Tue, 11 Aug 2020

A Critique of Ferguson and Maxwell

(Op-ed) Chris Friel
08 Dec 2019, 12:58 GMT+10

I have already written a short critique of the majority ruling, and here I wish to expand some of its ideas.i It seems to me that in hearing Pell's appeal the intermediate court locked horns on an ongoing and unresolved dispute regarding Australian legal principles.

I have no legal training whatsoever, but what struck me when reading both the majority (Supreme Court of Victoria chief justice, Anne Ferguson, and Victorian Court of Appeal president, Christopher Maxwell), and the dissent (Victorian Court of Appeal justice, Mark Weinberg) was that the two sides took different stances towards the jury, the one a "respectful" approach (tending to defer to them), the other taking upon themselves the responsibility for the act of judgement. In part, I sought to explain how it was that the majority had got it so badly wrong. Whatever the merits of the respectful approach in general, in this case what was needed was the "responsible" attitude which I discerned in Mark Weinberg. One reason for this (Weinberg never breathes a hint of it) is that from time to time juries can become subject to the prejudices and hysterias of the wider community of which they are the microcosm.ii In such situations there was more than a "significant possibility" of a miscarriage of justice. I tended to suspect that the majority were passing the buck to the High Court partly because they felt that a case such as this which without hyperbole may be compared to Dreyfus was metaphorically "beyond their pay-scale."

Jeremy Gans, actually, had predicted that the intermediate court would not be the scene of such a showdown as he felt sure that the judges would avoid using a high-profile case for that battle.iii The showdown seems now set for next year. Although he called the decision wrong, the Melbourne professor is very helpful in explaining what is going on, at least, that is the opinion of this non-expert. To my crude understanding the issue regards the way we should understand the "M Test." This refers to the case of M who was accused of raping his daughter when she was thirteen. He was convicted, and at first his appeal failed, but ultimately he was successful in the High Court. Four judges ruled in M's favour (Mason, Deane, Dawson, and Toohey), Gaudron ruled that some charges be retried, Brennan and McHugh each gave rulings that would have dismissed the appeal. Gans, incidentally, has sympathy with the complainant and clearly takes her word over and against her father.

In Pell it was common ground that the M Test had a canonical status as to how the court should tackle such cases. As explained in the headnote, the first limb urges that the judges make an independent assessment of the whole of the evidence (starting with a judgement on the credibility of the complainant), and then, if the judges then entertain a reasonable doubt as to whether the accused was guilty, the second limb asks whether the jury possessed such an advantage that outweighed their own (in witnessing the proceedings first hand, from beginning to end, and sampling the "atmosphere," for example). Both hurdles must be surmounted for a successful appeal.

A contention arose, however, in subsequent cases such as Libke (accused of digital penetration in a park), because to some it seemed as though that court had glossed the M test in such a way as to make the hurdle higher (showing greater deference to the jury, so to speak). Here is a key paragraph, which, up to the sentence referring to the "requisite standard," is cited by Ferguson and Maxwell (21):

It is clear that the evidence that was adduced at the trial did not all point to the appellant's guilt on this first count. But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.iv

The "must, as distinct from might, have entertained a doubt" is the crucial phrase for those who "boost" Libke. Thus, Ferguson and Maxwell are explicit that (Hayne's) "seminal" ruling "elucidates" M, and we find repeated references to the must/might trope (14, 15, 22, 24, 62, 111, 130, 135, 174, 234, 351). Equivalently, the majority also speak of the jury as not being "bound" to have a reasonable doubt (300). Weinberg, however, never entertains such language, clearly down-playing the significance of a "perfunctory" ruling that never found its way into the headnotes of the Commonwealth Law Reports (615). Far from elucidating M (and upholding the more jury-centric approach of McHugh, say, which, with Brennan, the majority cite in 22), Hayne's circumlocution merely repeats the idea that that the evidence must be such that it is "open" for a reasonable jury to convict, language that also appears frequently in the ruling (12, 13, 14, 19, 21, 23, 63, 107, 146, 149, 176, 191, 193, 201, 231, 237, 254, 300, 351, and in the dissent at 357, 590, 613, 618, 629, 652, 892, 893, 1092, 1097). Instead we find Weinberg insisting that the judge must discharge his or her duties by making an "independent assessment" of the whole of the evidence (591, 640, 663, 896, 1034, 1083, 1102). Such words are never found in the majority. Again, the phrase, "significant possibility" only ever occurs in the dissent (592, 632, 912, 1111). This is an allusion to a paragraph in M's headnote:

That in most cases a doubt experienced by an appellate court as to the guilt of the accused will be one which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appellate court that it may conclude that no miscarriage of justice occurred. That is to say, when the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, it is bound to act and to set aside the verdict.v

At this juncture, though, I feel bound to confess that I am not perfectly clear what "must, as distinct from might, have had a doubt" really means. Here is a suggestion. Let's imagine someone who has become convinced of a position on the basis of the whole, or virtually the whole, of the evidence. That person is convinced beyond reasonable doubt because they have no reason to doubt; there are no nagging questions to disturb the conscience. Here, a nagging question is a pertinent one. The human condition is such, however, that even after bringing our investigation to closure, some questions remain. Still, such unanswered questions may be deemed (relatively) insignificant. In reviewing such a verdict one might say, "Having carefully examined the whole of the evidence, it is true that one or two loose ends remain, and granted, if it transpires that such nagging questions prove significant then this person's verdict will be unsafe. However, while such unanswered questions might have occasioned a doubt we do not think that they must have done since the whole of the evidence has been carefully considered." To my mind, this rendition of "must not might" appears at least plausible which is why I cited Hayne's subsequent sentence on the "assessment based on the whole of the evidence." Arguably, a jury is too exigent if it expects to have got absolutely everything nailed down.

