CHAPTER THREE
Mistrial: part I
‘I’m more and more disgusted with what happened. Before I wasn’t, I had a naive sort of view of things. I’m still incredibly confused, but now I have the perspective of a parent, who can see that if that was going on with their child, that it would be a totally criminal matter.’
How do you find 12 unbiased jurors to hear the trial of one of the world’s most powerful Catholics for crimes of child sexual abuse, at a time when many people around the world are reeling at news of the Church’s profound failure to protect children?
This was the question that the chief judge of Melbourne’s County Court, Peter Barrington Kidd, found himself considering as he presided over the trial of the financial controller of the Vatican and confidant to the Pope, Cardinal George Pell.
Kidd is no stranger to complex, high-profile cases. In 2015, at the age of 49, he became the County Court’s youngest chief judge. Born in Adelaide, South Australia, on 4 October 1965, he studied law at the University of Adelaide before spending two-and-a-half years working at the prestigious corporate law firm Mallesons. According to an interview with Kidd in the summer 2015–16 edition of Victorian Bar News, he didn’t take to corporate law, and almost considered leaving the profession after his experiences. ‘And that’s when I saw an advertisement in the paper for the Commonwealth Department of Public Prosecutions,’ he told the publication. ‘In some respects, it was really me saying to myself, “I’ll try this before I make the decision to move on [from law].” I applied and got the job, and I never really looked back after that point. I suddenly realised I could be excited by my work.’
Over the decade that followed, he prosecuted high-profile cases that made headlines in Australia, including the Bega schoolgirl murders, and the murder trials of Victoria Police officers Sergeant Gary Silk and Senior Constable Rodney Miller. After moving with his family to Switzerland in 2004 and studying international humanitarian and criminal law at the University of Geneva, Kidd was appointed as an international prosecutor with the War Crimes chamber of the state court of Bosnia-Herzegovina, in Sarajevo. While there, he prosecuted people for heinous war crimes – including murders, beatings, and tortures – committed in detention camps.
So when Kidd returned to Australia and settled in Victoria in 2008, taking on the role of Crown prosecutor, he was accustomed to cases that presented complex legal questions, and which dealt with historical crimes for which few witnesses remained alive.
After being promoted to senior Crown prosecutor in Victoria and spending a couple of years in that role, Kidd was appointed to the highest-ranking position within the County Court of Victoria – chief judge. Asked by Victorian Bar News what his focus as chief would be, Kidd responded that he was interested in the complexities around evidence presented in sex-offence trials. ‘As we know, in many sex trials there are multiple complainants, which immediately raises the question of tendency and coincidence evidence,’ he said. ‘In fact, even with single complainants the issue is raised – that in itself is controversial. I intend to get involved in trials myself, including multi-complainant sex trials. I intend to have a hands-on role in this particular field.’
There could be few cases more challenging or controversial than that of the highest-ranking Catholic ever to be charged with historical child sexual abuse offences, Cardinal George Pell. Prior to trial, a series of directions and pre-trial hearings were heard before the County Court, as is usual practice. In these hearings, which are usually brief, the judge or magistrate sets a timetable for the defence and the prosecution, and deals with any administrative matters to ensure that both sides have everything in order before the trial goes ahead. Directions hearings are also used to get challenges to evidence out of the way in order to avoid delays during the trial – the parties may dispute the calling of a certain witness, for example, propose introducing new witnesses, or want to establish the terms of a cross-examination to ensure inappropriate lines of questioning aren’t ventured into before the jury. One of the most significant administrative matters that Kidd needed to address during these directions hearings in Pell’s case was what measures the court needed to take to ensure that jurors would not be prejudiced towards or against Pell, given his high profile and the Church’s public and international fall from grace. How could he ensure that the Cathedral trial would be run fairly for both Pell and the complainant?
In a directions hearing on 2 August 2018, Kidd decided, with the agreement of both the prosecution and the defence, that a pool of 250 potential jurors would be brought into the basement of the County Court, and a video-link would be established between the basement and a courtroom on level three. Any potential juror with an excuse or a reason for not being able to sit on the case would write their reasons down on a sheet of paper containing their juror number, and those reasons would be brought to Kidd to consider.
Kidd decided to run the jury selection in this way partly because of the sheer number of potential jurors – having them explain their excuses to him one by one would be time-consuming – and also because he was concerned that ‘there will be a number of people in the pool who will say things we wouldn’t want the other potential jurors to hear’. ‘I imagine several comments [will relate to] some antipathy towards the Catholic Church,’ he said during a directions hearing. ‘Those people will obviously be excused, but I don’t want the rest of the court contaminated with those kinds of excuses.’
The empanelment of a jury is an essential part of the court process. Failures to run the empanelment process in accordance with strict statutory requirements may lead to the discharge of the jury, and in some cases may provide grounds for an appeal against a conviction.
