Fr Brennan comments on the Pell Affair

Lessons Learned from Pell’s Sad Saga of Suffering.

Father Frank Brennan SJ

The Australian, April 11, 2020

Two weeks before Cardinal ­George Pell faced the jury of 12 fellow citizens who convicted him of vile sexual assaults on two choirboys, Scott Morrison delivered the national apology to victims of child sexual assault. Morrison told parliament: “Not just as a father, but as a Prime Minister, I am angry too at the calculating destruction of lives and the abuse of trust, including those who have abused the shield of faith and religion to hide their crimes, a shield that is supposed to protect the innocent, not the guilty. They stand condemned … On behalf of the Australian people, this parliament and our government … I simply say I believe you, we believe you, your country believes you.”

In Pell’s case, the jury believed the complainant, Mr J, who said he recalled events from 22 years previously when he was a 13-year-old member of the St Patrick’s Cathedral choir. They were convinced beyond reasonable doubt that Pell committed these crimes in the priests’ sacristy after a Sunday 11am solemn mass. Now the High Court has unanimously decided that the jury got it wrong. The court has ruled that on the evidence presented at trial, no jury could properly be convinced beyond reasonable doubt that these assaults occurred. The highest court in the land has determined that Pell is not guilty of these charges. How can this be? What lessons are to be learnt for the wellbeing of victims and complainants? How can the Victorian criminal justice system be improved to ­assist complainants who come forward many years after experiencing dreadful trauma, while at the same time protecting those who are wrongly accused?

The problem with the Pell case from the start was the way in which it was handled by the police. For some months, the Office of the Director of Public Prosecutions tried to get the police to improve the brief of evidence. The police then decided to go it alone and charge Pell on summons. With a lack of due diligence, the police failed to interview possible key witnesses.  The police told the media: “Advice was received and sought from the Office of Public Prosecutions; however, ultimately, the choice to charge Cardinal Pell was one that was made by Victoria Police.” John Champion, who was DPP at the time, said his office would conduct the criminal proceedings. From then on, the Office of the DPP went to extra­ordinary lengths trying to cobble together a case. This was the second problem. Once the trial process commenced, the DPP kept shifting ground all the way up to the High Court, promoting a case inconsistent with the evidence.

What does it mean for society to believe Mr J in the way the Prime Minister indicated? It should mean that when J presents a complaint to police, he is treated respectfully and sensitively, while he pieces together his traumatic memories of past assaults. The police did this, and they did it well. Commendably, Victoria Pol­ice has worked closely with victims’ groups and their lawyers. While police were listening respectfully to J, they should still have been committed to orthodox investigation, collecting evidence consistent with J’s account and scrutinising any evidence inconsistent with his account. The police should then have gone back to J pointing out how his honest recollection of past events did not tally with the evidence of routine practices in the cathedral — evidence that could have been provided to the police by perfectly decent, honest people doing their best to recall what they routinely did in a highly organised liturgical setting more than 20 years before. A solemn mass with an archbishop in attendance in St Patrick’s Cathedral is a bit like a military parade when it comes to discipline and ritual. The police did not even make the most rudimentary inquiries of those who knew, like the back of their hands, the procedures for a solemn mass.

J alleged that he and his friend, R, were assaulted for five to six minutes by Pell after mass in the priests’ sacristy when the sacristy door was unlocked and open, and when there were no other persons in the room. It’s important to note that there are three sacristies in the cathedral: the archbishop’s sacristy, the priests’ sacristy and the workers’ sacristy, which is also called the utility room. The DPP told the High Court Pell “would ordinarily have used the archbishop’s sacristy to robe and disrobe”. But Pell did not ordinarily use the archbishop’s sacristy before 1997. In fact, there was no evidence that Pell had ever used the archbishop’s sacristy for disrobing before 1997. He used the priests’ sacristy, which was also frequented by any priests participating in a mass, as well as the altar servers when attending to sacred vessels, ferrying them back from the sanctuary. Priests don’t go into the workers’ sacristy, where altar servers disrobe and attend to things such as candles, flowers and incense. The startling gap in the police investigation was their failure to interview altar servers and other key people who were routinely in the priests’ sacristy. J also alleged a second attack by Pell a couple of months later in a corridor of the cathedral when there would have been 40 or 50 people standing around and when Pell would have been standing beside Father Brendan Egan, who had just said the mass.