Imagine a case where all of the evidence (virtually the whole of it) points in one direction the mother killed her baby. Nevertheless, that mother defends herself with the most far-fetched of stories a dingo took it. Clearly, this might occasion a doubt, for after all, experts are on hand to instruct us that dingos could do such a thing. On the other hand, some experts have said that dingos don't act in such a way. Then we might say that the nagging possibility might but need not occasion a doubt. In this case, if a jury finds the mother guilty then the appellate court will not allow the appeal if influenced by the "must, not might" logic.

Obviously, my example is tendentious, for we all know that the High Court did not uphold Lindy Chamberlain, and we know that the High Court were in the wrong. But actually, in my imaginary case I first stipulated that all of the evidence pointed towards the mother's guilt. I take it that no positive evidence really pointed in that direction in the case of Chamberlain, and so my imaginary case is not equivalent. However, I propose it as the sort of scenario in which a possibility that might occasion a doubt nonetheless does not necessitate one, that possibility being deemed fantastic and so insignificant.

Nothing like this pertains to Pell, though, for it the accuser, not the accused, who proposes the most fantastic of stories.

To return to Pell, then, the spirit of the "must not might rule" (as I have rendered it, as relative to the whole of the evidence) would operate as follows. Let's say that on the whole (or virtually the whole) of the evidence any reasonable person would convict except for one nagging question. Let's say the complainant got the colour of the wine wrong, but apart from that he was compelling. Well, then. Although such a detail might occasion a doubt, that jury are not bound to have a doubt. In this scenario his appeal need not be upheld.

Nothing like this pertains to Pell, though, for apart from the complainant's testimony the whole of the evidence (or virtually all of it) points to his innocence.

Let us now return to the majority ruling to see how the majority deploy "must, not might." How do they understand it? Here I suggest that, far from considering the whole of the evidence the majority take just one part, namely, the complainant's witness. To be precise, the majority take that witness as it pertains to the assault he suffered on virtually every other point the complainant, though deemed "credible," is not deemed reliable. Of course, it is only this evidence that implicates Pell; all the other evidence is exculpatory. Then, having selected this part (the witness was so very "compelling"), the majority consider all the remaining evidence what they call the "opportunity evidence," Richter's 17 or Walker's 13 solid obstacles. These are taken, not as a whole but singly. For each objection the majority proceed to ask whether it necessitates a doubt. What this means is that the majority consider whether the obstacle renders the assault impossible in the strict sense of the word. The judges' acumen is taken up to argue that each obstacle does not so necessitate: though it might cause a jury to doubt, nothing makes them bound to doubt. Having completed the check-list, the majority then reject the appeal.

At any rate, I shall try to show in detail that this is how the logic works. But what this means is that the witness of the complainant is deemed so credible that it trumps each and every nagging question unless it can demonstrate innocence beyond reasonable doubt. Since the only point against the Cardinal is the subjective sense that the complainant came across as authentic (after listening to him one "puts down one's pen and stares blankly at the screen") that testimony acquires exalted status the obstacles ("hindrances" as Mark Gibson put it) are insignificant in comparison. They are the sort of minor difficulties that never add up to a "significant possibility" so that a reasonable jury must doubt. They might but they need not.

Moreover, this misguided methodology is then implemented in the most arbitrary of manners. In fact, the only consistent principle governing their thought is this, that because the jury have already made their decision each piece of evidence is taken in a direction hostile to Pell. The judges act like those reviewing a jury who hear from two sets of experts that dingos do and do not snatch babies and then agree with those that say that dingos do not snatch. The judges opine that of course the jury was entitled to take such expert advice. In itself, this is reasonable, as it is reasonable to trust experts, but by the same token a jury are entitled to heed witnesses for the defence. What the hostile judges do, however, is only ever take the complainant's side. In effect, this is precisely to reverse the burden of proof, which is what the defence submitted in Ground 1 of their bid to the High Court. It's very clear that the only burden that the majority take upon themselves is to make a case for the jury (and the complainant). They never lift a finger for Pell.

Let us now laboriously work through the majority ruling and demonstrate that this methodology was employed repeatedly.

Appropriately enough, the majority begin with "the" assessment of credibility though by their use of the definite article the majority manage to avoid stepping up to assert just whose assessment this is! They announce that they will consider in turn that the contentions are false, improbable, and impossible. In dealing with the contention that the story was false they point out that no motive for invention was ever provided by the defence, a factor that was somehow deemed significant, though the majority acknowledge that the defence was under no obligation to suggest one (71). On this matter we would suggest that, were the defence to engage in "inferential reasoning" at this point it would not be difficult, at least for those who have read Louise Milligan, to point out how, as witness Andrew La Greca indicated, the complainant is to be considered a "hero" in acting, not for himself, but his deceased friend, and indeed, his litigious father, the one Milligan calls the "honorary probation officer." We concede, however, that that task may have been better left for another time.vi

The majority went on to assert that there was nothing in the complainant's story that suggest he ever tripped himself up. Here we should recall that, unlike Weinberg, the majority chose not to read the police statements (and presumably the early emails of the mother to Bernard Barrett when the complaint seemed not to concern Pell at all). This was certainly not the choice of those historians who would seek to establish the motive that so eludes the court!vii But in any case, the awkward alterations were legion. These will emerge as we go along, but to throw out a few questions that were not necessarily before the court we can ask whether, at first, the original complaint concerned Pell. Or whether it concerned Mass. Or a procession after Mass. Or whether it concerned two incidents.