It was clear that Pell’s status, the background of the child sexual abuse royal commission, and the worldwide reckoning with the Catholic Church would present some challenges to Kidd. There was much talk from the moment it became known that Pell was being investigated for historical sexual abuse crimes that he could never get a fair trial because of his status, and because jurors would be incapable of casting irrelevant facts and emotions relating to the Catholic Church aside. One way that courts may deal with concerns about juries being prejudiced towards defendants or victims – an issue more pronounced in high-profile cases – is to run a judge-only trial. However, Victoria is one of three Australian jurisdictions that does not offer this option for those charged with the most serious offences. Pell’s trial revived debate about whether Victoria needed to introduce this option. (For a brief discussion of the debate over jury trials and judge-only trials, see Appendix B.)
On the morning of 15 August 2018, the first official day of Pell’s trial, the empanelment process began, and the written excuses were brought up to the third floor from the holding room for Kidd to consider, as a small group of journalists watched on. This process was held in courtroom 3.3 of Melbourne’s County Court, the same room in which many of the royal commission’s hearings had taken place. Kidd sat at the front of the room at the raised bench, his staff taking their seats at a table below. On the next step down were two long tables, with the prosecution seated at one and the defence at the other. To the side was the jury box, and on either side of the room were screens that could be linked to the basement and to the holding room. Behind the tables for the respective parties were seats for the public. In the front row sat Detective Sergeant Chris Reed, who had led the investigation, and Katrina Lee, an executive advisor for the Catholic Archdiocese of Sydney and a longtime friend of Pell, who was present every day he faced court. Behind them sat the journalists, and the few members of the public who had kept track of proceedings and court dates, and who attended throughout.
Overall, the trial itself was a significantly less frenzied affair than the committal, which struck me as strange. Australia’s most senior Catholic was facing his first day on trial, and there was no long line to enter the court or struggle for a seat.
A video-link to the basement, where the mass of potential jurors was held, was established. The screens were not large enough to capture the entirety of the basement at once, so the camera would pan to different sections of the room. Kidd went down to the basement and made some preliminary remarks to the potential jurors, telling them that they were being considered for empanelment in the trial of Cardinal George Pell, and that the trial was expected to run for five weeks. I couldn’t help but wonder what was going through the jurors’ minds when they learned which trial they might be deciding. It struck me that there must have been at least some in the room unaware of who Cardinal George Pell was, and who only learned of his significance later.
‘Good morning, everybody,’ Kidd told them once he was with them. ‘My name is Peter Kidd. I’m the chief judge, and I will be the judge presiding over this trial. It’s the trial of the matter of DPP [Department of Public Prosecutions] v George Pell. Now, I declare this room where you’re all sitting an extension of the courtroom where we will be sitting. When I return to the room, the accused will be arraigned; that is, the charges he faces will be read out to him and he will plead not guilty to each of the charges.’ Kidd returned to courtroom 3.3, and Pell was formally arraigned and pleaded not guilty.
The jurors were then given more information by Kidd about the trial. ‘Many, if not all, of you would have heard of Cardinal George Pell. That may be because of a connection to the Catholic Church or because of media publicity. The fact that you have heard of Cardinal George Pell does not necessarily mean that you should apply to be excused. That is different from knowing the accused man.’
Kidd outlined the basics of the case. Pell was accused of having offended against two children aged 13 inside St Patrick’s Cathedral in Melbourne in 1996. The potential jurors were told that one of the victims was now dead, and that the offences were alleged to have occurred while Pell was the Archbishop of Melbourne.
The potential jurors were then invited by Kidd to write down on a piece of paper any reasons they felt they should be excused from jury duty for the trial, along with their jury number. They were also asked to complete a questionnaire, included on which was a list of witnesses and potential witnesses, as well as a list of places to be discussed in the trial. On the questionnaire, jurors were asked if they knew any of the witnesses, lawyers, or court staff involved in the case.
‘Now, self-evidently, the accused man, Cardinal George Pell, is a very senior member of the Catholic Church,’ Kidd continued. ‘He is, in fact, a cardinal of the Catholic Church. Just because you are of Catholic faith or identify with the Catholic faith doesn’t automatically disqualify you from sitting on this jury. On the other hand, if, because of your Catholic faith or identity, you feel that you cannot bring a fair and impartial mind to the trial, you must seek to excuse yourself. Similarly, if you have strong feelings against the Catholic Church which you cannot put aside and which would prevent you from bringing a fair and impartial mind to this trial, you must seek to be excused. If you are not able to put aside your personal experiences or any bias or sympathy that may arise from the fact that this case concerns a cardinal of the Catholic Church, then you must seek to excuse yourself.’
