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Tuesday, 31 December 2019 02:37

Cardinal Pell And The Appeal Court Judges

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One hope remains for George Cardinal Pell: that the High Court of Australia will overturn his guilty verdict. The case should be heard fairly early in 2020.

Much has been written about the two to one decision against him by the Victorian High Court and the remarkable contrast between the reasoning of the two Appeal Court judges who ruled against Cardinal Pell and that of the judge who ruled in his favor.

As the dissenting judge, Mark Weinberg, stated: “An unusual feature of the case was that it depended entirely upon the complainant being accepted, beyond reasonable doubt, as a credible and reliable witness. Yet the jury were invited to accept his evidence, without there being any independent support for it” (n. 410).

Judge Weinberg found the claimant’s testimony unconvincing, while Chief Justice Anne Ferguson and Judge Chris Maxwell found it sufficiently compelling to reject the Cardinal’s appeal.

Yet the reasons they give for finding it compelling are anything but compelling. In this article I want to note the astonishing weaknesses in their case.

One reason they give is this: “There was knowledge that he [the complainant, called A, as his identity has been kept secret] possessed which he could not have come by unless he was telling the truth”(p.14). This was the knowledge he had of the layout and furnishings of the sacristy where the alleged offences occurred. The year of the alleged offences was 1996, and the sacristy was extensively remodeled after that date.

The assumption here is very weak. It was acknowledged by A under cross- examination that the choir members had been shown over the Cathedral, an inspection that included the sacristy. In any case, he could quite well have seen it on other occasions. Besides this, there is the possibility that he was given this information by opponents of Cardinal Pell.

A further reason they offer for accepting the evidence of A is that he said he couldn’t remember whether or not Archbishop Pell had closed the sacristy door before committing the offences. Had he invented the story, the two judges assert, he would have been more likely to say the Cardinal had closed the door (p. 25).

Also, the fact that A did not say the Archbishop had threatened them if they reported what he had done “tended against the contention that he had made it up” (p. 26).

These reasons are very shallow and clearly don’t warrant confidence in the veracity of A. And it gets worse when they deal with the second alleged assault.

This is supposed to have occurred some weeks later in a crowded corridor, when Archbishop Pell is alleged to have made his way forward down a line of choirboys until he reached A, whom he then allegedly pushed against the wall and groped his genitals.

The dissenting judge, Mark Weinberg, said this: “The complainant’s allegations against the applicant were, to one degree or another, implausible. In the case of the second incident, even that is an understatement” (n.1054). That seems a commonsense judgment, but the other two judges didn’t think so.

They assert: “It seems to us to be quite possible that this encounter was not noticed” (n. 339). They are claiming that this six foot four man quite possibly made his way forward and committed the assault without anyone noticing!

But in another part of their judgment they implicitly contradict this when they suggest that A would not have invented the incident because it would markedly increase the chance that his whole story would unravel when tested (p. 36). So they think that A would not have invented the incident because he would have judged it to be implausible, and would have disagreed with their judgment that in fact it was plausible! And they see this claim as a reason for believing him.

An argument against the testimony of A is that a notice was issued notifying the choir members that a rehearsal would take place after the Mass. If this happened it contradicts the evidence of A that after the assault he and his friend joined the choir members who were preparing to leave for home. Further, they would hardly have engaged in their escapade of entering the sacristy and drinking wine if a rehearsal was about to begin, when their late arrival was more likely to be noticed.

The two judges respond to this argument by saying that the rehearsal may have been cancelled. But they offer no reason for supposing that it was cancelled! And they add: “Even if there were rehearsals this did not create an obstacle to the jury’s accepting A’s account” (n. 324.) But it clearly it does create an obstacle!

The dissenting judge, Mark Weinberg, said of the complainant: “On occasion, he seemed almost to ‘clutch at straws’ in an attempt to minimize or overcome the obviously inconsistencies between what he had said on earlier occasions, and what the objective evidence clearly showed” (n. 928). In contrast to this, Ferguson and Maxwell assert “… We saw nothing in A’s answers under cross-examination to suggest that he had been caught out or had tripped himself up” (p. 23).

Another argument the two judges give in A’s favor is his claim that it was the priests’ sacristy, not the bishop’s sacristy, in which the alleged offences occurred. The point they make here is that normally Archbishop Pell would have disrobed in the bishop’s sacristy, but at this time it was undergoing renovations (pp. 30, 31). They think it unlikely that A, if he had invented his story, would remember after twenty-two years that the bishop’s sacristy was being renovated.