The majority go on to consider the complainant's recollection, pointing out that memory can be "revived by all sorts of stimuli." (74) A little later they suggest that a point against the fabrication thesis was that Pell did not close the door after entering the Priests' Sacristy. "But, as already noted, A said he could not recall whether it was closed or not. He thought it was not 'wide open.' In our view, the jury could properly reason that a person fabricating a story would have been more likely to say that the door was closed, precisely in order to remove the potential difficulty of explaining how it was that noises made inside were not heard outside." (78) However, we would draw attention to the arbitrariness in such reasoning. In the first place, and on the face of it, earlier accounts did narrate Pell as having "locked" the door. According to Milligan in her book (2017 edition) this is what the mother of the other boy told her in what seems to be the earliest version of the story (in which, incidentally, Sunday Mass is never mentioned). Feebly, Milligan (2019 edition) responds, "It has since been shown that what The Kid said is that Pell blocked, not locked the door." One problem with this narrative, however, is that it presupposes that Pell would have had, or would have picked up, a key. Arguably, it was this "potential difficulty" that was being circumvented by the narrative shift. In any case, supposing that the dozen or soviii who had business in the sacristy could not see what was going on as the doors were locked, they would have had to wait outside only to find out soon enough that something was going on when the occupants emerged. Locking the door wouldn't really have helped.

To turn to our second point, while we concede that the noisy boys do indeed constitute a difficulty, in truth, by situating the crimes in the busy sacristy the narrator has saddled himself with insuperable problems. This mistake does not add to his credit though repeatedly the majority take the line that the more unlikely the story, the less likely it is to be made up.

Third, however, the majority are quite selective when it comes to their lack of surprise about what the complainant could not remember. Weinberg tells us that, "The double doors to the sacristy were '... unlocked, perhaps ajar,' with '... one door bolted closed and the other one able to be opened.'" (430) Yet we find no warning from the majority about this too-good-to-be-true memory that we find later, "That is understandable and consistent with human experience. If there is an unexpected incident, what happened leading up to it, or the route taken to arrive at the site of the incident, may assume little or no importance for the person affected. That person may well ask, 'What does it matter how I got there? What matters to me is what happened when I got there.' The detail of the events and circumstances before and after the incident may not be retained." (220)

Another detail that the majority find authentic is the recollection that, "Cardinal Pell had not ordered the boys to keep quiet about the first incident." (79) However, we find the complainant's narrative suspiciously convenient. On the one hand we learn about the jury-softening whimpering after the trial Melissa Davey tweeted that we had not heard that before but on the other hand, that whimpering (the boys were "freaking out" (46)) was not so loud as to attract attention. "The two boys made some objections but did not quite yell." (48)

In conclusion, while we concede that being unable to recall which hand Pell used in the second incident, say, does not detract from the complainant's credibility we cannot agree, "In our view, the jury were also entitled to view this aspect of A's account as supportive, rather than destructive, of his credibility. The fact that his account of the incident did not include the making of any such threat tended against the contention that he had made it up." (80) We respond that by the same token the jury were equally entitled to view such aspects negatively in line with the burden of proof.

The majority turn now to the failure to complain though to be accurate the even stronger claim was made, that the two boys never even discussed the matter together (despite remaining friends and enjoying sleepovers throughout the next year (81)). The excuse here is one that the majority found "entirely plausible," but which we have critiqued making 17 objections.ix From all accounts the testimony was deemed the most powerful at this point.

It suffers, however, from a contradiction so glaring it seems impossible to miss. The story goes that the boys were trying their best to do their duties as working class choristers in a rich school and so did not want to rock the boat. Actually, that would be a reason to talk amongst themselves if not complain, if only to agree not to talk publicly out of a concern that they lose their cherished scholarship. Plainly one part of the story is quite at odds with another part.

For on the one hand we learn of the immense brazenness of the boys who, on a whim, and though the youngest in the choir, on a special day, at a time when they were slated to attend compulsory rehearsals immediately after, made the decision to re-enter the Cathedral (through a door which, were it really unlocked would have been open to let out a stream of worshipers), and clad in crimson, pushing their way through the throng, would trespass, steal, and sacrilegiously swig the altar wine. Yet on the other hand these same boys were so afraid that they could not even speak about what had happened to each other.

How could the majority miss it? Here we have to report that a similar absurdity is to be found in consecutive paragraphs of their ruling. Thus, later on we learn that "The 'swigging' of the altar wine seems to us to be just the kind of thing which might occur in an adolescent escapade." (110). Just a couple of sentences later, however, "They had been discovered ... in the course of committing acts of serious disobedience and gross disrespect." (111). Of course, this latter characterization is the correct one, but the majority never think to draw the obvious conclusion that the not-rock-the-boats story must be a desperate resource to avoid Robert Richter's refutations.

On this note we might add that the victims were not quite as powerless as the majority made out. If they had sought help at that precise moment they would readily have been listened to. In truth, had Pell really done such a thing in the sacristy it would have been he who would have been putting himself at the most enormous disadvantage. For all he knew his victim might have been the son of a member of the Judicial Commission of Victoria.

The majority now address again the complainant's memory. Reasonably enough they find no fault in the fact that he had no vivid recollection of the Archbishop before Pell (92). They also claim that he could accurately describe the layout of the sacristy, and even where the wine was then kept. In itself, we feel, such recall might be taken as awkward for Pell. It suggests that if Pell is innocent then the complainant had either visited the sacristy on another occasion (recently, perhaps) or else was coached. We should note that all choristers, on the internal procession before Mass, would certainly pass by when traversing the corridor. And Weinberg mentions a fact ignored by the majority that around 2003 or 2004 the place was redecorated - yet the complainant claimed it was unchanged when he walked through in 2016 (834, 835).