J never mentioned the later assault to his friend R. I won’t complicate the story by saying anything further about that assault, as Sergeant Christopher Reed, the lead investigator, admitted neither he nor any other police undertook any investigation of this allegation, and for whatever reason they never even spoke to Egan who, though no longer a priest, still lives and works in Melbourne. J provided the police with two statements in June and July 2015. Over a year later, the police then interviewed Pell in Rome on ­October 20, 2016. In the Rome interview, Pell was told for the first time that the main allegations related to an incident immediately after mass in the cathedral. Before then, Pell thought the police inquiries related to an incident after choir practice. Apart from expressing his incredulity about J’s allegations, Pell went to great lengths in the interview to explain how it was just not possible for him to be alone in the priests’ sacristy with two choirboys immediately after mass. He told the police how he would always be accompanied by his MC, Monsignor Charles Portelli, while robed. He would stop at the front door after mass and greet ­parishioners. The priests’ sacristy after mass would be “a hive of activity” with altar servers coming and going, ferrying sacred vessels used during mass from the sanctuary to the sacristy. Any priests who had celebrated the mass with Pell would be in the sacristy disrobing, and the collectors would be bringing in the money from the collections. The police followed up by interviewing Portelli on December 6, 2016. Portelli later gave evidence in court consistent with Pell’s account to the police about the busy state of the sacristy after mass, and about the cast of characters who would have been coming and going in the sacristy at that time. An image tendered as evidence shows the interior of St Patrick’s Cathedral in Melbourne.

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. Pell faced a first trial before a jury, which could not agree, in late August 2018. During that trial, the defence asked the DPP to include an altar server as a witness. This server, Jeff Connor, had kept a diary. With that diary it was possible to establish that the only possible dates for the main incident were December 15, 1996, and December 22, 1996. Connor’s diary also contained names of other altar servers from that time. After Connor had given his evidence about his diary, the defence was then able to ask him about the usual practice of altar servers entering the sacristy after mass. At the end of mass, some servers would lead the procession out of the cathedral. They would be followed by about 60 choristers. Then would come any concelebrating priests followed by Portelli and Pell accompanied by a couple of other servers who would take charge of Pell’s mitre and crozier should he want to put them aside. For example, if staying on the front steps to greet parishioners for any length of time, Pell would hand over the crozier and mitre.

According to J, Pell arrived at the sacristy without his mitre and crozier. The crozier, symbolic of the shepherd’s staff, is a sacred and valuable piece of liturgical equipment. It would not be left lying around. If Pell did not bring it with him, the crozier bearer or sacristan would have brought it back to the sacristy before Pell arrived (if Pell stayed on the steps greeting parishioners), or with Pell (if Pell handed it over at the end of the procession), or shortly after Pell arrived in the sacristy. And the mitre would be returned by the mitre bearer. Having reached the front door of the cathedral, the procession took an external route on the day of the alleged incident. The route from the sanctuary to the front west door and then externally to the priests’ sacristy was 300 steps, taking about four minutes. J told the jury that he and his friend cut from the procession late in the piece, backtracked and took another route through the south transept to the priests’ sacristy. Their route was about 400 steps. It would have taken them about five minutes to reach the priests’ sacristy if they had gone straight there. But J told the jury he and R “were sort of poking around in the corridors” before they got there. J and R would have reached the priests’ sacristy more than a minute after the first group of altar servers entered. On entry, the altar servers bowed to the cross and set about ferrying sacred vessels from the sanctuary to the sacristy. The sanctuary is just 50 steps from the sacristy. Any concelebrating priests would have been disrobing. At the second trial, a second server, Daniel McGlone, had come forward of his own volition. He is now a practising barrister. He recalled serving Pell’s masses at about the time of the alleged incident. He, too, was able to confirm to the jury that altar servers would come into the sacristy at the end of mass, bow to the cross, and commence their clearing duties.

The police had never in all their months of investigation seen fit to interview one single altar server. Even though they had Connor’s diary for two months before the second trial started, they did not track down and interview any altar server whose name appeared in the diary. Here is the evidence of Christopher Reed, the chief police investigator being cross-examined by Pell’s lawyer, Robert Richter: “So what happens is this; apart from the fact that we tracked down Mr Connor, you had not tracked down any altar servers at all?” “No, that’s correct.” “But the altar servers were a very, very important part of this investigation?” “Well, not during the investigative stage, no. We were concerned with the choirboys specifically, ­because the events that have been alleged occurred surrounding the choirboys, not the altar servers that were in a different location and had a different role.” “But there weren’t any choirboys present when this happened, alleged to have happened?” “Well, there weren’t any altar servers.” “There weren’t any of those present?” “There weren’t any altar servers alleged to be present either.” Alleged by J, that is. Reed had said that the “events that have been alleged occurred surrounding the choirboys, not the altar servers”.

