RAMESH THAKUR. Cardinal Pell’s guilty verdict is deeply troubling

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.


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24 Responses to RAMESH THAKUR. Cardinal Pell’s guilty verdict is deeply troubling

  1. Ken Birch says:

    Now I think I understand what was at the heart of Ramesh’s original comments. I got distracted by his later comments that seemed to be arguing that we could count the numbers of jurors and judges for or against the conviction to arrive at a numerical indicator of proof beyond reasonable doubt. Looking back at his original post, I now think the final paragraph most clearly expresses his disquiet with the conviction:

    ‘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.’

    This is a complaint about the rules of evidence in criminal cases. Decades ago judges were required to give very specific warnings about uncorroborated evidence, about complaints made long after the event, etc. Those rules have changed, and not before time. Police now investigate and prosecute allegations of sexual assault against children because they know it is possible to get convictions. The world has changed.

    Defendants still get plenty of opportunity to discredit the evidence of their accusers. In Pell’s case I think the complainant was cross examined over 2 days by Richter. But 12 ordinary people got to decide on the complainant’s credibility. They weighed issues like the lack of corroboration. And then 2 of the 3 appeal judges decided that the jury’s decision was reasonable. No one reversed the onus of proof, as Ramesh claims. The jury believed Pell to be guilty beyond reasonable doubt. The Court of Appeal agreed that that was a reasonable decision to make based on all the evidence.

    I hope Ramesh will eventually accept that a system of justice that takes allegations of abuse of children seriously is far preferable to what we had before. The alternative is to go back to the situation where it is extremely difficult to prosecute cases where there is almost never going to be corroborated evidence, where victims report the assaults decades after they happened, etc.

  2. Ed Cory says:

    Ah Ramesh, the aphorism ‘great minds think alike’ jumps out at me – I thought to reference the Chamberlain case but chose not to. Perhaps more relevant and closer to home, the fallout from the ‘Lawyer X’ fiasco is only starting. Yes, miscarriages of justice occur, but on my observation they require new evidence of a compelling nature to reverse a conviction. None has (so far) appeared in the Pell case, but that may change. Yes, there is a pattern in these cases, paedophiles are convicted largely/often on the evidence of an unsupported victim – ie no witnesses to the act. Is your argument that all these convictions are unsound?

    Lalita, I have no problem with Justice Weinberg, he heard all the evidence, as did his two colleagues. They supported the verdict 2-1.

    Sue, I have written elsewhere on this blog that Pell failing to take the stand, look the jury in the eye, and say ‘I didn’t do it’ was probably a strategic error that cost him his acquittal. He would have been mauled on the stand by the prosecution, but having served as a juror on a paedophilia case, I know the impact such a statement can have.

    • Ed Cory says:

      A correction is required to my last post.

      For ‘acquittal’ read ” ‘guilty’ verdict”. It would only take two jurors to find that such a personal denial raised ‘reasonable doubt’ in their minds, and the jury would be hung, as was the first.

      And this will be my last post here.

  3. Ramesh Thakur says:

    One final comment and then I am done with this topic.
    People keep coming back to the issue of the sanctity of a jury verdict. The idea that jurors heard all the evidence and listened to all the witnesses, we did not, and therefore we are not entitled to ask if the verdict was correct, is very strange. As I said in my original post, we hope and I believe the Australian system does get right in almost all cases. I am naturally sceptical that any system gets it right in every single case. All systems are operated by human beings and are vulnerable to only too human mistakes.
    Firstly, the jurors do not tell us the basis for their decision but the appeal court’s judgment is publicly available here: https://www.supremecourt.vic.gov.au/case-summaries/court-of-appeal-proceedings/george-pell-v-the-queen. The three judges do provide their reasoning. For anyone interested in the case, the judgment is worth studying carefully. Others might find the two majority judges’ decision and reasoning totally convincing. Good for them. I find Justice Weinberg’s doubts compelling. To question the guilty verdict, we are not required to be convinced of Pell’s innocence, only to have reasonable doubt about his guilt. I do.
    Secondly, historically many juries in the US have convicted blacks of all sorts of crimes in the past. It remains extraordinarily difficult to get juries to convict white police officers of unlawfully killing blacks. Despite not being in the jurors’ position with respect to the evidence produced and testimonies offered, I am troubled by this pattern. By the logic of some posting on the Pell case, I have no right to be.
    Finally, we do not need to look overseas. We have our own Lindy Chamberlain case as a cautionary corrective. She was lawfully convicted by a jury and the High Court rejected the appeal against her conviction.
    In other words miscarriages of justice do occur. For Wikipedia’s list of miscarriages of justice from 31 countries around the world, see: https://en.wikipedia.org/wiki/List_of_miscarriage_of_justice_cases. The list includes 12 Australian cases.
    I am still troubled by the Pell verdict and envy those who are not. They are as entitled to their firm conclusion as I am to my doubts. My original post explained why.