Kidd homed in on this point, stating that it was ‘critical’ that Pell only be judged on the charges against him and the evidence presented at trial. ‘This trial must not be used as an opportunity to make Cardinal Pell a scapegoat for conduct not contained in the charges or for the conduct or failures of the Catholic Church generally.’ This point was drilled into the potential jurors, and would be repeated to the selected jury frequently throughout the trial.
Kidd also told the potential jurors that if they had read or knew about a book by journalist Louise Milligan entitled Cardinal, they must seek to be excused. The same went if they followed any blogs or websites campaigning against child sexual abuse, Kidd told them.
‘Finally, can I advise you and remind you that if, for any reason, you do not end up being a juror on this trial, you are not entitled to talk about this process with anyone else, or that it involved a trial for Cardinal Pell. Let me be clear about that. If you aren’t selected on the jury, this will be one of the last opportunities I will have to tell you this. If you are not selected on the jury, then you must not talk about the fact that this case involved Cardinal Pell.’
The slips of paper containing juror excuses and questionnaires were brought up to Kidd in courtroom 3.3 to consider. One by one, Kidd read out the juror number, and either excused them from jury duty or found their reason unacceptable and ordered that they remain in the jury pool. In some cases, he would call individual jurors into the courtroom to ask them to further explain their excuses before he decided whether to dismiss them.
The jurors remaining in the pool after this process, known as the jury panel, had their numbers placed in a ballot box. The panel was then brought up to the same level of the court where Kidd and the legal teams were, and those who did not fit in courtroom 3.3 were taken to a holding room down the hall. The empanelment process then began. Journalists left the main courtroom at this point to make room, and sat in the holding room with the overflow of jurors. Fourteen jurors were then drawn from a ballot box and had their numbers and occupations read out by the court tipstaff. As they were called, they made their way to the jury box, walking in front of Pell. Pell was allowed to challenge up to three jurors without giving any reason, but chose to accept all 14 of those drawn, which included eight women and six men.
While only 12 jurors would deliver the verdict, two extra jurors were drawn in case they might be needed, because the length of the trial meant that any number of things could happen to the jurors, including some of them falling ill. If more than 12 out of the 14 remained by the end of the trial, another ballot would be held to decide the final 12. The excess jurors drawn would be excused and sent home, their five weeks of hard work ending before verdict deliberations began.
Following this process, which took all morning and early afternoon, the case was transferred to courtroom 4.3 for the remainder of the trial. This courtroom was much smaller and more contained, and as such the jurors were closer to the legal teams, could get a much clearer view of Pell, and would likely have identified the small group of journalists furiously taking notes. For five weeks, all of us would file in and out of this little courtroom, although the jurors, judges, and court staff would go through a separate entry and exit. This provided plenty of time for me to get a stronger sense of how Kidd operated, and how the legal parties perceived him. It was also plenty of time to come to know the other journalists covering the case, who would prove to be an essential source of support and humour as it developed and intensified. The courtroom was also frequented by a combination of curious lawyers, Pell supporters, and child sexual abuse victims and advocates. Courtroom 4.3 and the four tiny meeting rooms outside in the hallway became my offices.
Once everyone was gathered in the courtroom, and the jury was brought in from their room shortly after 2.00 pm, it was clear there were only 13 jurors. It was revealed that one juror, a woman, had already dropped out, having been excused to care for her child. Kidd addressed the jury and told them what their role would entail over the following weeks. The jurors listened intently, many of them taking notes as Kidd again outlined the charges: two charges of sexual penetration of a child under 16; two charges of an indecent act with a child under the age of 16; and one charge of indecent assault of a child under the age of 16.
‘It’s for you and you alone to decide if he is not guilty of these charged offences,’ Kidd told them. ‘You are the only ones in court who can make a decision about the facts. It is also your task to apply the law to the facts you have found and by doing that to decide guilty or not guilty.
‘It is my role to ensure the trial is fair. It is not my responsibility to decide this case. The verdict you return has absolutely nothing to do with me. So while you follow directions I give about law, you are not bound by any comments I make about the facts.’
Kidd then ran the jurors through the different types of evidence that would be presented to them during the trial. He reiterated numerous times that they were not to share this evidence with anyone or to speak about the case with anyone aside from each other, and only when the entire jury was present.
They were also told that they were not compelled to accept any comments made by counsel – that is, the legal parties – during their addresses to the jury. ‘Of course, if you agree with an argument they present, you can adopt it,’ Kidd told them. ‘In effect, it becomes your own argument. But if you do not agree with their view, you must put it aside.’
‘Dismiss feelings of sympathy or prejudice you may have, whether it is sympathy for or prejudice against the accused or anyone else,’ Kidd continued. ‘No such emotion has any part to play in your decision. You must dispassionately weigh the evidence logically with an open mind, not according to your passion or feelings. You must use your intellect, not your heart. You must not make your decision based on any information obtained outside of court. Ignore media. That is just so important. You must ignore that. It must play no role at all in your decision-making process. None of that media coverage or what you have heard is relevant to this trial. None of it. Anything you have previously heard or which you might hear on TV or radio is completely irrelevant to what you hear in this case. Cardinal George Pell is entitled to a fair trial. A fair trial can only be had if he is judged on the evidence placed before you in this case, and if you follow my directions.
