Greg Daly
Cardinal Pell is bound to be found innocent in a Church trial, writes Greg Daly
It’s long been a point made by the Church’s more measured defenders that canon law allows the Church to take disciplinary action against its members when the State – for whatever reason – cannot act.
Sometimes, as in the case of former Cardinal Theodore McCarrick, who Pope Francis removed from ministry last year and from the clerical state early this year, the Church can act because laws allow for action to be taken in connection with allegations from decades ago, beyond the statutes of limitations for many jurisdictions, including many US states.
Perhaps more importantly, the burden of proof in canonical trials is lower than in civil courts, with canonical decisions made on the basis of a balance of probabilities rather than needing to be proven beyond reasonable doubt; one thinks of how erstwhile Cloyne cleric Dan Duane was twice acquitted in Irish courts, but was removed from the clerical state after a canonical trial and a series of unsuccessful appeals, including one to Pope Francis.
Where will this leave Cardinal George Pell, who continues to maintain his innocence despite having last week lost his appeal to overturn a conviction of child sexual assault, and who intends to appeal the matter to Australia’s High Court?
Burden of proof
On the face of it, we might expect the Church – with its lower burden of proof – to follow the Australian courts and deem him guilty, ejecting him from the college of cardinals and removing him from the clerical state. A careful examination of last week’s judgment, however, suggests that if Rome wishes to do what is right, rather than what is popular, it will probably acquit the cardinal of the charges against him.
Some might say this is delusional, with US journalist Michael Sean Winters writing in the National Catholic Reporter that the incredulity of the cardinal’s friends derives from their belief that an orthodox defender of Catholic sexual teaching could never have been an abuser. This, unfortunately, is an example of what C.S. Lewis called ‘Bulverism’, a refusal to show that people are wrong in favour of explaining how they came to be wrong.
While the Judgment Summary for Pell vs The Queen is a mere seven pages long, the Reasons for the Court of Appeal runs to 325 pages, of which fully 200 are devoted to the forensically detailed dissenting judgment of Justice Mark Weinberg, compared with which the rather more brief judgment of Chief Justice Anne Ferguson and Court of Appeal President Justice Chris Maxwell looks, it might be said, complacent and scanty.
More to the point, it is very clear from Justice Weinberg’s lengthy dissent that he did not disagree with his fellow judges in arguing that December’s conviction was unreasonable because he was convinced that an orthodox defender of the Church’s teaching on sexuality could ever have been an abuser. Rather, his dissent on this issue was because he believed that given discrepancies in the prosecution evidence and the litany of improbabilities necessarily involved in the case, there were simply no grounds to convict Cardinal Pell, and that the jury in trial should have realised this.
Claiming, in short, that Pell’s friends can only be defending him on ideological grounds is, frankly, ludicrous given how one of the three appeal judges concluded: “there is, to my mind, a ‘significant possibility’ that the applicant in this case may not have committed these offences. That means that, in my respectful opinion, these convictions cannot be permitted to stand. The only order that can properly be made is that the applicant be acquitted on each charge.”
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It is worth recalling, grim though it is to do so, exactly what the cardinal was accused of.
According to the evidence of a onetime choirboy identified only as ‘A’, on December 15 or 22, 1996, the then Archbishop Pell had discovered A and another choirboy drinking altar wine in a sacristy of Melbourne’s St Patrick’s Cathedral right after Mass and sexually assaulted them, publicly assaulting them some time later in a corridor where lots of choristers were milling about.
For this to have happened, the defence had maintained, the distinctively dressed choirboys would have needed to have broken from the procession out of the cathedral without being noticed. They would have needed to go to a sacristy where the altar wine was, contrary to practice, not locked away.
There were inconsistencies, and discrepancies, and a number of his answers simply made no sense…”
The archbishop would likewise need to have broken from the procession despite his normal behaviour, with nobody remembering this irregular move. He would have needed – on his first or second Sunday solemn Mass in his newly refurbished cathedral – to have refrained from chatting to parishioners outside the cathedral door.