  4. Sue Edmondson says:

    George Pell did not speak in his defence – merely to disparage the accuser publicly when asked to return to Australia . He and his lawyers did not allow him to be cross-examined, as I recall.

  5. Lalita Mathias says:

    It is nonsense for Ed Cory to claim that Ramesh Thakur should not have written what he did because he “didn’t hear all the evidence”. Justice Mark Weinberg who dissented did hear and read all the evidence and believed that Cardinal Pell should not have been found guilty beyond reasonable doubt. Professor Thakur, having read the majority and minority judgments supports the decision of Justice Weinberg. So if Ed Cory has a problem with Ramesh Thakur then he also has a problem with Justice Weinberg.

  6. Ed Cory says:

    Stephen Allen makes an important point about power. The powerful, and those attached to their coattails, assume it is all about them, and that they are entitled to special treatment.

    The irony of Pell and his supporters, who sought to enforce a book of rules without regard to the human toll, now subject in a different environment to another book of rules, would be amusing in other circumstances.

    Instead, they bell the cat. We should be thankful that they so willingly expose the hypocrisy and self-centredness of their kind. In this case, the shallow thinking, flawed logic, and lack of concern for the oppressed and wounded allows an easy judgement on the case the writer makes. If any doubt remains, one only has to reflect on Jesus’ words and actions – where his sympathies lay, and where he directed our attention. Correct me if I have got it wrong, but I thought it was to the poor, the wounded, the oppressed.

    In response to R N England, if Pell was to be convicted of being loathsome, there would never have been a need for a second trial.

  7. Frank Golding says:

    1. Your original take: “His first trial produced a 10-2 hung jury in favour of acquittal.” Your gracious concession: “Fair comment that we do not know definitively what the vote was. All we have is speculation in the media.”
    2. You contribute to this media speculation about ‘public opinion’ as if that is relevant to Pell’s guilt or innocence and the process by which his case was adjudicated: “The suspicion persists that the jury was not so much persuaded of Pell’s guilt by a careful evaluation of the evidence…” You do not document the sources of this suspicion nor do you produce anything of substance notwithstanding that line of ‘argument’ was repeatedly and carefully denounced as having no bearing on this case by the trial judge, as shown in his detailed sentencing report. And reiterated in the majority decision at appeal.
    3. You continue to carry an ill-informed expectation that there should be corroboration of Pell’s sexual abuse when it is abundantly clear in the findings of the Royal Commission and elsewhere that child sexual abuse is usually secretive and hardly ever witnessed.
    4. You continue the commentary on your boarding school experience but it continues to bear zero relevance to the Pell case.
    5. You know of tragic cases on both sides of the child sexual abuse situation, and your compassion extends to both; but this hardly helps your argument about the Pell case.
    6. So the bottom line is that without access to the evidence provided to the court you continue to have a suspicion that a well-instructed and carefully attentive jury that heard the arguments on both sides presented by highly articulate and well-paid lawyers were swayed by irrelevant considerations—and so too were two out of three highly qualified and experienced appeal judges.
    7. You “envy people their black and white certainty” but you don’t surrender your judgment to anyone else. That’s why we have a judicial system: the judgement is theirs to make.

