other.

The significance of the errors was compounded by the seniority of the error-makers – respectively Anne Ferguson, the Chief Justice of the Supreme Court of Victoria, and Chris Maxwell, the President of the Victorian Court of Appeal. That the effective leadership of Victoria’s judiciary applied the wrong test to the evidence made it untenable for the appeal to be returned to the court they preside over for re-hearing, as was the Crown’s last-ditch submission to the High Court.

A further concern is the self-evident aversion of the two judges to overruling jury verdicts appealed on the unreasonable or “unsafe” ground. Professor Jeremy Gans, of Melbourne University Law School, noted that Pell’s appeal was Maxwell’s 36th consecutive rejection of the argument that a jury had drawn an unreasonable conclusion from the evidence. Gans has written:

Maxwell used to allow such appeals as often as his colleagues. He did so eleven times in his first fifty ‘unsafe’ verdict cases, the same rate as Weinberg’s. But his last such ruling was in 2013. Pell’s appeal is his thirty-sixth consecutive rejection of an ‘unsafe’ verdict argument … It’s as if, at some point in the last six years, Maxwell simply stopped doubting.A Judge’s Doubts, Inside Story, August 29, 2019

The Chief Justice came to the role with limited criminal law experience but had sided with the jury in all five such appeals she had decided to that point. Facts differ between cases but it’s fair to wonder how many of those decisions would have survived challenge, and whether they effected the outcomes of other appeals. The reasoning of superior courts of record binds other courts in the hierarchy, save for the court that set this judgment aside. Not too many “unsafe” appeals get a hearing in the High Court. That’s why significant errors of method or reasoning of the kind identified here need to be pulled up by the roots and shaken in the air.  

The collegial view is that the offices held by the majority judges informs their reluctance to overturn juries – Victoria is considered a hold-out in its mandatory use of juries in criminal trials. That deciding appeals on policy rather than merit could somehow be more acceptable than outright bias shows why it’s unrealistic to rely on legal practitioners to criticise the courts they appear in. Nor does the bottom-lining of some legal academics (“It’s a very high bar to overturning juries”) tell us anything we can’t learn from the statistics. It simply perpetuates the misconception that jury verdicts are near to inviolable and finding fault with them is close to sacrilege. Most of the public affront at the High Court decision was founded on the same spurious faith.

One of the missed chances of this serialised travesty was the failure to take advantage of the educative platform offered by its purchase on the public attention. Juries make mistakes and when they do they can and should be overturned. The fact that most jury verdicts appealed on the “unsafe” ground survive challenge makes it more important to explain the flaws in those that fail. Juries don’t give reasons, so the detailed judgments of courts that first endorse them in error and then set them aside can help the interested public understand how reasonable doubt or its absence is properly decided. The standard to be applied is the same for the jury and appeal court. The guide to applying it on appeal is set out in the agreed HCA authority – “a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.” It isn’t meant to be an imaginative or “intuitive” exercise, at least not in the sense described in the majority judgment. The question isn’t whether the jury’s conclusion is plausible, as you might assume from the majority’s reasons. It’s whether the evidence said to establish guilt eliminates the reasonable doubts raised by the evidence to the contrary.

In this case it plainly did not, and finding otherwise has done no favours to the victims of historical sex abuse. More likely it will deter victims with stronger cases and better prospects from prosecuting them. The critical work of further law reform is made more complicated by the misapplication of the existing reforms. The argument for mandatory juries is less compelling for the experience of this exceptional case. The public is confused.

That the majority also managed to trip themselves up on their own findings of fact was an embarrassment which doesn’t enhance public confidence in the judiciary. The timing of the post-Mass “interval of decorum” which they believed gave Pell the five-to-six minutes necessary to commit the alleged abuses in the cathedral sacristy was an inference drawn in error and contradicted by the evidence. The interval was a weekly ritual allowing congregants a few minutes for private prayer before the clearing of the sanctuary began. From that point on traffic between the sanctuary, the sacristy and adjoining areas would have been constant. As the High Court correctly found, A’s account would have had the two breakaway choirboys arriving at the sacristy within one-to-two minutes of the dozen or so altar servers bookending a 60-strong procession headed for the same destination by a different route. The evidence of the only witnesses in any position to know was that the formal procession and the private prayer time were overlapping and not consecutive rituals. The altar servers’ ceremonial duties ended with a bow to the crucifix in the sacristy after the procession. None of that evidence was challenged. Nor was any theory offered as to where the altar boys could have been during the inexplicable five-to-six minute hiatus that nobody could remember happening anyway. It was the sort of slip-up that occurs when improvisations obscure plain sight, but has little consequence beyond the case.