The archbishop’s master of ceremonies would need to have failed, despite regular practice and church requirements, to have left the archbishop alone. The priests’ sacristy would need to have been unlocked but without the sacristan going to and fro such that the two choirboys would have had a chance of getting at the altar wine. It would need to have been empty of people other than the two boys and the archbishop in the 10 to 15 minutes after Mass during which it and the corridor outside it were typically a hive of activity.
The list goes on, but one thing is clear: for the allegations to have even been plausible, a whole series of highly improbable things would need to have happened.
Not, of course, that this possibility would have been enough to convict Cardinal Pell, ruled Justice Ferguson, claiming that the cardinal’s defence team had “mischaracterised” the prosecution in criticising its failures to chase down whether or not the things that might have happened had actually happened.
“The Crown case was not based on mere possibility,” she wrote. “As the judge instructed the jury, mere possibility ‘is clearly not enough’. On the contrary, the prosecution argued that the account given by A was so obviously truthful that the jury could be satisfied, beyond reasonable doubt, that the events had occurred as he described them. A’s evidence was said to provide a sure foundation for guilty verdicts.”
And was it so sure? Certainly, for two out of three appeal judges this seems to have been the case.
“Throughout his evidence, A came across as someone who was telling the truth,” they ruled. “He did not seek to embellish his evidence or tailor it in a manner favourable to the prosecution. As might have been expected, there were some things which he could remember and many things which he could not. And his explanations of why that was so had the ring of truth.”
Answers
Indeed, commenting on this “ring of truth” in the claims of A, Justice Ferguson writes: “Both the content of the answers, and the manner of their delivery, were said to be such as to eliminate any doubt a juror might have had. In our view, this was a very significant part of A’s evidence. It was rightly characterised as compelling, both because of the clarity and cogency of what A said and because of the complete absence of any indication of contrivance in the emotion which A conveyed when giving his answers.”
For Justice Weinberg, however, subjective talk of a “ring of truth” simply wasn’t good enough grounds on which to uphold a conviction, especially in light of the wealth of evidence challenging A’s evidence.
Pointing out that Australia’s High Court has noted that it can be dangerous to rely excessively on the appearance of a witness rather than more objectively reliable matters such as contemporary documents, clearly established facts, and the apparent logic of the events in question, Justice Weinberg cautioned that the demeanour of witnesses is not a reliable guide to the truth or otherwise of their evidence.
Given that A’s demeanour shouldn’t be taken as confirming the truth of his claims, it is striking that even a brief survey of his evidence showed that “there was ample material upon which his account could be legitimately subject to criticism”.
“There were inconsistencies, and discrepancies, and a number of his answers simply made no sense,” said Justice Weinberg, but while he would not conclude that the allegations around the first incident, if not the second, were fabricated, even without examining the counter-arguments cited by the defence he would still have had problems with A’s allegations.
“At the same time,” he wrote, “I would not be prepared to say, beyond reasonable doubt, that the complainant was such a compelling, credible, and reliable witness that I would necessarily accept his account beyond reasonable doubt.”
Justice Weinberg, in other words, had serious problems with A’s evidence even without considering the evidence of others. As the summary judgment of the case notes, however, that evidence had to be considered.
“Justice Weinberg found that the complainant’s account of the second incident was entirely implausible and quite unconvincing,” it recorded. “Nevertheless, Justice Weinberg stated that in relation to the first incident, if the complainant’s evidence was the only evidence, he might well have found it difficult to say that the jury, acting reasonably, were ‘bound’ to have a reasonable doubt about the cardinal’s guilt.
“He went on to note, however, that there was more than just the complainant’s evidence. In Justice Weinberg’s view there was a significant body of cogent and, in some cases, impressive evidence suggesting that the complainant’s account was, in a realistic sense, ‘impossible’ to accept,” the summary continued.
‘Impossible’, curiously enough, seems to have become a key word in the trial, with Justice Weinberg expressing concern that in talking about impossibility, the defence lawyers set a forensic hurdle in the minds of the jury that the defence never actually had to overcome.
Onus
Pointing out that the onus had always been on the prosecution to establish guilt beyond reasonable doubt, Justice Weinberg said that “something considerably less than ‘impossibility’ was clearly sufficient to create such a doubt”, and that with hindsight it might have been better if the potentially misleading term ‘impossible’ had been entirely avoided.
