n the most contentious criminal matter in Australia in decades, the full bench of the High Court of Australia unanimously acquitted Cardinal George Pell of five charges of child sexual assault. With this unanimous acquittal, questions about Pell’s case now turn towards those who prosecuted and supported the case against Pell. Were they out to “get Pell”? Was Pell a scapegoat?
Deficiencies in the Victorian criminal justice system have been exposed by the High Court’s verdict. The High Court established that Cardinal Pell was wrongfully convicted by a jury, whose verdict was incorrectly upheld by the Victorian Court of Appeal in a two-to-one decision. For these wrongful convictions, Cardinal Pell was deprived of his freedom for over 400 days, was subjected to intense public vitriol, and had his reputation internationally discredited.
The High Court’s unanimous and definitive verdict suggests that Pell was unfairly and improperly targeted by the Victorian criminal justice system and wider public discourse. I intend to assess this claim. If it is true, the implications are of great significance for major institutions in Australia, such as the criminal justice system and media, and the behaviour of society more generally. They also bear on an important attitude evident across the Western world: of unreservedly believing alleged victims of abuse or assault, and pursuing charges based on their testimony, regardless of counter-evidence.
This essay appears in June’s Quadrant
In its judgement, the High Court stated that the jury, if acting rationally, should have had reasonable doubt about the charges against Cardinal Pell, and that the Court of Appeal should have recognised the grounds for reasonable doubt. These grounds were based on the unchallenged evidence of twenty-three opportunity witnesses. The High Court justices concluded: “the issue for the Court of Appeal was whether the compounding improbabilities caused by the unchallenged evidence … nonetheless required the jury, acting rationally, to have entertained a doubt as to the applicant’s guilt. Plainly they did.” (Paragraph 119, Pell v The Queen  HCA 12).
On this basis, the seven justices unanimously concluded that there was “a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof”. (Paragraph 9, Pell v The Queen  HCA 12). This statement is damning and compels deep reflection. How did the State of Victoria end up at the High Court with such a clearly weak and problematic case?
To begin with, it is incorrect to label the High Court’s verdict as being about insufficient evidence or the result of a legal “technicality”, as some have done. The High Court justices are clear in their reasons that their verdict is about the weight of unchallenged evidence that clearly undermined the plausibility of the convictions. These convictions were made on the basis of complainant J’s testimony about events in St Patrick’s Cathedral in 1996-97. Despite being clearly contradicted by the unchallenged evidence, the complainant’s testimony was affirmed by the jury and Court of Appeal majority, particularly because the complainant’s demeanour was judged to be credible. The High Court goes over the unchallenged evidence at length in its judgment, in order to show the inadequacy of the jury’s verdict and the Court of Appeal’s majority decision.
It is also important to note that the High Court’s verdict is not a rebuke to victims. Despite questioning the weight put on the complainant’s testimony in Pell’s case, the High Court states that its verdict does not imply that a complainant’s testimony is insufficient to gain a conviction: “There is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it.” (paragraph 53 of the High Court judgement in Pell v The Queen). It does disqualify, however, those complaints from resulting in convictions that have unchallenged evidence that counters the complainant’s testimony, as in Pell’s case.
This is a reasonable position and is the basis of the Anglophone justice system. Reasonable doubt requires a high level of prudential judgment about evidence and context. Clearly, while convictions against abusers are paramount, pursuing such convictions should not come at the expense of innocent people. Convicting people despite and against the evidence will only discredit the effort to bring real perpetrators to justice.
Given the failures in Cardinal Pell’s case, some are asking whether the Victorian legal system was captive to mob justice. The journalist Andrew Bolt has stated that the public and legal campaign against Cardinal Pell was a form of scapegoating. Pell has agreed with this characterisation. The Jesuit human rights lawyer Frank Brennan has argued that the “rule of law” was effectively not extended to Pell. Even Pell’s sentencing judge, Chief Judge of the County Court Peter Kidd, noted that they were “examples of a ‘witch-hunt’ or ‘lynch mob’ mentality in relation to Cardinal Pell”.
As with Lindy Chamberlain, who was wrongfully convicted in the 1980s of killing her daughter in the Northern Territory, there was a high-profile campaign over a number of years led by parts of the media, police and public against Pell. This campaign occurred at a time when the Catholic Church was under particular and intense scrutiny for its terrible mishandling of historic sexual abuse claims. The Australian’s Paul Kelly argues: “Pell became a hate figure in a culture justifiably angry at the church’s systemic child abuse.”
