This is a brief response to the Australian High Court ruling handed down on Tuesday that unanimously quashed the convictions of George Cardinal Pell, though I have to begin with a lengthy and personal digression.
The first point, then, will be methodological. In considering matters of fact one can raise two types of questions, whether the "facts" really happened, what we might call the question for truth, and the further question of what was going on, what we can call the question for understanding. Juries have to "try the facts" (that is, ask the first type of question), and essentially this was what concerned the HCA. That's an oversimplification, but the point I want to make here is that the attempt to understand what was going on is a further question from which the HCA rightly prescinded. The business of Their Honours was primarily to see justice done and to get Pell released today, and hardly at all to answer the questions of future historians.
I make this remark because when I started writing on Pell in March 2019 I did so quite convinced by Frank Brennan's article.[i] My question was really the second type. Hopefully, I made it clear enough that I was trying to work out what was going on, and doing so in a process, an ongoing inquiry, that might never be resolved. To that end, at first, I turned principally to Louise Milligan in order to figure out the truth from what I regarded as a "distorting mirror" and my key idea was to try and work out what was behind the various alterations to the complainant's story (the "narrative shifts"). Although I never tackled this question at first, I noticed immediately that the complainant claimed to have knowledge of the wood panels in the sacristy, a fact that made it obvious that he had received some "help." But as indicated, until around June 2019 I tended to concentrate on the "Get Pell Network" and the fruit of this research was a long book review that can be found here.[ii] Of course, and to repeat, it does not argue to Pell's innocence the way an advocate would, but from that assumption in order to figure out what was happening.
However, when the VSCA Ruling emerged in August I was able to avail myself of far more data, and in particular, to the wisdom contained in Mark Weinberg's magisterial dissent. From that moment I thought of myself as an "apprentice" writing "footnotes to Weinberg," a brilliant mind who of course had information that I lacked (and lack). Generally speaking, my question then was more of the first type, advocating for Pell, so to speak. In part this was because I had complacently presumed that the June hearing would see Pell's release after all, Bret Walker's concise statement to the media had been perfectly comprehensive.[iii] From around that time (until November), I shelved the "what's going on" question, leaving it back where I parked it in June.
Curiously, though, I came to make some discoveries that had a bearing on that question, indeed, as regards that matter about the coaching on the layout. Still, it took me quite a while for the penny to drop, despite the fact that the main ideas a fairly simple. The first thing that struck me was something I thought astonishing, namely that I had spotted something that Weinberg had missed. I had been studying the photos of the sacristies area and it dawned on me that if Pell was in the doorway he would be invisible to two boys in the alcove. I opened with what I took to be an extremely provocative sentence: Even Justice Weinberg missed it. As explained, between the doors and the alcove stood a solid obstacle.[iv] Still, after this realisation I returned to my central concern about narrative shifts and realised that with Pell at the doors and the boys in the concealed area we had two stories conflated. It would have been obvious to anyone in the walkthrough that any such allegation would have been impossible, and so I started disentangling the older and newer accounts, paying particular attention to the Rome interview. As a result I was able to write a series of pieces on this discovery that is succinctly put here,[v] and more carefully expressed here.[vi] By this stage I had access to more data including some notes taken of the first trial.
In fact, I had made progress on that early consideration about the wood panelling that I had tended to side-line. For it turns out that in the early narratives (as Pell was told by detective Reed) the complainant found wine in a storage area immediately to the left of the sacristy entrance with wood panelled doors, a piece of furniture that was apparently unchanged when he attended his walk-through. As the photos show, that furniture had two sinks, lockable bi-fold doors with wood panels, indeed, it even sported a bottle of wine. It was a kitchenette. But when the police spoke to Potter and Portelli (twice; I have seen his police statements) by the end of 2016 it would have been obvious that the complainant's credibility was in tatters. At the time of the allegations the furniture was then a wardrobe, used for hanging albs, with concertina doors of woodgrain vinyl. So not only had he not recalled the 1996 dcor, but the complainant had attained a disconcerting precision with regards to the modern sacristy. How could he possibly have known this? Moreover, the police also learned about a sink arrangement in the alcove, a "sacrarium," something that had attracted no interest whatsoever in 2016. This was by the vault where the wine was stored. How surprising then, that in the trial we find a narrative shift the wine was located in the alcove. Moreover, the older version of Pell in the doorway had to give. Thus in his closing address Mark Gibson relates how the boys knew Pell was there because they heard him approaching in the corridor!
This is a very compelling piece of evidence, but it is hardly to the credit of the police. Judge Kidd had not permitted the defence lines of questioning that would indicate foul play, and so they were not able to pursue the avenue. Robert Richter had actually been clear enough in the first trial that the complainant had found wine in the wardrobe, but somehow the clinching argument about the narrative shifts after the police discovery was never really spelt out.[vii] That gave the Crown its opportunity that it exploited well, even raising the issue about the complainant's familiarity with the sacristy layout in Canberra. Nevertheless, the exculpatory evidence has remained hidden.
Perhaps even the HCA were ignorant of the point, but more likely they were turning a blind eye. After all, they had a job to do and they did it well. Without at all discussing the "wine in the wardrobe" thesis they presented a unanimous and united front that set the Cardinal free.
