The importance of perceptions (and other issues surrounding the Trial of Card. Pell)

I have closely followed the trial of Cardinal George Pell. I closely followed the committal hearing, where Pell was committed to stand trial, and the two trials that followed, the first resulting in a mistrial and the second in which Pell was convicted of the five charges against him.

The public attention surrounding the Cardinal Pell saga preceding the trial has made it one of the most fascinating events I can recall from legal and ideologically charged perspectives. Pell was eventually convicted by a jury of his peers, the tried and tested system that we have adopted, our method of affording a complainant and accused the best chance of justice, without fear or favour. The jury system is not without its weaknesses nor its critics, but it is the best system that we have to ensure an impartial implementation of justice. The justice system is formed and predicated on the premise that trial by public opinion and ideology do not take into account the facts as they exist. Hence the carefully crafted jury directions that jurors receive during the trial, and the checks and balances sewn throughout the criminal justice system to ensure that the accused is not prejudiced, regardless of the severity of the crime that he is accused of committing. For people to maintain their faith in a justice system, perceptions are as important as facts, hence why in certain cases judges may be asked to excuse themselves in circumstances where they are perceived to carry a bias in relation to a certain matter, or where other checks are put in place to ensure the perception of a fair trial, like judge alone trials (in non-Victorian jurisdictions given that Victoria does not conduct judge alone trials) and where the location of the trial is moved to check against the risk of an environment contaminated by prejudice.

The perception that a person received a fair trial is as important to maintaining the integrity of the criminal justice system, as the fact of a fair trial itself. One can safely say that the public media driven investigation and prosecution of Pell and the Church prior to the trial did very little in the way of creating an environment in which there could be a perception of a fair trial. In a day of aggressive investigative journalism, media campaigns and political and ideological statements that take the form of art and publication, these all manifest themselves in public expressions which further influence public opinion. Where this is the case, when juries are formed from members of the public, and the legal practitioners and judges are members of that same public, there is a great risk that the perception of impartiality is eroded.

Keep the following in mind in the lead up to the trial: the Royal Commission (and Pell’s wooden testimony), the prosecution (and conviction) of innumerable other Catholic clergy that attracted wide spread media attention, not limited to the conviction of Ridsdale and the acquittal of Wilson, the publication of Cardinal by ABC journalist Louise Milligan in close proximity to Pell’s trial, the impropriety of the book receiving an award from the legal fraternity, the fact that Pell is infamous for his opposition to homosexuality (not to mention his refusal to give communion to gay rights activists who approached the alter rails wearing gay rights colours), climate change and left wing progress, all positions that place him in ideological opposition to the status quo. When looking at these factors collectively, the resulting climate was not ever going to, and to my mind did not, create the perception that Pell would receive an impartial trial that was not influenced by the climate outside the courtroom. Remember perception.

This is not to suggest that Pell should not be subject to the same criminal justice system as other members of society.  Rather, this is to suggest that there was a monumental failure on the part of the media, and the powers to exercise prudential discretions to ensure that it would be perceived that Pell received a fair trial.

Neither is this dilemma resolved by suggesting that someone has to lose and the Pell supporters lost this time and such is life and justice. The justice system is guarded against such criticism because it imposes checks and balances to put it beyond reproach especially in the eyes of the public. Here these checks were grossly wanting in the period leading up the trial.

Pell was convicted, and this does not go in anyway towards questioning that conviction. Many other writers have done that, and to my mind with good reason. However, at the end of the day, we must respect the process and Pell has exercised appeal rights afforded him under the law. What is argued nonetheless is that a similar conviction in an environment that had guarded against mass demonization and media smear campaigns would not be exposed to the current accusations of partiality, prejudice and partisanship that strike at the very heart of the rule of law

Whilst this is perhaps a substance for another discussion, I cannot help but feel that in this age, where sexual abuse allegations alone can ruin reputations, careers and carry with them the perception that they influence trials, where the uncorroborated evidence of a single person can outweigh the exculpatory evidence of 20 opposing witnesses, the criminal justice system is facing a challenge which strikes at the very heart of the rule of law. I question whether the rise of aggressively publicised investigative journalism, for example The Teacher’s Pet podcast that featured so successfully in the Australian, can only act to undermine the ability of the criminal justice system to act and to be perceived to act with impartiality.

Pell has appealed and that appeal will be decided, and the process respected. The tragedy is that regardless of the outcome, the gross mismanagement of this case in the media, and the authorities has potentially forever damaged the reputation of the criminal justice system in the eyes and mind of a large proportion of the national and international public. The justice system is not designed to protect a fraction of the public, or the majority. It is designed to ensure, and to be perceived to ensure, that every individual within a society is afforded equal protection without fear or favour and that justice is perceived to be done without fear or favour. This the bulwark of democracy, and long may it remain intact and free from the dangers of anarchy, the rule of the mob and the Court of Public Opinion.

The Trial

During the trial, there were ten arguments submitted in defence of Pell. They were as follows:

1.      Victim “AA” alleged he was abused by Pell after a Sunday Solemn mass in the mid 1990s, and then again a month later. It was established at trial that Pell said just two solemn Masses that year. The cathedral had been under renovation so was not used until November of the year the victim said the offences happened. AA was adamant the second incident occurred in that year, but Pell was able to establish that was impossible.