‘Most importantly, you must not make any investigations or inquiries, or conduct independent research concerning any aspect of this case or any person connected with it. That includes research about the law that applies to this case. You must not use the internet to access legal databases, legal dictionaries, legal texts, earlier decisions in this or other courts, or any other materials of any kind relating to the matters in this trial. You must not search for information about this case, Cardinal Pell, or the Catholic Church on Google, or conduct any similar searches.’
Kidd told the jurors that this direction was so important that if any of them heard that another juror had conducted their own research, they had to inform him or his staff immediately.
‘You must report your fellow juror. The immediate outcome is that the jury may need to be discharged, the trial will be brought to an end, and the trial may need to start again. This would cause stress and expense to witnesses, prosecutors, and other jurors.’
It was also a criminal offence.
‘Jurors have been sent to jail for discussing a case on Facebook,’ Kidd cautioned.
‘You may ask yourself this question: what is wrong with looking for more information? Seeking out information or discussing a matter with friends may be a natural part of life for you when making an important decision. As conscientious jurors, you may think that conducting you own research will help you reach the right result.’
However, there were significant reasons for not conducting research into or discussing the case, Kidd continued. Media reports could be wrong or inaccurate. Deciding a case on information not known to the parties was unfair to both prosecution and defence. And, finally, a verdict could only be true if it was made according to the evidence presented in the trial alone.
‘You would cease being a juror – that is, a judge of the facts – and have instead taken on the role of investigator if you started making these inquiries and acting on outside information.’
Jurors conducting their own research undermined public confidence in the jury system, he said.
‘The jury system has been a fundamental feature of our criminal justice system for centuries. And one of the reasons that you must not discuss [the trial] with people not on your jury is that those people have not heard all of the evidence. People not on the jury have not heard my instructions as to law or the arguments of counsel. They can’t possibly contribute to your thinking fairly.’
The jurors were told that when assessing the evidence of witnesses, they should consider credibility and reliability. While credibility concerned honesty and whether the witness was telling the truth, reliability might be different.
‘A witness may be honest but have a poor memory or be mistaken,’ Kidd told them. ‘It is for you to judge whether the witnesses are telling the truth and whether they correctly recall the facts about which they are giving evidence.
‘This is something you do all the time in your daily lives. There is no special skill involved. You just need to use your common sense. In making your assessment, you should appreciate that giving evidence in a trial is not common and may be a stressful experience. So you should not jump to conclusions based on how a witness gives evidence. Looks can be deceiving. People react and appear differently. Witnesses come from different backgrounds and have different abilities, values, and life experiences. There are just too many variables to make the manner in which a witness gives evidence the only or even the most important factor in your decision.’
Jurors should also keep an open mind about the credibility of witnesses until all of the evidence had been presented, he said.
Kidd emphasised that Pell did not have to prove his innocence. Rather, it was up to the prosecution to prove Pell’s guilt. They had to prove this beyond reasonable doubt.
(It should be noted that, unlike in the US, Australian courts do not observe a definition of reasonable doubt. Australia takes the approach that to define the terms is to diminish them. In Victoria, jurors can ask the judge for some guidance as to how to interpret ‘beyond reasonable doubt’ if they are stuck, but this question was not asked by the jurors in Pell’s case. However, the jurors were given very strong directions by Kidd about factors to consider when assessing whether they should hold a reasonable doubt.)
‘You’ve probably heard these words before and they mean exactly what they say, proof beyond reasonable doubt,’ Kidd told the jurors. ‘This is the highest standard of proof that our law demands. For now, you should know that it is only if you find that the prosecution has proven all of the elements beyond reasonable doubt that you may find the accused guilty of that charge.’ Kidd then repeated this for emphasis, and added, ‘If you are not satisfied that the prosecution has done this, your verdict in relation to that charge must be not guilty.’
The jurors were told that they would need to appoint a foreperson, who would not be able to be balloted off at the end of the trial. The foreperson would be the person communicating with the judge, including relaying any concerns or questions from the jurors. The jurors went on to appoint a woman in this role.
They were reminded yet again by Kidd, ‘This trial is for you 13 people to sit on. So, no research, no discussions.’
It was with these directions ringing in their ears that the jurors left the court for the day. Once they had left, Richter mentioned to Kidd that Pell was on medication that required him to go to the toilet frequently. Kidd assured Richter that if Pell needed a break at any time, it would be accommodated. It was before jurors entered the court for the morning or after they had left that matters such as these and administrative issues would be discussed. Richter also brought up another administrative matter: the cardinal’s robes.
