On Wednesday, 21 August 2019, a majority of the appeal judges who reviewed all the evidence in the trial of Cardinal George Pell for historic child sexual abuse, and in which he was convicted on five charges, have concluded that the key witness, a former choir boy who alleged he was abused by Cardinal Pell, was a witness of truth. On that basis, Pell’s appeal to have his conviction overturned was dismissed.
In a 1931 speech, Mohandas Gandhi stated that “A nation’s greatness can be measured by how it treats its weakest members”. On Wednesday, in Melbourne, Australia, in the Supreme Court of the State of Victoria, those words found new meaning.
In a majority decision, two of the three judges of the Court of Appeal decided that the key witness in the criminal trial of Cardinal George Pell, where a jury had found him guilty of the sexual abuse of that witness in 1996 and 1997 when he was a 13-year old boy in the choir of St Patrick’s Cathedral in Melbourne, had spoken the truth. On that basis, the appeal by Cardinal Pell to have his conviction overturned was dismissed.
In his appeal, Cardinal Pell had submitted that the key witness’s account of what had occurred in the cathedral 23 years ago was “a fabrication or a fantasy, that it was implausible” and, that when taken together with the evidence of other witnesses, “was either literally impossible, or so unlikely it’s of no realistic possibility”. The prosecution, on the other hand, maintained that the victim of the abuse was “a witness of truth”.
A witness of truth
Two of the appeal judges, Justices Ferguson and Maxwell, after reviewing the whole of the evidence in the trial, found that “there was nothing about the complainant’s evidence … which meant that the jury ‘must have had a doubt’ about the truth of the complainant’s account”. The judges themselves said that “they did not experience a doubt” and accepted the prosecution’s submission that the complainant (the boy who was abused) was “a very compelling witness, was clearly not a liar, was not a fantasist and was a witness of truth”.
The weakest and most vulnerable members of any society are its children. Their vulnerability gives them the right to be protected from harm. In their innocence they place their trust in those they believe will shelter them, first and foremost their parents who have the prime duty of care. In the Catholic community, children place almost as much trust in priests and religious. Parents also trust priests and religious implicitly to protect their children. Therein lays the trust conundrum.
Two young choirboys were abused by Cardinal George Pell. One could not bring himself to tell his parents of his abuse and its effect on him. Sadly, he died of a heroin overdose before he could speak the truth. Perhaps the trust he knew his parents placed in priests – even more an archbishop – was so great that he feared he would not be believed. The other choir boy, now a young man, only spoke of his abuse recently, some 20 years after the abuse, because he “felt a responsibility for his friend” whom he knew to be in a dark place, as was he himself. He only spoke to the police “because I was thinking of him and his family”. But in doing so, he had to trust the police and risk his privacy, health, wellbeing, and his family.
Trust, in this case, and in so many others, can come at a dreadful cost to the victims/survivors of clerical child sexual and their immediate families. When children are abused by a person they trust, they are damaged irreparably and forever. No matter how much they may want to speak the truth, they fear the consequences, intended and/or unintended. They no longer know who to trust, who to confide in with the truth of their abuse, or who will believe the truth they speak.
A contest of truthfulness
Chrissie Foster, the mother of two daughters who were abused by a priest serial abuser, said outside the Supreme Court that in child sexual abuse cases, the act of abuse is always secretive. There is an imbalance of power, and trust is always abused. The abused child – and later the adult – knows implicitly that if the matter goes to court, it will always come down to the word of the complainant against the word of the abuser. That is the nature of child sexual abuse.
In the Pell appeal, two justices noted that with the legal strategy devised by his lawyers, the cardinal “did not have to prove anything at the trial. Rather, at all stages of the trial the burden of proof rested with the prosecution”. It was the prosecution who had to “prove that the offending was not impossible”, and “prove beyond reasonable doubt that the particular sexual acts took place”. There was “no onus whatsoever upon Cardinal Pell to prove impossibility… [or] that it was impossible for the offending to have occurred”.
As is his right, Cardinal Pell did not have to give any verbal evidence in court. He did not have to enter the witness box and allow the prosecution to cross-examine him. When arraigned, he pleaded ‘not guilty to all charges’ and outside the court strongly denied the complainant’s allegations.
In essence, the prosecution’s case rested on the truthfulness of the complainant. The task of the defendant’s legal team was to test the complainant’s veracity and demonstrate that he was not a truthful witness.
Trust was back in play. The complainant now had to trust the Victorian civil legal system: the police investigation, the rules of evidence, the jury system, the impartiality of the judge, and the checks and balances in place to ensure a fair trial. In short, he had to trust ‘due process’, which includes the defendant’s right to appeal his conviction, even as far as the High Court if it is a matter of law.
To his credit, the complainant was prepared to place his trust in the Victorian justice system. He appreciated that the criminal process had afforded Cardinal Pell “every opportunity to challenge the charges and to be heard” and was glad that the cardinal had “the best legal representation money can buy.” He made it very clear that he was “not on a mission to do anybody any harm”, and though his faith had taken a battering, it was still a part of his life and the lives of his loved ones.
Why tell the truth
The truthful witness said he never sought notoriety or compensation. On the contrary, for the sake of his family, he had asked for total privacy. He was not an advocate or a champion for the cause of other abuse survivors, though glad that there are advocates.
He said he spoke the truth because he felt he “should say what I saw and what happened to me…. and I wanted at least some good to come of it”. He also wanted to acknowledge his friend and his deep respect to him and his family, and to acknowledge the courage of other abused persons who had reported to the police. He complimented the judge in the trial for his “compassionate, balanced, and fair sentencing”.
The truthful witness said his journey was not easy, especially as his allegations were against a high-profile figure, but he did not want to be defined by the abuse he suffered or the case as it has evolved, and may yet continue. He want to be identified as a father and the carer and protector of his own children.
Cardinal Pell should be very thankful that he was tried under the civil legal system of the State of Victoria, which provides full access to unparalleled due process with fairness, justice and, above all, the appearance of justice. Like the truthful complainant he should be grateful for a legal system that everyone can believe in, where everyone is equal before the law, and where no one is above the law.
Cardinal Pell should likewise be thankful that he was not tried under the legal system of his own Church which, in 2011, rendered terrible justice to his Episcopal colleague, Bishop William Morris of Toowoomba. Morris was forcefully dismissed from his diocese by ecclesiastical legal processes that he justly claimed had “serious shortcomings …, were based on actual errors of fact and misinformation”, and had denied him “natural justice”. Through lack of due process he was denied access to the apostolic investigator’s report on his ministry, denied access to the evidence against him, not told the names of his accusers, and refused the opportunity to challenge them. The Hon. W J Carter QC and eminent canonist, Rev. Professor Ian Waters concluded that the church legal processes in the case “raised serious questions for the Church and generally” and that there was a denial of ‘procedural fairness and natural justice’ in the sacking. Waters even said that “a forced resignation of a bishop, in the absence of grave cause or illness, is an invalid exercise of authority in the Church.”
More recently, until they saw the writing on the wall, Australia’s bishops did not want the State of Victoria to impose on their ministers any mandatory criminal reporting of child sexual abuse, and currently, they do not want the exemption of the seal of sacramental confession removed from mandatory reporting.
Yesterday the earth moved, and our nation’s justice system moved one step closer to ensuring that its weakest members can feel safer, with a surer claim to justice through speaking the truth. One can only hope that at the upcoming Plenary Council in 2020/21 the Catholic Church will take a similar step to make its legal system more just, open, and fairer.
Peter Wilkinson President