Let's now turn to today's ruling. In many respects it draws on Weinberg and, in particular, the HCA take up three points well-argued by the dissenting judge. The first two regard the "steps alibi" (accentuated by Walker), and the testimony that Pell's MC would always accompany him so that he would never be robed and alone. As the SC put it in March, Portelli did not stand alone. The HCA fully support Walker here, even spelling out at (89) a point left unsaid (though not by Weinberg) that Finnigan could recall the meet and greet practice, and he had retired that Christmas which proves it was implemented early. One observation about the HCA that indicates how attentive they were to the evidence regards their detail on the procession which they put to good effect in critically examining some of the recall from the choristers on the applicant's movements after Mass (70-72).[viii]
Finally, the third and decisive point to which I frequently returned was the hive of activity or "the hiatus theory." That word is seen twice in the HCA, once in the VSCA majority, and never in the VSCA dissent. The hiatus was, to use Pell's term upon release today, the paradigm case of "manufactured obscurity." In the first trial the issue had been relatively clear: the sacristy was locked for Mass and then it was open; when the room was unlocked by the sacristan it was busy. But in the second trial the most convoluted reasoning was deployed to make the impossible possible. And the majority appear to have swallowed it. As the seven magnificently explain in (111):
The principal difficulty with the Court of Appeal majority's analysis is that it elides Potter's estimate of five to six minutes of private prayer time with the estimate of five to six minutes during which A and B re-entered the Cathedral, made their way into the priests' sacristy and were assaulted. The two periods are distinct.
Moreover, the HCA stress points understated by Walker in March regarding the presence of the altar servers and the concelebrating priests. In the HCA ruling the concelebrants (with "other priests") are mentioned nine times though no one knows who they were; and the altar servers are referenced over thirty times, though the trial would only hear from Connor and McGlone.
The point about the hive of activity was decisive, as it should have been for the police.
Turning to what was not said this morning, the HCA draw a veil over the wine in the wardrobe. The HCA have a detailed grasp of the layout, yet they are silent about the inside of the sacristy! They repeat the evidence, that the wine was located in the alcove, and that's where the boys were when Pell entered and yet, he is somehow visible in the doorway. The opening paragraph of the applicant's evidence at (15) is related as follows:
A and B were aged 13 years at the time of these events. A was a soprano. It was his evidence that, following Sunday solemn Mass, he and B had broken away from the procession at a point when it was approaching the metal gate to the toilet corridor. The two of them had slipped away and gone back into the Cathedral through the door to the south transept. The double doors from the south transept to the sacristy corridor were unlocked and they made their way down the corridor to the priests' sacristy, which was unlocked. They went inside and were "poking around." In a cupboard in an alcove they found a bottle of red altar wine. They had barely taken a couple of swigs from the bottle when the applicant appeared in the doorway. He was standing alone in his robes. He challenged them, saying, "[w]hat are you doing in here?" or "[y]ou're in trouble." A and B froze. The applicant undid his trousers and belt and started "moving ... underneath his robes."
The HCA make no effort to point out the difficulties here, and perhaps they are leaving the matter to be resolved at some future date. At (50) they note how the so-called knowledge that the complainant had of the sacristy layout was taken up by the majority, but the HCA simply observe that this "does not, however, provide support in the sense of corroboration of A's account."
This is what I would urge as the next step. I opened by considering two types of question, the question of fact that the jury ought to have resolved, but now has been resolved (in law, at least, by the highest court in Australia) and the question for understanding, the judgement of history, so to speak, that asks, "What's going on?" Although the HCA have made no great contribution to that question it must surely have crossed their minds. This is today's question. Now is the time to scrutinise the police and the Get Pell Network.
(The writer Doctor Chris Friel taught maths for many years before undertaking, first, a masters in Philosophy, and second, doctoral research on value and credibility in the thought of Bernard Lonergan. In 2018 he investigated at length the "purposely timed hysteria" of the pro-Israel hawks in the UK amidst the antisemitism crisis, and commencing in 2019 has devoted an equally lengthy exploration of the Cardinal George Pell case and its context).
Also by Chris Friel: Inquiry of prosecution into Pell should follow High Court ruling | A case of the man who knew too much - The Pell saga | Trials and tribulations of Barwon's highest profile prisoner | The final piece of the puzzle in the Pell case | Cardinal Pell - The Case for the Prosecution | Counsel for George Pell argues for conviction to be set aside | Reviewing the Pell appeal which goes before high Court on Wednesday | George Pell Case - The wine in the wardrobe revisited | Evidence in trial of Cardinal George Pell confusing and inconsistent | Hiatus theory in Pell trial looking increasingly wobbly | Cardinal George Pell conviction, uncanniest of them all | Where were the concelebrant priests if Pell was in the sacristy? | Juggling of times in Pell case only raises more questions | Pell alibi looms as crucial factor in High Court appeal | Chorister supported Crown case against Pell | The Pell case - "Having reviewed the whole of the evidence..." | Cardinal Pell's Innocence or Guilt - now a matter for the High Court | Credibility of George Pell accuser under scrutiny | A Critique of Ferguson and Maxwell | How the Interview Changed the Story | Cardinal George Pell learned of charges against him in Rome Interview
[viii] However, the HCA neglect to consider that before Mass the procession would be internal, so that choristers of the time would have seen Pell emerging from the priests' sacristy (when his own was out of action).
(Photo credit: AFP).