In the wake of the Pell conviction for child sexual assault, we are now hearing grave concerns from cultural conservatives and Catholic commentators that the jury verdict was ‘unsafe’.
There’s a distinction between law and fact at the heart of criminal legal proceedings. The judge makes decisions on the legal and procedural issues, while the jury is the tribunal of fact. The facts enliven the law. Judges’ decisions on legal matters are frequently overturned in appeals to higher courts, but it is extremely uncommon for an appellate court to overturn a jury decision.
The legal test for overturning a decision was set out in a case with a similar fact scenario to Pell, M v The Queen  HCA 63. M was a father accused of sexually assaulting his 13 year old daughter, with proceedings brought many years after the event was alleged to have occurred. The majority in that case, Mason CJ, Deane, Dawson and Toohey JJ, found:
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence [citations omitted].
The advantages enjoyed by the jury are seeing and hearing the witness. The High Court is saying that even an appeal court judge reading the evidence is at a disadvantage compared to the jury. In other words, the complainant’s demeanour is relevant to the judgment of their testimony. In M’s case the majority concluded:
the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (18 Chidiac v. The Queen (1991) 171 CLR at 443, 451, 458, 461-462) .
The ultimate question is whether it was open to the jury — we’ll come back to that. For now, I want to reflect on a piece in Eureka Street, no doubt a long time in the drafting, in which the Jesuit priest and lawyer Fr Frank Brennan responds to news of the conviction. I’m told the piece has been circulated to every family with a child enrolled at a Catholic school, indicating that it represents the views of the archdiocese.
Fr Brennan clearly anticipates the considerations in M v The Queen. In so doing, he places himself in the shoes of the jury, despite acknowledging he was only in court for some of the proceedings. In M’s case, Brennan J — that would be Fr Brennan’s own father — noted ‘the appellate court must acknowledge that the primary responsibility for finding the facts rests with the jury, not with the appellate court.’ Fr Brennan acknowledges that he did not even see or hear the principal evidence, and yet, lacking the caution of an appellate court, he considers himself better placed to judge the facts of the case than the jury.
Fr Brennan argues the verdict is unsatisfactory because the jury must not have placed the same weight as he does on the criticisms of the complainant made by the defence. In so doing, he makes a number of assumptions about how the jury must have reached its decision. They are necessarily assumptions, because juries do not give reasons for their decisions and none of the jury has spoken out. I am, to put it mildly, bemused that Fr Brennan imagines himself an unbiased observer and commentator on proceedings involving Cardinal Pell.
Fr Brennan insists the complainant made mistakes in his evidence. Compared to the High Court bench in 1994, we now know from studies of eyewitness evidence and the recollection of traumatic events that discrepancies of recall are common. The whole point of trauma is that it resists being encoded as narrative memory and must be relived, rather than recalled, under conditions of intense distress. It is open to a jury to conclude that the complainant was wrong about some of the particulars but correct about the substance of the allegations.
Defence barristers in proceedings involving sexual assault invariably insist that any small discrepancy is evidence that the whole complaint has been made up. Let me take a moment to note how old that insistence is. I draw here on the work of the historian Barbara Hanawalt (2003) on medieval law-making. She notes that the crime of rape was first codified in legislation in the first Statute of Westminster in 1275 AD, in response to the concern that rape complaints were too easy to make under common law. At first the sentence for rape was punishment in life and member, but this was adjusted downwards in 1285.
Hanawalt describes the common law procedure for prosecuting rape in medieval times. The victim had to tell the first person she encountered after the rape occurred, and then proclaim the rape, in detail and without delay, to the ‘reeve’ — an assembly of all the men in good standing in her town or village. Then, at the next assizes (a travelling court), she had to give an account once again that varied in not one single detail from the earlier accounts she had given. Even the tiniest deviation could be seized upon as evidence the complaint was false, exposing the woman herself to criminal punishment and her family to civil proceedings.
Put simply, rape proceedings have a similar structure to the method of trial by ordeal used in witch hunts, and this underlying frame persists in the modern-day practice of rape prosecutions, even though legislators have sought to defuse it. Indeed, much the same concerns — lack of corroboration, delay in reporting, discrepancies, the victim’s demeanour — were ventilated in M’s case.
