Solemn Mess

Pell verdict from on High ... Clash of credibilities ... Tricks of the trade ... The jury must be irrational ... Compounding improbabilities ... The improbable nature of cardinals ... Doubts, reasonable and otherwise ... Media hysterics ... Theodora on the case 

When the High Court's Pell judgment came down thoughts immediately flew to journalist, historian and jurist, Evan Whitton (RIP) and his seminal work, The Cartel - Lawyers and Their Nine Magic Tricks. 

It's a book that at the time infuriated a lot of died-in-the wool legal people, yet it deftly showed the numerous ways in which the common law is uncomfortable with finding the truth. 

The key lawyer "tricks" in the conduct of criminal trials and appeals that Whitton identified, include: 

• Making slabs of inconvenient truth disappear; 

• Inscrutability of jurors - no-one knows how they arrived at a finding; 

• The adversary system and the use of verbal thuggery to intimidate and confuse witnesses and manufacture doubt; 

• The right to silence, so a jury can be deprived of assessing whether an accused is shifty or lying; 

• The rule against similar facts - such that the character of an accused is not an issue; 

• The rule against hearsay - an accused's boastful confession to a third person cannot be a admitted; 

• The standard of proof and the confusion that surrounds it - "guilty beyond reasonable doubt", yet no one is sure what "reasonable" means; 

• Exclusion of probative evidence that is said to be prejudicial; and

• The doctrine of precedent, where the way things have always been done can trump rationality.  

These rules, or tricks, evolved over more than five centuries, driven by the bar in all its exquisite finery, as defence lawyers found there was high-stakes money to be made in getting rogues "off". 

The underlying rationale was that the state was powerful and the accused often underprivileged and ignorant. Well-heeled criminals, who can hire the best-trick attorneys in the phone book, also benefit from this arrangement. 

Whitton argued the inquisitorial system was fairer for both the accused and the victims, because it mounted a genuine search for the truth, much as royal commissions or special commissions of inquiry are commanded to do. In a European criminal case jurors sit with the judges in a joint exploration of the truth. In the adversarial system lawyers run the trials, with defence advocates using the "tricks" to hide unhelpful evidence. 

If we move Whitton's approach forward to the Pell case, the question then is - what were the "magic tricks" engaged by the High Court to "get the cardinal off". 

The unanimous finding of the top seven was that the jury got it wrong because it should have been riddled with greater doubt. 

The majority of the Victorian Court of Appeal, along with the trial jury, found the main prosecution witness, who claimed to have been abused when he was a 13-year old choir boy, to be "compelling and reliable" and it was accepted that his evidence "did not contain discrepancies or display inadequacies of such a character as to require the jury to have entertained a doubt as to guilt". 

The High Court found he was not compelling enough to overcome the cardinal's "opportunity witnesses". It put aside the "likelihood of two choirboys in their gowns being able to slip away from the procession without detection; of finding altar wine in an unlocked cupboard; and of the applicant being able to manoeuvre his vestments to expose his penis". 

The critical aspect, according to the High Court's reasons, was the evidence of Pell's witnesses "whose honesty was not in question". 

The first alleged sexual assaults took place in the cathedral's priests' sacristy. Pell's key witnesses said the assaults could not have happened because of the movement of people in and out of the room for 10 to 15 minutes after the alter servers "completed their bows to the crucifix". In addition, they claimed to be with Pell at the relevant time. 

It got down to granular inspection of the cardinal's movements, consideration of the high-camp processes, rituals and processions of the cathedral in Melbourne, the bowing at crucifixes, the vesting and de-vesting of costumes, the bits and pieces of ceremonial bling that have to be shuffled back and forth, the solemn locking and unlocking of doors, and the movement of squads of alter-boys, choir-boys, personal attendants and functionaries. 

The crucial consideration was whether all of this movement was routinely followed week-in-week out, such that it would be glaringly obvious if Pell peeled off for a fast four-five minute sexual assault on the choir boys, known here as A and B, in December 1996, and another assault on A in a corridor in February 1997. 

The evidence from Pell's parade of witnesses was not consistent and, naturally, after more than 20 years since the events in question, there was uncertainty. The High Court said that the lapse of time put Pell at a "forensic disadvantage", which the Victorian Court of Appeal majority failed to take into account. 

Indeed, the lapse of time would be a disadvantage for both sides. 

Some defence witnesses said they could not be certain of the archbishop's exact movements all the time, giving rise to conflicting evidence about the regularity of Pell's post-mass parading, greeting and schmoozing. 

The Victorian appeal judges in the majority found that no opportunity witness could say with certainty that these routines and practices were never departed from, so there could be no reasonable doubt on the part of the jury. 

The High Court, on the other hand, stuck with the evidence of Pell's chief witness, Monsignor Charles Portelli, who claimed on the days put forward for the alleged attacks against both A and B in the sacristy he was with the archbishop at all times and most particularly on the steps of the cathedral greeting members of the congregation. 

That was the evidence that locked it in for the High. Religious officials act in compliance with ritual, nothing much can go wrong. 

Yet, Portelli in his evidence was both certain and uncertain. He was uncertain as to whether from time to time he may have left Pell's side after the solemn mass, but he was absolutely certain that was not the case on either December 15 or December 22, 1996, the alternate days the assaults were supposed to have happened. 

