George Pell should not be charged just to clear the air

EDITOR'S NOTE: The High Court overturned Cardinal George Pell's conviction for historic child sex offences in a judgment handed down April 7, 2020. In a unanimous decision all seven High Court judges found Victoria's Court of Appeal should not have upheld Pell's conviction It found the evidence could not support a guilty verdict.

Cardinal George Pell is not someone who attracts public sympathy. He presents as cold and aloof and as someone who at best did not have the capacity to deal with systemic child abuse committed within the Catholic Church.

For an intelligent man he misread the play alarmingly when giving evidence to the child abuse royal commission saying of one case, "It is a sad story and it wasn't of much interest to me." (He later desperately sought to clarify his meaning).

But now he is accused of being more than just an arrogant prick with the empathy of a polar bear stalking a seal pup. He is under investigation as a child molester – with police likely to decide whether to charge within weeks.

Cardinal George PellCredit: Alessandra Tarantino

This began when two men came forward and alleged that when students at St Alipius in 1978 Pell sexually assaulted them at a Ballarat swimming pool.

The Sano Taskforce investigated the allegations, three detectives flew to Rome to interview the Cardinal, a Brief of Evidence was prepared and has bounced around between prosecutors and police ever since. One source in the know described it as "an exercise in arse covering".

Pell has at all times maintained his innocence with his office releasing the following: "The Cardinal does not wish to cause any distress to any victim of abuse. However, claims that he has sexually abused anyone, in any place, at any time in his life are totally untrue and completely wrong."

At this point it is usual to insert a legal paragraph to stop getting sued such as, "Fairfax Media is not suggesting that Cardinal Pell is guilty of any criminal offences but merely reporting the allegations are under investigation."

Former policeman Denis Ryan with Chief Commissioner Graham Ashton.Credit: Eddie Jim

In this case we can add, "This reporter has no idea what happened, has not seen the evidence and has never met Pell."

Historical cases such as this are a devil to prove. There is no CCTV, DNA and there would hardly have been any records of who was at a particular pool on any day.

Former policeman Denis Ryan receives a formal apology from Chief Commissioner Graham Ashton over child abuse cases he worked on.Credit: Eddie Jim

Here is the question. If the claims (which are nearly 40 years old) were made against someone with no public profile who had moved to the other side of the world would the case have been handled differently? Of course it would.

There is no way police would have sent three detectives to Rome to interview someone over sexual assault claims that are at the low end of the offending scale. You would be flat out getting city detectives to go as far as Euroa let alone Europe on a similar case.

Victoria Police are expected to announce charges against Cardinal George Pell on Thursday.

Put it this way. Ten years ago they sent two detectives to Athens to find drug boss Tony Mokbel and he was Australia's number one fugitive.

Another twist is the fact the Cardinal lives in the Vatican where there is no extradition treaty – and so if he wanted to get nasty it would be difficult to get him back here at any rate.

Christopher Dale Flannery being led handcuffed into the City Watch-house to be charged with murder in October, 1981.

But it is Pell and he represents a church that failed to deal with paedophile priests and has damaged the lives of hundreds of kids it had a duty to protect. And it is the Victoria Police that once had its own Catholic Mafia that buried allegations against priests in order to protect the church's reputation.

We think of that wonderful old copper, Denis Ryan, who was effectively drummed from the force in the 1970s when he refused to stop investigating Mildura serial sex predator Monsignor John Day. (To his credit present Chief Commissioner Graham Ashton last year formally apologised to Ryan over his treatment).

Irvin Rockman (left) at Palmers Restaurant at Rockman's Regency in 1993.

Which means the Pell case was always going to be a high priority investigation. The fact the allegations first went to detectives in 2015 and have been examined by police and prosecutors ever since shows this is no open and shut case.

The known claim is of errant hands (a grope would be one expression) during water games where Pell was supposed to have thrown kids in the air in the pool. An accused in such a case could simply say he had no recollection of the events and that if such actions happened it was accidental.

