On 9 January 2020, officials at the Melbourne Assessment Prison intercepted a drone flying over the prison grounds. Remotely piloted aircraft are banned within 120 metres of a correctional facility in the Australian state of Victoria to avoid the smuggling of contraband and other security breaches. This drone was not fitted with drugs or weapons or mobile phones but a camera its operator hoped would capture the prison’s highest profile inmate. That inmate was Cardinal George Pell, the most senior member of the Catholic Church ever convicted of child sex offences.

Pell was moved to Barwon prison after the drone incident. Barwon houses Victoria’s most dangerous offenders, including serial killers Gregory Brazel and Paul (now Paula) Denyer, terrorist Abdul Nacer Benbrika and Barbaro ‘Ndrangheta crime clan leader Pasquale Barbaro. It was Barwon where the leader of a prison gang beat well-known Melbourne crime figure Carl Williams to death with a metal rod extracted from an exercise bike in 2011.

From Ballarat to Barwon via Oxford and Rome

Barwon is a mere one hour drive from Ballarat, the regional Victorian city where George Pell was born in 1941. A natural athlete and a towering figure at six foot four, Pell played competitive Australian rules football throughout his youth, rising to the reserve grade of the country’s peak league. Pell’s football career abruptly ended when he entered the Corpus Christi College seminary in Ballarat. This was an unhappy turn of events for the young Pell’s father, a non-practising Anglican and former heavyweight boxing champion.

After finishing at Corpus Christi, Pell moved to Rome where he undertook postgraduate studies, and was ordained a priest at St Peter’s Basilica in 1966. He was then accepted to study at the University of Oxford where he was conferred a Doctor of Philosophy degree in 1971 for a thesis on authority in early Christianity. From there, Pell returned to regional Victoria where he worked as a parish priest and church administrator, rising through the ranks over the next decade and a half. In 1987, he was appointed Bishop for the Southern Region of Melbourne, a post in which he served until becoming Archbishop of Melbourne in 1996. Pell was head of the Melbourne archdiocese until 2001 when he took up the equivalent post in Sydney where he remained until 2014.

In 2003, Pope John Paul II announced Pell’s elevation to the Sacred College of Cardinals, the formal body responsible for advising incumbent popes and selecting new ones by convocation in the Sistine Chapel upon the see becoming vacant. In 2014, Pope Francis appointed Pell to become Prefect of the Secretariat for the Economy of the Holy See, the head of the Vatican’s finances.

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The Scandals

Cardinal Pell’s ascension within the Catholic Church coincided with the decline of its own standing across the Western world. And Pell was not immune from the scandals that continue to plague the Church. During his first clerical assignment in Australia in the early 1970s, Pell’s housemate was Gerald Ridsdale, the man now recognised as Australia’s worst paedophile priest. Notoriously, Pell accompanied Ridsdale to his hearing regarding sexual assaults on young boys in 1993, even though Ridsdale had already pleaded guilty.

No complaints were made against Pell for the first 35 years of his career, however, even though he was surrounded by children throughout this period. While at Oxford, Pell served as a chaplain for Eton College. Prior to becoming a bishop he worked consistently in the education sector. Before an inquiry in 2013, Pell remarked that “in the archdiocese of Melbourne when I was here there were
 140,000 students.”

But in 2002 Pell was accused of sexually assaulting a boy at a summer camp 41 years earlier. An inquiry overseen by former Victorian Supreme Court judge AJ Southwell QC (an Anglican) was set up to investigate the claims. Because this was not a prosecution where a prison sentence was possible, Southwell stressed that the standard of proof was lower than the “beyond reasonable doubt” test used in criminal cases. Nevertheless, in summing up Southwell said:

[B]earing in mind the forensic difficulties of the defence occasioned by the very long delay, some valid criticism of the complainant’s credibility, the lack of corroborative evidence and the sworn denial of the respondent, I find I am not “satisfied that the complaint has been established.”

The next time serious charges were levelled against Pell was in June 2015. As with the 2002 allegations, the relevant actions in this case occurred many years previously (in 1996), and the sole supporting evidence was the complainant’s own assertions. The complaint was made three years after the SANO Taskforce was set up to solicit information and investigate claims of abuse in the Catholic Church in Victoria following the release of a damning report in 2013. Around the same time, allegations were made that Pell had fondled young boys in a swimming pool in the late 1970s, claims later thrown out for lack of evidence.