The contrary was true. There would never have been any additional choirboys in the sacristy. The choristers go straight to their choir room after mass to disrobe and return their sheet music. The issue was what had happened to the altar servers who would normally be in the priests’ sacristy. Herein lies the problem. Instead of investigating the ­allegations, the police simply ­accepted J’s account, including the assertion that there were no altar servers present during any of the periods that the first incident could have occurred. They interviewed no altar servers. But they interviewed more than 30 choristers. Why? Because J was a chorister.

This policing technique, if ­applied to other cases, would compromise many a criminal investigation. Let’s consider an example where police receive a report of a crime, not from a victim but from someone who is simply an honest eyewitness. Imagine if a pedestrian claimed to witness a bank robbery, telling the police that she did not see any bank tellers in attendance when the bank vault was raided. The police then spend 18 months interviewing 30 other pedestrians, but they decide not to interview any bank tellers because the pedestrian witness said she did not see any. The police would want to interview all available bank tellers, if only to learn from them what their usual practices were, assisting the police to understand how the robbery could possibly have happened. The necessity of interviewing the bank tellers as part of a proper investigation is underscored if there is evidence that routinely bank tellers would be in attendance at the time the robbery allegedly occurred.

The first incident involving four sexual assaults on two boys is alleged to have occurred in a room which, at all relevant times, was ­either locked and inaccessible to the boys, or a hive of activity with persons constantly coming and going, including altar servers ferrying sacred vessels from the sanctuary, concelebrating priests who were disrobing and functionaries transporting the money from the collections to safe keeping in the vault in the priests’ sacristy. The jury needed to be convinced beyond reasonable doubt that there was a period of six minutes after mass when Pell, J and R could be alone together in the priests’ sacristy. That six-minute period had either to end before the returning altar servers bowed to the cross, or begin more than a minute after they bowed to the cross when J and R entered the room. It could not include the time when the altar servers bowed to the cross, as that would mean that Pell, J and R would not have been together, alone and uninterrupted, for the necessary time for the ­alleged offences to occur. There could not have been any such six-minute period before the entry of the altar servers because J and R had not reached the priests’ sacristy by then, and Pell was still at the back of the procession or on the steps talking to parishioners. An image tendered as evidence shows a corridor inside St Patrick’s Cathedral in Melbourne.

There could not have been any six-minute period after the entry of the altar servers because the altar servers would have needed to adjourn somewhere else after they had bowed to the cross. There was no “somewhere else”. They would not have gone to the nearby workers’ sacristy. If they had been waiting in the corridor outside the sacristies, they would have seen Pell coming and he would have seen them. No rational jury could have been satisfied beyond reasonable doubt that there was a six-minute window available for the offences to have occurred in the priests’ sacristy after solemn 11am mass on a Sunday. Then came the second problem. The prosecutor went to extraordinary lengths to try to establish the necessary six-minute “hiatus” in an empty sacristy. The prosecutor tried to separate Pell and Portelli so as to get Pell into the room alone with the boys. The prosecutor then went to even greater lengths trying to prove that the altar servers were out of the room, having deftly airbrushed the money collectors and any concelebrating priests out of the picture. The prosecutor and the DPP had five speculative theories. And they all collapsed in a heap. Portelli admitted to being a smoker. In the first trial, the prosecutor Mark Gibson QC suggested that Portelli might have been desperate for a smoke after mass, and that he might have skipped off somewhere fully robed for a quick draw. Portelli rejected the idea out of hand. Gibson went ahead in his final address to the jury putting the suggestion. Justice Peter Kidd, the trial judge, rightly directed him to retract. In the second trial, Gibson gave it another go. He asked Portelli if he might have ducked out for a smoke straight after mass leaving Pell on his own. Portelli replied: “It would be as appropriate as, for instance, His Honour walking down William Street dressed as he is smoking a cigarette, which is not done.” Not to be deterred Gibson once again tried the speculative theory with the jury and once again was required to retract in his final address. Corrected by the judge, Gibson told the jury that even though Portelli had denied going off for a smoke, “I argued to you that perhaps he did. Well, that’s speculating. So, that’s not to be taken into account, perhaps he did. His evidence is he didn’t. So I just wanted to make that clear, because it’s the evidence that we base these decisions on, not speculation”.

The second theory was that Portelli might have been absent from Pell’s side if only for a couple of minutes to go to the sanctuary to organise the books and sermon notes for an event Pell might have had in the cathedral later that day. But Pell had no mass scheduled later in the cathedral on either December 15 or 22. Gibson suggested that Pell might have been going to say the regular evening mass in the cathedral. But there was no evidence of that. The archbishop having celebrated the 11am solemn mass never says the low-key evening mass. It’s said by one of the priests on the cathedral staff. An image tendered as evidence shows the sacristy of St Patrick’s Cathedral in Melbourne.