  8. Atheism is wasted on you, Ramesh.

  9. Ramesh Thakur says:

    I am impressed that people do believe that legal verdicts are infallible and must never be questioned. I envy people their black and white certainty but don’t surrender my judgment to anyone else. The High Court decision will end the legal process in this case. I seriously doubt it will end the public debate in Australia or globally, regardless of what the decision is – any more than the public debate on Judge Brett Kavanaugh was settled with his confirmation by the Senate as a US Supreme Court Justice. There are clearly many who feel deep satisfaction at Pell’s conviction. Should the High Court acquit, I’d be absolutely staggered if every one of them accepted the outcome with placid equanimity. This dilemma is inherent in the nature of these heinous cases.
    This because we have:
    1. One complainant who provided compelling testimony about attacks alleged to have taken place 22 years ago when he was a child.
    2. One defendant who vehemently denied the charges.
    3. No independent witness or corroborating evidence.
    4. One jury split and so no verdict was recorded. Fair comment that we do not know definitively what the vote was. All we have is speculation in the media.
    5. The second jury voted 12-0 to convict.
    6. The Appeal Court judges voted 2-1 to confirm the conviction.
    7. 1-6 = Beyond reasonable doubt?
    That is the succinct summary and question.
    Those referencing Andrew Bolt might want to look up the meaning and examples of ad hominem reasoning. Your comment carries the same logical weight as ‘S/he will be a welcome guest on ABC’s Q&A’.
    The relevance of my boarding school? You need to have lived through that experience to realise how much children are aware of what goes on around them. To put it another way: after everything we have learned about the sexual predations of priests, would you trust your child in their care in a boarding school?
    I have known, or known of, victims of sexual abuse who could not cope with the guilt and were ruined and some committed suicide. I have known, or known of, men who were falsely or wrongly accused and could not cope with the stigma attached today to sexual predators and some took the tragic way out of their unbearable shame. Whole families are destroyed in both cases. My compassion extends to both groups. We must treat all complaints seriously and sympathetically. But also, especially in a climate of high passions on any issue, be alert to the possibility of miscarriage of justice. The very fact that most people want to hire the best lawyers proves we don’t believe in any objective workings of the criminal justice system that miraculously delivers the just outcome. Ditto with the bitter partisan battles over appointments to the US Supreme Court.

    • Ken Birch says:

      I’m beginning to think that some people commenting on Pell v The Queen have misunderstood the central question answered by the Court of Appeal. It was NOT ‘is Pell guilty of the sexual assault charges?’ The question to be determined was whether the guilty verdicts were ‘unreasonable and cannot be supported having regard to the evidence’ (the words used in sec 276 of the Criminal Procedure Act 2009). This is also referred to as the ‘unreasonableness test’. The majority, the Chief Justice and the President of the CA, referred to a number of earlier High Court cases, including this passage from Libke v The Queen:

      ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.’

      The Chief Justice and the President decided that it was reasonable for the jury to find Pell guilty beyond reasonable doubt. Note that that is NOT the same as deciding Pell was guilty, or that they entirely agreed with the jury, only that the jury was not unreasonable, that it was open to the jury to convict, that there was nothing in Pell’s defence that must have made them have reasonable doubt about his guilt.

    • Stephen Allen says:

      “No decision was recorded”, hang about the author supposedly with authority stated that it was 10-2 acquittal. So who is deserved of suspicion?

      And if the HC acquits without unanimity, then following the authors reasoning, suspicion is warranted.

    • Peter Johnstone says:

      Ramesh, you now say: “Fair comment that we do not know definitively what the vote was. All we have is speculation in the media.” Yet an opening sentence of your paper states: “His first trial produced a 10-2 hung jury in favour of acquittal”, an unqualified assertion for which you now offer no explanation nor apology. Your admission of “fair comment” presumably refers to my observation below where I also observed that your piece “evidences some bias and very loose argument.” Your admission that you cannot evidence your unqualified statement and your failure to apologise or withdraw serves to reinforce my further observation about “bias and very loose argument.” I hope that this is not indicative of your academic practices; your paper clearly needs peer review such as that offered in most of the comments below.

  10. STEPHEN ALLEN says:

    Thakur betrays the establishment bias of the corporate media. Not once did Thakur or the establishment media come to the aid of other pedophiles who were convicted under similar circumstances. Was the jury not acting “suspiciously” in those cases? Why was Thakur silent in those instances? Ironically, Thakur, who does not possess criminal law qualifications somehow argues a criminal lawyers case by claiming the absence of criminal law qualifications.

    Moreover, which is the more serious matter: the widespread occurrence of pedophilia within the Catholic church (the RC found that 50% of institutionalized pedophilia occurred within the church, 60% of which occurred in the Catholic Church), the origins of that occurrence (which the RC did not investigate) and the Catholic church’s systemic policy of covering up that occurrence, or a claim of suspicion regarding the conviction of one such pedophile. Is this what responsibility to protect (the doing of Thakur) is really about? Protecting those who ultimately must be held to account for the crimes of those under their authority, which is clearly the the case of US of A, UK, Australia and Israel in relation to Syria, Iraq, Libya?