Professor Greg Craven, a constitutional lawyer and Vice-Chancellor of the Australian Catholic University, claims that Pell was tried, before he even went to court, by a “media mob”. Journalist Chris Kenny has argued similarly, that Cardinal Pell was tried by media, and that Pell came to personify the failings of the Catholic Church in the popular imagination. In particular, some media organisations, such as the ABC, and some prominent public figures, such as the singer-songwriter Tim Minchin, relentlessly pursued Pell, as Craven comments:
This is where the Pell case has gone terribly wrong. Impartial judge and jury accepted, parts of the media—notably the ABC and former Fairfax journalists—have spent years attempting to ensure Pell is the most odious figure in Australia. They seemed to want him in the dock as an ogre, not a defendant.
Even before Pell went to trial, he was being called “scum”, “pompous buffoon” and “coward” in mainstream discourse—across mainstream media platforms—by Tim Minchin. Moreover, the ABC—spearheaded by journalists such as Louise Milligan—publicly aired claims against Pell without any response from him and with little consideration of counter-evidence. Milligan’s investigations of Pell aired on ABC television in prime time, including in an extraordinary 7.30 episode entirely given over to complainants, and in a book about Pell expeditiously published by Melbourne University Press.
Milligan has claimed she was just putting the allegations of victims on public record. There is, of course, great sympathy for such claims, given the history of cover-ups in the Catholic Church (and beyond). However, journalistic ethics dictates that one does not put claims to the public without investigating the full range of evidence and airing such evidence, including a defence from the accused. Milligan’s ABC investigations and book on Pell were blatantly one-sided.
Because of what seems to be bias, much of the media made basic errors and ignored evidence. The former editor of the Australian and the Courier Mail, Chris Mitchell (whose papers extensively covered historical sexual abuse) argues that the media should have been aware of the basic problems with the complaints against Pell, especially with respect to alleged incidents in St Patrick’s Cathedral:
The lack of grooming and public nature of the alleged crimes should have raised alarm bells for editors, reporters, book publishers and police investigators. Where was the evidence of the long-term grooming of a child that usually occurs before abuse by a trusted priest? Why would Pell, having just ascended to high office, risk everything with two boys he did not know? Their parents could have been police for all he knew.
Much of the media did not do their due diligence by investigating the claims properly and evaluating them rigorously and dispassionately. Instead, they ignored major issues with the allegations, and, as Bolt argues, even led the mob against Pell. The ABC has been particularly subjected to criticism in this regard, though it was not alone in problematic coverage of Pell. Nevertheless, ABC journalists led much of the media pack, especially in programs such as 7.30, Four Corners and Revelations. After Pell’s acquittal, the criticism of the ABC’s coverage resulted in it providing a defence of its coverage. While the ABC showed that some supporters of Pell were occasionally interviewed, it did not account for the way ABC journalists publicly prosecuted a case against Pell for years before the trial and then after his initial conviction. Whole programs were devoted to Pell which did little more than sensationally air claims against him, rather than test or investigate such claims. Even the ABC’s Media Watch reproached Louise Milligan for not airing Pell’s defence against such claims.
Author Louise Milligan enjoyed a friendly chat with magistrate Wallington on ABC radio. Wallington would subsequently send Pell to trial after a committal at which Milligan testified.
Moreover, the ABC coverage of Pell’s acquittal was minimal in comparison to its coverage of his conviction and initial appeal. Following the acquittal itself, there has been little discussion of the verdict on major ABC programs such as Insiders. There also have been no detailed articles or programs about the verdict (in contrast to pre-acquittal coverage) or how the ABC got their investigations so wrong. Some have argued that the ABC is refusing to accept responsibility. This is ironic, but not surprising: all institutions protect themselves.
The frenzied effort to “get Pell” seems to have been driven by an attitude of believing victims—no matter what—and an effort to make up for past sins. Like most institutions, the ABC and other media agencies neglected or ignored past abuse allegations. Gerard Henderson has written on the ABC’s double standards with reporting convictions of abuse amongst its staff and handling of past abuse claims. The media were slow to investigate past claims and are now trying to compensate. It is good that they are trying to make up for past coverage, except, of course, when innocent people are blamed, and attention is diverted from the culpability of all.
The High Court’s decision also puts the spotlight on years of effort and expense by the Victorian police and Office of Public Prosecutions (OPP). The result of their investigations is five wrongful convictions and a number of other charges thrown out at committal hearings. In total, twenty-six charges were brought by the police against Pell and all have failed.
