Andrew L. Urban.
This appeal underlines the conflict at the heart of many sexual abuse cases: the conflict between a compelling, moving and credible victim on the one hand, and conflicting facts on the other. They can co-exist, with one proviso. Here is how.
George Pell appeared on June 5 & 6, 2019, in Victoria’s Court of Appeal in his bid to overturn sex offence convictions. His legal team, led by Bret Walker, SC, says Pell was wrongly sentenced to six years’ jail for assaulting two choirboys, in 1996 and 1997, in St Patrick’s Cathedral, Melbourne. He is serving a minimum three years, eight months. The main ground of appeal is the claim the jury erred by convicting him.
In submissions filed to the Victorian Court of Appeal, his legal team outlined alleged “impossibilities” in the case including the dates of the alleged assaults, Pell being alone in the sacristy only a few minutes after the end of mass, Pell being robed and alone in the sacristy after mass and the impossibility for two choir boys to be sexually assaulted by Pell in the sacristy after mass undetected.
“There was a significant body of evidence demonstrating, in various ways, that the offending not only did not occur but could not have occurred,” the written submission from Pell’s senior counsel Bret Walker said.
“This evidence constituted a catalogue of at least thirteen solid obstacles in the path of a conviction.
“No matter what view was taken of the complainant as a witness, it was simply not open to the jury to accept his word beyond reasonable doubt.”
On June 5, 2019, Walker told the appeal court it was “literally impossible” for the first episode of offending in the St Patrick’s Cathedral sacristy to have occurred.
The allegation was that Pell abused two choir boys in the sacristy in 1996 after Sunday mass.
One of the boys (now an adult) gave evidence in Pell’s trial while the other died in 2014 and had denied being abused to his mother.
Responding for the Crown the following day, Christopher Boyce QC struggled mightily (and with chronically halting, speaking manner lacking in confidence, meandering and fumbled) to make a convincing case, often hearing one or other of the judges considering aspects of the claim ‘improbable’. At one stage when Boyce suggested ‘it’s a matter for the jury’, he was corrected, ‘now it’s a matter for us’. There were several occasions when the bench noted “That doesn’t help you, Mr Boyce.” He eventually apologised for spouting platitudes. He will never be accused of flowing eloquence.
Boyce made much of the credibility of the complainant, the emotional impact of his evidence – which probably explains why the jury accepted it as true. And true it may well be, even if not accurate as to when/where it happened and who was the offender. He tried to negate the notions that the complainant was either a liar or a fantasist.
victim v facts: resolving the conflict
The only way we can reconcile the victim’s truthfulness – if we accept it as such – and the conflicting facts (evidence put by Walker) which make the offending physically implausible if not impossible, is by questioning the role of memory.
We can accept that the complainant experienced the offending as described by him – if we adjust the time, the place and the offender. In other words, what was described happened to him: but not when it is claimed, and not by the man convicted of it. Memory ‘overlay’ after two decades is a distinct possibility and the only answer to resolve the conflict of victim and facts. This scenario is especially plausible in a case where the then 13 year old sacristan endured a traumatic experience. Recalling it in the context of a heavily prejudicial atmosphere surrounding Cardinal Pell over a period of time, he could well have become the platform onto which such an experience was projected.
(This immediately recalls the notorious case of US Supreme Court nominee Brett Kavanaugh ‘credibly’ accused of historic sexual attack (in his teens) by Christine Blasey Ford in 2018. The accusation was not corroborated but it was ’emotionally compelling’ in the view of many.)
Before the court rose, Walker reconfirmed the evidence that Boyce had tried to dismiss, which is that Pell was at all times after the mass in question accompanied by Monseigneur Portelli – and greeting the faithful at the entrance at the time when he was accused of offending. The jury could not simply ‘put that to one side’ and that means, together with all the other matters raised at this appeal, they should have found that the case was not proved beyond reasonable doubt.
The court reserved judgement to a later date.
Again, I point to many favourable conditions that Pell has enjoyed which have been denied to ordinary commoners…..
In a hearing held on 13 December, two days after the verdict, a lawyer representing several Australian media companies argued before Kidd that the suppression should be lifted now that the verdict was somewhat out. Kidd, usually so measured and cerebral, could not contain his fury.
“The way I see it at the moment is that some of this publicity was designed to put improper pressure upon me,” Kidd said.
“And, indeed, it is positively misleading … My [suppression] order was never appealed. Indeed, quite dishonestly these articles refrain from informing their readers that there was no opposition [by media] to the suppression order being made in Victoria.
“It is just breathtaking.”
He kept the suppression in place, saying the story had not spread so widely or with enough detail for it to be completely ineffective.
It was a decision which in the end proved correct – the story did not disseminate much further after the initial publications outside of Australia. And it was a decision that reflected Kidd’s handling of the trial as a whole. Considered, diligent and fair.
Indeed, during those many weeks in court, if either party crossed a line in their examination of witnesses they copped a swift rebuke. Both the prosecution and the defence seemed to respect Kidd greatly.
