Pell: the High Court gives its reasons

The High Court has published its reasoning behind its seven-to-zero decision to set George Pell free. The full judgment can be read here.

Here are some key passages with explanations by Eternity in italics. This is how the High Court judges described their conclusions.

The High Court explained why it disagreed with the Victorian Court of Appeal which upheld the conviction 2-1: “It may be accepted that the Court of Appeal majority did not err in holding that A’s evidence of the first incident (which led to the first four charges) did not contain discrepancies, or display inadequacies, of such a character as to require the jury to have entertained a doubt as to guilt.” (That is, that Witness A, the choir boy complainant, was regarded as a witness of truth.)

Some of the “compounding probabilities” raised by the defence did not convince the judges. “The likelihood of two choir boys in their gowns being able to slip away from the procession without detection; of finding altar wine in an unlocked cupboard; and of the applicant being able to manoeuvre his vestments to expose his penis are considerations that may be put to one side.”

But other parts of the evidence did convince them. Monsignor Portelli was a key witness who gave uncontested testimony that Pell was with him. “It remains that the evidence of witnesses, whose honesty was not in question, (i) placed the applicant on the steps of the Cathedral for at least ten minutes after Mass on 15 and 22 December 1996; (ii) placed him in the company of Portelli when he returned to the priests’ sacristy to remove his vestments; and (iii) described continuous traffic into and out of the priests’ sacristy for ten to 15 minutes after the altar servers completed their bows to the crucifix.”

Even though witness A – the choir boy – was credible, the jury, if it rationally assessed the evidence, should have concluded there was a reasonable doubt of guilt. “Upon the assumption that the jury assessed A’s evidence as thoroughly credible and reliable, the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence summarised in (i), (ii) and (iii) above nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did. Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted.”

“There was a powerful body of evidence of the applicant’s practice of greeting congregants on the Cathedral steps following Sunday solemn Mass.” – High Court judgment

Here’s some more details – for people who want to get further into the case

Here’s why Portelli was such an important witness. “….the evidence that Catholic church teaching requires an archbishop to be accompanied while in a church, at least while the archbishop is robed, was unchallenged. And the evidence that it was Portelli’s role as the applicant’s (Pell’s) master of ceremonies to ensure that this requirement was complied with was unchallenged.” Portelli’s evidence was supported by other “witnesses of opportunity”. 

The fact that the two possible Sundays for the first (main) alleged incident were Pell’s first Sundays as Archbishop of Melbourne gave extra credibility to Pell having greeted the congregation at the West Door of the cathedral. On these Sundays, in particular, people would have wanted to greet him. And Portelli was very likely to have remembered those Sundays. “There was a powerful body of evidence of the applicant’s practice of greeting congregants on the Cathedral steps following Sunday solemn Mass and that, while the length of this ‘meet and greet’ varied, it occupied at least ten minutes. The applicant’s practice in this respect contrasted with that of his predecessor, Archbishop Little. Portelli served as master of ceremonies for both and it might be thought unremarkable that he should recall that on the first and second occasions on which the applicant, as the new Archbishop of Melbourne, celebrated Sunday solemn Mass in the Cathedral, he had greeted congregants as they left after the service.”

The “hive of activity” in the priests’ sacristy – the room where the first offences were alleged to take place – made it difficult for there to have been enough time for the offences to take place. “The Court of Appeal majority concluded that it was ‘quite possible’ for the priests’ sacristy to have been unlocked and that A and B might have entered the priests’ sacristy after the altar servers had bowed to the crucifix. (The altar servers had to take the holy vessels into the priests sacristy and bowing to the crucifix was part of what they did there.)

Their Honours further concluded that it was open to the jury to find that the assaults took place in the five to six minutes of private prayer time, (when the congregation sat in their pews praying at the end of the mass before the altar was cleared, but for this to have happened, there was time for Pell to greet people at the door) before the “hive of activity” in the priests’ sacristy, including the clearing of the sanctuary by the altar servers, began.

“The possibility for which their Honours allowed is not without difficulty. (The complainant) A, a soprano, was close to the front of the procession. If A and (his fellow choir boy) B broke away from it and re-entered the Cathedral through the door of the south transept and went through the double doors into the western end of the sacristy corridor, it might reasonably be expected that they would have encountered the altar servers. The altar servers were at the front of the procession. There were at least six of them and there may have been as many as 12. Those in the front of the procession waited for the two servers bookending it at the rear and then they bowed in order to the crucifix. A further oddity is that A and B did not encounter any concelebrant priests in the sacristy corridor or the priests’ sacristy (Cathedral renovations in late 1996 meant that there was only one sacristy available for priests and the archbishop to disrobe), notwithstanding that concelebrant priests would be expected to have gone into the priests’ sacristy to disrobe after the procession broke up. It was (the choir marshal) Finnigan’s evidence that there were other priests concelebrating solemn Mass on 15 and 22 December 1996.”

The Court of Appeal got confused about two periods of time – the time the congregation silently prayed and when the choir boys might have re-entered the Cathedral. The movement of the procession down the cathedral and back to the sacristy, and Pell greeting people at the door meant they could not happen at the same time. “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.”

The second assault: a few weeks after the first alleged incident, a second assault was alleged to have taken place in full view of people in a corridor. The High court judges found it difficult to believe it could have happened. “The defence contended at trial that the notion that the applicant – a tall, imposing figure in his archbishop’s robes – might assault a young choir boy in the presence of a number of choristers, including several adults, bordered on the fanciful.”

The Court of Appeal majority accepted that the sight of the applicant at close quarters with a choir boy might well have attracted attention. However, their Honours reasoned that the others in the corridor were intent on completing the procession and removing their robes as soon as possible. In this state of affairs, their Honours assessed that it was quite possible the brief encounter went unnoticed. At all events, their Honours said, “the evidence once again falls well short of establishing impossibility”.

“It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident.” – High Court

“It is unnecessary to decide whether A’s description of the second incident so strains credulity as to necessitate that the jury, who saw and heard him give the evidence, ought to have entertained a reasonable doubt as to its occurrence. The capacity of the evidence to support the verdict on this charge suffers from the same deficiency as the evidence of the assaults involved in the first incident.
Portelli gave unchallenged evidence of his recall of being with the applicant at solemn Mass on 23 February 1997. Portelli recalled that this was an unusual occasion because Father Egan was the celebrant. The protocol remained that the applicant as the most senior person was last as the procession processed down the centre aisle of the Cathedral.

“The unchallenged evidence of the applicant’s invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement under Catholic church practice that the applicant always be accompanied when in the Cathedral, were inconsistent with acceptance of A’s evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury’s advantage, there is a significant possibility that an innocent person has been convicted.”

This decision will cause  survivors of abuse and others to be upset or hurt and they will need support at this time.

1800 Respect is a 24-hour telephone and online crisis support service available on 1800 737 732 or at www.1800respect.org.au; for 24-hour crisis support and suicide prevention call Lifeline on 13 11 14 or visit www.lifeline.org.au.

 

 

 

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As this verdict is discussed survivors of clergy abuse will be distressed. please pray for them. Please remember “Witness A” in your prayers and Cardinal George Pell.

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