Fr Brennan writes:
My only conclusion is that the jury must have disregarded many of the criticisms so tellingly made by Richter of the complainant’s evidence and that, despite the complainant being confused about all manner of things, the jury must nevertheless have thought — as the recent royal commission discussed — that children who are sexually violated do not always remember details of time, place, dress and posture. Although the complainant got all sorts of facts wrong, the jury must have believed that Pell did something dreadful to him. The jurors must have judged the complainant to be honest and reliable even though many of the details he gave were improbable if not impossible.
Tellingly made, indeed. ‘Improbable’ perhaps refers to the High Court’s decision in M’s case. Fr Brennan asserts what lawyers and legal scholars describe as tendency evidence in order to argue that this particular event was ‘improbable or even impossible.’ Tendency evidence is inherently weak. It has the following inferential structure: ‘the assertion that X happened is more likely to be true because of all these other occasions on which X also happened.’ The planned second prosecution of Cardinal Pell, the ‘swimmers’ case’, was abandoned this week after the judge ruled tendency evidence inadmissible in those proceedings, in turn leading to the lifting of the suppression order on news of his conviction.
Fr Brennan argues that Pell could not have been in the sacristy because ‘the Archbishop was a stickler for liturgical form and that he developed strict protocols in his time as archbishop’ — a pattern or tendency that did not include visiting the sacristy alone, or so soon after the Mass ended.
However, ‘generally did not’ is not the same as ‘never did’. It was, again, open to the jury to conclude that on this occasion, however exceptional it might have been, Pell did enter the sacristy alone and soon after the mass. Brennan does not say over what timeframe Pell developed this pattern of behaviour; the complaint concerns a mass very early in his tenure as Archbishop of Melbourne, and David Marr observes that his protocol may not have been set in stone at that point in time.
Likewise, Fr Brennan asserts that the vestments conventionally worn for a mass of that kind include an alb — a garment that would not easily permit a priest access to his genitals. But, again, this involves asserting a general custom as evidence against a particular event. The prosecution led evidence that it is possible to move the customary vestments to one side. (Perhaps for practical reasons: so many old men, so many dodgy prostates.) Pell has a reputation for being a stickler, but reputation is, yet again, another kind of tendency evidence. It does not exclude the possibility of exceptional circumstances, leaving it open to the jury, considering all the evidence as a whole, to conclude that this particular event occurred.
Finally, Fr Brennan explicitly poses the questions he is raising in the piece: ‘Was the verdict unreasonable? Can it be supported having regard to the evidence? Those are questions for the appeal court.’ If so, why the piece?
It pays lip-service to the role of the courts, but Fr Brennan goes on to conclude by saying he ‘hopes and prays’ that justice will be done. That is not something you say if you believe justice has been done. There is a name for this kind of semantic nicety: it’s called being Jesuitical, and only the Jesuits think that’s a compliment.
The thing I find most troubling is the move Fr Brennan makes next. He writes ‘ I can only hope and pray that the complainant can find some peace, able to get on with his life, whichever way the appeal goes.’ This is the ultimate Catholicism. It extends to the person who has been wronged a false pity that simultaneously implies their complaint springs from being troubled. It is a hypocritical gesture that evades moral accountability while further injuring the person bringing the moral claim.
In the context of partner abuse, this move is known as gaslighting. In the case of the Catholic response to the Pell conviction and the findings of the Royal Commission on Institutional Responses to Child Sexual Abuse, we could perhaps call it ‘candle-lighting.’
Cardinal Pell’s legal team have already filed a motion to appeal the decision. An army of Catholics who imagine themselves defenders of a victimised church have turned out in force, on social media and in the press, to insist that Pell cannot be called an abuser until the appeal has been heard. This misunderstands the law: the maxim is ‘innocent until proven guilty,’ not ‘innocent until the guilty verdict survives on appeal.’
But even the Vatican, which refuses to take action against the Cardinal, insists on the latter. There’s a refusal to acknowledge that secular institutions have any authority over church officials, or that a conviction impairs tenure in religious office. This does not bode well for Vatican acceptance of mandatory reporting duties for church officials, or for meaningful cultural change to protect young people in the care of Catholic schools, churches, and welfare organisations from sexual assault.