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One of the proofs that a society is civilised is that its criminal courts are open for inspection. No one should be tried, convicted and sentenced without the legal proceedings being made public. Secret trials are the hallmark of dictatorships and run completely counter to the legal and political traditions Australia has inherited. The trial of George Pell in 2018 for child sexual abuse, based on accusations from one complainant about what allegedly happened twenty-two years earlier, was not completely secret but was not far from it.
Pell faced two trials because the jury could not agree in the first. The judge who presided over both trials at the Melbourne County Court, Peter Kidd, directed that journalists could not be present in court when Pell’s accuser was giving his evidence and being cross-examined, even though the accuser was not actually in court himself but made his case and answered questions by video link. Nor would a full transcript of that evidence be provided to the news media or other members of the public. Kidd also announced that Pell’s trial would be subject to a suppression order prohibiting the news media from reporting any of the proceedings until all accusations against Pell were resolved by the court.
Under Victorian law, only the “parties” to the trial could be provided with a transcript. Journalists who covered the trial were restricted to knowing only those parts of the first-hand evidence that were repeated by prosecutors and defence counsel in their closing addresses. To outsiders, the whole thing appeared a closed process, kept from their view so that the sole anonymous accuser could have the comfort of a “safe space” to tell his story.
Peter Kidd’s remarks during sentencing—largely a lurid account of the sexual offences the former choirboy alleged had taken place over five or six minutes in the priests’ sacristy of St Patrick’s Cathedral, Melbourne, in December 1996—were, at the time they were made on March 13, 2019, the only detailed official explanation of why Pell was convicted. It was not until the judgments of the Victorian Court of Appeal were published in August 2019 that many more selected quotations from the first-hand evidence became part of the public record. Even so, anyone following the case closely was still at a profound disadvantage to see whether the conviction really did follow from the evidence provided by the choirboy and the other witnesses. In short, no one but the judge, jury and legal counsel had access to all the evidence.
Given Pell’s status as the most senior figure of the Catholic Church in Australia, an institution with a following of 5.2 million people, or 22.6 per cent of the population, this was an affront to public expectations. With the suppression orders still in place, the public was effectively kept in the dark, with little to go on except to trust that those in authority had done the right thing. Hardest to accept for Pell’s followers must have been Kidd’s decision to broadcast his sentencing remarks live on television while they looked on without any account of how formidable a defence had been made by Pell’s counsel. It was not until April the following year that the High Court showed the whole story of sex in the sacristy was 
bogus, that the detailed sexual deeds Kidd had broadcast to the world never happened, and that Pell had been jailed on spurious grounds.
Fortunately, the Jesuit priest and lawyer Frank Brennan had the foresight to see that members of the public who followed the case were entitled to accurate information about the closed proceedings. “I could not see that such accuracy and lack of bias would be provided by the group of journalists who were already circling,” he writes. “The books by Louise Milligan, Melissa Davey and Lucie Morris-Marr confirmed my assessment.”
So Brennan suggested that Pell’s legal team arrange for a retired County Court judge to monitor the proceedings and report on them once the suppression orders had been lifted. Inside church politics, Brennan had long been on an opposing side to Pell and their differences had sometimes turned very sour. However, Pell replied to his suggestion by proposing that Brennan himself would be the person best suited to the role: he “would go over better with the literati and glitterati”. By agreement between the head of the Jesuits in Australia and the Australian Catholic bishops, Brennan was asked by the bishops to scrutinise the proceedings, the bishops insisting that “any commentary needs to be seen, as much as is possible, to be clear, objective and impartial”. Pell agreed to make available trial transcripts, except for the transcript of the complainant’s evidence. Brennan attended key days of the hearings when his other Canberra-based commitments permitted travel to Melbourne.
In Brennan’s new book, Observations on the Pell Proceedings (Connor Court), he reveals that this arrangement meant he had immediate access to all the transcripts of evidence and cross-examination at the trial, except the evidence of the sole complainant. This gave Brennan an advantage over other writers covering the trial, who had to wait days or even weeks to receive transcripts through normal court proceedings. He put his advantage to good use. On February 28, 2019, the day after the suppression order was lifted, Brennan published a long article in the Australian examining the jury’s verdict. Even though Pell failed to secure an acquittal, he argued, “the defence seemed to be on strong ground in submitting that the circumstances made the narrative advanced by the prosecution manifestly improbable”.