Nonetheless, the High Court reasoned the "compounding improbabilities" of A's story should have outweighed any doubts the jury had about the fissures in the evidence of Pell's witnesses.  

Even after the harrowing cross-examination of A by Robert Richter for Pell and the careful instruction by the chief judge Peter Kidd, the jury must have had more certainty about A's story than about the opportunity evidence.

At different stages of the justice process, Pell's accuser has been found to be both credible and improbable. 

The High Court was miffed that the Court of Appeal judges viewed a video of the evidence, saying the appeal "did not depend on an assessment of the credibility of any witness". 

The police and the prosecution felt the case was strong enough to get a conviction. Those who saw or viewed the evidence included Magistrate Belinda Wallington who heard 50 witneses and dismissed some charges before commtting the cardinal on others.

Also, there were 12 jurors and two appeal judges, who were convinced that the prosecution had proved that the "compounding improbabilities" did not give rise to a reasonable doubt. 

The seven High Court judges, who did not directly assess the credibility of any witness, found that the "improbabilities" kept "compounding". 

In arriving at its findings, the High Court left us with a few wrinkles:

• Would not the memory of a witness who had been sexually attacked by a fully-robed archbishop be more unforgettable than the stagnant time-in-time out procedures of the cathedral's apparatchiks? 

• Why would the man who claimed he was raped by the Catholic archbishop of Melbourne make it up? This is the time-honoured and consistently unanswered question. There may be reasons for a person to make things up, but not if it means taking five years out of your life to be put through the wringer of the criminal justice system. Those we know and who saw the two trials from beginning to end have no doubt that the prosecution's chief witness is the real-deal. 

• There was no mention anywhere that the second alleged victim (B) had taken his own life and this was the factor that spurred his friend A to come forward after a long silence. It was why he had the courage to do what he did.

• Importantly, life is full of improbabilities. Things don't always fit a neat pattern. People take strange risks and often we have a misunderstood view of their character. Expectations are there to be disappointed. 

•   •   •

Portelli: fix-it man

Portelli is a curious fish. The press in Melbourne had described him as one of George Pell's "Spice Girls", with the Herald Sun reporting he was Pell's "driver, ghostwriter, ceremony-preparer and proof reader". 

In a Quarterly Essay, The Prince: Faith, Abuse and George Pell, reporter and man of letters David Marr claimed the two friends "go way back". They have been close since Pell was appointed rector of the Clayton seminary in 1985. 

The cardinal invited Portelli to decorate the Domus Australia in Rome, and the end result was met with admiring appraisal: 

"His taste in everything, especially the golden, enamel and marble tabernacle with its green malachite dome and bejewelled door set with semi-precious Australian stones, which stands proudly and prominently at the centre of the sanctuary, was impeccable."  

The High Court thought this evidence of Pell's factotum, acolyte and tabernacle decorator was sufficiently persuasive to give jurors enough room to disbelieve an accuser they found credible. 

If we need persuasion, once the fractures in the opportunity evidence was accepted, then the reasoning by the majority Victorian Court of Appeal judges is legally persuasive. 

Of course, it is an article of faith of the criminal law that we ignore patterns of alledged behaviour. 

The man who appeared in episode three of Sarah Ferguson's ABC series Revelation claimed while in the care of the church in Ballarat he was assaulted by Pell in the shower. 

Then there are the Ballarat swimming pool allegations and the Phillip Island football allegations. All of this plays no part in determining a judicial outcome. It just means that when it comes to Pell a string of allegations has to be ignored in order for him to have the benefit of the doubt. 

Certainly, we have to ignore Pell's denials of historic abuse by Catholic clergy, and the ruthless instructions he gave to crush John Ellis' civil case. 

We must also ignore that denials, cover-up and cruelty are in the DNA of the Catholic Church. In fact, some church orders are little more than organised gangs of paedophiles, and that is widely known, including by Pell. 

We know the jurors got a good close-up look and smell of the witnesses, yet in the end the High Court delived us its doubts - reasonable or otherwise. 

So much for the representatives of the community and the constitutional triers of facts.  

•    •   •

Fortunately, deticketed barrister Charles Waterstreet was on hand with a pre-High Court verdict delivered on Facebook: 

"The cardinal principle of the criminal law is that guilt must be proved beyond a reasonable doubt. That principle applies to cardinals and to every man or woman. The test of that principle begins in the High Court tomorrow. In my opinion, it is a J’accuse moment in Australian jurisprudence because of the reasons argued by Weinberg J in the Victorian CCA, all the evidence taken as a whole could not support the convictions found by the jury. If I was a believer I would pray that Cardinal Pell is acquitted for the sake of consistency of the criminal law. It would be, in my opinion, an injustice if the convictions were allowed to stand. Being unpopular is not a basis to convict."  

•   •   •

Much of the overwrought commentary about the outcome of the appeal found a safe home in the Murdoch press. 

There were claims that the prosecution was a "political trial" and the High Court "saved our institutions from the dishonourable way they discharged their duties" (Paul Kelly); that the Victorian justice system is "broken" (Fr. Frank Brennan); that the processes was biased because of a "media pile-on" (Gerard Henderson); the trial and the Court of Appeal were "excoriated by the High Court" (John Ferguson); the chief justice and president of the court of appeal should resign (Jeff Kennett). 

The Judicial Conference of Australia put out a statement that sought to address the "inaccurate and unfair media commentary". 

Pell v The Queen