PAUL COLLINS. Where to from here?

One persistent question that has been asked since the failure of Cardinal George Pell’s appeal last Wednesday has been: Why isn’t the Vatican acting to force him from the College of Cardinals and expel him from the priesthood? They moved with amazing speed in the case of Theodore McCarrick, Cardinal Archbishop of Washington, DC, after he was accused of sexual abuse of minors. Why isn’t the same speedy process happening with Pell?

The first reason is obvious: Pell has every right to approach the High Court of Australia. But, as legal experts have pointed out, the bar for getting a hearing is extremely high. The reality is that special leave to appeal is only granted in those cases where a question of law of public importance arises, or where the interests of the administration of justice require consideration by the High Court. The High Court is not another higher court of appeal.

Clearly the Vatican knows that Pell can approach the High Court, but I suspect it under-estimates just how high the bar is to get a hearing. Vatican decision-makers probably think it is just another higher appeal court. This is implied in the statement of Matteo Bruni from the Vatican Press Office when he says: “As the proceedings continue to develop, the Holy See recalls that the Cardinal has always maintained his innocence throughout the judicial process and that it is his right to appeal to the High Court.” So, understandably, the Vatican is unwilling to act until this final hurdle is cleared. In doing so they would be acting just like the Governor General when he said he’d wait to see if leave were granted before making a decision regarding Pell’s Order of Australia.

The Theodore McCarrick case is different to that of Pell. The McCarrick accusations didn’t begin in the civil courts, but in the ecclesiastical system. In late-June 2018 the Archdiocese of New York announced that its investigation had found “credible and substantiated” allegations that McCarrick had committed sexual abuse of a teenager. Another victim came forward the following month. It was also revealed that the Archdiocese of Newark and the Diocese of Metuchen, New Jersey had previously reached out-of-court settlements with several adult seminarians who had been sexually abused by McCarrick.

The Vatican made a quick decision because it had all the evidence from the church investigations. McCarrick was removed from public ministry in June 2018, he resigned as a cardinal the following month, and in February 2019 he was removed from the clerical state, meaning he could no longer act as a priest.

However, in Pell’s case the Vatican is entirely reliant on the Victorian civil court process; it can’t even read the evidence of Pell’s accuser, because that evidence was taken in camera to protect the victim’s identity. Sure, we know that our Australian court system is reliable, just and open and is ranked ninth best in the world by the World Justice Project, ahead of the US at eleventh and just pipped by Canada and the UK. But many in the Vatican are sympathetic to Pell and think that he is innocent and being persecuted by an anti-Catholic legal system.

The key issue for the Vatican is that it has virtually no experience in the last 200 years in sacking cardinals, let alone stripping them of the priesthood. Only one cardinal was forced to resign in the 20th century, the French Jesuit and theologian, Louis Billot. A supporter of the French fascist movement, L’Action française, he was forced to resign from the College of Cardinals by Pope Pius XI in 1927, but remained a priest in good standing.

There’s no doubt that Hans Hermann Groër,whom John Paul II appointed archbishop of Vienna against the advice of everyone, including Cardinal Franz König who was primarily responsible for Wojtyla’s own election to the papacy, should have been expelled from the College of Cardinals and stripped of the priesthood as a repeat sexual abuser of under-age seminarians. But he got away with resignation as archbishop and retirement to a life of prayer. No civil charges were laid against him because of an Austrian statute of limitations. In contrast Cardinal Keith O’Brien had the decency to resign in 2013 as archbishop of St Andrews and Edinburgh and retire entirely from active ministry after media revelations about his adult relationships with seminarians and priests.

What is significant is that none of these men were charged by police. Except for O’Brien, all arose from internal church investigations. This is why the Pell case challenges the Vatican in an entirely different way; rather than with the church, it all began with the Victorian police and criminal charges. This is a whole new scenario for Pope Francis and the Congregation for the Doctrine of the Faith (CDF), the Vatican department that handles such cases.

And the simple truth is that they don’t know what to do because they’ve never faced this situation before. There is a sense in which they’re playing for time, hoping that a solution might emerge from Australia, like Pell being found innocent by the High Court. As Bruni says: “The CDF is awaiting the outcome of the ongoing proceedings and the conclusion of the appellate process prior to [the CDF] taking up the case.” However, as the McCarrick case shows, if Pope Francis becomes convinced of Pell’s guilt, he will act decisively. So, while Australians are understandably impatient with all of this, the Vatican will eventually be forced to act when Pell runs out of appeal options. The High Court is his last chance and while legal opinion is divided, the experts to whom I’ve spoken feel that it is unlikely he will get leave to appeal.

Pope Francis and the Vatican need to know that Australian Catholics have lost patience. We need a decision sooner rather than later. We need to be assured that the Pell era is finally over.

Paul Collins is a Catholic commentator and church historian.

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15 Responses to PAUL COLLINS. Where to from here?

