Frank Brennan SJ. An Unholy Mess: Cardinal Pell, the Royal Commission are Owed Justice, not Vigilantism

Feb 23, 2016

On medical advice he has decided not to risk the long plane flight home from Rome. This makes things much harder for victims seeking closure.

It makes things harder for others, including members of the Catholic Church and citizens wanting certainty about the appalling offences of the past and clarity about the failures of Church leaders adequately to protect children from repeated abuse by paedophiles.

Given the response to Tim Minchin’s song, it also makes things harder for Pell. But that’s his decision. The rest of us have to live with his decision, and do the best we can to ensure that the Royal Commission can do its job well, primarily for the good of the victims, and to ensure the future protection of children in institutions.

Victims travelling to Rome have asked that Pell meet with them. He has said he will. They have also asked to be present in the room while he gives his evidence. The Royal Commission has agreed to provide a room in a Roman hotel.

The room will need to be open to members of the public. Given that the room could be occupied not just by the witness and silent victims, there will be a need for court orderlies to be in attendance. There would also be a need for some police back-up on hand, as is customary for courts and Royal Commissions, ensuring that order can be maintained so that the integrity of the judicial process might be assured.

Not being within the Australian embassy, the room will be under Italian jurisdiction, so there will be a need for some understanding and cooperation between Australian and Italian police. Think only of the international documentary maker who turns up wanting to film Pell and the victims, or the Pell supporter carrying a placard supporting the witness, or the victim who finds the evidence unbearable and starts shouting out at the witness.

The decorum and integrity of the hearing process must be guaranteed for the good of all persons, including the witness. It’s not good enough to assume that this can be done by a stern judicial eye being cast by videolink from the other side of the world. The key consideration has to be the capacity of the Commission to receive and examine Pell’s evidence according to the rules of natural justice.

Victims anxious to question the credibility of Pell’s evidence undoubtedly will consult their lawyers as to whether it is best for them to be back in the hearing room in Sydney, or with their friends and supporters in the Ballarat Town Hall watching the videolink, or in Rome. Usually, lawyers appearing for clients questioning the credibility of a key witness would prefer their clients to be on hand to provide immediate instructions in light of the witness’s answers. Being on the other side of the world could be problematic.

Today, the Royal Commission resumes its hearing of Case Study 28 in Ballarat. This case study is designed “to inquire into the response of the Catholic Diocese of Ballarat and of other Catholic Church authorities in Ballarat to allegations of child sexual abuse against clergy or religious, and the response of Victoria Police to allegations of child sexual abuse against clergy or religious which took place within the Catholic Diocese of Ballarat.”

There are two institutions under the spotlight: the Catholic Church and the Victoria Police. Next week Pell will give his evidence from Rome in relation to Case Study 28 as well as Case Study 35, which relates to the Catholic Church’s response to child sexual abuse in the Archdiocese of Melbourne. This case study will require the commission to study the relationship between the Victoria Police and the Catholic Church in the development of the Melbourne Response protocol.

Last Friday afternoon, the Melbourne Herald Sun, armed with leaked material emanating from the Victoria Police, phoned Pell in Rome. He was in bed. According to the newspaper’s own report: “The newspaper was seeking comment. Victoria Police was investigating historical claims that Pell had sexually abused five to ten boys.”

The Sunday edition of the Herald Sun spoke of “calls by detectives to be given the green light ‘as soon as possible’ to fly to Rome to interview Cardinal George Pell”:

“The Sunday Herald Sun understands senior Victoria Police are assessing the dossier of evidence collected by the Sano team in the past year, including witness statements from alleged victims.”

The newspaper claimed that “legal sources [plural] revealed Sano Taskforce members were ‘highly motivated but frustrated’.” The source (now singular) was reported as saying that the Sano investigators wanted to go to Rome to interview Pell “but that the ultimate decision isn’t down to them. It is with senior figures who will have to give them the go-ahead.”

Pell is in no doubt that all this material relating to uninvestigated complaints against him was leaked directly by the Victoria Police to the media and at a time designed to cause maximum damage to his reputation. Pointing out that “the Victorian Police have never sought to interview him in relation to any allegations of child sexual abuse,” he “has called for a public inquiry into the leaking of these spurious claims by elements in the Victorian Police.”

The Victorian government – one of the governments to commission the Royal Commission – is yet to respond. It is imperative for the integrity of the Royal Commission and its processes that the Victorian government ensure that its own police service or rogue members of that service have not been involved in the leaking of material resulting in the unproven public impugning of the reputation of a key witness in relation to the very matters being investigated by its own Royal Commission.

The public deserves this assurance, as do the other governments which have jointly commissioned the Royal Commission. No Royal Commission can operate with integrity if any arm of a government commissioning the Royal Commission is engaged in unauthorised activity aimed at undermining the public standing of key witnesses, especially when that arm of government itself is also subject to scrutiny by the Royal Commission.

It is grossly improper for a police service to leak to any person details of uninvestigated complaints against a witness to a Royal Commission commissioned by that police service’s government. Whether police have leaked the material directly to the media outlets or to intermediaries is irrelevant. The police leaks risk putting the integrity of the Royal Commission at risk.

Any government conducting a Royal Commission must come with clean hands, informing the Commission and the public about the source of the leaks and the action taken to punish the wrongdoing and to mitigate the damage.

Justice McClellan and his fellow commissioners have a daunting task in the next fortnight, according due process and natural justice to a high profile witness on the other side of the world who has been publicly labelled “scum,” “buffoon” and a “coward,” being the subject of unauthorised leaks about uninvestigated complaints from a police service which itself is under scrutiny for its past cooperation with the witness and his Church.

The commissioners will have a difficult judicial task in determining the balance of blame between the Church and the police service given the earlier finding by the Victorian Parliamentary Inquiry:

“It is clear that Victoria police paid inadequate attention to the fundamental problems of the Melbourne Response arrangements until relatively recently in April 2012 and that, when they did become the subject of public attention, Victoria Police representatives endeavoured quite unfairly to distance the organisation from them.”

The Victoria Police should be held to the same standard as any other institution appearing before the Royal Commission.

The business of the leaks needs to be cleaned up. Once the venue for the Cardinal’s evidence is determined, everyone can prepare to hear his evidence and to test it. And yes, it would have been so much better for everyone if Pell had come home last December before Tim Minchin and the police leakers got to work. But there’s no point in crying over spilt milk.

Frank Brennan, S.J. is Professor of Law at Australian Catholic University and Adjunct Professor at the Australian Centre for Christianity and Culture.

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