The third theory was that the altar servers, having bowed to the crucifix after their four-minute procession into the priests’ sacristy, might then have adjourned for a further five to six minutes to the workers’ sacristy awaiting further instructions before returning to the priests’ sacristy to resume their duties. This was contrary to all the evidence, including the evidence of the two experienced altar servers, Connor and McGlone. There was absolutely no evidence of such a proposition. The judge directed Gibson to correct the suggestion. Gibson returned after lunch and told the jury: “Mr Foreman and members of the jury, before lunch I had spoken about there being this period of time after the altar servers had bowed to the crucifix in the priests’ sacristy and before (the sacristan) Mr (Max) Potter had started ferrying items from the sanctuary to the priests’ sacristy. I think I might have said that the altar servers were in their workers’ sacristy during this five- to six-minute time ­period. There is, of course, no evidence of that, and there’s no evidence of where they were. There is evidence of where they weren’t, from J, and that is they weren’t in the priests’ sacristy, so I was inviting you to conclude that it was during this period waiting for the green light from Mr Potter that, wherever the altar servers were, it was not in the priests’ sacristy.” This theory highlighted the whole problem with the crown case. The evidence of honest, reliable witnesses called by the crown and never contradicted was to be airbrushed out of the picture because it did not fit with the complainant’s account.

The fourth and fifth speculative theories did not arise until the new DPP, Kerri Judd QC, appeared personally in the High Court, leading Gibson, who had prosecuted the case, through the committal proceedings and both trials before then participating in the appeal in the Victorian Court of Appeal.

These theories were breathtaking. They highlighted the incoherence of the crown case. When pressed by the High Court bench on where one could find these necessary five to six minutes when Pell could be alone with the boys in the priests’ sacristy, Judd threw all caution and evidence to the wind. Judd was asked by Justice Virginia Bell: “On the evidence, once the altar servers bowed to the crucifix, on their account where did they go?” Judd responded that there was evidence “that they went to what they called the ‘worker sacristy’ to unrobe. That was a different sacristy. That was the workers’ room or the candle room.” When asked by the bench, “Is this going back to the position that the prosecution disavowed at trial?”, Judd threw Gibson under the bus, replying that Gibson had “incorrectly disavowed that there was no evidence, he was very generous in that”. She then purported to find the evidence where the altar server McGlone had said that the crozier bearer and mitre bearer had arrived at the priests’ sacristy, returned their items, and then adjourned to the workers’ sacristy to disrobe. Justice Bell asked her: “Do you say they went off and changed into civilian clothing ­before they removed the sacred vessels?” Judd replied: “Yes.” Anyone who knows anything about a solemn mass in St Patrick’s Cathedral in those days under the keen eye of Cardinal Pell knows it would be unthinkable for altar servers to venture unrobed to the sanctuary. This was not just a mistake about church custom. It was a clear divergence from the evidence. Judd misquoted McGlone’s evidence, overlooking the fact that McGlone distinguished the mitre bearer and the crozier bearer from the other altar servers. McGlone simply agreed that the other altar servers would bow to the crucifix at the end of the procession and “then they would go and follow directions as to what they should do with the various vessels”. Even if the mitre and crozier bearers had adjourned to the workers’ sacristy to disrobe, having completed their tasks, the other servers continued their allotted tasks ferrying things from the sanctuary to the priests’ sacristy while still robed. There was no evidence to the contrary. Stretching the crown case to breaking point, Judd demonstrated, ironically, that there was no evidence capable of displacing the credible evidence of those most knowledgeable about the actions of altar servers that they would have been coming and going into the room during that contentious five to six minutes.

Then came the DPP’s fifth theory. At trial, everyone accepted the sacristan Potter’s evidence that he would allow five to six minutes of private prayer time for parishioners before he commenced the clearing of the sanctuary. The prayer time would commence when the procession was departing the cathedral. Anxious to find the necessary five to six minutes for the offending to occur in the priests’ sacristy after the two choirboys would have spent at least five minutes leaving the cathedral and making their way to the sacristy (processing, backtracking and poking around), Judd abandoned the uncontested evidence and put suggestions that would have entailed expanding the private prayer to more than 10 minutes. Judd told the court she was “really going to go in hard on this”. She told the court: “How long that is and when it starts is very much dependent upon how long it takes for the cathedral to be cleared.” When Chief Justice Susan Kiefel asked her, “Was it put to any witness that it could be more than five to six minutes?”, she rightly answered, “No”. When the Chief Justice put to her that at trial before the jury “the prosecutor adopts the evidence of five to six minutes and goes with it”, she rightly answered, “Yes”.