  1. Rosemary O'Grady says:

    Dr Collins directs his commentary about what ought/not be done in Rome about the latest Melbourne response. I’d like to add another fact for consideration…
    Pope Francis is under pressure in his pontifical office, not least from the continued presence too close for comfort of the unlovely Emeritus Pope Ratzinger.
    As I understand it, Josef Ratzinger took early retirement, evicted a bevy of nuns from their convent in the grounds of Vatican Palace, had the place refurbished – one is tempted to say to the standards expected by his ‘carer’ Georgeous Georg Archbishop Ganswein – and whiles away his days spinning trouble for Francis and his Administration, at his leisure. It is Pell’s embarrassing proximity to the financial reforms pursued by Francis which is what really chokes the cloaca in Rome. The Old Guard of the Curia must be rubbing their chapped and horny hands in glee to see that it took a mere Royal Commission (because the Police weren’t taking the initiative) to ‘refer’ Pell for investigation – and whoops! Problem Solved. If Pell undermines Francis – then we’ll learn something about the Law of Unintended Consequences.

  2. Ed Cory says:

    So, people here think they know better than the 12 jurors who unanimously found Pell guilty, the (at least) two jurors in the first trial (may have been as high as 10, but we just don’t know) who wanted to find a guilty verdict, and two of the three appeal court judges – all of whom heard ALL of the evidence, unlike you. Put another way, between 16 and 23 of the 27 people who have heard ALL of the evidence found for his guilt. Seems pretty compelling to me.

    Making excuses for a convicted paedophile, who has had every chance to defend himself with the finest legal advice that money can buy, is hugely ironic in this case. This is a man who has used insititutional power to promote and enforce enforce a set of rules without regard to their human cost. Now his supporters challenge his treatment in another institutional environment, under its set of rules. What is sauce for the goose is also sauce for the gander.

    A final point. Pell chose not to take the stand, look the jurors in the eye, and say ‘I didn’t do it’. That was his right, but may also have been the fatal flaw in his defence.

  3. Charles Lowe says:

    The overwhelming preponderance of seemingly informed opinion is that the High Court will refuse to review Pell’s case.

    Because it simply does not raise relevant questions of law (as opposed to ‘fact’).

    I agree.

    This case is a particularly excellent illustration of how habitual ‘external referenting’ results in effective insanity.

    An equation that this under-informed and under-educated society finds difficult (if not impossible) to accept.

    I do what I can. Please ‘like’ ‘Politavist’.

  4. Charles Lowe says:

    Paul: you know better than most how important it is to maintain patience.

    Please maintain it.

  5. John Carmody says:

    As in the wider community, there is confusion”frothing in some of these responses.

    It doesn’t help to categorise one section of the community as “frothing observers” [the putative Pell “opponents” whilst withholding comment about the Pell “supporters” — some of whom have, likewise engaged in hyperbole and animus”.

    It needs to be remembered — as Dr Collins’ reminds us — that an appeal to the High Court is not a right. That Court has to consider r applications and then decide if “leave” to appeal will be granted.

    Some people, quite reasonably” are troubled by the fact that evidence has been provided by only a single person. However, that is almost inevitably the case — typically there are only two parties involved and a decision needs to be made about who, under oath, is to be believed. That’s why we rely on the sagacity of 12 people who are not judges. The Parliament of Victoria, quite reasonably (and like many others in the community), believes that such a panel of laymen and women will make a better decision about truthfulness than a judge. After all, the only alternative to the principle of rejection of a single witness’s evidence is to entirely abandon trials of sexual assault.
    Is what what those objectors really want?

    Then there’s the nettlesome legal matter of “beyond reasonable doubt”. I suspect that there is no single or homogeneous view of this amongst lawyers (or even statisticians): judgement and assessment of witnesses and their evidence will inevitably be involved.
    But consider what happened in the Pell case. The 12 members of the jury considered 5 charges and unanimously found r the Cardinal guilty of them all. in other words, that question — has this charge been proved beyond reasonable doubt? — was considered SIXTY times in reaching those verdicts. That, I consider, gives us some statistical confidence in those verdicts (ans a sense of what “reasonable doubt” might really mean in the public mind). Plainly, the jury BELIEVED the witness. That is their role and task (and it is not really the role, I’d think, of the appeal judges: so resorting to appeals to the minority jurist’s “greater experience in criminal law” strike me as irrelevant and unjustificd.

    And the notion that a philosopher and historian of Dr Collins experience and reputation can be glibly dismissed as a n opponent of Pell are as illogical as they are offensive.

  6. Joe O'Brien says:

    I have to be honest and say I don’t know. The sensationalist media coverage certainly didn’t help. Sadly I don’t think anyone will truly be sure given the split decision in the appellate court. If the truth is to truly come out it may have to go to the High Court. Unfortunately because the Vatican investigation may not get access to the victims, it may not be able to come to a reliable conclusion and if can’t he may be given the benefit of the doubt.

