County Court Melbourne
County Court Melbourne, Victoria

On 7 April 2020 the High Court of Australia (which is equivalent to the US Supreme Court) upheld Cardinal George Pell’s appeal, quashing a Melbourne jury’s conviction of five charges of sexual assault. Cardinal Pell was released from prison (to the cheers of other inmates, some of whom he had got to know) where he had spent over a year.

The experience of Cardinal Pell gives fresh meaning to the term ‘kangaroo court’.

Complaint

The assaults were alleged to have occurred on either 15 or 22 December 1996 after Solemn High Mass, and on 23 February 1997, again after Solemn High Mass. There was one complainant, formerly a choirboy, at St Patrick’s Cathedral Melbourne, the capital of the state of Victoria. There was a second alleged victim, but he had died before the first alleged victim made a complaint to the police in 2015. The second alleged victim had, as an adult, denied to his mother he had ever been the victim of sexual assault.

The complainant had contacted the Victorian police, following a series of advertisements by the police, seeking complaints of sexual assault at St Patrick’s Cathedral Melbourne, the advertisements nominating the precise dates Cardinal Pell had been Archbishop of Melbourne. In Australia, it is unheard of for the police to advertise complaints of sexual assault. But the Victorian police had established in 2013 a task force, Operation Tethering, to investigate Cardinal Pell before there was any complaint. Usually a criminal investigation commences after an unsolicited complaint. The establishment of Operation Tethering occurred in the context of deteriorating relations between the Catholic Church in Victoria and the police.

Royal Commission

The complaint was made at the time of a Royal Commission into Institutional Responses to Child Sexual Abuse (2012-2017). The Royal Commission focused on the Catholic Church, disregarding sexual abuse within government-run schools and other youth institutions. The Church’s misconduct which gave rise to the Royal Commission occurred largely in the 60s, 70s and 80s, prior to Cardinal Pell being in a position to significantly influence or determine the Church’s policy.

In 1996 Cardinal Pell, as Archbishop of Melbourne, established the Melbourne Response, the first scheme in the world to address sexual abuse by priests and religious. As Archbishop of Melbourne, and later Sydney, Cardinal Pell was responsible for numerous priests being removed from ministry, over 30 in Melbourne alone.

Cardinal Pell was a key witness before the Royal Commission, bearing the brunt of criticism of the Church’s failure to act on complaints by children and their parents, and the Church’s moving offenders to locations where they were not known. Cardinal Pell bore the brunt of criticism, in particular, for decisions made by the deceased bishop of Ballarat, Bishop Ronald Mulkearns, and for decisions made by his predecessor as archbishop of Melbourne, Archbishop Frank Little. The Royal Commission handed down its final report in December 2017.

Forensic disadvantage

David Marr, a journalist and gay rights activist, in 2013 and 2014 published The Prince: Faith, Abuse and George Pell. In 2015 the Loud Fence movement began in Ballarat, Victoria, spreading worldwide with members of the public tying ribbons to religious buildings as a show of support for survivors and victims of sexual abuse. In July 2016, Louise Milligan, and ABC journalist, led the ‘Get Pell’ campaign with an entire program devoted to Cardinal Pell. In 2017 and 2018, Milligan published Cardinal: The Rise and Fall of George Pell.

Gerard Henderson, of the Sydney Institute, has listed the journalists, commentators, and entertainers – as well as the media – who have been part of the ‘Get Pell’ campaign, commenting that no defendant in modern Australia has been subjected to such a media pile-on as Cardinal Pell, and asking – can a high profile defendant receive a fair trial in the age of rampant social media?

Henderson points out that juries are no longer locked up during trials, and they are allowed to retain their phones. No court can guarantee that a juror will not follow a case online.

It is difficult to see how much of the media reporting in respect of Cardinal Pell was consistent with the Australian Journalists Code of Ethics – report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts, do not suppress relevant available facts, nor give distorting emphasis, do not allow any personal interest, or any belief or commitment undermine your accuracy, fairness or independence.

In May 2018 the then Catholic Archbishop of Adelaide, Archbishop Philip Wilson, was convicted in the Local Court of failing to disclose sexual abuse of a minor. (A subsequent appeal was successful, and the conviction quashed.)

Cardinal Pell was at a forensic disadvantage because of the media campaign in Victoria him against him leading up to the trials.

On 29 June 2017 Cardinal Pell was charged with sexual assault. On 26 July 2017 Cardinal Pell first appeared in the Melbourne Magistrates Court.

Former Archbishop of Melbourne and Sydney

In 2015, at the time of the complaint, Cardinal Pell was the best-known Catholic in Australia. He had been Archbishop of Melbourne (1996-2001) and Archbishop of Sydney (2001-2014). Melbourne and Sydney are Australia’s two largest cities.

