With his forensic probing, Chris S Friel continues to take apart the Crown’s case against Cardinal Pell. What sort of juveniles sit on the state’s benches in Victoria?
The Two Wings of the Pell Case
Chris S Friel
Pell’s case has two wings. In truth, there are many pointers to Pell’s innocence but it is helpful to simplify and think in terms of the grounds argued by Bret Walker for the defence. Ground 1, roughly, implies that in effect the burden of proof was reversed. Ground 2 argues, in effect, that nevertheless, even if it was up to Pell to prove his innocence this could be demonstrated by showing that there was no opportunity for the offence to have occurred. These arguments are crystallised in the “steps alibi” and the “hiatus theory” respectively.
Portelli’s evidence that he was always – or virtually always – on the steps with the Archbishop after Mass to meet and greet parishioners is as good as an alibi.i Because an alibi completely negates the opportunity for a crime it demands refutation once it has been raised since it provides a good reason to doubt the charges. Portelli gave evidence of a practice, better, he could recall actually being with Pell on those special early days when (a) Pell was new, (b) the Cathedral was now being used again after repair, and (c) parishioners would have been eager to meet and greet the colourful Archbishop. Given that evidence was heard from the choir marshal who retired that Christmas that the meet and greet custom was already established (and Pell only celebrated two Sunday Masses that Advent), and also from Daniel McGlone, who recalls introducing his mother to Pell on one of those occasions, it is obvious that the “steps alibi,” even if it has been questioned, has not been negated. As such, the prosecution have clearly not taken up the burden of proving their case beyond reasonable doubt.
This line of argument is strongly supported by Mark Weinberg in the dissent who agrees with Bret Walker that Charles Portelli cannot be “put to one side,”(820, 1083) and in his submission to the High Court Walker has also robustly argued the case that is undented by Mark Gibson’s reply. To take just one point made, the Crown conceded that McGlone’s evidence about introducing his mother to Pell on 15 December 1996 was in effect an alibi. The only challenge offered was to the effect that this may have been one week later (so that in any case, it was only a partial alibi). Moreover, in Closing, the prosecution intimated that this may have been in 1997, a theory that was never put to McGlone, and thus one that the jury were not entitled to embrace.ii
The only other challenge to the alibi stems from those choir members called as witnesses for the prosecution, but their integrity has been questioned.iii
The “hiatus” (or gap) was refers to a five minutes oasis of calm in an otherwise busy place – the Priests’ Sacristy which is where the assault was alleged. The theory proposed by the prosecution can be conclusively refuted. A significant point regards the altar servers, a point that may not be appreciated even by someone who has spent several months immersed in the case.iv The simple fact is that (when it was realised what Pell did immediately after Mass) it was finally “remembered” that the choristers would have taken part in the same procession that also included altar servers, adults among them. The end point for the choristers was the room where they disrobed – or else the rehearsal room next door in the Knox Centre given that rehearsals were scheduled for the Christmas services. But entering the Knox Centre, the altar servers would instead turn left and head back in the Cathedral direction to the sacristies area. They then completed their liturgical gesture by bowing to a cross in the Priests Sacristy, eventually getting changed in the Workers’ Sacristy opposite. Prior to that some would help ferrying sacred vessels back and forth from the sanctuary area inside the Cathedral. The point that may not be appreciated at first is that the altar servers would have got to the room before the rogue choristers: the alleged five minutes window immediately after Mass was just not feasible.
The complainant gave evidence that the assault happened immediately after Mass, and it’s clear that the prosecution were operating on that basis. It was learned that the sacristan was in the habit of leaving five minutes or so just after Mass for those parishioners to pray awhile. Then he took the lectionary from the sanctuary and unlocked the sacristy. This was around the time that the altar servers were returning because the procession also took around five minutes. It is simply not tenable that the assault could happen in this time, though, firstly because the room was locked, and secondly because the boys were elsewhere. But the Crown tried to make out that the room might have been unlocked and here they rely on McGlone, an adult altar server who gave evidence that the room was sometimes open when he returned. This evidence doesn’t support the Crown at all because, as indicated, McGlone’s return would have been at around five minutes after Mass, and nor does their appeal to the evidence from the organist who also indicated that the room was open after the post-lude which would have been about ten minutes after Mass.
At some stage the Crown clearly became aware of the physical impossibility as they floated the following conjecture, that the hiatus began five minutes after Mass because that was when Potter deigned to start the quiet time. This dodge is groundless and futile. The “hiatus” was only ever on the sanctuary, not in the sacristy, and even if it continued for ten minutes (say) there was no reason for the place to be vacated as the concelebrating priests had left their valuables in the room (which was why it was locked): there was every reason for the sacristan or his assistant Michael Mahoney to be around. Besides, there were several others who had business there such as those returning the collection money. As for the altar servers, the Crown speculated that they might have been whisked away to their changing room – a theory they had to retract.v Again, this was quite pointless as the altar servers obviously did not change before clearing stuff away. And as a matter of fact, McGlone gave evidence that the clearing up process started right away, as soon as they returned. So the very witness who was taken up by the Crown in a vain attempt to prove that the hiatus was early is now quite ignored when it contradicted the possibility of a late hiatus! The argumentation of the Crown is quite duplicitous, and there is every sign that the majority more than half realise the fact. In short, when one thinks through the fact of the servers’ return, it becomes evident that no opportunity for the offence existed neither before nor after.
The briefest overview of Pell’s case is enough to see how high it flies – in contrast to the Crown who are forced to argue in the most desperate and unprincipled manner. Neither of the two wings have been clipped. The steps alibi remains unrefuted even as the so-called hiatus theory has been torn apart.
ii Here see paragraph 17 of https://www.academia.edu/40967330/IN_THE_HIGH_COURT_OF_AUSTRALIA
iii https://www.academia.edu/41894211/Evidence_from_the_Choir See also: https://www.academia.edu/41842205/Cardinal_Pells_Impossible_Sin
iv The Crown quibble about the number of altar servers. They claim that the figure of up to 12 is “not grounded in the evidence” yet they concede the average figure of 6 to 8 which clearly may mean more than 8 at times. Moreover, at note 69 they cite McGlone who spoke of trying to “fill the four primary positions of thurifer, crucifer and two acolytes; … anything beyond that was a plus.” But perhaps McGlone (who was an adult – the Crown’s submission never makes reference to adult altar servers) was thinking of four more places needing to be filled, and in any case, at the rear of the procession were two deputed to carry the crozier and the mitre and who go unmentioned by the Crown (though perhaps these were the acolytes referenced by McGlone).
See also: The Steps Alibi