It was a perversely revealing error, nonetheless. In the first place, the evidence gave the majority no reason to conclude that it was “quite possible” Pell had an opportunity to offend in the manner or circumstances described. In the second, it shouldn’t have mattered anyway – you can’t convict on “quite possible”.  

Or can you?

Refraining from public comment is almost always the right policy for judges. But the word, as they say, is ‘almost’. Confusion about the criminal standard of proof and the role of an appeal court in assessing jury verdicts is not best resolved by public debate. Nor can the issue be avoided under cover of a crisis. But it does need to be resolved if Victoria’s criminal courts are to “reflect the trust and confidence the community places in us”, as their leaders reckon it to be. The errors require public acknowledgment because it’s the best guarantee they won’t be repeated. The state’s judicial leadership must make sure that happens before the start of the new court year.

For once, the public really does need to know.

David Ward has a qualification in Justice Administration from Swinburne University and worked at the Federal Court for 10 years, assisting in numerous trials and appeals. He has reported on cases of significant public interest for mainstream magazines and witnessed the two appeals discussed in this essay in their entirety                                                                                                                                                                                                                                                         

24 comments
  • Tony Tea

    My grandfather, a high profile legal eagle, used to say that if a judge wants a particular result, he (no shes back then) can always find a way to manufacture that result – you just cross your fingers and hope every judge will run the case on its merits.

  • Phillip

    David,
    It intrigues me that the legal system does not appear to have some inherent ‘quality assurance kickback system’ in place. If a higher court determines that the judgement of a lower court is absolutely wrong by incorrect application of the law, then why are those judges on lower courts allowed to continue in practice? In many professions, and I believe also in the legal profession, a practitioner must have a current practicing certificate supported by the merit of the individuals obedience to the professions law at the time. The Ferguson and Maxwell judgements were so grossly wrong and based upon completely fabricated stories, that I would assume cancellation of their respective practicing certificates and a couple of years opportunity to read (re-educate) and study law may be appropriate.
    If there are incompetent jurists making judgements that imprison innocent people then what remedy can the community rely upon to redeem such horrors of incompetency?

  • Salome

    An appellate judge ought not to have to have been a criminal lawyer in order to understand the burden and standard of proof in a criminal case. These are not (as anti-Pell commentators in the press have been wont to suggest) a ‘technicality’, but fundamental to all reasoning in criminal cases and anyone who was awake during lectures at law school would know that. To strain and twist logic in order to find that it just might’ve been possible if nobody did on that morning what always gets done, if water flowed uphill that day and if Jupiter wasn’t visible the night before because Saturn had eclipsed it–that would have us all guilty of anything you like. It’s one thing for judges to demonstrate independence, and not relying on their brethren’s opinions, but was it really necessary to demonstrate this by going to such lengths to disagree with Justice Weinberg? Especially when the majority consisted of the two people who had the power to allocate him to the matter in the first place . . . No wonder I was profoundly disturbed until the High Court restored reason and order.

  • Peter OBrien

    It is beyond me how Ferguson and Maxwell have the front not to resign.

  • Ian MacKenzie

    PO’B, they wouldn’t because they don’t have to. Nor would there be any pressure to do so from the Andrews government, given that both were appointed to their current positions by Labor Governments (Maxwell by Bracks and Ferguson by Andrews) and Andrews himself made a point to ignore the High Court Pell decision in favour of a public statement of support of “victims”. Given that both Ferguson and Maxwell were either unaware of, or chose to ignore, the fundamental principle of innocent until proven guilty, it seems likely that competence wasn’t an overriding consideration in their appointments.

    Although jurists and juries who get carried away by the woke zeitgeist of Victoria are a major concern, lets not forget the rest of the legal system in Victoria. A police force prepared to pervert the course of justice (Lawyer X), arrest pregnant mothers in their homes for social media posts (Zoe Buhler), selectively police based on politics (red shirts and BLM) and prepared to trawl for accusers where no accusation has been made (Pell). A Supervising Magistrate for Sexual Offences at the Magistrates Court of Victoria prepared to discard even the veneer of impartiality by appearing on ABC TV with anti-Pell fanatic Louise Milligan. A Director of Public Prosecutions whose advice in the Pell appeal the High Court described as “specious”. No wonder the legal system in Victoria has a credibility deficit.

  • Sydgal

    As a non-legal person following the case and checking the HCA documents, transcripts and videos, there are some aspects relating to the evidence which don’t make sense to me!

