Hail & Farewell

Aug 27, 2019

To Australian Catholics the date 3 December is a holiday. In the Calendar of Saints this date marks the feast of Australia’s ‘patron saint’, sixteenth century Spanish Jesuit and companion of St Ignatius Loyola, founder of the Society of Jesus, colloquially Jesuits, Francis Xavier.

Jesuit-educated Tim Fischer AC turned-up in Court-Room 3:4 of the County Court of Victoria at Melbourne on 3 December 2018. The former Deputy Prime Minister of Australia and sometime Ambassador to The Holy See aka Vatican State, once a conscript to the War in Vietnam, that’s Agent Orange-contaminated Vietnam whence soldiers were returned with compromised immune – systems, was there to attend the last addresses by Counsel before the trial judge charged the Jury in the matter of Pell.

‘Last treatment this morning,’ said Big Tim, continuing that not even to an interested onetime nurse was he ‘going to co-operate’ with talk about his treatment at Peter MacCallum Institute, and his prognosis.

I had plumped beside the former Deputy PM in the only vacant seat in the house. My own habitual seat had been usurped by a newcomer to these proceedings who was unfamiliar with the way writers had disposed themselves about the room for convenience of handling laptops or notebooks, or real notebooks made of paper like my own which, along with a walking-stick, required elbow-space. Indifferent, too, to the implied courtesies of prior-occupation. With the end of the trial in view the size of the public gallery had ballooned.

‘Hello Tim,’ I said, pleased as people always were, to see him. ‘Rosie O’Grady.’ I had got into the habit of vocal introduction, while tutoring The Blind ( a term they prefer to political correctness) ‘You telephoned me in 1996.’

‘I know,’ he said, in a welcoming sort of a way.

We chatted a bit about this and that in a country-style of waiting for the main act, and when a member of Court staff announced that proceedings would soon resume Tim said: ‘That was ten minutes wasted.’ In a country-style of way I never take offence, and, indeed, it turned-out to be so, not directed at me. He began to quizz me about what I knew of these Pell trials. He’d been told that 80% of observers were predicting acquittal from this Jury, following the ‘hung’ Jury of the first trial. Or, he’d been told, another hung Jury. I said that I couldn’t say, because nobody but the Judge and Jury had witnessed the Complainant give evidence. So there’d been no opportunity, for those of us excluded from that hearing, to gauge the impact of that evidence upon the Jury. When, eight days later, the Jury delivered a verdict of 5 convictions, Tim was not in the audience. He had gone home. The question which interested him that week was whether, in the event of a second ‘hung’ Jury, the DPP would proceed to the ‘Swimmers’ ‘ trial- the Ballarat charges against a younger Pell. Of course I could not say. In the event the ‘Swimmers’ Trial was abandoned in 2019, but not before Pell, bailed, had been to Sydney for knee-surgery returning in February for his Plea (in Mitigation of Penalty) Hearing, and March sentencing-date.

And what, Tim Fischer asked, I suspected not of me alone, is the meaning of ‘reasonable doubt? Good Question. I hoped, yesterday, that he did not spend his last day of life reading Justice Mark Weinberg’s answer to it. My own view is that this is a reprehensible ground for appeal, against conviction, and that the law which enables it ought to be repealed, but this was not the time & place for that conversation. I mentioned that Riverview, one of two Sydney Jesuit schools, had recently dedicated an end-of-year Assembly to Rainbow reform, human rights evolution inside Church schools. I supposed he was not entirely thrilled about that. He was not, he allowed, but his wife would be. I said I was pleased to see that the Holy See no longer rejected diplomatic credentials on gender grounds. Many years ago I had written a piece for Nation-Review about the Vatican’s refusal to accredit German diplomat Frau Elisabeth Muller, on the grounds she was female. Babbling along in that direction it occurred to me that the Big Man might, even now, be on a mission. Was he, I wondered aloud, creating a personal report to the Holy See? I had heard of others who were doing just that. With a little, sweet smile-in-reply, the former Ambassador asked:’How do you know about that?’

One of the intelligent questions fired at me that day by ‘Two-Minute Tim’ was whether or not the trial judge, South Australian – educated Peter Kidd, ‘has anything new to say to the Jury.’ Isn’t it always a pleasure to hear someone ask an intelligent question? I was able to say that Chief Judge Kidd, having canvassed the issue with Counsel for both ‘sides’ had announced that, this time, he would not include in his charge to the Jury a reference at the outset to the ‘majority verdict’ option. He’d decided this, he told the Court, because he’d ‘so often seen their faces (the faces of Jury members) change as they grasped, and clung-to that ‘way-out’. So he would only put that to them, he now said, if it becomes necessary. Every effort was being made to avert another ‘hung’ verdict.

It was a pleasure chatting with the Big Man who asked smart questions. It was a pleasure to experience his generosity of spirit.

Next morning the worst-kept secret around the Courts’ precinct was the identity of ‘Lawyer X’ and the Police malfeasance just-disclosed in a High Court decision disallowing continued protection of a witness caught-up in it. This rather stole the thunder of Counsels’ final addresses winding-up the Pell trial.

‘He’s making a few slips’ said Big Tim during a mid-morning break. Towards lunchtime I noticed that the Jury were still attentive to Counsel but not, it seemed to me, fully alert. The detail had begun to bedevil, perhaps.

The Court rose to resume next morning for Defence Counsel to conclude his final address and the Chief Judge to ‘charge’ the Jury, which would then retire to deliberate. Tim Fischer was homeward-bound. You must get tired of shaking so many hands,’ I said. He demurred, but I put a light kiss on my fingertips and touched my hand to the heart-side of his jacket. ‘Safe Home’ I said. ‘Happy New Year.’

Chief Judge Peter Kidd charged the Jury so competently and thoroughly that one could not see how even the best lawyers could find a loophole through which to squeeze an Appeal-point. In the event, following multiple Convictions, the Appellant targetted the Jury. The verdict was unsafe and unsatisfactory in legal terms: it was ‘unreasonable’.

On 21 August 2019 the Appeal argued on 5 & 6 June was dismissed by majority in the Court of Appeal. Next day, Tim Fischer passed from his life – and ours. Tim Fischer and I were born a mere 13 days apart, in May 1946, nine months after the end of World War II. Nine months after the start of atomic warfare. We were of an age, as people used to say, like Robert Richter QC, three months our senior. We shared common remembrances. Unlike Richter we Aussie Catholic kids were taught Latin – in prayer and school and in liturgy. But‘ave atque vale’comes from the pagan Latin poetry of a soul in mourning. Hail and farewell to a loved friend, says the poet: Ave atque Vale. Or, as they now say on Australian television, ever since I think it was Bruce McAvaney said it of another loved Aussie Big Man – ‘Cups King’ Catholic trainer Bart Cummings: Vayle!

I think Tim Fischer would have enjoyed that. I do.


Rosemary O’Grady is a lawyer and writer.

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