They do mention, however, that he would probably have been taken on a tour of the cathedral when he arrived, but they simply assert that, "The jury were entitled, in our view, to discount the possibility that going on such a tour would have explained A's detailed knowledge - and recollection 20 years later - of the interior of that particular room." (97) To our mind, the question of just what the complainant knew when about the room is far from settled, and very relevant to any further inquiries on a conspiracy. Here, actually, the "must/might" trope seems relevant though in the opposite sense as deployed by the majority. We would go as far as to say that Pell's innocence can be demonstrated beyond reasonable doubt (on the whole, or virtually the whole of the evidence) and that while a sceptic might, he or she need not have a doubt. That is to say, we would wish to present a compelling answer to every question, but human limitations hinder us. We do, however, insist that even if the jury were entitled to take the complainant's side on this point they were also entitled to do the very opposite. The decision of the majority here illustrates the way that, in effect, they tended to reverse the burden of proof.

The improbability argument gets short shrift. "We are not persuaded that there was anything about A's account of the incidents which was so inherently improbable as to require the jury to entertain a doubt." (109) In contrast, Weinberg devotes some time to this argument that he clearly finds very persuasive. We would draw out just one point as touching on the "must/might" language. The spirit of a compound probability argument is that "many a might makes a must." The jury might not have had a doubt at any of the following taken individually: that Pell does not remain on the front steps; that he is alone when he enters the priest's sacristy; that Portelli does not enter to help Pell disrobe, or to disrobe himself; that Potter is not there to assist in the disrobing; that Potter is not moving between the sanctuary and the Priests' Sacristy; that the altar servers are not moving between the sanctuary and the Priests' Sacristy; that there are no concelebrant priests in the Priests' Sacristy, or for some reason, they do not disrobe; that 40 people, some of whom are adults, do not notice the complainant and the other boy break away from the procession; that the complainant and the other boy enter the choir room, having gone through two locked doors, without anyone having noticed; and that both boys enter a choir rehearsal which they were required to attend, after being missing for more than 10 minutes, without anyone having noticed. However, to suppose that, taken collectively, and in a short time-frame, all the planets align so favourably that must occasion a doubt to any reasonable jury.

Having considered falsity and improbability the majority now turn to impossibility. Noting that the defence did avail themselves of this language (for they argued that there was no opportunity for the offence and therefore it was impossible) (126) the majority pay lip-service to the burden of proof (129). My cynicism here is based on statements such as in (130), "If any of the evidence showed impossibility, in one respect or another, then the jury must have had a doubt." There is nothing wrong with this whatsoever except that we suspect it an occasion for sliding and switching from a sufficient condition to a necessary one. I mean, If one is sincere about the burden of proof then the reasonable possibility of an alibi (say) ought to have occasioned a reasonable doubt, something the majority never address. Even if it is granted that Portelli's alibi was not absolutely cast iron, still it was as strong as could be expected given the forensic delay, a matter that the majority never face squarely.

Before treating the solid obstacles in turn the majority address the issue of the robe (which, it seems, they too have handled). In (146) they conclude: "To our observation, it was well capable of being manoeuvred - while the cincture was firmly tied at the waist - in a way that might be described as being moved or pulled to one side or pulled apart." However, the effect of this opinion is to misrepresent the evidence which regards the shiftiness of the complainant when it transpired that what he had originally alleged was impossible. We have argued that, with lengthy transcripts, Weinberg has clarified the point.x

A couple of other points, though, concerns first the denials of the other boy. On the supposition that the whole of the evidence is against Pell (which we deny) we would be prepared to concede that those denials do not absolutely oblige a jury to doubt. As the majority explain, "Accordingly, the evidence of B's denial, while it weighed against the Crown's case, did not of itself oblige the jury to have a reasonable doubt." (180) We would note, however, how reluctant the majority are to test and feel and lift that "weight." These denials did not merely maintain silence about the assaults, but they contradicted them at a time when the other "witness" was alive to contradict him (for all R knew J may have been in touch with R's parents). The surviving witness, of course, only managed to recall what had happened when the denier was conveniently dead! It's true, though, that someone who was abused may deny it, out of shame perhaps. Still, the other boy kept silent even when an anti-Pell atmosphere was abroad so that he would surely know that he was sitting on the most lucrative of news stories (as indeed was his fellow). He had no income, spent some time in jail, and had a drug problem. Given that even the wildest of "close encounters" would come to be alleged,xi we would not consider that weight of R's denials and continued silence negligible.

The majority then turn to Pell's denials in the Rome interview. They relate them briefly and describe them as "emphatic," the word Walker had used. (181-185) Their position is that such denials did not necessitate a doubt, and that they should be weighed appropriately. Now, we are in agreement with Walker who also described the denials as "patently" credible.xii If this point is granted, as fairness demands, then any neutral ought to say (at least, if the complainant is found credible too) that anyone deciding where the truth lies must face the fact that both the word of one and the word of the other each seem credible so that "credibility" is not enough. The majority never acknowledge the point, which would wreck their whole approach. Moreover, what they ought to have done is analyse Pell's denials. For example, in their brief description, while accurate, they could have noted that Pell was quite unaware that the allegations related to incidents immediately after Mass. I have given a careful analysis that points to Pell's innocence.xiii Thus, were he guilty Pell would have known that he had assaulted the boys when he did and that the time alleged was just wrong (he was not saying Mass in November) and as indicated, Pell clearly had no idea that the allegations referred to an assault immediately after Mass. Nor again does he show any awareness that his own sacristy was out of action or that the boys had rehearsals straight after. Contrivance cannot explain this ignorance, only innocence can. For why was the contrivance never put to use?

On the fact that the Court never heard from Father Egan, concelebrating Mass 23 February 1997, the majority treat as conjectural that what he said might have assisted the defence. That indeed is true, as is the conjecture that it would not have harmed the Crown. Given that the occasion was a special one, when Pell presided for the first time, Egan might have recalled being with the Cardinal, either outside the cathedral or even as participating in the first part of an external procession. The second incident was alleged to have taken place during an internal procession (so presumably, and unlike the reports from Melbourne airport, the weather was bad). We think it reasonable that anything Egan had to offer would likely be to Pell's benefit, perhaps a point that might have raised a doubt. Moreover, we take this opportunity to remark that there never was a scintilla of evidence that the second incident happened then why not a month later? The date relied only on a distortion of the complainant's evidence that the Crown found thoroughly unreliable regarding timing. Even if we boost the complainant's credibility to the max, no reasonable jury could say for sure that it happened on that precise day. Pell was in the cathedral: how does that fact necessitate what he did after Mass?