    Much was made about the complainant being able to identify the Priests’ sacristy but wasn’t the location for the offending always going to be the place where the wine was stored, since poking around a cupboard and finding and swigging wine was a key element in the narrative? In any case, in Keith Windschuttle’s book we learn that the Archbishop’s Sacristy next door was not actually used for robing and disrobing until sometime in 1997.

    There seems to have been an evolving story about where the wine was located. In the HCA video 12 March, there is a passage which states the complainant entered the room and noticed immediately to the left of them, as they entered the room, was a wooden panelled area resembling something like a storage kitchenette. They were poking through this cupboard and found some wine.

    But that storage cupboard immediately to the left of the door was actually a wardrobe for hanging vestments in 1996. This information was first provided by Cardinal Pell in 2016 at the Police/Cardinal Pell Rome interview: 

    “Detective Reed: Yep. Okay, they’ve walked in, and there was a wood panelled door – it’s been described to a storage area within the room. To your recollection, does the Sacristy have any area such as that within it?

    Cardinal Pell: Well, for vestments and things.

    Detective Reed: Ah, I don’t know what was ever held in there.

    Cardinal Pell: Yeah, well a lot of the vestments were kept there. The archbishop’s vestments.

    Detective Reed: Yes, okay, immediately on the left as you walk into the room.

    Cardinal Pell: Now, are we in the Archbishop’s Sacristy or the Priests’ Sacristy?

    Detective Reed: Pauses and moves notes. I presume from these gentlemen it was the Archbishop’s Sacristy….set up wise.

    Cardinal Pell: And what was supposed to be in these cupboards?

    Detective Reed: They found some wine in there.

    Cardinal Pell: That’s right, yes, well that’s not in my, in the Archbishop’s Sacristy…there is a formidable safe that was in the Priests’ Sacristy that was always locked”.

    Apparently the storage kitchenette was installed in the 2000s, so it is difficult to understand how the complainant could describe it from when he said he entered the room in 1996.

    However, in the HCA 12 March transcript, we read that the wine was found in the alcove area – which, according to Vic Police photos in newspaper reports, is the corner of the room:

    “He had to have an opportunity, not just to go in, but to go right into that room and around the corner, and he had to get in there at a time that the wine was visible, because he not only described the inside of the room, he actually describes the wine being visible. So he was able to ‑ it sort of does not really matter whether it was red wine or white wine, the fact is he put wine in that very alcove. So he had to be in there long enough to either poke around to see that, or it had to be there….

    Importantly, next ‑ and so that was there, but it was a robe, still, with those type of doors. The wine itself, that white door there is the safe or the vault, and that is where the witnesses say the wine was normally kept locked in, and there were some shelves and cupboard area and a special sink there that was also ‑ there is some conflict about whether or not there was also a fridge in there at that time, between Potter and Portelli, but in any event it was in that little alcove area…

    Now, just staying on that photo, just at the very right of the page, not the drawers that are there but just behind those drawers, that is the door that leads into the Archbishop’s sacristy. Then going to page 211, that is just another view – you do not actually see that alcove area so much, but over at 212 you do see a photograph of the alcove area as it is today, not as it was back then, but still in terms of being a separate area, that is in fact how it was, just the layout inside was slightly different because that is where the wine was at that particular time – the wine now in a different spot”.

    Just wondering how much it cost to prosecute this case and who paid for it?

  • Salome

    Sydgal–alas, I can’t answer the question at the end, but you don’t have to be a lawyer to see the glaring problems with the evidence. As I have had the opportunity of telling junior lawyers throughout my none-too-illustrious career (well, work history), chronological order is the lawyer’s best friend. You get a jumble of documents from your client, first job is to put them into chronological order in order to get the story straight (the result often being a few penny-drops and sometimes the odd surprise). It’s a simple fact that a room can’t have been in 1996 how it became after 2000. Among other things, it puts a lie (or a serious mistake of recollection) to any assertion that the complainant hadn’t been there after the alleged incident (until the police showed him round and he said ‘it was just like that’) and a huge question mark over whether he was there at the time of the incident. Of course, while the taxpayer paid for the prosecution, how much did it cost the cardinal and his supporters to defend it? (I remember one comment to the effect that he only ‘got off’ because he had a lot of financial backing to go all the way to the HC–as if needing the HC to erase an erroneous conviction is a sign that he was really guilty, not a sign that the Victorian justice system is in disarray.)