2.      Pell also argued it would have been impossible for him to be in the sacristy, robed and alone, so quickly after mass ended. Instead, he says he routinely spoke to parishioners on the steps of the Cathedral before being escorted back to the sacristy by at least one other priest.

3.      Pell argued that while Archbishop he would never have been alone while robed at the Cathedral. His legal team compared him to the Queen, saying she would never be left alone while robed for a ceremonial occasion. His master of ceremonies, Monsignor Charles Portelli testified that: “I recall the first two occasions he said mass and I can say I was with him the whole time he was robed on those days”.

4.      It was argued that it would be impossible for Pell to molest two boys in the sacristy, or corridor, after mass because of the amount of potential witnesses in the area. Former sacristan Max Potter, who worked at the Cathedral for decades, told the court he would unlock the sacristy in the minutes after mass when altar servers would start returning to the room to disrobe. They would also clean up after Mass, meaning the sacristy was only ever momentarily unattended.

5.      It was Pell’s legal team’s submission that “only a madman would attempt to rape boys in the sacristy immediately after Mass.” They argued dozens of people would be around watching over the newly appointed Archbishop.

6.      The prosecution case centred on the fact that the two complainants were able to flee from a procession of choristers, altar servers, and priests, leaving church after mass in order to make their way to the sacristy. Pell argued it would have been impossible for them to escape the carefully choreographed procession that was monitored with military like precision, without being noticed, and reprimanded. Further, he argued that even if they did, it would have been impossible for them to return to the choir rehearsal that immediately followed mass without being noticed. No witnesses testified that they could ever remember a single occasion when a choirboy left the procession unexpectedly.

7.      Even if the boys did flee, Pell argued they would have most certainly been seen sneaking into the sacristy by nearby organists who continued playing for up to 15 minutes after mass as the congregation left the church.

8.      It was alleged that Pell abused the boys while robed in his Archbishop’s robes, consisting of multi-layered dress worn over his normal clothing. The robes were shown to the jury and exhibited as part of the trial with a demonstration of how they were worn. Pell argued that the nature of the robes meant that was impossible for him to expose himself while wearing them.

9.      AA testified that he and victim BB were caught drinking red wine in the sacristy. Pell argued that at the time only white wine was used at the Cathedral because of a preference by the then Dean of the Cathedral. Evidence was called by a wine supplier, but it remained unclear whether white, red or both wines, were available at the Cathedral at the time. Pell’s team argued that AA made up the wine reference based on Catholic tradition of using red wine during mass.

10.  The silence of both boys in the years after the abuse was used by Pell as strong evidence that it never happened. His team argued that if AA and BB were abused they would have, at the very least, discussed it among themselves. There was no evidence at trial that they had discussed it with anybody. AA swore he didn’t discuss it with BB, and there was evidence that even when asked by his mother, BB denied being abused while a chorister.

The jury subsequently convicted Pell.  I have worked with and observed a large number of juries. My experience is that they normally come to reasonable decisions. The collective mind of 12 individuals is a powerful thing. However, I cannot help but wonder what occurred in that jury room for them to arrive at the verdict that they did. It is dangerous to dabble in conjecture when there are guilty verdicts handed down by juries.  As previously mentioned, this article will try to avoid that. However  whilst I will not dirty my hands, others have made interesting comments in this regard:, and especially those of Fr Frank Brennan

Further I believe the responses by Bishop Anthony (, and Bishop Timothy Costelloe ( are very appropriate and Catholics should use them as guidance.

The fallout

To my mind, the most concerning aspect of this saga has been the fallout. It is now evident how ignorant the vast majority of Australians are concerning the operation of the legal system, from the relevance of concessions in sentencing, to the requisite knowledge a referee must have of the charges when penning a character reference. Further, the mob, fuelled by the media, has acted in a way nothing short of barbaric from the abuse of Pell’s legal counsel for defending his client to journalists posting smirking victory photos of themselves to social media (see Greg Barns’ article for News Weekly

Recently Steve Skojec penned an article where he undertook a wholistic analysis of the Pell affair, from the conduct of the trial to the wider conspiracies that are circling the Vatican ( Regardless of how far one’s imagination takes them in this regard, one thing is for sure: the Catholic Church is hated, wounded and facing perhaps the greatest onslaught in its history, from within and without. In the face of this turmoil, anyone who dares bear witness to the Church will be hated. This fight has become personal. This is the Church against the world. This is every Catholic against the world. Perhaps, as Steve Skojec suggests, this is the beginning of the long and painful reformation and purification of the Church. Perhaps Pell is the sacrificial lamb slain to kickstart the long brutal Reconquista. And brutal it will be. However, one thing is for certain. Courage and conviction, knowledge of one’s faith, and the enemy, and a collective, unified apostolic church, both clergy and laity, is needed more now than it has ever been in the Church’s 2000-year-old history. If the Church fails to react accordingly, who knows what awaits in the next onslaught of the world, the flesh and the Devil.

All articles are written by members of the Youth Group (unless indicated otherwise) and approved by the parish priest.

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