The majority now go into more detail by considering the claim that the complainant invented in order to plug gaps in his original story. First, the account of his return to the choir room. One point here is that choristers were robed and carried sheet music that had to be returned. The majority reject the idea that he would have read the transcript of his committal evidence and they are encouraged by the fact that the complainant did not appear awkward when facing discrepancies. This was deemed "authentic." (202) Clearly, though, such accounts were necessitated by the prior story of the external procession, a story that had not seen the light of a police statement when Pell was interviewed in Rome. To suggest that the complainant had "not realise[d] the significance of his answer about how he re-joined the choir" (202) seems as plausible as the thesis that the external procession was no invention, cobbled together when it was appreciated that directly after Mass Pell would not head to the sacristy but process to the west door as the police learned in Rome.

Again, the majority opine that the jury were entitled to reject fabrication regarding the fact that "there was a more direct route by which A and B could have returned to the choir room." But again, this was necessitated by the problem that had the complainant said that the boys had turned right and along the corridor to the robing room they would have run up against the incoming altar boys. The excuse is lame indeed: the boys did not want to stray out of bounds! Yet these same boys had absconded from a procession, re-entered a busy cathedral dressed in crimson, and trespassed in forbidden places. They had just had an experience that caused them to "freak out" and so ... they took the most indirect of routes, subsequently remembering that they got back "very quickly," even recalling that about half the boys were departing a fact that runs counter to the compulsory rehearsals that were scheduled. None of this seems to register with the majority. We would concede, however, that the complainant seems perfectly exact when he is quoted as saying, "I don't think I've come up with much of an explanation now, either." (204)

The majority address the numerous changes in the complainant's account. As they present it, the original claim that the assaults happened in 1997 was a simple mistake. The assaults happened in his first year, and that was really what he meant. Now, it transpires that this mistake was corrected after Detective Reed conducted some inquiries (666), so perhaps the matter is not quite as simple as all that. Would it be overly exigent to expect more probing? If Milligan is to be trusted then The Kid spent two years at St Kevin's, 1996 and 1997. It's surprising that the year was not etched in his memory, nor of his mother who went with him to the police and presumably discussed it with him. And certainly, up to the end of 2015, it seems that the police really did think that 1997 was the year as they put out a call for 14 year olds who may have been witnesses (not 13 year olds). At any rate, we have argued that at least Milligan senses the problem.xiv To spell matters out, what seems plausible is that The Kid has invented (or was put up to inventing) the joint assault for the sake of The Choirboy. At first it was thought that the decline happened in the second year, but later, perhaps having seen the school reports, an earlier year was adopted. As the prosecution would be forced to concede, the assaults happened in Advent, in the holidays, actually. The complainant seems to have "remembered" every possibility save that one!

To all this the majority respond, "On the contrary, these exchanges seem to us to be entirely consistent with A's understandably hazy recollection of the timing and the surrounding circumstances, as illustrated by his initial error about the year in which the incidents took place." (216) His unreliability only boosts his credibility!

We have touched on the majority's treatment of the changes in the account of the procession. They find these insignificant as apparently the run-up is not so memorable. (220) Nonetheless, the complainant does seem to recall precise details such as bolted doors (see above 4.3).

Similarly, we have touched on the treatment of the return of the choristers which we have argued presents insuperable problems Richter characterised the factor as critical (811). At this point the majority have to concede, "It is true, as the applicant submits, that A provided no basis for reconciling his account with the post-Mass rehearsals." (225) They clutch at the straw that perhaps the rehearsals that were scheduled never happened after all as no-one seems to have a precise memory two decades later. This same reasoning, of course, has been used before, though in the complainant's favour! But the conjecture seems unreasonable. St Patrick's would have needed to rehearse for Christmas (in 1997, at least, a recording was produced) and time was of the essence St Kevin's was then closed in the holidays. It is quite arbitrary to suppose that they were cancelled, and Finnigan gave evidence that he could remember them (he retired that Christmas). (566-7)

In the face of all this we find the following in (227):

Finnigan's evidence was that post-Mass rehearsals sometimes took place in the choir room and sometimes in the Cathedral. Even if the rehearsal was in the Cathedral, he said, the choristers were likely to have returned to the choir room before rehearsal. They would have disrobed and would then have gone back into the Cathedral. Mallinson's evidence on this point was to the same effect. Another former chorister said that, on a normal day, it could often take up to 1015 minutes for the entire choir to disrobe and leave the rehearsal room.

The majority somehow imagine that because on some occasions the choristers disrobed before rehearsing that this helps the complainant's account. But that account had him being collected by his parent (he could not recall who exactly) 15 minutes after Mass. Obviously, the later summary statement (that can only refer to the above) is utterly feeble: "For the reasons given earlier, even if there were rehearsals this did not create an obstacle to the jury accepting A's account."

The majority now address the solid obstacles.

The timing of the alleged assaults was impossible. The complainant had insisted that both incidents had happened in the same choral year. The majority point out that this was simply passed over by the Crown. Because Pell was in the cathedral on 23 February 1997 they reckon that the second incident was feasible. They do not address the question of how they know beyond reasonable doubt that it did not happen later, outside the time-scale specified in the indictment.