Cardinal Pell was well known for his willingness to engage in intellectual debate, both in the media and in the universities. He was much hated by Australia’s gay lobby, for his defence of marriage as between a man and a woman. In 2018 Australia legislated for same sex marriage.

He was, in the Australian Catholic Church, a reformer – reinvigorating the seminaries, refurbishing St Patrick’s Cathedral in Melbourne, and St Mary’s Cathedral in Sydney, establishing the University of Notre Dame in Sydney, reforming the Australian Catholic University, re-invigorating the university and youth apostolate.

Whilst Archbishop of Sydney, he wrote a weekly column for Sydney’s Sunday Telegraph. He is the author of several books which intelligently put the case for Catholicism – Be Not Afraid (2004), God and Caesar (2007), Test Everything (2010), Contemplating Christ with Luke (2012).

He was responsible for the 2008 Youth Day in Sydney. He has a wide circle of friends, both Catholic and non-Catholic – and vigorously promoted able young lay Catholics to positions of influence within the Church.

In short, Cardinal Pell is a controversial figure, much loved, but also much hated by his opponents, both within and without the Church.

At the time of the complaint in 2015, Cardinal Pell was living and working in Rome as Prefect of the Economy, seeking to reform Vatican finances. In 2016 in Rome he voluntarily participated in an interview with Victorian police, denying the allegations. The fact of the interview in Rome appears to have been leaked by the Victorian Police to the media. In 2017 he voluntarily returned to Australia to face the charges.

Word on word

This was what Australian lawyers call a “word on word” case — with the complainant making uncorroborated allegations, and the defendant denying those allegations. Indeed, there were over 20 witnesses whose evidence was not challenged by the prosecution, the effect of whose evidence was that the allegations could not have occurred as alleged, or at all.

The assaults were said to have occurred in a sacristy at St Patrick’s Cathedral Melbourne on 15 or 22 December 1996 after Solemn High Mass. Nearby were altar boys and concelebrating priests. Those altar boys and priests were not interviewed by Victorian police. No explanation has been provided. In Australia police have an obligation to interview all relevant witnesses. It is not known why the Director of Public Prosecutions did not insist on all relevant witnesses being interviewed.

The single charge relating to 23 February 1997 alleged an assault in the course of a procession involving numerous persons. Again, the police failed to interview any participants in the procession – and the Director of Public Prosecutions failed to insist on relevant witnesses being interviewed.

Victorian Andrews Government

The Labor Government in Victoria, headed by Premier Daniel Andrews, first elected in 2014, appointed key participants in the proceedings against Cardinal Pell, including the Victorian Police Commissioner Graham Ashton (appointed 2015), the Victorian Director of Public Prosecutions Kerri Judd QC (appointed 2015), the trial judge Chief Judge Peter Kidd SC (appointed Chief Judge of the County Court 2015), and the Chief Justice Anne Ferguson of the Supreme Court of Victoria (appointed Chief Justice 2017).

No provision for judge-alone trial

Most states and territories in Australia provide for a judge alone trial, but not Victoria. A judge-alone trial is a good alternative where the defendant has been subject to a hostile media campaign. The concept of a fair trial is central to Australian law, especially criminal law. Given the media campaign, and given the absence of provision for a judge alone trial, a fair trial was not possible in Victoria.

Trials

Following the committal, the jury at the first trial could not agree and it was discharged on 20 September 2018. On 22 October 2018, the Australian Prime Minister, Scott Morrison, delivered in Parliament an apology to Australian survivors and victims of child sexual abuse. Meanwhile, on 4 November 2018, the trial judge, Chief Judge Peter Kidd, defended the Victorian police on the ABC’s 4 Corners programme. On 7 November 2018 the second jury was empanelled. At the second trial, verdicts of guilty were entered against Cardinal Pell by the jury on all five charges.

Both trials were conducted in secret, subject to media suppression orders said to be intended to prevent the jury being influenced, in the course of trial, by media reporting. Even today, transcripts of the trials are not publicly available.

At the first trial the complainant, whose identity has been suppressed, gave evidence. At the second trial the complainant’s evidence was played audio-visually to the jury.

Psychiatric history

The defence had sought to subpoena and access records relating to the complainant’s psychiatric history but was not permitted to do so. The contents of those records were arguably relevant to the complainant’s reliability as a witness. The refusal to allow access to records of the complainant’s psychiatric history, based on a statutory provision, put Cardinal Pell at significant forensic disadvantage. The complainant was said to have once faced charges of trafficking heroin and breaching Court orders. These matters affect the complainant’s reliability. Because the transcript of the trials has been kept secret, it is not known how these matters were dealt with at trial.