In February 2016, Police flew to Rome to interview the former Archbishop regarding the 1996 allegations. Pell’s denials were emphatic. “The most rudimentary interview of staff and choir boys at the Cathedral,” he said, “would confirm that the allegations are fundamentally improbable and most certainly false.” Nevertheless, in June 2017, Pell was formally charged with multiple offences. The trial commenced in August 2018 and ended in a hung jury. A retrial was ordered and another jury empanelled. This time, on 11 December 2018, the jury unanimously found the 78-year-old Pell guilty on all charges. He was given a six-year prison sentence.

The Claims

The events the complainant alleged and which the jury ultimately accepted were as follows.

The First Incident

The complainant, who cannot be named for legal reasons, and another boy referred to in court documents as “B” or “the other boy,” were members of the choir at St Patrick’s, an imposing gothic cathedral adjacent to the Victoria Parliament and the seat of the Archbishop of Melbourne. On a Sunday in December 1996, the two boys, then aged 13, broke away from the procession as it exited the Cathedral after Sunday Solemn Mass. They re-entered the church via a side entrance and walked into the priest’s sacristy. Inside they poked around, found sacramental wine in an unlocked cupboard, and began drinking it.

A short time later Archbishop Pell entered the room. Pell told the boys they were “in trouble” and without closing the door advanced towards them. Pell manoeuvred his penis out of his robes and, one after the other, forced the boys to fellate him. This lasted for a few minutes. Pell then told the complainant to take down his pants, at which point Pell masturbated the complainant and himself.

The Second Incident

Two months later, in February 1997, Pell allegedly pinned the complainant against a wall in the middle of a procession at St Patrick’s. Approximately 50 people, including several adult choristers and clergymen, were present for the procession. While pinned against the wall, Pell violently grabbed the complainant’s testicles before walking away and never interacting with the complainant again.

The Doubts

Several factors cast doubt on the accuracy and/or veracity of the complainant’s account. These include inconsistencies in the complainant’s timeline, the manner in which the events allegedly unfolded, and the fact that no one witnessed any aspect of the complainant’s version of events, while several credible witnesses gave evidence in support of the defendant’s.

The Timeline

The complainant initially asserted that the two incidents occurred within a few months of each other in 1996. It transpired that the first time Pell said mass at St Patrick’s was 15 December, rendering this timeline impossible. The prosecution then changed its story, stating that the first incident occurred in 1996 and the second in February 1997.

The prosecution’s timeline also relied on the fact that Pell rushed from the procession to the sacristy where the first incident occurred. But by convention the Archbishop would greet parishioners at the front steps after Sunday Solemn Mass, and three witnesses gave evidence they saw Pell doing so on the relevant dates. It is not hard to believe they would remember this. These were the first occasions Pell said Mass in front of his new parish, members of which would have been eager to greet the new Archbishop.

It is also a rule of the Catholic Church that bishops are not left alone while robed. The Master of Ceremonies, Portelli, was responsible for accompanying Pell, and gave evidence that he was never separated from the Archbishop while robed on the relevant occasions and would have remembered if he was.

Finally, the prosecution eventually conceded that special rehearsals involving the entire choir occurred after mass on both of the only dates in December on which the offending could have occurred. The complainant’s evidence was that after he was assaulted he went back to the choir room, got changed and was picked up ten minutes later than usual and never accounted for why.

The Sacristy and the Robes

The sacristy was, according to several witnesses, a “hive of activity” after Sunday Solemn Mass. It was the room where the Archbishop and concelebrant priests vested and de-vested, and where the Dean brought collection monies after Mass to be stored in the vault (where several witnesses said the wine was also stored and was therefore inaccessible). The complainant asserted Pell left the door wide open while he committed the crimes, and that no one arrived in the five to six minutes during which the assaults occurred.