Kidd repeatedly told the jury he would give no hints as to the verdict they should return, and that they were not to make Pell a scapegoat for the church’s failings. Pell was at a significant disadvantage, he told them, owing to the decades that had passed and the fact he could not gather evidence from witnesses when their memories were more sound.
“You alone are the judges in this case,” he told the jurors. “It is not my responsibility to decide this case. That is your role. The verdict you return has nothing to do with me. You are not bound by any comments I make about the facts. Do not look to me for hints. I won’t give you any.”
Now, can anybody here honestly say Sue Neil Fraser, for example, was awarded the same fairness or privileges that Pell has enjoyed? I see no bias against Pell and plenty of bias FOR him in the way the courts, the judge and rich/powerful have tried to protect him.
I would go further and say all this protecting and over emphasising it has only served to harm him in the court of public opinion “where everyone is equal before the law, and where no one is above the law”.
I dare say his ability to jump the appeal queue within months of his sentence, where many others have waited decades, suggest he is NOT equal and he is getting (or buying) special treatment – may be further harming his cause.
And finally I want to ask Pell’s defenders: if the victim turns down all offers to settle out court for more and more handsome sums and chooses to pursue justice instead, then what is his motivation? If not for money, then what could he have possible gained from going all the way based on a lie?
Thank you for this article, Andrew. Gee, there is much in it to consider: ‘beyond reasonable doubt’, ‘memory overlay’, ‘alleged “impossibilities” ’, ‘not open to the jury’, ‘truthfulness’, ‘not corroborated’, ‘credibility of the complainant’ and ‘emotional impact’…
My own early thoughts are about one person’s predisposition to believe in the truth of something and another person’s predisposition to not believe in what is claimed as truth. To what extent can we – any of us – set aside our own attitudes and/or prejudices and examine an issue on its merits?
In other words, how, or to what extent, do our own experiences influence how we approach life’s questions which come to us from all directions? Where in human judgement do we place a line: a line on one side of which is our life’s experience assisting us in understanding new incoming experiences, and that line on the other side of which are our prejudices, developed over years, prejudices which hand us ready-made answers to questions which confront us?
Prejudice, in my view, connotes judgement before facts are known. The word ‘generalisation’ comes to mind. When we generalise we subordinate the particular to the stereotypical – most of the time such subordination is probably a useful technique: Lions usually bite people.
However, should we – do we – take extra care when required to respond to perhaps what is a different class of questions? A politician proposes … one is suspicious? A vote above the line … an attitude prevailing over particular assessment? And so on…
A cardinal accused of sexual assault? A woman accused of murdering her partner? An apparent sole, complainant witness whose evidence against the Cardinal was uncorroborated. A disappearance from a yacht to which there was no witness.
I can’t speak much about Pel’s conviction. I know only the general elements of the case against him. Are all priests paedophiles? Was/is Pel such a one? I don’t know the evidence that was given against him. Some was apparently given ‘in camera’. I didn’t even know his trial had taken place. When he was convicted, even the news of this was suppressed. [There was apparently a reason for this – there was meant to be a second trial on an/other charge/s to follow the one on which he had just been convicted … the suppression order ostensibly placed to avoid ‘prejudice’ against him in his second trial.]
Of the woman, Neill-Fraser, I do have more to say. She has always insisted on her innocence. Her partner, Bob Chappell ‘went missing’ from the Four Winds on 26-27Jan2009. Some apparent blood on the steps from the saloon to the wheelhouse [perhaps it was from the wheelhouse to the deck – gfs] suggested that Bob Chappell had been assaulted there on the yacht. It is presumed that Bob Chappell is dead as a result of murder. His body has not been found. No weapon has been found. At Neill-Fraser’s trial, no person gave evidence of having witnessed his murder. A person whose DNA was found (Jan2009) on the yacht in unexplained circumstances, has this year (25Feb2019) signed a statutory declaration indicating having been on the yacht and having witnessed Bob Chappell’s murder.
Both Pel and Neill-Fraser remain in jail. Pel waits for his appeal to be decided, while Neill-Fraser waits for her second appeal to be made. In closing, I’d like to try and make the following points:
Meaghan Vass’s stat. dec. was sufficient for Justice Brett to grant an unprecedented (in Tas) second appeal. The Tasmanian legislation requires that only material which is ‘fresh and compelling’ can serve to allow a second (or further) appeal. From what we know of Vass’s ‘last minute’ Stat. Dec., regardless of his other then-as-yet uncompleted considerations of the 2 or so years of intermittent 2nd Appeal submissions/evidence, Justice Brett found Vass’s evidence to be both ‘fresh and compelling’. I dwell on that word ‘compelling’. It is strong in its implication: A Supreme Court judge has this year found that the evidence contained in Meaghan Vass’s Stat. Dec. of this year … was (not just fresh, but was also) compelling.