    If he is guilty he deserves what he got, but if not then he should be free. Problem is I don’t know and if a judge who has heard all the evidence doesn’t, then there is going to be doubt. A High Court decision would go a long way to removing any doubt and potentially give the Vatican the ability to act, which in the current situation would be difficult.

  7. Tony Ryan says:

    This analysis simply confirms Collins’ long held animus to Cardinal Pell.”)

  8. Malcolm Crout says:

    Two different sets of circumstances. McCormick’s guilt was observed by his church peers whereas the Pell case rests on the testimony of one non clergy person for an act not witnessed nor corroborated by another person inside or outside of the clergy. Added to the fact that the High Court decision was not unanimous further blurs the issue. Many legal people believe the Supreme Court Judge overstepped the mark with comments as to the arrogance of Pell and his lack of contrition. Some comments were remarkable and if the Judge held those views then perhaps the decision to exclude certain defence evidence could be brought into question.
    Pell is arrogant and aloof and has a history of repugnant behaviour, but none of those personal qualities make him guilty. Before the frothing observers agitate for his head on a plate, all legal avenues should be exhausted. I think many were surprised that he was convicted on the say so of one person, whereas those seeking revenge because of his personal attributes applauded the verdict. We weren’t able to hear the accused testimony, so it’s difficult to be objective, but he must have captured the court to be believed. One surely has to question reasonable doubt in these circumstances. Perhaps Pell’s legal team needs some new blood for the High Court appeal.

  9. Kimball Byron Chen says:

    Juries find accuseds guilty or not guilty which means proved or unproven to the requisite standard. They do not make findings of innocence. A not guilty finding means that the prosecution has failed to prove its case to the requisite standard. Plus civil and criminal jurisdictions are distinct and separate. One day we may find out what motivated Pell not to get into the witness box and give sworn evidence. His accuser did and no doubt that has had a hugh impact on the jury and two appeal judges. That the Vatican seems to believe Pell has a right to appeal rather than a right to seek leave from the High Court to appeal is disconcerting. Distinctions of these kinds are key to understanding what will follow.

  10. Their stated reason is that they are waiting until he has exhausted his appeal process.

  11. Peter Johnstone says:

    Thanks, Paul, for an informative and helpful analysis. The McCarrick defrocking shows that the Vatican clearly does not need to rely on a civil criminal offence being proven for the Church to take appropriate disciplinary action against a cleric. McCarrick was not prosecuted civilly and, given the Church’s own lack of accountability and shortcomings in due process, the finding of the archdiocese that the allegations that McCarrick had committed sexual abuse of a teenager were “credible and substantiated” might not have been sufficiently evidenced for a successful civil criminal prosecution. In the case of Pell, the Holy See has decided to await the outcome of every possible ground of civil appeal to establish a reasonable doubt despite the guilty verdict of a jury already confirmed by two highly qualified judges of the Appeals Court. Presumably the Holy See has not limited their canonical investigation of Pell to these civil charges as there are reportedly other matters not included in the present case including prosecutions that have been dropped for various good reasons, the allegations included in Louise Milligan’s book ‘Cardinal’, possible civil cases, and the redacted report of the Royal Commission into Institutional Responses to Child Sexual Abuse that addresses matters concerning Cardinal Pell. In the meantime, some Australian bishops are doing their best to repeat Pell’s claims of innocence, with some inferences even of Catholic persecution despite the reputation of our Australian court system as “reliable, just and open”.

  12. Trish Martin says:

    Why? Because unlike Christ, the Vatican is self-referential and self-serving rather than self-emptying in support of the traumatised victims. Because bishops maintain a breathtaking arrogance and ignorance of children’s true status in God’s kingdom (see Matt 19:13-15).

  13. Ann Long says:

    Some legal opinion I have spoken with said that given the division in the appeal court it is sufficient reason to say Pell’s case is not beyond reasonable doubt. They added that reliable witnesses have indicated that the distance from the public meet and greet to the sacristy was impossible to be traversed in the time given. this is not to disbelieve the witness. Who else could be the perpetrator? I find my prejudice against Pell have me assuming he is guilty.

    • Andrew McRae says:

      It was also reportedly argued in court that Pell’s robes were ‘impossible’ to sweep aside to allow him to commit the offence, but that defence seems to have been blown out of the water with the report of the appeal judges’ trying on of the apparel. Perhaps the ‘walk to the sacristy’ claim was also put to the test.

  14. Garry Everett says:

    Part of the strength of the Australuan legal system, is the set if checks and balances, appeals, that are built into the system .We the public, are obliged to suspend our judgement until the final appeal has been decided.
    Pell’s lawyers believe he has a case to put to the High Court for consideration.
    These are the same lawyers who have un-successfully twice argued his innocence, and lost on both occasions. One wonders about their skills and powers of argument. However, they may want to try a third time. They are paid, win or lose.
    We must all wait on the processes. Let’s hope the High Cort acts expeditiously

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