George Pell case: A ‘beat-up’ based on ignorance and, possibly, prejudice

The High Court has unleashed a devastating critique of a weak case that was built on ignorance of Catholic Church tradition.

It has embarrassed the Victorian judicial establishment and opened up further questions about what police did to investigate the plausibility of the sex-abuse claims.

What was the prosecution team trying to achieve when it threw a series of loose facts into a blender and then have the case taken all the way to the County Court and beyond?

Old-school journalists call this practice a beat-up — a story that might be part of the way there but needs to be twisted and contorted in order to make its way to the top of the bulletin or the front page.

This is what the case against George Pell was — a beat-up, built on the credibility of the surviving complainant.

As The Australian has repeatedly stated — and the Victorian Court of Appeal was told — the complainant presented as a witness of truth. But he was let down by a justice community that went too far with too little.

Insufficient due diligence was done at the outset to determine whether or not the offences could even have occurred. It’s now plain that they couldn’t.

Certainly not within the bounds of reasonable doubt, which is the test the prosecution was required to pass.

It’s one thing to have a marketable witness, quite another to present a case that would withstand the nuclear heat of every single layer of the Australian court system.

To be frank, the High Court didn’t appear at times to be deeply attracted to the complainant’s evidence, nor was judge Mark Weinberg in the Victorian Court of Appeal in his minority judgment.

Don’t even start with the Pell camp.

The backlash that flows from the High Court’s decision should not be directed at the surviving choirboy, rather at the people who put him up to it.

The High Court’s reasons for the 7-0 whitewash are outlined in 128 clear points, which are, in their own way, quite unflattering to VCA Chief Justice Anne Ferguson and her colleague, judge Chris Maxwell, who together produced the majority 2-1 judgment that dismissed the Pell appeal.

Fundamentally, Australia’s brightest legal minds have questioned Ferguson’s (no relation) and Maxwell’s decision-making on the case.

At the root of the case’s weakness is the abject failure of police, the prosecution and others to dig deep into the plausibility of Pell having offended in this manner.

As The Australian has always asked: how was it possible for Pell to have done all these things when the machinery of a solemn Mass was still whirring away at breakneck speed?

It is not enough to say that pedophiles have done weird things in weird places in the past.

It has mystified people with knowledge of the workings of St Patrick’s Cathedral how this could have happened, given the length of time it takes for the Mass to end and the archbishop to return to his sacristy.

It was Robert Richter QC who sowed the seeds for the High Court decision when the case was only at the committal stage.

It was then that he twigged the clear problem with the prosecution case.

Having worked out the existence of the procession and the time it took for Pell to make his way to the steps and back again, the prosecution narrative was flawed.

As someone close to Pell said: “It just couldn’t have happened.”

If we work backwards, charge five — which suggested that Pell assaulted the surviving choirboy in a corridor in front of others — was borderline preposterous, according to people familiar with the church and the movements after mass.

“The unchallenged evidence of the applicant’s invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement under Catholic Church practice that the applicant always be accompanied when in the cathedral, were inconsistent with acceptance of A’s evidence of the second incident,’’ the High Court judges found.

“It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident.’’

On the first four charges, the seven judges doubted whether it was possible for the offending to have occurred, based on the compounding improbabilities caused by the evidence before the court.

People such as Pell’s right-hand man at the time, Monsignor Charles Portelli, who was clear in his statement about almost always being beside Pell’s side and of the practice of staying on the steps to greet worshippers for up to 20 minutes.

“Making full allowance for the advantages enjoyed by the jury, there is a significant possibility in relation to charges one to four that an innocent person has been convicted,’’ the High Court agreed.

So how does the Victorian justice system review the failures in the Pell case?

It’s first challenge will be the inevitable question over whether the state should cover Pell’s legal costs, which will run into many millions of dollars. The costs have so far been covered by wealthy Australian Catholics.

There will be those who want to take comfort from the fact that the cathedral allegations passed through three courts.

But the manner in which they were excoriated by the High Court suggests this was a function of a triumph of luck — and maybe even prejudice — rather than necessarily evidence of any weight of facts.

Another disturbing element of the Pell matter is the manner in which a large number of prominent people were treated for having the temerity to support the cardinal in their firmly held belief that he was innocent.

Start with Richter, move on to the Jesuit Frank Brennan and then go to Australian Catholic University vice-chancellor Greg Craven.

They were right. Their critics were wrong.

This era of social media McCarthyism should end.

The incarceration of George Pell was always about the facts — whether or not he abused those boys, and whether or not it was possible that he abused them.

Those with even passing knowledge of the cathedral and solemn Mass were right to have their deep suspicions.

Pell was wronged. No more, no less.