A focus on impossibility, after all, had enabled the case to become in many ways one about possibility. Could such and such a thing have happened? In theory, yes, but it never did as there was an established and regular practice. But it’s possible it could have happened? Yes. And so the argument of impossibility was demolished.
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The reality, of course, is that in pondering the conflict of evidence between A and the 20 or so witnesses, the question should not have been about possibility, but about probability, and in this respect it’s especially important to consider the way in which the defence case pointed to a compounding of improbabilities.
In order for the complainant’s account to be capable of being accepted, a number of the ‘things’ set out by [the defence lawyer] had to have taken place within the space of just a few minutes,” Justice Weinberg said. “In that event, the odds against the complainant’s account of how the abuse had occurred, would have to be substantial. The chances of ‘all the planets aligning’, in that way, would, at the very least, be doubtful. This form of ‘probabilistic analysis’, if properly applied, suggests strongly to me that the jury, acting reasonably, on the whole of the evidence in this case, ought to have had a reasonable doubt as to the applicant’s guilt.”
In particular, Justice Weinberg said, the evidence of Fr Charles Portelli, who in 1996 was Master of Ceremonies at the cathedral, and of Max Potter, the then sacristan, was especially important when it came to the question of whether the then archbishop would have had an opportunity to commit the alleged crimes.
“Whether or not it was possible for the applicant to have committed the offences embodied within the first incident depended largely upon the view that was to be taken of the evidence of ‘alibi’, and of the constant accompaniment of the applicant by Portelli,” Justice Weinberg said.
“It also depended upon the evidence concerning the ‘hive of activity’ at the Priests’ Sacristy, shortly after the conclusion of Sunday solemn Mass.”
It was, he said, for the prosecution to negate that evidence, since even a reasonable possibility that their testimonies were true “must inevitably have led to an acquittal” because the complainant’s account could not be reconciled with their testimonies.
Clerics, more than anybody, will know the realities of normal practice in cathedrals”
The prosecution, Justice Weinberg said, had attempted to reconcile the testimonies to some degree by venturing that the then archbishop’s practice of standing on the steps of the cathedral and talking to worshippers immediately after Sunday solemn Mass might not have begun until 1997.
Even leaving aside, however, Fr Portelli’s statement that he had a clear memory of the first two times when the then Archbishop Pell had celebrated a Sunday solemn Mass in the cathedral, this ignored how another witness, Peter Finnigan – who left his position as cathedral choirmaster in Christmas 1996 – had by then seen the archbishop on the steps, talking with parishioners after Mass.
“Having had regard to the whole of the evidence led at trial, and having deliberated long and hard over this matter, I find myself in the position of having a genuine doubt as to the applicant’s guilt,” Justice Weinberg said, adding that in accordance with the principles laid down by Australia’s High Court in the 1994 case of M vs The Queen, the jury should have had the same doubt as him.
“That is not because I am necessarily to be regarded as being better able to evaluate factual issues of the kind raised in this trial. It is rather because the High Court has said definitively that ordinarily, my doubt is a doubt that the jury ought to have had,” he wrote.
Acquittal
As noted, Cardinal Pell has decided to appeal his case to the High Court, and given the forensic and thorough nature of Justice Weinberg’s dissent one would think his chances of acquittal at that stage would be substantial. In the meantime, discussion continues about what the Church should do.
Canonical trials, remember, are based not on reasonable doubt but on a balance of probabilities, and it is worth remembering that when the cardinal’s case is finally investigated in Rome it will be investigated by people familiar not merely with the evidence but by people familiar with the logistical realities of church and cathedral life.
Clerics, more than anybody, will know the realities of normal practice in cathedrals and their sacristies before and after Mass, especially when a bishop is celebrating, and with what can realistically be done at speed by priests and bishops wearing cumbersome chasubles and cinctured albs.
It might be – might – the case that Cardinal Pell should resign from the College of Cardinals for the good of the Church. It is very hard to see that any canonical court would recommend that he should be removed from the clerical state.