Articles of Interest
A question of judgment
The Australian 2/3/2019
Pell’s conviction and fall from high public esteem is a question of judgment
There have been two trials of Cardinal George Pell — in the court of justice to decide if he was guilty of sexual abuse of children, and in the court of public opinion over nearly two decades that saw him accused of indifference, deception and ultimately evil compliance in the monumental sins of the Catholic Church.
The tests in these trials are different. The test in the first trial was whether the evidence showed Pell guilty “beyond reasonable doubt” as a sexual predator who abused his authority to brutally exploit two choirboys. There is no test in the second trial — no judge or jury — just the hardening of opinion towards Pell and then his demonisation as the nation’s senior Catholic during the long and climactic revelations of unforgivable sexual abuse within the church.
The law requires these trials to be separate. Indeed, justice depends upon it. Yet how realistic is this? Chief Judge Peter Kidd told the jury: “You mustn’t in any way be influenced by knowledge you might have of childhood sexual abuse in the Catholic Church or cover-ups of abuse in the Catholic Church.”
It was an entirely proper warning. Yet how can people not be influenced by the cultural cataclysm that saw Pell linked with child sexual abuse? Many people held him responsible as the church’s leader. Many people, correctly appalled by the cover-ups and betrayals within the church, said: “Now Pell is on trial he deserves this, he deserves to be punished.” This was a different and enraged form of justice — the justice of retribution.
In this cathartic moment there are two principles to be remembered. Pell was not on trial for the evils of the church; he was not on trial for the betrayal of young children by priests; he was not on trial for any defects in his own response to child sexual abuse. He could not be on trial for any of these things. He was on trial only for the specific charges he faced and the accusation he was a sexual predator. The question for justice is obvious: Did Pell get a fair trial? The implausibility of the evidence raises serious doubts.
Second, the anger of victims is entirely justified based on their betrayal by priests and bishops. For victims, it is natural to feel justice in this decision. But the historic wrong done to victims cannot be atoned by the doing of another wrong — by convicting Pell if such a conviction carries the enduring stain of a potential miscarriage of justice now and into the future, raising dark questions about our character as a country, our institutions and our legal system.
The test of our system of justice is its capacity to elevate reason before emotion. It is understandable that families of the victims called the Pell verdict “fantastic” and “a great day for victims”. But do we understand that building new wrongs upon old wrongs is no doorway to moral vindication for the victims, despite the temptation offered by retribution towards Pell?
Despite the chief judge’s appropriate warning, is it possible for any jury to be quarantined from the impact of the highly publicised sustained abuses by priests over a generation? This story of abuse horrifies the heart because it constitutes the practice of evil in the declared house of God. It involves the ruthless grooming and exploitation of children, denial by the Catholic hierarchy, the failure of bishops, heartbreaking testimony by victims given to the Royal Commission into Institutional Responses to Child Sexual Abuse, and the commission’s 2017 report finding “the greatest number of alleged perpetrators and abused children were in Catholic institutions”.
In a finding that went to church leadership, the royal commission said complaints about abuse were “ignored and rejected”. It concluded the failure to recognise child sexual abuse as a “crime” was “almost incomprehensible”, only to be explained by recognising the culture of some institutions “prioritised alleged perpetrators and institutional reputation over the safety of children”.
The royal commission heard from 2489 survivors of child sexual abuse by Catholic perpetrators spread across 964 Catholic institutions. The report says: “It was impossible not to share the anger many survivors have felt when we understand they were so deeply betrayed by people they were entitled to trust.” The commission calculated that a shocking 7 per cent of Catholic priests from 1950 to 2010 were alleged perpetrators — that is, alleged criminals purporting to be agents of the Lord.
The sexual abuse issue is global but it has triggered perhaps the worst crisis for the Catholic Church in its Australian history. It is no surprise that Pell, leader of the Australian church, architect of the Melbourne Response designed to address child sexual abuse and previously responsible for reforming the Vatican’s finances, has been the dominant and contentious figure in this saga.