Brennan’s response left the anti-Pell journalists who covered the trial infuriated. In her book The Case of George Pell, Melissa Davey of the Guardian claims that Brennan was one of those commentators who had not been in court for as many days as she had, and were simply regurgitating the words and “lifting key phrases and arguments” from counsel for the defence. “Where could they have learned all those details about the defence case,” Davey asked, “since their ‘reporters’ had not been in court?” Brennan points out that his advantage in analysing the case was not difficult to understand:
Pell’s trial had concluded on 11 December 2018. I had access to the transcript for more than two months before writing my article. Davey could not access the transcript for some time after that. But that was her problem, not mine. I had many weeks to thoroughly review the transcripts.
There are plenty of other equally robust exchanges in this book, not only with other reporters who got the Pell story completely wrong, but devastating critiques of Victoria Police who failed to perform their sworn duties properly and the prosecution authorities who allowed this hopeless case to go to trial. Brennan accuses the Royal Commission into Institutional Responses to Child Sexual Abuse of failing to accord Pell natural justice “in their pursuit of a necessary big scalp for media delectation”. And he offers a crushing assessment of the performance of the Victorian Chief Justice, Anne Ferguson, and the President of the Court of Appeal, Chris Maxwell, in their majority judgment in Pell’s first appeal:
The fragility of the Victorian criminal justice system is exposed when you look at the total absence of any investigation of the second incident [alleged by the complainant] and the reasoning of Ferguson and Maxwell satisfying themselves that the incident must have occurred. I don’t think Aborigines were treated as prejudicially by even the worst of the 19th-century judges.
Quadrant readers will find this book compelling. It brings together fourteen major articles, interviews and commentaries that Brennan produced from February 2019 to March 2021: an impressive record and highly recommended reading.
Keith Windschuttle is Quadrant‘s editor
OK, but the entire evidence against Pell was what the complainant said. If Brennan hasn’t seen that, he doesn’t really have much advantage over the rest of us. Without at least a redacted transcript of the complainant’s evidence being made public, the whole proceeding remains a show trial contrary to the basic principles of English law.
As per James F’s comment above, why can’t a redacted version of the sole complainant’s evidence be made available, to avoid the stigma of secrecy?
I have just finished Keith Windschuttle’s book, The Persecution of George Pell which is a comprehensive, detailed book also well worth reading. Unlike Milligan’s take that the complainant was ‘university educated’ with no further details, apparently the university course he undertook was an online course in security studies at Macquarie University A Mickey Mouse course it seems. Keith reveals other interesting tidbits that we never learnt from MSM.
Why hasn’t the complainant been charged? He lied, didn’t he?
Kidd, Fergusson and Maxwell deserve to be placed in the stocks for their inglorious administration of the law in the tinpot satrapy that is Victoria.
I too am currently reading Keith’s book and its grasp of detail is mind boggling.
His dissection of the willingly duped Milligan’s travesty, the collusion of the Victorian wallopers with various legal harridans, confirms my inclination to avoid mainstream media and particularly television.
Thank God Windshuttle, Friel and Brennan acted as they did. An honourable mention to Andrew Bolt too.
I thought the whole basis of the Common Law was you got an opportunity to cross examine one’s accusers in the courtroom. And that if said accusations proved to be perjury, then a criminal conviction was forthcoming.
According to US academic Stephen Baskerville, the corruption of the legal processes in the west really accelerated with the creation of the Orwellian titled “family courts”, which of course are little more than involuntary divorce mills. These too are conducted in quasi secrecy and not surprisingly also due process fiascos.
Did Judge Kidd give any reason for directing that journalists could not be present in court when Pell’s accuser was giving his evidence – not in court but by video link? That seems to me to be an extraordinary ruling.
The principle of open justice used to be rigorously applied in Australian courts, except in a few classes of exceptional cases such as national security. In Russell v Russell,Gibbs J said that it is the ‘ordinary rule’ of courts of Australia that their proceedings shall be conducted ‘publicly and in open view’; without public scrutiny, ‘abuses may flourish undetected’. The secrecy that shrouds the complainant’s evidence in the Pell case shows how without public scrutiny, ‘abuses may flourish undetected’.
Why do commentators accept that publication of a redacted transcript of the complainant’s evidence would be enough? Why shouldn’t the full transcript be publicly available? Perhaps its a Victorian thing. The courts there lead the pack in the number of suppression orders issued. Just another nail in the coffin of judicial integrity in that State.