  11. Frank Golding says:

    Another re-hashing of the unsubstantiated tripe penned by Quadrant, Andrew Bolt and the Murdoch cheer-squad, replete with the spurious 10-2 jury story and reference to Pell’s American long-term soulmate who from far away Washington DC can pronounce that, as a result of Pell being found guilty, Victoria is “a place where no one is safe, citizen or visitor”. At least Ramesh spared us the mistaken identity fantasy that Melbourne Archbishop Comensoli offered.
    Being “a non-Christian, non-religious atheist who went to two different boarding schools between the ages of 5 and 18, run by Italian and Australian Jesuits”, might give Ramesh some insights into priests’ selfless devotion (“amidst the few who sometimes fall off the moral pedestal” – the bad apple theory), but it’s hardly a qualification for careful examination of all the evidence that was presented and assessed by those authorised to do so.

  12. Bob Aikenhead says:

    A thoughtful and carefully considered article. As another firm atheist, and one who has no affinity for the Catholic Church, I also find this case very troubling – for the same reasons that Ramesh clearly outlines.

  13. Mark Buckley says:

    I must agree with Ed, above. I am amazed that a person of such eminence would publicly question the verdict, firstly, and secondly the appeal process, in this case. Justice must be seen to be respected, or the rule of law crumbles away to nothing.
    Notwithstanding your experience of boarding school life, Pell’s guilt or innocence had nothing to do with boarding school, or the propensity of priests or brothers to be kind, or whether Pell’s garments opened sufficiently. You did not hear the evidence, and quite frankly no-one needed to, apart from the jury. Pell was found guilty as a matter of fact, and then he was refused an appeal, as a matter of law.
    The verdict has been given, the appeal has failed, and we must now wait for the final chapter. If the appeal is allowed, then his guilt will be re-assessed, but as of the present time, he is a convicted pedophile.

  14. Sue Caldwell says:

    George Weigel a “leading public intellectual” – oh puleez!
    He is a third rate right-wing propaganda hack who is closely associated with the deeply misogynist outfit opus dei. Furthermore, at the time he gave his full support to the thoroughly disgraced founder of the Legionaries of Christ Marcial Maciel.

  15. Peter Johnstone says:

    Ramesh, your article restates the now familiar objections to Cardinal Pell’s conviction with little regard to the fact that Pell has been convicted by our well-established and accepted system of justice. Not only has Pell been convicted by a jury but that conviction has been upheld confidently by a majority of the Court of Appeal, a majority that comprises very experienced and senior judges whose careful consideration of the case, based on a knowledge of the key testimony that you do not have but are nonetheless happy to dismiss, cannot be lightly dismissed as you attempt to do. Like anyone else, Pell is entitled to pursue every avenue of appeal, but he is at present a convicted criminal to the dismay of many Catholics given his eminent position in the Church, but eminence is not a factor in justice. Your piece evidences some bias and very loose argument but, worse, you launch the piece with a highly questionable unevidenced assertion that “his first trial produced a 10-2 hung jury in favour of acquittal”, a claim that has been earlier traced to Pell supporters. I have been unable to conclusively resolve the facts of the matter but was advised by a good source at the time that the jury in the first trial was hung 10-2 but in favour of conviction! What is the source for your unqualified assertion? If you cannot evidence this claim, it should be withdrawn post-haste.

  16. John O"Callaghan says:

    Andrew Bolt would be proud of this article and im sure he’ll have you on his show very shortly.

  17. Susan Munday says:

    I agree, Ed Cory. It must have been very compelling evidence from the victim and we didn’t hear it.

  18. R. N. England says:

    I too wonder if Pell has been convicted of being loathsome, rather than of the dirty deeds in question.

  19. Garry Everett says:

    There are many opinions being aired about the Pell case. They make for interesting reading, but in the final analysis we must all await on the High Court, should the Court decide to hear the appeal.
    This makes George Weigel’s claim that the Australian legal system is on trial, specious. The High Court is the next step in the system of checks and balances. None of the Courts is on trial for anything, except from some opinion writers. The one consolation is, that after the High Court decision ( if there is one), there can be no further appeals– you can’t keep appealing til you receive the verdict you want — justice will be done according to the tried and true standards and processes.

  20. Ed Cory says:

    Come on Ramesh, you didn’t hear all the evidence so to pontificate in this way is highly misleading and dangerous. You are challenging those who did, and the legal system itself, from a position of ignorance.

    I suggest you would have been better advised to await the decision of the High Court as to whether they give leave to appeal. That will be a better, and more authoritative indicator as to whether there are, or might be, some flaws in the legal outcomes to date. If they do allow leave to appeal, we will then need to wait on what they decide are, or are not, flaws in the guilty verdict and the appeal outcome.

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