Secrecy around trials
But the guilty verdict itself has unleashed something more primal across the nation. Factors contributing to this national trauma include the images of a haggard-looking 77-year-old man in a priest’s collar running the gauntlet of a baying mob outside the Melbourne court. There has also been the secrecy surrounding the two trials, the fact the key witness’ evidence was replayed in court via video link and the press was barred, the personal involvement of media figures on both sides, and divisions among lawyers and even former judges about the outcome.
Lawyers mounting the appeal against the Pell conviction will claim the jury reached an “unreasonable” verdict based on the evidence presented; that the jury selection process was flawed; and that it was wrong for the Victorian County Court to bar the jury from watching a video setting out the scene inside Melbourne’s St Patrick’s Cathedral when the alleged attack took place.
That defence video, which depicted the layout of St Patrick’s Cathedral and had coloured dots representing each of the people involved in Sunday Mass in December 1996, was compared during court hearings to the 1980s video game Pac-Man. Pell’s defence lawyers argued it should be shown to the jury but Victorian chief judge Peter Kidd ruled it out.
A culture wars factor is also apparent in this searing post-Pell-guilty-verdict atmosphere. Some of Pell’s most vehement post-verdict defenders also have a past history of backing his trenchant political and social conservatism; some share his deep Catholicism. For many others, however, there is no denominational or vague political sympathy involved – they just have deep misgivings about the verdict.
Among former members of the judiciary there is concern about the basic issue that should determine the outcome of a criminal case – the quality of evidence presented by the prosecution. This concern is summed up by Melbourne crime reporter John Silvester who says Pell’s conviction means, in effect, that the cardinal “was found guilty beyond reasonable doubt on the uncorroborated evidence of one witness, without forensic evidence, a pattern of behaviour, or a confession”.
Concern about public ‘climate’
“It is a matter of public record that it is rare to run a case on the word of one witness, let alone gain a conviction,” Silvester wrote in The Age on Wednesday.
There is also concern about the public “climate” surrounding the case. “It just seems the well has been poisoned a bit” is one view. Senior lawyers who discussed the Pell appeal on a background basis say the key claim will be that the conviction was “unsafe” because the jury was not given the correct directions.
One of the strongest critics of the guilty verdict is Frank Brennan, a Jesuit priest and human rights lawyer whose father, Sir Gerard Brennan, was Chief Justice of Australia from 1995-98. Frank Brennan wrote in the Jesuit publication Eureka Street that he was “very surprised by the [Pell] verdict. In fact, I was devastated.”
“The proposition that the offences charged were committed immediately after mass by a fully clothed archbishop in the sacristy with an open door and in full view from the corridor is incredible to my mind,” Brennan wrote.
“Pell has been in the public spotlight for a very long time. There are some who would convict him of all manner of things in the court of public opinion, no matter what the evidence. Others would never convict him of anything, holding him in the highest regard. The criminal justice system is intended to withstand these preconceptions,” Brennan noted, but it “is under serious strain, when it comes to Pell”.
A similar view is promoted by Greg Craven, vice-chancellor of the Australian Catholic University, a onetime professor of law at Notre Dame University, and a leading republican. “What matters in the Pell case,” he argues, is “not whether you like or loathe Pell, or even whether you think he is innocent or guilty. What matters is whether we have a system of justice that is exposed to extraneous pressure” – like, say, from the media or social media.
“What the last year has shown is that the justice system can be systematically assaulted from the outside in a conscious attempt to make a fair trial impossible,” Craven writes in an article published last Wednesday in The Australian. “This should terrify every citizen, because every citizen is a potential defendant.”
Concentrated media campaign
He claims “parts of the media – notably the ABC and former Fairfax journalists – have spent years attempting to ensure Pell is the most odious figure in Australia. They seemed to want him in the dock as an ogre, not a defendant.”
It’s a powerful view coming from an authoritative source. However, it can also be turned on its head in the Pell case, with an argument that there is in fact a concentrated campaign in sections of the media and in church circles to apply pressure on Victorian Appeal Court judges to have the Pell guilty verdict overturned, irrespective of the merits of the case.
David Marr, a former editor of the now defunct Fairfax publication, The National Times; author of a fine biography of the great Australian novelist, Patrick White, and more recently author of The Prince: Faith, Abuse and George Pell; and, moreover, a staunch supporter of same-sex marriage, was a regular attendee at the Pell trial and rejects the false verdict claims.
Marr is “completely astonished” that soon after Pope Francis had expressed concern about the victims in child sexual offences, “the church in Australia appears to be campaigning for Pell’s defence and you can’t do that without putting the boot into the victim. It’s a zero-sum game,” he says.
Richard Ackland, editor and publisher of Justinian, a legal newsletter, for the past 40 years, says: “My instinct would say he [Pell] got a fair run. He had the best barrister [Robert Richter] in town – a very flamboyant, theatrical and ferocious character – a fair judge and a straight prosecutor. The witness came out with a credible, consistent story [although] there’s always these variations in evidence.
“It’s a huge case for the most powerful and important people in the Vatican. Pell was Australia’s top man in Rome and he had all that support from the powers that be.”
Ackland, who also writes on legal affairs for Guardian Australia, and pens the “Gadfly” gossip column in The Saturday Paper, says the Gillard-appointed royal commission inquiring into sexual abuse “was an incredible institution”.
Shift in investigation of sex crimes
It “created such a momentum in an otherwise docile country that the cops in Victoria decided to investigate Pell, and they spent two years investigating him.
“It may never have happened if Australia had not had that royal commission. It forced the coppers to get the bit between the teeth and it was a huge thing to charge him [Pell].”
A different view comes from The Age‘s Silvester, the son of former Victorian police superintendent Fred Silvester, who at one time was the boss of the Victorian CIB. Hailing from a family immersed in Victorian police culture, Silvester detects a “shift in the investigation and prosecution” of sex crimes.
From only investigating what Silvester calls “black and white” cases, Victorian police are now obliged to “come with a mindset of believing a person who says they have been sexually assaulted”.
As a result, “sex crimes are being treated differently to other crimes, although the standard of proof remains the same”, Silvester writes in The Age.
There will be many more chapters in the Pell case, and the arguments and the agony will continue.