It seems as if Complainant J’s evidence regarding the description of the Priests’ Sacristy evolved over time. In the 2016 Rome 42 min interview (recording available on SMH site and transcript on Chris Friel’s site), Detective Chris Reed reads out parts of the complainant’s statement: The boys walked into a room and “there was a wood panelled door – it’ s been described to a storage area within the room”” which was “immediately on the left as you walk in the room”. “They found some wine” and “started to take a few swigs”.
However, the storage area immediately on the left was a wardrobe for hanging vestments in 1996. The storage kitchenette was not built until 2003 or 2004 as per information in Chapter 8 of Keith Windschuttle’s book. As per the HCA video of 12 March 2020 around about 3:00, K Judd reads out some of the complainant’s evidence:
We entered the room and noticed to the left of us as we entered there was a wooden panelled area resembling something like a storage kitchenette kind of thing and then we were poking through this cupboard and we found some wine.
Q: Where was the cupboard?
A: To my left as I walked into the room, immediately to my left.
Q: When you say storage kitchenette are you able to further describe it or not?
A: It was some wooden panelled kind of surface with some cupboards. It could be…. yeah there were some storage cupboards. And we were sort of in that area. It was a little bit concealed but not yeah too concealed. We found some wine.
The section above is in the video but redacted from the 12 March transcript. Portions also seem to be in the Respondent’s Submission 31 Jan 2020 https://cdn.hcourt.gov.au/assets/cases/06-Melbourne/m112-2019/Pell-Queen_Res.pdf:
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.
The area described by A was the area where the sacramental wine was stored and prepared for Mass.
In the HCA 12 March video, K Judd then goes on to talk about the wine being in the alcove area which is in the corner of the room, rather than the storage area to the left as one enters the room:
MS JUDD: No, he did not mention a white door. He mentioned – he did not see it. He did not see it inside the white door – he did not see it in the vault. When he saw it he said it was out. The white door you cannot get through. It is the vault. It is locked. He says he saw the wine in that alcove area when he was poking around in there.
and
MS JUDD: Yes. He is not saying he found it in the vault, or he has found it locked away. He is saying he gets into that alcove area, and it is there for him to see. In terms of Portelli’s evidence continuing, 483, line 16:
Would there be a sink?‑‑‑There was a – an odd little arrangement with a – there was a bench, it was metal from memory. There was a small sink about 300 mil square. A single tap. Above there was a shelf and on that shelf was a small bar fridge with a woodgrain front. The wine would be poured usually there and then returned into the – into the vault.
So it appears Portelli is talking about the wine being prepared in the alcove area not the area to the left of the door (as that was a wardrobe in 1996.
I think I read that members of the jury asked to see the complainant’s statement but this request was denied.
Chris Friel covers these issues, including a photo of the storage kitchenette area and alcove area (published by Vic police), here: https://quadrant.org.au/opinion/qed/2020/03/new-revelations-from-pells-rome-interview-ii/
And it is interesting to read Melissa Davey’s story in The Guardian on 26 Feb 2020 where she quotes some of the prosecution’s material:
“In his succinct but powerful closing remarks, Gibson asked the jury to consider how the complainant would have known the layout of the priest’s sacristy, and that there were wooden panels, a storage cupboard, a kitchenette and sacramental wine in there. It was not a place choirboys were allowed to enter. Yet the complainant was able to describe the room.
“You might ask yourselves how would he know that unless he was in there,” Gibson said. “How does he know about the concealed alcove area without actually being there? How does he know it’s a storage-kitchenette kind of thing and there being a wood-panelled area if he’s not been in there?
“How does [the complainant] know that that was where the wine was kept?”
He asked jurors to consider the overall impression the complainant left them with.
“Did he strike you as an honest witness? In our submission he was not a person indulging in a fantasy or inventing things to a point where he now believes his own inventive mind. He was simply someone telling it how it was and is. A person genuinely recounting events experienced as a 13-year-old through the eyes of a 34-year-old.”
Victoria is the best Australian example of what happens when a leftwing party is in power for almost all of the last two decades. Firstly of course there is corruption, the main indicator exposed in the Victorian legal system so far being the Lawyer X case. A police force engaged in perverting the course of justice over a long period and then attempting a multimillion dollar coverup is nothing if not corrupt.