  • guilfoyle

    This article raises important issues, but, if I may comment on some factors;
    First, while I acknowledge that respect must be shown to the two majority justices, this respect is due to them as symbolic members of the legal system, a system which, to my mind, was used in a manner to cynically persecute an innocent man – a perversion of the system itself. The refrain that those justices ‘applied the wrong standard ‘ or arrived at their conclusions by some error buys into a fiction that the motives were objective and the erroneous conclusion merely the result of idiosyncrasies or inexperience. The fact is, the result they arrived at suited them very well politically. The second fact is; the methods used to arrive at the politically convenient finding entailed a time- honoured and traditional deference to the advantage of the jury over the appellate court in having the witness in front of them while giving evidence, an advantage that, until video, was denied to the appellate court. This deference to the advantage of the jury was used in an appeal, not in cases where there was one witness (the purported victim) against a plethora of conflicting evidence, but where the evidence was equally weighed, and where there was evidence to uphold the verdict. The fact that the majority in this case used the only out available to them, that of the demeanour of the complainant, to arrive at their politically opportune finding, in a case where the evidence of the complainant was not only videoed, but where he did not even give his evidence in person, shows, not idiosyncrasies, not naïveté, but a cynical use of a traditional and respected deference in order to support an obviously insupportable allegation.
    Secondly, the verdict in this case demonstrates the vulnerability of juries to defamation and social pressure. However, it should not be used to attack the jury system. Juries, on the whole, are a source of common sense and frequently take their role seriously and apply the evidence intelligently. We do not know whether or not there was pressure on this jury. There was certainly a suspicious unanimity in the sustained media attack on the Cardinal for the preceding 15 to 20 years. Attention should be focussed on the political personalities who had most to gain from the gaoling of an innocent man, the reasons why the Victorian Police ‘Service’ may have been so keen to target him (while having been so reluctant in the past to investigate abuse themselves) and the connection of various media outlets and journalists with the distortion that had prevailed and which made an unsustainable verdict possible.

  • Sydgal

    Thank you, Salome.

    What really troubles me is that I would have thought some of the issues with the evidence would have been obvious from quite early on in the investigation and prosecution, and that there seems to be confusion in the written and video materials regarding the furniture set up in the Priests’ Sacristy.

    Even in the 31 Jan 2020 Respondent’s Submission on the HCA website we read:
    Part IV: Factual Matters in Contention

    11. The applicant glosses over evidence supportive of the account of the complainant (A):
    a. A identified the Priests’ Sacristy as the location for the first incident. Significantly, the applicant would ordinarily have used the Archbishop’s Sacristy to robe and disrobe, but at the end of 1996 the Archbishop’s Sacristy was not in use and the applicant was using the Priests’ Sacristy before and after Mass. Other witnesses were not aware of or did not recall this fact.
    b. A described entering the Priests’ Sacristy just prior to the first incident and finding a wood panelled area containing cupboards and resembling a storage kitchenette. It was in this area that A said he and the other boy (B) found wine. Notably:
    1. A’s description of the layout and features of this area of the Priests’ Sacristy was accurate.
    11. The area described by A was only visible once well inside the Priests’ Sacristy.
    111. The area described by A was the area where the sacramental wine was stored and prepared for Mass.
    1V. A’s evidence was that he had never been in the Priests’ Sacristy before the first incident. It was off limits to choristers and other choristers stated that they had not been in the sacristies.

    So the section above seems to be referring to the storage kitchenette immediately to the left of the door (which was installed in the 2000s) not the alcove area in the corner of the room that is discussed later in the 12 March 2020 transcript.

    We also know from those who have traced out the steps the very large procession would take at the conclusion of Sunday Solemn Mass and from Keith Windschuttle’s timeline in his book, that the complainant and his mate would have been in the procession and when members of the procession (including the con-celebrating priests) returned to the Priests’ Sacristy, the “hive of activity” would commence and then the Archbishop, accompanied by his MC, would return to this space after conducting his meet and greet with members of the congregation on the Cathedral steps. Considering this was the new Archbishop’s first Sunday Solemn Mass, one would expect the meet and greet to take place on this important day and not instituted the following year (as I have read in some accounts).

    My comment about the funding of the case was a layperson’s question after reading materials above, watching the 2016 VicPol/Cdl Pell Rome interview and watching the 12 March 2020 HCA video – it seems that huge resources have been spent – eg police investigation from ?2013 (up to ?26 police at times?), committal, 2 trials, appeal, HCA judgment, ABC programs, ABC staff involvement and legal representation at the Committal as per Louise Milligan’s recent book Witness) – on a case with some conflicting evidence from the very beginning. It is regrettable that more resources were then needed to defend the case.