George Pell in the 1980s.Credit: Simon Corden

In short those allegations are likely to go nowhere. But there are other more serious claims – at least two complainants have come forward stating Pell molested them in alleged actions that could never be considered accidental.

Their statements have been described as "powerful" but is that enough? History shows juries want corroboration before they will convict and getting sufficient back-up evidence in ancient cases can be near impossible.

The brief was sent last year to the Office of Public Prosecutions and returned without a recommendation. It was sent back to the OPP earlier this year and this time returned saying there was sufficient to charge but leaving the decision to police. What they didn't say was if there was enough to convict.

In football they call it the hospital handball.

There is one argument that some high profile cases (such as police corruption) should be aired in open court to show there had been no cover up.

Former Commonwealth Director of Public Prosecutions Ian Temby, QC, once wrote: "In such a case it may be justified to prosecute even if the evidence is not sufficiently strong to make a conviction more likely than not, and the case would not have proceeded against an ordinary citizen."

And so let's look at another high profile case that fascinated Melbourne. Thirty years ago Irvin Rockman was a millionaire playboy who was twice Melbourne Lord Mayor and was on Australia's 200 rich list with a net worth of $43 million.

Through a mutual friend he met schoolteacher Peter James Cross and they found they had a common interest – an appetite for cocaine. Eventually Cross became a cocaine smuggler and persuaded Rockman to be the initial financier.

The millionaire paid around $7000 for the first trip to Bolivia where Cross found his former student Cassandra Ogden, who was in Cochabamba on an exchange program.

He returned and split a small amount of cocaine with Rockman who then part-financed a second trip. When Rockman refused to be involved in a third importation Cross turned to the underworld and feared hitman Christopher Dale Flannery to invest.

When Cross was finally arrested he implicated Rockman in the drug trade and police prepared more than 30 drug charges against the former Lord Mayor.

But if Cross was to give evidence against Rockman he required a Commonwealth indemnity and Temby, quite rightly argued that as Cross was the instigator it would be wrong to use him against a smaller fish. It would be, he argued, the equivalent of using "a mackerel to catch a sprat".

Tragically in 1987 Cassandra Ogden, fearing she was being dragged into a massive drug investigation, took her own life just hours before she was due to be interviewed.

Rockman withdrew from public life and died in 2010, dogged by false rumours he had been some sort of drug boss.

Perhaps it would have been better for Rockman if he had been charged but there is no legal basis to run a trial simply to clear the air.

There is a standard, which should be the same in all cases. A prosecution should not be launched when there is no reasonable prospect of a conviction and only when it is "more likely than not to result in a successful prosecution".

George Pell has proven to be a lightning rod of contempt for those whose lives have been irreparably damaged (or in too many cases lost through suicide and substance abuse) by the actions of priests who hid their depravity behind the cloth of religion.

And he represents the church that pursued a policy of cover-up that sacrificed victims while allowing offenders to continue destroying young lives.

The days when police were dismissive of allegations of sex crimes unless the initial evidence was overwhelming are over. There has been a massive investment in Sexual Offences and Child Abuse Investigation Teams (SOCIT) that not only investigate the allegations but help provide support services for the victims.

But a sex crime is no different to any other offence and all the compassion in the world does not equate to evidence. To run a case for any reason other than to gain a conviction is spectacularly unfair both on the complainant and the accused.

Regrettably, according to multiple police and legal sources, too many prosecutions are now launched because the alleged victim is believed rather than on the strength of the admissible evidence.

Pell comes across as haughty, uncaring and egotistical – none of which are criminal offences.

The trouble is this case has dragged on for so long in such a public way there must be a strong desire to handball it to a court so there can be no suggestion of a cover-up.

But if we are all equal in the eyes of the law then the decision on whether to prosecute Pell should be made on the evidence, for the case needs to satisfy a criminal court, not the court of public opinion.

Pell deserves to be treated fairly – in a way many of the victims of the church he represents were not.