Richter told Kidd that he intended to show the robes to the jurors. He intended to prove to the jurors that the robes could not be manoeuvred in a particular way. The prosecution had no objections to the robes been shown.
Kidd said he did not have ‘any difficulty’ with the robes being shown by Richter, ‘so long as it’s not overly dramatic, Mr Richter’.
‘It won’t be, your honour,’ Richter responded. ‘I don’t intend to re-enact the impossible.’
Day one of court was adjourned.
On day two, the jurors heard the opening addresses from the defence and prosecution, including more elaborate details for the first time about what Cardinal George Pell was alleged to have done while Archbishop of Melbourne in 1996.
Pell was not remanded in custody at this stage. He had relinquished his passport, and was not considered a travel risk. He arrived each morning from his accommodation in Melbourne in his private car, accompanied by Katrina Lee. Police would be waiting to swiftly escort him from the car and into the building. He would often be met by members of the defence team outside the court, who would walk inside with him. Due to his pacemaker, Pell was unable to walk through the security screening gates, and instead received a pat-down. He was then whisked up to level four of the court and into one of four small meeting rooms adjacent to the courtroom. Once court commenced, he would be escorted by a police officer into the dock at the back of the courtroom. His outfit, like at the committal hearing, was always the same: a black buttoned-up collared shirt, black pants, and sometimes a beige jacket. He would sit in the dock, sometimes with his head bowed as he took notes, at other times looking intently at the judge or bar table.
By this point, the number of journalists attending the case had dropped down to Australian media and a couple of international organisations, including representatives from The Wall Street Journal and Reuters. There were no more than a dozen reporters present.
Senior prosecutor Mark Gibson led the case for the Crown. Compared to the flamboyant Richter, Gibson was calm and measured, never raising his voice or changing his tone. Richter’s grey hair and beard was thick and full, at times with a certain unkempt quality to it, while Gibson’s beard was always neatly trimmed, his hair always combed and parted. Richter favoured round John Lennon-style spectacles; Gibson, more standard, thin rectangular frames. Richter, a longtime smoker, could be seen sucking on a vape pen during court breaks. Gibson walked directly between court and his office, rarely dallying. Both men would have encountered each other frequently in previous trials and would have been familiar with the other’s style of prosecution and defence. There was an air of respect and, at times, camaraderie between the two.
Gibson had only been appointed to the role of senior Crown prosecutor a few months before Pell’s trial began, prior to that having been a senior counsel. He had been a barrister for more than 30 years, and is described in legal and police circles as a ‘nice guy’ who leaves no stone unturned. He has been known to bring senior detectives into meeting rooms of the court before a trial and run them through a mock cross-examination, playing the role of the defence in order to prepare them for any line of questioning. In his spare time, he coaches umpires for Australian Rules football – he has been umpiring matches since 1985. In a profile of his career on the website of Victoria’s Office of Public Prosecutions, Gibson is quoted as saying there are similarities between law and umpiring.
‘In umpiring you can’t be swayed by the crowd or the players, and need to be impartial at all times,’ he said. ‘Like the courtroom, you also can’t let emotions get in the way of your decisions.’
It was in a calm, chronological manner that Gibson outlined the prosecution’s case against Pell before the jury for the first time. He could not have been given a more complex or high-profile case to mark the start of his role as a senior prosecutor.
On a Sunday morning sometime in the second half of 1996, Gibson told the jury, Archbishop Pell was saying mass at St Patrick’s Cathedral in East Melbourne, having recently been installed as the archbishop of the Melbourne archdiocese. As was customary during Sunday mass at the cathedral, the church choir was singing, consisting of a large number of boys aged between about 10 and 18. These choristers included scholarship students from the prestigious and exclusive St Kevin’s College in the blue-ribbon eastern suburb of Toorak. Their scholarships had been awarded as a condition of having successfully auditioned for and committed to rehearsing and performing for the St Patrick’s Cathedral choir. The complainant and his friend were among the choristers at the time. They were both 13 years old.
Once mass had ended and the choir had finished singing their hymns at the end of the service, they would proceed out of the building by walking through the front door and then in an anti-clockwise direction around the southern side of the cathedral to an area at the back of the cathedral, where the choirboys would re-enter the building, change out of their robes, and get ready to go home. On the day the first alleged offences occurred, once the choir had proceeded outside the cathedral after mass, the complainant and his friend decided to have some fun, relieved that their singing duties were over.
The boys decided to slip away from the procession once it was outside the cathedral and away from the public gaze.
‘You’ll hear both boys, having departed from the procession, went back into the cathedral through one of the doors on the south side entry wing, and that’s the side you may know faces Fitzroy Gardens,’ Gibson said. ‘Once inside the cathedral, they went into an unlocked door and walked down a corridor that led down to the sacristies, the private rooms at the rear of the cathedral and off-limits to choirboys. One of those sacristies was for the priests to use and get changed in, and the other one was for the archbishop to get changed in. Upon reaching the priests’ sacristy, both boys entered that room. No one was in there, mass having recently ended.’
