A last chance for Australian justice

George Weigel

My late parents loved Cardinal George Pell, whom they knew for decades. So I found it a happy coincidence that, on November 12 (which would have been my parents’ 70th wedding anniversary), a two-judge panel of Australia’s High Court referred to the entire Court the cardinal’s request for “special leave” to appeal his incomprehensible conviction on charges of “historic sexual abuse,” and the even-more-incomprehensible denial of his appeal against that manifestly unsafe verdict.

Thus in 2020 the highest judicial authority in Australia will review the Pell case, which gives the High Court the opportunity to reverse a gross injustice and acquit the cardinal of a hideous crime: a “crime” that Pell insists never happened; a “crime” for which not a shred of corroborating evidence has yet been produced; a “crime” that simply could not have happened in the circumstances and under the conditions it was alleged to have been committed.

Since Cardinal Pell’s original appeal was denied in August by two of three judges on an appellate panel in the State of Victoria, the majority decision to uphold Pell’s conviction has come under withering criticism for relying primarily on the credibility of the alleged victim. As the judge who voted to sustain the cardinal’s appeal pointed out (in a dissent that one distinguished Australian attorney described as the most important legal document in that country’s history), witness credibility – a thoroughly subjective judgment-call – is a very shaky standard by which to find someone guilty “beyond a reasonable doubt.” It has also been noted by fair-minded people that the dissenting judge, Mark Weinberg, is the most respected criminal jurist in Australia, while his two colleagues on the appellate panel had little or no criminal law experience. Weinberg’s lengthy and devastating critique of his two colleagues’ shallow arguments seemed intended to signal the High Court that something was seriously awry here and that the reputation of Australian justice – as well as the fate of an innocent man – was at stake.

Other recent straws in the wind Down Under have given hope to the cardinal’s supporters that justice may yet be done in his case.

Andrew Bolt, a television journalist with a nationwide audience, walked himself through the alleged series of events at St. Patrick’s Cathedral in Melbourne, within the timeframe in which they were supposed to have occurred, and concluded that the prosecution’s case, and the decisions by both the convicting jury and the majority of the appeal panel, simply made no sense. What was supposed to have happened could not have happened how it did and when it did.

Australians willing to ignore the vicious anti-Pell polemics that have fouled their country’s public life for years also heard from two former workers at the cathedral, who stated categorically that what was alleged to have happened could not have happened how it did and when it did, because they were a few yards away from Cardinal Pell at the precise time he was alleged to have abused two choirboys.

Then there was Anthony Charles Smith, a veteran criminal attorney (and not a Catholic), who wrote in Annals Australasia that the Pell verdict and the denial of his appeal “curdles my stomach.” How, he asked, could a guilty verdict be rendered on “evidence….so weak and bordering on the preposterous?” The only plausible answer, he suggested, was that Pell’s “guilt” was assumed by many, thanks to “an avalanche of adverse publicity” ginned up by “a mob baying for Pell’s blood” and influencing “a media [that] should always be skeptical.”

Even more strikingly, the left-leaning Saturday Paper, no friend of Cardinal Pell or the Catholic Church, published an article in which Russell Marks – a one-time research assistant on an anti-Pell book – argued that the two judges on the appellate panel who voted to uphold the cardinal’s conviction “effectively allowed no possible defense for Pell: there was nothing his lawyers could have said or done, because the judges appeared to argue it was enough to simply believe the complainant on the basis of his performance under cross examination.”

The Australian criminal justice system has stumbled or failed at every stage of this case. The High Court of Australia can break that losing streak, free an innocent man, and restore the reputation of Australian justice in the world. Whatever the subsequent fallout from the rabid Pell-haters, friends of justice must hope that that is what happens when the High Court hears the cardinal’s case – Australia’s Dreyfus Case – next year.