When questioned about how Pell revealed himself while robed, the complainant said Pell manoeuvred his robes to one side. Several clergymen gave evidence that the arrangement of the Archbishop’s vestments would have made this impossible. These consisted of an alb which is an ankle length tunic with no opening at the front, and a chasuble which is a knee-length overthrow. Both are fixed by a rope called a cincture which acts as a belt and which Portelli assisted the Archbishop to affix and undo. It would have been possible for the Archbishop to reveal himself to the boys in the sacristy. But it would not have been possible for him to do so in the manner the complainant alleged.

The Lack of Witnesses

The other boy died of a heroin overdose in 2014 at the age of 31. He was asked during his life whether he had ever been “interfered with” at St Patrick’s Cathedral and responded he had not. It was not until soon after the other boy died that the complainant went to police, leaving no possibility of the first (and more serious) crimes being corroborated.

There could have been corroboration of other aspects of the complainant’s version of events, however. Indeed several witnesses said they would have noticed a chorister leaving the procession as it traversed the nave and that they did not. The complainant provided no explanation for this or for how he and the other boy made it back into the choir room unnoticed. There were no witnesses to the second event either.

The Abolition of Legal Safeguards

Three legislative changes had a significant effect on the trial.

First, as little as twenty years ago, prosecutions based on historical facts, if brought at all, would have been stayed as an abuse of process. This was because memory is prone to corruption over time, and because it becomes more difficult to obtain objective evidence to either substantiate or refute facts the longer in the past they are alleged to have occurred. Further, since 2014, judges in Victoria have been required to inform juries in cases like Pell’s that “people may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence”; and that “delay in making a complaint in respect of a sexual offence is a common occurrence.”

Second, until 1980, cases in which a prosecution relied solely on uncorroborated testimony, the presiding judge would warn the jury about the unreliability of such evidence. The reason for this was that an honest complainant may have imperfect memories, some complainants are dishonest, and others may be delusional. The case of Carl Beech is instructive in this regard. In 2014, British police set up “Operation Midland” in response to Beech’s claims. Reputations were destroyed. Innocent men were arrested. Doors were knocked down in midnight raids. All based on the claims of a mentally ill fantasist.

Third, until 2006, both witnesses and the accused had to be physically present at trials so that juries could assess their demeanour. In Pell’s first trial which resulted in a hung jury, the complainant’s examination-in-chief was recorded before the trial, while the cross-examination was filmed outside court and streamed live to the jury. In the second trial these recordings were simply replayed. Neither the complainant’s examination by the prosecution nor his cross-examination by the defence has been made available to the public.

Reasonable minds can disagree about the merits of these reforms. What cannot be disputed is that they require appeal courts to review cases like Pell’s with greater care and vigilance than before.

The Appeal

Pell’s appeal was heard in the Victorian Court of Criminal Appeal on 5 June 2019. The question before the court was whether or not the jury’s verdict was reasonable based on the evidence available to them. By a majority of two to one, the judges ruled that it was.

A Credible Witness

The judges were especially impressed that the complainant was able to describe specific features of the priests’ sacristy, and that he was aware the Archbishop’s sacristy was undergoing renovations at the time of the first alleged incident. Of course, the complainant might have remembered these facts because he was assaulted by George Pell in the relevant place at the relevant time. But it is also possible that the complainant entered the sacristy on the relevant day and no assault occurred, or that the complainant accessed information about the sacristies, the church’s history and the renovations it has undergone, all of which is freely available online.

More curiously, the majority considered the improbable nature of much of the complainant’s account increased the likelihood that it was true. The judges said it was unlikely the complainant would have invented the second incident because of it “markedly increasing the likelihood that the whole story would unravel.” They added that Pell not threatening the boys about repercussions should they report the first incident “tended against the contention he had made it up.”

Finally, the dissenting judge said of the complainant’s account: “There were inconsistencies, and discrepancies, and a number of his answers simply made no sense.” The majority judges’ answer to this was that “the changes seemed to us to be typical of what occurs when a person is questioned on successive occasions, by different people, about events from the distant past.” The majority judges were less sympathetic, however, about memory lapses on the part of all of the other witnesses who gave evidence and understandably could not recall certain events which occurred over 20 years previously.