  • mynope3

    That two judges of considerable expertise and great personal integrity could get it so wrong, particularly in the face of Weinberg’s powerful and unanswerable dissent, gives rise to questions that may well never be answered.

    Did the all three members of the court discuss the issues together before or after writing their judgments?
    Did the majority read and seriously consider Weinberg’s dissent before judgment?
    Was the majority judgment a joint effort or written by one judge and adopted by the other? If so, who?

    Perhaps the only explanation for the majority decision is an unconscious deference to the political zeitgeist.

  • W L & K M Ranken

    Dear Peter, Thank you. These things matter. Consider for a moment the track record of the Victorian Judges particularly their apparent unwillingness to address publicly and sort out serious problems: and perhaps there is another article for you to write? Cardinal Pell, Police informer Gobbo, and during 2020 two deaths, possibly self harm, of lawyers involved in a Banksia Securities case. Something smells. The Chief Judge ought to be most concerned about the reputation of the judiciary.

  • Ross Williamson

    I have been a defence lawyer for 25 years: at all levels, from magistrates court, to the High Court (trial and appellate). The criticism made here in relation to Pell is perfectly valid. But it can be made in relation to many other cases. Cases involving merely oath against oath show how the legal system strives to be seen to not let someone off the hook because he or she merely denies the offence. When a jury believes an alleged victim, appeal courts are keen to say ‘that is good enough for us’. That is the quid pro quo of a jury trial system, according to the logic of those courts. It is naive to think that there are not plenty of perverse jury verdicts delivered on the basis of illegitimate reasoning but which cannot be challenged on appeal because the verdict was after all apparently available. Pell was lucky because the verdict was not available. The jury is a vexed institution. So too is the judge alone trial. But one thing is for sure and absolutely certain: there are plenty of innocent people in prison right now after having been convicted at trial according to law.

  • Doubting Thomas

    As a fish rots from the head, so also Victorian governance. As Jeff Kennett stated in Peta Credlin’s analysis of the scandalous Covid-19 fiasco broadcast by SkyNews on 3 Jan, Daniel Andrews is a control freak, and absolutely no politically significant action or expenditure would be undertaken in Victoria without his direction or consent.
    Let’s place the odium of this Shakespearean tragedy where it belongs – at the source.

  • PT

    There are a few things that emerge from this sorry experience.
    .
    1. Pell’s persecution was undoubtedly politically motivated. Another very prominent Victorian public figure has been accused of raping a woman at roughly the same time as “A’s” alleged assault occurred. But no prosecution has happened – clearly in that case the Vic Police and the Louise Milligan’s of the world have decided to NOT “believe the victim”! I don’t find “A’s” evidence “compelling”: he’d have known the difference between red and white wine if he’d tasted it as he claimed! The second allegation would have us imagine Pell barrelled through dozens of people in a relatively narrow corridor and pressed “A” up against the wall in front of them all, yet none of them, even those sufficient anti-Pell to be used by 4 Corners to promote their hatchet job had any recollection of this happening! Only the complaint! That should be odd enough for someone else to remember if it had happened!
    .
    Only someone with no knowledge of how cathedral processions work could imagine this could happen. The prosecution had to invent a side annex for the altar servers to “retire to” at the end of the procession so they wouldn’t be in the sacristy (apparently they go in, now to the crucifix and then run out to a separate room and wait there out of sight, because if they don’t they’re in a position to see what is going on! Furthermore the rest of the clergy (the Dean, deacon and other priests – it’s a cathedral not a parish church) go into that room to disrobe, and would be there before Pell if the latter had not stayed at the west door for a meet and greet! The only possible way would be for the choirboys to run directly from their stalls without joining the procession at all, and for Pell to do likewise. And that is not what was claimed, and is not credible for an Archbishop (especially a new one) to not take his place in the procession without it being remarked upon! Even basic research should tell people that. So much for a “thorough” police investigation and “investigative” journalism!
    .
    Thirdly, this is really a campaign against Christianity. The Catholic Church in particular but really Christianity in general. Child molesters should be weeded out and punished. That’s not my issue. But the Royal Commission did NOT investigate sexual abuse of minors in State Schools! Government schools were excluded! I know of at least one claim that was made in my time in Primary School: at school camp. The school did not conduct an investigation, rather just dismissed it. Indeed when there was talk of a student strike our (female) teacher admonished us. This was ‘80’s btw, more recent than the bulk of allegations that were aired in the RC! I recall some time later, when I was in sickbay at High School hearing a girl make claims against one of the male teachers to the school nurse (I could hear through the walls). He later came in very angry, and it seemed she just wanted an excuse to get out of the class. But I have little doubt the nurse (and others) must have heard many such tales. But they weren’t acted on, and some may well have been true! Why is it only a problem if a non-government school takes this attitude?
    .
    As I see it, “progressivists” simply want to replace Christian morality with their own, and need to denigrate Christian morality by either denying it or claiming Christian leaders are actually the most immoral. They don’t really believe in moral relativism: if they did they wouldn’t condemn racists or sexists or “homophobes”. On the contrary, if they finally triumph, the worst Victorian wowser would have nothing on these people.