Photo: CON CHRONIS/AFP/Getty Images

COMING UP: Australian justice in the dock

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Consider this sequence of events, familiar to some but evidently not to others:

March 2013: Prior to any credible reports of misbehavior being made against Cardinal George Pell, police in Australia’s state of Victoria launch “Operation Tethering,” a sting aimed at the former archbishop of Melbourne (who by this time is prefect of the Vatican Secretariat for the economy. “Tethering” includes newspaper ads seeking information on previously unreported, untoward goings-on at the Melbourne cathedral in the past.

Early 2017: The office of Public Prosecutions in Melbourne twice returns a brief to those who mounted “Operation Tethering,” criticizing the Victoria Police brief as inadequate for a prosecution.

June 2017: Charges of “historic sexual abuse” from 20 years prior are announced by the Director of Public Prosecutions and Pell is ordered home. The cardinal vehemently denies any misconduct and, despite his Vatican diplomatic immunity, immediately returns to Australia to defend his honor and that of the Church.

May 2018:  At the “committal hearing,” a magistrate dismisses several charges against Pell but sends others to trial, saying that, whatever their arguable plausibility, they should be aired publicly in a criminal court. Meanwhile, a vicious, lynch-mob atmosphere continues to surround Cardinal Pell, in public and in much of the Australian media.

September 2018: At the trial, the prosecution presents no corroborating evidence that the alleged crimes ever took place; the prosecution’s case is the tale told by the complainant, who only appears on videotape. Numerous witnesses for the defense testify that the alleged acts of abuse could not have happened in a secured area of a busy cathedral immediately after Sunday Mass, with then-Archbishop Pell fully vested and surrounded by liturgical ministers, in the time-frame alleged.  After several days of deliberation, the trial judge tells the jury that he will accept an 11-1 verdict, if one juror is blocking unanimity. The jury then returns a hung verdict — 10-2 for acquittal — the jury foreman weeping when announcing the jury’s inability to reach a legal conclusion; other jurors are also reported in tears.

December 2018: At Cardinal Pell’s retrial, his defense team further demolishes the prosecution case, for which, again, no corroborating evidence is presented. The jury then returns a 12-0 verdict of guilty, shocking virtually everyone in attendance at the trial (and, according to some present, the trial judge).

March 2019:  While sentencing the cardinal to six years in prison, the trial judge never indicates that he agrees with the second jury’s verdict, stating only that he is doing what the law requires under the circumstances.

June 2019: At an appeal hearing before a three-member panel of the Victoria Supreme Court, the judges sharply criticize the flimsiness of the prosecution’s case.

August 21, 2019: The appellate panel rejects Cardinal Pell’s appeal by a 2-1 vote. The dissenting judge, Mark Weinberg, is Australia’s most prominent criminal-law jurist; the two judges rejecting the appeal have little or no criminal-law experience. Judge Weinberg’s 202-page dissent eviscerates his colleagues’ position, which raises the gravest questions as to whether “guilty beyond a reasonable doubt” remains the standard necessary for conviction in Victoria — not least on a completely uncorroborated charge.

In the wake of last month’s incomprehensible and (as measured by Judge Weinberg’s dissent) dangerous rejection of Cardinal Pell’s appeal, Catholic voices were heard expressing (or demanding) respect for the justice system in Australia. Perhaps the Vatican press spokesman must say such things for diplomatic purposes, although the reason why diplomatic concerns trump truth and justice in the Holy See Press Office is unclear. But as this chronology indicates, there is no reason to respect a process that reeks of system-failure at every point, from the dubious and perhaps corrupt police investigation through the committal hearing, the two trials, and the appeal. There are guilty parties here. But Cardinal George Pell is not one of them.

As this scandalous process approaches the High Court of Australia, friends of Australia, both Down Under and throughout the world, must send a simple message, repeatedly: George Pell is an innocent man who was falsely accused and has been unjustly convicted of crimes he did not commit. It is not George Pell who is in the dock, now, but the administration of justice in Australia. And the only way to restore justice is for Cardinal Pell to be vindicated by the highest court in the land.

Those who cannot bring themselves to say that, in Australia or elsewhere, necessarily share in the ignominy that Australian criminal justice has, thus far, brought upon itself.

Featured image by Alexey Gotovskiy/CNA