MICHAEL MULLINS. George Pell’s conviction and fragmentary memory

Many people dismiss any element of testimony that is thought to be guided by emotion. Court proceedings are based on rational argument. If holes can be picked in the verbal narrative of the witness, the allegations remain unproven. A new book explains that two people who have experienced the same phenomenon will often have completely different memories of it. The verdict of the Pell jury suggests that the form or demeanour of a testifying witness can be more telling than the verbal content of his or her testimony.

George Pell’s conviction was a surprise to me. I’m at a loss to explain to myself how it came about. It is astonishing to think that a man of his stature and cunning could have done such things. The victim’s presentation to the jury as sole witness must have been compelling.

When I’m part of a ‘did he or didn’t he’ conversation, I argue that we cannot pretend to know if Pell is guilty because we were not present for the testimony of the witness.

I am not an expert, but the more I read about the fragmentary and therefore ‘unreliable’ nature of human memory, the more I’m convinced that the form or demeanour of a testifying witness can be more telling than the verbal content of his or her testimony.

Increasingly I’m reluctant to take literally words in the recall of a witness. In the same way, I’m not a biblical fundamentalist and therefore don’t read the Bible literally. I interpret its words in the light of a range of factors including studies in history and literature.

In the case of the Pell trial, I’m imagining that the jury would have interpreted the verbal recall in light of emotions the witness was displaying. They would have provided the key that those of us not present do not have to inform our judgment.

Many people dismiss any element of testimony that is thought to be guided by emotion. Court proceedings are based on rational argument that takes what a witness says literally. If holes can be picked in the verbal narrative of the witness, the allegations remain unproven. This might stand to reason, but I think the approach needs to be rethought.

I’m currently reading the recent book Diving for Seahorses: The Science and Secrets of Human Memory, which was written by two Norwegian sisters, one a neuropsychologist and the other a writer and journalist. It looks at the evolution of our understanding of memory, including the watershed questioning by the father of psychology William James, in the late 19th century.

‘When James was alive, people thought of each memory as a unit, a copy of reality, like something that could be pulled out of a folder in a filing cabinet.’

But instead the key to understanding memory came to be seen as the seahorse, ‘slowly swaying in rhythm with the sensory areas and the emotion and awareness centres of the brain’.

Hence the Greek word for seahorse – hippocampus – was used to name the elongated ridges on the floor of each lateral ventricle of the brain, thought to be the centre of emotion and memory.

The fact that our recollections are influenced by emotions and sense perception – such as taste and smell – means that two people who have experienced the same phenomenon will often have completely different memories of it.

This could explain why contextual information about Pell’s sexual abuse that was provided to the media by others does not square with the witness testimony of the victim. Because it’s said to be unlikely that Pell would have returned so quickly to the sacristy, the victim’s testimony is thought to be discredited.

The ABC journalist Louise Milligan is one of the few people aside from the jury to have met the victim. She said ‘I defy anyone to meet this man and not think that he is telling the truth.’

Perhaps we should refrain from advancing opinions on the truth or otherwise of the victim’s testimony until we get to meet him.

Michael Mullins is a former editor of Eureka Street.

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15 Responses to MICHAEL MULLINS. George Pell’s conviction and fragmentary memory

  1. Lynne Newington says:

    Here is a Man of God who will not put his hand on the Bible and swear to tell the truth.’…..
    I for one never knew of that exchange………Maybe the reason he chose an atheist to run his case.
    Or the Fear of God……..

    • warren johnson says:

      But there is compelling evidence that what you say here is not correct. This week the Age/SMH podcast Please Explain was The Fury and Fallout: George Pell Convicted and discussing the case were Alex Lavelle, editor of The Age and John Silvester, author, crime writer and columnist.

      The podcast lasts for 36:29 and at about 12:00 minutes it was stated very forcefully by these correspondents that it is very traditional that the accused does not give evidence. It is for the Crown to prove its case.

      Both correspondents also said very definitely and forcefully and almost in unison that Cardinal Pell very definitely wanted to give evidence but was prevented from doing so by his counsel Robert Richter QC. It is the defending counsel that decides whether or not the accused gives evidence.

      • Rosemary O'Grady says:

        Reply to Warren Johnson: It is Counsel’s work to offer Counsel.
        Counsel may only advise – the decision is, ultimately, and always, the client’s – not least because only the client can decide what is in his / her own mind/knowledge / interest. There is an added issue here: Counsel may not speak-up in self-defence.