Following the jury verdicts Cardinal Pell was sentenced. Although the two trials were conducted in secret, the sentencing, on 13 March 2019, was live-streamed around the world.

Victorian Court of Appeal

Following Cardinal Pell’s conviction on all five counts, he appealed to the Victorian Court of Appeal. The majority, including Victorian Chief Justice Anne Ferguson, a former solicitor specialising in commercial law, on 21 August 2019, dismissed the appeal. Justice Weinberg, arguably Australia’s most experienced criminal lawyer, dissented. The majority in the Victorian Court of Appeal, to which Cardinal Pell unsuccessfully appealed, made much of what was said to be the complainant’s demeanour. Demeanour as a criterion of truthfulness and reliability is increasingly controversial in Australia as judges appreciate that the apparent plausibility of a witness is no alternative to careful consideration and analysis of the evidence as a whole.

High Court of Australia

The High Court of Australia, in a unanimous decision handed down by seven judges on 7 April 2020, upheld the appeal, quashing the convictions. Under Australian law an acquittal is a finding of innocence. The High Court appears to have followed carefully the dissenting reasoning of Justice Weinberg in the Victorian Court of Appeal. The dissenting judge assessed the complainant’s evidence as follows:

From this brief summary of the complainant’s evidence, it can be seen that there was ample material upon which his account could be legitimately subject to criticism. There were inconsistencies, and discrepancies, and a number of his answers simply made no sense.

Elsewhere, Justice Weinberg commented in respect of the complainant’s evidence:

If the complainant’s evidence stood alone (therefore putting to one side each and every one of the 17 ‘solid obstacles’ to conviction upon which Mr Richter (the defence barrister) relied at trial), I would not conclude that his allegations, in respect of the first incident in particular, were fabricated. I might not say the same with regard to his allegations in respect of the second incident, though it is unnecessary to arrive at a final conclusion regarding that matter. At the same time, I would not myself be prepared to say, beyond reasonable doubt, that the complainant was such a compelling, credible, and reliable witness that I would necessarily accept his account beyond reasonable doubt.

As to the “opportunity” witnesses, Justice Weinberg said:

It can be seen from this summary of the evidence given at trial that, as I have now said a number of times, the prosecution case was based entirely upon the complainant’s evidence. Despite the fact that there was no independent supportfor the complainant’s account, the prosecution relied upon his credibility and reliability in order to satisfy the jury, beyond reasonable doubt, of the applicant’s guilt.

The defence case, on the other hand, was factually complex. It involved, to a considerable degree, a combination of the evidence given by several key witnesses (Portelli and Potter, and to a lesser degree, McGlone) as well the evidence of some 20 or so other witnesses, all of them called by the prosecution at the behest of the defence.

Portelli and Potter each said that they had a clear and specific recollection of both of the only two days in December 1996 on which the first incident might conceivably have taken place. Their evidence refuted the possibility that it could have occurred in anything even remotely resembling the complainant’s account. McGlone’s evidence was generally supportive of the evidence given by Portelli and Potter, though it was of more limited scope, being confined to one of those two days.

In addition, there was the evidence of those many witnesses who testified as to matters of practice, described by commentators as ‘habit and custom’ (Mallinson, Cox, Finnigan, Connor, the two Dearings, Parissi and Bonomy). Their evidence, if accepted, tended strongly to negate the complainant’s account, though not as directly as the evidence of Portelli, Potter and McGlone.

Of course, there was also other evidence casting doubt upon the prosecution case. There was the hearsay evidenceof the other boy’s mother, as to his having denied having been sexually abused at the Cathedral while a member of the choir. There was a statement of agreed facts, which, on my reading of it, in no way advanced the prosecution case. Finally, there was the applicant’s record of interview, in which he denied having committed the offences alleged against him.

On the Steps of the Cathedral

There was uncontradicted evidence that Cardinal Pell (contrary to the practice of his predecessor) stayed after Mass at the front steps of the Cathedral greeting Mass-goers for some ten or fifteen minutes as they left, that Cardinal Pell, in accordance with the traditional practice of the Church was always accompanied by the Master of Ceremonies Monsignor Portelli until such time as he had disrobed in the sacristy after Mass. The evidence of the Master of Ceremonies Monsignor Portelli, and of the Sacristan Max Potter, and of over 20 other “opportunity” witnesses was not challenged by the prosecution.

It is trite law that if a party disputes the evidence of a witness, that dispute must, as a matter of fairness, be put to the witness in cross-examination. This the prosecution failed to do.

