In 2017, Cardinal George Pell became the highest ranking Catholic Church official to be charged with sex offences as Archbishop of Melbourne (1996–2001). His first trial produced a 10-2 hung jury in favour of acquittal. In the second trial, on 11 December 2018 he was convicted of five charges of sexually assaulting two boys in a sacristy of St. Paul’s Cathedral, Melbourne in 1996 on two separate occasions. On 21 August Victoria’s Court of Appeal upheld the conviction by a split 2-1 decision.
The alleged misconduct by Pell is deeply unsettling, but his conviction is also deeply disquieting. The suspicion persists that the jury was not so much persuaded of Pell’s guilt by a careful evaluation of the evidence, as swayed by the nature of the alleged offence amidst a climate of abhorrence at the systemic coverup by the church (in which Pell seems to have played a significant part) of priests’ predatory behaviour. Allegations of historical sexual assault are among the easiest to make but the hardest to refute. It must be the only category of crime where inconsistencies, gaps and uncertainty are taken as proof that the alleged incidents did occur and failure to recall, or even actual denial by the supposed victim as with the second boy in the Pell case, is taken as proof of the depth of the victim’s trauma.
I write as a non-Christian, non-religious atheist. As someone who went to two different boarding schools between the ages of 5 and 18, run by Italian and Australian Jesuits, I have some insights into the devotion with which most priests dedicate their lives to the selfless service of humanity, amidst the few who sometimes fall off the moral pedestal.
The case is that in 1996 Pell abused two choristers. One complained to the police in 2015. As well as the very real danger of false memories, many steps in the sequence of events as described were individually improbable, albeit not impossible. Their cumulative ‘compounding improbability’ stretches credulity beyond reasonable doubt. The allegation that a newly-installed archbishop, interacting with his flock in a crowded public congregation, would wander off into the sacristy and sexually attack two boys whom he had not previously met and not groomed beforehand, despite open doorways and in an extremely tight timeframe, is inherently implausible.
Abusing two boys simultaneously greatly increased the risk: if one complained, the other could corroborate. Either could have walked out of the room while the other was being attacked. The second boy died in 2014 without ever having made a complaint, denying to his mother that he had ever been interfered with. The heavy layers of priestly vestments worn by Pell for the mass would have made it difficult to commit the alleged acts. There were credible witnesses whose unchallenged testimony contradicted key parts of the complainant’s statements that contained several inconsistencies and discrepancies. The assistant priest and sacristan testified that that they accompanied Pell after mass, making it impossible for him to have been alone in the sacristy as described by the complainant.
The two majority judges, who lack a criminal law background, seemed to adopt the standard that Pell had to prove his innocence by establishing beyond any doubt that the alleged offences were impossible. The dissenting judge Mark Weinberg, among the country’s leading criminal jurists and a former Commonwealth director of public prosecutions, used the orthodox standard of proving guilt beyond reasonable doubt. To conclude that the threshold, that has been the bedrock standard of Anglo-Saxon criminal justice, was met in the Pell case, is to imply that Justice Weinberg is unreasonable. In fact his 201-page dissenting note – two-thirds the total judgment – is meticulously argued and compelling.
Weinberg noted that ‘the prosecution relied entirely upon the evidence of the complainant to establish guilt, and nothing more … Indeed, there was no supporting evidence of any kind at all’ (paragraph 925). The complainant’s account of one of the alleged sexual assaults took ‘brazenness to new heights’ (1095); on occasions he seemed to be clutching at straws in efforts to overcome or minimise inconsistencies with his own earlier statements and the objective evidence; and ‘there was a significant body of cogent evidence casting serious doubt upon the complainant’s account, both as to credibility and reliability’ (1058). The allegation of the first incident was ‘implausible’ and on the second, ‘even that is an understatement’ (1054). The complainant ‘had frequently adjusted, added to, and indeed embellished the account that he originally gave to police in 2015’ (915).
No wonder a retired Supreme Court judge believes ‘the case shrieks reasonable doubt’. The uneasy suspicion that Pell has been made an example of begins from the realisation that before any complaints had been filed against Pell, Victorian police commenced investigations and advertised in the newspapers for any information about inappropriate behaviour with minors. It has the potential to become another historical case of a miscarriage of justice. One Catholic paper has already drawn parallels with the celebrated Alfred Dreyfus case in France in the 19th century.
We hope that the Australian criminal justice system gets it right in almost all cases. But no legal system is infallible and presumably no one would be silly enough to claim that Australia’s criminal justice system is foolproof against mistakes. In the Witness K and Bernard Collaery case, regardless of the eventual legal outcome, I will remain convinced that the guilty ones have not even been put on trial. In the Cardinal Pell case, if his appeal is heard by the High Court and he is acquitted, many will lose faith in the ability of the legal system to deliver justice on historical sexual abuses by the clergy. Equally, however, if the High Court declines leave to appeal as Jack Waterford recommends, or takes it up and upholds the conviction, sufficient doubt will remain to turn it into a global cause célèbre. George Weigel, Distinguished Senior Fellow at the Ethics and Public Policy Center in Washington DC and one of America’s leading public intellectuals, holds that the Australian legal system itself is on trial.
Already its most consequential lesson is that any one of us can be convicted on the uncorroborated testimony of a single complainant recalling events as a child, decades after they are alleged to have happened, no matter how implausible the alleged offence and how improbable the concatenation of circumstantial evidence. We all have fathers, brothers and sons. Inverting the fundamental canon of criminal justice into ‘guilty unless proven innocent’ could destroy any of our families. There but for the grace of God indeed.