Cardinal Pell and the Victorian Criminal Justice System
Cardinal George Pell has been acquitted of all charges of child sexual abuse by Australia’s highest court – the High Court of Australia. In criminal cases, they usually sit only a bench of five judges. In Pell’s case, the full bench of seven sat. They knew the world was watching. They often write separate opinions. But in the case of Cardinal Pell they all put their name to one judgment. They unanimously upheld his appeal and in almost record time.
At the appeal, the Director of Public Prosecutions (DPP) for the State of Victoria where Pell was charged appeared in person. She submitted to the court that if the judges were minded to uphold the appeal, they should at least refer the matter back to the Victorian state court for final determination. All seven High Court judges described that submission with one word: ‘specious’. This highlights why the Pell trial needs some background legal context to be readily understood by readers who have not been closely following parliamentary inquiries, court cases and royal commissions in Victoria.
Readers need to understand that all is not well with the system of criminal justice in Victoria. Cardinal Pell has been a major casualty in this clash and decline of institutions. The unsuspecting complainant who brought the case against him has had to suffer untold additional trauma because of the shortcomings of the Victoria Police and the office of Public Prosecutions.
Some background is needed. In Victoria, there is a long running royal commission investigating how the Victoria Police came to enlist a defence barrister as a human source to inform on her own clients. In the area of criminal justice, the abuse of process does not get much worse. It’s estimated that this gross abuse by the Victoria police brings into question about 1300 convictions, including some of the most awful criminals in the state. One of the key persons with involvement in this perverse police operation was Graham Ashton who is now the Victorian Police Commissioner.
The Victoria Police went to great lengths to disguise this operation. In an earlier case in the High Court of Australia, Commissioner Ashton suggested that the defence barrister had been signed up as a human source only in 2005, and that this extraordinary step had been taken to counter the emergency of dealing with gang warfare killings on the streets of Melbourne. However, other evidence submitted to the Royal Commission revealed that, in fact, she had been signed up as a police informer long before that. At the royal commission, the DPP rightly submitted: ‘The Chief Commissioner made no attempt to correct the record of facts before the High Court so as to make clear to the Court that (the human source) had, in fact, been formally registered prior to 2005; even though the fact of that earlier registration would have contradicted the Chief Commissioner’s submission in that Court that (she) had become a registered police informer only because of ‘assurances’ made to her in 2002 and 2003.’
When the media got onto this, they reported: ‘Victoria’s Director of Public Prosecutions has accused senior police, including Chief Commissioner Graham Ashton, of misleading the High Court and the Supreme Court of Victoria about the full history of its relationship with (the) barrister-turned-informer’. Curiously the DPP then issued a press release saying: ‘At no time did I accuse senior police, including Chief Commissioner Graham Ashton, of misleading the High Court and Supreme Court. Both myself and the Office of Public Prosecutions continue to enjoy a strong and close working relationship with Victoria Police.’ This demonstrates what a complex web there is in Victoria between the police and the DPP.
It’s important that readers also appreciate that when George Pell became Archbishop of Melbourne in 1996, he took immediate steps to set up the ‘Melbourne Response’ with a series of expert panels to deal with issues of child sexual abuse in the church. Between 1996 and 2012, the church and the Victoria police worked closely together on protocols dealing with this vexed issue. The church’s Commissioner, the late Peter O’Callaghan QC, worked closely with high ranking state and police officials to ensure that the Melbourne Response complied with all state requirements. In April 2012, the Victorian Parliament set up a parliamentary inquiry into the handling of child abuse by religious and other non-government organisations. It found that ‘there was no indication at any time before April 2012 Victoria Police told the Catholic Archdiocese of Melbourne that it had any concerns about the Melbourne response’. In October 2012, Mr Ashton appeared before the committee and expressed serious concerns about the Church’s mode of dealing with abuse allegations. He was less than honest. The parliamentary committee reported: ‘It is clear that Victoria Police paid inadequate attention to the fundamental problems of the Melbourne Response arrangements until relatively recently in April 2012 and that, when they did become the subject of public attention, Victoria Police representatives endeavoured quite unfairly to distance the organisation from them.’
From then on, the Victoria Police set out to get Pell, and they did. Some Australians, including many victims of child sexual abuse, revile George Pell. Others hold him in high esteem. Last week’s High Court decision is unlikely to change personal views of the man, but this judgment concerns the administration of the criminal justice system in Victoria as it impacts on everyone, both accused and victims, who deserve justice according to law.
The Pell saga has now run for over four years, ever since the Victoria Police commenced an operation on Christmas Eve 2015 seeking evidence of any wrongdoing by Pell around his cathedral during the years 1996-2001 when he was Archbishop of Melbourne. This extraordinary trawling exercise turned up only one complainant whose allegations were taken all the way to trial. The complainant gave evidence that he and his now deceased companion were sexually assaulted by Pell in the priests’ sacristy at the cathedral immediately after solemn Sunday Mass in St Patrick’s Cathedral in late 1996. He also gave evidence that Pell assaulted him in the sacristy corridor after another Mass a couple of months later. These are the five charges that the High Court threw out this week. Thus, the anger and relief at the decision.