It was not possible for Pell to be alone in the sacristies only a few minutes after the end of Mass. At this point the majority give a lengthy treatment to the effect that, while Portelli (the alibi) was honest, and certainly reliable on church procedures, it remains that by way of exception the normal practice may not have been followed on this occasion. They reckon that "taken as a whole" Portelli's evidence did not compel the jury to have a doubt about A's evidence. Here we would remark that a fuller consideration of Portelli is to be found in the dissent. Weinberg does not set Portelli aside.xv Similar approaches are taken to other "hostile" witnesses, which again are treated more thoroughly in the minority report particularly, we should note, in regards to the hiatus.

It was not possible for Pell to be robed and alone in the Priests' Sacristy after Mass. The arbitrary dismissal is as expected: "The jury were entitled to come to the view, based on the totality of the evidence, that not only was it possible that Cardinal Pell was alone and robed (in seeming contravention of centuries- old church law) but the evidence did not raise a reasonable doubt in their minds about his guilt."

We leave a consideration of the "hiatus" to a later section. The majority consider together the obstacles relating to the choristers' deviation from the procession. The gist here is that some choristers gave evidence to the effect that the procession was more unruly than the marshal made out. The majority pass over various problems such as navigating the locked doors. We point out that they draw uncritically on Andrew La Greca whose honesty did not receive a resounding endorsement from Richter. Predictably enough, "In our view, the evidence (including the evidence we have described in this section) falls well short of establishing the defence proposition that, if the first incident had occurred, A and B would have been seen by someone when they left the procession and entered the south transept, or when they re-joined the choir (regardless of whether there was a rehearsal after Mass on the day in question)." (326) We will simply point out that the majority never relate, as the minority does, Cox's evidence that "nicking off" would be "highly improbable" (784) or Richter's contention (802) that the absence would not go unnoticed this last point is simply ignored.

The second incident could not have happened in 1997 at a Mass said by another priest. The focus here is on the fact that the complainant had (understandably) no particular recall of Pell's robes. On the failure to call Egan, the majority refer the reader to what has already been said.

Pell would not be alone among the choir. The majority claim that the evidence relies solely on Cox. However, in several places evidence was given that Pell would not be robed and alone, for example by Potter and Portelli (977).

Let us now pause to summarise. Again and again the majority have seized, very often arbitrarily, on any possible ambiguity that might be taken as favourable to the complainant. The pattern is very clear. Taking as their foundation, not the whole of the evidence but one part, namely, what they take to be the compelling credibility of the witness, each and every piece of evidence is raised and then relegated to insignificance with the implication that, even if this might occasion a doubt, nevertheless, nothing dictates that it must have raised one. However, in every matter of dispute, as far as we can judge, it seems to us that the minority has the better argument. Thus, we might say that, supposing the burden of proof was such that Pell had to prove his innocence beyond reasonable doubt, and had that been what a jury had found, the objections that the majority raise are little more than those insignificant matters that only might raise a doubt. According to this methodology, a hypothetical appellate court called to review the judgement that Pell was innocent beyond reasonable doubt ought to reject such an appeal on the grounds that the jury were not bound to have a doubt.

In truth, what the majority have done is reversed the burden of proof. The one part of the "evidence" that they favour (the uncorroborated word of the complainant) is used time after time to trump any other consideration. It seems to us that such dismissals are perfunctory. The majority tap the consideration into their computer and the computer says "No." The computer always says "No" because the approach of the majority is to dismiss in advance any objection unless it constitutes a claim that the allegations are impossible. With that point made let us turn to solid obstacle "D."

It was not possible that two choirboys could be assaulted in the Priests' Sacristy after Mass by Pell undetected. The issue here regards the so-called hiatus that we have now treated in six pieces.xvi The theory is that an assault was possible because although the sacristy was generally very busy, a five or six minute hiatus opened up that would permit the offence to take place. We can cite the concluding paragraph (300):

In our view, taking the evidence as a whole, it was open to the jury to find that the assaults took place in the 5-6 minutes of private prayer time and that this was before the "hive of activity" described by the other witnesses began. The jury were not bound to have a reasonable doubt.

Our immediate observation is lexical. In just 55 words the authors manage to sneak in three key phrases: "not bound to have a doubt," "open to the jury," and "taking the evidence as a whole." In only two other paragraphs in the ruling do all three phrases (or cognates) occur: (14) and (351). These are at the very beginning and at the end, and so the implication is clear: this passage is quite central to the manner in which the majority have conducted the M Test.

Nevertheless, the "argument" is at best blinkered and at worst weaselish. In the first place, the notion of a hiatus in the sacristy is not one that the jury were entitled to. The unchallenged evidence contradicted it, for the court heard that the sacristy would be locked during Mass and unlocked when the sacristan started to remove items from the sanctuary beginning with the lectionary. There was good reason keep the room secure because concelebrating priests would leave their valuables there, and those working in the utility room opposite have explained that at times tourists would wander up to the sacristy area.xvii What the hiatus theory supposes is that on this occasion Potter reversed his usual sequence. The the court heard that he would indeed provide those visiting the sanctuary a little space for private prayer and the activity whereby items on the sanctuary were taken back to the sacristy would be delayed for five minutes before the room was unlocked. Gratuitously, the theory was that on this occasion Potter first unlocked the room and then gave those on the sanctuary some private time. Nothing heard in court is cited to justify this claim.

The majority pretend, however, that a contradiction arose in the evidence of Connor and McGlone to the effect that, as altar servers returning from the procession, they could not say that Potter was always present in the sacristy (which nevertheless had been opened up). But the evidence was that such a "gap" was only for a minute or two, and not long enough for the alleged assault.

More to the point, the altar servers would not could not return immediately after Mass had ended. They were part of a procession with the choir that would take, let us say with no detriment to the argument, around five or six minutes. No doubt by that time the sacristy was unlocked, but this would only be because the prayer time on the sanctuary was over (and of course, the activity in the sacristy was about to begin).