This failure is clearly linked to the investigative methods of the police. Before allegations were made against Pell, the Victorian police took the unusual step of seeking out claims against him. When complainants came forward, allegations were not properly investigated.
In relation to the charges that were based on complainant J’s testimony, Frank Brennan identified major problems with the police investigation. For example, the police had not interviewed key witnesses about what occurred in the priests’ sacristy after interviewing Pell in Rome:
The police then had one year and eight months to review what Pell and Portelli had separately told them. They did not interview one single altar server. They did not interview one single concelebrating priest other than Portelli, who had confirmed Pell’s account. They did not interview one single money collector. They charged Pell instead.
The police also did not establish a clear timeline for events, which led to the prosecution formulating numerous theories for the jury, Court of Appeal and High Court. Even more scandalously, the police interviewed no potential witnesses about the second alleged incident in St Patrick’s Cathedral.
The lack of attention to the evidence was a serious failure that was fuelled by an anti-Pell media and a pro-complainant attitude amongst police and others. Despite Pell’s defence pointing out the inconsistences of the complainant’s testimony and its implausibility with respect to the opportunity witnesses, the second jury convicted Pell (after the first jury was hung). The second jury trial occurred soon after the Prime Minister’s national apology to victims of sexual abuse and his affirmation that they would be believed. In Pell’s case, the alleged victim was believed despite the evidence.
In the Court of Appeal, Justice Weinberg forcefully pointed out the failings of the jury, police and prosecution in his extraordinary 200-page dissent to the majority decision, as did the High Court in its unanimous judgment. This failure to take account of evidence is almost certainly connected to the tainting of the jury pool, which Professor Craven pointed out after the initial convictions. This failure is even more glaring with respect to one of the overturned convictions. This conviction related to the episode when Pell was alleged to have attacked the complainant in public view, inside St Patrick’s Cathedral, when surrounded by more than fifty choristers and Pell’s entourage. The High Court concluded:
The assumption that a group of choristers, including adults, might have been so preoccupied with making their way to the robing room as to fail to notice the extraordinary sight of the Archbishop of Melbourne dressed ‘in his full regalia’ advancing through the procession and pinning a 13 year old boy to the wall, is a large one. (Paragraph 124, Pell v The Queen  HCA 12).
Even the majority of the Court of Appeal seems to have been taken in by the spirit of the time by giving undue weight to the testimony of the complainant. The two majority justices set up an unsupported test of “impossibility” to weigh the complainant’s evidence and the jury’s verdict, which the High Court rejected as the incorrect standard. The High Court pointed out clear errors that the majority and the jury made with regards to evaluating the evidence, particularly of the opportunity witnesses.
For example, Keith Windschuttle shows that the appeals court majority put misplaced trust in the complainant’s testimony about the priests’ sacristy. The majority thought it convincing that the complainant identified the priests’ sacristy as the place of the first assault, since the archbishop’s sacristy was not in use at the time. Yet, it was not exceptional that the priests’ sacristy was being used by the archbishop. The majority seems to have overlooked the unchallenged testimony of witnesses that established that this was a common practice from 1992 to 1997 due to renovations. Furthermore, the complainant actually identified the priests’ sacristy as unchanged when he viewed it for the police in 2016, though it had been renovated in 2003-4.
The High Court hearings and judgment also exposed the shifting and impractical timelines presented by the prosecution with respect to the alleged offences and which were accepted by the appeals court majority. Frank Brennan has forensically outlined the problems of these timelines and shown that there was no window of opportunity for the alleged offences in the priests’ sacristy to occur, based on the complainant’s evidence and the evidence of other witnesses. Brennan also demonstrated how the prosecution formulated multiple, untenable theories with regards to the timeline in order to compensate for the fact that they could not make it fit with the testimony of the witnesses.
Andrew Bolt, too, questioned the timeline and traced it out personally at St Patrick’s (while recording for television). He demonstrated that it was impossible for the offences to have occurred according to the complainant’s testimony. Yet, the timeline theories of the prosecution did not even meet the low criterion of the majority of the Court of Appeal (of not being impossible), though there were clearly so.
Echoing many other commentators, the former Premier of Victoria, Jeff Kennett, summarised the basic failure of the Court of Appeal majority:
The High Court and its seven judges all said they failed to apply the basic tenet of criminal law that every law student has drummed into them on day one at university—before you convict someone, anyone, of a criminal offence, there has to be good evidence to prove the case beyond reasonable doubt.
And all this comes before even mentioning the unusual similarities between the accusations against Pell and a case in Philadelphia, which Windschuttle has outlined.
