The increasing blur between the journalist as reporter and the journalist as activist was never more evident than before and after the High Court’s decision on Wednesday in George Pell v The Queen.

The High Court rejected 21 out of 22 applications for leave to appeal on that day.  However, in Pell’s case, Justices Gordon and Edelman ordered that his application for special leave to appeal “be referred to a Full Court of this Court for argument as on an appeal”.  This is expected to occur in early 2020.

ABC journalist Louise Milligan is an activist journalist and a Pell antagonist.  This is evident in her reports on Pell for 7.30 and Four Corners concerning allegations about, and subsequent conviction for, historical child abuse. It is also evident in her book Cardinal: The Rise and Fall of George Pell (2017).

It came as no surprise that Milligan was the commentator of choice on ABC Radio on Wednesday morning.  First up, she was interviewed by Wendy Harmer and Robbie Buck on 702 in Sydney.  Asked about the likely outcome of the case, Milligan said that Pell’s application for leave to appeal “has probably been denied”.  She added that the criminal lawyers she had spoken to “have said there doesn’t seem to be a clear appeal point there”.

The High Court thought otherwise, although we still have no idea of the likely outcome of the case.  Milligan went on to say: “Apart from the mechanics, you know, the thing about this is – every time this comes up, it’s just a kick in the guts to a lot of people out there for whom this process has been extremely painful”.  In other words, the implication is that Pell is somehow responsible not only for the two men he was convicted of sexually abusing – but for all others who have been abused by Catholic clerics in Australia and perhaps overseas as well.

Milligan returned to this theme when interviewed by Virginia Trioli on 774 in Melbourne shortly after the High Court’s decision was handed down, stating: “I guess from the point of view of a lot of people who are affected by this case, it certainly prolongs the agony…It’s just sad, it’s that feeling in the pit of the stomach that just won’t go away”.

This is just advocacy.  The issue in George Pell v The Queen turns on whether he was properly convicted by the jury in the second trial, following the inability of a jury to reach a decision in the first trial. That’s all.

It seems that Milligan and some other journalists are not aware of, or have forgotten, the statements of Chief Judge Peter Kidd in the County Court of Victoria in the reasons for his sentence in Director of Public Prosecutions v George Pell on March 13 this year.

In his sentencing comments, the Chief Judge made it clear that “at law” he must “give full effect to the jury’s verdict”. He added that it was not for him “to second guess the verdict”. In other words, he expressed no view on the correctness or otherwise on the jury’s verdict.

Early in his judgment, Chief Judge Kidd said that Pell was not to be made a scapegoat for any failings or perceived failings of the Catholic Church.  Nor was he being sentenced for any failure to prevent or report child sexual abuse by other clergy.  Then the judge addressed “other victims of clerical or institutional sexual abuse who may be present in court today or watching or listening elsewhere”.

Chief Judge Kidd was direct: “This sentence is not and cannot be a vindication of your trauma.  Cardinal Pell has not been convicted of any wrong doings committed against you”.  This is a direct reproach to the kind of reporting engaged in by Milligan and some others on Wednesday both before and after the High Court decision.

Some people hold the view that Pell should be punished not only for the crimes for which he was convicted but for the crimes of other Catholics as a form of collective punishment.  But this is not the law. And it should not be the plaything of journalists.

On Wednesday evening, ABC TV’s The Drum invited The Guardian’s David Marr to provide the only expert comment on the Pell case.  Like Milligan, Marr is an activist journalist and Pell antagonist.  He has been a decade long critic of Pell as is evident in his book The Prince: Faith, Abuse and George Pell (2013).

On The Drum, Marr was less damning than usual of Pell and said that “this is a case about justice between a man and his accuser”. However, Marr was passionate in declaring that “properly instructed juries can deal with famous people”.  Presenter Ellen Fanning did not ask why, if this is the case, trial by judge alone has been introduced in all mainland states except Victoria.

Marr’s assertion is contrary to the view of Justice Mark Weinberg who is perhaps the most experienced judge in the criminal jurisdiction in Australia.  Justice Weinberg dissented in the two-to-one decision of the Victorian Court of Appeal in George Pell v The Queen.   In his substantial and substantive judgment, Justice Weinberg expressed the view that Pell’s conviction was not safe.  In the pre-judgment hearings, he had said that “juries almost always get it right” – but added “the word is almost”.

In his sentencing judgment in the Victorian County Court, Chief Judge Kidd condemned the fact that “over the last period we have witnessed outside of this court and within our community examples of a ‘witch-hunt’ or ‘lynch mob’ mentality in relation to Cardinal Pell”. It’s difficult to see how jurors would have been unaware of this atmosphere.

The fact is that the media pile-on against Pell, in which Milligan and Marr played prominent roles, contributed to the lynch mob mentality which Chief Judge Kidd condemned.  But they were the go-to commentators when the ABC was seeking comment on the High-Court decision on Wednesday.  Their views were contestable – but were not contested.

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Gerard Henderson is Executive Director of the Sydney Institute. His Media Watch Dog blog can be found at www.theaustralian.com.au

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