  • PT

    As a corollary I must compare this to Jenny Hocking’s misrepresentation of the Kerr letters. It was promoted that the Queen’s Private Secretary “told Kerr how to sack the PM”! As former Chief Justice of NSW (the last jurisdiction where this had happened) I’ve no doubt Kerr knew how to write the letter! But what did this letter that supposedly said this say? Well it said that Kerr did have the power to dismiss the PM (at least as far as the Palace understood it), but that it was a power of last resort, and would have profound repercussions for the future of the monarchy in Australia (clearly saying we really hope you don’t have to do it). To back this up, there is a later letter in ‘76 where it’s stated that Kerr’s recent visit was very successful as at the time of the Dismissal, no one in London thought he’d done the right thing! Clearly Kerr acted on his own judgement and against the perceived wisdom of Britain’s establishment (can “no one in London” mean anything else in that context). But I’ve looked at the comment boards that Hocking frequents. It’s quite clear from her comments that her fantasy was that Australia really was (and is) run by the London establishment and that they told Kerr to Sack Whitlam who they saw as a threat. She still clings to this as an article of faith although it’s been demolished by her own work! This same group (including her) screamed blue murder over Pell’s acquittal: all part of some terrible establishment plot to take care of its own apparently. These things are two sides of the same coin. These people clearly see themselves as the rightful political and moral arbiters of our country and have a hatred towards the Crown and the Church because they see them as occupying the position they see as rightfully theirs! It’s also, I suspect, why they promote mass immigration, the fantasies of the fauxboriginal Bruce Pascoe, the absurdities of the alphabet soup and Islam (these things are often mutually exclusive). All to try and undermine those who occupy the position they think is rightly theirs! What they fail to grasp is that their “allies” have no reason to defer to them any more than the old established order! It’s pure arrogance that they’ll imagine otherwise.
    .

  • Brian Boru

    Ross Williamson: sadly, what you say is true and Pell and cases such as those in W.A. and the N.T. have shown it is even more true when over enthusiastic police and journalists think they “know” and then set out to prove. (I feel for all the honest policemen and women who serve our communities in the face of the corruption of some of their fellows.) When we add to that mix the bias of the “gotcha” haters with their bitter axes to grind it is a potent threat to the innocent.
    That the verdict in Pell was most obviously unavailable to the jury ought to have been seen by any person who knew of the fundamental rule as to the standard of proof required.
    That it was not seen by Anne Ferguson, the Chief Justice of the Supreme Court of Victoria, and Chris Maxwell, the President of the Victorian Court of Appeal is simply appalling. That they did not see it after reading dissenting judge, Mark Weinberg’s draft is more than appalling, it is a disgrace upon their court. (I find it inconceivable that they would not have had the benefit of Weinberg’s draft.)
    Ferguson and Maxwell should resign.

  • Richard H

    mynope3: Your assumption about the “considerable expertise and great personal integrity” of Ferguson CJ and Maxwell P is arguable.

    As to “considerable expertise”, neither judge had practised criminal law to any extent before being elevated to the bench and the amount of experience they might have acquired judicially could not make up for that deficit. Criminal law has a character very different to most areas of civil law, especially in regard to the role of witnesses.

    As to “great personal integrity”, an element of integrity is admitting one’s lack of expertise when it is necessary for a given task. It is particularly relevant here, where the CJ herself decided which judges would hear the Pell appeal, and she chose two judges (herself and Maxwell) lacking necessary competence.

    Ross Williamson: Contrary to your implication, the Pell case was not one of “oath against oath”: it was a case of oath (witness J) against a score of oaths (Pell’s alibi witnesses). Of course, such a situation cannot be settled by mere arithmetic, but the weight of numerous unchallenged witnesses on one side against a single witness on the other side cannot be ignored.

  • Sydgal

    Ross W – Yes, the high profile case of Cardinal Pell has sadly made it clear to members of the public that there can be perverse verdicts in the criminal justice system.