However, even if we grant the unlikely premise that the sacristan left the sacristy unlocked and unattended for five or six minutes this does not allow an opportunity for the offence to occur undetected. The point may be put cogently by asking whether the so-called hiatus happened before or after the altar servers returned.

For the altar servers must have returned. To take just one specific task, Pell would also take part in the procession. He would be to the rear and behind him perhaps 5 acolytes, at least two assigned a definite task, to take back his mitre and crozier. These would be with him as he walked down the main aisle, but they would take his items back to the sacristy as he remained on the steps in order to meet and greet as was his practice. Moreover, some altar servers were to the front of the procession, carrying the incense burner (or perhaps a cross-bearer flanked by acolytes holding candles). So, the complete return of all the altar servers would not be instantaneous; it would take a minute or so.

An important question regards how long their journey took, and in their treatment the majority flag the issue. The trouble is, having raised it the majority then proceed to ignore it. We have suggested 5 or 6 minutes, but perhaps it would be misleading to be too precise for we imagine that no such precision exists with regards the quiet time that Potter chose to leave in the church, and from what time that began. We would, however, stress that the very same procession comprised of both choristers and altar servers, and so whether the whole journey was fast or slow the duration applies equally to all members.

Now, the court would hear that two choristers absconded from the procession when it was nearing its close, and they then took an indirect route to the sacristy, taking time to poke around various corridors before discovering the sacristy and its wine cupboard. Realistically, it seems to us, they would probably have got there a little after the first altar servers did, and possibly a little before the last ones. Obviously, this would not provide the time for their own crimes let alone the Archbishop's. However, supposing that they arrived in the middle of a hiatus, logically speaking, and as indicated, this could only be before or after the return. The majority never face up to this constraint.

For all the world they insinuate that the hiatus in the sacristy was immediately after Mass, and concurrent with the quiet time on the sanctuary, that is, for about five or six minutes. But it would have been impossible for the processing choristers to have made it in that time and still be assaulted. If the procession was quick then the altar servers would have returned sooner, and whatever the tranquillity on the sanctuary the doings done in the sacristy would be detected. Moreover, Pell too (who was at the end of the procession) would somehow have to make it back to meet up with the choristers all this in a hiatus that is being rapidly eaten up.

Moreover, the majority must surely know about Gibson's ruse. For the impossibility of an early hiatus was appreciated by the Crown. Thus, in evidence that is not presented in the ruling it happened that they would conjecture that the hiatus opened up after the return. As for the difficulty of the presence of the altar servers, adults and children, the Crown surmised that perhaps they were whisked away to the Workers' Sacristy opposite the corridor for five or six minutes. The defence objected and the Crown had to retract; the conjecture had no basis in the evidence. But even if it did the idea really doesn't help at all. The fact of the matter is and Weinberg spells out the detail the activity of altar servers moving to and from the sanctuary was just one part of the "hive of activity" that took place in the sacristies area. Thus, those bringing the collection would deposit the money in the safe, concelebrating priests would retrieve their belongings, organists return their sheet music, and as indicated, the mitre and the crozier would be returned by the acolytes at the rear of the procession. Moreover, some would have been busy in the room opposite the corridor, the florists for example.xviii In other words, there never was a hiatus in the sacristy at all. It was locked, and then it was opened. When it was opened the place was busy until, finally, the sacristan locked it again. The sacristy was not left free for hiati early or late.

We have to say that the tenor of the majority's argument is to attempt to have it both ways. On the one hand they imply without saying it that the hiatus in the sacristy was concurrent with the hiatus on the sanctuary. This lasted about five or six minutes starting from some time very soon after Mass. That's why, it seems, they go for an early hiatus, that is, immediately after Mass. But this runs into the problem that both Pell and the choristers would have been elsewhere, and even if they made it back for some of the time, most of the opportunity would have elapsed.

But on the other hand they hold out the prospect of a late hiatus. This is apparent from the sole paragraph in which the word "hiatus" is mentioned (297): "... The clearing of the sanctuary had, of course, to await the end of the private prayer for parishioners. The Crown case as presented to the jury was that 'there is this hiatus, this gap' during which the first incident had occurred."

Wait a minute, please! Whence the "of course"? What the majority are implying is that after a time that they had previously said that they would specify (the duration of the altar servers' return which those who have done the walk-through put at around five or six minutes) the sacristy would be unlocked. In itself this is quite reasonable; the sacristan would permit the altar servers to enter in rather than wait outside. But somehow they help themselves to two other assumptions. First, they suggest that since Potter would leave a period of calm which would start at that instant, five or so minutes after Mass though perforce the sanctuary had already been calm for five minutes as it had been free from interruption from busy altar servers who were outside the cathedral on procession. That makes ten to twelve minutes of peace in total at the sanctuary which is not how (300) reads. Second, they imply that Potter would choose to preserve calm in the sacristy (for no reason) and do so ineffectually (by making himself scarce) and to do so unhelpfully (for by now many people had a reason to do whatever they had to do in that place).

Whatever way one looks at it, there was just no opportunity for the offence to have taken place in the sacristy, not before the altar servers returned, not during, and not after. That's what the whole of the evidence indicates, as the majority must have understood. They must have had a doubt. It was not open for a reasonably jury to convict. Accordingly, the High Court must quash this perverse ruling.

Let us conclude. Louise Milligan has recently tweeted:

Well, to be technically correct, the test is whether the court believes the jury must have had a reasonable doubt - not could or should, or might, but actually did. It's not whether the High Court itself is persuaded there is a doubt themselves.xix

Plainly, in a dispute about legal principles the journalist is here presenting as definitive one side of the argument that a "showdown" in the High Court is yet to resolve. Actually, she is misspeaking, because the claim that a reasonable jury must have had a doubt is not to be contrasted with the position that they should have had a doubt. If an appeal court concludes that a reasonable jury should have had a doubt then the verdict is unsafe.