        I’d be Very Interested to hear or learn whence came Messrs Lavelle & Silvester’s information that Cardinal Pell ‘very definitely wanted to give evidence but was prevented from doing so…’ A Confidential Conference/Consultation seems to have been Leaked? or a Manufactured revision is in process?
        And that is immaterial to the point that I made, which is about the Power of a Jury – which extends even to the right to deliver a ‘perverse’ Verdict, if appropriate.
        Were your Informants (AL & JS) IN the Court-Room at all? What you offer here is not ‘compelling evidence’ but arm’s-length opinion and speculation. I think.

        • Warren Johnson says:

          I assume that media representatives have integrity until proven otherwise and since they are public figures they are careful to preserve their reputation by careful checking of the facts. So I have no reason to doubt these two but if you are not convinced then there is a different scenario that provides appropriate assurance that there is no admission of guilt
          I recall reading that it is so unusual for Richter to allow clients to testify that he was asked by someone why he had done so in one case and Richter replied that he had feared for his safety if he had refused. So it is a matter of public record that Richter’s clients do not testify.

          It also seems quite possible that Richter might refuse to represent clients if they did not follow his advice simply to protect his reputation as a very skilled and successful counsel.

          But whatever about that it is on public record that Richter’s clients do not testify so that is sufficient and appropriate explanation for why Cardinal Pell did not testify.

          • Rosemary O'Grady says:

            With respect, no, seriously, respect because we seem to have different sets of facts at our disposal but I persevere anyway, a QC, by reason of eminence, is entitled to pick-and-choose where s/he puts effort,(that is: is not bound wholly by the cab-on-the-rank principle – which almost nobody I know of ever observed anyway but was meant to have done!) and it is, obvious, is it not? that one would prefer to work obo an Accused who chooses to accept one’s advice, rather than one who increases the trauma by fighting it. The usual procedure if the opposite arises is for Counsel to commit his/her advice to writing, alert the client to the fact/ give them a copy & conference, advise the risk involved in insisting upon instructing Counsel against advice and then if cornered, take the money and run with it. More usually, one would return the brief, in the case of risk/fear of failure. Do you still assert that a civil libertarian – as RRQC is, would do differently?
            The amount of grind that went into the Pell defence was, in a word, staggering. I mean: really mind-blowing. It is beyond belief to say that the defence ‘team’ was doing anything other than protecting their client/ availing him of the best possible defence, if their advice to him was to invoke a right to silence – which, in the event, they tried to explain – away by pleading that he had answered all questions put to him, and that video – interview had been viewed by the Jury. They did what good Counsel must all too often do, embarrass themselves obo their client, making the widest possible assertions on his behalf. And another thing: anyone who thinks that George Pell could have assisted his case by speaking obo himself is unfamiliar with George Pell’s(IMHO) homilies. Personally, I believe in a Duty to Respond in criminal cases, nowadays, as there are so many rules to effect a fair trial , but the Law still allows for the privilege against self-incrimination and so my’ belief’ is irrelevant. I happen to think that, just possibly, a wise Jury felt otherwise. Let’s see what the Appeal bench makes of it.

    • Rosemary O'Grady says:

      To: Lynne Newington: This was not an ‘exchange’ but a speculation upon the altered perceptions of contemporary juries. An Intuition.
      No matter how closely-directed – they have a mind of their own. That is their Strength – and Ours!

  2. John Edwards says:

    “Here is a Man of God who will not put his hand on the Bible and swear to tell the truth.’ In my opinion: end of story.” Rosemary O’Grady

    Rosemary you may well have hit upon the key to this elusive puzzle. It is hard to imagine that thought not occurring to some or all of the twelve. And if so, then perhaps for them it was simply “end of story”.

  3. David Maxwell Gray says:

    What are the conditions under which memory has integrity? This is a relevant and complex question. One needs also to understand the power of memory, rather than just to question it.

    I had young childhood memories of sitting on the knee of my grandfather while he told me proudly how we were descended from the Douglas clan of Scotland. This was not repeated by any other family member to me. Some 50 years after he told me, my memories were surprisingly affirmed when, whilst I was assembling a family tree, I came upon evidence that my grandfather’s grandmother was a Douglas, as was also his paternal great grandmother, subsequently further confirmed in detail. My grandfather died in New Zealand when I was fourteen. I had met him only four times, the last when I was about nine.