As the High Court said:

There was a powerful body of evidence of the applicant’s practice of greeting congregants on the Cathedral steps following Sunday solemn Mass and that, while the length of this “meet and greet” varied, it occupied at least ten minutes. The applicant’s practice in this respect contrasted with that of his predecessor, Archbishop Little. Portelli served as master of ceremonies for both and it might be thought unremarkable that he should recall that on the first and second occasions on which the applicant, as the new Archbishop of Melbourne, celebrated Sunday solemn Mass in the Cathedral, he had greeted congregants as they left after the service.

The effect of this evidence put Cardinal Pell on the steps of the Cathedral greeting departing Mass-goers, at the very time he is said to have committed the assaults.

The High Court concluded:

It remains that the evidence of witnesses, whose honesty was not in question, (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests’ sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests’ sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix.

Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidencesummarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.

Cardinal Pell could not be on the steps of the Cathedral at the same time he was said to be in the sacristy committing criminal acts. In the absence of bilocation, this was an impossibility.

Delay in complaint

Cardinal Pell had been at significant forensic disadvantage because of the historic nature of the complaint. This was explained by the High Court, inter alia, as follows:

  • the delay meant that the applicant had lost the opportunity of making inquiries and exploring the alleged circumstances close to the time of the alleged events, which may have uncovered additional evidence throwing doubt on the complainant’s allegations or supporting the applicant’s denials;
  • most of the opportunity witnesses could only give evidence of practice or routine whereas, had the trial been held on a date closer to 1996, more might have had specific recall of the subject events;
  • the effluxion of 20 years or so meant that some witnesses no longer presented the lucid and coherent evidence of younger men;
  • the Dean of the Cathedral in 1996, whose evidence would have been material on the issue of the applicant’s movements following Mass, was in a nursing home and incapable of giving reliable evidence;
  • the passage of time diminished the capacity for the defence to fully test the complainant’s evidence.

Victorian Court of Appeal

The High Court’s analysis of the majority decision in the Victorian Court of Appeal leaves the majority in the Victorian Court of Appeal (Chief Justice Anne Ferguson and the President of the Victorian Court of Appeal Justice Maxwell) with little professional credibility.

Victorian Director of Public Prosecutions

The failure by the Director of Public Prosecutions to insist that statements be obtained from all relevant witnesses, the decision of the Director of Public Prosecutions to prosecute, arguably contrary to her own guidelines, and the performance of the Director, Kerry Judd QC, who personally appeared before the High Court, suggests professional incompetence.

Victorian Police

The Victorian police prior to this High Court decision, already had an unsavoury reputation, not least for their use of a criminal barrister, Nicola Gobbo (the American equivalent is trial lawyer) to snitch on her own clients as an informer. Use of Nicola Gobbo as an informer appears to have occurred between 1995 and 2009. Ms Gibbo’s activities against her own clients appear to have been known to a number of very senior police, even at Commissioner level. Ms Gobbo’s conduct was contrary to the obligation to maintain lawyer-client privilege.

The Victorian police fought through the courts to the High Court to keep this perversion of justice secret. The Victorian police are continuing to resist the efforts of a Royal Commission to unearth all the facts. This is not some abuse by a single police officer, but corruption at the highest ranks of the Victorian police. The conduct of the barrister, Nicola Gobbo, and the conduct of the police, had previously been before the High Court which, in a unanimous decision of seven judges, handed down on 7 November 2018, said the Victorian police:

“were guilty of reprehensible conduct in knowingly encouraging [the barrister] to do as she did and…involved sanctioning…atrocious breaches of the sworn duty of each and every police officer to discharge all duties imposed on them… As a result, prosecution of [alleged criminals] was corrupted in a manner which debased fundamental principles of the criminal justice system.”

It is difficult to believe that Ms Gobbo’s role as a police informer and practising barrister was not known at least to some officers of the Director of Public Prosecutions.

In May 2018 an internal police investigation revealed that more than 258,000 breath tests over five years were estimated to have been falsified by Victorian police. The corrupt culture of the Victorian police explains the failure, in the course of preparation of the police brief, to interview witnesses, and the persistent leaking of information, intended to disadvantage Cardinal Pell.

The complainant, who apparently suffers psychiatric illness, has not been assisted by the decision to prosecute a case which ought never have been brought.

Victorian Premier Daniel Andrews

There have been calls, in the light of the High Court decision, for there to be a broad inquiry into the circumstances of this prosecution. This is unlikely to happen while the Andrews government remains in power. The Victorian Premier, Daniel Andrews, following Cardinal Pell’s acquittal, wrote:

I make no comment about today’s High Court decision.
But I have a message for every single victim and survivor of sexual abuse.
I see you.
I hear you.
I believe you.

Nothing here about the right to a fair trial.

Michael McAuley

Michael McAuley is a barrister practising in Sydney, Australia.