The second outcome is incompetence, a result of appointments based on political affiliation rather than capability and expertise. That is the most charitable possible explanation for the rulings of Ferguson and Maxwell, as evidenced by their lack of understanding of the fundamental legal principle of the presumption of innocence. That two of the top Victorian justices could get it so wrong, as indicated by a unanimous verdict by the High Court, shows how far the march through the Victorian institutions has progressed. Although corruption in the Pell trial can’t be ruled out, incompetence can certainly be ruled in.
Of course the justice system is just the most obvious part of Victoria blighted by a long-term ALP government. There are too many similar examples to list in other aspects of Victorian life. After all 800 Victorians died last year because the Victorian government believed that diversity training was more important than training in quarantine procedures, during the most significant pandemic in 100 years. That beats Kevin Rudd’s previous record for the most Australians killed by government incompetence by a long way.
Still, as long as Victorians keep voting for a corrupt, incompetent ALP, they will keep getting the government they deserve. A pity they can’t get the principled, courageous Opposition they deserve, but there are very few of them on offer anywhere in Australia.
The pursuit and anti-empirical demonising of Pell by those whose life agendas are animated by the thrills of such pursuits are made possible by the weaknesses in the Australian Constitution and the legal system that derives from it.
And that Constitution also permits the marxist-inspired dumb-down of the education systems and the dominance of marxist/post-modernist/anti-Westernist views of things in the news/opinion media.
And there appears to be no remedy.
Consider the current situation in Western countries where a fightback might previously have been considered possible, eg: the USA, the UK, France.
Each has its own version of extreme assault on the legal and other frameworks/principles that have created Western Civ with all its boons and benefits.
No sign of any plausible counter-forces.
I agree with Ian MacKenzie that incompetence is the most charitable possible explanation for the rulings of Ferguson and Maxwell, as evidenced by their lack of understanding of the fundamental legal principle of the presumption of innocence. For such incompetence at that level they should be hounded from the bench and the profession. But where are the protests of the Victorian legal fraternity who are no doubt too busy promoting their careers?
As to the left leaning ALP government; yes it would be nice to have some courageous and principled members of the Opposition calling out the abuses wrought. For instance, did any member of the Opposition demand any accountability when a compliant, pregnant mother was handcuffed in her own home and then led away in front of her children? Surely she could have been charged on summons without the gestapo treatment? I am not sure if any Liberal member did but one would think if there were any statesmen in the Opposition they would be screaming from the rooftops.
As for what can we do? I suggest voting in elections for candidates of principle if you can find them and not just on party lines. As to ALP candidates always question them, publicly if possible, as to what faction of the Party they belong; Socialist Left or Right? If enough publicity spotlight is put on the left then the right faction may have a better chance. It has worked before in the ALP for Santa’s boys.
I also have to say that Frank Brennan has risen quite a few levels in my estimation.
These days, acting on one’s principles, such as those that underpin Western Civ, is like bringing a water pistol to a nuclear war.
The marxist Big State forces command all the heights of all the hills, while their principals shelter deeply in bomb-proof bunkers, protected by the propaganda media, and the education and legal systems.
In this context, the idea that we can save ourselves by voting every three or four years for a nominally non-marxist political party is like, well, similar to expecting Santa to deliver lovely new toys and big bags of lollies everyday of the year.
I can understand in the current atmosphere genuine victims may prefer anonymity but I’m with Germaine Greer on this- why?. It implies that there is some sort of stigma or shame to being a victim of sex assault when there isn’t. As Greer says, victims should be able to “shout it from the rooftops”.
It’s akin to the notion endlessly repeated by fanatics (and the media is riddled with them) that a sex assault “ruins a person’s life and “they suffer always”. I recall having a run in with a well known Melbourne tabloid crime writer when he often made this claim in his reporting. I told him that basically your message to every future victim, child or adult , that if they are abused or assaulted, then there their life is over. No chance of recovery, no point in therapy and trying to look forward to a future life- from the moment you were raped you can consider your life wrecked.
It’s in itself a form of abuse. The media’s and in particular the ABC (of which I’m enormously fond of) have acted disgracefully over the Pell accusations now proved false. No recriminations for what they have done and some of the ABC pundits who furiously took to Twitter after Cardinal Pell’s vindication were blatantly defamatory in their claims.
And I am in no way a conservative.
The obvious way to open this can of worms is for a transcript of the accusations to be read out in parliament; once protected by parliamentary privilege, it will be illegal to attempt to suppress it further.