This must – you would think – have implications for Neill-Fraser’s prospects when finally her second appeal is begun. I would be surprised to think that such evidence now accepted by Justice Brett as ‘compelling’ could later be readily discounted by his confreres on the Supreme Court.
Qui sache, m’sieu?
Finally, to return to those terms with which I commenced: ‘beyond reasonable doubt’, ‘memory overlay’ etc… they are each worthy of individual consideration, in my view. I don’t have the occasion to do that here, yet in closing, would posit a possible, similar ‘memory overlay’ in Sue Neill-Fraser’s recall of her visit to Bunnings, on the late afternoon of Australia Day 2009, or possibly at an earlier date.
Thank you again for your article, questions of Justice range wide afield, as do the topics canvassed in your blog – Garry.
I am so much against paedophilia as you can see on my FB.
It is so sick that not a week goes by that some paedophile has been caught and that is only what we hear about.
BUT I have to ask in all honesty a couple of questions I’m puzzled about with George Pell WHY would he have turned into a paedophile at that stage of his life, when priests were brought into the justice system.
The second question is did this happen once ( which is once too many ) or are there more he would have done in his past before this conviction ?????
Good second point. These pedophiles in the church had ongoing access to children and when they abused, it was often many victims over years, not just one. If the charges were true , then surely there were many other victims that should have come forward to support the complainant, and thus ensure a well founded conviction? This is what has happened in many other such cases, where upon learning of their abusers arrest and trial, it emboldens them to come forward. None in the Pell case however.
That is categorically untrue! One of the choir boys died before the court case got off the ground, THAT was the motivation of the 2nd choir boy – NOT money. And what of the Eureka Pool boys? Why didn’t their cases even make it to court? Why aren’t they suing for money?
I would also bring to your attention to Pell’s nasty little job of silencing victims. Are there others he abused who can no longer speak up because they signed a contract of agreement? Who were the other witnesses that testified against Pell and what was the substance of their testimony? These are pertinent questions that have not been uncovered due to his apparent power, where other wrongfully convicted have had their court details made public regardless.
Its very true we are already there. I recorded all phone calls with my lawyer once i found he was being dishonest. Lucky i did he tried denying all his non sense and i was only believed becauseof the recordings.
I havent really followed this case, but it seems the way the law is administered has changed. Once, you required corroboration from at least one witness to give credence to someone’s testimony in the absence of any forensic data. Nowadays, just one person can make an allegation, which alone can send someone to prison.. This is what a number of women have done to innocent men with false rape allegations. The crown made a dubious unproven allegation against Neil-Fraser and sent her away. If Gable Tostee has not recorded his night with a Tinder date, the court of popular opinion was baying for his blood and would have sent him to prison for 10 years plus.
We are living in mighty dangerous times, and for all our liberal PC social mores and political leanings, sometimes I think it would be better to live in a country where this sort of madness hasn’t got a foot hold yet.
Soon, I believe we’ll all be wearing cameras 24×7 to protect ourselves from litigious attacks. Dont laugh, in Russia you cannot get vehicle insurance unless you have a dashcam in your car. The world has gone crazy.
The flaws of the Justice system are that humans are fallible, and perhaps prone to lying or irrationalities. Computers could well do better in determining guilt than we fallible & partial humans. As many as a quarter of all legal outcomes are flawed, meaning innocent people have been put to death & the guilty set free.
The dashcam comment figures why there is so much footage shown from Russia on Car Crash TV shows. As sad as it is, I can see why they need it and why we do too.
Personal cameras have helped many innocent people stay out of jail, and put many bent police officers behind bars. They’ve opened our eyes to what was perhaps the case for years without our knowing about it.
As much as George Pell may be guilty, there needs to be evidence beyond reasonable doubt. It needs to be proven, not simply ‘believed’. Ironically, a man of faith needs the lack of faith to defend himself!
As for where to go, almost anywhere there are many humans is not always good to be, even ‘goody two shoes’ countries like in Scandinavia, because there are humans. The best I can figure is that countries that are heavily populated have the greatest levels of disadvantage and therefore human rights abuses (life becomes cheaper when there are too many of us – eg: Philippines). One seldom hears of human rights abuses in Antarctica, but it doens’t sound liveable otherwise. I hear Norfolk Island is pretty good though.
Memory “overlay” as put, can also be known as “witness decay”. It is a recognised fact in a case I was involved with. That is, the Court(s) can (in Victoria at least) disallow, or at least question its veracity/evidence over time, due to, I assume, Memory “overlay”.
Overlay, or witness decay can be a brilliant means of proloning cases to create doubt, in a legal setting, to discredit, or in some cases, support the testimonies; prosecutors, or defence.
The observation of Memory “overlay” in my situation, as I witnessed, in a criminal assault case, in the County Court, several years ago suggests that “witness decay”, as argued by the defence was a plausable proposition. The “decay” was two years, that is, Magistrates Court, for 18 months, pleas and you name it. Fortunately the thugs were convicted and did time. The crime was circa 2000, convictions 2006.
What is the limitations on “decay” of witness statements from 1996/7?