We have no sympathy for this opinion whatsoever having read through the dissent which we believe has addressed thoroughly the way that the intermediate appellate court should proceed. Still, we have taken on the role of devil's advocate pro bono and attempted to make sense of the "must/might" language used in the case of Libke. Our suggestion was that, on condition that the whole (or virtually the whole) of the evidence points in one direction, but that some insignificant part still niggles so that we might have a doubt, then, in deference to our limited human condition, we may tolerate that scruple. It would be too exigent to suppose that in such a case either we or a reasonable jury must have had a doubt.

However, even if that formulation is acceptable, we argued that this was not how the majority argued. Their basis was the utterly compelling witness of truth that was the complainant. They are in agreement with the (second) jury. Of course, this is just one part of the evidence albeit the whole of the culpatory evidence. And on this basis it is open for them to find Pell guilty beyond reasonable doubt.

By way of a corollary, all the remaining evidence (the opportunity evidence of the solid obstacles, but also the credibility of Pell himself in his denials) is thereby relegated to an insignificant possibility that, if it might raise a doubt, there is no necessity that it need or should. It is from this perspective the majority treat every "hindrance."

We have shown how this method is used again and again with enough examples to fill an Advent calendar. Thus, in many instances where we would argue that the better argument is with Pell, the majority are able to conclude that in their view there is no reason to suppose that the jury "must have had a doubt." Obviously, this is to reverse the burden of proof, just as Bret Walker has submitted in his "Ground 1."xx

We would contend, however, that on one issue the majority are hoist by their own petard so that, were they honest, they would have to admit that a reasonable jury must have had a doubt. That issue regards the fact that the choristers could not have been assaulted in a busy sacristy without being detected. Even if the room was ever locked and left unattended that could only have been very soon after Mass when both Pell and the boys were elsewhere. We have spelt out exactly why we think that the majority are not facing up to the facts. The plain truth is that the assault as described really was impossible, just has Walker submitted in his "Ground 2."xxi

i - https://www.academia.edu/40215377/A_Very_Short_Critique_of_Ferguson_and_Maxwell
ii - In his June media statement Walker reminded us that McHugh had made just this point in his ruling in M at paragraph (29): https://www.academia.edu/40193356/Bret_Walkers_leave_to_appeal_for_Media.
iii - In: https://insidestory.org.au/pells-judges/ And before the June hearing Gans tweeted a helpful technical explainer: https://twitter.com/jeremy_gans/status/1135804332199202816
iv - Hayne's ruling on Libke (113) can be found here: http://eresources.hcourt.gov.au/showCase/2007/HCA/30
v - Emphasis added. The ruling can be found here. https://jade.io/article/67870. Note that this passage, minus the final sentence which includes the words "significant possibility" is cited by the majority in (20).
vi - https://www.academia.edu/39186933/Milligan_and_the_Kid
vii - The context here is the "advantage" possessed by the jury, but the majority are just silly. It is one thing to acknowledge that those who had seen the witness in the flesh (those of the first, hung jury) may have had an advantage over those who only saw the video (the second jury and the appellate court). It is quite another thing to do everything possible to make sure that in no respects a panel reviewing a possibly unsafe verdict have no advantage over those who came to that unsafe verdict.
viii - As Walker tells us at (5): https://www.academia.edu/40193356/Bret_Walkers_leave_to_appeal_for_Media
ix - https://www.academia.edu/40421980/The_Moment_I_knew_He_would_be_Found_Guilty
x - https://www.academia.edu/40366566/From_Committal_to_Trial_in_the_Rulings_The_Robes_and_the_Wine
xi - Lucie Morris-Marr reported on the committal: https://www.academia.edu/40619146/Lucy_Morris_and_Margaret
xii - At (27): https://www.academia.edu/40193356/Bret_Walkers_leave_to_appeal_for_Media
xiii - https://www.academia.edu/40280022/The_Contrivance_of_Cardinal_Pell https://www.academia.edu/40887246/The_Background_Thinking_to_the_Rome_Interview
xiv - https://www.academia.edu/40652365/Milligan_and_the_Year
https://www.academia.edu/40377344/Why_1997
xv - https://www.academia.edu/40271009/Putting_Portelli_to_One_Side
xvi - The links may be found in the latest: https://www.academia.edu/40848998/The_Problem_of_the_Hiatus
xvi -https://www.theaustralian.com.au/nation/cathedral-workers-back-george-pells-appeal-application/news- story/7eb6bfd14e227cc527d8594d05d046d5
xviii - Here see: https://angelusnews.com/news/world/former-melbourne-cathedral-workers-doubt-pell-abuse-could- have-occurred/ and http://www.newsweekly.com.au/article.php?id=58795
xix - https://twitter.com/Milliganreports/status/1194540477652987908
xx - Here see Walker's submission: https://www.academia.edu/40967330/IN_THE_HIGH_COURT_OF_AUSTRALIA
xxi - Again see: https://www.academia.edu/40967330/IN_THE_HIGH_COURT_OF_AUSTRALIA Only "Ground 1" is relevant to the showdown spoken of by Professor Gans.

(The writer Doctor Chris Friel taught maths for many years before undertaking, first, a masters in Philosophy, and second, doctoral research on value and credibility in the thought of Bernard Lonergan. In 2018 he investigated at length the "purposely timed hysteria" of the pro-Israel hawks in the UK amidst the antisemitism crisis, and in 2019 has devoted an equally lengthy exploration of the Pell case and its context).

Also by Chris Friel:

How the Interview Changed the Story

Cardinal George Pell learned of charges against him in Rome Interview

Related story: High Court of Appeal in Australia to review conviction of Cardinal

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