These factors—the media campaign and the flimsy police and prosecution case—suggest that the legal and public claims made against Pell were bordering on the irrational and incredulous. It also suggests that mob-like behaviour was influencing the prosecution and conviction of Pell.
As one of the leading theorists of violence, René Girard, has extensively shown, human societies universally and repeatedly resort to mob behaviour to resolve their tensions and crises. Girard argues that scapegoating provides a social mechanism to unify human groups with a singular desire motivated by moral outrage. Because of the propensity and utility of mob activity, it is all too easy for public discourse and criminal trials to be hijacked for the purposes of scapegoating, as the novel To Kill a Mockingbird so devastatingly shows. This is why the Anglophone justice system—which the High Court so well represented—insists on a clear standard of proof and guilt, so to avoid mob justice.
Girard, who was a Stanford professor and a member of the Académie Française, provides four markers or criteria that manifest when a scapegoating occurs. He outlines these four criteria in his book The Scapegoat (p. 24):
# A social crisis is evident. In Pell’s case, there was a crisis around the failure of numerous institutions to prevent and address the sexual abuse of children, especially within the Catholic Church, and how victims were to be given justice and healing.
# A person is accused of heinous crimes that unifies the group against them. In Pell’s case, he was accused of violent and “brazen” sexual assaults of minors.
# Certain traits, such as of vulnerability or notoriety, are associated with the accused and mark them out as different. Pell was a well-known public figure and leader in the Catholic Church, which was under great public pressure, and was negatively viewed by many for his “unsympathetic” character and conservatism.
# A climax of scapegoating occurs in the form of the exclusion or killing of the accused. Pell was wrongfully convicted and jailed.
This scapegoating hypothesis with regard to Pell’s case is further enhanced if we reflect on it in the light of Lindy Chamberlain’s experience. Chamberlain was unfairly blamed and scapegoated for the death of her daughter in unusual circumstances. Like Pell, Chamberlain was eventually exonerated after massive public and media pressure led to the quashing of her original convictions. Like Pell, Chamberlain came from a religious minority widely distrusted and disparaged in this country. Lindy was a Seventh Day Adventist and Pell, of course, a Catholic archbishop. Prejudice in some form seems to have added to the public feeling against these two wrongly convicted persons.
Even more significant was the media and popular judgment of Pell and Chamberlain’s public demeanour and emotional reactions. Their demeanour was widely commented on, because they did not meet social expectations. Chamberlain was regarded as not emotional enough about the death of her daughter. Pell was similarly seen as unemotional and unsympathetic, especially to victims of abuse which the Catholic Church had so badly failed. He was also disliked for his strong defence of conservative religious, political and moral views.
Because of these popular judgements, Kel Richards remarks that Chamberlain was tried in a “poisonous” atmosphere – “hated” by those in Darwin because of her demeanour – while the media similarly poisoned the atmosphere for Pell. In Pell’s case, a powerful mentality of “believing victims” – regardless of circumstances – combined with a popular dislike for his
character, beliefs and positions.
Girard argues, moreover, that those who are regarded as supporting the accused scapegoat can also be targeted. In Pell’s case, this occurred with the targeting or ostracising of those who claimed Pell had been wrongfully convicted, such as Andrew Bolt, Greg Craven and Frank Brennan. For example, Andrew Bolt was publicly and privately harassed, and his television show was campaigned against, resulting in a loss of advertisers. The federal MP Craig Kelly was howled down on Ten’s The Project for questioning the soundness of Pell’s conviction.
Some argue that Cardinal Pell deserved to be targeted by the media and police because of his association with the Catholic Church, which failed so many children, and his own failures of leadership. The unredacted sections of the Royal Commission report about Pell will add weight to this attitude. Pell has admitted he should have done more to protect children in some instances, but he denies being involved in any inappropriate movement of priests. Accusations that past leaders should have done more to protect children could and should be levelled at many people in government, churches, the media and other organisations in Australia. It is an often overlooked fact that state-run institutions had almost as many allegations against them from the private sessions of the Royal Commission (32 per cent) as the Catholic Church (36 per cent). While the Church should be held fully accountable, what about these other leaders and institutions? Little is said in the media about them.
