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The Australian Disgrace

(George Weigel, First Thing – August 2019) There will be much more to be said in the weeks and months ahead about the rejection of Cardinal George Pell’s appeal of his conviction for “historic sexual abuse,” by the 2-1 vote of a three-judge panel of the Supreme Court of Victoria. For the moment, this astonishing, indeed incomprehensible, decision calls into the gravest doubt the quality of justice in Australia—and the possibility of any Catholic cleric charged with sexual abuse to receive a fair trial or a fair consideration of the probity of his trial.

In the live-streamed appellate court proceedings on the morning of August 21 (Melbourne time), Victoria Supreme Court chief justice Anne Ferguson, reading the decision, made persistent reference to “the whole of the evidence.” But there has never been any “evidence” that Cardinal Pell did what he was alleged to have done. There was only the word of the complainant, and there was absolutely no corroboration of his charges—which, in the months since the cardinal’s trials, have been shown to be alarmingly similar to a fake set of charges leveled against a priest in a story published years ago in Rolling Stone. 

Judge Ferguson also referred to the “uncertain memory” of the “opportunity witnesses” who testified on the cardinal’s behalf, to the effect that the acts of sexual abuse alleged to have been committed simply could not have happened given the circumstances of a cathedral full of people, the brief time frame of the alleged acts, and the cardinal’s vesture. But what, one must ask, about the potentially “uncertain” memory of the complainant? Why is it simply assumed, on the basis of his videotaped testimony, that the complainant has a clear memory of what he alleged to have happened—especially when the entire scenario of the alleged abuse is implausible in the extreme?

In justifying her judgment and that of the colleague who joined her in rejecting the cardinal’s appeal, Judge Ferguson said that “two of us”—i.e., she and Judge Chris Maxwell—took a “different view of the facts” than dissenting Judge Mark Weinberg. But what facts? Does the simple assertion of an alleged act of sexual abuse, no matter how implausible as to the nature of the act or the circumstances in which it was alleged to have been committed, constitute a legal “fact” capable of destroying the life and reputation of one of Australia’s most distinguished citizens? If so, then there is something seriously wrong with criminal law in the state of Victoria, where legal process now bears a parlous resemblance to what prevailed in the Soviet Union under Stalin. There, too, charges were deemed plausible solely on uncorroborated assertion.

The cardinal’s appeal failed to convince Judges Ferguson and Maxwell that the convicting jury must have had doubts about the plausibility of the charges against Pell, given the devastating case the defense raised against the prosecution at both of the cardinal’s trials. But why is this the appropriate or relevant standard? A deadlocked jury at the first trial voted overwhelmingly to acquit the cardinal of the charges; then the retrial swung almost 180 degrees and returned a unanimous verdict of guilty, after presumably considering the same evidence on which the majority of their predecessors voted to acquit. Doesn’t that suggest the possibility of deep jury bias—especially given the lack of defense challenges to jurors in the state of Victoria? And doesn’t that call into question the probity of the guilty verdict?

Two and a half months ago, at Cardinal Pell’s appeal hearing, Judges Ferguson, Maxwell, and Weinberg aggressively queried the Crown representative defending the guilty verdict, whose performance, by any objective standard, was exceptionally weak. By contrast, the appellate panel gave every indication during the appeal hearing of taking seriously the defense’s insistence that the guilty verdict against Cardinal Pell was “unsafe,” in that it could not have been reasonably arrived at on the evidence at hand (or, in this case, the lack thereof). What happened in the ensuing two months? That will certainly be worth exploring in the weeks ahead.

Since the Pell conviction, friends well connected in Australian legal circles have said that the serious legal community in Australia, as distinguished from ideologues, was becoming deeply concerned about the reputation of Australian justice; thus, it was said, many of those senior legal figures were hoping that the cardinal’s appeal would succeed. Their concerns should now be intensified by orders of magnitude. For on the evidence of this shabby case and this appalling and thoroughly unpersuasive appellate decision, reasonable people will wonder just what “rule of law” means in Australia, and especially in the state of Victoria. Reasonable people will wonder whether it’s safe to travel, or do business, in a social and political climate in which mob hysteria similar to that which sent Alfred Dreyfus to Devil’s Island can manifestly affect juries.

Cardinal Pell has said to friends in recent months that he knows he is innocent and that “the only judgment I fear is the last one.” The judges who concurred in a grotesque appellate decision confirming the result of a grotesque legal farce may or may not believe in a final judgment. But they certainly have other judgments to worry about. For they have confirmed that a once-admirable part of the Anglosphere known for independent thinking has become something quite ignoble, even sinister.