Pell’s lawyer, Robert Richter QC, said his client had “been portrayed in the media and by everyone else as the evil incarnation of the Catholic Church”. That has a touch of exaggeration but the point is obvious. Ask yourself: Is there a prominent figure more denounced and traduced in this country over the past decade than George Pell?
Pell cannot escape responsibility for the failures of the church but the sustained visceral hostility towards Pell transcends institutional accountability. The vile hatred towards him is worse than displayed towards a serial killer. Veteran lawyers said privately they had never seen anything like it in their careers. What does this tell us not just about Pell but about ourselves? The Pell story goes beyond the institutional and cultural failure of the Catholic Church. It is far bigger, more complicated and dangerous.
It is about the poisoning of the culture, the anti-Catholic bias of Victoria Police and its fishing expedition to ensnare Pell, the calculated media assaults on Pell spearheaded by the ABC, the targeting of him by progressives who saw Pell (perhaps Tony Abbott aside) as the leader who most offended their every instinct — as a conservative Catholic, weak on empathy, strong on hierarchy, faithful to traditional doctrine, opposed to all aspects of sexual libertarianism, the tallest of tall poppies defending an order many wanted to pull down and the frequent target of, until now, never substantiated claims about being a sexual predator.
In a sense Pell is a leader but also a victim of his own church. Because the crimes of the church are so great our culture demands a scapegoat. Our media demands a scapegoat. The adversary and polarised nature of contemporary society means a scapegoat will be found. When the moral fault is so great, the pain of survivors so deep and the media quest for investigative retribution so pronounced, the pressures on the legal system approach breaking point.
In his measured response, lawyer and Jesuit priest Frank Brennan said the criminal justice system “is intended to withstand” these hostile preconceptions. But can it? “The system is under serious strain when it comes to Pell,” Brennan said of Australian justice. Don’t think Brennan is a lone voice. There are many in the Catholic community convinced of Pell’s innocence and they are reinforced by many distinguished lawyers who fear this verdict is a miscarriage of justice.
“Should the appeal fail, I hope and pray Pell, heading for prison, is not the unwitting victim of a nation in search of a scapegoat,” Brennan said. His use of the word “nation” is appropriate. If Pell is sentenced to a long prison term the interconnection between the two trials — the court trial and the public trial — will be an inescapable feature of the saga.
The Pell issue has a long way to run. It poses a test for many institutions, not just the Catholic Church. It is, above all, a test for the maturity and judgment of this country because, whichever way the appeal goes, a divided nation will need to manage the consequences.
Amid the thousands of words written this week, those from The Age’s veteran crime reporter and columnist, John Silvester, deserve to be highlighted: “Pell was found guilty beyond reasonable doubt on the uncorroborated evidence of one witness, without forensic evidence, a pattern of behaviour or a confession.
“Pell has become a lightning rod in the worldwide storm of anger at a systematic cover-up of priestly abuses. But that doesn’t make him a child molester. If Pell did molest those two teenagers in the busy cathedral, it certainly does not fit the usual pattern of pedophile priests. Those in power identify vulnerable potential victims, groom and then isolate them.
“In the Pell case, though he had access to hundreds of boys over his career, he did not groom the vulnerable. Instead he attacked two he did not know in broad daylight in a near-public area. He could not have known if one of them would walk straight out and blow the whistle on him, and with two kids in the room he would have been sunk.”
Pell was charged in 2017 and committed to stand trial last year. This followed a Victoria Police investigation of him from 2013, before there was any complaint. He was convicted at his second trial on five charges in relation to abuse of two choirboys, one of whom had died. At the first trial, covered by the suppression order, the jury failed to reach a decision.
At all stages, Pell maintained his innocence. When Victorian detectives flew to Rome and first raised the detailed allegations with Pell, his reaction was: “What a load of absolute and disgraceful rubbish. Completely false. Madness.”