But that didn’t stop her from propounding yet another scenario without evidence to make it good. For J’s account of an empty sacristy at the time of the offending to have been correct, nine persons (Potter, Portelli, and seven altar servers) would have to have deviated, without explanation, from their regular, scheduled, prescribed behaviour. Potter, Portelli, and altar server Connor all gave uncontradicted evidence that they would have done nothing different from their usual routine all those years ago on the occasion of the first incident. They could not recall having done something different. In the High Court, Justice Patrick Keane observed, when questioning the DPP: “In terms of the way the case was run, it was not open to the jury to take the view that Monsignor Portelli was not there. Monsignor Portelli gives evidence of a couple of practices that exist and says it is possible they were not followed because of the exigencies of the particular day, but he cannot recall that there was any particular ­exigency that caused a departure from the practice. Is not the evidence of practice, where it is honestly given, usually regarded as powerful evidence?” Judd agreed and Keane added: “I mean, I can say I shaved last Friday, not ­because I actually have a specific recollection of it, but because it was a workday and I shave on workdays.” Portelli gave uncontested evidence that he recalled each of the masses that could have been the occasion of the first incident and that he would not have deviated for a full six minutes from his practice of accompanying the robed archbishop and that he had no occasion to leave for even two minutes (there being no archbishop’s event in the cathedral that afternoon requiring him to attend to the books in the sanctuary). According to J, Pell did not have his mitre and crozier when he ­arrived at the sacristy. Pell would have no reason to dispense with them if he stayed with the procession. They were very much part of his liturgical regalia. There was evidence he used to hand them over if he stopped on the steps to greet parishioners. Altar servers Connor and McGlone gave evidence that altar servers would not deviate without reason from the regular, scheduled, prescribed behaviour in the priests’ sacristy after mass. Any deviation from that behaviour would have required all those nine persons (sacristan, MC and altar servers at the front of procession and altar servers at the back of procession) to be in another place for no known reason, without any evidence (or even suggestion) of them acting in concert. If they did not act in concert, each of them would have required a direction from someone to do something different from normal practice. There was no evidence of such a direction, and no hypo­thetical reason offered for such a direction. An accused must be convicted of serious criminal offences only on the evidence. The trial prosecutor and DPP in this case promoted their own speculative case theories in an effort to get around or dis­regard credible evidence from its own witnesses without daring to challenge the honesty of those ­witnesses.

When the suppression order was lifted in February 2019, I wrote in The Australian: “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 … should the appeal succeed, the Victoria Police should review the adequacy of the investigation of these serious criminal charges.” In light of the DPP’s approach at trial and in the High Court, I would also urge a review of the DPP’s application of its prosecutorial discretion. This case should never have come to court. With improved procedures by the police and the prosecution authorities, allegations made by complainants of historic sexual abuse might be accepted respectfully, with the complaints being investigated diligently and with the utmost seriousness. However, it is a disservice to complainants to treat what they say as necessarily correct. Their claims need to be tested against the evidence of other honest witnesses. It would cause less pain to everyone if these claims are tested sooner and out of the public gaze — by the police and the prosecution authorities who are able to sift out claims that would be unsustainable under light of day.

The High Court’s decision should confirm, rather than undermine, belief in the jury system. Justice Mark Weinberg said during argument in the Victorian Court of Appeal, “Juries almost always get it right, but the word is ­‘almost’.” Everyone, including victims, should be grateful to Justice Weinberg, who dissented in the Court of Appeal, keeping alive the prospect that the full High Court bench might put right the mis­carriage of justice in this case. Anne Ferguson, Chief Justice of Victoria, Chris Maxwell, president of the Court of Appeal of Victoria, and Kerri Judd, the Victorian DPP, all made serious errors in the conduct of the Pell proceedings.

The police investigation was badly flawed, having been supervised by Victorian Deputy Police Commissioner Shane Patton who was in Rome with the lead investigator, Christopher Reed. It took the High Court to put right this series of failures by some of Victoria’s most senior officials. There can be no doubt that J has suffered serious trauma in his life. I am sorry for the added trauma he has now suffered through the processes of the law. Much of it was avoidable. These processes have also re-traumatised many other people who have experienced institutional child sexual abuse and who have placed hope in our legal system. Their situation would have been assisted if the police in this case had undertaken competent, objective policing. The DPP could have helped by complying with its own policy that it “not put forward theories that are not supported by evidence”. These failures in due process caused needless pain and avoidable harm to J, Pell and the community.

Frank Brennan is a Jesuit priest and human rights lawyer. He attended some of the Pell proceedings.