June 29th 2019

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Articles from this issue:

COVER STORY John Setka, for all his faults, is the perfect scapegoat

FIGHTING FUND NCC president Patrick J. Byrne outlines the goals for 2019

SPECIAL FEATURE Author Rod Dreher brings St Benedict to bear on our decline and fall

INTERNATIONAL AFFAIRS One million protest China's attack on Hong Kong's freedom

GENDER POLITICS Vatican issues document on gender ideology

POLITICS AND SOCIETY New secularist strategies to bury Christianity

HISTORY OF SCIENCE Faith and reason and Father Stanley Jaki, Part 4: Ancient Jewish view of the cosmos

NATIONAL AFFAIRS Cardinal Pell's appeal: An account from the live streaming

BANKING FEATURE Greed works ... at least for a while and for a few

IDEOLOGY Feminist claims for equality, Part 2: What feminism should be

IDEOLOGY WARS Roger Scruton and the Tories: a sorry tale

MUSIC Melodic abundance: John, Paul, Duke and Antonio

CINEMA The End: Staging the apocalypse

BOOK REVIEW Scenes from Dante's Inferno

BOOK REVIEW Mrs Gould: she who drew the pictures



NATIONAL AFFAIRS A Q&A to clarify issues in Cardinal Pell's appeal

HUMOUR A Western flop lob-story and that

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Cardinal Pell's appeal: An account from the live streaming

by Terri M. Kelleher

News Weekly, June 29, 2019

After two days of full and intense submissions by both Cardinal George Pell’s legal Counsel and the Prosecution, the Victorian Court of Appeal has reserved its decision in the matter of the conviction of Cardinal George Pell of sexual abuse of two choirboys at St Patrick’s Cathedral in Melbourne more than 20 years ago.

No indication has been given when that decision will be handed down.

The Appeal judges, Chief Justice Anne Ferguson, President Chris Maxwell and Justice Mark Weinberg, listened closely to all the arguments and actively asked questions of both the Appellant’s counsel and the prosecution. Chief Justice Ferguson made the point that the judges had already gone over much of the evidence and the arguments for both parties and had visited the Cathedral to see where the events are said to have occurred.

The questions asked of counsel throughout the appeal also indicated they were very much across the evidence. The appeal is being given the serious attention it deserves.

There were three grounds for the appeal; the unsound, unsafe or unsatisfactory nature of the convictions; that an animated video showing the events in the Cathedral was not allowed by the trial judge to be used in the summing up to the jury; that the accused had not been arraigned in front of the jury, a technical point to which no great weight was given.

Regarding the video animation, President Maxwell said the defence summing up to the jury was very thorough. The jury could not have been unaware of all the defence arguments about inconsistency or doubts raised by the complainant’s evidence, so the video would not have added to the evidence they had to make their decision on.

The arguments were predominantly around the first ground: the unsound, unsafe or unsatisfactory nature of the convictions.

Cardinal Pell’s counsel, Mr Bret Walker QC, took the judges to what he referred to as “alibi” evidence: that is, evidence of witnesses who put Cardinal Pell on the front steps of the Cathedral greeting people after Mass when the complainant’s case was that he was in the priests’ sacristy sexually abusing him and the other choirboy.

Mr Walker referred at length to the evidence of the Cathedral Master of Ceremonies, Monsignor Charles Portelli, that he accompanied the Cardinal all the time he was at the Cathedral, before, during and after Mass, until the Cardinal left the Cathedral precinct.

Mr Walker said the Prosecution had not found anything to detract from Monsignor Portelli’s evidence. It was suggested that Monsignor Portelli might have not been with the Cardinal at the time of the offences as he could have been preparing for evening Mass, or preparing books or notes or such like for the Cardinal if he had an afternoon engagement, or even that he was “off having a smoke”.

Mr Walker stressed the failure by the Prosecution to point to any credible evidence that showed why Monsignor Portelli’s evidence should not have been believed. But the jury did not accept that evidence even though it had not been contradicted by any other credible evidence. How could the jury have found “beyond reasonable doubt” that Cardinal Pell was guilty in the light of Monsignor Portelli’s evidence?

Mr Chris Boyce SC, for the respondent, put that the complainant would have to be considered a liar or a fantasist if his evidence was not believed. Mr Boyce submitted that the complainant’s evidence was so strong and compelling that any evidence to the contrary would have to be very strong to counteract it.

Mr Boyce dealt with Monsignor Portelli’s evidence in this context and put that it only went to what was the practice, not what actually happened on the day the events are said to have occurred: that it was Cardinal Pell’s practice to greet people on the steps of the Cathedral after Sunday Mass, not that he actually was on the steps at the relevant time on the day the events are said to have occurred.

Mr Boyce submitted that Monsignor Portelli’s recall was not reliable, that his memory was faulty, that things he did not remember on examination-in-chief he recalled on cross-examination or on re-examination, that he was displaying “suggestibility”.