Inside the room, to the left, was a wooden-panelled bifold door covering a storage cupboard. The boys opened it, finding sacramental wine inside. They each took a few swigs.
‘Cardinal Pell happened to walk in the room, and caught them in the act of being in a place of being off-limits and drinking church wine,’ Gibson told the jurors. ‘You’ll hear that the boys were told by Cardinal Pell that they were in a lot of trouble. Cardinal Pell was still wearing his church robes. The boys came out from where they were swigging wine, and Pell approached both boys. Then you’ll hear he proceeded to manoeuvre his robes so as to expose his penis to the boys. One of the boys asked, “Please let us go.”’
Pell instead stepped forward and grabbed the complainant’s friend by the back of head and forced his head onto his penis. This comprised the first charge of sexual penetration of a child under the age of 16. After a short while, Pell moved on to the complainant and grabbed him by the back of his head, and forced his head down onto his penis. This comprised the second charge of sexual penetration of a child under the age of 16. Pell then stopped and told the complainant to remove his pants. The complainant pulled down his pants and underpants, and Pell knelt down and fondled the boy’s penis while at the same time masturbating himself. These acts comprised the charges of an indecent act in the presence of a child under the age of 16. After a couple of minutes, Pell finished and stood up. The boys left the room, hung up their robes, and left the cathedral. They did not say anything to anyone, including each other, about what had happened.
At least one month later, another incident allegedly occurred following Sunday mass at the cathedral. The complainant was walking along the corridor leading to the choristers’ change room, adjacent to the archbishop’s sacristy. Pell pushed the boy against the wall, grabbing his genitals and squeezing them before letting go and walking off. The encounter was brief, and again the complainant didn’t tell anyone. At the end of 1997, when they were in year eight, the boys left the choir and St Kevin’s College.
Gibson told the jurors that police had conducted an extensive investigation. This included interviewing numerous witnesses. (In a court case, a witness is anyone who gives evidence; it does not mean that they witnessed the offending firsthand.) None of the witnesses except the complainant had firsthand evidence about the offending. The other boy Pell had allegedly offended against had died in 2014 at the age of 34, and had always denied ever having been abused when asked by his parents if anything had ever happened to him.
‘The Crown has a duty to call all relevant witnesses, whether helpful or not to the Crown case,’ Gibson told the jurors. He also told them that ‘it will become apparent there are a number of conflicts between the complainant account and other witnesses called by prosecution’.
As well as evidence from the complainant, the jurors would hear from other choristers and people involved in the Sunday Solemn Mass service at the time. Choirmaster John Mallinson, church organist Geoffrey Cox, master of ceremonies Charles Portelli, and sacristan Max Potter would all give evidence. Some of them would give seemingly contradictory evidence, Gibson said. Some would say that the choir procession was a highly regimented process both inside and outside the cathedral and that, therefore, two choirboys peeling off from the procession would have been noticed. Some would speak about the door to the priests’ sacristy being locked; others would say it was unlocked. Some would say the sacramental wine was always locked away and could not have been accessed by the boys. Some witnesses would speak about Pell standing on the steps of the cathedral after mass and greeting people for an extended period of time, and therefore it would be claimed that he could not have made it to the priests’ sacristy to assault the boys shortly after mass had ended. Some would speak about the robes that Pell wore as archbishop being layered, heavy, and cumbersome, conflicting with the complainant’s account of Pell being able to manoeuvre them to expose his penis.
By flagging with the jurors that there would be numerous witnesses giving contradictory evidence, Gibson presumably hoped that the jurors would not be surprised when these discrepancies in accounts arose.
Prosecutors are obliged in a criminal trial to call all witnesses who can help with the narrative of events and facts in the case, unless there is a good reason not to do so. The defence is not obliged to call any witnesses. If the prosecution fails to do this, the defence can ask the judge to give the jurors a direction telling them that a certain witness had not been called, and from this that they would be entitled to conclude the witness would have been detrimental to the prosecution’s case. There are a few situations in which the prosecution is not obliged to call a witness: if, in their view, the witness is unreliable and incapable of being believed, or if they would not add anything significant to the case that hadn’t already been covered comprehensively by the other witnesses. For example, in the Cathedral trial, the prosecution did not have to call every choirboy in the choir at the time simply to establish that mass was held on Sundays and that Pell sometimes presided over these masses. Enough witnesses gave corroborating evidence to establish these facts.
