How did the Pell case get so far—A smoking gun.

THERE ARE MANY exasperated (and utterly justified) questions as to how the case produced against Pell could have even made court in the first place. The judgment given in the (rare) unanimous decision of the full bench of the High Court of Australia to quash the conviction is, after all, quite clear despite the detached objectivity of the rhetoric common to legalese: the jury did not act rationally, and the judges of appeal (well, the majority of them that is) erred in not seeing this, even though their own reasoning should have led to this conclusion. The brutal conclusion is that neither the second jury (for whatever reason, but we can hazard an educated guess) nor the two majority judges of the Victorian Court of Appeal were did their jobs properly.

Take note too that these two judges are Victoria’s most senior judges: the Chief Justice of the Supreme Court, Anne Ferguson and the President of the Court of Appeal, Chris Maxwell.. The High Court has schooled them in their job, declaring their judgment in this case to be, to quote an interview with Professor Frank Brennan SJ, “dreadful.”

But let us go back a step further, to the matter of how it came before a jury on the first place, and how that jury was able to fail in its duty to act rationally.

(1) The case made court because Victoria Police refused to accept the unwillingness of the Office of Public Prosecutions to proceed with the brief given it by the police; so VicPol, pursued the prosecution itself, a highly unusual move, and pursued it to the bitter end. The behaviour of VicPol, especially in its operation against Pell—Operation Tethering, aka Get Pell—has raised so many questions as to create the impression that the behaviour of some officers, very senior officers indeed, might reasonably be called corrupt.

A Royal Commission into VicPol’s conduct, under a judge approved by the leader of the opposition as well as the premier, is in the best interests of VicPol if it has nothing to hide.

If, indeed … read on…

(2) So how could the jury have acted so irrationally in assessing the evidence as presented. This befuddled me as well. To go from a jury 10-2 in Pell’s favour to a second which was 12-0 against is, to say the least, gobsmacking. And that the state’s two most senior judges could refuse the appeal against this conviction is no less astounding. Is incompetence a sufficient explanation?

The eventual explanation will be multi-faceted. However, a Facebook friend kindly pointed me to one of the smoking guns in this regard: the Victorian parliament’s Jury Direction Act [JDA] of 2015, passed by the government of the current premier Dan Andrews, who has implicitly rejected both the High Court’s verdict and the presumption of innocence for anyone who is on trial. It is as if, to put it pointedly, the JDA of 2015 was set in place for just such a trial as Pell’s. (This is not quite so ridiculous as it sounds when you remember that VicPol’s Operation Tethering—Get Pell—began in March 2013, without any complaint against Pell having been received; a true fishing expedition at taxpayer’s expense.)

You should read the full exposé of the JDA yourself. For our purposes this summary regarding the JDA is sufficient:

It made a number of changes to criminal trials:

* any previous requirement that evidence be corroborated was abolished
* any rules of law or practice that previously required directions (from Judge to Jury) concerning the absence of corroboration, including directions about the dangers of acting on uncorroborated evidence were abolished

The Act also requires that a judge must not

* Warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or
* Direct the jury regarding the absence of corroboration

These changes meant that it was up to a jury to decide if the evidence of one complainant should be accepted over the evidence of the offender.

Prior to 29 June 2015 judges would routinely warn jurors that it was dangerous to convict on the uncorroborated evidence of a single complainant.

Can you see what has happened here? Evidence does not have to be corroborated. Furthermore, uncorroborated evidence must not be pointed out by the judge to the jury, and the judge must not warn the jury of the dangers of uncorroborated evidence.

Thus, to quote the exposé again,

The evidence advanced by the prosecution relied entirely on the account of a single accuser, one of the alleged victims.

No corroborating evidence at all. Indeed there was a wealth of evidence given that cast into doubt the evidence of the complainant. However, the judge was bound by Mr Andrews’ JDA, which would have justified the Stalinist show trials and their equivalent in other totalitarian regimes: Mr Justice Kidd was unable to point out the dangerous significance of the uncorroborated evidence. Instead it came down to the complainant’s credibility.

Lest someone accuse me of vilifying the complainant, it should be noted that credibility and honesty are not synonymous. One may speak honestly what one believes to be true, even though others find it lacks credibility. Credibility is a more objective aspect; honesty is more subjective. I would have no trouble believing that the complainant, J, was being honest even though his story was not credible according to the evidence produced. One of the things that any enquiry into Operation Tethering must address is to what degree J was manipulated by VicPol, and pressured into accepting as true what VicPol suggested to him as resolving his lapses of memory. A vulnerable person can be manipulated into believing almost anything. J may well have been abused by someone; clearly it was not by George Pell.

Thus we have at least two principal victims of this saga. George Pell, wrongly charged and wrongly convicted, not least by a constraint imposed upon the traditional approach to evidence in a court of law in a criminal trial, for which neither the jury nor the judge can be held responsible. One hopes that the High Court decision might begin the process of repealing the Victoria’s JDA of 2015.

The second principal victim is the complainant, J. He has been put through four years of purgatory by police who took his (probably, I assume) honest memory of abuse by someone and manipulated both him and his faded memory into a case to Get Pell.

Premier Andrew and Victoria Police, and to some extent Victoria’s two most senior judges, have betrayed all authentic victims of certain abuse by using child sexual abuse as a weapon to Get Pell, a man they clearly despise, no matter what the truth was in reality. You can be sure that VicPol will not now be seeking the truth of who may actually have abused J. It would mean arresting themselves, as their manipulation of him is nothing short of abuse.

As Cardinal Pell himself put it on his release,

the only basis for justice is truth...

Join the Conversation

  1. Hi,

    I can well understand your concerns in respect of this case in terms of natural justice and due process and it is right that that should be both investigated and if necessary any wrongs called out and challenged. However, I feel obliged to remark that it stands in stark contrast to the position adopted by the church over the last 50 years (at least!!) in relation to the abuse of those in its care and also in the way the church authorities (again and again) sought to shield the offenders and protect the church’s reputation. As I say, I am not saying the Pell case is unimportant but I would be more impressed if it was part of wider deeper concern for justice irrespective of the perpetrators – particularly over the last 25 years when across the world report after report exposed the church’s guilt and culpability. I am pleased now that justice has been and has been seen to be done in this case but what about the others?

  2. So it seems that, rather than the prosecution having to prove guilt, the defence must prove innocence given that there is a presumption of guilt.
    A terrifying prospect for Cardinal Pell and for anyone else being tried in the state of Victoria.
    Once again, thankyou for this post, Father.

  3. If there is corruption in Australia, I wonder if it was motivated by corrupt money from Rome. It struck some as suspicious that this charge came up when Card. Pell was working to get to the bottom of Vatican financial scandals.

    1. On Facebook I linked to a story that suggested just that sort of thing. It’s interesting that all Pell’s reforms have been undone by the most senior members on the Holy See’s administration. All of them.

  4. God save His Church from the financial shinanagans of Rome. It seems as if (God help us) we have a nest of vipers trying to bring down Christ’s Church.

  5. Why does the Australian hierarchy seem so loathe to back His Eminence now that the High Court has declared his innocence?


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