    In relation to the political aspect, it was surprising how many politicians commented on the case, eg panel member on the ABC Q&A Program on 4 March 2019. In light of the evidence which has been revealed through the 2016 VicPol/Cdl Pell 42 minute Rome interview, the Appeal documentation, and transcripts and videos on the HCA website, it is interesting to read what the complainant’s lawyer, Viv Waller, said at the time:

    “I think it’s important to remember that there are a lot of checks and balances in the criminal justice system, and we didn’t arrive at this point flippantly or without regard for due process. My client elected to report matters to the police. The police have conducted their own independent investigation, and they formed the view that the evidence was such that charges should be laid. The Office of Public Prosecutions has reviewed that material, and they have formed their own independent view that a prosecution should go ahead. It has been through the committal process. A magistrate has reviewed the evidence and formed the view that there is sufficient evidence to establish a prima facie case to answer. It has gone to trial under the guidance of the…you know, an experienced judge, the Chief Justice”.

    The day of the HCA judgment the Premier of Victoria tweeted “We see you, we hear you, we believe you” which was retweeted by the Victorian Attorney-General and several MPs (one of whom did not even acknowledge the retweet but copied the text to make it his own!).

    In relation to the performance of senior members of the legal profession/judiciary – as university professors, executive deans and probably even vice-chancellors have annual performance reviews, are similar processes in place for those in the highest positions in our legal institutions? Last year there was a case of alleged misconduct by a senior member of the legal profession and – because of the nature of the allegations – that case received an extraordinary amount of mainstream/social media and legal profession, workplace etc coverage. Yet we hear little of the concerns raised in the above article.

    The prosecution of Cardinal Pell would have to be one of the most high profile criminal cases in Australia’s history and has certainly put our criminal justice system in the international spotlight. We need confidence in our public institutions. Recalling the video launch of the Royal Commission into Institutional Responses back in November 2012, let’s hope those in the legal profession who have the power and influence to do something to make a difference will not avert their eyes at this time.

  • Lewis P Buckingham

    The Viv Waller site, on today’s search, is silent on George Pell’s High Court exoneration and acquittal.
    The last attack on his name is dated
    2019-03-13
    by 9News
    However, no follow up on the final decision by the High Court that is obvious on the site.
    Not sure how the ‘No Win, No Charge’ went.
    Recently finishing a book entitled ‘The Lost Art of Sleep’ by Michael McGirr, there is a reference in it to a cardinal who was alleged to have a case to answer, fielded at World Youth Day, when Pope Benedict was meeting and reconciling with abuse survivors.
    The pattern of deception has entered our literature.
    It is now clear that the prosecution just cobbled together a case and ran with it.
    None would have ever darkened the door of a Catholic Church, or they would have known the last to leave the Sanctuary was the major celebrant, so he could not have beaten everyone to the sacristy or adjacent open door room in a busy corridor, full of the prior procession.
    In fact this major celebrant turned up on the front porch.
    The white wine/red wine was seen as a mistake.
    Now this is not an easy mistake to make.
    The paradigm is that altar wine is a red, and all youngsters usually know the difference, especially if addicted to it.
    The above book however, published in 2009 raises, the possibility of another explanation for the convincing witness to his own attacks, found to be incongruent with reality.
    In answering the question ‘What is sleep?’, the best answer is ‘What is wakefulness’?
    Both are hard to understand.
    He may actually be a victim of Narcolepsy, a wakefulness while appearing to sleep.
    In this, dreams become actualities.
    In this state white wine is really red, archbishops are after him, even if they break all the rules.
    It happened to Billy, so the Kidd must be a rebel with a cause.
    It all fits, no win no charge, what is there to lose?
    In this construct, perhaps he was never abused by a religious anyway, he simply read all about it.

  • Sydgal

    The compensation lawyer from Shine, who represented the father of deceased choirboy, also undertook numerous media interviews and many of these are still online. The father himself has been quite vocal through the whole process, and there is a Ch 9 Facebook news interview with him on the day of sentencing, with additional commentary by members of CLAN who were so prominent outside the Court with their posters and signage, and a key victim’s support advocate in relation to the Melbourne Response compensation scheme.

    It’s interesting that the Shine Lawyer also had an ABC interview back in Dec 2017 when the RC Report was released: https://www.abc.net.au/news/2017-12-15/royal-commission-isnt-the-end-of-courage/9260020: “Over the past few years, I have spoken to hundreds of survivors of child sexual abuse. A significant number of these brave, yet damaged people, have also shared their experiences with the royal commission. Many of these people have described the experience as a positive one, some have gone as far as calling it, “life changing”.