The prosecution is allowed to cross-examine its own witnesses in circumstances where the witness is unfavourable to its case. In a directions hearing before the Cathedral trial, the parties discussed before the judge the fact that several of the witnesses being called by the prosecution would present evidence that might prove inconsistent with its own case. Gibson sought permission from the judge to cross-examine the witnesses. But due to the complexity of the case, it became clear that Gibson and his colleague, barrister Angela Ellis, would have to run this cross-examination carefully.
Gibson told Kidd during the directions hearing: ‘The witnesses tend to speak in absolutes. It is going to be a matter for the jury as to whether or not moving the vestment in such a way is impossible. Next is access to wine. [The complainant] says it was there and he took a swig. Other witnesses say it was locked away. The basis for the Crown case is simple. The accused whilst alone came upon the complainant. If that was impossible, then the Crown case fails. If the jury do have reasonable doubt as to whether or not the accused was alone when he walked along that corridor, if they do have reasonable doubt as to whether or not the sacristy was unlocked … whether vestments could be manoeuvred … the duration the accused stayed outside on the steps … and if two boys could detach from the procession without being noticed, then the Crown case could fail.’
What Gibson clearly wanted the jurors to conclude was that several of the witnesses, such as Potter and Portelli, were loyal to Pell, and that this loyalty could have influenced their evidence.
Kidd told Gibson that cross-examining the witnesses to test their memory was one thing. But cross-examining them in an attempt to show they had a motive to protect Pell out of allegiance to him could trigger or feed into the notion of a Church cover-up, and arouse emotions in the jurors prejudicial to Pell.
Gibson assured Kidd that the cross-examination would be performed in a ‘narrow, seamless way’. He would simply ask the witnesses questions such as ‘How long have you known Cardinal Pell?’ and ‘Describe how it is that you know him.’ Kidd said that so long as the prosecutor was not seeking to put to the witness that they were lying, his proposed line of questioning would be allowed. (There are strict rules about cross-examination, and in a courtroom it is an art. Witnesses must not be invited to give evidence based on hearsay, or on what they think might have happened. Questions must not be confusing or misleading.)
Gibson echoed Kidd’s directions by clearly telling the jury towards the end of his opening address: ‘Put aside feelings of sympathy or prejudice [towards Pell]. The last thing the prosecution would want is for a determination to be made based on a bias or prejudice towards the accused man, Cardinal Pell, because of his position in the Catholic Church.’
Gibson then handed the jurors a book of photographs that he said would assist them when they were taken on a tour of the cathedral as part of the trial.
Gibson’s opening remarks had taken half a day. He had wasted no time in getting to the heart of the case, and did not shy away from Pell’s prominence in the Church. Gibson had been considered and reserved, using eloquent, clear language. When Richter began his opening address at around noon, he put the events in relatively crude terms, made pop-culture references, and his booming voice conveyed tones ranging from incredulity to disbelief. He did not attempt in any way to shy away from or downplay the offences that the cardinal had been charged with.
‘This is an extraordinary case in the sense that Cardinal Pell is the most senior Catholic cleric ever to have been charged with actually committing sexual offences,’ Richter told the jurors. ‘Some of you may have seen a movie called Spotlight concerning a cardinal in Boston, and his alleged misconduct consisted of covering up a for a priest. But in terms of actual sexual assaults – and let’s not mess our words – we are talking about forcible oral rape. And I use the word rape to emphasise the importance of what’s alleged to have happened here.
‘The cardinal’s case is it did not happen. Period. And it couldn’t happen for reasons that will become apparent during the trial.’
Richter quickly zoned in on Gibson’s reference to the date the abuse occurred – sometime in the second half of 1996. Richter had gone a step further than the prosecutors. He had tracked down church records, and was able to demonstrate that there were only two occasions in 1996 when Pell presided over Sunday Solemn Mass after having been inaugurated in August that year: those dates were 15 December and 22 December. This provided only two opportunities for Pell to have offended.
But Pell could not have offended on these dates, Richter continued, because the choir processions at the cathedral following mass were ritualistic in nature.
‘Deviation from ritual is looked upon as a no-no,’ he said. The choir procession was organised according to pitch, and therefore those with the highest voices and likely the youngest were in front of the procession, going back to the oldest choristers with the deepest voices. Behind the choirboys in the procession came the clerics, with Archbishop Pell at the very end. If the two boys, who were towards the front of the procession, had taken off, they would have been seen by at least one person behind them, ‘if not the whole lot’, Richter told the jurors.
‘How probable is it that they nick off like that without anyone noticing?’ Richter asked the jurors. ‘This is a disciplined procession. There is a gentleman called [Peter] Finnigan who was the choir marshal in charge of discipline. These were times when sexual misconduct was a subject of conversation in the community, and older people felt they had a duty of care to look after young children.’ A disciplinarian like Finnigan would not tolerate two young boys slipping away from the procession at a time when the community was increasingly vigilant about and aware of child abuse, he said.