Nevertheless, it is unquestionable that the Church deserves criticism and censure for past behaviour and Pell’s failures should be scrutinised. Yet, the irrational pile-on against Pell that resulted in his wrongful conviction should not be repeated. Using him to expiate the sins of the Church is not a way forward. As Girard shows, scapegoating does not establish justice or any type of lasting peace or healing. Scapegoating obscures the truth and often allows real perpetrators to escape justice. It is worth remembering that Pell was not even named when the complainant’s mother first spoke to Broken Rites about the abuse allegations of her son. Furthermore, the pursuit of Pell has obscured the fact that he established a world-first system in 1996 to independently assess victim’s claims, remove offending priests permanently from ministry, and compensate victims of sexual abuse.
Because of what looks like a scapegoating, Cardinal Pell has spent more than a year in jail on wrongful convictions. This may have served to provide a kind of satisfaction to the mob, but it does not provide justice or healing for victims or Australian society. As Cardinal Pell stated after being released: “The only basis for long term healing is truth and the only basis for justice is truth, because justice means truth for all.”
If the full implications of the High Court verdict were realised, Australian society would resolve to address the factors that led to Pell’s wrongful convictions. Unfortunately, the media and legal campaign against Pell continues, in an effort at self-justification that only compounds the pre-existing mob mentality. Even more importantly, the lessons of the High Court’s verdict are not being learned by those who claim to support victims. After the High Court’s acquittal of Pell, the Premier of Victoria, Dan Andrews, tweeted: “I make no comment about today’s High Court decision. But I have a message for every single victim and survivor of child sex abuse: I see you. I hear you. I believe you.”
All civilised people want to believe victims of sexual abuse and see their perpetrators come to justice. However, Andrews’s comment diverts attention away from the clear rebuke to the Victorian criminal justice system made by the High Court in its unanimous acquittal of Pell. The High Court has emphasised that accusations must be properly investigated and substantiated according to the evidence. The Victorian police plainly failed to do this, and the Victorian legal system plainly failed to hold them to account. In so doing, the Victorian criminal justice system has failed complainants and victims.
Andrews’s comments also point to the sacred status that victims are given in our culture. According to Girard, the modern world is particularly sensitive to the claims of victims of all kinds, because the history of humanity’s involvement in acts of violence against scapegoats and victims has been exposed. As Bill Gates says: “Everyone knows the problem with creating scapegoats.” We all now know victimisation is wrong. Yet, victims in the ancient world did not have the status that modern victims do. Only in modernity do victims have such status (which Girard argues is particularly caused by the biblical revelation). This adds special status to the allegations of those who claim to be victims.
Victims of sexual abuse are given even more weight and status than other victims because of the terrible crimes committed against them and past societal failures to protect them. In itself, this is good: victims of sexual abuse should be believed and given justice. The question, though, is: Who is truly a victim, beyond reasonable doubt?
Without the protection of “reasonable doubt”, accusations would have enormous power. As Cardinal Pell stated after his release: “It’s not a sign of a civilisation where you have guilt by accusation.” And we should be especially careful because Girard warns that the claims of victims have such a sacred status in our culture. Because of this status, accusations can be used to target those claimed to be “victimisers”, even with little plausibility to the claims against them. This has occurred in Cardinal Pell’s case: he has been targeted and wrongfully convicted, all in the name of those he allegedly victimised. We must now face the prospect that Pell was scapegoated because of the attitude that “victims” are sacred and must be believed, no matter what. Despite its good intentions, this attitude can cause injustice.
Pell’s case is a salutary lesson in the criminal prosecution of those accused of sexual abuse or assault. As Pell stated after his release: “It’s not a sign of a civilisation where you have guilt by accusation.” The pendulum seems to have swung too far. Previously victims were hardly believed, but there is now great pressure to believe allegations, even when there is copious counter-evidence. Such credulity will not ultimately help to gain proper convictions and justice for victims.
If the attitudes and discourse on these matters don’t change in Australia, it will result in more scapegoats being created and more convictions being overturned. The required change doesn’t mean giving up on victims, but rather, supporting them better by ensuring their claims are properly and respectfully investigated. If this doesn’t happen, and if we don’t learn the lessons of Pell’s wrongful conviction, it will tragically add to so many wrongs already committed.Claims must be sensitively and rigorously investigated for convictions to stand. The justice system is purposefully balanced in such a way as to protect citizens from being wrongly convicted and jailed by the state. Being afforded a fair investigation and a robust sense of “reasonable doubt” is a right that protects us all from injustice. In Pell’s case, this right was not upheld, which the highest court in Australia had to finally establish.
Joel Hodge is a Senior Lecturer in Theology at the Australian Catholic University in Melbourne. He is the author of Resisting Violence and Victimisation: Christian Faith and Solidarity in East Timor and Violence in the Name of God: The Militant Jihadist Response to Modernity.