The High Court has spoken definitively, unanimously and with one voice. The seven Justices have agreed that in relation to all five charges, ‘there is a significant possibility that an innocent person has been convicted’. The court ordered that Pell’s ‘convictions be quashed and judgments of acquittal be entered in their place’. Pell is now home in Sydney having celebrated Easter at the seminary. The complainant, having undergone extensive periods of stress, is left to get on with his life as best he can, wondering what was the point of this protracted legal trauma. He is the hapless victim in this showdown between institutions.
The court accepted that the jury had assessed the complainant’s evidence ‘as thoroughly credible and reliable’. In the Victorian Court of Appeal, that step was enough for two of the judges to uphold the convictions. But the dissenting judge, Mark Weinberg, Australia’s most experienced criminal appeal court judge, thought that was only the first step of a court’s inquiry, and not the last. All seven High Court judges agreed. The court needed to examine the record of all the evidence in the case ‘to see whether, notwithstanding that assessment, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt’. The court unanimously decided that any jury acting rationally must have had a reasonable doubt.
In addition to the complainant, there were many other witnesses called by the prosecution in Pell’s case. They included 23 witnesses ‘who were involved in the conduct of solemn Mass at the Cathedral or who were members of the choir in 1996 and/or 1997’. Many of these witnesses were also thoroughly credible and reliable, though their reliability faltered at times given that they were trying to recall what they would have been doing after Mass in St Patrick’s Cathedral on a particular Sunday 22 years before. The honesty of these witnesses was not questioned by the prosecution.
The High Court found that many of these witnesses had given consistent evidence that placed Pell on the steps of the Cathedral for at least 10 minutes after Mass on 15 and 22 December 1996, the only possible dates when the first four offences could have been committed. The prosecution ‘conceded that the offences alleged in the first incident could not have been committed if, following Mass, (Pell) had stood on the Cathedral steps greeting congregants for ten minutes.’
The court also found that there was unquestioned evidence by honest witnesses that placed Pell in company with his Master of Ceremonies when he returned to the priests’ sacristy to disrobe. Furthermore, there was abundant evidence of ‘continuous traffic into and out of the priests’ sacristy for ten to 15 minutes’ after the altar servers returned to the sacristy at the end of the procession at the conclusion of Mass. There was no 5-6 minute hiatus for the offences to occur with Pell, the complainant and his companion in the sacristy alone, together and uninterrupted, straight after Mass.
The tragedy of this case for everyone, and especially for the complainant, is that a police investigation is expected to identify problems with a complainant’s account. In this case it did not.
When interviewed in Rome back in October 2016 by Victorian police officers who were being supervised by their Deputy Commissioner Shane Patton, Pell told the police that the sacristy was ‘a hive of activity’ after Mass with altar servers, sacristan, assistant sacristan, money collectors and any concelebrating priests coming and going. He said he would have been accompanied at all relevant times by his MC Charles Portelli. Incidentally, Patton has now put his hat in the ring as Ashton’s successor when the Commissioner position becomes vacant later this year.
The police returned to Australia and interviewed Portelli and the sacristan Max Potter who basically confirmed all that Pell had said about the ‘hive of activity’. But the police did not bother to interview one single altar server. They made no inquiries about money collectors or concelebrating priests. They proceeded to charge Pell – with great media fanfare. They went ahead building a case on the basis that the priests’ sacristy might have been left vacant and open on this one particular day – contrary to all church routine and ritual. Yet the High Court rightly observed that ‘adherence to ritual and compliance with established liturgical practice is a defining feature of religious observance.’
The farce of the case was the belated attempt by the Director of Public Prosecutions to create the space for the necessary 5-6 minute hiatus. At trial, the prosecutor had suggested, contrary to the evidence, that the altar servers might have adjourned to another room, for no reason, for 5-6 minutes before being called back to the priests’ sacristy to resume their duties at the end of Mass. He had to withdraw that suggestion before the jury. In the High Court, the DPP submitted once again that the servers might have adjourned to another room or to the sanctuary to assist the sacristan. The High Court dealt with this suggestion kindly but firmly: ‘The submission comes close to repeating the submission which the prosecutor withdrew at the trial. There was no evidence that the altar servers went to their room to disrobe prior to returning to the sanctuary in order to assist in clearing away the sacred vessels and other objects.’
In the end, there was just not the evidence to support the complainant’s account. There never was. For the good of all victims and complainants, the Victorian Police and DPP need to review their procedures in cases like this. Those who neither canonise nor despise George Pell should be grateful that the High Court has finally delivered justice according to law in this protracted Victorian saga.
We all need to spare a thought for the complainant in these proceedings. There can be no doubt that he has suffered serious trauma in his life. I am sorry for the added trauma he has now suffered through the processes of the law. Much of it was avoidable. These processes have also re-traumatised many other people who have experienced institutional child sexual abuse and who have placed hope in our legal system. Their situation would have been assisted if the police in this case had undertaken competent, objective policing. The DPP could have helped by complying with its own published policy that it ‘not put forward theories that are not supported by evidence’. These failures in due process caused needless pain and avoidable harm to the complainant, Cardinal Pell and the community. Meanwhile, the Victorian criminal justice system cries out for reform.
Frank Brennan, Rector of Newman College at the University of Melbourne, is a Jesuit priest and lawyer who attended some of the Pell court proceedings.