This assertion shows surprising confusion on their part. A did not suggest that the Archbishop entered the priests’ sacristy in order to disrobe: he makes no suggestion as to why he entered.

According to the claimant Archbishop Pell moved his vestments aside before assaulting the boys, and the two judges assert that they could have been maneuvered in that way. “… Our own observation of the robes revealed [Monsignor] Portelli’s categorical assertion of physical impossibility to be unsustainable”(n.256).

But I have been assured by four priests, each separately, that the vestments could not possibly have been maneuvered to allow the offences to occur.

A strong, if not conclusive, argument that the alleged offences in the sacristy could not have occurred is the time factor, with people coming and going after the High Mass. The two judges dismiss this and assert that it was open to the jury to find that the assault occurred in the five to six minutes after Mass concluded (n. 300). But that assertion is unwarranted.

It has been argued persuasively, particularly by commentator Andrew Bolt, who went to the Cathedral and paced out the route the boys were alleged to have taken, that the assault could not have taken place, and that most of the period after Mass was taken up by the procession through the Cathedral and then outside, followed by the period when the boys allegedly broke away from the procession, entered the sacristy and began drinking wine. There was simply not time for the Archbishop to have assaulted each boy without witnesses. The sacristy would have been a “hive of activity”.

A strong argument in Cardinal Pell’s favor is that he would not have taken the awful risk of being detected: first in the sacristy and some weeks later during a procession. In all probability, to put it mildly, the abuse would have been witnessed on both these occasions. How do the two judges deal with this?

They reply that sexual offending sometimes occurs in circumstances with a high risk of detection, and they give the example of a priest convicted who had indecently assaulted boys in the presence of two priests and three other boys (p. 32).

Certainly there are such incidents, but it is incredible that they would apply in Pell’s case. His enemies have been out to get him for many years, and a special police task force investigated him and even publicly invited people to come forward if they knew of sexual abuse associated with St Patrick’s Cathedral, Melbourne.

Had he been willing to take the insane risk involved in the alleged Cathedral incidents he would surely have behaved in a similar way over the years, and witnesses would have come forward, particularly as they were so persistently sought by the police. Instead there is just one solitary complainant, with other alleged incidents being considered too weak to go to trial.

The two judges assess A as neither a liar nor a fantasist. But that assessment is far too confident, as is clear if we consider cases of conmen who duped their victims for years, robbing them of their life’s savings, and fantasists who brought false charges of indecent assault and were believed.

Carl Beech in England invented extraordinary stories of a pedophile ring allegedly operating in the late 70s and early 80s, involving former Prime Minister Edward Heath, a former head of MI6 and a former head of MI5, among other public figures. Beach claimed that this ring was responsible for kidnappings, torture and murder.

A Scotland Yard detective asserted that Beech’s claims were credible and true (an assertion that Scotland Yard found very embarrassing when the claims were found to be totally false). Beech was recently found guilty of lying, and sentenced to eighteen years imprisonment.

In the charges against Cardinal Pell the possibility of “fake memories” has to be allowed for. A striking example of this is found in the current scandal in the Italian city of Reggio Emilia, where social workers, psychologists and others have allegedly brainwashed children into believing that their parents had abused them. They were then taken from their parents and sold to foster parents.

It is claimed that psychotherapy and electric shock treatment were used to convince the children that their parents had sexually abused them.

Looking at the evidence as a whole, there is point after point in Cardinal Pell’s favor, with nothing substantial against him, but the two judges seem unable to recognize this. They say, “Uncertainty multiplied by uncertainty does not – cannot– demonstrate impossibility” (p. 53). They seem blind to the fact that the multiplication of probabilities can – and in this case does – come very close to complete certainty.

If we toss a coin once there is a fifty-fifty chance that it will come down heads. If we toss it ten times there is less than one chance in one thousand that it will come down heads every time.

In Cardinal Pell’s case a number of factors, each decidedly his way, result in odds enormously in his favor, even after allowing for the evidence (such as it is) against him.

It remains to be seen whether the High Court of Australia rules in his favor. We can only hope and pray that justice will be done.

John Young

Author, Philosophy lecturer

John has studied philosophy and theology deeply, and has a bachelor’s degree in theology. He is the author of three books, a number of pamphlets, and over 600 published articles. John is interested especially in the thought of St Thomas Aquinas, and its application to modern questions. He is also interested in fundamental economic questions viewed from a natural moral law aspect.