The former choirboy who gave evidence said the abuse occurred immediately after Pell celebrated mass at St Patrick’s Cathedral in 1996 just after he became archbishop of Melbourne. The complainant’s evidence is that the two choirboys had left the liturgical procession and gone to the sacristy, where they began drinking the church wine.
Pell arrived suddenly, censured them and then, with the sacristy door open, people passing in the corridor, and still in his heavy mass vestments including the alb, a long secured vestment without front buttons or zipper, proceeded to sexually assault the boys, whom he did not know, in an extremely brief period of time. There was no witness to support the complainant. The former choirboy’s evidence was given in secret. Brennan called the entire scenario “incredible”.
Richter said: “Who in their right mind would do it? Did the archbishop have some kind of mental breakdown? Who would take the risk?” Richter had a rich field on which to plough — highlighting the inconsistencies and improbabilities in the account. Does this meet the test of “beyond reasonable doubt”?
The proposition, in effect, is that Pell was a brutal, opportunistic and reckless hypocrite campaigning against sexual abuse, devising the church’s Melbourne Response, but being a predator himself, a predator who ignored the usual “rules” of grooming and engaged in the most grotesque betrayal of everything his life as a church leader represented in the improbable location of the sacristy of St Patrick’s within minutes of the end of Mass.
There is nothing in Pell’s life and character to sustain such a judgment. The hope of Pell’s legal team was that the sheer implausibility of the evidence backing the accusation would lead to a decision in his favour.
Ultimately, as John Ferguson from this newspaper reported and argued, much depended on the credibility of the accuser. Ferguson said: “The courtroom feedback is that the victim, barely a teenager at the time of the offending, was credible. It explains why the crown’s senior prosecutor, Mark Gibson, focused so heavily in his closing on the witness’s evidence, imploring the jury to accept the word of the accuser.”
Gibson said to the jury: “I’d like you to step back for a moment and simply think about the overall impression that you are left with by the complainant’s evidence when it finished on the morning of 14 November.”
It is surely relevant that one of the great lessons from the royal commission and the betrayal of children is the need to listen and accept their stories. This is seeping into public consciousness.
The past failures of police, church and parents have created a new awareness: the sins of dismissing or ignoring the words of victims must end. Justice Peter McClellan, chairman of the royal commission, emphasised this point, saying: “Each survivor’s story has been important to us. The survivors are remarkable people with a common concern to do what they can to ensure other children are not abused. They deserve our nation’s thanks.”
McClellan said police and institutions had often refused to believe children, even returned them to unsafe places after they tried to escape.
Silvester said: “Now police are told to come from a mindset of believing a person who says they have been sexually assaulted, and more cases in the grey area are being presented to juries. In reality, sex crimes are being treated differently to other crimes, although the standard of proof remains the same.”
In Pell’s trial, Gibson asked the jury of the accuser: “Did he strike you as an honest witness?” The verdict implies the answer. Is this a trial where the apparent implausibility of evidence was weighed against the apparent credibility of the accuser? In such a trial how does this translate into the “beyond reasonable doubt” test?
The answer, surely, is the weight and plausibility of the evidence must count. Would another person, not Pell, have been quickly exonerated or not even been put to trial in this exact same situation? The answer seems obvious though it cannot be proved. Many Australians will conclude that the public trial of Pell has inevitably infected his courtroom trial. Pell went into this trial with his reputation seriously damaged because of the campaign against him. He has long been denounced not so much for what he has done but because of what he represents.
Politicians from both sides say the verdict proves “nobody is above the law”. That is an understandable and correct response. But it cannot close the book.
There is another question: Has the law been properly and fairly discharged? To me, that test looks dubious.
The political consequences of this trial are immense. If the head of the Catholic Church is found to be a sexual predator then the disgrace of the church is complete. Its priests will be more discredited. Their moral authority will be gravely impaired. Its congregations will be further reduced. The statutory privileges the church has enjoyed will be reduced by politicians and the legal foundations of religion in Australia will change.
The political prejudice towards Pell was undisguised in the comments from many politicians attacking those — notably John Howard — who provided a character reference for him.