Portelli’s Evidence

The majority said the jury was entitled to have “reservations” about Portelli’s evidence because he was unable to recall certain facts about services held at St Patrick’s in 1996. They also commented on “the improbability—given the lapse of time—of Portelli’s having a specific recollection of particular Masses, in the absence of some significant and unusual event having occurred at one or other of them.” But the first incident was alleged to have occurred on the first occasion George Pell said Sunday Solemn Mass at St Patrick’s, and several other witnesses corroborated Portelli’s account about the new Archbishop greeting parishioners on the relevant dates.

The Vestments

In his first police statement, the complainant said Pell “was wearing robes and he moved them to the side and exposed his penis.” During cross-examination, he repeated the claim that Pell “pulled aside his robe … and he pulled out his penis.” At this point the complainant was shown the ankle-length alb Pell would have been wearing at the time, and asked how his account could be squared with the fact that it extended to the ground and could not be parted. The complainant’s response was that Pell pulled it “however way that was: up, cross, down, right, left. He pulled it aside to reveal his penis.”

One wonders how lifting an item from the ground up above one’s waist could be consistent with pulling it aside. Nevertheless, the majority concluded: “To our observation, [the alb] was well capable of being manoeuvred … in a way that might be described as being moved or pulled to one side or pulled apart.”

Motive

The majority asserted that dishonest complainants usually have a motive for bringing false claims, and that in this case there was none. The judges gave the example that “where the alleged perpetrator was at the relevant time in a relationship with the complainant’s mother, it may be suggested by the defence that the complainant fabricated the allegations in order to break up the relationship.”

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There are many reasons why the complainant may have made up his story. It is also possible he convinced himself it was true despite the events never occurring. It would have assisted the defence if they could have proved one of these things were true of this case. But penalising the defendant for failing to do so was a tacit reversal of the burden of proof.

Indeed, reading the judgment, one could be forgiven for thinking the burden was on the defendant to prove his innocence rather than on the prosecution to prove his guilt. The majority repeatedly referred to the claims “not being impossible” and that the defence’s “fabrication hypothesis” had not been proved.

An Unsafe Conviction

No one can say with certainty that the complainant’s claims are false. Nor should anyone question the integrity of the jurors who heard the case or that of the judicial officers who supervised them at first instance and on appeal. But we are entitled to assert that an allegation is not a sufficient basis for a conviction in a civilised society.

The criminal law’s function is to convict the guilty and acquit the innocent. But it is also, as the eighteenth century English jurist William Blackstone said, “better that ten guilty persons escape, than that one innocent suffer.” That is why the prosecution must eliminate doubt if a defendant is to be convicted. In this case the doubts are, especially when considered cumulatively, not just appreciable but overwhelming.

If a prosecution’s case does not meet the standard of proof the criminal law demands it does not follow the complainant cannot obtain justice. He or she may make a claim in the civil courts where the bar to proving a case is significantly lower. But a criminal conviction is a society’s ultimate expression of moral disapproval, and presages the deprivation of an individual’s most fundamental rights. Only certainty, not suspicion, can justify the state taking so grave a step.

If a complainant reports historic crimes and the state chooses to press charges, the burden is on the prosecution to prove the claims are true. That could be done by way of physical evidence, witnesses to verify at least some aspect of the facts, or evidence from a person told about the events soon after they occurred. As the dissenting judge in the Court of Appeal said:

[Pell’s case] depended entirely upon the complainant being accepted, beyond reasonable doubt, as a credible and reliable witness. Yet the jury were invited to accept his evidence without there being any independent support for it … Indeed, there was no evidence from the complainant of his having ever told anyone about what the applicant had allegedly done, until at least 2014. There was no forensic, or other objective evidence, to support his account. There were no admissions, express or implied, upon which the prosecution could rely. The case was built around the complainant alone.

The law should pursue sex offenders decisively and punish them harshly. But we should keep sight of the fact that a claim, no matter how vigorously and persuasively made, does not prove it is true.

Pell’s case is not over. In March, Australia’s best legal minds will advocate on his behalf in the country’s highest court. Cardinal Pell does not need a miracle. He merely needs the High Court to reassert the basic tenets of the common law that have been jettisoned amid the understandable fervour to punish those who for many years committed unspeakable crimes against the vulnerable with impunity.