Mr Walker answered this in his reply by pointing out that questions can prompt memories. It doesn’t mean this is due to “suggestibility” or faulty memory or being unreliable. He went through in some detail the questions asked of Monsignor Portelli at each stage of his examination, and contended that the witness was not inconsistent but was responding to further specific questions as they were asked of him.

Mr Walker also raised the matter of what weight should be given to the evidence that the other choirboy (who died in 2014) had denied, twice, when asked by his mother that he had been abused.

Mr Boyce for the respondent addressed the bench on what was to be made of the complainant’s evidence that he and the other boy had never spoken of what happened, not to each other or to anyone else, and that he, the complainant, had not warned the other boy of the second incident. Mr Boyce gave as explanation that for 13-year-old boys sport and school fill their days and they would not necessarily dwell on such an incident! An incident that is said to have led to the other boy’s drug taking and death?

Mr Boyce also said that it would be inc­redibly embarrassing for teenage boys to talk about such matters with anyone and that they would have been very conscious that their scholarship at St Kevin’s College depended on their continuing as members of the choir, which would be affected if they had spoken of what had happened.

Cardinal Pell’s counsel raised the matter of a “material” witness not being investigated by the police and not being called to give evidence at the trial. On the date of the second incident, the then Archbishop Pell presided at the Sunday Mass at the Cathedral but it was another priest, Fr Egan, who celebrated the Mass. In processing out after the Mass, which is when the complainant said the second incident of abuse occurred, Fr Egan would have to have noticed Cardinal Pell pushing his way through the procession and pushing the complainant up against the wall and making contact with his genitals, the events the complainant says happened.

The police were aware of this witness but, when the police witness was asked why Fr Egan had not been investigated, the answer was: “I just didn’t.”

Mr Boyce for the respondent made the point that the Defence at the trial had the opportunity to ask the Prosecution to call Fr Egan but didn’t. The information that Fr Egan had said the Mass and was present on the day of the second event only came to light during the course of the first trial when the diary of another witness (Mr Connors) showed that it was Fr Egan who had celebrated Mass and was therefore present on the occasion of the second event.

Mr Walker, in reply to hard questioning from the bench as to why the Defence had not asked for Fr Egan to be called so he could be cross-examined by the Defence, answered firmly that the onus is not on the Defence to ask for a witness to be called. The onus is on the Prosecution to call all “material” witnesses and Fr Egan was a “material” witness and should have been available to be asked questions about what he had seen on the day in question.

Considerable reference was made to the matter of the robes (or vestments) the Archbishop was wearing on the day of the first events. Mr Walker for Cardinal Pell pointed to the improbability to the physical impossibility of the atrocious acts occurring given the constraints of the robes he was wearing. He pointed to the complainant’s evidence that the Archbishop had “pushed aside” the robes to expose himself.

Mr Boyce’s reply was that, even if the complainant couldn’t give details of the exact hand movements, pushing aside or pulling up the robes, the jury had still found the complainant’s evidence was credible. Detailed discussion took place about the exact nature of the robes and the physical logistics of being able to hold the chasuble and alb, which is further constrained by the cincture binding the alb, which is tied in a number of places, while performing the acts of abuse described by the complainant.

Much was made of this point by both counsel for Cardinal Pell and the judges. The judges had seen the robes and the Chief Justice asked if the jury had a set of robes in the jury room, which was answered in the affirmative.

Counsel for Cardinal Pell submitted that the appeal judges have to consider the whole of the evidence that was put to the jury.

President Maxwell referred to the High Court case of the Queen v Hillier. The ACT Court of Appeal allowed Mr Hillier’s appeal against his conviction for murder and ordered that the conviction and sentence be set aside on the grounds there was a real possibility that another person was responsible. The High Court found that the Court of Appeal had failed to consider whether, on the whole of the evidence, all of it circumstantial, it was open to the jury to be persuaded beyond reasonable doubt that Mr Hillier was guilty.

This is what the Court of Appeal is charged with: not with considering whether another version of events was possible but whether, on the whole of the evidence, it was open to the jury to find, beyond reasonable doubt, that Cardinal Pell was guilty.

Counsel for the respondent submitted that the appeal court can overrule the jury’s findings only if there is no evidence on which they could have found “beyond reasonable doubt” that the acts Cardinal Pell was found guilty of could have occurred.

Finally, there was considerable discussion around the point that, at the trials, counsel for Cardinal Pell had put that the acts alleged were “impossible” to have happened. The Prosecution argued that they were “possible” to have happened. Justice Weinberg said that was how the case was framed and, although it may have been rhetorical, it could have confused the jury as to what they were to base their findings on.

Mr Walker cogently put that, even if the acts were “possible”, and therefore not able to be said to be “impossible”, it was still open to the jury to find they had not been proved “beyond reasonable doubt”. He argued that the “possibility” that the events occurred as the complainant testified does not mean that that rules out a “reasonable doubt” about those events having actually occurred.

Mr Walker said it also doesn’t rule out the “possibility” that the facts were otherwise than as the complainant testified.

The Court adjourned at 4.18pm on June 6 and has reserved its decision.

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