JACK WATERFORD. Prosecution as an obstacle race

Apr 15, 2020

Many people who had opinions about Pell’s guilt or innocence will retain them despite the High Court’s decision. Whether they fall on one side or another, there are several words of caution:

First, very very few people have much first-hand knowledge of how the actual case went. The alleged victim gave his evidence, and was cross-examined, in front of a TV camera in closed court . The jury could observe his demeanour and hear his words, but he was not actually present in court. We know broadly what he alleged – sometimes, because it was quoted by judges or counsel, actually in his own words, but no transcript is available.

The trial itself was in closed court, in part because other sexual assault charges against Pell were intended to proceed after this trial, and the judge did not want those cases prejudiced. Pell himself did not give evidence but the jury saw and heard a video of his being interviewed by police. Few, if any, of the commentators were actually there, even if they were informed by public views expressed by judges or counsel.

Second, the jury and the trial judge heard all of the excellent points made by those supporting Pell about how the alleged crime was “impossible”  or such a concatenation of improbabilities as to be a solid obstacle against conviction, as the High Court unanimously thought. The arguments were first put by defence counsel in his summing up. The trial judge repeated them in the instructions given to the jury.

Though one critic has disputed my assessment that the trial judge agreed with the verdict, he plainly did not think that the obstacles were such that “as a matter of law” the jury had to come to a not guilty verdict. In finding Pell guilty, the jury must be assumed to have considered every possible matter raised by defence counsel before concluding that they believed the victim. As the two judges in the court of appeal found, the obstacles may have made it more difficult for Pell to assault the boys, but they did not make it impossible.

Third, it should be noted that all of the arguments suggesting that it was improbable or almost impossible for Pell to have committed the assaults were raised from the beginning. Brett Walker, SC, argued them again on appeal, and they were adopted holus bolus by Justice Weinberg, the dissentient judge in the court of appeal, and rehearsed, in writing and oral argument before the High Court. No new arguments were put. The High Court seemed more interested in the supposed errors of the court of appeal, than of the jury or the trial.

Despite what some people have asserted, this case does not establish a new principle requiring corroboration of allegations of sexual assault. That is very important, because it is of the nature of sexual assaults that they are generally in private, without independent witnesses.  If the allegation involves abuse of power, as in this case, it is far from uncommon for defendants to have lofty powers of complete denial, witnesses denying the likelihood or possibility of such a defence, and a good many institutional pressures undermining the victim.

One has only to look at the record of the Royal Commission into institutional child abuse to see accounts of victims being disbelieved by people, including church officials, who should have been on their side. It’s a very different question whether this occurred in this case, but if the cases prove anything it is that people of prestige and high reputation can be offenders, and that it is clear that opportunistic predators can be very bold without some people ever noticing.

Yet, whether it meant to or not, the signal sent out by the High Court was hardly likely to encourage victims of child sexual assault to come forward for justice. The accuser was, in many respects, a classic victim, if one of particular courage and coherence.  His story was tested over days of cross-examination and not shaken. He was believed by a jury, and by two experienced judges, who saw, heard and read his evidence, as well as exhaustive descriptions of its alleged inadequacy from Robert Richter, probably the best criminal advocate in Australia.

But seven judges, who seemed to make a virtue of the fact that they had not seen, or heard, or even closely considered his account decided to substitute their own verdict, on account of a greater weight they attached to some evidence of ritual and usual practice inside the cathedral.  That the reaction of many people, including politicians, to the acquittal was to reaffirm belief in the accounts of victims, and dedication to their getting justice, was very telling. The uncommonly plain language of the judgment (my guess is that that the first draft and continuing skeleton came from Patrick Keane) will be much quoted; if rather more to make successful prosecutions in skilfully defended sexual assault cases much more difficult.

Even juries might find it difficult to summons much enthusiasm, aware that until the court loses its newfound zeal for interfering in cases where they have a suspicion of a wrong result, their work will be regarded as of little account.

There was repeated emphasis during the case that Pell was to be judged on facts, not on opinions about how he, or the Catholic Church generally , had handled allegations of child sexual assaults by others.  Many of his supporters feared that he was at a disadvantage because of the reputational damage he, and other bishops, had received after being accused of covering up abuse, of putting the interests of the church ahead of victims, and, in some cases, of perpetuating abuse by predators by moving them about. The combative Pell style and an apparent want of empathy for victims did not help. Yet Pell who was one of the first bishops in the world to establish a tribunal for assessing allegations of abuse and making redress.

Quite apart from that Pell was a hero to some, and a villain to others, because of where he stood on general matters of church government, and on litmus issues such as the rights of homosexuals, the  freedoms inside the church. He was the leading voice of church conservatism and church traditionalism, the representative of Rome in pushing a top-down system of authority. He epitomised clericalism. He also played a full forward role in wider Australian culture wars, and very much on the conservative side. None of this made him more or less likely to be guilty of crimes.

But not a few people who were opposed to his public opinions, and somewhat astonished by the way he argued them, not only felt that they “knew him” but that they were entitled to judge him. We cannot accuse the jury of that, but the outrage by critics of the church, or critics of his style over the years, was quite palpable and unlikely to be softened by respect for the High Court as an institution.

That some of those now praising the judges as Daniels come to judgment have been over the years the ones most likely to rail against unelected judges underscores the point that nearly everyone went into this argument with a settled view about George Pell.  Few minds changed, and none can yet claim we have seen a dispassionate and disinterested analysis of the facts, as opposed to the marshalling of material favourable to the original opinion.

Pope Francis seemed to compare George’s sufferings to Jesus; on this one, my guess is that Jesus was, as usual, on the side of the little guy.

Jack Waterford is a former Editor of The Canberra Times


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