The unanimous acquittal (7-0) by the Australian High Court, the country’s highest, of Cardinal George Pell on allegations sexual abuse from an anonymous witness amid a supercharged media environment exposes serious weakness within the Australian court system.
Pell was convicted on five counts of sexual abuse in the Victorian state County Court last year after an earlier mistrial in which the jury failed to come to agreement, and a 2-1 split decision in the Victorian Court of Appeals. The 78-year-old Catholic official was forced to serve 404 days, mostly in solitary confinement.
Nonetheless, Asia Sentinel was told that “the case against Pell was a put-up job.” The initial allegations of sexual abuse were made against a parish priest, not Pell. There were many matters of fact, evidence, and witnesses indicating that the taskforce failed to do their due diligence, leading to the Department of Public Prosecutions refusal to handle the case in the first instance.
The acquittal has led to vandalism attacks on churches, anger and protest by sexually abused survivor groups, and even journalist David Marr suggesting immediately after the acquittal that the decision didn’t vindicate Pell. Victorian Premier Daniel Andrews issued a statement after the acquittal. “I make no comment about today’s High Court decision, but I have a message for every single victim and survivor of child abuse: I see you. I hear you. I believe you.”
The High Court ruled that the trial jury “ought to have entertained a doubt” that Pell may have not been guilty. The prosecutor’s case in the initial trial hinged solely on the testimony of the complainant, whose identity was concealed, as usual in sexual abuse cases, and who claimed he was sexually abused immediately after a mass at St Patrick’s Cathedral in Melbourne in 1986. The defense claimed that Pell would not have had the opportunity to commit these acts after the Mass due to not being physically able to get to the sacristy where the acts were said to have happened and that he was in a different place at the time.
A number of defense witnesses testified, including Monsignor Charles Portelli, who said he was at Pell’s side during the whole time Pell was at the cathedral.
The Australian court system is not new to controversy. In Victoria, prison escapee Ronald Ryan was found guilty of shooting a prison warder during an escape. Ryan was sentenced to death and hanged in 1967, even though there were doubts over some of the evidence that convicted him. Lindy Chamberlain was charged with the murder of her daughter, who disappeared while they were camping at Ayers Rock, in the Northern Territory. Chamberlain argued that her baby was taken away by a dingo, but she was convicted on questionable evidence and sent to jail. Later, new evidence emerged that supported her contention that the dingo had snatched her daughter and she was released.
Former Canberra public servant David Eastman spent 19 years in jail after being convicted of murdering police assistant commissioner Colin Winchester. The conviction was quashed after a judicial inquiry, and retrial, where Eastman was found not guilty and was freed.
The media, led by the Guardian and national broadcaster ABC, led a decade-long campaign against Pell. Even with the acquittal, the ABC stands its content and is re-editing its Pell documentaries. ABC commentator Barry Cassidy tweeted after Pell’s acquittal that “The High Court has found there was not enough evidence to convict. It didn’t find him innocent. You are then entitled to maintain your view and you are under no obligation to apologize for holding those views.”
In a hyped media environment that was clearly hostile towards Pell, the case for trial by judge rather than jury has merits in the interests of conducting a fair and impartial trial. This calls into question whether any jury under media bombardment about issues which polarize a community could provide an unbiased verdict.
The trial was commenced just after Prime Minister Scott Morrison delivered a high-profile national apology to victims and survivors of institutional child sexual abuse on behalf of the Australian government. The state of Victoria is the only Australian state which doesn’t allow trial by judge in criminal cases.
There has been criticism about the way the Victoria Police pursued their investigation. Operation Tethering was commenced back in 2013 to undertake an open-ended investigation of any crimes Pell may have committed, without any complaints filed with police. The task force openly advertised for complainants and was able to only get one to come forward after three years. Lawyer, Jesuit priest, and human rights advocate Frank Brennan suggests that the police were just simply out to get the cardinal.
The case against Pell rested solely on the testimony of the complainant, whose identity was suppressed because of court procedure in sexual abuse cases. Sources who grew up with the complainant in Ballarat told Asia Sentinel that the complainant had been sexually abused at some time at school. The police encouraged and suggested to the complainant, who had scattered recollections, deep suppression of his ordeal, and a drug habit, that Pell was the perpetrator.
Many saw the prosecution of Pell as a trial of the Catholic Church. The suppression of evidence during the trial did not allow the public to see the facts of the case. The only information available was the negative media campaigns against Pell. It was only at the appeal, several months after Pell was convicted, that any of the facts of the case came out. However, few were interested in the facts, as vocal groups were in venting their hate towards Pell. Only a small handful of legal and media commentators looked at the crucial issue of whether a reasonable doubt about guilt existed in the case.
The High Court 7-0 decision to acquit Pell puts the 2-1 decision of the Victorian Court of Appeal to uphold the conviction in scrutiny. Why did two senior Victorian judges ignore Pell’s evidence of alibi? Why did two senior judges dismiss the facts that Pell had little opportunity after mass to be in the sacristy as described by the complainant? Why was the burden of proof so much on the defence?
This indicates that there is a danger that the court has been found wanting in serving justice, where reform needs to be discussed urgently, if the system is going to operate without fear or favour.
There are deeper political issues here. Back in 2013, the Victorian Police Force and Catholic Church were at war with each other over sexual abuse within the church. There were some within the force who wanted to teach the church a lesson. There remain questions about the integrity of the taskforce in handling complainants and the whole Pell investigation. There are also questions as to why the Department of Public Prosecutions (DPP) continued with a weak case.
There are already calls for a Royal Commission into the Pell case to question the role of the media, police force, and judiciary. There is also concern that any such Royal Commission may not be able to look at the issues objectively in the state of Victoria.
The Premier of Victoria, Daniel Andrews has also been found wanting in his behavior. Rather than address the issues of integrity and even legality within arms of the government, Andrews chose to placate the survivors of sexual abuse, who have been done a gross disservice by the shoddy work of the police force and DPP. The complainant in the Pell case was put under years of unnecessary stress, and now it will be much more difficult to successfully prosecute pedophile priests through the judicial system.
The symbolism of Pell being released during the month of lent just before Easter will not be unnoticed in future pro-church narratives. However, Pell will very soon see the inside of a courtroom very soon with eight civil suits against him over sexual abuse by victims. Only last week, new allegations surfaced against Pell for sexual abuse, which are yet to unfold. In addition, the federal attorney-General, Christine Porter said that full Royal Commission Report into Institutional Responses to Child Sexual Abuse, which focused on the Catholic Church in Ballarat, which includes testimony from Pell, will be released.
Originally published in the Asia Sentinel