Shortly after being inaugurated as archbishop, Pell had introduced the Melbourne Response, the scheme aimed at providing support and compensation to child sexual abuse survivors. It made no sense that Pell, ‘the man who’s supposed to be raping two young boys in a sacristy’, would introduce such a scheme if he were an offender, Richter said.
Sunday masses were the most well-attended masses at St Patrick’s Cathedral, aside from those at Christmas and Easter. Tourists, special guests, other clerics, and dignitaries all attended. ‘And so, as a new archbishop conducting his first formal Solemn Mass on a Sunday, you’d imagine it would be well attended, there would be a lot of people to shake hands with to say, “How are you?” and “God bless you”, and whatever else one says to guests and congregants.’
There was no way that Pell could be on the steps speaking with congregants after mass and also have the time to abuse the boys in the sacristy before anyone noticed, Richter said. There was simply no opportunity for the two boys to run off and not be seen by anyone, especially since there were witnesses who would say that certain doors the boys would have needed to go through on their way to the sacristy would have been locked.
‘Whether it’s deliberate lies or a fantasy – and we all know children can have fantasies, and sometimes they come to believe them over the years – whether lies or fantasy, malicious or whatever, it does not matter,’ Richter said. ‘It did not happen.’
There was no evidence, Richter added, that Pell knew either of the boys by name. There had been no grooming. He did not know their families. There was also no evidence that Pell locked the sacristy door while attacking the boys. While the first boy was being sexually assaulted, the complainant did not run away, Richter told the jury. It was impossible that one of the boys would not have yelled or called out during the attack; and if they had, there would have been people in the corridors outside who would have heard them.
But there was an ‘even greater improbability’ that spoke to why the offending could not have happened – the archbishop’s robes. Richter – not any investigating detectives – had obtained the robes, and he brought them into the court and submitted them as evidence. Jurors would later have the robes brought into the jury room to hold and to try on. Richter asked one of his defence team to hold the robes up during his opening address while he pointed out the foundation garment, called an alb. ‘It’s quite heavy. It’s supposed to go right down to the ankles,’ he said.
‘On me, it will trail on the floor, and on him,’ Richter continued, gesturing towards Pell, ‘down to the ankles. The one thing you don’t see here is any parting. It’s a single shift that goes all the way to the ground. So how he could push this aside to show an exposed penis is something you’ll consider as a serious issue with the evidence.’ Pell would also have been wearing suit pants underneath this, Richter said, making manoeuvrability even more difficult.
All up, there were about 13 points of improbability in the prosecution’s case, Richter said. ‘It’s a bit like TattsLotto,’ he told them.
‘The fact is, to say something is possible gives you not the slightest idea how likely it is. It is possible, ladies and gentlemen of the jury, that a meteor will come out of space and strike this court while we’re sitting here. It’s possible physically. But do you plan your life on that basis? I don’t think so.’
Richter was not finished with outlining the impossibilities of the case, however. He told the jurors that if the boys had been abused, they would not have continued to attend the choir the following year. He also asked why the two boys did not discuss their abuse among themselves at any stage, ‘along the lines of “That bastard, why did he do this to us? What are we going to do about it? Are you going to tell Mum about it? Are you going to tell Dad about it?”
‘Just picture this,’ he went on. ‘Twelve-year-old boys that have been orally raped. On [the complainant’s] evidence, they were crying. Did they say, “What about next week’s mass, next Sunday, are we going to go? He might come at us again.” The evidence of [the complainant] will be he had never discussed this with [the other boy]. Never.’
Finally, Richter turned to the other victim. The jurors were told he had died in 2014 from a heroin overdose when he was in his early thirties. They were told that he never disclosed being abused to anyone before he died, and that he had in fact had denied being abused when his parents directly asked him. The other boy did not turn to heroin because he had been abused, Richter told the jurors, but rather he had told his father he took heroin because he liked it.
He concluded his opening address by saying, ‘If it’s not probable, it’s not likely to be the truth.
‘When you take into account all known facts, the simplest explanation is likely to be the truth. In the end, we will be arguing to you that the simplest answer to this is it did not happen.’ If there was even a possibility that the jurors believed it could not have happened, they must find Pell not guilty, he concluded.
Following these opening addresses, Kidd gave some further directions to the jury.
A clear issue in the case for the jurors to determine was whether the events happened at all, he said.
‘The prosecution case will be that they did happen in the way described by the complainant … the defence case will be the incidents just did not happen, they are false.
‘You, of course, will always bear in mind it’s for the prosecution to prove its case … from beginning to end. And the defence does not need to prove anything.
‘You must be careful not to allow convenience to override justice. You would be wrong to say just because Pell is guilty on one charge, he must be guilty or not on another.’
The arguments had been made. Gibson’s case was that the events had occurred; Richter’s, that they had not. And the judge had made it clear to the jurors that they alone were responsible for determining the truth.