    I understand that upon the recollection of a memory, it is each time reconstructed and some details may be partly imagined or blurred. But the mind can also have a powerful ability to recall core things. In our criminal justice system, a jury needs to weigh up such subjective matters, when dealing with witness testimony. So too, if it is a panel of judges deciding the case.

  4. Richard Ure says:

    The demeanour of witnesses has long been considered as an important part of the techniques used by the courts in attempting to arrive at the truth in any case.

    Given the reliance on the evidence of a single witness in the Pell case, demeanour will be highly relevant and was likely to have been an important consideration for the jury. It intrigues me how the appeal court judges, who will only have access to the transcript, will be able to compensate for being absent at the trial. In which case, one would expect them to need to be especially persuaded of the merits of Pell’s submissions if they are to allow his appeal.

  5. Garry Everett says:

    Thanks for the insights Michael.
    I was once on a jury in a sexual abuse case, allegedly perpetrated by a father on his 12 year old daughter. It was very difficult at times to discern whether we ere listening to memories, reflections on memories; re-workings of memories or even fabricated accounts of what was “remembered”.
    As a jury we were divided 10_2 on a not guilty verdict for some time. Eventually, we reached a unanimous decision by focussing on the criterion of “beyond a reasonable doubt”. It took us 2 days to reach our verdict.
    Jury work is difficult and depends a great deal on the open-ness and sharing among the jurors who have seen and heard the parties involved. We all understood that an appeal process heard by judges was the ultimate determiner in the case.
    For George Pell, we must all wait with various hopes and expectations held in abeyance until the final court rules on the matter.

    • Rosemary O'Grady says:

      It is tempting for a jury- when in the grip of seemingly irresoluble difference – to
      yield to the deal-breaker – well, the higher/ aka appeal court can decide.
      That is, with respect because jury – duty is not easy – not the Jury – ‘role’. And that is why an unanimous Verdict (ver- truth; dict – say it) is so valuable. When a Jury can deliver such a verdict, we should be in awe. It’s a tough gig and anonymous, and you don’t get to give your reasons. We should treasure our (good) juries.

  6. Rosemary O'Grady says:

    That’s Peter Kidd, Chief Judge!
    Public Computer – I blame my tools.

  7. Rosemary O'Grady says:

    In addition to : Diving for Seahorses (which I shall seek & read!) – there is the now long-respected work by US-Israeli economist-psychologists ( & Nobel Laureates) Daniel Kahnemann & Amos Tversky – easily-accessible and explicatory of the effect of emotions on decision-making. In other words: we have reached the last days of the age of reason (alone) or: of cogito ergo sum.
    Thanks for this MM. I have sat through almost every day of the various trials to which this article refers ( missed a, very, few days for appointments) and was absorbed and thrilled at the implications of what we have learned and yet to learn about ‘memory’.
    But the clincher is in the Complainant’s testimony – and what the Jury made of it.
    It is the Jury which is the key to understanding this decision (and the Accused’s character, of course). A criminal trial depends, ultimately, on the Jury. We forget that.
    The presiding judge in these trials was Peter kidd, Chief Judge of the County Court of Victoria. I have never seen better. His directions to (2) Juries were superb.
    But I would like to share what another soul well-experienced with juries has said to me not long ago, discussing the changing sophistication of the public and the jury-pool: modern juries won’t accept certain conduct nowadays. They will look at this case and ask themselves: Here is a Man of God who will not put his hand on the Bible and swear to tell the truth.’ In my opinion: end of story.

    • Warren Johnson says:

      Is it really that simple? I recall reading that Robert Richter rarely allows his clients to testify. The article certainly said that Richter’s clients almost never testify.

      Also watching the video of police interviewing Cardinal Pell in Rome makes me inclined to think that he could be too antagonistic and that would not suit Richter and so he would not be agreeable to Cardinal Pell testifying.

      Also I recall being told as a child in a religious instruction class that if anyone was on trial for some crime and they were guilty they could plead not guilty even on oath and I recall being very surprised at this. I think my memory is correct about this but then maybe not!

      • Lynne Newington says:

        Apparently it still happens…….recalling Michael Glennon.
        I recall saying to his [Catholic] solicitor he should be encouraged to admit his guilt and be free…….

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