    However, a disclaimer is included after each story in the Narratives Section of the RC website:
    “Disclaimer: This is the story of a person who spoke with a Commissioner during a private session of the Royal Commission into Institutional Responses to Child Sexual Abuse. Real names of individuals have not been used, except of public figures in a public context. The information the person provided was not evidence, the person was not a witness, and did not need to take an oath or affirmation, although they were expected to tell the truth. Nothing in this story is a finding of the Royal Commission and any views expressed are those of the person, not of the Commissioners”.

    The extended period of the proceedings of the Royal Commission (announced Nov 2012 and final redacted reports released May 2020) and the investigation, prosecution, incarceration and acquittal of Cardinal Pell (commenced ?March 2013 but dormant until ?2015 – April 2020) has certainly provided time for many books and TV programs on the topic to be published and produced, some of which have received awards from the media and legal professions. These include: The Prince (David Marr), Cardinal and Witness (Louise Milligan), Fallen (Lucie-Morris Marr), Hell on the Way to Heaven (Foster and Kennedy – updated ebook version 2019), The Case of George Pell (Davey), Altar Boys (Suzanne Smith), Walking Towards Thunder (Peter Fox) and programs by Milligan July 2016 ABC 7.30 program on the “swimmers” allegations (neither video nor transcript appear to be available now), Milligan ABC 4 Corners program Guilty, Ferguson and Jones 3 Part ABC Revelations Program (took 2 years to make apparently) and Foster and Kennedy’s program “Undeniable” which was released at the time of the report of the Royal Commission in Dec 2017 but was only available until 11 Jan 2018. A version is available on youtube.

  • Lo

    “Disgraced Cardinal George Pell has reportedly been moved from his central Melbourne prison to a high security facility in regional Victoria after a drone was flown over the jail.” It seemed to me to be very convenient for the authorities to have a reason to move Cardinal Pell to a much less accessible (by high profile visitors) prison.
    Despite it being illegal to fly drones over prisons I am not aware of anyone being found responsible or having to answer as to why this happened.
    It was just terribly convenient and oh so timely for everyone except George Pell.

  • Karnjirrwala

    The errors of the majority were so elementary that the only decent response would have been their resignation or removal by parliament. Had not A’s evidence had the ‘ring of truth’ the jury would not have convicted. The obvious reposted was ‘Yes, the ring of truth but was it the truth?’.More precisely, as David points out, to avoid Richter’s trap, not was it merely possible, but what did the whole of the evidence say?

  • Andrewurban

    As Ross Williamson says (above): But one thing is for sure and absolutely certain: there are plenty of innocent people in prison right now after having been convicted at trial according to law. Yes, dozens. The principal reasons for that include mistakes by appeals courts, as in the Pell case. Juries get it wrong; judges get it wrong; appeal courts get it wrong. These administrators of the law are beyond oversight – other than their own. Therein lies a problem. A big problem. In over 7 years of writing and researching (see wrongfulconvictionsreport.org), I have been shocked at what little sense of urgency the criminal justice system displays when faced with potential mistakes. And how reluctant appeal courts are to recognise errors (honest or otherwise) made by their professional colleagues. In one case last year, the appeal judges even defied the rule of law to refuse the appeal – for a man already in jail for 37 years. In another unsafe multiple murder conviction, the appeal was heard almost a year ago yet the three judges have yet to make their decision/s known. The appellant has been incarcerated and tried four times (first two abandoned, third a hung jury) since his arrest in May 2011. There are many more.
    The System needs auditing.

  • Sydgal

    Thank you for your post AndrewUrban – I have been thinking a lot about wrongful convictions and how errors can be made, information can be distorted and whether the media is as accurate and balanced as it should be. One of the key journalists in Cardinal Pell’s case, M Davey, has written in her book about how difficult it was to access transcripts from the Magistrates Court, County Court and Supreme Court. Back in Sept 2019 she tweeted “….this haphazard and difficult access to transcripts is bad for transparency, accuracy, justice and getting it right”. But even then, we are relying on the journalist to be balanced and impartial in the reporting of court materials. In the HCA, the materials are available – we can read the submissions and transcripts and watch the videos which makes for a far more transparent process. I can understand why certain materials are suppressed eg, the name of the complainant, but I don’t understand why certain aspects of the evidence are suppressed. Most of the offending details were revealed in various journalists’ books, so that could not have been the issue.

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